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1981_80-2049

JUSTICE MARSHALL delivered the opinion of the Court.We granted certiorari in this case, 452 U.S. 960 (1981), to decide whether a youth offender who is sentenced to a consecutive adult term of imprisonment while serving a sentence imposed under the Federal Youth Corrections Act (YCA), 18 U.S.C. § 5005 et seq., must receive YCA treatment for the remainder of his youth sentence. The Courts of Appeals are in conflict on this issue. [Footnote 1] We conclude that the YCA does not require such treatment if the judge imposing the subsequent adult sentence determines that the youth will not benefit from further YCA treatment during the remainder of his youth sentence. Accordingly, we reverse the judgment of the Court of Appeals.IIn 1974, respondent, who was 17 years old, pleaded guilty to a charge of second-degree murder, and was sentenced to a 10-year term of imprisonment under the YCA, § 5010(C). The sentencing judge recommended that he be placed at the Page 454 U. S. 204 Kennedy Youth Center in Morgantown, W.Va.; that he not be released until he had attained at least an eighth-grade level of education and had successfully completed a trade of his own choosing; and that he participate in intensive, individual therapy on a weekly basis and undergo a complete psychological reevaluation before being returned to the community. The sentence, like all YCA sentences, contemplated that the respondent be segregated from adult offenders. See 18 U.S.C. § 5011.Respondent's subsequent conduct has not been exemplary. In 1975, while incarcerated at the Federal Correctional Institution (FCI) at Ashland, Ky., respondent was found guilty of assaulting a federal officer by use of a dangerous weapon, in violation of 18 U.S.C. §§ 111 and 1114. The United States District Court for the Eastern District of Kentucky imposed an additional 10-year adult sentence, and stated in its commitment order: "The Court finds that the defendant will not benefit any further under the provisions of the [YCA], and declines to sentence under said act." After receiving a presentence report, the judge reduced the sentence to 66 months, to be served consecutively to the YCA sentence. The judge also recommended that respondent be transferred from the Kentucky institution "to a facility providing greater security."Respondent was placed in the Federal Correctional Institution at Oxford, Wis. Subsequent disciplinary problems resulted in his transfer to the FCI at Lompoc, Cal. In 1977, while confined in that institution, respondent pleaded guilty to another charge of assaulting a federal officer. The United States District Court for the Central District of California sentenced him under 18 U.S.C. § 5010(d) to an adult sentence of one year and one day and ordered that the sentence run consecutive to and not concurrent with the sentence that respondent was then serving.After the second adult sentence, the Bureau of Prisons classified respondent as an adult offender. Accordingly, at Page 454 U. S. 205 least since that time, [Footnote 2] respondent has not been segregated from the adult prisoners, and has not been offered the YCA rehabilitative treatment that the initial trial court recommended. The Bureau of Prisons acted pursuant to a written policy when it classified respondent as an adult. In implementing the YCA's treatment and segregation requirements, the Bureau narrowly defines a "YCA Inmate" as "any inmate sentenced under 18 U.S.C. Section 5010(b), (c), or (e) who is not also sentenced to a concurrent or consecutive adult term, whether state or federal." Bureau of Prisons Policy Statement No. 5215.2, p. 1 (Dec. 12, 1978) (emphasis added).Respondent exhausted his administrative remedies and filed a petition for habeas corpus on May 25, 1978. The Magistrate recommended transfer to an institution in which respondent would be segregated from adults and would receive YCA treatment. The United States District Court for the Southern District of Illinois issued an order granting the writ, which was affirmed by the United States Court of Appeals for the Seventh Circuit. 642 F.2d 1077 (1981). The Court of Appeals held that the YCA forbids the reevaluation of a YCA sentence by a second judge, even if the second judge makes an explicit finding that further YCA treatment would not benefit the offender. The Court of Appeals also rejected petitioner's broader argument that the YCA vests discretion in the Bureau of Prisons to modify the treatment terms of a YCA sentence when the offender has received a consecutive or concurrent adult sentence for a felony.On January 9, 1982, respondent will be conditionally released from his YCA sentence and will begin his first adult sentence. Page 454 U. S. 206IIIn Dorszynski v. United States, 418 U. S. 424 (1974), this Court exhaustively analyzed the history, structure, and underlying policies of the YCA. From that analysis, and from the language of the YCA, two relevant principles emerge. First, the YCA strongly endorses the discretionary power of a judge to choose among available sentencing options. Second, the YCA prescribes certain basic conditions of treatment for YCA offenders.In Dorszynski, THE CHIEF JUSTICE, writing for the Court, found that the principal purpose of the YCA is to rehabilitate persons who, because of their youth, are unusually vulnerable to the danger of recidivism:"To accomplish this objective, federal district judges were given two new alternatives to add to the array of sentencing options previously available to them . . . : first, they were enabled to commit an eligible offender to the custody of the Attorney General for treatment under the Act. 18 U.S.C. §§ 5010(b) and (c). Second, if they believed an offender did not need commitment, they were authorized to place him on probation under the Act. 18 U.S.C. § 5010(a). If the sentencing court chose the first alternative, the youth offender would be committed to the program of treatment created by the Act."Id. at 433. [Footnote 3]If a court wishes to sentence a youth to an adult sentence, it is authorized to do so under § 5010(d). In Dorszynski, a Page 454 U. S. 207 majority of this Court held that a judge must make an explicit "no benefit" finding to invoke this subsection, but need not give a statement of reasons to justify his decision. Both the majority and concurring opinions emphasized that the YCA was not intended to disturb the broad discretion traditionally available to federal judges in choosing among appropriate sentences. 418 U.S. at 418 U. S. 436-442; id. at 418 U. S. 450 (MARSHALL, J., with whom Douglas, BRENNAN, and Stewart, JJ., joined, concurring in judgment).We reiterated that trial courts retain significant control over sentencing options in Durst v. United States, 434 U. S. 542 (1978), where we unanimously held that the YCA permits the court to impose a fine or require restitution when it places a youth on probation under § 5010(a). In his opinion for the Court, JUSTICE BRENNAN explained the underlying purposes of the Act:"The core concept of the YCA, like that of England's Borstal System upon which it is modeled, is that rehabilitative treatment should be substituted for retribution as a sentencing goal. Both the Borstal System and the YCA incorporate three features thought essential to the operation of a successful rehabilitative treatment program: flexibility in choosing among a variety of treatment settings and programs tailored to individual needs; separation of youth offenders from hardened criminals; and careful and flexible control of the duration of commitment and of supervised release."Id. at 434 U. S. 545-546 (footnotes omitted).A second important feature of the YCA is that it empowers, and indeed requires, a judge to prescribe certain basic conditions of YCA treatment. This prescription ensures that treatable youth offenders are segregated from adult criminals, and that they receive appropriate rehabilitative care.The need to segregate youth from adult criminals drew special attention in the legislative history. Proponents of Page 454 U. S. 208 the statute criticized the practice of"herding youth with maturity, the novice with the sophisticate, the impressionable with the hardened, and . . . subjecting youth offenders to the evil influences of older criminals and their teaching of criminal techniques. . . ."H.R.Rep. No. 2979, 81st Cong., 2d Sess., 2-3 (1950); see 96 Cong.Rec. 15036 (1950). This concern was expressed in the statutory requirement that offenders receiving youth sentences be segregated from adults. 18 U.S.C. § 5011. [Footnote 4] More generally,"[t]he panoply of treatment options available under the Act is but further evidence that the YCA program was intended to be sufficiently comprehensive to deal with all but the 'incorrigible' youth."Dorszynski, supra, at 418 U. S. 449 (MARSHALL, J., concurring in judgment) (footnote omitted).The YCA allocates responsibility for determining essential treatment conditions in an unusual way. Under traditional sentencing statutes, prison officials exercise almost unlimited discretion in imposing the security and treatment conditions that they believe appropriate. The YCA is different. By determining that the youth offender should be sentenced under the YCA, the trial court, in effect, decides two essential conditions of confinement: the Bureau of Prisons must comply with both the segregation and treatment requirements of the Page 454 U. S. 209 YCA. 18 U.S.C. § 5011. See Brown v. Carlson, 431 F. Supp. 755, 765 (WD Wis.1977); Hearings on S. 1114 and S. 2609 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess., 43-44 (1949) (statement of Judge Parker) (hereinafter 1949 Senate Hearings); Report to the Judicial Conference of the Committee on Punishment for Crime 8-9 (1942). The Bureau retains significant discretion in determining the conditions of confinement, see infra at 454 U. S. 211, but its discretion is limited by these requirements.The history of the YCA's passage buttresses the conclusion that correctional authorities may not exercise any of the sentencing powers established in the Act:"The initial legislative proposal, an American Law Institute model Act, removed the power to sentence eligible offenders from the trial judges altogether and reposed that power in a correctional authority. Not surprisingly, that proposal brought swift and sharp criticism from the judges whose power was to be sharply curtailed. The next proposal, by the Judicial Conference, involved shared sentencing powers between trial judges and correctional authorities. It met with similar criticism. The 1949 proposal, which was finally enacted into law, retained sentencing power in the trial judge."Dorszynski, 418 U.S. at 418 U. S. 446-447 (MARSHALL, J., with whom Douglas, BRENNAN, and Stewart, JJ., joined, concurring in judgment) (footnotes omitted).This unusual responsibility for treatment conditions demands that the sentencing judge thoroughly understand all available facts relevant to the offender's treatment needs. Thus, the statute provides the trial court with the opportunity to obtain an extremely comprehensive presentence report, 18 U.S.C. § 5010(e). See S.Rep. No. 1180, 81st Cong., 1st Sess., 5 (1949); 1949 Senate Hearings, at 18-19 (statement of Chief Judge Laws); Hearings on H.R. 2139 and Page 454 U. S. 210 H.R. 2140 Before Subcommittee No. 3 of the House Committee on the Judiciary, 78th Cong., 1st Sess., 63-64 (1943) (statement of Judge Laws). With this framework in mind, we will review the parties' statutory arguments.IIIRespondent asserts that the express language of the YCA prohibits any modification of the basic terms of a YCA sentence before its expiration. Respondent first points to § 5010(c), which authorizes a court to"sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period [beyond six years] that may be authorized by law for the offense . . . or until discharged by the [United States Parole] Commission."Respondent also relies on § 5011, which provides that "[c]ommitted youth offenders . . . shall undergo treatment in institutions . . . that will provide the essential varieties of treatment," and that,"[i]nsofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment."(Emphasis added.) From this language, respondent argues that the essential segregation and treatment requirements of the initial YCA sentence cannot be modified before the sentence expires.We are not persuaded by this interpretation. Section 5010 enables the sentencing court to determine whether a youth offender would benefit from treatment under the YCA. If the original sentencing court determines that such treatment would be beneficial, it may sentence the youth offender under § 5010(a), (b), or (c), or it may request additional information under § 5010(e). Once the original sentencing court has made this determination and has sentenced the offender under the YCA, § 5011 requires the Bureau of Prisons to carry out the mandate of the court with respect to the offender's Page 454 U. S. 211 segregation and treatment needs. We do not read that language as requiring the judge to make an irrevocable determination of segregation or treatment needs, or as precluding a subsequent judge from redetermining those needs in light of intervening events.At the other extreme, petitioner asserts that the YCA gives the Bureau of Prisons independent statutory authority to determine that a YCA offender will not benefit from YCA treatment. Petitioner believes that the Bureau can make such a determination at any time, whether or not an offender has committed a subsequent offense. We reject this extraordinarily broad interpretation, and any interpretation that would grant the Bureau independent authority to deny an offender the treatment and segregation from adults that a sentencing court mandates.Prison officials do have a significant degree of discretionary authority under the YCA relevant to the treatment of youth offenders. The Bureau is responsible for studying the treatment needs of committed youth offenders, 18 U.S.C. § 5014, and for confining offenders and affording treatment "under such conditions as [the Director of the Bureau] believes best designed for the protection of the public." 18 U.S.C. § 5015(a)(3). It may commit or transfer offenders to any appropriate agency or institution, 18 U.S.C. §§ 5015(a)(2) and (b), and may provide treatment in a wide variety of institutional settings. 18 U.S.C. § 5011. Moreover, it has authority to recommend conditional release and otherwise to consult with the United States Parole Commission in the implementation of the YCA. 18 U.S.C. §§ 5014, 5015(a)(1), 5016, 5017.However, the statute does not give the Bureau any discretion to modify the basic terms of treatment that a judge imposes under §§ 5010 and 5011. When a judge imposes a youth sentence under the YCA, the sentence commits the Page 454 U. S. 212 youth to the custody of the Attorney General "for treatment and supervision pursuant to this chapter." 18 U.S.C. §§ 5010(b) and (c). Section 5011 provides two elements of mandatory treatment: first, youths must undergo treatment in an appropriate institution that will "provide the essential varieties of treatment"; second,"[i]nsofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment."These two elements of the program are statutorily mandated, and the discretion of the Bureau is limited to the flexible discharge of its responsibilities within these two broad constraints. [Footnote 5]Even if the Bureau asserted only the right to treat YCA offenders as adults in accordance with its Policy Statement, see supra at 454 U. S. 205, this assertion of power is much too broad. The policy would treat any youth offender with an adult consecutive Page 454 U. S. 213 sentence as an adult -- even if 15 years of his YCA sentence remained and the adult sentence were only for 1 year. It is unreasonable, indeed callous, to assume that such an offender could not receive any further benefit from YCA treatment. This example underscores the importance of leaving such decisions to the sound discretion of a federal sentencing judge, rather than to prison officials. The fatal defect in petitioner's argument is that it permits prison officials to make a determination -- whether a YCA offender will benefit from YCA treatment -- that the statute commits to the sentencing judge.IVNo provision of the YCA explicitly governs the issue before us. The statute describes the sentencing options available to a judge after conviction, but does not elucidate what options would be available after the defendant has been convicted of a second crime while serving his initial sentence. The purposes of the statute, however, revealed in its structure and legislative history, compel the conclusion that a court faced with a choice of sentences for a youth offender still serving a YCA term is not deprived of the option of finding no further benefit in YCA treatment for the remainder of the term.Under § 5010(d), a court sentencing an offender who is serving a youth term may make a "no benefit" finding and then "sentence the youth offender under any other applicable penalty provision." A judge is thus authorized to impose a consecutive adult term, as the second judge did in this case. However, the court also has before it the question whether the offender will benefit from YCA treatment during the remainder of the YCA term. Although § 5010(d) does not expressly authorize a second judge to make a "no benefit" finding with respect to the remainder of an unexpired YCA sentence, we believe that it implicitly authorizes such a determination, as well as the determination that YCA treatment Page 454 U. S. 214 during the consecutive sentence would not be beneficial. It assuredly does not authorize prison officials to make either determination.Our review of the legislative history reveals no explicit discussion of the trial court's options in sentencing a youth who commits a crime while serving a YCA sentence; Congress apparently did not consider this specific problem. But Congress did understand that the original treatment imposed by the sentencing judge might fail, and that protective, as well as rehabilitative, purposes might justify a lengthy confinement under § 5010(c). In commenting on that section, the House Report states:"This affords opportunity for the sentencing court to avail itself of the provisions of this bill, and at the same time insure protection of the public if efforts at rehabilitation fail."H.R.Rep. No. 2979, 81st Cong., 2d Sess., 4 (1950). [Footnote 6]The history and structure of the YCA discussed above, supra, at 454 U. S. 206-210, demonstrate Congress' intent that a court -- but not prison officials -- may require a youth offender to serve the remainder of a YCA sentence as an adult after the offender has received a consecutive adult term. First, the YCA prescribes certain basic elements of treatment, segregation from adults and individualized rehabilitative programs, as part of a YCA sentence. Second, sponsors of the Act repeatedly stated that its purpose was to prevent youths from becoming recidivists, and to insulate them from the insidious influence of more experienced adult criminals. Housing incorrigible youths with youths who show promise of rehabilitation would not serve this purpose. Third, the Page 454 U. S. 215 decision whether to employ the unique treatment methods of the YCA is exclusively committed to the discretion of the sentencing judge, rather than to prison officials. If segregation of a particular class of youths from adults would be futile, that is a decision to be made by a court, not by prison authorities.Finally, in light of the above, we do not believe that, when Congress withdrew from prison officials some of their traditional authority to adjust the conditions of confinement over time, Congress intended that no one exercise that authority. The result would be an inflexible rule requiring, in many cases, the continuation of futile YCA treatment. The only reasonable conclusion is that Congress reposed that authority in the court, the institution that the YCA explicitly invests with the discretion to make the original decision about basic treatment conditions.We find further support for this conclusion from the fact that, in several circumstances, the YCA permits a youth offender initially sentenced under the YCA to be treated as an adult for what would otherwise be the remainder of the YCA sentence. [Footnote 7] For example, the statute permits a court to sentence a defendant to an adult term if he commits an adult offense after receiving a suspended sentence and probation under § 5010(a). [Footnote 8] If respondent had been sentenced initially Page 454 U. S. 216 to probation under § 5010(a) and had been subsequently convicted of criminal assault, the court could have imposed an adult sentence for the original crime, for the assault, or for both, to begin immediately. In fact, respondent committed his second crime while incarcerated. It hardly seems logical to prohibit an immediate modification of respondent's treatment conditions simply because he originally received the harsher sentence of YCA incarceration.Moreover, respondent concedes that the statute permits a judge to impose a concurrent adult sentence on an offender who is serving a YCA term. [Footnote 9] Such an adult sentence would Page 454 U. S. 217 commence at the time that it was imposed, and would modify the YCA treatment that the offender would otherwise receive for the remainder of his term. Finally, every offender sentenced under the YCA must be released conditionally two years prior to the termination of his sentence. 18 U.S.C. § 5017. However, if the offender violates the terms of this conditional release by committing a crime, the conditional release may be revoked and an adult sentence may immediately be imposed, notwithstanding the fact that the youth sentence has not yet expired. Respondent concedes as much, since he does not challenge the commencement of his adult term in January, 1982, even though two years of his youth sentence will still remain.We therefore conclude that a judge who sentences a youth offender to a consecutive adult term may require that the offender also serve the remainder of his youth sentence as an adult. Only this interpretation can give meaning to both the language and the underlying purposes of the YCA."[W]e cannot, in the absence of an unmistakable directive, construe the Act in a manner which runs counter to the broad goals which Congress intended it to effectuate."FTC v. Fred Meyer, Inc., 390 U. S. 341, 390 U. S. 349 (1968). Accordingly, we hold that a judge may modify the essential terms of treatment of a continuing YCA sentence if he finds that such treatment would not benefit the offender further. [Footnote 10] Page 454 U. S. 218VThe standards that a district judge should apply in determining whether an offender will obtain any further benefit from YCA treatment are no different from the standards applied in imposing a sentence originally. Of course, the judge should consider the fact that the offender has been convicted of another crime. In light of all relevant factors, the court can exercise its sound discretion in determining whether the offender should receive youth or adult treatment for the remainder Page 454 U. S. 219 of his term. The court need not adopt a rigid rule of the type urged by petitioner. Rather, it should make a judgment informed by both the rehabilitative purposes of the YCA and the realistic circumstances of the offender.Applying these principles to the facts before us, we conclude that the second sentencing judge made a sufficient finding that respondent would not benefit from YCA treatment during the remainder of his youth term. [Footnote 11] The judge found that respondent would not benefit "further" under the YCA, and he declined to impose a youth sentence under that Act, imposing instead a consecutive adult sentence. [Footnote 12] In the future, we expect that judges will eliminate interpretive difficulties by making an explicit "no benefit" finding with respect to the remainder of the YCA sentence. [Footnote 13] Page 454 U. S. 220In conclusion, we are convinced that Congress did not intend that a person who commits serious crimes while serving a YCA sentence should automatically receive treatment that has proved futile. On the other hand, Congress carefully designed this statute to require a sentencing judge, rather than the Bureau of Prisons, to evaluate whether the basic elements of treatment -- segregation from adults and individualized programs -- are appropriate and consistent with YCA policies over time. Our interpretation comports with the overriding legislative purpose that "once a person [is] committed for treatment under the Act, the execution of sentence [is] to fit the person, not the crime." Dorszynski, 418 U.S. at 418 U. S. 434. [Footnote 14] Page 454 U. S. 221We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtRalston v. Robinson, 454 U.S. 201 (1981)Ralston v. RobinsonNo. 80 2049Argued October 5, 1981Decided December 2, 1981454 U.S. 201SyllabusRespondent, when 17 years old, pleaded guilty to second-degree murder and was sentenced to 10 years' imprisonment under the Federal Youth Corrections Act (YCA), 18 U.S.C. § 5010(c). Subsequently, while incarcerated, he was found guilty of assaulting a federal officer, and the District Court imposed an adult sentence to be served consecutively to the YCA sentence, finding that respondent would not benefit from any further treatment under the YCA. Later, while still incarcerated, respondent pleaded guilty to another charge of assaulting a federal officer, and the District Court sentenced him to a further adult sentence to be served consecutively to the sentence he was then serving. The Bureau of Prisons then classified respondent as an adult offender, and accordingly, since that time, he has not been segregated from adult prisoners and has not been offered the YCA rehabilitative treatment that the initial trial court recommended. After exhausting his administrative remedies, respondent filed a petition for habeas corpus. The District Court granted the writ, and the Court of Appeals affirmed, holding that the YCA forbids the reevaluation of a YCA sentence by a second judge, even if the second judge makes a finding that further YCA treatment would not benefit the offender.Held: The YCA does not require YCA treatment for the remainder of a youth sentence where the judge imposing the subsequent adult sentence determines, as here, that such treatment will not benefit the offender further. Pp. 454 U. S. 206-220.(a) The YCA strongly endorses a judge's discretionary power to choose among available sentencing options, and prescribes certain basic conditions of treatment for YCA offenders. By determining that the youth offender should be sentenced under the YCA, the trial court, in effect, decides that the Bureau of Prisons must comply with both the segregation and treatment requirements of the statute. Correctional authorities may not exercise any of the sentencing powers established in the YCA. Pp. 454 U. S. 206-210.(b) The language of § 6010(c) authorizing a court to "sentence the youth offender to the custody of the Attorney General for treatment and supervision" pursuant to the YCA, and of § 6011 providing that "[c]ommitted Page 454 U. S. 202 youth offenders . . . shall undergo treatment in institutions . . . that will provide the essential varieties of treatment," and that "such youth offenders shall be segregated from other offenders," does not prohibit any modification of the basic terms of a YCA sentence before its expiration. That is, such language does not require the judge to make an irrevocable determination of segregation or treatment needs, nor preclude a subsequent judge from redetermining those needs in light of intervening events. Pp. 454 U. S. 210-211.(c) On the other hand, the YCA does not give the Bureau of Prisons independent authority to deny a youth offender the treatment and segregation from adults that a sentencing court mandates. Pp. 454 U. S. 211-213.(d) The purposes of the YCA, as revealed in its structure and legislative history, compel the conclusion that a court faced with a choice of sentences for a youth offender still serving a YCA term is not deprived of the option of finding no further benefit in YCA treatment for the remainder of the term. Such history and structure also demonstrate Congress' intent that a court -- but not prison officials -- may require a youth offender to serve the remainder of a YCA sentence as an adult after the offender has received a consecutive adult term. When Congress withdrew from prison officials some of their traditional authority to adjust conditions of confinement, it could not have intended that no one exercise that authority, the only reasonable conclusion being that Congress reposed that authority in the court. Pp. 454 U. S. 213-217.(e) The standards that a district judge should apply in determining whether an offender will obtain any further benefit from YCA treatment are no different from the standards applied in imposing the sentence originally. In light of all relevant factors, the judge can exercise his sound discretion in determining whether the offender should receive youth or adult treatment for the remainder of his term, and should make a judgment informed by both the YCA's rehabilitative purposes and the offender's realistic circumstances. Here, the second sentencing judge made a sufficient finding that respondent would not benefit from YCA treatment during the remainder of his youth term. Pp. 454 U. S. 218-219.642 F.2d 1077, reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 454 U. S. 221. STEVENS, J., filed a dissenting opinion, in which BRENNAN and O'CONNOR, JJ., joined, post, p. 454 U. S. 223. Page 454 U. S. 203

1963_292

MR. JUSTICE STEWART delivered the opinion of the Court.The question presented in this case is whether a common carrier which has exercised reasonable care and has complied with the instructions of the shipper, is nonetheless liable to the shipper for spoilage in transit of an interstate shipment of perishable commodities when the carrier fails to prove that the cause of the spoilage was the natural tendency of the commodities to deteriorate. The petitioner is a common carrier, and the respondent is a fruit shipper. The respondent sued the petitioner in a Texas court to recover for damage to a carload of honeydew melons shipped from Rio Grande City, Texas, to Chicago, Illinois. [Footnote 1]In accordance with Texas practice, special issues were submitted to the jury at the close of the evidence. The jury affirmatively found that the melons were in good condition at the time they were turned over to the carrier in Rio Grande City, but that they arrived in damaged condition at their destination in Chicago. The jury also affirmatively found that the petitioner and its connecting Page 377 U. S. 136 carriers performed all required transportation services without negligence. The jury were instructed that "inherent vice" means "any existing defects, diseases, decay or the inherent nature of the commodity which will cause it to deteriorate with a lapse of time." They answered "No" to a special issue asking whether they found from a preponderance of the evidence that the condition of the melons on arrival in Chicago was due solely to an inherent vice, as so defined, "at the time the melons were received by the carrier at Rio Grande City, Texas, for transportation." [Footnote 2]On the basis of these special findings, the trial judge entered judgment for damages against the carrier. The judgment was affirmed by the Texas Court of Civil Appeals, 360 S.W.2d 839, and by the Texas Supreme Court, upon the ground that, as a matter of federal law,"the carrier may not exonerate itself by showing that all transportation services were performed without negligence, but must go further and establish that the loss or damage was caused by one of the four excepted perils recognized at common law."368 S.W.2d 99, 100. The court concluded, in view of the jury's findings, that, although"[a] common carrier is not responsible for spoilage or decay which is shown to be due entirely to the inherent nature of the goods, . . . petitioner has not established that the Page 377 U. S. 137 damage in this case was caused solely by natural deterioration."Id., 368 S.W.2d at 103. We granted certiorari, 375 U.S. 811, because of a conflict with an almost contemporaneous decision of the United States Court of Appeals for the Ninth Circuit holding that,"in the case of perishable goods, the burden upon the carrier is not to prove that the damage resulted from the inherent vice of the goods, but to prove its own compliance with the rules of the tariff and the shipper's instructions. [Footnote 3]"For the reasons which follow, we affirm the judgment before us.The parties agree that the liability of a carrier for damage to an interstate shipment is a matter of federal law controlled by federal statutes and decisions. The Carmack Amendment of 1906, [Footnote 4] § 20(11) of the Interstate Commerce Act, makes carriers liable "for the full actual loss, damage, or injury . . . caused by" them to property they transport and declares unlawful and void any contract, regulation, tariff, or other attempted means of limiting this liability. [Footnote 5] It is settled that this statute has two undisputed effects crucial to the issue in this case: first, the statute codifies the common law rule that a carrier, though not an absolute insurer, is liable for damage to goods transported by it unless it can show that the damage was caused by"(a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods."Bills of Lading, 52 I.C.C. 671, 679; Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U. S. 416, 270 U. S. 421-423; Adams Express Co. v. Croninger, 226 U. S. 491, 226 U. S. 509; Hall & Long v. Railroad Companies, 13 Wall. 367, 80 U. S. 372. Page 377 U. S. 138 Second, the statute declares unlawful and void any "rule, regulation, or other limitation of any character whatsoever" purporting to limit this liability. [Footnote 6] See Cincinnati N.O. & Texas Pac. R. Co. v. Rankin, 241 U. S. 319, 241 U. S. 326; Boston & M. R. Co. v. Piper, 246 U. S. 439, 246 U. S. 445. Accordingly, under federal law, in an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon, the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability. Galveston, H. & S.A. R. Co. v. Wallace, 223 U. S. 481, 223 U. S. 492; Chicago & E.I. R. Co. v. Collins Co., 249 U. S. 186, 249 U. S. 191; Chesapeake & O. R. Co. v. A. F. Thompson Mfg. Co., 270 U. S. 416, 270 U. S. 420-423; Thompson v. James G. McCarrick Co., 205 F.2d 897, 900.The disposition of this case in the Texas courts was in accordance with these established principles. It is apparent that the jury were unable to determine the cause of the damage to the melons."[T]he decay of a perishable cargo is not a cause; it is an effect. It may be the result of a number of causes, for some of which, such as the inherent defects of the cargo . . . the carrier is not liable. [Footnote 7]"But the jury refused to find that the carrier Page 377 U. S. 139 had borne its burden of establishing that the damaged condition of the melons was due solely to "inherent vice," as defined in the instruction of the trial judge -- including "the inherent nature of the commodity which will cause it to deteriorate with a lapse of time." The petitioner does not challenge the accuracy of the trial judge's instruction or the jury's finding. [Footnote 8] Its position is simply that, if goods are perishable, and the nature of the damage is spoilage, and the jury affirmatively find that the carrier was free from negligence and performed the transportation services as required by the shipper, then the law presumes that the cause of the spoilage was the natural tendency of perishables to deteriorate, even though the damage might, in fact, have resulted from other causes, such as the acts of third parties, [Footnote 9] for which no exception from carrier liability is provided. Consequently, it is argued, the question of "inherent vice" should not have been submitted to the jury, since the carrier in such a case does not bear the affirmative burden of establishing that the damage was caused by the inherent vice exception of the common law.The petitioner appears to recognize that, except in the case of loss arising from injury to livestock in transit -- a well established exception to the general common law rule based on the peculiar propensity of animals to injure Page 377 U. S. 140 themselves and each other [Footnote 10] -- no distinction was made in the earlier federal cases between perishables and nonperishables. It is said, however, that the"large scale development, in relatively recent years, of long distance transportation of fresh fruit and vegetables in interstate commerce has led to the evolution"of a new federal rule governing the carrier's liability for spoilage and decay of perishables, similar to the "livestock rule," which absolves the carrier from liability upon proof that the carrier has exercised reasonable care and has complied with the shipper's instructions. [Footnote 11]We are aware of no such new rule of federal law. As recently as 1956, in Secretary of Agriculture v. United States, 350 U. S. 162, this Court gave no intimation that the general rule placing on the carrier the affirmative burden of bringing the cause of the damage within one of the specified exceptions no longer applied to cases involving perishable commodities. [Footnote 12]Nor do Rules 130 and 135 of the Perishable Protective Tariff, relied upon by petitioner, reflect any such change in the federal law when read in the light of the history underlying their adoption in 1920 by the Interstate Commerce Commission. Rule 130, declaring that a carrier does not "undertake to overcome the inherent tendency Page 377 U. S. 141 of perishable goods to deteriorate or decay," [Footnote 13] merely restates the common law rule that a carrier shall not be held liable in the absence of negligence for damage resulting solely from an inherent vice or defect in the goods. And Rule 135, declaring that the carrier shall not be"liable for any loss or damage that may occur because of the acts of the shipper or because the directions of the shipper were incomplete, inadequate or ill-conceived, [Footnote 14]"merely reiterates the common law and bill of lading rule that the carrier shall not be liable, in the absence of negligence, for the "act or default of the shipper or owner." Neither of these rules refers to the presumptions or burdens of proof imposed by the common law, and it is clear that it was not the intention of the Commission, in approving these rules, to modify or reduce the common law liability of a carrier. Indeed, the Commission stated, at the time these rules were adopted in 1920, that"such Page 377 U. S. 142 declarations can have no controlling effect, for the carrier's liability for loss or damage is determined by the law. Nothing can be added to or subtracted from the law by limitations or definitions stated in tariffs. . . . There is the constant risk, therefore, if such declarations are included, of misstating the law and misleading the parties to no good purpose."Perishable Freight Investigation, 56 I.C.C. 449, 482. Although the Commission concluded for this reason that this type of rule was generally objectionable, id. at 483, it recognized the desirability of giving "some warning to shippers" that a carrier was not liable for the inherent tendency of perishable goods to deteriorate or decay, or for the shipper's failure to give proper transportation instructions. Ibid. The rules themselves reflect nothing more than this objective. [Footnote 15] Page 377 U. S. 143That this was the limited purpose of Rules 130 and 135 is confirmed by the Commission's action in rejecting an additional proposal made by the carriers at the time these Rules were approved in 1920. The carriers sought to include a provision to be known as Item 20(d), reading:"Nothing in this tariff shall be construed as relieving carriers from such liability as may rest upon them for loss or damage when same is the result of carriers' negligence."See 56 I.C.C. at 481. The Commission emphatically rejected the provision on the express ground that"a carrier may be liable under the common law for loss or damage which is not the result of its negligence, and this item implies that there may be something in the tariff which seeks to limit such liability."Id. at 483. (Emphasis supplied.)Finally, all else failing, it is argued that, as a matter of public policy, the burden ought not to be placed upon the carrier to explain the cause of spoilage, because, where perishables are involved, the shipper is peculiarly knowledgeable about the commodity's condition at and prior to the time of shipment, and is therefore in the best position to explain the cause of the damage. Since this argument amounts to a suggestion that we now carve out an exception to an unquestioned rule of long standing upon which both shippers and carriers rely, and which is reflected in the freight rates set by the carrier, the petitioner must sustain a heavy burden of persuasion. The general rule of carrier liability is based upon the sound premise that the carrier has peculiarly within its knowledge"[a]ll the facts and circumstances upon which [it] may rely to relieve [it] of [its] duty. . . . In consequence, the law Page 377 U. S. 144 casts upon [it] the burden of the loss which [it] cannot explain or, explaining, bring within the exceptional case in which [it] is relieved from liability."Schnell v. The Vallescura, 293 U. S. 296, 293 U. S. 304. We are not persuaded that the carrier lacks adequate means to inform itself of the condition of goods at the time it receives them from the shipper, and it cannot be doubted that, while the carrier has possession, it is the only one in a position to acquire the knowledge of what actually damaged a shipment entrusted to its care.Affirmed

U.S. Supreme CourtMissouri Pacific R. Co. v. Elmore & Stahl, 377 U.S. 134 (1964)Missouri Pacific R. Co. v. Elmore & StahlNo. 292Argued March 3, 1964Decided May 4, 1964377 U.S. 134SyllabusSeeking recovery for damage to an interstate shipment of melons, respondent shipper brought this action in a state court against the carrier. The jury made special findings that the melons were in good condition when turned over to the carrier, but in damaged condition when they reached their destination, and that the carrier performed all transportation services without negligence. But the jury refused to find that the carrier had sustained the burden of proving that the damage was due solely to the "inherent vice" of the melons. On these findings, the trial court awarded damages to respondent. The state Supreme Court affirmed on the ground that, under federal law, a carrier is not relieved of liability by showing that transportation services were not negligently performed, but must also establish that damage was caused by one of the excepted common law perils, here the natural deterioration of the melons.Held: Under § 20 (11) of the Interstate Commerce Act, which codifies the common law rule that a carrier, while not an absolute insurer, is liable for damages unless caused by an act of God, a public enemy, the shipper, public authority, or the inherent vice or nature of the goods, the shipper makes out a prima facie case when he shows delivery in good condition, arrival damaged, and the quantum of damages. The carrier then has the burden of proving lack of negligence, and that damage was due to one of the exceptions relieving it of liability.(a) The rule of liability is the same for nonperishable and perishable commodities (other than livestock). Pp. 377 U. S. 139-140.(b) Rules 130 and 135 of the Perishable Protective Tariff merely restate the common law rules of liability. Pp. 377 U. S. 140-143.(c) The rule of liability of the carrier is based upon its knowledge concerning the condition of the shipment while in its possession. Pp. 377 U. S. 143-144.368 S.W.2d 99 affirmed. Page 377 U. S. 135

1983_83-458

JUSTICE O'CONNOR delivered the opinion of the Court.This case presents the question whether ultimate consumers of dairy products may obtain judicial review of milk market orders issued by the Secretary of Agriculture (Secretary) under the authority of the Agricultural Marketing Agreement Act of 1937 (Act), ch. 296, 50 Stat. 246, as amended, 7 U.S.C. § 601 et seq. We conclude that consumers may not obtain judicial review of such orders.IAIn the early 1900's, dairy farmers engaged in intense competition in the production of fluid milk products. See Zuber v. Allen, 396 U. S. 168, 396 U. S. 172-176 (1969). To bring this destabilizing competition under control, the 1937 Act authorizes the Secretary to issue milk market orders setting the minimum prices that handlers (those who process dairy products) Page 467 U. S. 342 must pay to producers (dairy farmers) for their milk products. 7 U.S.C. § 608c. The "essential purpose [of this milk market order scheme is] to raise producer prices," S.Rep. No. 1011, 74th Cong., 1st Sess., 3 (1935), and thereby to ensure that the benefits and burdens of the milk market are fairly and proportionately shared by all dairy farmers. See Nebba v. New York, 291 U. S. 502, 291 U. S. 517-518 (1934).Under the scheme established by Congress, the Secretary must conduct an appropriate rulemaking proceeding before issuing a milk market order. The public must be notified of these proceedings and provided an opportunity for public hearing and comment. See 7 U.S.C. § 608c(3). An order may be issued only if the evidence adduced at the hearing shows "that [it] will tend to effectuate the declared policy of this chapter with respect to such commodity." 7 U.S.C. § 608c(4). Moreover, before any market order may become effective, it must be approved by the handlers of at least 50% of the volume of milk covered by the proposed order and at least two-thirds of the affected dairy producers in the region. 7 U.S.C. §§ 608c(8), 608c(5)(B)(i). If the handlers withhold their consent, the Secretary may nevertheless impose the order. But the Secretary's power to do so is conditioned upon at least two-thirds of the producers consenting to its promulgation and upon his making an administrative determination that the order is "the only practical means of advancing the interests of the producers." 7 U.S.C. § 608c(9)(B).The Secretary currently has some 45 milk market orders in effect. See 7 CFR pts. 1001-1139 (1984). Each order covers a different region of the country, and collectively they cover most, though not all, of the United States. The orders divide dairy products into separately priced classes based on the uses to which raw milk is put. See 44 Fed.Reg. 65990 (1979). Raw milk that is processed and bottled for fluid consumption is termed "Class I" milk. Raw milk that is used to Page 467 U. S. 343 produce milk products such as butter, cheese, or dry milk powder is termed "Class II" milk. [Footnote 1]For a variety of economic reasons, fluid milk products would command a higher price than surplus milk products in a perfectly functioning market. Accordingly, the Secretary's milk market orders require handlers to pay a higher order price for Class I products than for Class II products. To discourage destabilizing competition among producers for the more desirable fluid milk sales, the orders also require handlers to submit their payments for either class of milk to a regional pool. Administrators of these regional pools are then charged with distributing to dairy farmers a weighted average price for each milk product they have produced, irrespective of its use. See 7 U.S.C. § 608c(5)(B)(ii).In particular, the Secretary has regulated the price of "reconstituted milk" -- that is, milk manufactured by mixing milk powder with water -- since 1964. See 29 Fed.Reg. 9002, 9010 (1964); see also 34 Fed.Reg. 16548, 16551 (1969). The Secretary's orders assume that handlers will use reconstituted milk to manufacture surplus milk products. Handlers are therefore required to pay only the lower Class II minimum price. See 44 Fed.Reg. 65989, 65990 (1979). However, handlers are required to make a "compensatory payment" on any portion of the reconstituted milk that their records show has not been used to manufacture surplus milk products. 7 CFR §§ 1012.44(a)(5)(i), 1012.60(e) (1984). The compensatory payment is equal to the difference between the Class I and Class II milk product prices. Handlers make these payments to the regional pool, from which moneys are then distributed to producers of fresh fluid milk in the region where the reconstituted milk was manufactured and sold. § 1012.71(a)(1). Page 467 U. S. 344BIn December, 1980, respondents brought suit in District Court, contending that the compensatory payment requirement makes reconstituted milk uneconomical for handlers to process. [Footnote 2] Respondents, as plaintiffs in the District Court, included three individual consumers of fluid dairy products, a handler regulated by the market orders, and a nonprofit organization. The District Court concluded that the consumers and the nonprofit organization did not have standing to challenge the market orders. In addition, it found that Congress had intended by the Act to preclude such persons from obtaining judicial review. The District Court dismissed the milk handler's complaint because he had failed to exhaust his administrative remedies.The Court of Appeals affirmed in part and reversed in part, and remanded the case for a decision on the merits. 225 U.S.App.D.C. 387, 698 F.2d 1239 (1983). The Court of Appeals agreed that the milk handler and the nonprofit organization had been properly dismissed by the District Court. But the court concluded that the individual consumers had standing: they had suffered an injury-in-fact, Page 467 U. S. 345 their injuries were redressable, and they were within the zone of interests arguably protected by the Act. The Court also concluded that the statutory structure and purposes of the Act did not reveal"the type of clear and convincing evidence of congressional intent needed to overcome the presumption in favor of judicial review."Id. at 400, and n. 75, 698 F.2d at 1252, and n. 75. The Court of Appeals expressly refused to follow the decision of the Ninth Circuit in Rasmussen v. Hardin, 461 F.2d 595, cert. denied sub nom. Rasmussen v. Butz, 409 U.S. 933 (1972), which had held consumers precluded by statute from seeking judicial review.We granted certiorari to resolve the conflict in the Circuits. 464 U.S. 991 (1983). We now reverse the judgment of the Court of Appeals in this case.IIRespondents filed this suit under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. The APA confers a general cause of action upon persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute," 5 U.S.C. § 702, but withdraws that cause of action to the extent the relevant statute "preclude[s] judicial review," 5 U.S.C. § 701(a)(1). Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved. See Southern R. Co. v. Seaboard Allied Mining Corp., 442 U. S. 444, 442 U. S. 454-463 (1979); Morris v. Gressette, 432 U. S. 491, 432 U. S. 499-507 (1977); see generally Note, Statutory Preclusion of Judicial Review Under the Administrative Procedure Act, 1976 Duke L.J. 431, 442-449. Therefore, we must examine this statutory scheme"to determine whether Congress precluded all judicial review, and, if not, whether Congress nevertheless foreclosed review to the class to which the [respondents] Page 467 U. S. 346 belon[g]."Barlow v. Collins, 397 U. S. 159, 397 U. S. 173 (1970) (opinion of BRENNAN, J.,); see also Data Processing Service v. Camp, 397 U. S. 150, 397 U. S. 156 (1970).It is clear that Congress did not intend to strip the judiciary of all authority to review the Secretary's milk market orders. The Act's predecessor, the Agricultural Adjustment Act of 1933, 48 Stat. 31, contained no provision relating to administrative or judicial review. In 1935, however, Congress added a mechanism by which dairy handlers could obtain review of the Secretary's market orders. 49 Stat. 760. That mechanism was retained in the 1937 legislation, and remains in the Act as § 608c(15) today. Section 608c(15) requires handlers first to exhaust the administrative remedies made available by the Secretary. 7 U.S.C. § 608c(15)(A); see 7 CFR §§ 900.50-900.71 (1984). After these formal administrative remedies have been exhausted, handlers may obtain judicial review of the Secretary's ruling in the federal district court in any district "in which [they are] inhabitant[s], or ha[ve their] principal place[s] of business." 7 U.S.C. § 608c(15)(B). These provisions for handler-initiated review make evident Congress' desire that some persons be able to obtain judicial review of the Secretary's market orders.The remainder of the statutory scheme, however, makes equally clear Congress' intention to limit the classes entitled to participate in the development of market orders. The Act contemplates a cooperative venture among the Secretary, handlers, and producers the principal purposes of which are to raise the price of agricultural products and to establish an orderly system for marketing them. Handlers and producers -- but not consumers -- are entitled to participate in the adoption and retention of market orders. 7 U.S.C. §§ 608c(8), (9), (16)(B). The Act provides for agreements among the Secretary, producers, and handlers, 7 U.S.C. § 608(2), for hearings among them, §§ 608(5), 608c(3), and for votes by producers and handlers, §§ 608c(8)(A), (9)(B), (12), Page 467 U. S. 347 608c(19). Nowhere in the Act, however, is there an express provision for participation by consumers in any proceeding. In a complex scheme of this type, the omission of such a provision is sufficient reason to believe that Congress intended to foreclose consumer participation in the regulatory process. See Switchmen v. National Mediation Board, 320 U. S. 297 305-306 (1943); cf. United States v. Erika, Inc., 456 U. S. 201, 456 U. S. 208 (1982).To be sure, the general purpose sections of the Act allude to general consumer interests. See 7 U.S.C. §§ 602(2), (4). But the preclusion issue does not only turn on whether the interests of a particular class like consumers are implicated. Rather, the preclusion issue turns ultimately on whether Congress intended for that class to be relied upon to challenge agency disregard of the law. See Barlow v. Collins, supra, at 397 U. S. 167. The structure of this Act indicates that Congress intended only producers and handlers, and not consumers, to ensure that the statutory objectives would be realized.Respondents would have us believe that, while Congress unequivocally directed handlers first to complain to the Secretary that the prices set by milk market orders are too high, it was nevertheless the legislative judgment that the same challenge, if advanced by consumers, does not require initial administrative scrutiny. There is no basis for attributing to Congress the intent to draw such a distinction. The regulation of agricultural products is a complex, technical undertaking. Congress channeled disputes concerning marketing orders to the Secretary in the first instance, because it believed that only he has the expertise necessary to illuminate and resolve questions about them. Had Congress intended to allow consumers to attack provisions of marketing orders, it surely would have required them to pursue the administrative remedies provided in § 608c(15)(A) as well. The restriction of the administrative remedy to handlers strongly suggests that Congress intended a similar restriction of judicial review of market orders. Page 467 U. S. 348Allowing consumers to sue the Secretary would severely disrupt this complex and delicate administrative scheme. It would provide handlers with a convenient device for evading the statutory requirement that they first exhaust their administrative remedies. A handler may also be a consumer and, as such, could sue in that capacity. Alternatively, a handler would need only to find a consumer who is willing to join in or initiate an action in the district court. The consumer or consumer-handler could then raise precisely the same exceptions that the handler must raise administratively. Consumers or consumer-handlers could seek injunctions against the operation of market orders that "impede, hinder, or delay" enforcement actions, even though such injunctions are expressly prohibited in proceedings properly instituted under 7 U.S.C. § 608c(15). Suits of this type would effectively nullify Congress' intent to establish an"equitable and expeditious procedure for testing the validity of orders, without hampering the Government's power to enforce compliance with their terms."S.Rep. No. 1011, 74th Cong., 1st Sess., 14 (1935); see also United States v. Ruzicka, 329 U. S. 287, 329 U. S. 293-294, and n. 3 (1946). For these reasons, we think it clear that Congress intended that judicial review of market orders issued under the Act ordinarily be confined to suits brought by handlers in accordance with 7 U.S.C. § 608c(15).IIIThe Court of Appeals viewed the preclusion issue from a somewhat different perspective. First, it recited the presumption in favor of judicial review of administrative action that this Court usually employs. It then noted that the Act has been interpreted to authorize producer challenges to the administration of market order settlement funds, see Stark v. Wickard, 321 U. S. 288 (1944), and that no legislative history or statutory language directly and specifically supported the preclusion of consumer suits. In these circumstances, the Court of Appeals reasoned that the Act could not fairly be Page 467 U. S. 349 interpreted to overcome the presumption favoring judicial review and to leave consumers without a judicial remedy. See 225 U.S.App.D.C. at 400, and n. 75, 698 F.2d at 1252, and n. 75. We disagree with the Court of Appeals' analysis.The presumption favoring judicial review of administrative action is just that -- a presumption. This presumption, like all presumptions used in interpreting statutes, may be overcome by specific language or specific legislative history that is a reliable indicator of congressional intent. See, e.g., Southern R. Co. v. Seaboard Allied Milling Corp., 442 U.S. at 442 U. S. 454-463; Schilling v. Rogers, 363 U. S. 666, 363 U. S. 670-677 (1960). The congressional intent necessary to overcome the presumption may also be inferred from contemporaneous judicial construction barring review and the congressional acquiescence in it, see, e.g., Ludecke v. Watkins, 335 U. S. 160 (1948), or from the collective import of legislative and judicial history behind a particular statute, see, e.g., Heikkila v. Barber, 345 U. S. 229 (1953). More important for purposes of this case, the presumption favoring judicial review of administrative action may be overcome by inferences of intent drawn from the statutory scheme as a whole. See, e.g., Morris v. Gressette, 432 U. S. 491 (1977); Switchmen v. National Mediation Board, 320 U. S. 297 (1943). In particular, at least when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded. See Barlow v. Collins, 397 U.S. at 397 U. S. 168, and n. 2, 175, and n. 9 (opinion of BRENNAN, J.); Switchmen v. National Mediation Board, supra, at 320 U. S. 300-301; cf. Associated General Contractors of California, Inc. v. Carpenters, 459 U. S. 519, 459 U. S. 542 (1983).A case that best illustrates the relevance of a statute's structure to the Court's preclusion analysis is Morris v. Gressette, supra. In that case, the Court held that the Attorney General's failure to object to a change in voting Page 467 U. S. 350 procedures was an unreviewable administrative determination under the Voting Rights Act of 1965. Neither the Voting Rights Act nor its legislative history said anything about judicial review. Nevertheless, the Morris Court concluded that the"nature of the [statutory] remedy . . . strongly suggests that Congress did not intend the Attorney General's actions under that provision to be subject to judicial review."Id. at 432 U. S. 501. The Court reasoned that Congress had intended the approval procedure to be expeditious, and that reviewability would unnecessarily extend the period the State must wait for effecting its change. Id. at 432 U. S. 504-505. The Court also found relevant the existence of other remedies to ensure the realization of the Voting Rights Act's objectives. Id. at 432 U. S. 505-507. In these circumstances, even though proof of specific congressional intent was not "clear and convincing" in the traditional evidentiary sense, the Court unremarkably found the intent to preclude judicial review implicit in the statutory scheme.In this case, the Court of Appeals did not take the balanced approach to statutory construction reflected in the Morris opinion. Rather, it recited this Court's oft-quoted statement that"only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review."Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 141 (1967). See also Southern R. Co. v. Seaboard Allied Milling Corp., supra, at 442 U. S. 462; Dunlop v. Bachowski, 421 U. S. 560, 421 U. S. 568 (1975). According to the Court of Appeals, the "clear and convincing evidence" standard required it to find unambiguous proof, in the traditional evidentiary sense, of a congressional intent to preclude judicial review at the consumers' behest. Since direct statutory language or legislative history on this issue could not be found, the Court of Appeals found the presumption favoring judicial review to be controlling.This Court has, however, never applied the "clear and convincing evidence" standard in the strict evidentiary sense the Page 467 U. S. 351 Court of Appeals thought necessary in this case. Rather, the Court has found the standard met, and the presumption favoring judicial review overcome, whenever the congressional intent to preclude judicial review is "fairly discernible in the statutory scheme." Data Processing Service v. Camp, 397 U.S. at 397 U. S. 157. In the context of preclusion analysis, the "clear and convincing evidence" standard is not a rigid evidentiary test, but a useful reminder to courts that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling. That presumption does not control in cases such as this one, however, since the congressional intent to preclude judicial review is "fairly discernible" in the detail of the legislative scheme. Congress simply did not intend for consumers to be relied upon to challenge agency disregard of the law.It is true, as the Court of Appeals also noted, that this Court determined, in Stark v. Wickard, 321 U. S. 288 (1944), that dairy producers could challenge certain administrative actions even though the Act did not expressly provide them a right to judicial review. The producers challenged certain deductions the Secretary had made from the "producer settlement fund" established in connection with the milk market order in effect at the time. "[T]he challenged deduction[s] reduce[d] pro tanto the amount actually received by the producers for their milk." Id. at 321 U. S. 302. These deductions injured what the producers alleged were "definite personal rights" that were "not possessed by the people generally," id. at 321 U. S. 304, 321 U. S. 309, and gave the producers standing to object to the administration of the settlement fund. See id. at 321 U. S. 306. Though the producers' standing could not, by itself, ensure judicial review of the Secretary's action at their behest, see ibid., the statutory scheme as a whole, the Court concluded, implicitly authorized producers' suits concerning settlement fund administration. See id. at 321 U. S. 309-310. "[H]andlers [could not] question the use of the fund, because handlers had Page 467 U. S. 352 no financial interest in the fund or its use." Id. at 321 U. S. 308. Thus, there was "no forum" in which this aspect of the Secretary's actions could or would be challenged. Judicial review of the producers' complaint was therefore necessary to ensure achievement of the Act's most fundamental objectives -- to-wit, the protection of the producers of milk and milk products.By contrast, preclusion of consumer suits will not threaten realization of the fundamental objectives of the statute. Handlers have interests similar to those of consumers. Handlers, like consumers, are interested in obtaining reliable supplies of milk at the cheapest possible prices. See Zuber v. Allen, 396 U.S. at 396 U. S. 190. Handlers can therefore be expected to challenge unlawful agency action, and to ensure that the statute's objectives will not be frustrated. [Footnote 3] Indeed, as noted above, consumer suits might themselves frustrate achievement of the statutory purposes. The Act contemplates a cooperative venture among the Secretary, producers, and handlers; consumer participation is not provided for or desired under the complex scheme enacted by Congress. Consumer suits would undermine the congressional preference for administrative remedies, and provide a mechanism for disrupting administration of the congressional scheme. Thus, preclusion of consumer suits is perfectly consistent with the Court's contrary conclusion concerning producer challenges in Stark v. Wickard and its analogous conclusion concerning voter challenges in Morris v. Gressette.IVThe structure of this Act implies that Congress intended to preclude consumer challenges to the Secretary's market orders. Preclusion of such suits does not pose any threat to Page 467 U. S. 353 realization of the statutory objectives; it means only that those objectives must be realized through the specific remedies provided by Congress and at the behest of the parties directly affected by the statutory scheme. [Footnote 4] Accordingly, the judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtBlock v. Commun. Nutrition Inst., 467 U.S. 340 (1984)Block v. Community Nutrition InstituteNo. 83-458Argued April 24, 1984Decided June 4, 1984467 U.S. 340SyllabusTo bring destabilizing competition among dairy farmers under control, the Agricultural Marketing Agreement Act of 1937 (Act) authorizes the Secretary of Agriculture (Secretary) to issue milk market orders setting the minimum prices that handlers (those who process dairy products) must pay to producers (dairy farmers) for their milk products. Pursuant to this authority, the Secretary issued market orders under which handlers are required to pay for "reconstituted milk" (milk manufactured by mixing milk powder with water) the minimum price for Class II milk (raw milk used to produce such products as dry milk powder), rather than the higher price covering Class I milk (raw milk processed and bottled for fluid consumption). The orders assume that handlers will use the reconstituted milk to manufacture surplus milk products, but for any portion of reconstituted milk not so used, handlers must make a "compensatory payment" equal to the difference between Class I and Class II milk product prices. Respondents -- three individual consumers of fluid dairy products, a handler regulated by the market orders, and a nonprofit organization -- brought suit in Federal District Court, contending that the compensatory payment requirement makes reconstituted milk uneconomical for handlers to process. The District Court held, inter alia, that the consumers had no standing to challenge the orders. The Court of Appeals disagreed, holding that the consumers had suffered injury-in-fact, their injuries were redressable, and they were within the zone of interests protected by the Act, and that the Act's structure and purposes did not reveal the type of "clear and convincing evidence of congressional intent needed to overcome the presumption in favor of judicial review."Held: The individual consumers may not obtain judicial review of the milk market orders in question. Pp. 467 U. S. 345-353.(a) It is clear from the structure of the Act that Congress intended that judicial review of market orders ordinarily be confined to suits by handlers in accordance with the provisions of the Act expressly entitling them to such review in a federal district court after exhausting their administrative remedies. Allowing consumers to sue the Secretary would severely disrupt the Act's complex and delicate administrative scheme. Pp. 467 U. S. 345-348. Page 467 U. S. 341(b) The presumption favoring judicial review of administrative action does not control in cases such as this one, where the congressional intent to preclude consumer suits is "fairly discernible" in the detail of the legislative scheme. The Act contemplates a cooperative venture among the Secretary, producers, and handlers; consumer participation is not provided for or desired under that scheme. Stark v. Wickard, 321 U. S. 288, distinguished. Pp. 467 U. S. 348-352.225 U.S.App.D.C. 387, 698 F.2d 1239, reversed.O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except STEVENS, J., who took no part in the decision of the case.

1973_72-1454

MR. JUSTICE STEWART delivered the opinion of the Court.This case involves the availability of collateral relief from a federal criminal conviction based upon an intervening change in substantive law. While the question presented is a relatively narrow one, it arises as the result of a rather complicated chain of events.IIn February, 1965, the petitioner, Joseph Anthony Davis, was classified I-A by his draft board and ordered to report for a pre-induction physical examination. Davis failed to appear on the appointed date. He later informed his local board that his failure to report was due to illness. Although the board attempted to arrange Page 417 U. S. 335 a second date for the pre-induction physical, its attempts to communicate with the petitioner were frustrated by his failure to keep the board apprised of his correct mailing addresses. As a result, the local board's communications to the petitioner were returned to the board stamped "addressee unknown," and Davis again failed to report for the physical. In December, 1965, the board sent the petitioner a warning that it was considering declaring him a delinquent because of his failure to report for the second pre-induction physical. [Footnote 1] This communication was also returned to the board stamped "addressee unknown."After another unsuccessful attempt to communicate with the petitioner, the local board declared him a delinquent, pursuant to 32 CFR § 1642.4(a) (1967), [Footnote 2] both because of his failure to report for the second preinduction physical and because of his failure to keep the local board informed of his current address. [Footnote 3] At the Page 417 U. S. 336 same time the board mailed the petitioner a delinquency notice. Shortly after the delinquency declaration, the board sent the petitioner an order directing him to report for induction into the Armed Forces. Once again, the order was returned to the board stamped "addressee unknown." Several months later, the board sent the petitioner a second order to report for induction. This time, the order was mailed to a St. Paul, Minnesota, address that Davis had used when requesting a duplicate draft card. Although there was no indication that Davis did not receive the induction order, he once again failed to report as ordered. This second failure to report for induction resulted in the petitioner's prosecution and conviction under 50 U.S.C.App. § 462(a). [Footnote 4]At the time that the local board issued the second induction order, 32 CFR § 1631.7(a) (1967) provided that registrants could be ordered to report for induction only after they"[had] been found acceptable for service in the Armed Forces and . . . the local board [had] mailed [them] a Statement of Acceptability . . . at least 21 days before the date fixed for induction."Since, at the time of his induction order, Davis had not yet appeared for a physical examination to determine his acceptability, quite obviously neither one of these requirements was satisfied. The regulation, however, went on to provide that"a registrant classified in Page 417 U. S. 337 Class I-A or Class I-A-O who is a delinquent may be selected and ordered to report for induction to fill an induction call notwithstanding the fact that he has not been found acceptable for service in the Armed Forces and has not been mailed a Statement of Acceptability. . . ."The only other registrants similarly excepted from these prerequisites were those who had volunteered for induction. In light of this proviso, the local board evidently concluded that the preconditions to induction stated in § 1631.7(a) were inapplicable to the petitioner, whom it had earlier declared to be a delinquent, and that it was thus free to issue an induction order to the petitioner. [Footnote 5]Davis appealed his conviction to the Court of Appeals for the Ninth Circuit. While that appeal was pending, this Court announced its decision in Gutknecht v. United States, 396 U. S. 295 (1970). In Gutknecht, a Selective Service registrant's induction had been accelerated because his local board had declared him a delinquent. [Footnote 6] When he failed to report for induction as ordered, he was prosecuted and convicted under 50 U.S.C.App. § 462. The delinquent registrant's accelerated induction was ordered in accordance with another portion of 32 Page 417 U. S. 338 CFR § 1631.7(a) that, like the provision applicable to Davis, called for exceptional treatment for registrants whom a local board had declared delinquent. Local boards were authorized by 32 CFR § 1642.4 to issue a declaration of delinquency "[w]henever a registrant . . . failed to perform any duty or duties required of him under the selective service law," other than to report as ordered for induction or for civilian work. Both Davis and Gutknecht were declared delinquent on the authority of § 1642.4. [Footnote 7] In Gutknecht, the Court held that the Selective Service regulations that accelerated the induction of delinquent registrants by shifting them to the first priority in the order of call were punitive in nature and, as such, were without legislative sanction. [Footnote 8] Accordingly, the Court concluded that the registrant could not be prosecuted for failure to comply with an induction order issued pursuant to these regulations.After Gutknecht, the Court of Appeals remanded the petitioner's case to the District Court "without limitation of scope, but especially for consideration . . . in the light of the intervening decision of Gutknecht v. United States." 432 F.2d 1009, 1010 (1970). On remand, Page 417 U. S. 339 the District Court, after conducting a hearing, concluded that the petitioner's induction had not been accelerated because of his delinquency status and that Gutknecht therefore did not affect his conviction. [Footnote 9] On appeal, the Court of Appeals affirmed. 4 47 F.2d 1376.While Davis' subsequent petition for certiorari was pending in this Court, the Court of Appeals for the Ninth Circuit decided United States v. Fox, 454 F.2d 593. The circumstances leading to Fox's induction order were virtually identical to those in the petitioner's case. Like Davis,"Fox was declared delinquent by his Selective Service Board . . . for his failure to appear for preinduction physical examinations as ordered. . . ."Ibid. Prior to receiving his induction order,"Fox . . . was never found to be 'acceptable for service.' and he was [not] mailed a Statement of Acceptability . . . at least 21 days before his induction date. . . .""[T]hus, the only authority the Local Board had for its order to Fox to report for induction was the provision of § 1631.7(b) [Footnote 10] for delinquents to be called without a previous finding of acceptability or the mailing of a Statement of Acceptability 21 days before induction."Id. at 595. Page 417 U. S. 340 This was the same regulation on which the board's induction order to Davis had been predicated.At Fox's post-Gutknecht trial for failure to report for induction, "the government offered evidence . . . to show that Fox's induction order was not accelerated by the declaration of delinquency." "The trial judge found no acceleration, and convicted." Id. at 593-594. The Court of Appeals reversed Fox's conviction on the authority of Gutknecht. The court held that"Fox's induction was accelerated by the declaration of delinquency as a matter of law [because] [w]ithout the declaration, the Board could not have ordered him to report for induction."Id. at 594. Thus, the court concluded "that the [induction] order . . . was illegal and created no duty on Fox's part to report for induction." Id. at 595.In opposing Davis' petition for certiorari, the Solicitor General conceded that "the holdings in Fox and in [Davis] are inconsistent," but nevertheless urged the Court to deny certiorari in that "the conflict is an intra-circuit one . . . [to] be resolved by the Ninth Circuit itself. . . ." Supplemental Memorandum for the United States in Opposition 2 (No. 71-661, O.T. 1971). We denied Davis' petition for certiorari. 405 U.S. 933.After an unsuccessful attempt to secure a rehearing in the Court of Appeals, Davis was remitted to federal custody to commence serving his three-year sentence. He then instituted the present collateral proceeding under 28 U.S.C. § 2255, which permits"[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . [to] move the court which imposed the sentence to vacate, set aside or correct the sentence."In his § 2255 motion, Page 417 U. S. 341 Davis asserted that the Court of Appeals for the Ninth Circuit had in the Fox case effected a change in the law of that Circuit after the affirmance of his conviction, and that its holding in Fox required his conviction to be set aside. The District Court summarily denied the petitioner's motion. [Footnote 11] On appeal, the Court of Appeals affirmed without considering the merits of the petitioner's claim on the ground that "[t]he decision on the direct appeal is the law of the case," and that, therefore, any "new law, or change in law" resulting from its decision in United States v. Fox would "not [be] applied in this circuit under circumstances such as here presented." 472 F.2d 596. Because the case presents a seemingly important question concerning the extent to which relief under 28 U.S.C. § 2255 is available by reason of an intervening change in law, we granted certiorari. 414 U.S. 999.IIThe sole issue before the Court in the present posture of this case is the propriety of the Court of Appeals' judgment that a change in the law of that Circuit after the petitioner's conviction may not be successfully asserted by him in a § 2255 proceeding. [Footnote 12] Thus, our inquiry is confined to the availability of a § 2255 proceeding for Page 417 U. S. 342 the resolution of Davis' claim to relief from his conviction. Because the petitioner had unsuccessfully litigated the Gutknecht issue on direct review, the Court of Appeals held that its earlier affirmance was "the law of the case" and precluded the petitioner from asserting on collateral attack his claim that its Fox decision had subsequently changed the law of the Ninth Circuit on that issue. In this Court, the Solicitor General's brief concedes that the opinion of the Court of Appeals in this regard "is not consonant with this Court's holding in Sanders v. United States, 373 U. S. 1." [Footnote 13] In Sanders, the Court held, inter alia, that, even though the legal issue raised in a § 2255 motion "was determined against [the applicant] on the merits on a prior application," "the applicant may [nevertheless] be entitled to a new hearing upon showing an intervening change in the law. . . ." Sanders v. United States, 373 U. S. 1, 373 U. S. 17. The same rule applies when the prior determination was made on direct appeal from the applicant's conviction, instead of in an earlier § 2255 proceeding, "if new law has been made . . . since the trial and appeal." Kaufman v. United States, 394 U. S. 217, 394 U. S. 230 (1969). Thus, the Court of Appeals erred in holding that "the law of the case," as determined in the earlier appeal from the petitioner's conviction, precluded him from securing relief under § 2255 on the basis of an intervening change in law. .Nevertheless, the Solicitor General contends that we should affirm the judgment of the Court of Appeals because the petitioner's claim is not "of constitutional dimension" (Brief for United States 34) and thus is not cognizable in a § 2255 collateral proceeding. At the outset, we note that the Government's position finds scant support in the text of § 2255, which permits a federal prisoner to assert a claim that his confinement is "in Page 417 U. S. 343 violation of the Constitution or laws of the United States." (Emphasis added.)It is argued forcefully in a dissenting opinion today that this language, which appears in the first paragraph of § 2255, is somehow qualified by the third paragraph of the statute, which provides:"If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate."The dissent of MR. JUSTICE REHNQUIST rejects any suggestion that the language concerning "sentence[s] . . . otherwise open to collateral attack" can encompass a claim that a confinement under that sentence violates the "laws of the United States," contending that this would reduce the remaining language regarding "a denial or infringement of constitutional rights" to surplusage. Indeed, the nub of the dissent is that § 2255 "does not speak of an illegal confinement' . . . or even of an illegal conviction, but rather of illegal sentences." Post at 417 U. S. 356. (Emphasis in original.) Although this microscopic analysis of § 2255 surely shows that the statutory language is somewhat lacking in precision, the resulting shadow that the dissenting opinion would cast over the statute totally disappears in the light of its legislative history.That history makes clear that § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus. As the Court pointed out in United States v. Hayman, 342 U. S. 205, 342 U. S. 219 (1952), the"history Page 417 U. S. 344 of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum."Thus, there can be no doubt that the grounds for relief under § 2255 are equivalent to those encompassed by § 2254, the general federal habeas corpus statute, under which relief is available on the ground that "[a person] is in custody in violation of the Constitution or laws or treaties of the United States." (Emphasis added.) Furthermore, although the dissent of MR. JUSTICE REHNQUIST derides the view that the words "otherwise open to collateral attack" are intended to be "a catch-all phrase," post at 417 U. S. 358, the legislative history fully supports that view. In recommending to Congress what eventually became § 2255, the Judicial Conference Committee on Habeas Corpus Procedure stated that"[t]he motion remedy broadly covers all situations where the sentence is 'open to collateral attack.' As a remedy, it is intended to be as broad as habeas corpus. [Footnote 14]"No microscopic reading of § 2255 can escape either the clear and simple language of § 2254 authorizing habeas corpus relief "on the ground that [the prisoner] is in custody in violation of the . . . laws . . . of the United States" or the unambiguous legislative history showing that § 2255 was intended to mirror § 2254 in operative effect. Thus, we cannot agree that the third paragraph of § 2255 was in any fashion designed to mark a retreat from the clear statement that § 2255 encompasses a prisoner's Page 417 U. S. 345 claim of "the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." Accordingly, we conclude that the text of the statute cannot sustain the Government's position that only claims "of constitutional dimension" are cognizable under § 2255.Moreover, there is no support in the prior holdings of this Court for the proposition that a claim is not cognizable under § 2255 merely because it is grounded in the "laws of the United States", rather than the Constitution. It is true, of course, that, in Sunal v. Large, 332 U. S. 174 (1947), the Court held that the nonconstitutional claim in that case could not be asserted to set aside a conviction on collateral attack. But Sunal was merely an example of "the general rule . . . that the writ of habeas corpus will not be allowed to do service for an appeal." Id. at 332 U. S. 178. "Appeals could have been taken in these cases, but they were not." Id. at 332 U. S. 177. The Court was careful to point out that,"if Sunal and Kulick had pursued the appellate course and failed, their cases would be quite different. But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile."Id. at 332 U. S. 181. Moreover, "[t]he case [was] not one where the law was changed after the time for appeal had expired." Ibid. Thus, Sunal cannot be read to stand for the broad proposition that nonconstitutional claims can never be asserted in collateral attacks upon criminal convictions. [Footnote 15] Rather, Page 417 U. S. 346 the implication would seem to be that, absent the particular considerations regarded as dispositive in that case, the fact that a contention is grounded not in the Constitution, but in the "laws of the United States" would not preclude its assertion in a § 2255 proceeding.This is not to say, however, that every asserted error of law can be raised on a § 2255 motion. In Hill v. United States, 368 U. S. 424, 368 U. S. 429 (1962), for example, we held that "collateral relief is not available when all that is shown is a failure to comply with the formal requirements" of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was a "fundamental defect which inherently results in a complete miscarriage of justice," and whether "[i]t . . . present[s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id. at 368 U. S. 428 (internal quotation marks omitted). The Court did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the "laws of the United States."In this case, the petitioner's contention is that the decision in Gutknecht v. United States, as interpreted and applied by the Court of Appeals for the Ninth Circuit in the Fox case after his conviction was affirmed, establishes that his induction order was invalid under the Selective Service Act, and that he could not be lawfully convicted for failure to comply with that order. If this contention is well taken, then Davis' conviction and punishment are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance "inherently results in a complete miscarriage of justice" and "present[s] exceptional circumstances" Page 417 U. S. 347 that justify collateral relief under § 2255. Therefore, although we express no view on the merits of the petitioner's claim, we hold that the issue he raises is cognizable in a § 2255 proceeding.The judgment of the Court of Appeals is accordingly reversed and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtDavis v. United States, 417 U.S. 333 (1974)Davis v. United StatesNo. 72-1454Argued February 26, 1974Decided June 10, 1974417 U.S. 333SyllabusAfter being declared a delinquent, petitioner was ordered to report for induction pursuant to Selective Service regulations, which permitted the ordering of a declared delinquent to report for induction even though he had not been found acceptable for military service. When petitioner did not report as ordered, he was prosecuted and convicted for failure to report for induction. Following a remand by the Court of Appeals for reconsideration in the light of the intervening decision of this Court in Gutknecht v. United States, 396 U. S. 295, the District Court concluded that Gutknecht did not affect the conviction, and the Court of Appeals affirmed. While petitioner's petition for certiorari was pending in this Court, the Court of Appeals decided United States v. Fox, 454 F.2d 593, wherein, on the authority of Gutknecht, that court reversed a conviction based on facts virtually identical to those on which petitioner's conviction was based. This Court subsequently denied certiorari in the petitioner's case. After beginning his sentence, petitioner brought this collateral proceeding under 28 U.S.C. § 2255, asserting that the Court of Appeals in the Fox case had effected a change in the law of the Ninth Circuit after affirmance of his conviction, and that the holding in Fox required that his conviction be set aside. The District Court summarily denied relief. The Court of Appeals affirmed on the ground that, because petitioner had unsuccessfully litigated the Gutknecht issue on direct review, the court's earlier affirmance was "the law of the case," and precluded petitioner from securing relief under § 2255 on the basis of an intervening change in law.Held:1. Even though the legal issue raised in a prior direct appeal from petitioner's conviction was determined against petitioner, he is not precluded from raising the issue in a § 2255 proceeding "if new law has been made . . . since the trial and appeal." Kaufman v. United States, 394 U. S. 217, 394 U. S. 230. Pp. 417 U. S. 341-342.2. The fact that petitioner's claim is grounded "in the laws of the United States", rather than in the Constitution, does not Page 417 U. S. 334 preclude its assertion in a § 2255 proceeding, particularly since § 2255 permits a federal prisoner to assert a claim that his confinement is "in violation of the Constitution or laws of the United States." Sunal v. Large, 332 U. S. 174, distinguished. Pp. 417 U. S. 342-346.3. The issue that petitioner raises is cognizable in a § 2255 proceeding. Pp. 417 U. S. 346-347.472 F.2d 596, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, post, p. 417 U. S. 347. REHNQUIST, J., filed a dissenting opinion, post, p. 417 U. S. 350.

1967_31

MR. JUSTICE FORTAS delivered the opinion of the Court.Two cases, consolidated by the trial court and raising related issues, are here involved. In United States v. Cargill, Inc., the Government asked that parties responsible for the allegedly negligent sinking of a vessel in an inland waterway be declared responsible for removing the impediment to navigation thus created. In United States v. Wyandotte Transportation Co., the United States had itself removed a sunken vessel; claiming that the vessel had been negligently sunk, it sought reimbursement for the costs of removal. The question now before us for decision is whether the relief requested in these cases is available to the United States.The United States District Court for the Eastern District of Louisiana concluded that such relief is not available. After the cases were consolidated, that court granted summary judgment against the United States in each instance. The court decided that the Government has no in personam rights against those responsible for having negligently sunk a vessel. In its view, the United States is limited to an in rem right against the cargo of the negligently sunk vessel and against the vessel itself. United States v. Cargill, Inc., 1964 A.M.C. 1742.The Court of Appeals for the Fifth Circuit reversed. It held that, under the Rivers and Harbors Act of 1899, 30 Stat. 1151 et seq., as amended, 33 U.S.C. § 401 et seq., the United States may assert in personam rights -- to injunctive or declaratory relief or damages -- against those responsible for the negligent sinking of a vessel. United Page 389 U. S. 194 States v. Cargill, Inc., 367 F.2d 971 (1966). Because of a conflict among the circuits, and because of the important question regarding interpretation of a statute of the United States, we granted certiorari. 386 U.S. 906 (1967). We affirm the judgment below.The crucial facts of both cases occurred in March, 1961. The Cargill libel alleges that, at that time, a supertanker bound up the Mississippi for Baton Rouge, Louisiana, collided with two barges moored by a tug. The barges were owned by petitioner Cargo Carriers, Inc., and petitioner Jeffersonville Boat and Machine Co., respectively. The Government was notified immediately after the accident that the two barges had sunk. A few days later, it was served with notice that the barges were being abandoned. The United States refused, however, to accept abandonment or to assume responsibility for removing the wrecks. In December, 1962, it brought suit against the owners, managers, charterers, and insurers of the two barges, seeking a decree that the respondents were responsible for removing the sunken vessels. The Government charged that negligence in the equipping, manning, and mooring of the barges had caused the sinking. To this date, the barges involved in this case remain in the Mississippi.The Wyandotte libel is founded on facts more dramatic. A barge loaded with 2,200,000 pounds of liquid chlorine sank while being pushed in the Mississippi near Vidalia, Louisiana. Wyandotte, the owner of the barge, at first made some attempts to locate and raise the wreck. But then, in November, 1961, Wyandotte informed the Army Corps of Engineers that it believed further efforts to raise the barge would be unsuccessful. Wyandotte stated that it was abandoning the vessel. The Government began a study of the danger posed by such a substantial load of chlorine at the bottom of the Mississippi. It was feared that, if any chlorine escaped it would be Page 389 U. S. 195 in the form of lethal chlorine gas, which might cause a large number of casualties. The Government demanded that Wyandotte remove the barge. Wyandotte refused to do this. [Footnote 1]The United States then moved to avert a catastrophe by locating and raising the barge and its deadly cargo. In October, 1962, the President proclaimed the presence of the barge to be a major disaster under the Disaster Relief Act, 64 Stat. 1109, 42 U.S.C. §§ 1855-1855g. Safety precautions on a grand scale were taken, and a team of experienced divers sought gingerly to raise Wyandotte's barge. These operations, costing the United States some $3,081,000, proved successful.The United States demanded that the owners and operators of the barge reimburse the Government for its expenses. This demand was rejected. In January, 1963, the Government brought suit, in rem against the barge and her cargo, [Footnote 2] and in personam against the owner of the barge, the owner of the boat that had been pushing the barge when it sank, and the owner of the chlorine cargo. [Footnote 3] The libel charged these parties with negligence Page 389 U. S. 196 and fault in the design, towing, manning, mooring, and equipping of the barge. The Government sought a decree for the costs it incurred in removing the wreck. [Footnote 4]IAlthough the Government has advanced several discrete grounds for affirmance, we do not pause to examine each of them. [Footnote 5] We agree that § 15 of the Rivers and Page 389 U. S. 197 Harbors Act of 1899, 33 U.S.C. § 409, read in light of our decision in United States v. Republic Steel Corp., 362 U. S. 482 (1960), controls the issues here presented. Section 15 reads in relevant part as follows:"It shall not be lawful . . . to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels. . . . And whenever a vessel, raft or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful, and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections 411-416, 418, and 502 of this title."33 U.S.C. § 409.Petitioners do not dispute, as indeed they could not, that the negligent sinking of a vessel falls within the prohibition of the first above-quoted clause of § 15. [Footnote 6] They contend, however, that the Act contains specific remedies for such a violation of § 15, and that those remedies were meant by Congress to be exclusive of all Page 389 U. S. 198 others. Petitioners point to the § 15 duty of the owner to mark and remove a sunken craft. They note that failure to remove "shall be considered as an abandonment of such craft, and subject the same to removal by the United States." And petitioners call our attention to §§ 19 and 20 of the Act, 33 U.S.C. §§ 414-415, which set forth the procedure whereby the United States may remove a sunken craft that "shall be considered as" abandoned under § 15. Section 19 provides that, whenever a sunken vessel exists as an obstruction to any navigable waters of the United States for a period longer than 30 days, or whenever the abandonment of such obstruction can be legally established in a shorter time, the sunken vessel"shall be subject to be broken up, removed, sold, or otherwise disposed of by the Secretary of the Army at his discretion, without liability for any damage to the owners of the same."That section further contemplates "[t]hat any money received from the sale of any such wreck . . . shall be covered into the Treasury of the United States." 33 U.S.C. § 414. Section 20, an emergency provision applicable only when a sunken vessel obstructs a waterway "in such manner as to stop, seriously interfere with, or specially endanger navigation," 33 U.S.C. § 415, is similar in structure to § 19. [Footnote 7]Finally, petitioners emphasize that § 16 of the Act provides criminal penalties for"[e]very person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions Page 389 U. S. 199 [of § 15]."33 U.S.C. § 411. [Footnote 8] They point out that § 12 of the Act, 33 U.S.C. § 406, which provides penalties for violations of § 10, 33 U.S.C. § 403, [Footnote 9] expressly authorizes the injunctive remedy. They argue that the lack of such an authorization in § 16 should be taken to mean that Congress did not intend the United States to be able to obtain what is, in effect, injunctive relief as a remedy for a violation of § 15. [Footnote 10]The position of petitioners is, therefore, that, in the case of a negligently sunk vessel, the Government may require the owner to mark it; it may expect him to remove it or forfeit his interest in the vessel, and if the Government proceeds to remove the vessel, it possesses the right to sell vessel and cargo and retain the proceeds of these sales. [Footnote 11] Moreover, the Government may proceed criminally, under § 16, against those responsible for the negligent sinking. But, petitioners argue, the Government may do no more. Under their view, the very detail of the Rivers and Harbors Act negates the possibility that Congress intended the Government to be Page 389 U. S. 200 able to recover removal expenses exceeding the value of the vessel and its cargo. Petitioners would apply the same analysis to a government action for declaratory or injunctive relief. Indeed, petitioners believe that authorization of the injunction remedy in another, analogous, section of the Act indicates congressional intent to withhold declaratory or injunctive relief as a means of enforcing § 15. [Footnote 12]We do not agree. Petitioners' interpretation of the Rivers and Harbors Act of 1899 would ascribe to Congress an intent at variance with the purpose of that statute. Petitioners' proposal is, moreover, in disharmony with our own prior construction of the Act, with our decisions on analogous issues of statutory construction, and with a major maritime statute of the United States. If there were no other reasonable interpretation of the statute, or if petitioners could adduce some persuasive indication that their interpretation accords with the congressional intent, we might be more disposed to accept that interpretation. But our reading of the Act does not lead us to the conclusion that Congress must have intended the statutory remedies and procedures to be exclusive of all others. There is no indication anywhere else -- in the legislative history of the Act, in the predecessor statutes, or in nonstatutory law -- that Congress might have intended that a party who negligently sinks a vessel should be shielded from personal responsibility. We therefore hold that the remedies and procedures specified by the Act for the Page 389 U. S. 201 enforcement of § 15 were not intended to be exclusive. Applying the principles of our decision in Republic Steel, we conclude that other remedies, including those here sought, are available to the Government.IIArticle I, § 8, of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power, the navigable waters of the United States are to be deemed the "public property of the nation, and subject to all the requisite legislation by Congress." Gillman v. Philadelphia, 3 Wall. 713, 70 U. S. 725 (1866). The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. Cf. In re Debs, 158 U. S. 564, 158 U. S. 586 (1895). The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, Sanitary District v. United States, 266 U. S. 405 (1925), was obviously intended to prevent obstructions in the Nation's waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. See, e.g., Sanitary District v. United States, supra; United States v. Republic Steel Corp., 362 U. S. 482 (1960). [Footnote 13] And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself. United States v. Republic Steel Corp., supra, at 362 U. S. 492.Our decisions have established, too, the general rule that the United States may sue to protect its interests. Cotton v. United States, 11 How. 229 (1851); United States v. Sn Jacinto Tin Co., 125 U. S. 273 (1888); Sanitary District v. United States, supra. This rule is not Page 389 U. S. 202 necessarily inapplicable when the particular governmental interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. United States v. Republic Steel Corp., supra. Our decisions in cases involving civil actions of private parties based on the violation of a penal statute so indicate. Texas Pacific R. Co. v. Rigsby, 241 U. S. 33 (1916); J. I. Case Co. v. Borak, 377 U. S. 426 (1964). [Footnote 14] In those cases, we concluded that criminal liability was inadequate to ensure the full effectiveness of the statute which Congress had intended. Because the interest of the plaintiffs in those cases fell within the class that the statute was intended to protect, and because the harm that had occurred was of the type that the statute was intended to forestall, we held that civil actions were proper. That conclusion was in accordance with a general rule of the law of torts. See Restatement (Second) of Torts § 286. We see no reason to distinguish the Government, and to deprive the United States of the benefit of that rule.The inadequacy of the criminal penalties explicitly provided by § 16 of the Rivers and Harbors Act is beyond dispute. That section contains only meager monetary penalties. In many cases, as here, the combination of these fines and the Government's in rem rights would not serve to reimburse the United States for removal expenses. It is true that § 16 also provides for prison terms, but this punishment is hardly a satisfactory remedy for the pecuniary injury which the negligent shipowner may inflict upon the sovereign. Cf. United States v. Acme Process Equipment Co., 385 U. S. 138 (1966).It was a similar process of reasoning that, underlay our decision in United States v. Republic Steel Corp., 362 Page 389 U. S. 203 U.S. 482 (1960). That case concerned the deposit of industrial solids which, we believed, created an "obstruction . . . to the navigable capacity" of a waterway of the United States within the meaning of § 10 of the Act. We decided that the Government might seek injunctive relief to compel removal of such an obstruction, even though such relief was nowhere specifically authorized in the Act. We concluded that the authorization of injunctive relief in § 12, which is applicable only to a limited category of § 10 obstructions (structures), should not be read to exclude injunctions to compel removal of other types of § 10 obstructions. In referring to the Act, we noted that"Congress has legislated and made its purpose clear; it has provided enough federal law in § 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation."362 U.S. at 362 U. S. 492.Although we do not approach the instant cases in the context of § 10, we believe the principles of Republic Steel apply, by analogy, to the issues now before us. [Footnote 15] Page 389 U. S. 204 The Government may, in our view, seek an order that a negligent party is responsible for rectifying the wrong done to maritime commerce by a § 1a violation. Denial of such a remedy to the United States would permit the result, extraordinary in our jurisprudence, of a wrongdoer shifting responsibility for the consequences of his negligence onto his victim. It might in some cases permit the negligent party to benefit from commission of a criminal act. We do not believe that Congress intended to withhold from the Government a remedy that ensures the full effectiveness of the Act. We think we correctly divine the congressional intent in inferring the availability of that remedy from the prohibition of § 15.It is but a small step from declaratory relief to a civil action for the Government's expenses incurred in removing a negligently sunk vessel. See United States v. Perma Paving Co., 332 F.2d 754 (C.A.2d Cir.1964). Having properly chosen to remove such a vessel, the United States should not lose the right to place responsibility for removal upon those who negligently sank the vessel. See Restatement of Restitution § 115; United States v. Moran Towing & Transportation Co., 374 F.2d 656, 667 (C.A.4th Cir.1967). No issue regarding the propriety of the Government's removal of Wyandotte's barge is now raised. Indeed, the facts surrounding that sinking constitute a classic case in which rapid removal by someone was essential. Wyandotte was unwilling to effectuate removal itself. It would be surprising if Congress intended that, in such a situation, the Government's Page 389 U. S. 205 commendable performance of Wyandotte's duty must be at Government expense. Indeed, in any case in which the Act provides a right of removal in the United States, the exercise of that right should not relieve negligent parties of the responsibility for removal. Otherwise, the Government would be subject to a financial penalty for the correct performance of its duty to prevent impediments in inland waterways. [Footnote 16] See United States v. Perma Paving Co., supra, at 758.We note, moreover, that, under the Limitation of Shipowners' Liability Act of 1851, 9 Stat. 635, as amended, 46 U.S.C. § 181 et seq., the liability of a shipowner "for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture" may be limited to "the interest of such owner in such vessel, and her freight then pending"; but this limitation is available only if the act or damage occurred "without the privity or knowledge of such owner." 46 U.S.C. § 183. "For his own fault, neglect and contracts the owner remains liable." American Car & Foundry Co. v. Brassert, 289 U. S. 261, 289 U. S. 264 (1933). The reading that petitioners would place on the Rivers and Harbors Act of 1899 would create an additional right of limitation, applicable in the special case of a sinking even though the owner is himself negligent. Yet Congress gave no indication, in passing the Rivers and Harbors Act, that it intended to alter or qualify the 1851 Act. [Footnote 17] In the congressional failure to Page 389 U. S. 206 connect these two statutes, we find at least some evidence that petitioners' discovery of a limitation of liability in the Rivers and Harbors Act is unwarranted. [Footnote 18]IIIPetitioners contend that, despite our prior decisions and the silence of the Rivers and Harbors Act on this point, that statute authorizes them simply to abandon their negligently sunk vessels, without further responsibility for those vessels. We find in the Act no support for such an absolute right of abandonment. The provision upon which petitioners place most reliance, the final clause of § 15, creates a "duty of the owner of [a] sunken craft to commence the immediate removal of the same, and prosecute such removal diligently." Because"failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as provided for in sections [19 and 20],"petitioners contend that such failure in no case has other consequences. But the duty imposed by and the remedy provided in the final clause of § 15 and §§ 19 and 20 are not prescribed only for owners of negligently sunk vessels. Page 389 U. S. 207 Those provisions apply "whenever a vessel . . . is wrecked and sunk in a navigable channel, accidentally or otherwise. . . ." Unlike a negligent sinking, a nonnegligent sinking is not declared by the Act to be unlawful. It seems highly unlikely that Congress, having specified that only a negligent or intentional sinking is a crime, would then employ such indirect language to grant the culpable owner a personal civil immunity from the consequences of that crime.We believe the sections noted by petitioners are intended to protect the United States against liability for removing a sunken vessel if it chooses to do so. See Zubik v. United States, 190 F.2d 278 (C.A.3d Cir.1951); Gulf Coast Transp. Co. v. Ruddock-Orleans Cypress Co., 17 F.2d 858 (D.C.E.D.La.1927). Section 19 speaks explicitly of the discretion of the Secretary of the Army to break up, remove, sell, or otherwise dispose of a sunken vessel that has obstructed a waterway "without liability for any damage to the owners of the same." These sections do not negate the rights of the United States to obtain declaratory relief or to recover removal expenses. It is true that a proviso to § 19 states "[t]hat any money received from the sale of any such wreck . . . shall be covered into the Treasury of the United States." But that proviso does not indicate that the United States, having chosen to remove a sunken vessel, shall receive no other monies. At most, the proviso establishes the proposition that, if the United States chooses to sell a wreck, the owner of the vessel has no right to any monies received. [Footnote 19] Section 20, the emergency Page 389 U. S. 208 section, closely parallels § 19. It adds nothing to petitioners' argument. [Footnote 20]Petitioners also claim that a substantial body of nonstatutory law establishes the rule that a shipowner who has negligently sunk a vessel may abandon it and be insulated from all but in rem liability. [Footnote 21] They argue that Congress must have intended to codify this rule in the Rivers and Harbors Act. We do not accept petitioners' claim. Although several modern courts have Page 389 U. S. 209 assumed the existence of such a common law rule, see, e.g., United States v. Moran Towing & Transportation Co., 374 F.2d 656, 667 (C.A.4th Cir.1967); United States v. Bethlehem Steel Corp., 319 F.2d 512, 518519 (C.A. 9th Cir.1963), the rule evaporates upon close analysis. [Footnote 22] We do not believe Congress intended the Rivers and Harbors Act to embody this illusory nonstatutory law. Page 389 U. S. 210IVThese cases were decided in the District Court on petitioners' motions for summary judgment. The Court of Appeals reversed and remanded for further proceedings. As we have noted, the Government's libels were based on a theory of negligence, and the award of the Court of Appeals called for a determination whether the acts of the various petitioners constituted negligence. We agree with that disposition.Affirmed

U.S. Supreme CourtWyandotte Transportation Co. v. United States, 389 U.S. 191 (1967)Wyandotte Transportation Co. v. United StatesNo. 31Argued October 16-17, 1967Decided December 4, 1967389 U.S. 191SyllabusThis case involves two libels arising out of the allegedly negligent sinking of vessels in navigable waterways of the United States. In United States v. Carill, Inc., the Government, after being notified of the sinking and abandonment of two barges, sought a decree that the parties responsible for the allegedly negligent sinking be declared responsible for removing the impediment to navigation which the wrecks constituted. In United States v. Wyandotte Transportation Co., the Government claimed that a barge had been negligently sunk and demanded that the wreck be removed. When this demand was rejected, the Government removed the sunken barge and cargo and brought suit in rem against the barge and its cargo and in personam against the barge owner and others to effect reimbursement for the substantial costs of removal. The District Court consolidated the actions and granted summary judgment in each instance against the United States, holding that the Government has no in personam rights against those responsible for having negligently sunk a vessel, but that it is limited to an in rem right against the vessel and its cargo. The Court of Appeals reversed and remanded the case to the District Court for trial on the issue of negligence. It held that, under the Rivers and Harbors Act of 1899, as amended, the Government may assert in personam rights against those responsible for the negligent sinking of a vessel. Section 15 of the Act makes it unlawful to "carelessly sink, or permit or cause to be sunk a vessel in navigable waters." Petitioners contend that the Act's specific remedies, which include criminal penalties, are exclusive, and preclude the Government from obtaining the relief it has sought in the two libels. They note that, under the Act, failure to remove a vessel is considered an abandonment, and subjects a craft to removal by the Government, which may retain the proceeds of the sale of a wreck.Held: The remedies and procedures for the enforcement of § 15 are not exclusive, and do not foreclose in personam relief against a party who negligently sinks a vessel in a navigable waterway. Pp. 389 U. S. 200-210. Page 389 U. S. 192(a) The Government is a principal beneficiary of the Act, which was obviously intended to prevent obstructions in the Nation's waterways. P. 389 U. S. 201.(b) The general rule that the United States may sue to protect its interest is not necessarily inapplicable when the interest sought to be protected is expressed in a statute containing criminal penalties for its violation. Pp. 389 U. S. 201-202.(c) The criminal penalties of the Act and the Government's in rem rights would not adequately reimburse the Government for removal expenses. P. 389 U. S. 202.(d) The principles of United States v. Republic Steel Corp., 362 U. S. 482 (1960), where the Government was allowed injunctive relief to compel removal of an obstruction in a waterway even though such relief was nowhere specifically authorized in the Act, are applicable, by analogy, to the issues here. Pp. 389 U. S. 202-203.(e) The availability to the Government of declaratory relief in the form of an order that a negligent party is responsible for rectifying the wrong done to maritime commerce by a violation of § 15 is inferable from the prohibition contained in that section. P. 389 U. S. 204.(f) The exercise by the Government of the right of removal provided by the statute des not relieve negligent parties of the responsibility for making restitution for the removal. P. 389 U. S. 205.(g) Petitioners err in believing that the abandonment portions of the Act confer an absolute right upon a shipowner to abandon his sunken craft with no in personam liability. Those provisions merely grant a right of removal to the Government, and do not negate the Government's rights to declaratory relief or to recover removal expenses. Pp. 389 U. S. 206-207.(h) There is no support in the statute, in the legislative history, or in nonstatutory law, for the rule that a shipowner who has negligently sunk a vessel may abandon it and be insulated from all but in rem liability. Pp. 389 U. S. 208-209.367 F.2d 971, affirmed. Page 389 U. S. 193

1971_70-82

MR. JUSTICE MARSHALL delivered the opinion of the Court.The United States brought this action for injunctive relief against alleged violation by Topco Associates, Inc. (Topco) of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. Jurisdiction was grounded in § 4 of the Act, 15 U.S.C. § 4. Following a trial on the merits, the United States District Court for the Northern District of Illinois entered judgment for Topco, 319 F. Supp. 1031, and the United States appealed directly to this Court pursuant to § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29. We noted probable jurisdiction, 402 U.S. 905 (1971), and we now reverse the judgment of the District Court. Page 405 U. S. 598ITopco is a cooperative association of approximately 25 small and medium-sized regional supermarket chains that operate stores in some 33 States. [Footnote 1] Each of the member chains operates independently; there is no pooling of earnings, profits, capital, management, or advertising resources. No grocery business is conducted under the Topco name. Its basic function is to serve as a purchasing agent for its members. [Footnote 2] In this capacity, it procures and distributes to the members more than 1,000 different food and related nonfood items, most of which are distributed under brand names owned by Topco. The association does not itself own any manufacturing, processing, or warehousing facilities, and the items that it procures for members are usually shipped directly from the packer or manufacturer to the members. Payment is made either to Topco or directly to the manufacturer at a cost that is virtually the same for the members as for Topco itself.All of the stock in Topco is owned by the members, with the common stock, the only stock having voting rights, being equally distributed. The board of directors, which controls the operation of the association, is drawn from the members, and is normally composed of high-ranking executive officers of member chains. It is the board that elects the association's officers and appoints Page 405 U. S. 599 committee members, and it is from the board that the principal executive officers of Topco must be drawn. Restrictions on the alienation of stock and the procedure for selecting all important officials of the association from within the ranks of its members give the members complete and unfettered control over the operations of the association.Topco was founded in the 1940's by a group of small, local grocery chains, independently owned and operated, that desired to cooperate to obtain high quality merchandise under private labels in order to compete more effectively with larger national and regional chains. [Footnote 3] With a line of canned, dairy, and other products, the Page 405 U. S. 600 association began. It added frozen foods in 1950, fresh produce in 1958, more general merchandise equipment and supplies in 1960, and a branded bacon and carcass beef selection program in 1966. By 1964, Topco's members had combined retail sales of more than $2 billion; by 1967, their sales totaled more than $2.3 billion, a figure exceeded by only three national grocery chains. [Footnote 4]Members of the association vary in the degree of market share that they possess in their respective areas. The range is from 1.5% to 16%, with the average being approximately 6%. While it is difficult to compare these figures with the market shares of larger regional and national chains because of the absence in the record of accurate statistics for these chains, there is much evidence in the record that Topco members are frequently in as strong a competitive position in their respective areas as any other chain. The strength of this competitive position is due, in some measure, to the success of Topco brand products. Although only 10% of the total goods sold by Topco members bear the association's brand names, the profit on thee goods is substantial, and their very existence has improved the competitive potential of Topco members with respect to other large and powerful chains.It is apparent that, from meager beginnings approximately a quarter of a century ago, Topco has developed into a purchasing association wholly owned and operated by member chains, which possess much economic muscle, individually as well as cooperatively.IISection 1 of the Sherman Act provides, in relevant part:"Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of Page 405 U. S. 601 trade or commerce among the several States, or with foreign nations, is declared to be illegal. . . ."The United States charged that, beginning at least as early as 1960 and continuing up to the time that the complaint was filed, Topco had combined and conspired with its members to violate § 1 [Footnote 5] in two respects. First, the Government alleged that there existed:"a continuing agreement, understanding and concert of action among the coconspirator member firms acting through Topco, the substantial terms of which have been and are that each coconspirator member firm will sell Topco controlled brands only within the marketing territory allocated to it, and will refrain from selling Topco controlled brands outside such marketing territory."The division of marketing territories to which the complaint refers consists of a number of practices by the association.Article IX, § 2, of the Topco bylaws establishes three categories of territorial licenses that members may secure from the association:"(a) Exclusive -- An exclusive territory is one in which the member is licensed to sell all products bearing specified trademarks of the Association, to the exclusion of all other persons.""(b) Non-exclusive -- A non-exclusive territory is one in which a member is licensed to sell all products bearing specified trademarks of the Association, but not to the exclusion of others who may also be licensed to sell products bearing the same trademarks of the Association in the same territory.""(c) Coextensive -- A coextensive territory is one Page 405 U. S. 602 in which two (2) or more members are licensed to sell all products bearing specified trademarks of the Association to the exclusion of all other persons. . . ."When applying for membership, a chain must designate the type of license that it desires. Membership must first be approved by the board of directors, and thereafter by an affirmative vote of 75% of the association's members. If, however, the member whose operations are closest to those of the applicant, or any member whose operations are located within 100 miles of the applicant, votes against approval, an affirmative vote of 85% of the members is required for approval. Bylaws, Art. I, § 5. Because, as indicated by the record, members cooperate in accommodating each other's wishes, the procedure for approval provides, in essence, that members have a veto of sorts over actual or potential competition in the territorial areas in which they are concerned.Following approval, each new member signs an agreement with Topco designating the territory in which that member may sell Topco brand products. No member may sell these products outside the territory in which it is licensed. Most licenses are exclusive, and even those denominated "coextensive" or "non-exclusive" prove to be de facto exclusive. Exclusive territorial areas are often allocated to members who do no actual business in those areas on the theory that they may with to expand at some indefinite future time and that expansion would likely be in the direction of the allocated territory. When combined with each member's veto power over new members, provisions for exclusivity work effectively to insulate members from competition in Topco brand goods. Should a member violate its license agreement and sell in areas other than those in which it is licensed, its membership can be terminated under Art. IV, §§ 2(a) and 2(b) of the Page 405 U. S. 603 bylaws. Once a territory is classified as exclusive, either formally or de facto, it is extremely unlikely that the classification will ever be changed. See Bylaws, Art. IX.The Government maintains that this scheme of dividing markets violates the Sherman Act because it operates to prohibit competition in Topco brand products among grocery chains engaged in retail operations. The Government also makes a subsidiary challenge to Topco's practices regarding licensing members to sell at wholesale. Under the bylaws, members are not permitted to sell any products supplied by the association at wholesale, whether trademarked or not, without first applying for and receiving special permission from the association to do so. [Footnote 6] Before permission is granted, other licensees (usually retailers) whose interests may potentially be affected by wholesale operations are consulted as to their wishes in the matter. If permission is obtained, the member must agree to restrict Page 405 U. S. 604 the sale of Topco products to a specific geographic area, and to sell under any conditions imposed by the association. Permission to wholesale has often been sought by members, only to be denied by the association. The Government contends that this amounts not only to a territorial restriction violative of the Sherman Act, but also to a restriction on customers that, in itself, is violative of the Act. [Footnote 7]From the inception of this lawsuit, Topco accepted as true most of the Government's allegations regarding territorial divisions and restrictions on wholesaling, although it differed greatly with the Government on the conclusions, both factual and legal, to be drawn from these facts.Topco's answer to the complaint is illustrative of its posture in the District Court and before this Court:"Private label merchandising is a way of economic life in the food retailing industry, and exclusivity is the essence of a private label program; without exclusivity, a private label would not be private. Each national and large regional chain has its own exclusive private label products in addition to the nationally advertised brands which all chains sell. Each such chain relies upon the exclusivity of its own private label line to differentiate its private Page 405 U. S. 605 label products from those of its competitors and to attract and retain the repeat business and loyalty of consumers. Smaller retail grocery stores and chains are unable to compete effectively with the national and large regional chains without also offering their own exclusive private label products.""* * * *" "The only feasible method by which Topco can procure private label products and assure the exclusivity thereof is through trademark licenses specifying the territory in which each member may sell such trademarked products."Answer, App. 11. Topco essentially maintains that it needs territorial divisions to compete with larger chains; that the association could not exist if the territorial divisions were anything but exclusive; and that, by restricting competition in the sale of Topco brand goods, the association actually increases competition by enabling its members to compete successfully with larger regional and national chains.The District Court, considering all these things relevant to its decision, agreed with Topco. It recognized that the panoply of restraints that Topco imposed on its members worked to prevent competition in Topco brand products, [Footnote 8] but concluded that"[w]hatever anti-competitive effect these practices may have on competition in the sale of Topco private Page 405 U. S. 606 label brands is far outweighed by the increased ability of Topco members to compete both with the national chains and other supermarkets operating in their respective territories."319 F. Supp. 1031, 1043 (1970). The court held that Topco's practices were procompetitive, and therefore consistent with the purposes of the antitrust laws. But we conclude that the District Court used an improper analysis in reaching its result.IIIOn its face, § 1 of the Sherman Act appears to bar any combination of entrepreneurs so long as it is "in restraint of trade." Theoretically, all manufacturers, distributors, merchants, sellers, and buyers could be considered as potential competitors of each other. Were § 1 to be read in the narrowest possible way, any commercial contract could be deemed to violate it. Chicago Board of Trade v. United States, 246 U. S. 231, 246 U. S. 238 (1918) (Brandeis, J.). The history underlying the formulation of the antitrust laws led this Court to conclude, however, that Congress did not intend to prohibit all contracts, nor even all contracts that might in some insignificant degree or attenuated sense restrain trade or competition. In lieu of the narrowest possible reading of § 1, the Court adopted a "rule of reason" analysis for determining Page 405 U. S. 607 whether most business combinations or contracts violate the prohibitions of the Sherman Act. Standard Oil Co. v. United States, 221 U. S. 1 (1911). An analysis of the reasonableness of particular restraints includes consideration of the facts peculiar to the business in which the restraint is applied, the nature of the restraint and its effects, and the history of the restraint and the reasons for its adoption. Chicago Board of Trade v. United States, supra, at 246 U. S. 238.While the Court has utilized the "rule of reason" in evaluating the legality of most restraints alleged to be violative of the Sherman Act, it has also developed the doctrine that certain business relationships are per se violations of the Act without regard to a consideration of their reasonableness. In Northern Pacific R. Co. v. United States, 356 U. S. 1, 356 U. S. 5 (1958), Mr. Justice Black explained the appropriateness of, and the need for, per se rules:"[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. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable -- an inquiry so often wholly fruitless when undertaken."It is only after considerable experience with certain business relationships that courts classify them as per se Page 405 U. S. 608 violations of the Sherman Act. See generally Van Cise, The Future of Per Se in Antitrust Law, 50 Va.L.Rev. 1165 (1964). One of the classic examples of a per se violation of § 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a "horizontal" restraint, in contradistinction to combinations of persons at different levels of the market structure, e.g., manufacturers and distributors, which are termed "vertical" restraints. This Court has reiterated time and time again that "[h]orizontal territorial limitation . . . are naked restraints of trade, with no purpose except stifling of competition." White Motor Co. v. United States, 372 U. S. 253, 372 U. S. 263 (1963). Such limitations are per se violations of the Sherman Act. See Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 (1899), aff'g 85 F. 271 (CA6 1898) (Taft, J.); United States v. National Lead Co., 332 U. S. 319 (1947); Timken Roller Bearing Co. v. United States, 341 U. S. 593 (1951); Northern Pacific R. Co. v. United States, supra; Citizen Publishing Co. v. United States, 394 U. S. 131 (1969); United States v. Sealy, Inc., 388 U. S. 350 (1967); United States v. Arnold, Schwinn & Co., 388 U. S. 365, 388 U. S. 390 (1967) (STEWART, J., concurring in part and dissenting in part); Serta Associates, Inc. v. United States, 393 U. S. 534 (1969), aff'g 296 F. Supp. 1121, 1128 (ND Ill.1968).We think that it is clear that the restraint in this case is a horizontal one, and, therefore, a per se violation of § 1. The District Court failed to make any determination as to whether there were per se horizontal territorial restraints in this case, and simply applied a rule of reason in reaching its conclusions that the restraints were not illegal. See, e.g., Comment, Horizontal Territorial Restraints and the Per Se Rule, 28 Wash. & Lee L.Rev. 457, 469 (1971). In so doing, the District Court erred. Page 405 U. S. 609United States v. Sealy, Inc., supra, is, in fact, on all fours with this case. Sealy licensed manufacturers of mattresses and bedding to make and sell products using the Sealy trademark. Like Topco, Sealy was a corporation owned almost entirely by its licensees, who elected the Board of Directors and controlled the business. Just as in this case, Sealy agreed with the licensees not to license other manufacturers or sellers to sell Sealy brand products in a designated territory in exchange for the promise of the licensee who sold in that territory not to expand its sales beyond the area demarcated by Sealy. The Court held that this was a horizontal territorial restraint, which was per se violative of the Sherman Act. [Footnote 9]Whether or not we would decide this case the same way under the rule of reason used by the District Court is irrelevant to the issue before us. The fact is that courts are of limited utility in examining difficult economic problems. [Footnote 10] Our inability to weigh, in any meaningful Page 405 U. S. 610 sense, destruction of competition in one sector of the economy against promotion of competition in another sector is one important reason we have formulated per se rules.In applying these rigid rules, the Court has consistently rejected the notion that naked restraints of trade are to be tolerated because they are well intended or because they are allegedly developed to increase competition. E.g., United States v. General Motors Corp., 384 U. S. 127, 384 U. S. 146-147 (1966); United States v. Masonite Corp., 316 U. S. 265 (1942); Fashion Originators' Guild v. FTC, 312 U. S. 457 (1941).Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete -- to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster. Implicit in such freedom is the notion that it cannot be foreclosed with respect to one sector of the economy because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy. Cf. United States v. Philadelphia National Bank, 374 U. S. 321, 374 U. S. 371 (1963).The District Court determined that, by limiting the freedom of its individual members to compete with each other, Topco was doing a greater good by fostering competition between members and other large supermarket chains. But the fallacy in this is that Topco has no authority under the Sherman Act to determine the Page 405 U. S. 611 respective values of competition in various sectors of the economy. On the contrary, the Sherman Act gives to each Topco member and to each prospective member the right to ascertain for itself whether or not competition with other supermarket chains is more desirable than competition in the sale of Topco brand products. Without territorial restrictions, Topco members may indeed " [cut] each other's throats." Cf. White Motor Co., supra, at 372 U. S. 278 (Clark, J., dissenting). But we have never found this possibility sufficient to warrant condoning horizontal restraints of trade.The Court has previously noted with respect to price-fixing, another per se violation of the Sherman Act, that:"The reasonable price fixed today may, through economic and business changes, become the unreasonable price of tomorrow. Once established, it may be maintained unchanged because of the absence of competition secured by the agreement for a price reasonable when fixed."United States v. Trenton Potteries Co., 273 U. S. 392, 273 U. S. 397 (1927). A similar observation can be made with regard to territorial limitations. White Motor Co., supra, at 372 U. S. 265 n. 2 (BRENNAN, J., concurring).There have been tremendous departures from the notion of a free enterprise system as it was originally conceived in this country. These departures have been the product of congressional action and the will of the people. If a decision is to be made to sacrifice competition in one portion of the economy for greater competition in another portion, this too is a decision that must be made by Congress, and not by private forces or by the courts. Private forces are too keenly aware of their own interests in making such decisions, and courts are ill-equipped and ill-situated for such decisionmaking. To analyze, interpret, and evaluate the myriad of competing interests and the endless data that would surely be brought to Page 405 U. S. 612 bear on such decisions, and to make the delicate judgment on the relative values to society of competitive areas of the economy, the judgment of the elected representatives of the people is required.Just as the territorial restrictions on retailing Topco brand products must fall, so must the territorial restrictions on wholesaling. The considerations are the same, and the Sherman Act requires identical results.We also strike down Topco's other restrictions on the right of its members to wholesale goods. These restrictions amount to regulation of the customers to whom members of Topco may sell Topco brand goods. Like territorial restrictions, limitations on customers are intended to limit intra-brand competition and to promote inter-brand competition. For the reasons previously discussed, the arena in which Topco members compete must be left to their unfettered choice absent a contrary congressional determination. United States v. General Motors Corp., supra; cf. United States v. Arnold, Schwinn & Co., supra; United States v. Masonite Corp., supra; United States v. Trenton Potteries, supra. See also White Motor Co., supra, at 372 U. S. 281-283 (Clark, J., dissenting).We reverse the judgment of the District Court and remand the case for entry of an appropriate decree.It is so ordered

U.S. Supreme CourtUnited States v. Topco Assocs., Inc., 405 U.S. 596 (1972)United States v. Topco Associates, Inc.No. 70-82Argued November 16, 1971Decided March 29, 1972405 U.S. 596SyllabusThe United States brought this injunction action charging a violation of § 1 of the Sherman Act by appellee, Topco, a cooperative association of about 25 small and medium-sized independent regional supermarket chains operating in 33 States. As its members' purchasing agent, appellee procures more than 1,000 different items, most of which have brand names owned by Topco. The members' combined retail sales in 1967 were 2.3 billion, exceeded by only three national grocery chains. A member's average market share in its area is about 6%, and its competitive position is frequently as strong as that of any other chain. The members own equal amounts of Topco's common stock (the voting stock), choose its directors, and completely control the association's operations. Topco's bylaws establish an "exclusive" category of territorial licenses, under which most members' licenses are issued, and the two other membership categories have proved to be de facto exclusive. Since no member under this system may sell Topco brand products outside the territory in which it is licensed, expansion into another member's territory is, in practice, permitted only with the other member's consent, and, since a member, in effect, has a veto power over admission of a new member, members can control actual or potential competition in the territorial areas in which they are concerned. Topco members are prohibited from selling any products supplied by the association at wholesale, whether trademarked or not, without securing special permission, which is not granted without the consent of other interested licensees (usually retailers), and then the member must agree to restrict Topco product sales to a specific area, and under certain conditions. The Government charged that Topco's scheme of dividing markets violates the Sherman Act because it operates to prohibit competition in Topco brand products among retail grocery chains, and also challenged Topco's restrictions on wholesaling. Topco contended that it needs territorial divisions to maintain its private label program and to enable it to compete with the larger chains; that the association could not exist if the territorial divisions were not exclusive; and that the restrictions on competition in Topco brand sales enable members to meet larger chain competition. Page 405 U. S. 597 The District Court, agreeing with Topco, upheld the restrictive practices a reasonable and pro-competitive.Held: The Topco scheme of allocating territories to minimize competition at the retail level is a horizontal restraint constituting a per se violation of § 1 of the Sherman Act, and the District Court erred in applying a rule of reason to the restrictive practices here involved. United States v. Sealy, Inc., 388 U. S. 350. Topco's limitations upon reselling at wholesale are for the same reason per se invalid under § 1. Pp. 606-612.319 F. Supp. 1031, reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN STEWART, and WHITE, JJ., joined. BLACKMUN, J., filed an opinion concurring in the result, post, p. 405 U. S. 612. BURGER, C.J., filed a dissenting opinion, post, p. 405 U. S. 613. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

1969_30

MR. JUSTICE STEWART delivered the opinion of the Court.The appellants, Negro citizens of Greene County, Alabama, commenced this class action against officials charged with the administration of the State's jury Page 396 U. S. 322 selection laws: the county jury commissioners and their clerk, the local circuit court judge, and the Governor of Alabama. The complaint alleged that the appellants were fully qualified to serve as jurors and desired to serve, but had never been summoned for jury service. It charged that the appellees had effected a discriminatory exclusion of Negroes from grand and petit juries in Greene County -- the Governor in his selection of the county jury commission, and the commissioners and judge in their arbitrary exclusion of Negroes. The complaint sought (1) a declaration that qualified Negroes were systematically excluded from Greene County grand and petit juries, that the Alabama statutes governing jury selection were unconstitutional on their face and as applied, and that the jury commission was a deliberately segregated governmental agency; (2) a permanent injunction forbidding the systematic exclusion of Negroes from Greene County juries pursuant to the challenged statutes and requiring that all eligible Negroes be placed on the jury roll, and (3) an order vacating the appointments of the jury commissioners and compelling the Governor to select new members without racial discrimination.Alabama's jury selection procedure is governed by statute. Ala.Code, Tit. 30, § 1 et seq. (1958 and Supp. 1967). The Governor appoints a three-member jury commission for each county. §§ 8-10. The commission employs a clerk, § 15, who is charged with the duty of obtaining the name of every citizen of the county over 21 and under 65 years of age, together with his occupation and places of residence and business. § 18. The clerk must"can the registration lists, the lists returned to the tax assessor, any city directories, telephone directories and any and every other source of information from which he may obtain information. . . ."§ 2. He must also "visit every precinct at least once a year Page 396 U. S. 323 to enable the jury commission to properly perform the duties required of it. . . ." Ibid. [Footnote 1] Once the clerk submits his list of names, the commission is under a duty to prepare a jury roll and jury box containing the names of all qualified, nonexempt citizens in the county, §§ 20, 24, who are"generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment. . . ."§ 21. [Footnote 2] Page 396 U. S. 324A three-judge District Court, convened pursuant to 28 U.S.C. §§ 2281 and 2284, conducted an extensive evidentiary hearing on the appellants' complaint. The record fully supports the trial court's conclusion, set out in its detailed opinion, that the jury selection process as it actually operated in Greene County at the outset of this litigation departed from the statutory mandate in several respects:"The clerk does not obtain the names of all potentially eligible jurors as provided by § 18, in fact, was not aware that the statute directed that this be done, and knew of no way in which he could do it. The starting point each year is last year's roll. Everyone thereon is considered to be qualified, and remains on the roll unless he dies or moves away (or, presumably, is convicted of a felony). New names are added to the old roll. Almost all of the work of the commission is devoted to securing names of persons suggested for consideration as new jurors. The clerk performs some duties directed toward securing such names. This is a part-time task, done without compensation, in spare time available from performance of her duties as clerk of the Circuit Court. She uses voter lists, but not the tax assessor's lists. Telephone directories for some of the communities are referred to, city directories not at all, since Greene County is largely rural.""The clerk goes into each of the eleven beats or precincts annually, usually one time. Her trips out into the county for this purpose never consume a full day. At various places in the county, she talks with persons she knows and secures suggested names. She is acquainted with a good many Negroes, but very few 'out in the county.' She does not know the reputation of most of the Negroes in the county. Because of her duties as clerk of the Circuit Court, Page 396 U. S. 325 the names and reputations of Negroes most familiar to her are those who have been convicted of crime or have been 'in trouble.' She does not know any Negro ministers, does not seek names from any Negro or white churches or fraternal organizations. She obtains some names from the county's Negro deputy sheriff.""The commission members also secure some names, but on a basis no more regular or formalized than the efforts of the clerk. The commissioners 'ask around,' each usually in the area of the county where he resides, and secure a few names, chiefly from white persons. Some of the names are obtained from public officials, substantially all of whom are white.""One commissioner testified that he asked for names and that, if people didn't give him names he could not submit them. He accepts pay for one day's work each year, stating that he does not have a lot of time to put on jury commission work. . . . He takes the word of those who recommend people, checks no further and sees no need to check further, considering that he is to rely on the judgment of others. He makes no inquiry or determination whether persons suggested can read or write. . . . Neither commissioners nor clerk have any social contacts with Negroes or belong to any of the same organizations.""Through its yearly meeting in August, 1966, the jury commission met once each year, usually for one day, sometimes for two, to prepare a new roll. New names presented by clerk and commissioners, and some sent in by letter, were considered. The clerk checked them against court records of felony convictions. New names decided upon as acceptable were added to the old roll. The names of those Page 396 U. S. 326 on the old roll who had died or moved away were removed.""At the August, 1966, meeting one commissioner was new, and submitted no names, white or Negro, and merely did clerical work at the meeting. Another had been ill, and able to seek names little if at all. The third could remember one Negro name that he suggested. This commissioner brought the name, or names, he proposed on a trade bill he had received, and after so using it threw it away. All lists of suggested names were destroyed. As a result of that meeting the number of Negro names on the jury roll increased by 37. . . . Approximately 32 of those names came from lists given the clerk or commissioners by others. The testimony is that, at the one-day August meeting, the entire voter list was scanned. It contained the names of around 2,000 Negroes.""Thus, in practice, through the August, 1966, meeting, the system operated exactly in reverse from what the state statutes contemplate. It produced a small group of individually selected or recommended names for consideration. Those potentially qualified but whose names were never focused upon were given no consideration. Those who prepared the roll and administered the system were white, and with limited means of contact with the Negro community. Though they recognized that the most pertinent information as to which Negroes do, and which do not, meet the statutory qualifications comes from Negroes, there was no meaningful procedure by which Negro names were fed into the machinery for consideration or effectual means of communication by which the knowledge possessed by the Negro community was utilized. In practice, most of the work of the commission has been devoted Page 396 U. S. 327 to the function of securing names to be considered. Once a name has come up for consideration, it usually has been added to the rolls unless that person has been convicted of a felony. The function of applying the statutory criteria has been carried out only in part, or by accepting as conclusive the judgment of others, and for some criteria not at all. [Footnote 3]"The District Court's further findings demonstrated the impact of the selection process on the racial composition of Greene County juries. According to the 1960 census, Negroes composed three-fourths of the county's population. Yet, from 1961 to 1963, the largest number of Negroes ever to appear on the jury list was about 7% of the total. The court noted that, in 1964, a single-judge federal district court had entered a declaratory judgment setting forth the duties of the jury commissioners and their clerk under Alabama law, instructing them not to pursue a course of conduct operating to discriminate against Negroes, forbidding them to employ numerical or proportional limitations with respect to race, and directing an examination of the jury roll for compliance with the judgment. [Footnote 4] Thereafter, the situation had improved only marginally. In 1966, only 82 Negroes appeared among the 471 citizens listed on the jury roll; 50% of the white male population of the county found its way to the jury roll in that year, but only 4% of the Negro. [Footnote 5] In 1967, following a statutory amendment, the commission added women to the jury roll. Upon the expansion of the list, Negroes composed 388 of the Page 396 U. S. 328 1,198 potential jurors -- still only 32% of the total, even though the 1967 population of the county was estimated to be about 65% Negro. [Footnote 6]The District Court found that "there is invalid exclusion of Negroes on a racially discriminatory basis." It enjoined the jury commissioners and their clerk from systematically excluding Negroes from the jury roll, and directed them "to take prompt action to compile a jury list . . . in accordance with the laws of Alabama and . . . constitutional principles"; to file a jury list so compiled within 60 days, showing the information required by Alabama law for each potential juror, together with his race and, if available, his age, and to submit a report setting forth the procedure by which the commission had compiled the list and applied the statutory qualifications and exclusions.The court declined, however, either to enjoin the enforcement of the challenged Alabama statutory provisions or to direct the Governor to appoint Negroes to the jury commission. From these rulings the appellants took a direct appeal to this Court pursuant to 28 U.S.C. § 1253. We noted probable jurisdiction. 393 U.S. 1115. [Footnote 7] Page 396 U. S. 329IThis is the first case to reach the Court in which an attack upon alleged racial discrimination in choosing juries has been made by plaintiffs seeking affirmative relief, rather than by defendants challenging judgments of criminal conviction on the ground of systematic exclusion of Negroes from the grand juries that indicted them, [Footnote 8] the trial juries that found them guilty, [Footnote 9] or both. [Footnote 10] The District Court found no barrier to such a suit, and neither do we. Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion. [Footnote 11] Page 396 U. S. 330 Surely there is no jurisdictional or procedural bar to an attack upon systematic jury discrimination by way of a civil suit such as the one brought here. The federal claim is bottomed on the simple proposition that the State, acting through its agents, has refused to consider the appellants for jury service solely because of their race. Whether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise. [Footnote 12] Once the State chooses to provide grand and petit juries, whether or not constitutionally required to do so, [Footnote 13] it must hew to federal constitutional criteria in ensuring that the selection of membership is free of racial bias. [Footnote 14] The exclusion of Negroes from jury service because of their race is "practically a brand upon them . . an assertion of their inferiority. . . ." [Footnote 15] That kind of discrimination contravenes the very idea of a jury -- "a body truly representative of the community," [Footnote 16] composed of"the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. [Footnote 17] "Page 396 U. S. 331IIOn the merits, the appellants argue that the District Court erred in refusing to invalidate the Alabama statute requiring the jury commissioners to select for jury service those persons who are"generally reputed to be honest and intelligent and . . . esteemed in the community for their integrity, good character and sound judgment. . . ."Ala.Code, Tit. 30, § 21 (Supp. 1967). The appellants say § 21 is unconstitutional on its face because, by leaving Alabama's jury officials at large in their selection of potential jurors, it provides them an opportunity to discriminate on the basis of race -- an opportunity of which they have, in fact, taken advantage. [Footnote 18] Specifically, the charge is that § 21 leaves the commissioners free to give effect to their belief that Negroes are generally inferior to white people, and so less likely to measure up to the statutory requirements; [Footnote 19] to the commissioners' fear that white people in the community will suffer if Negroes are accorded the opportunity to exercise the power of their majority; [Footnote 20] and to the commissioners' preference for Negroes who tend not to assert their right to legal and social equality. [Footnote 21] The appellants say the injunctive relief granted by the District Court is inadequate because the history of jury selection in Greene County demonstrates a practice of Page 396 U. S. 332 discrimination persisting despite the federal court's prior grant of declaratory relief. Moreover, so long as § 21 remains the law, it is argued, Negro citizens throughout Alabama will be obliged to attack the jury selection process on a county-by-county basis, thereby imposing a heavy burden on already congested court dockets and delaying the day that Alabama will be free of discriminatory jury selection. [Footnote 22]While there is force in what the appellants say, we cannot agree that § 21 is irredeemably invalid on its face. It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. [Footnote 23] The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, [Footnote 24] and to those possessing good intelligence, sound judgment, and fair character. [Footnote 25]"Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population Page 396 U. S. 333 suitable in character and intelligence for that civic duty. [Footnote 26]"Statutory provisions such a those found in § 21 are not peculiar to Alabama, or to any particular region of the country. Nearly every State requires that its jurors be citizens of the United States, [Footnote 27] residents of the locality, [Footnote 28] of a specified minimum age, [Footnote 29] and able to understand English. [Footnote 30] Many of the State require that juror be of "good character" or the like; [Footnote 31] some, that they be "intelligent" [Footnote 32] or "well informed." [Footnote 33] Page 396 U. S. 334Provisions of similar breadth have been challenged here and sustained before. In Franklin v. South Carolina, [Footnote 34] the Court rejected a similar attack upon a jury selection statute alleged by the plaintiff in error to have conferred arbitrary power upon the jury commissioners. The pertinent law there provided that the commissioners should Page 396 U. S. 335"prepare a list of such qualified electors under the provisions of the constitution, between the ages of twenty-one and sixty-five years, and of good moral character, of their respective counties as they may deem otherwise well qualified to serve as jurors, being persons of sound judgment and free from all legal exceptions, which list shall include not less than one from every three of such qualified electors. . . ."In upholding the validity of these standards, the Court said:"We do not think there is anything in this provision of the statute having the effect to deny rights secured by the Federal Constitution. . . . There is nothing in this statute which discriminates against individuals on account of race or color or previous condition, or which subjects such persons to any other or different treatment than other electors who may be qualified to serve as jurors. The statute simply provides for an exercise of judgment in attempting to secure competent jurors of proper qualifications. [Footnote 35]"Again, in Smith v. Texas. [Footnote 36] we dealt with a statute leaving a wide range of choice to the commissioners. [Footnote 37] Yet we expressly upheld the validity of the law. The statutory scheme was not, in itself, unfair; it was "capable of being carried out with no racial discrimination whatsoever." [Footnote 38]No less can be said of the statutory standards attacked in the present case. Despite the overwhelming proof the appellants have adduced in support of their claim Page 396 U. S. 336 that the jury clerk and commissioners have abused the discretion that Alabama law confers on them in the preparation of the jury roll, we cannot say that § 21 is necessarily and under all circumstances invalid. The provision is devoid of any mention of race. [Footnote 39] Its antecedents are of ancient vintage, [Footnote 40] and there is no suggestion that the law was originally adopted or subsequently carried forward for the purpose of fostering racial discrimination. [Footnote 41] The federal courts are not incompetent to fashion detailed and stringent injunctive relief that will remedy any discriminatory application of the statute Page 396 U. S. 337 at the hands of the officials empowered to administer it. [Footnote 42] In sum, we cannot conclude, even on so compelling a record as that, before us, that the guarantees of the Constitution can be secured only by the total invalidation of the challenged provisions of § 21.IIIThe appellants also attack the composition of the Greene County jury commission. They urge that the record demonstrates the causal relation between the conceded absence of Negroes from the commission for at least the past decade and the systematic racial discrimination in the selection of potential jurors established before the District Court. It is argued that even the best-intentioned white jury commissioners are unlikely to know many Negroes who satisfy the statutory qualifications, and that white jury officials in Alabama generally regard Negroes as incapable of satisfying the prerequisites for jury membership. Having shown a course of continuing and consistent disregard of statutory and constitutional standards on the part of the Greene County jury commissioners and the clerk, the appellants contend that, if the discretionary provisions of § 21 are to remain the law, it is essential that the jury commission be representative of the community in which it functions, particularly in an area such as Greene County, where Negroes constitute a majority of the population. The District Court erred, the appellants say, in not ordering the Governor of Alabama to appoint Negroes to the Greene County jury commission. Page 396 U. S. 338The claim was not presented to the District Court in precisely these terms. There, the appellants did not urge that white commissioners could not perform their statutory task in an unbiased manner in a predominantly Negro county. Rather, they contended that the Governor of Alabama had deliberately appointed a segregated jury commission in exercising the discretion conferred upon him by statute. The argument, in short, went to the alleged racial discrimination in the appointment of the commission, not to the biases inherent in a commission composed entirely of white people, without regard to claimed discriminatory selection by the Governor.For present purposes, we may assume that the State may no more exclude Negroes from service on the jury commission because of their race than from the juries themselves. But the District Court found the appellants had shown only that, for many years, the jury commission had been composed entirely of white men, and concluded that, without more, the appellants' attack failed for want of proof. We think that ruling was correct. Quite apart from the problems that would be involved in a federal court's ordering the Governor of a State to exercise his discretion in a particular way, we cannot say on this record that the absence of Negroes from the Greene County jury commission amounted, in itself, to a prima facie showing of discriminatory exclusion. The testimony before the District Court indicated that the Governor had appointed no Negroes to the Greene County commission during the 12 years preceding the commencement of suit. But the appellants' trial counsel conceded that he could not prove his charge of discriminatory selection without the testimony of the Governor. [Footnote 43] Whether or not such a concession was necessary, Page 396 U. S. 339 the statement may well have led counsel for the appellees to conclude that they were not obliged to produce witnesses on the State's behalf with respect to this phase of the appellants' case.Nor can we uphold the appellants' present contention that, apart from the question of discrimination in the composition of the jury commission, the absence of Negroes from the commission compelled the District Court to order the appointment of Negro commissioners. The appellants are no more entitled to proportional representation by race on the jury commission than on any particular grand or petit jury. [Footnote 44]IVThere remains the question of the propriety of the relief afforded the appellants by the District Court. The court, as we have noted, enjoined the jury clerk and commissioners from systematically excluding Negroes from the Greene County jury roll, and directed them "to take prompt action to compile a jury list . . . in accordance with the laws of Alabama and . . . constitutional principles. . . ." [Footnote 45] Pursuant to the court's order, the commission submitted a new jury roll, dated November 6, 1968. The clerk stated she had been into each of the precincts of Greene County and had contacted people of both races by personal visit, letter, or telephone; with their recommendations and with the help of the voting list and telephone directory, the commission compiled Page 396 U. S. 340 a new jury roll. Whether this roll complies with the terms of the District Court's decree is a matter for that court to consider in the first instance. The court properly recognized that other and further relief might be appropriate. For that court"has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past, as well as bar like discrimination in the future. [Footnote 46]"Accordingly, the judgment below is affirmed, without prejudice to the right of the appellants to seek modification of the District Court's decree as circumstances may require.It is so ordered

U.S. Supreme CourtCarter v. Jury Commission of Greene County, 396 U.S. 320 (1970)Carter v. Jury Commission of Greene CountyNo. 30Argued October 21, 1969Decided January 19, 1970396 U.S. 320SyllabusAppellants, Negro citizens of Greene County, Alabama, who alleged that they were qualified to serve as jurors and desired to serve, but had never been summoned, brought this action seeking (1) a declaration that qualified Negroes were systematically excluded from Greene County grand and petit juries, that the Alabama jury selection statutes were unconstitutional on their face and as applied, and that the jury commission was a deliberately segregated agency; (2) a permanent injunction forbidding the systematic exclusion of Negroes and requiring that all eligible Negroes be placed on the jury roll, and (3) an order vacating the jury commissioners' appointments and compelling the Governor to select new members without racial discrimination. The three-judge District Court found that, although the 1960 census showed that three-fourths of the county's population were Negroes, the largest number of Negroes on the jury list from 1961 to 1963 was about 7% of the total. Following a 1964 declaratory judgment decree and a 1967 statutory amendment adding women to the list, the percentage of Negroes on the jury roll increased to 32%, but the 1967 county population was about 65% Negro. The jury commissioners appointed by the Governor for the past 12 years were white. The District Court found an "invalid exclusion of Negroes on a racially discriminatory basis," and directed the jury commissioners and their clerk "to take prompt action to compile a jury list . . . in accordance with the laws of Alabama and . . . constitutional principles," and to submit a compliance report. The court declined to enjoin the enforcement of the challenged statutes or to direct the Governor to appoint Negroes to the jury commission, and it is from these rulings that appellants took a direct appeal.Held:1. There is no jurisdictional or procedural bar to an attack upon systematic jury discrimination by way of a civil suit such as this. Pp. 396 U. S. 329-330.2. The provision of the Alabama Code (Title 30, § 21) requiring the jury commissioners to select for jury service those persons Page 396 U. S. 321 who are"generally reputed to be honest and intelligent. . . and . . . esteemed in the community for their integrity, good character and sound judgment. . ."is not unconstitutional on its face. Pp. 396 U. S. 331-337.(a) The Constitution does not forbid the States to establish relevant qualifications for jurors, and most States have enacted similar juror requirements. Pp. 396 U. S. 332-335.(b) Although here the jury commissioners and their clerk abused the statutory discretion in the preparation of the jury roll, that does not mean that § 21 is necessarily and under all circumstances invalid. The statute was "capable of being carried out with no racial discrimination whatsoever." Smith v. Texas, 311 U. S. 128, 311 U. S. 130-131. Pp. 396 U. S. 334-337.3. Apart from the problems involved in a federal court's ordering a Governor to exercise his discretion in a specific way, it cannot be said on the record here that the absence of Negroes from the jury commission amounted, in itself, to a prima facie showing of discriminatory exclusion. Nor can appellants' present contention that the absence of Negroes from the commission compelled the District Court to order the appointment of Negro commissioners be upheld, as appellants are no more entitled to proportional representation by race on the jury commission than on any particular grand or petit jury. Pp. 396 U. S. 337-339.4. The District Court must consider whether the new jury roll prepared pursuant to its order complies therewith and whether other and further relief is appropriate. Pp. 396 U. S. 339-340.298 F. Supp. 181, affirmed.

1991_90-6861

IWhile he was a prisoner in the federal penitentiary at Leavenworth, petitioner John J. McCarthy filed a pro se complaint in the United States District Court for the District of Kansas against four prison employees: the hospital administrator, the chief psychologist, another psychologist, and a physician. McCarthy alleged that respondents had violated his constitutional rights under the Eighth Amendment by their deliberate indifference to his needs and medical condition resulting from a back operation and a history of psychiatric problems. On the first page of his complaint, he wrote:"This Complaint seeks Money Damages Only." App.7.The District Court dismissed the complaint on the ground that petitioner had failed to exhaust prison administrative remedies. Id., at 12. Under 28 CFR pt. 542 (1991), setting forth the general "Administrative Remedy Procedure for Inmates" at federal correctional institutions, a prisoner may "seek formal review of a complaint which relates to any aspect of his imprisonment." § 542.10.2 When an inmate files a complaint or appeal, the responsible officials are directed to acknowledge the filing with a "signed receipt" which is returned to the inmate, to "[c]onduct an investigation," and to "[r]espond to and sign all complaints or appeals." §§ 542.11(a)(2) to (4). The general grievance regulations do not provide for any kind of hearing or for the granting of any particular type of relief.1984) (exhaustion not required), and Goar v. Civiletti, 688 F.2d 27 (CA6 1982) (same).2 Certain categories of filings, however, "will not be accepted" under the general procedure. These include, among others, "tort claims." See 28 CFR § 542.12 (1991). The Bureau of Prisons has interpreted this "tort claims" exception to include claims under the Federal Tort Claims Act, but not constitutional claims for relief recognized under the Bivens case. Brief for Respondents 3, n. 1. Claims under the Federal Tort Claims Act are governed by a separate administrative procedure. See §§ 543.30 to 543.32.143To promote efficient dispute resolution, the procedure includes rapid filing and response timetables. An inmate first seeks informal resolution of his claim by consulting prison personnel. § 542.13(a). If this informal effort fails, the prisoner "may file a formal written complaint on the appropriate form, within fifteen (15) calendar days of the date on which the basis of the complaint occurred." § 542.13(b). Should the warden fail to respond to the inmate's satisfaction within 15 days, the inmate has 20 days to appeal to the Bureau's Regional Director, who has 30 days to respond. If the inmate still remains unsatisfied, he has 30 days to make a final appeal to the Bureau's general counsel, who has another 30 days to respond. §§ 542.14 and 542.15. If the inmate can demonstrate a "valid reason for delay," he "shall be allowed" an extension of any of these time periods for filing. § 542.13(b).Petitioner McCarthy filed with the District Court a motion for reconsideration under Federal Rule of Civil Procedure 60(b), arguing that he was not required to exhaust his administrative remedies, because he sought only money damages which, he claimed, the Bureau could not provide.3 1 Record, Exh. 7. The court denied the motion. App. 14.The Court of Appeals, in affirming, observed that because Bivens actions are a creation of the judiciary, the courts may impose reasonable conditions upon their filing. 914 F. 2d, at 1412. The exhaustion rule, the court reasoned, "is not keyed to the type of relief sought, but to the need for prelim-3 McCarthy actually had initiated a grievance prior to filing his complaint in the District Court. Brief for Petitioner 5, n. 7. But he did not exhaust the procedures at that time and, in any event, he concedes that that grievance related to his request for a private cell and not to the medical issues at the heart of his federal complaint. After his initial grievance was dismissed, he filed a grievance with respect to the medical issues. It was accepted, even though it was late, but was denied by the warden on the merits. Tr. of Oral Arg. 38. McCarthy's subsequent appeal to the Bureau's regional office was rejected because it was filed late. Id., at 16; Brief for Petitioner 5, n. 7.144inary fact-finding" to determine "whether there is a possible Bivens cause of action." Ibid. Accordingly," '[a]lthough the administrative apparatus could not award money damages ... , administrative consideration of the possibility of corrective action and a record would have aided a court in measuring liability and determining the extent of the damages.'" Ibid., quoting Goar v. Civiletti, 688 F.2d 27, 29 (CA6 1982) (emphasis in original). Exhaustion of the general grievance procedure was required notwithstanding the fact that McCarthy's request was solely for money damages.IIThe doctrine of exhaustion of administrative remedies is one among related doctrines-including abstention, finality, and ripeness-that govern the timing of federal-court decisionmaking. Of "paramount importance" to any exhaustion inquiry is congressional intent. Patsy v. Board of Regents of Florida, 457 U. S. 496, 501 (1982). Where Congress specifically mandates, exhaustion is required. Coit Independence Joint Venture v. FSLIC, 489 U. S. 561, 579 (1989); Patsy, 457 U. S., at 502, n. 4. But where Congress has not clearly required exhaustion, sound judicial discretion governs. McGee v. United States, 402 U. S. 479, 483, n. 6 (1971). See also Patsy, 457 U. S., at 518 (WHITE, J., concurring in part) ("[E]xhaustion is 'a rule of judicial administration,' ... and unless Congress directs otherwise, rightfully subject to crafting by judges"). Nevertheless, even in this field of judicial discretion, 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. Id., at 501-502, and n. 4.AThis Court long has acknowledged the general rule that parties exhaust prescribed administrative remedies before145seeking relief from the federal courts. See, e. g., Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, 50-51, and n. 9 (1938) (discussing cases as far back as 1898). Exhaustion is required because it serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency.As to the first of these purposes, the exhaustion doctrine recognizes the notion, grounded in deference to Congress' delegation of authority to coordinate branches of Government, that agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer. Exhaustion concerns apply with particular force when the action under review involves exercise of the agency's discretionary power or when the agency proceedings in question allow the agency to apply its special expertise. McKart v. United States, 395 U. S. 185, 194 (1969). See also Bowen v. City of New York, 476 U. S. 467, 484 (1986). The exhaustion doctrine also acknowledges the commonsense notion of dispute resolution that an agency ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court. Correlatively, exhaustion principles apply with special force when "frequent and deliberate flouting of administrative processes" could weaken an agency's effectiveness by encouraging disregard of its procedures. McKart v. United States, 395 U. S., at 195.As to the second of the purposes, exhaustion promotes judicial efficiency in at least two ways. When an agency has the opportunity to correct its own errors, a judicial controversy may well be mooted, or at least piecemeal appeals may be avoided. See, e. g., Parisi v. Davidson, 405 U. S. 34, 37 (1972); McKart v. United States, 395 U. S., at 195. And even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context. See, e. g., Weinberger146v. Salfi, 422 U. S. 749, 765 (1975) (exhaustion may allow agency "to compile a record which is adequate for judicial review").BNotwithstanding these substantial institutional interests, federal courts are vested with a "virtually unflagging obligation" to exercise the jurisdiction given them. Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817-818 (1976). "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Accordingly, this Court has declined to require exhaustion in some circumstances even where administrative and judicial interests would counsel otherwise. In determining whether exhaustion is required, federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion. "[A]dministrative remedies need not be pursued if the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." West v. Bergland, 611 F.2d 710, 715 (CA8 1979), cert. denied, 449 U. S. 821 (1980). Application of this balancing principle is "intensely practical," Bowen v. City of New York, 476 U. S., at 484, citing Mathews v. Eldridge, 424 U. S. 319, 331, n. 11 (1976), because attention is directed to both the nature of the claim presented and the characteristics of the particular administrative procedure provided.CThis Court's precedents have recognized at least three broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion. First, requiring resort to the administrative remedy may occasion undue prejudice to subsequent assertion147of a court action. Such prejudice may result, for example, from an unreasonable or indefinite timeframe for administrative action. See Gibson v. Berryhill, 411 U. S. 564, 575, n. 14 (1973) (administrative remedy deemed inadequate "[m]ost often ... because of delay by the agency"). See also Coit Independence Joint Venture v. FSLIC, 489 U. S., at 587 ("Because the Bank Board's regulations do not place a reasonable time limit on FSLIC's consideration of claims, Coit cannot be required to exhaust those procedures"); Walker v. Southern R. Co., 385 U. S. 196, 198 (1966) (possible delay of 10 years in administrative proceedings makes exhaustion unnecessary); Smith v. Illinois Bell Telephone Co., 270 U. S. 587, 591-592 (1926) (claimant "is not required indefinitely to await a decision of the rate-making tribunal before applying to a federal court for equitable relief"). Even where the administrative decisionmaking schedule is otherwise reasonable and definite, a particular plaintiff may suffer irreparable harm if unable to secure immediate judicial consideration of his claim. Bowen v. City of New York, 476 U. S., at 483 (disabilitybenefit claimants "would be irreparably injured were the exhaustion requirement now enforced against them"); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, 773 (1947) ("impending irreparable injury flowing from delay incident to following the prescribed procedure" may contribute to finding that exhaustion is not required). By the same token, exhaustion principles apply with less force when an individual's failure to exhaust may preclude a defense to criminal liability. Moore v. East Cleveland, 431 U. S. 494, 497, n. 5 (1977) (plurality opinion); McKart v. United States, 395 U. S., at 197.Second, an administrative remedy may be inadequate "because of some doubt as to whether the agency was empowered to grant effective relief." Gibson v. Berryhill, 411 U. S., at 575, n. 14. For example, an agency, as a preliminary matter, may be unable to consider whether to grant relief because it lacks institutional competence to resolve the par-148ticular type of issue presented, such as the constitutionality of a statute. See, e. g., Moore v. East Cleveland, 431 U. S., at 497, n. 5; Mathews v. Diaz, 426 U. S. 67, 76 (1976). In a similar vein, exhaustion has not been required where the challenge is to the adequacy of the agency procedure itself, such that "'the question of the adequacy of the administrative remedy ... [is] for all practical purposes identical with the merits of [the plaintiff's] lawsuit.'" Barry v. Barchi, 443 U. S. 55, 63, n. 10 (1979) (quoting Gibson v. Berryhill, 411 U. S., at 575). Alternatively, an agency may be competent to adjudicate the issue presented, but still lack authority to grant the type of relief requested. McNeese v. Board of Ed. for Community Unit School Dist. 187, 373 U. S. 668, 675 (1963) (students seeking to integrate public school need not file complaint with school superintendent because the "Superintendent himself apparently has no power to order corrective action" except to request the Attorney General to bring suit); Montana National Bank of Billings v. Yellowstone County, 276 U. S. 499, 505 (1928) (taxpayer seeking refund not required to exhaust where "any such application [would have been] utterly futile since the county board of equalization was powerless to grant any appropriate relief" in face of prior controlling court decision).Third, an administrative remedy may be inadequate where the administrative body is shown to be biased or has otherwise predetermined the issue before it. Gibson v. Berryhill, 411 U. S., at 575, n. 14; Houghton v. Shafer, 392 U. S. 639, 640 (1968) (in view of Attorney General's submission that the challenged rules of the prison were "validly and correctly applied to petitioner," requiring administrative review through a process culminating with the Attorney General "would be to demand a futile act"); Association of National Advertisers, Inc. v. FTC, 201 U. S. App. D. C. 165, 170-171, 627 F.2d 1151, 1156-1157 (1979) (bias of Federal Trade Commission chairman), cert. denied, 447 U. S. 921 (1980). See also Patsy v. Florida International University,149634 F.2d 900, 912-913 (CA5 1981) (en bane) (administrative procedures must "not be used to harass or otherwise discourage those with legitimate claims"), rev'd on other grounds sub nom. Patsy v. Board of Regents of Florida, 457 U. S. 496 (1982).IIIIn light of these general principles, we conclude that petitioner McCarthy need not have exhausted his constitutional claim for money damages. As a preliminary matter, we find that Congress has not meaningfully addressed the appropriateness of requiring exhaustion in this context. Although respondents' interests are significant, we are left with a firm conviction that, given the type of claim McCarthy raises and the particular characteristics of the Bureau's general grievance procedure, McCarthy's individual interests outweigh countervailing institutional interests favoring exhaustion.ATurning first to congressional intent, we note that the general grievance procedure was neither enacted nor mandated by Congress. Respondents, however, urge that Congress, in effect, has acted to require exhaustion by delegating power to the Attorney General and the Bureau of Prisons to control and manage the federal prison system. See 18 U. S. C. §§ 4001(b) and 4042. Brief for Respondents 3, 16; Tr. of Oral Arg. 41-42. We think respondents confuse what Congress could be claimed to allow by implication with what Congress affirmatively has requested or required. By delegating authority, in the most general of terms, to the Bureau to administer the federal prison system, Congress cannot be said to have spoken to the particular issue whether prisoners in the custody of the Bureau should have direct access to the federal courts.Respondents next argue that Congress, by enactment of § 7 of the Civil Rights of Institutionalized Persons Act, 94 Stat. 352, 42 U. S. C. § 1997e, has articulated a policy favoring150exhaustion of the prison grievance procedure prior to the filing of a constitutional claim against prison officials. Section 1997e imposes a limited exhaustion requirement for a claim brought by a state prisoner under Rev. Stat. § 1979, 42 U. S. C. § 1983, provided that the underlying state prison administrative remedy meets specified standards. See Patsy v. Board of Regents of Florida, 457 U. S., at 507-512. Section 1997e has no direct application in this case, because at issue here is a Bivens claim by a federal prisoner against federal prison officials. We find it significant that Congress, in enacting § 1997e, stopped short of imposing a parallel requirement in the federal prison context.Section 1997e is not only inapplicable to Bivens claims, but-by its own terms-cuts against respondents' claim that the particular procedure now at issue need be exhausted. First, unlike the rule of exhaustion proposed here, § 1997e does not authorize dismissal of an action for failure to exhaust. Instead, it provides that the action is to be stayed for a maximum of 90 days. See § 1997e(a)(1). Second, § 1997e does not mechanically require exhaustion in every case where an acceptable state procedure is in place. Rather, it directs federal courts to abstain "if the court believes that such a [waiting] requirement would be appropriate and in the interests of justice." § 1997e(a)(1). In other words, if an inmate fails to meet filing deadlines under an administrative scheme, a court has ample discretion to determine that exhaustion nonetheless should be forgone. Third, in contrast to the absence of any provision for the award of money damages under the Bureau's general grievance procedure, the statute conditions exhaustion on the existence of "effective administrative remedies."4 It is diffi-4 The Conference Committee Report states: "It is the intent of the Congress that the court not find such a requirement [of exhaustion] appropriate in those situations in which the action brought ... raises issues151cult to see why a stricter rule of exhaustion than Congress itself has required in the state prison context should apply in the federal prison context.Respondents also argue that requiring exhaustion is appropriate because Bivens relief gives way when necessary to accommodate either the effective functioning of Government or an articulated congressional policy. Brief for Respondents 15. We have recognized that a Bivens remedy does not lie in two situations: (1) where Congress has provided an equally effective alternative remedy and declared it to be a substitute for recovery under the Constitution, and (2) where, in the absence of affirmative action by Congress, special factors counsel hesitation. Carlson v. Green, 446 U. S. 14, 18-19 (1980). As to the first exception, Congress did not create the remedial scheme at issue here and that scheme, in any case, as noted above, cannot be considered to be equally effective with respect to a claim for money damages. As to the second exception, respondents appear to confuse the presence of special factors with any factors counseling hesitation. In Carlson, the Court held that "special factors" do not free prison officials from Bivens liability, because prison officials do not enjoy an independent status in our constitutional scheme, nor are they likely to be unduly inhibited in the performance of their duties by the assertion of a Bivens claim. Carlson v. Green, 446 U. S., at 19.Interpreting the "special factors" exception in Schweikerwhich cannot, in reasonable probability, be resolved by the grievance resolution system .... " H. R. Conf. Rep. No. 96-897, p. 15 (1980).The Attorney General, charged under the statute with certifying the adequacy of state administrative remedial schemes, has provided by regulation: "The [state] grievance procedure shall afford a successful grievant a meaningful remedy." 28 CFR §40.6 (1991) (emphasis added). At the time of promulgating these regulations, the Department of Justice observed on the public record: "Presumably, where monetary relief was the sole adequate remedy and could not be obtained through a grievance procedure, exhaustion would not be appropriate." 46 Fed. Reg. 3845 (1981).152u. S. 367 (1983), the Court found the Bivens remedy displaced because Congress had legislated an elaborate and comprehensive remedial scheme. Schweiker, 487 U. S., at 425; Bush, 462 U. S., at 388. "When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies." Schweiker, 487 U. S., at 423. Here Congress has enacted nothing.BBecause Congress has not required exhaustion of a federal prisoner's Bivens claim, we turn to an evaluation of the individual and institutional interests at stake in this case. The general grievance procedure heavily burdens the individual interests of the petitioning inmate in two ways. First, the procedure imposes short, successive filing deadlines that create a high risk of forfeiture of a claim for failure to comply. Second, the administrative "remedy" does not authorize an award of monetary damages-the only relief requested by McCarthy in this action. The combination of these features means that the prisoner seeking only money damages has everything to lose and nothing to gain from being required to exhaust his claim under the internal grievance procedure.The filing deadlines for the grievance procedure require an inmate, within 15 days of the precipitating incident, not only to attempt to resolve his grievance informally but also to file a formal written complaint with the prison warden. 28 CFR § 542.13 (1991). Then, he must successively hurdle 20-day and 30-day deadlines to advance to the end of the grievance process. § 542.15. Other than the Bureau's general and quite proper interest in having early notice of any claim, we have not been apprised of any urgency or exigency justifying this timetable. Cf. Yakus v. United States, 321 U. S. 414, 435 (1944) ("The sixty days' period allowed for protest of the Administrator's regulations cannot be said to be153unreasonably short in view of the urgency and exigencies of wartime price regulation"). As a practical matter, the filing deadlines, of course, may pose little difficulty for the knowledgeable inmate accustomed to grievances and court actions. But they are a likely trap for the inexperienced and unwary inmate, ordinarily indigent and unrepresented by counsel, with a substantial claim.Respondents argue that the deadlines are not jurisdictional and may be extended for any "valid" reason. See 28 CFR §§ 542.13(b) and 542.15 (1991). Yet the regulations do not elaborate upon what a "valid" reason is. Moreover, it appears that prison officials-perhaps the very officials subject to suit-are charged with determining what is a "valid" reason.All in all, these deadlines require a good deal of an inmate at the peril of forfeiting his claim for money damages. The "first" of "the principles that necessarily frame our analysis of prisoners' constitutional claims" is that "federal courts must take cognizance of the valid constitutional claims of prison inmates." Turner v. Safley, 482 U. S. 78, 84 (1987). Because a prisoner ordinarily is divested of the privilege to vote, the right to file a court action might be said to be his remaining most "fundamental political right, because preservative of all rights." Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886). The rapid filing deadlines counsel strongly against exhaustion as a prerequisite to the filing of a federalcourt action.55 Petitioner concedes that if his complaint contained a prayer for injunctive relief, exhaustion principles would apply differently. Brief for Petitioner 20, n. 20. Were injunctive relief sought, the grievance procedure probably would be capable of producing the type of corrective action desired. Additionally, because of the continuing nature of conduct subject to injunctive relief, the short filing deadlines would pose less difficulty because the limitations period would be triggered anew by ongoing conduct.154As we have noted, the grievance procedure does not include any mention of the award of monetary relief. Respondents argue that this should not matter, because "in most cases there are other things that the inmate wants." Tr. of Oral Arg. 30. This may be true in some instances. But we cannot presume, as a general matter, that when a litigant has deliberately forgone any claim for injunctive relief and has singled out discrete past wrongs, specifically requesting monetary compensation only, that he is likely interested in "other things." The Bureau, in any case, is always free to offer an inmate administrative relief in return for withdrawal of his lawsuit. We conclude that the absence of any monetary remedy in the grievance procedure also weighs heavily against imposing an exhaustion requirement.In the alternative, respondents argue that, despite the absence of any provision in the general grievance procedure for the award of money damages, such damages in fact are available for most prisoners asserting Bivens claims. As to Bivens claims that could have been brought under the Federal Tort Claims Act (FTCA),6 respondents contend that a grievance asking for money damages can be "converted" by prison officials to a FTCA claim for which prison officials are au-6 Respondents contend that Bivens claims are almost always categorizable as FTCA claims, especially in view of the Attorney General's concession that corrections guards are "law enforcement" officers within the meaning of the exception to the intentional-tort exception of the FTCA. Tr. of Oral Arg. 41. As to those claims that are not categorizable as FTCA claims, respondents concede that the Bureau of Prisons has no authority to offer a monetary settlement. Id., at 40. Instead, they contend that the Department of Justice has a general settlement authority under the federal regulations that might be exercised to dispose of general grievance claims. 28 CFR § 50.15(c)(2) (1991). Nothing in the record indicates that this authority has ever been exercised to recompense a prisoner with a Bivens claim. Moreover, it is highly unlikely that a monetary settlement would be made in the course of an administrative proceeding, because the regulation provides that "[a]bsent exceptional circumstances" a monetary settlement will not be paid "before entry of an adverse verdict, judgment, or award." § 50.15(c)(3).155thorized, under 28 CFR § 543.30 (1991), to award money damages. This "conversion" authority does not appear in the regulations having to do with the grievance procedure, which raises substantial doubt that an inmate would have sufficient notice as to how his claim would be treated. In any event, respondents have not pointed to anything in the record showing that prison officials have a practice of converting a claim filed under the general grievance procedure to a claim under the FTCA procedure. We agree with petitioner that it is implausible to think that they do. The availability of a money damages remedy is, at best, uncertain, and the uncertainty of the administrative agency's authority to award relief counsels against requiring exhaustion. See Hillsborough v. Cromwell, 326 U. S. 620, 626 (1946); Union Pacific R. Co. v. Board ofComm'rs of Weld County, 247 U. S. 282, 287 (1918).We do not find the interests of the Bureau of Prisons to weigh heavily in favor of exhaustion in view of the remedial scheme and particular claim presented here. To be sure, the Bureau has a substantial interest in encouraging internal resolution of grievances and in preventing the undermining of its authority by unnecessary resort by prisoners to the federal courts. But other institutional concerns relevant to exhaustion analysis appear to weigh in hardly at all. The Bureau's alleged failure to render medical care implicates only tangentially its authority to carry out the control and management of the federal prisons. Furthermore, the Bureau does not bring to bear any special expertise on the type of issue presented for resolution here.The interests of judicial economy do not stand to be advanced substantially by the general grievance procedure. No formal factfindings are made. The paperwork generated by the grievance process might assist a court somewhat in ascertaining the facts underlying a prisoner's claim more quickly than if it has only a prisoner's complaint to review. But the grievance procedure does not create a formal factual156REHNQUIST, C. J., concurring in judgmentrecord of the type that can be relied on conclusively by a court for disposition of a prisoner's claim on the pleadings or at summary judgment without the aid of affidavits.CIn conclusion, we are struck by the absence of supporting material in the regulations, the record, or the briefs that the general grievance procedure here was crafted with any thought toward the principles of exhaustion of claims for money damages. The Attorney General's professed concern for internal dispute resolution has not translated itself into a more effective grievance procedure that might encourage the filing of an administrative complaint as opposed to a court action. Congress, of course, is free to design or require an appropriate administrative procedure for a prisoner to exhaust his claim for money damages. Even without further action by Congress, we do not foreclose the possibility that the Bureau itself may adopt an appropriate administrative procedure consistent with congressional intent.The judgment of the Court of Appeals is reversed.It is so ordered

OCTOBER TERM, 1991SyllabusMcCARTHY v. MADIGAN ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUITNo.90-6861. Argued December 9, 1991-Decided March 4,1992While a federal prisoner, petitioner McCarthy filed a damages action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that respondent prison officials had violated his Eighth Amendment rights by their deliberate indifference to his needs and medical condition resulting from a back operation and a history of psychiatric problems. The District Court dismissed his complaint on the ground that he had failed to exhaust the Federal Bureau of Prisons' administrative remedy procedure, which, inter alia, includes rapid filing and response timetables to promote efficient dispute resolution but does not provide for any kind of hearing or for the granting of any particular type of relief. The court then denied McCarthy's motion for reconsideration, rejecting his argument that exhaustion was not required because he sought only money damages, which the Bureau could not provide. The Court of Appeals affirmed.Held: Exhaustion of the Bureau of Prisons' administrative procedure is not required before a federal prisoner can initiate a Bivens action solely for money damages. Pp. 144-156.(a) Exhaustion serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency. Where Congress specifically mandates, exhaustion is required. Otherwise, the federal courts must exercise sound judicial discretion, determining whether to require exhaustion by balancing the individual's interest in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion. Individual interests have weighed heavily where resort to the administrative remedy would occasion undue prejudice to subsequent assertion of a court action, where there is some doubt as to whether the agency is empowered to grant effective relief, or where the administrative body is shown to be biased or has otherwise predetermined the issue before it. Pp. 144-149.(b) Congress has not required exhaustion of a federal prisoner's Bivens claim. And, given the type of claim McCarthy raises and the particular characteristics of the Bureau's general grievance procedure, McCarthy's individual interests outweigh countervailing institutional interests favoring exhaustion. The procedure's short, successive filing deadlines and the absence of any monetary remedy heavily burden a141petitioning inmate's individual interests. In contrast, while the Bureau has a substantial interest in encouraging internal resolution of grievances and in preventing the undermining of its authority by unnecessary resort of prisoners to the federal courts, other institutional concerns do not weigh heavily in favor of exhaustion. The Bureau's alleged failure to render medical care implicates only tangentially its authority to carry out the control and management of the federal prisons, and the Bureau does not bring to bear any special expertise on the type of issue presented for resolution here. Nor are the interests of judicial economy advanced substantially by the grievance procedure, which does not create a formal factual record of the type that can be relied on conclusively by a court for disposition of a prisoner's claim on the pleadings or at summary judgment without the aid of affidavits. Pp. 149-156.914 F.2d 1411, reversed.BLACKMUN, J., delivered the opinion of the Court, in which WHITE, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. REHNQUIST, C. J., filed an opinion concurring in the judgment, in which SCALIA and THOMAS, JJ., joined, post, p. 156.Paul M. Smith argued the cause and filed briefs for petitioner.Deputy Solicitor General Mahoney argued the cause for respondents. With her on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Amy L. Wax, Victor D. Stone, and William D. Braun.JUSTICE BLACKMUN delivered the opinion of the Court. The issue in this case is whether a federal prisoner must resort to the internal grievance procedure promulgated by the Federal Bureau of Prisons before he may initiate a suit, pursuant to the authority of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), solely for money damages. The Court of Appeals for the Tenth Circuit ruled that exhaustion of the grievance procedure was required. 914 F.2d 1411 (1990). We granted certiorari to resolve a conflict among the Courts of Appeals.1 499 U. S. 974 (1991).1 Compare Hessbrook v. Lennon, 777 F.2d 999 (CA5 1985) (exhaustion required), and Brice v. Day, 604 F.2d 664 (CAlO 1979) (same), cert. denied, 444 U. S. lO86 (1980), with Muhammad v. Carlson, 739 F.2d 122 (CA3142Full Text of Opinion

1986_85-5915

JUSTICE WHITE delivered the opinion of the Court.Petitioners in this case, tenants living in low-income housing projects owned by respondent, brought suit under 42 U.S.C. § 1983, [Footnote 1] alleging that respondent overbilled them for their utilities, and thereby violated the rent ceiling imposed by the Brooke Amendment to the Housing Act of 1937 and the implementing regulations of the Department of Housing and Urban Development (HUD). The District Court, 605 F. Supp. 532 (WD Va. 1984), and the Court of Appeals for the Fourth Circuit, 771 F.2d 833 (1985), concluded that petitioners did not have a cause of action under § 1983. We granted certiorari, and now reverse.IRespondent is one of many public housing authorities (PHA's) established throughout the country under the United Page 479 U. S. 420 States Housing Act of 1937, ch. 896, 50 Stat. 888, 42 U.S.C. § 1401 et seq. (1970 ed.), to provide affordable housing for low-income people. In 1969, the Housing Act was amended in a fundamental respect: the Brooke Amendment, Pub. L. 91-152, § 213, 83 Stat. 389, imposed a ceiling for rents charged to low-income people living in public housing projects, and, as later amended, Pub. L. 97-35, § 322, 95 Stat. 400, provides that a low-income family "shall pay as rent" a specified percentage of its income. [Footnote 2] HUD has consistently considered "rent" to include a reasonable amount for the use of utilities, which is defined by regulation as that amount equal to or less than an amount determined by the PHA to be a reasonable part of the rent paid by low-income tenants. [Footnote 3] Page 479 U. S. 421In their suit against respondent, petitioners alleged that respondent had overcharged them for their utilities by failing to comply with the applicable HUD regulations in establishing the amount of utility service to which petitioners were entitled. Thus, according to petitioners, respondent imposed a surcharge for "excess" utility consumption that should have been part of petitioners' rent, [Footnote 4] and deprived them of their Page 479 U. S. 422 statutory right to pay only the prescribed maximum portion of their income as rent. [Footnote 5] The District Court granted summary judgment for respondent on petitioners' § 1983 claim, holding that a private cause of action was unavailable to enforce the Brooke Amendment. The Court of Appeals for the Fourth Circuit affirmed. Relying primarily on two of its earlier decisions, Perry v. Housing Authority of Charleston, 664 F.2d 1210 (1981), and Phelps v. Housing Authority of Woodruff, 742 F.2d 816 (1984), the Court of Appeals held that, while the Brooke Amendment confers certain rights on tenants, these rights are enforceable only by HUD, not by the individual tenant: "[T]he situation is very analogous to the one in which a trustee [that is, HUD], not the cestui que trust, must bring suit." 771 F.2d at 836. [Footnote 6] Page 479 U. S. 423IIMaine v. Thiboutot, 448 U. S. 1 (1980), held that § 1983 was available to enforce violations of federal statutes by agents of the State. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), and Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 (1981), however, recognized two exceptions to the application of § 1983 to remedy statutory violations: where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983. In Pennhurst, a § 1983 action did not lie because the statutory provisions were thought to be only statements of "findings" indicating no more than a congressional preference -- at most a "nudge in the preferred directio[n]," 451 U.S. at 451 U. S. 19, and not intended to rise to the level of an enforceable right. In Sea Clammers, an intent to foreclose resort to § 1983 was found in the comprehensive remedial scheme provided by Congress, a scheme that itself provided for private actions, and left no room for additional private remedies under § 1983. Similarly, Smith v. Robinson, 468 U. S. 992, 468 U. S. 1012 (1984), held that allowing a plaintiff to circumvent the Education of the Handicapped Act's administrative remedies would be inconsistent with Congress' carefully tailored scheme, which itself allowed private parties to seek remedies for violating federal law. Under these cases, if there is a state deprivation of a "right" secured by a federal statute, § 1983 provides a remedial cause of action unless the state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement. "We do not lightly Page 479 U. S. 424 conclude that Congress intended to preclude reliance on § 1983 as a remedy" for the deprivation of a federally secured right. Ibid.Here, the Court of Appeals held that the statute and the Brooke Amendment clearly manifested congressional intention to vest in HUD the exclusive power to enforce the benefits due housing project tenants, and hence the intention to foreclose both a private cause of action under the Housing Act and any private enforcement under § 1983. For the Court of Appeals, the barrier was not the lack of statutory right or its quality or enforceability -- "the plaintiffs under 42 U.S.C. § 1437a have certain rights," 771 F.2d at 837 -- but the fact that Congress had not intended tenants to have the authority themselves to sue:"HUD alone may, as quasi trustee, take legal action, for the right is explicitly tailored not to allow the beneficiaries, the low cost housing tenants, to do so."Ibid.We disagree with the Court of Appeals' rather summary conclusion that the administrative scheme of enforcement foreclosed private enforcement. The Court of Appeals merely relied on one of its prior cases which had referred to HUD's authority to enforce the annual contributions contracts between PHA's and HUD, see 42 U.S.C. § 1437c, to conduct audits and to cut off funds. HUD undoubtedly has considerable authority to oversee the operation of the PHA's. We are unconvinced, however, that respondent has overcome its burden of showing that"the remedial devices provided in [the Housing Act] are sufficiently comprehensive . . . to demonstrate congressional intent to preclude the remedy of suits under § 1983."Sea Clammers, supra, at 453 U. S. 20. They do not show that "Congress specifically foreclosed a remedy under § 1983." Smith v. Robinson, supra, at 468 U. S. 1004-1005, n. 9. Not only are the Brooke Amendment and its legislative history devoid of any express indication that exclusive enforcement authority was vested in HUD, but there have also been both congressional and agency actions indicating that Page 479 U. S. 425 enforcement authority is not centralized, and that private actions were anticipated. Neither, in our view, are the remedial mechanisms provided sufficiently comprehensive and effective to raise a clear inference that Congress intended to foreclose a § 1983 cause of action for the enforcement of tenants' rights secured by federal law.In 1981, Congress changed the maximum percentage of income that could be paid as "rent" from 25 percent to 30 percent. Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35, § 322, 95 Stat. 400. In making this change, Congress gave the Secretary of HUD discretion to raise tenants' rent incrementally over a 5-year period to ease the burden on low-income tenants during the transition. § 322(i), 95 Stat. 404. To avoid a potential multitude of litigation over the way in which the Secretary implemented the phased-in rate increase, Congress specifically made the Secretary's decisions effectuating the phase-in immune from judicial review. § 322(i)(3). At congressional hearings in which this specific and limited exception to judicial review was discussed, HUD representatives explained that this exception had no effect on tenants' ability to enforce their rights under the Housing Act in federal court other than the limited exception concerning the phase-in. [Footnote 7] Apparently dissatisfied with even a temporary Page 479 U. S. 426 preclusion of judicial review, Congress repealed it two years later. Pub. L. 98-181, § 206(e), 97 Stat. 1181.Also at odds with the holding that HUD has exclusive authority to enforce the Brooke Amendment is the enactment in 1985 of 42 U.S.C. § 1437d(k) (1982 ed., Supp. III), which directed HUD to continue its longstanding regulatory requirement that each PHA provide formal grievance procedures for the resolution of tenant disputes with the PHA arising out of their lease or PHA regulations. These procedures, which Congress ordered continued, include informal and formal hearings and administrative appeals, conducted within each PHA by impartial decisionmakers, to consider adverse decisions taken against tenants by the PHA. Congress' aim was to provide a "decentralized, informal, and relatively nonadversarial administrative process" for resolving tenant-management disputes. Samuels v. District of Columbia, 248 U.S.App.D.C. 128, 133, 770 F.2d 184, 189 (1985). The procedures are open to individual grievances, but not to class actions. See 24 CFR § 966.51(b) (1986). HUD itself has never provided a procedure by which tenants could complain to it about the alleged failures of PHA's to abide by their annual contribution contracts, the Brooke Amendment, or HUD regulations; nor has it taken unto itself the task of reviewing PHA grievance procedure decisions. Moreover, § 966.57(c) of HUD's grievance procedure regulations provides that a decision terminating a grievance proceeding shall in no way affect the rights of a tenant either to seek "trial de novo or judicial review in any judicial proceedings, which may thereafter be brought in the matter." HUD thus had no thought that its own supervisory powers or the grievance system that it had established foreclosed resort to the courts by tenants who claimed that a PHA was not observing the commands of the Brooke Amendment. Page 479 U. S. 427There is other evidence clearly indicating that, in HUD's view, tenants have the right to bring suit in federal court to challenge housing authorities' calculations of utility allowances. Among HUD's 1982 proposed regulations was § 865.476(d), 47 Fed.Reg. 35249, 35254 (1982), which would have confined tenant utility allowance challenges to the procedures available in state court. The final regulation, however, contained no such limitation, and contemplated that tenants could challenge PHA actions in federal, as well as state, courts. 24 CFR § 965.473(e) (1985). As the comment accompanying the final regulation explained, the proposal to limit challenges to state court actions had been abandoned. The final "provision does not preclude Federal court review." 49 Fed.Reg. 31403 (1984). HUD's opinion as to available tenant remedies under the Housing Act is entitled to some deference by this Court. See Jean v. Nelson, 472 U. S. 846, 472 U. S. 865 (1985); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 844 (1984).In both Sea Clammers and Smith v. Robinson., the statutes at issue themselves provided for private judicial remedies, thereby evidencing congressional intent to supplant the § 1983 remedy. There is nothing of that kind found in the Brooke Amendment or elsewhere in the Housing Act. Indeed, the only private remedy provided for is the local grievance procedures which the Act now requires. These procedures are not open to class grievances; and even if tenants may grieve about a PHA's utility allowance schedule, which petitioners dispute, [Footnote 8] the existence of a state administrative Page 479 U. S. 428 remedy does not ordinarily foreclose resort to § 1983. See Patsy v. Board of Regents of Florida, 457 U. S. 496, 457 U. S. 516 (1982).The Court of Appeals and respondents rely on HUD's authority to audit, enforce annual contributions contracts, and cut off federal funds. But these generalized powers are insufficient to indicate a congressional intention to foreclose § 1983 remedies. Cf. Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 704-707 (1979); Rosado v. Wyman, 397 U. S. 397, 397 U. S. 420 (1970). HUD has the authority to audit, but it does not do so frequently, and its own Handbook requires audits only every eight years. [Footnote 9] There are no other mechanisms provided to enable HUD to effectively oversee the performance of the some 3,000 local PHA's across the country. The statute does not require, and HUD has not provided, any formal procedure for tenants to bring to HUD's attention alleged PHA failures to abide by the Brooke Amendment and HUD regulations. Hence, there will be little occasion to exercise HUD's power to sue PHA's to enforce the provisions of the Page 479 U. S. 429 annual contributions contracts. Respondent asserts PHA's must annually file their utility allowance schedules with HUD, and that HUD must approve them, but the final regulations eliminated HUD's duty to approve these schedules before their effective date. 24 CFR § 965.473(d) (1986). Review of the schedules would be done in the course of audits or reviews of PHA operations. [Footnote 10]Lastly, it is said that tenants may sue on their lease in state courts, and enforce their Brooke Amendment rights in that litigation. Perhaps they could, but the state court remedy is hardly a reason to bar an action under § 1983, which was adopted to provide a federal remedy for the enforcement of federal rights.In sum, we conclude that nothing in the Housing Act or the Brooke Amendment evidences that Congress intended to preclude petitioners' § 1983 claim against respondent.IIIAlthough the Court of Appeals read the Brooke Amendment as extending to housing project tenants certain rights enforceable only by HUD, respondent asserts that neither the Brooke Amendment nor the interim regulations gave the Page 479 U. S. 430 tenants any specific or definable rights to utilities, that is, no enforceable rights within the meaning of § 1983. We perceive little substance in this claim. The Brooke Amendment could not be clearer: as further amended in 1981, tenants could be charged as rent no more and no less than 30 percent of their income. This was a mandatory limitation focusing on the individual family and its income. The intent to benefit tenants is undeniable. Nor is there any question that HUD interim regulations, in effect when this suit began, expressly required that a "reasonable" amount for utilities be included in rent that a PHA was allowed to charge, an interpretation to which HUD has adhered both before and after the adoption of the Brooke Amendment. HUD's view is entitled to deference as a valid interpretation of the statute, and Congress, in the course of amending that provision, has not disagreed with it. [Footnote 11] Page 479 U. S. 431Respondent nevertheless asserts that the provision for a "reasonable" allowance for utilities is too vague and amorphous to confer on tenants an enforceable "right" within the meaning of § 1983, and that the whole matter of utility allowances must be left to the discretion of the PHA, subject to supervision by HUD. The regulations, however, defining the statutory concept of "rent" as including utilities, have the force of law, Chrysler Corp. v. Brown, 441 U. S. 281, 441 U. S. 294-295 (1979), they specifically set out guidelines that the PHAs Page 479 U. S. 432 were to follow in establishing utility allowances, and they require notice to tenants and an opportunity to comment on proposed allowances. In our view, the benefits Congress intended to confer on tenants are sufficiently specific and definite to qualify as enforceable rights under Pennhurst and § 1983, rights that are not, as respondent suggests, beyond the competence of the judiciary to enforce. [Footnote 12]The judgment of the Court of Appeals is accordinglyReversed

U.S. Supreme CourtWright v. Roanoke Redevelopment Auth., 479 U.S. 418 (1987)Wright v. City of Roanoke Redevelopment & Housing AuthorityNo. 85-5915Argued October 6, 1986Decided January 14, 1987479 U.S. 418SyllabusThe Brooke Amendment to the Housing Act of 1937 imposed a ceiling on rents charged to low-income persons living in public housing projects, and, as later amended, provides that a low-income family "shall pay as rent" a specified percentage of its income. The Department of Housing and Urban Development (HUD) has consistently considered "rent" to include a reasonable amount for the use of utilities. Petitioners, tenants living in low-income housing projects owned by respondent, brought suit in Federal District Court under 42 U.S.C. § 1983, alleging that respondent overbilled them for their utilities and thereby violated the rent ceiling imposed by the Brooke Amendment and implementing regulations. The District Court granted summary judgment for respondent, holding that a private cause of action was unavailable to enforce the Brooke Amendment. The Court of Appeals affirmed, holding that, while the Brooke Amendment confers rights on tenants, these rights are enforceable only by HUD.Held:1. Nothing in the Housing Act or the Brooke Amendment evidences that Congress intended to preclude petitioners' § 1983 claim against respondent. Not only are the Brooke Amendment and its legislative history devoid of any express indication that exclusive enforcement authority was vested in HUD, but also both congressional and agency actions have indicated that enforcement authority is not centralized, and that private actions were anticipated. Neither are the remedial mechanisms provided by the statute sufficiently comprehensive and effective to raise a clear inference that Congress intended to foreclose a § 1983 cause of action for the enforcement of tenants' rights secured by federal law. Pp. 479 U. S. 423-429.2. There is no merit to respondent's argument that the provision for a "reasonable" allowance for utilities is too vague and amorphous to confer on tenants an enforceable "right" within the meaning of § 1983, and that the matter of utility allowances must be left to the public housing authorities, subject to HUD's supervision. The benefits Congress intended to confer on tenants are sufficiently specific and definite to qualify Page 479 U. S. 419 as enforceable rights under § 1983, and are not beyond the judiciary's competence to enforce. Pp. 479 U. S. 429-430.771 F.2d 833, reversed.WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C. J., and POWELL and SCALIA, JJ., joined, post, p. 479 U. S. 432.

1966_391

MR. JUSTICE FORTAS delivered the opinion of the Court.Early one September morning in 1964, a Greyhound bus proceeding northward through Shasta County, California, collided with a south-bound pickup truck. Two of the passengers aboard the bus were killed. Thirty-three others were injured, as were the bus driver, the driver of the truck, and its lone passenger. One of the dead and 10 of the injured passengers were Canadians; the rest of the individuals involved were citizens of five American States. The ensuing litigation led to the present case, which raises important questions concerning administration of the interpleader remedy in the federal courts.The litigation began when four of the injured passengers filed suit in California state courts, seeking damages in excess of $1,000,000. Named as defendants were Greyhound Lines, Inc., a California corporation; Theron Nauta, the bus driver; Ellis Clark, who drove the truck, and Kenneth Glasgow, the passenger in the truck, who was apparently its owner as well. Each of the individual defendants was a citizen and resident of Oregon. Before these cases could come to trial and before other suits were filed in California or elsewhere, petitioner State Farm Fire & Casualty Company, an Illinois corporation, brought this action in the nature of interpleader in the United States District Court for the District of Oregon. Page 386 U. S. 526In its complaint, State Farm asserted that, at the time of the Shasta County collision, it had in force an insurance policy with respect to Ellis Clark, driver of the truck, providing for bodily injury liability up to $10,000 per person and $20,000 per occurrence, and for legal representation of Clark in actions covered by the policy. It asserted that actions already filed in California and others which it anticipated would be filed far exceeded in aggregate damages sought the amount of its maximum liability under the policy. Accordingly, it paid into court the sum of $20,000 and asked the court (1) to require all claimants to establish their claims against Clark and his insurer in this single proceeding and in no other, and (2) to discharge State Farm from all further obligations under its policy -- including its duty to defend Clark in lawsuits arising from the accident. Alternatively, State Farm expressed its conviction that the policy issued to Clark excluded from coverage accidents resulting from his operation of a truck which belonged to another and was being used in the business of another. The complaint, therefore, requested that the court decree that the insurer owed no duty to Clark and was not liable on the policy, and it asked the court to refund the $20,000 deposit.Joined as defendants were Clark, Glasgow, Nauta, Greyhound Lines, and each of the prospective claimants. Jurisdiction was predicated upon 28 U.S.C. § 1335, the federal interpleader statute, [Footnote 1] and upon general diversity Page 386 U. S. 527 of citizenship, there being diversity between two or more of the claimants to the fund and between State Farm and all of the named defendants.An order issued requiring the defendants to show cause why they should not be restrained from filing or prosecuting"any proceeding in any state or United States Court affecting the property or obligation involved in this interpleader action, and specifically against the plaintiff and the defendant Ellis D. Clark."Personal service was effected on each of the American defendants, and registered mail was employed to reach the 11 Canadian claimants. Defendants Nauta, Greyhound, and several of the injured passengers responded, contending that the policy did cover this accident and advancing various arguments for the position that interpleader was either impermissible or inappropriate in the present circumstances. Greyhound, however, soon switched sides and moved that the court broaden any injunction to include Nauta and Greyhound among those who could not be sued except within the confines of the interpleader proceeding.When a temporary injunction along the lines sought by State Farm was issued by the United States District Court for the District of Oregon, the present respondents moved to dismiss the action and, in the alternative, for a change of venue -- to the Northern District of California, in which district the collision had occurred. After a hearing, the court declined to dissolve the temporary injunction, but continued the motion for a change of venue. The injunction was later broadened to include the protection sought by Greyhound, but modified to Page 386 U. S. 528 permit the filing -- although not the prosecution -- of suits. The injunction, therefore, provided that all suits against Clark, State Farm, Greyhound, and Nauta be prosecuted in the interpleader proceeding.On interlocutory appeal, [Footnote 2] the Court of Appeals for the Ninth Circuit reversed. 363 F.2d 7. The court found it unnecessary to reach respondents' contentions relating to service of process and the scope of the injunction, for it concluded that interpleader was not available in the circumstances of this case. It held that, in States like Oregon which do not permit "direct action" suits against insurance companies until judgments are obtained against the insured, the insurance companies may not invoke federal interpleader until the claims against the insured, the alleged tortfeasor, have been reduced to judgment. Until that is done, said the court, claimants with unliquidated tort claims are not "claimants" within the meaning of § 1335, nor are they "persons having claims against the plaintiff" within the meaning of Rule 22 of the Federal Rules of Civil Procedure. [Footnote 3] Id. Page 386 U. S. 529 at 10. In accord with that view, it directed dissolution of the temporary injunction and dismissal of the action. Because the Court of Appeals' decision on this point conflicts with those of other federal courts [Footnote 4] and concerns a matter of significance to the administration of federal interpleader, we granted certiorari. 385 U.S. 811 (1966). Although we reverse the decision of the Court of Appeals upon the jurisdictional question, we direct a substantial modification of the District Court's injunction for reasons which will appear. Page 386 U. S. 530IBefore considering the issues presented by the petition for certiorari, we find it necessary to dispose of a question neither raised by the parties nor passed upon by the courts below. Since the matter concerns our jurisdiction, we raise it on our own motion. Treines v. Sunshine Mining Co., 308 U. S. 66, 308 U. S. 70 (1939). The interpleader statute, 28 U.S.C. § 1335, applies where there are "Two or more adverse claimants, of diverse citizenship. . . ." This provision has been uniformly construed to require only "minimal diversity," that is, diversity of citizenship between two or more claimants, without regard to the circumstance that other rival claimants may be co-citizens. [Footnote 5] The language of the statute, the legislative purpose broadly to remedy the problems posed by multiple claimants to a single fund, and the consistent judicial interpretation tacitly accepted by Congress, persuade us that the statute requires no more. There remains, however, the question whether such a statutory construction is consistent with Article III of our Constitution, which extends the federal judicial power to"Controversies . . . between Citizens of different States . . . and between a State or the Citizens thereof, and foreign States, Citizens or Subjects."In Strawbridge v. Curtiss, 3 Cranch 267 (1806), this Court held that the diversity of citizenship statute required "complete diversity": where co-citizens appeared on both sides of a dispute, Page 386 U. S. 531 jurisdiction as lost. But Chief Justice Marshall there purported to construe only "The words of the act of congress," not the Constitution itself. [Footnote 6] And, in a variety of contexts, this Court and the lower courts have concluded that Article III poses no obstacle to the legislative extension of federal jurisdiction, founded on diversity, so long as any two adverse parties are not co-citizens. [Footnote 7] Accordingly, we conclude that the present case is properly in the federal courts.IIWe do not agree with the Court of Appeals that, in the absence of a state law or contractual provision for Page 386 U. S. 532 "direct action" suits against the insurance company, the company must wait until persons asserting claims against its insured have reduced those claims to judgment before seeking to invoke the benefits of federal interpleader. That may have been a tenable position under the 1926 [Footnote 8] and 1936 interpleader statutes. [Footnote 9] These statutes did not carry forward the language in the 1917 Act authorizing interpleader where adverse claimants "may claim" benefits as well as where they "are claiming" them. [Footnote 10] In 1948, however, in the revision of the Judicial Code, the "may claim" language was restored. [Footnote 11] Until the decision below, every court confronted by the question has concluded that the 1948 revision removed whatever requirement there might previously have been that the insurance company Page 386 U. S. 533 wait until at least two claimants reduced their claims to judgments. [Footnote 12] The commentators are in accord. [Footnote 13]Considerations of judicial administration demonstrate the soundness of this view which, in any event, seems compelled by the language of the present statute, which is remedial and to be liberally construed. Were an insurance company required to await reduction of claims to judgment, the first claimant to obtain such a judgment or to negotiate a settlement might appropriate all or a disproportionate slice of the fund before his fellow claimants were able to establish their claims. The difficulties such a race to judgment pose for the insurer, [Footnote 14] and the unfairness which may result to some claimants, were among the principal evils the interpleader device was intended to remedy. [Footnote 15]IIIThe fact that State Farm had properly invoked the interpleader jurisdiction under § 1335 did not, however, entitle it to an order both enjoining prosecution of suits against it outside the confines of the interpleader proceeding and also extending such protection to its insured, the alleged tortfeasor. Still less was Greyhound Lines entitled to have that order expanded so as to protect itself and its driver, also alleged to be tortfeasors, from suits brought by its passengers in various state or federal courts. Here, the scope of the litigation, in terms of Page 386 U. S. 534 parties and claims, was vastly more extensive than the confines of the "fund," the deposited proceeds of the insurance policy. In these circumstances, the mere existence of such a fund cannot, by use of interpleader, be employed to accomplish purposes that exceed the needs of orderly contest with respect to the fund.There are situations, of a type not present here, where the effect of interpleader is to confine the total litigation to a single forum and proceeding. One such case is where a stakeholder, faced with rival claims to the fund itself, acknowledges -- or denies -- his liability to one or the other of the claimants. [Footnote 16] In this situation, the fund itself is the target of the claimants. It marks the outer limits of the controversy. It is, therefore, reasonable and sensible that interpleader, in discharge of its office to protect the fund, should also protect the stakeholder from vexatious and multiple litigation. In this context, the suits sought to be enjoined are squarely within the language of 28 U.S.C. § 2361, which provides in part:"In any civil action of interpleader or in the nature of interpleader under section 1335 of this title, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action. . . ."(Emphasis added.)But the present case is another matter. Here, an accident has happened. Thirty-five passengers or their representatives have claims which they wish to press against a variety of defendants: the bus company, its driver, the owner of the truck, and the truck driver. The circumstance that one of the prospective defendants happens Page 386 U. S. 535 to have an insurance policy is a fortuitous event which should not of itself shape the nature of the ensuing litigation. For example, a resident of California, injured in California aboard a bus owned by a California corporation, should not be forced to sue that corporation anywhere but in California simply because another prospective defendant carried an insurance policy. And an insurance company whose maximum interest in the case cannot exceed $20,000 and who, in fact, asserts that it has no interest at all, should not be allowed to determine that dozens of tort plaintiffs must be compelled to press their claims -- even those claims which are not against the insured and which in no event could be satisfied out of the meager insurance fund -- in a single forum of the insurance company's choosing. There is nothing in the statutory scheme, and very little in the judicial and academic commentary upon that scheme, which requires that the tail be allowed to wag the dog in this fashion.State Farm's interest in this case, which is the fulcrum of the interpleader procedure, is confined to its $20,000 fund. That interest receives full vindication when the court restrains claimants from seeking to enforce against the insurance company any judgment obtained against its insured, except in the interpleader proceeding itself. To the extent that the District Court sought to control claimants' lawsuits against the insured and other alleged tortfeasors, it exceeded the powers granted to it by the statutory scheme.We recognize, of course, that our view of interpleader means that it cannot be used to solve all the vexing problems of multiparty litigation arising out of a mass tort. But interpleader was never intended to perform such a function, to be an all-purpose "bill of peace." [Footnote 17] Had Page 386 U. S. 536 it been so intended, careful provision would necessarily have been made to insure that a party with little or no interest in the outcome of a complex controversy should not strip truly interested parties of substantial rights -- such as the right to choose the forum in which to establish their claims, subject to generally applicable rules of jurisdiction, venue, service of process, removal, and change of venue. None of the legislative and academic sponsors of a modern federal interpleader device viewed their accomplishment as a "bill of peace," capable of sweeping dozens of lawsuits out of the various state and federal courts in which they were brought and into a single interpleader proceeding. And only in two reported instances has a federal interpleader court sought to control the underlying litigation against alleged tortfeasors, as opposed to the allocation of a fund among successful tort plaintiffs. See Commercial Union Insurance Co. of New York v. Adams, 231 F. Supp. 860 (D.C.S.D. Ind.1964) (where there was virtually no objection and where all of the basic tort suits would, in any event, have been prosecuted in the forum state), and Pan American Fire Casualty Co. v. Revere, 188 F. Supp. 474 (D.C.E.D.La.1960). Another district court, on the other hand, has recently held that it lacked statutory authority to Page 386 U. S. 537 enjoin suits against the alleged tortfeasor, as opposed to proceedings against the fund itself. Travelers Indemnity Co. v. Greyhound Lines, Inc., 260 F. Supp. 530 (D.C.W.D.La.1966).In light of the evidence that federal interpleader was not intended to serve the function of a "bill of peace" in the context of multiparty litigation arising out of a mass tort, of the anomalous power which such a construction of the statute would give the stakeholder, and of the thrust of the statute and the purpose it was intended to serve, we hold that the interpleader statute did not authorize the injunction entered in the present case. Upon remand, the injunction is to be modified consistently with this opinion. [Footnote 18] Page 386 U. S. 538IVThe judgment of the Court of Appeals is reversed, and the case is remanded to the United States District Court for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtState Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523 (1967)State Farm Fire & Casualty Co. v. TashireNo. 391Argued February 115, 1967Decided April 10, 1967386 U.S. 523SyllabusA bus and a truck collided in California resulting in a large number of casualties, including many Canadians and citizens of five States. Four victims brought suits in California state courts for damages exceeding $1,000,000 against the bus and truck drivers and the truck owner (all Oregon citizens), and the bus company, a California corporation. Before these cases were tried or other suits brought, petitioner insurance company, an Illinois corporation, brought this action in the nature of interpleader in the Federal District Court in Oregon against the drivers, the bus company, truck owner, and each prospective claimant, asserting that it had insured the truck driver against bodily injury liability to the extent of $10,000 per person and $20,000 per occurrence. It paid the latter sum into court, and asked that all claims against it and the insured be established only in this single proceeding, and that it be discharged from all further obligations under its policy, including its duty to defend the truck driver in lawsuits arising from the accident. Alternatively, it asked to be relieved of all liability on the policy, claiming that the policy excluded from coverage accidents such as the one involved here, resulting from the insured's operation of a truck owned by and being used in the business of another. Jurisdiction was based on general diversity of citizenship and 28 U.S.C. § 1335, which, inter alia, vests the district courts with jurisdiction in an interpleader action where a corporation has issued an insurance policy if two or more "adverse claimants, of diverse citizenship" claim "or may claim" to be entitled to money or the benefits arising under a policy and if the plaintiff has paid the amount due into the court's registry. An injunction was issued providing that all suits against the insurance company and its insured and (on the bus company's motion) the bus company and its driver be prosecuted in the interpleader proceeding. On interlocutory appeal, the Court of Appeals reversed, holding that, in States like Oregon which do not permit Page 386 U. S. 524 "direct action" suits against an insurance company, federal interpleader may not be invoked until the claims against the insured have been reduced to judgment, since persons with unliquidated tort claims are not "claimants" within the meaning of § 1335.Held:1. The diversity requirement of 28 U.S.C. § 1335 is satisfied here, and the federal courts have jurisdiction, since that provision requires only "minimal diversity," i.e., diversity of citizenship between two or more claimants, without regard to the circumstance that other rival claimants may be co-citizens, and "minimal diversity" is permissible under Article III of the Constitution. Pp. 386 U. S. 530-531.2. Section 1335 authorizes interpleader where adverse claimants "may claim" benefits, and petitioner insurance company need not wait until claimants against the insured have reduced their claims to judgment before seeking to invoke the benefits of the interpleader statute. Pp. 386 U. S. 531-533.3. An injunction barring the prosecution of suits against the insurance company and the alleged tortfeasors outside the confines of the interpleader proceeding was not authorized by 28 U.S.C. § 2361, the scope of the litigation being vastly more extensive than the deposited proceeds of the insurance policy which constituted the "fund." Pp. 386 U. S. 533-537.(a) This is not a case where the effect of the interpleader is to confine the litigation to a single forum and proceeding, as where rival claims are limited to the fund itself. P. 386 U. S. 534.(b) The fortuitous circumstance that one of the prospective defendants happens to be insured should not limit the other plaintiffs to the forum selected by the insurance company. Pp. 386 U. S. 534-535.(c) The insurance company's interest, which is confined to its $20,000 fund, is fully vindicated when the court restrains claimants from seeking to enforce against the insurance company any judgment obtained against the insured except in the interpleader proceeding itself. The District Court had no power in that proceeding to control claimants' lawsuits against the insured or other alleged tortfeasors. P. 386 U. S. 535.(d) Interpleader was never intended to serve as a "bill of peace" and solve all the problems of multi-party litigation arising out of a mass tort. Pp. 386 U. S. 535-536.363 F.2d 7, reversed and remanded. Page 386 U. S. 525

1978_78-759

MR. JUSTICE STEVENS delivered the opinion of the Court.An Idaho statute imposes restrictions on certain purchasers of stock in corporations having substantial assets in Idaho. The questions presented by this appeal are whether the state agents responsible for enforcing the statute may be required to defend its constitutionality in a Federal District Court in Texas and, if so, whether the statute conflicts with the Williams Act amendments to the Securities Exchange Act of 1934 [Footnote 1] or with the Commerce Clause of the United States Constitution. [Footnote 2]Sunshine Mining and Metal Co. (Sunshine) is a "target company" within the meaning of the Idaho Corporate Takeover Act -- statute designed to regulate takeovers of corporations that have certain connections to the State. [Footnote 3] Sunshine's principal business is a silver mining operation in the Coeur Page 443 U. S. 176 d'Alene Mining District in Idaho. Its executive offices and most of its assets are located in the State. Sunshine is also engaged in business in New York and, through a subsidiary, in Maryland. Its stock is traded over the New York Stock Exchange, and its shareholders are dispersed throughout the country. App. 36. It is a Washington corporation. Great Western United Corp. v. Kidwell, 439 F. Supp. 420, 423-424.Great Western United Corp. (Great Western) is an "offeror" within the meaning of the Idaho statute. [Footnote 4] Great Western is a publicly owned Delaware corporation with executive headquarters in Dallas, Tex., and corporate offices in Denver, Colo. App. 131. In early 1977, Great Western decided to make a public offer to purchase 2 million shares of Sunshine stock for a premium price. Because consummation of the proposed tender offer would cause Great Western to own more than 5% of Sunshine's outstanding shares, Great Western was required to comply with certain provisions of the Williams Act and arguably also to comply with the Idaho Corporate Takeover Act, as well as with similar provisions of New York and Maryland.On March 21, 1977, Great Western publicly announced its intent to make a tender offer for 2 million shares of Sunshine, and its representatives took simultaneous steps to implement the proposed tender offer. They filed a Schedule 13D with the Securities and Exchange Commission in Washington, D.C. Page 443 U. S. 177 disclosing the information required by the Williams Act. They consulted with state officials in Idaho, New York, and Maryland about compliance with the corporate takeover laws of those States. And they filed documents with the Idaho Director of Finance in an attempt to satisfy Idaho's statute.On March 25, 1977, Melvin Baptie, who was then the Deputy Administrator of Securities of the Idaho Department of Finance, sent a telecopy letter of objections to Great Western's filing to the company's offices in Dallas. The letter stated that certain pages of Great Western's SEC Form 13D were missing, asked for several additional items of information, and indicated that no hearing would be scheduled, nor other action taken, until all of the requested information had been received. App. to Juris.Statement A-156 to A-164. On the same day, Tom McEldowney, the Director of Finance of Idaho, entered an order delaying the effective date of the tender offer. Id. at A-165 to A-166. Great Western made no response to Baptie's letter or to McEldowney's order.On March 28, 1977, Great Western filed this action in the United States District Court for the Northern District of Texas, naming as defendants the state officials responsible for enforcing the Idaho, New York, and Maryland takeover laws. The complaint prayed for a declaration that the state laws were invalid insofar as they purported to apply to interstate cash tender offers to purchase securities traded on the national exchange. App 1-36. The claims against the Maryland and New York defendants were dismissed because the former did not attempt to enforce their statute against Great Western and the latter expressly stated that they would not assert jurisdiction over the proposed tender offer. 439 F. Supp. at 428-429. The two Idaho defendants -- McEldowney, the Director of Finance, and Wayne Kidwell, then Attorney General of the State [Footnote 5] -- appeared specially to contest jurisdiction and Page 443 U. S. 178 venue, and after filed an answer contesting the merits of the claim.The District Court found four separate statutory bases for federal jurisdiction. [Footnote 6] It held that personal jurisdiction over the Idaho defendants had been obtained by service pursuant to the Texas long-arm statute. [Footnote 7] It concluded, however, that venue was improper under the general federal venue statute, 28 U.S.C. § 1391 (b), [Footnote 8] because the defendants obviously did not reside in Texas and the claim arose in Idaho, rather than in Texas. Nonetheless, it decided that venue could be sustained under the special venue provision in § 27 of the Securities Exchange Act of 1934 (1934 Act). 48 Stat. 902, as amended, 15 U.S.C. § 78aa. See nn. 9 and | 9 and S. 173fn10|>10, infra, and accompanying text.On the merits, the District Court held that the Idaho Corporate Takeover Act is preempted by the Williams Act and places an impermissible burden on interstate commerce. It granted injunctive relief that enabled Great Western to acquire the desired Sunshine shares in the fall of 1977. 439 F. Supp. at 43440. That acquisition did not moot the case, however because the question whether Great Western has violated Idaho's statute will remain open unless and until the District Court's judgment is finally affirmed.A divided panel of the Court of Appeals for the Fifth Circuit affirmed. The court sustained federal subject matter Page 443 U. S. 179 jurisdiction on the same four grounds relied upon by the District Court. See n 6, supra. It then advanced alternative theories in support of both its determination that the District Court had personal jurisdiction over the defendants and its conclusion that venue lay in the Northern District of Texas. First, it noted that the Texas long-arm statute authorized the assertion of personal jurisdiction over nonresidents to the fullest extent allowable under the Due Process Clause of the Fourteenth Amendment. It then held that an Idaho official who seeks to enforce an Idaho statute to prevent a Texas-based corporation from proceeding with a national tender offer has sufficient contacts with Texas to support jurisdiction. Second, it held that jurisdiction was available under § 27 of the 1934 Act, [Footnote 9] which gives the federal district courts exclusive jurisdiction over suits brought "to enforce any. . . duty created" by the Act. It based this holding on the theory that Idaho's enforcement attempts, by conflicting with the Williams Act, constituted a violation of a "duty" imposed by § 28(a) of the 1934 Act. [Footnote 10] It relied on the same reasoning to support Page 443 U. S. 180 its conclusion that venue was authorized by § 27 of the 1934 Act. Finally, disagreeing with the District Court, the Court of Appeals concluded that venue in the Northern District of Texas was also proper under the general federal venue provision, 28 U.S.C. § 1391(b), because the allegedly invalid restraint against Great Western occurred there, and it was accordingly "the judicial district . . . in which the claim arose." Great Western United Corp. v. Kidwell, 577 F.2d 1256, 1265-1274. On the merits, the Court of Appeals agreed with the analysis of the District Court. Id. at 1274-1287.We noted probable jurisdiction of the appeal. 439 U.S. 1065. Without reaching either the merits or the constitutional question arising out of the attempt to assert personal jurisdiction over appellants, we now reverse because venue did not lie in the Northern District of Texas.IThe question of personal jurisdiction, which goes to the court's power to exercise control over the parties, is typically decided in advance of venue, which is primarily a matter of choosing a convenient forum. See generally C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3801, pp. 5-6 (1976) (hereinafter Wright, Miller, & Cooper). On the other hand, neither personal jurisdiction nor venue is fundamentally preliminary in the sense that subject matter jurisdiction is, for both are personal privileges of the defendant, rather than absolute strictures on the court, and both may be waived by the parties. See Olberding v. Illinois Central R. Co., 346 U. S. 338, 346 U. S. 340; Neirbo Co. v. Bethlehem Corp., 308 U. S. 165, 308 U. S. 167-168. Accordingly, when there is a sound prudential justification for doing so, we conclude that a court may reverse the normal order of considering personal jurisdiction and venue.Such a justification exists in this case. Although for the reasons discussed in 443 U. S. infra, it is clear that § 27 of the 1934 Act does not provide a basis for personal jurisdiction, the Page 443 U. S. 181 question whether personal jurisdiction was properly obtained pursuant to the Texas long-arm statute is more difficult. Indeed, because the Texas Supreme Court has construed its statute as authorizing the exercise of jurisdiction over nonresidents to the fullest extent permitted by the United States Constitution, [Footnote 11] resolution of this question would require the Court to decide a question of constitutional law that it has not heretofore decided. As a prudential matter, it is our practice to avoid the unnecessary decision of novel constitutional questions. We find it appropriate to pretermit the constitutional issue in this case because it is so clear that venue was improper either under § 27 of the 1934 Act or under § 1391(b) of the Judicial Code.IIThe linchpin of Great Western's argument that venue is provided by § 27 of the 1934 Act is its interpretation of § 28(a) of that Act. See nn. 9 10 supra. It reads § 28(a) as imposing an affirmative "duty" on the State of Idaho, the violation of which may be redressed in the federal courts under § 27. As Mr. Justice Frankfurter said of a similar argument in a similar case, however, "[t]his is a horse soon curried." Olberding, supra, at 346 U. S. 340.The reference in § 27 to the "liabilit[ies] or dut[ies] created by this chapter" clearly corresponds to the various provisions in the 1934 Act that explicitly establish duties for certain participants in the securities market or that subject such persons Page 443 U. S. 182 to possible actions brought by the Government, the Securities and Exchange Commission, or private litigants. [Footnote 12] Section 28(a) is not such a provision. There is nothing in its text or its legislative history to suggest that it imposes any duty on the States or that indicates who might enforce any such duty. The section was plainly intended to protect, rather than to limit, state authority. [Footnote 13] Because § 28(a) imposed no duty on appellants, the argument that § 27 establishes venue in the District Court is unsupportable. [Footnote 14] Page 443 U. S. 183IIINor, as the District Court correctly concluded, is venue available under § 1391(b). The first test of venue under that provision -- the residence of the defendants -- obviously points to Idaho, rather than Texas. The Court of Appeals reasoned, however, under the second relevant test that the claim arose in Dallas, because that is the place where the Idaho officials "invalidly prevented Great Western from initiating a tender offer for Sunshine." 577 F.2d at 1273. [Footnote 15] The court buttressed its conclusion by noting that a single action against the officials of New York, Maryland, and Idaho could not have been instituted in any one place unless the claim was treated as having arisen in Dallas. Ibid.The easiest answer to this latter argument is that Great Western's complaint did not in fact raise justiciable claims against any officials save those in Idaho. But that is not the only answer. Although the legal issues raised in the complaint challenging the constitutionality of the statutes of three different States were similar, and the convenience of Great Western would obviously be served by consolidating the three claims for trial in one district, the general venue statute does not authorize the plaintiff to rely on either of those reasons to justify its choice of forum.In most instances, the purpose of statutorily specified venue Page 443 U. S. 184 is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial. [Footnote 16] For that reason, Congress has generally not made the residence of the plaintiff a basis for venue in nondiversity cases. But cf. 28 U.S.C. § 1391(e). The desirability of consolidating similar claims in a single proceeding may lead defendants, such perhaps as the New York and Maryland officials in this case, to waive valid objections to otherwise improper venue. But that concern does not justify reading the statute to give the plaintiff the right to select the place of trial that best suits his convenience. So long as the plain language of the statute does not open the severe type of "venue gap" that the amendment giving plaintiffs the right to proceed in the district where the claim arose was designed to close, [Footnote 17] there is no reason to read it more broadly on behalf of plaintiffs. [Footnote 18]Moreover, the plain language of § 1391(b) will not bear the Court of Appeals' interpretation. The statute allows venue in "the judicial district . . . in which the claim arose." Without deciding whether this language adopts the occasionally Page 443 U. S. 185 fictive assumption that a claim may arise in only one district, [Footnote 19] it is absolutely clear that Congress did not intend to provide for venue at the residence of the plaintiff or to give that party an unfettered choice among a host of different districts. Denver & R. G. W. R. Co. v. Railroad Trainmen, 387 U. S. 556, 387 U. S. 560. Rather, it restricted venue either to the residence of the defendants or to "a place which may be more convenient to the litigants" -- i.e., both of them -- "or to the witnesses who are to testify in the case." S.Rep. No. 1752, 89th Cong., 2d Sess., 3 (196). See Denver & R. G. W. R. Co., supra, at 387 U. S. 560. See also Brunette Machine Works v. Kockum Industries, 406 U. S. 706, 406 U. S. 710. In our view, therefore, the broadest interpretation of the language of § 1391(b) that is even arguably acceptable is that, in the unusual case in which it is not clear that the claim arose in only one specific district, [Footnote 20] a plaintiff may choose between those two (or conceivably even more) districts that with approximately equal plausibility -- in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff) -- may be assigned as the locus of the claim. Cf. Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 410 U. S. 493-494.This case is not, however, unusual. For the claim involved has only one obvious locus -- the District of Idaho. Most importantly, it is action that was taken in Idaho by Idaho residents -- the enactment of the statute by the legislature, the review of Great Western's filing, the forwarding of the comment letter by Deputy Administrator Baptie, and the entry of the order postponing the effective date of the tender by Finance Director McEldowney -- as well as the future action that may be taken in the State by its officials to punish Page 443 U. S. 186 or to remedy any violation of its law, that provides the basis for Great Western's federal claim. For this reason, the bulk of the relevant evidence and witnesses -- apart from employees of the plaintiff, and securities experts who come from all over the United States [Footnote 21] is also located in the State. Less important, but nonetheless relevant, the nature of this action challenging the constitutionality of a state statute makes venue in the District of Idaho appropriate. The merits of Great Western's claims may well depend on a proper interpretation of the State's statute, and federal judges sitting in Idaho are better qualified to construe Idaho law, and to assess the character of Idaho's probable enforcement of that law, than are judges sitting elsewhere. See cases cited in n. 11 supra.We therefore reject the Court of Appeals' reasoning that the "claim arose" in Dallas because that is where Great Western proposed to initiate its tender offer, and that is where Idaho's statute had its impact on Great Western. Aside from the fact that these "contacts" between the "claim" and the Texas District fall far short of those connecting the claim and the Idaho District, we note that this reasoning would subject the Idaho officials to suit in almost every district in the country. For every prospective offeree -- be he in New York, Los Angeles, Miami, or elsewhere, rather than in Dallas -- could argue with equal force (or Great Western could argue on his behalf) that he had intended to direct his local broker to accept the tender, and was frustrated in that desire by the Idaho law. [Footnote 22] As we noted above, however, such a reading of § 1391(b) is inconsistent with the underlying purpose of the provision, for it would leave the venue decision entirely in the hands of plaintiffs, rather than making it "primarily a matter Page 443 U. S. 187 of convenience of litigants and witnesses." Denver & R. G. W. R. Co., supra, at 387 U. S. 560. [Footnote 23] In short, the District of Idaho is the only one in which "the claim arose" within the meaning of § 1391(b).The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtLeroy v. Great Western United Corp., 443 U.S. 173 (1979)Leroy v. Great Western United Corp.No. 78-759Argued April 17, 1979Decided June 26, 1979443 U.S. 173SyllabusAfter publicly announcing its intent to make a tender offer to purchase shares of stock of a company having substantial assets in Idaho, appellee, a Texas-based corporation which is also engaged in business in New York and Maryland, filed the informational schedule with the Securities and Exchange Commission required by the Securities Exchange Act of 1934 (1934 Act), as amended by the Williams Act, and also filed documents in Idaho in an attempt to satisfy that State's takeover statute. When Idaho officials objected to the filing and delayed the effective date of the tender offer, appellee brought an action in the Federal District Court for the Northern District of Texas against the officials responsible for enforcing Idaho's takeover law, seeking a declaration that the state law was invalid insofar as it purported to apply to interstate tender offers to purchase securities traded on a national exchange. The District Court held that personal jurisdiction over the Idaho defendants had been obtained under the Texas long-arm statute, and that venue could be sustained under the special venue provision in § 27 of the 1934 Act giving federal district courts exclusive jurisdiction of actions brought to enforce "any liability or duty created" by the Act. The court then went on to hold that the Idaho takeover statute was preempted by the Williams Act and placed an impermissible burden on interstate commerce. The Court of Appeals affirmed, holding, inter alia, that venue was authorized by § 27 of the 1934 Act, because Idaho's enforcement attempt, by conflicting with the Williams Act, constituted a violation of a "duty" imposed by § 28(a) of the 1934 Act (which provides that nothing in the Act shall affect a state securities regulatory agency's jurisdiction over any security or person insofar as it does not conflict with the Act), and that venue was also proper under 28 U.S.C. § 1391(b) (which permits actions not founded solely on diversity of citizenship to be brought in the district where all defendants reside or "in which the claim arose") because the allegedly invalid restraint against appellee occurred in the Northern District of Texas, and that was accordingly the district "in which the claim arose." Page 443 U. S. 174Held:1. There is a sound prudential justification in this case for reversing the normal order of considering personal jurisdiction in advance of venue, since otherwise this Court would have to decide a constitutional law question not previously decided as to whether personal jurisdiction was properly obtained under the Texas long-arm statute. Pp. 443 U. S. 180-181.2. Venue was improper under § 27 of the 1934 Act because § 28(a) of that Act imposed no duty on the Idaho officials. Pp. 443 U. S. 181-182.3. Nor was venue available in the Northern District of Texas under 28 U.S.C. § 1391(b). The District of Idaho, where the actions forming the basis for appellee's claim took place, is the only one in which "the claim arose" within the meaning of § 1391(b). Pp. 443 U. S. 183-187.577 F.2d 1256, reversed.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 443 U. S. 187. Page 443 U. S. 175

1979_78-1248

MR. JUSTICE MARSHALL delivered the opinion of the Court.This case presents the issue whether information may be obtained under the Freedom of Information Act, 5 U.S.C. Page 445 U. S. 377 § 552, when the agency holding the material has been enjoined from disclosing it by a federal district court.IIn March, 1974, respondent Consumer Product Safety Commission (CPSC) announced that it would hold a public hearing to investigate hazards in the operation of television receivers and to consider the need for safety standards for televisions. 39 Fed.Reg. 10929. In the notice, the CPSC requested from television manufacturers certain information on television-related accidents. After reviewing the material voluntarily submitted, the CPSC, through orders, 15 U.S.C. § 2076(b)(1), and subpoenas, 15 U.S.C. § 2076(b)(3), obtained from the manufacturers, including petitioners, various accident reports. Claims of confidentiality accompanied most of the reports.Respondents Consumers Union of the United States, Inc., and Public Citizen's Health Research Group (the requesters) sought disclosure of the accident reports from the CPSC under the Freedom of Information Act. The requesters were given access only to those documents for which no claim of confidentiality had been made by the manufacturers. As for the rest, the CPSC gave the manufacturers an opportunity to substantiate their claims of confidentiality. The requesters agreed to wait until mid-March, 1975, for the CPSC's determination of the availability of those allegedly confidential documents.In March, 1975, the CPSC informed the requesters and the manufacturers that the documents sought did not fall within any of the exemptions of the Freedom of Information Act, and that, even if disclosure was not mandated by that Act, the CPSC would exercise its discretion to release the material on May 1, 1975. Upon receiving the notice, petitioners filed suit in the United States District Court for the District of Delaware Page 445 U. S. 378 and three other Federal District Courts, [Footnote 1] seeking to enjoin disclosure of the allegedly confidential reports. Petitioners contended that release of the information was prohibited by § 6 of the Consumer Product Safety Act, 15 U.S.C. § 2055, by exemptions to the Freedom of Information Act, [Footnote 2] and by the Trade Secrets Act, 18 U.S.C. § 1905. Petitioners sought temporary restraining orders in all of the actions, and the CPSC consented to such orders in at least some of the cases. Subsequently, the manufacturers' individual actions were consolidated in the District of Delaware, and that court issued a series of temporary restraining orders. Finally, in October, 1975, the Delaware District Court entered a preliminary injunction prohibiting release of the documents pending trial. GTE Sylvania Inc. v. Consumer Product Safety Comm'n, 404 F. Supp. 352 (1975).The requesters did not seek to intervene in the Delaware action, nor did petitioners or the CPSC attempt to have the requesters joined. Instead, on May 5, 1975, the requesters filed the instant action in Federal District Court for the District of Columbia, seeking release of the accident reports under the Freedom of Information Act. Named as defendants in that suit were the CPSC, its Chairman, Commissioners, Page 445 U. S. 379 and Secretary; and all of the petitioners. In September, 1975, while the motion for a preliminary injunction was still pending in Delaware, the District Court for the District of Columbia dismissed the requesters' complaint. The court observed that the CPSC had determined that the reports should be disclosed and had assured the court on the public record that disclosure would be made as soon as the agency was not enjoined from doing so. The court concluded that there was no Art. III case or controversy between the plaintiffs and the federal defendants, and therefore no jurisdiction. It also held that the complaint failed to state a claim against petitioners upon which relief could be granted, since they no longer possessed the records sought by the requesters. Nor could petitioners be subject to suit under the compulsory joinder provision of Federal Rule of Civil Procedure 19(a), since that Rule is predicated on the preexistence of federal jurisdiction over the cause of action, which was not present here. Consumers Union of United States, Inc. v. Consumer Product Safety Comm'n, 400 F. Supp. 848 (DC 1975).The United States Court of Appeals for the District of Columbia Circuit reversed. Consumers Union of United States, Inc. v. Consumer Product Safety Comm'n, 182 U.S. App D.C. 351, 561 F.2d 349 (1977). That court concluded that there was a case or controversy between the plaintiffs and the CPSC on "the threshold question of the scope and effect of the proceedings in Delaware." Id. at 356, 561 F.2d at 354. In addition, the CPSC's conduct of the Delaware litigation was "not easily reconcilable with its ostensible acceptance of [the requesters'] argument that the requested documents should be disclosed." Id. at 357, 561 F.2d at 355. [Footnote 3] The Court of Appeals held that the preliminary injunction Page 445 U. S. 380 issued by the Delaware court did not foreclose the requesters' suit under the Freedom of Information Act. That injunction did not resolve the merits of the claim, but instead was merely pendente lite relief. Thus, the order could not bar the Freedom of Information Act suit in the District of Columbia, although it would weigh in the decision as to which of the two suits should be stayed pending the outcome of the other. The court concluded, however, that such balancing was not required, because the Delaware court had entered an order "closing out" that case without further action. [Footnote 4] The Delaware action was effectively dismissed, and therefore the preliminary injunction was "dead," and did not bar the Freedom of Information Act suit. [Footnote 5] In addition, the CPSC's efforts in the Delaware action, which the court below considered "less than vigilant," and the resulting absence of full representation of the prodisclosure argument prevented the preliminary injunction from having preclusive effect. [Footnote 6] Page 445 U. S. 381The manufacturers filed a petition for writ of certiorari. While that petition was pending, the Delaware District Court granted the manufacturers' motion for summary judgment and permanently enjoined the CPSC from disclosing the accident data. GTE Sylvania, Inc. v. Consumer Product Safety Comm'n, 443 F. Supp. 1152 (1977). We granted certiorari, vacated the judgment of the Court of Appeals for the District of Columbia Circuit, and remanded the case "for further consideration in light of the permanent injunction" entered in Delaware. GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 434 U.S. 1030 (1978).On remand, the Court of Appeals reaffirmed its holding that there was a case or controversy within the meaning of Art. III. [Footnote 7] Consumers Union of United States, Inc. v. Consumer Product Safety Comm'n, 192 U.S.App.D.C. 93, 100, 590 F.2d 1209, 1216 (1978). The court also held that the Delaware permanent injunction should not prevent the continuation of the District of Columbia action. Stare decisis would not require deference to the Delaware court's decision if it was in error. Collateral estoppel was inapplicable because the requesters were not parties to the Delaware action and an agency's interests diverge too widely from the private interests of Freedom of Information Act requesters for the agency to constitute an adequate representative. Finally, the principle Page 445 U. S. 382 of comity did not mandate a different result, since the requesters were not before the Delaware court. The court below concluded that"none of the familiar anti-relitigation doctrines operates to deprive nonparty requesters of their right to sue for enforcement of the Freedom of Information Act; rather, they remain unaffected by prior litigation solely between the submitters and the involved agency."Id. at 103, 590 F.2d at 1219. The case was remanded to the District Court for a decision on the merits. If that court concluded that the Freedom of Information Act required disclosure of the reports, it could consider enjoining petitioners from enforcing their final judgment awarded by the Delaware court.We granted certiorari, 441 U.S. 942 (1979), because of the importance of the issue presented. [Footnote 8] We now reverse.IIThe threshold question raised by petitioners is whether there is a case or controversy as required to establish jurisdiction pursuant to Art. III. Petitioners urge here, as the District Court held below, that, since the CPSC agrees with the requesters that the documents should be released under the Freedom of Information Act, there is no actual controversy presented in this suit. We do not agree.The purpose of the case or controversy requirement is to"limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process."Flast v. Cohen, 392 U. S. 83, 392 U. S. 95 (1968). The clash of adverse parties "sharpens the presentation of issues upon which the court Page 445 U. S. 383 so largely depends for illumination of difficult . . . questions.'" O'Shea v. Littleton, 414 U. S. 488, 414 U. S. 494 (1974), quoting Baker v. Carr, 369 U. S. 186, 369 U. S. 204 (1962). See also Flast v. Cohen, supra at 392 U. S. 96-97. Accordingly, there is no Art. III case or controversy when the parties desire "precisely the same result," Moore v. Charlotte-Mecklenburg Board of Education, 402 U. S. 47, 402 U. S. 48 (1971) (per curiam). See also Muskrat v. United States, 219 U. S. 346, 219 U. S. 361 (1911).The CPSC and the requesters do not want "precisely the same result" in this litigation. It is true that the federal defendants have expressed the view that the reports in question should be released, and in fact notified the District Court that, absent the Delaware injunction, the information would be disclosed. See 400 F. Supp. at 853, n. 14. That injunction has been issued, however, and the basic question in this case is the effect of that order on the requesters. The CPSC contends that the injunction prevents it from releasing the documents, while the requesters believe that an equitable decree obtained by the manufacturers in a suit in which those seeking disclosure were not parties cannot deprive them of their rights under the Freedom of Information Act. In short, the issue in this case is whether, given the existence of the Delaware injunction, the CPSC has violated the Freedom of Information Act at all. The federal defendants and the requesters sharply disagree on this question, as has been evidenced at every stage of this litigation. If the requesters prevail on the merits of their claim, the CPSC will be subject to directly contradictory court orders, a prospect which the federal defendants naturally wish to avoid. It cannot be said, therefore, that the parties desire "precisely the same result." The requirements of Art. III have been satisfied. [Footnote 9] Page 445 U. S. 384IIIThe issue squarely presented is whether the Court of Appeals erred in holding that the requesters may obtain the accident reports under the Freedom of Information Act when the agency with possession of the documents has been enjoined from disclosing them by a Federal District Court. The terms of the Act and its legislative history demonstrate that the court below was in error.The Freedom of Information Act gives federal district courts the jurisdiction "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld." 5 U.S.C. § 552(a)(4)(B). This section requires a showing of three components: the agency must have (1) improperly (2) withheld (3) agency records. Kissinger v. Reporters Committee for Freedom of the Press, ante at 445 U. S. 150. In this case, the sole question is whether the first requirement, that the information has been "improperly" withheld, has been satisfied.The statute provides no definition of the term "improperly." The legislative history of the Act, however, makes clear what Congress intended. The Freedom of Information Act was a revision of § 3, the "public information" section, of the Administrative Procedure Act, 5 U.S.C. § 1002 (1964 ed.). The prior law had failed to provide the desired access to information relied upon in Government decisionmaking, and in fact had become "the major statutory excuse for withholding Government records from public view." H.R.Rep. No. 1497, 89th Cong., 2d Sess., 3 (1966) (hereinafter H R. Rep. No. 1497). See also id. at 4, 12; S.Rep. No. 813, 89th Cong., 1st Sess., 3, 5 (1965) (hereinafter S.Rep. No. 813); EPA v. Mink, 410 U. S. 73, 410 U. S. 79 (1973). Section 3 had several vague phrases upon which officials could rely to refuse requests for disclosure: "in the public interest," "relating solely to the internal Page 445 U. S. 385 management of an agency," "for good cause." Even material on the public record was available only to "persons properly and directly concerned." These undefined phrases placed broad discretion in the hands of agency officials in deciding what information to disclose, and that discretion was often abused. The problem was exacerbated by the lack of an adequate judicial remedy for the requesters. See generally H.R.Rep. No. 1497, at 4-6; S.Rep. No. 813, at 4-5; 112 Cong.Rec. 13642, reprinted in Freedom of Information Act Source Book, 93d Cong., 2d Sess., 47 (Comm.Print 1974) (remarks of Rep. Moss) (hereinafter Source Book); id. at 52 (remarks of Rep. King); id. at 71 (remarks of Rep. Rumsfeld); EPA v. Mink, supra at 410 U. S. 79.The Freedom of Information Act was intended "to establish a general philosophy of full agency disclosure," S.Rep. No. 813, at 3, and to close the "loopholes which allow agencies to deny legitimate information to the public," ibid. The attention of Congress was primarily focused on the efforts of officials to prevent release of information in order to hide mistakes or irregularities committed by the agency. Ibid.; H.R.Rep. No. 1497, at 6; Source Book 69 (remarks of Rep. Monagan); id. at 70 (remarks of Rep. Rumsfeld); id. at 73-74 (remarks of Rep. Hall), and on needless denials of information. Examples considered by Congress included the refusal of the Secretary of the Navy to release telephone directories, the decision of the National Science Foundation not to disclose cost estimates submitted by unsuccessful contractors as bids for a multimillion-dollar contract, and the Postmaster General's refusal to release the names of postal employees. See H.R.Rep. No. 1497, at 5-6.Thus, Congress was largely concerned with the unjustified suppression of information by agency officials. S.Rep. No. 813, at 5. Federal employees were denying requests for documents without an adequate basis for nondisclosure, and Congress wanted to curb this apparently unbridled discretion. Source Book 467 (remarks of Rep. Moss); id. at 61 (remarks Page 445 U. S. 386 of Rep. Fascell); id. at 70 (remarks of Rep. Rumsfeld); id. at 71 (remarks of Rep. Skubitz); id. at 80 (remarks of Rep. Anderson). It is in this context that Congress gave the federal district courts under the Freedom of Information Act jurisdiction to order the production of "improperly" withheld agency records. It is enlightening that the Senate Report uses the terms "improperly" and "wrongfully" interchangeably. S.Rep. No. 813, at 3, 5, 8.The present case involves a distinctly different context. The CPSC has not released the documents sought here solely because of the orders issued by the Federal District Court in Delaware. At all times since the filing of the complaint in the instant action, the agency has been subject to a temporary restraining order or a preliminary or permanent injunction barring disclosure. There simply has been no discretion for the agency to exercise. The concerns underlying the Freedom of Information Act are inapplicable, for the agency has made no effort to avoid disclosure; indeed, it is not the CPSC's decision to withhold the documents at all.The conclusion that the information in this case is not being "improperly" withheld is further supported by the established doctrine that persons subject to an injunctive order issued by a court with jurisdiction are expected to obey that decree until it is modified or reversed, even if they have proper grounds to object to the order. See Howat v. Kansas, 258 U. S. 181, 258 U. S. 189-190 (1922); United States v. Mine Workers, 330 U. S. 258 (1947); Walker v. City of Birmingham, 388 U. S. 307, 388 U. S. 314-321 (1967); Pasadena City Bd. of Education v. Spangler, 427 U. S. 424, 427 U. S. 439 (1976). There is no doubt that the Federal District Court in Delaware had jurisdiction to issue the temporary restraining orders and preliminary and permanent injunctions. Nor were those equitable decrees challenged as "only a frivolous pretense to validity," Walker v. City of Birmingham, supra at 388 U. S. 315, although of course there is disagreement over whether the District Court erred in Page 445 U. S. 387 issuing the permanent injunction. [Footnote 10] Under these circumstances, the CPSC was required to obey the injunctions out of "respect for judicial process," 388 U.S. at 388 U. S. 321There is nothing in the legislative history to suggest that, in adopting the Freedom of Information Act to curb agency discretion to conceal information, Congress intended to require an agency to commit contempt of court in order to release documents. Indeed, Congress viewed the federal courts as the necessary protectors of the public's right to know. To construe the lawful obedience of an injunction issued by a federal district court with jurisdiction to enter such a decree as "improperly" withholding documents under the Freedom of Information Act would do violence to the common understanding of the term "improperly," and would extend the Act well beyond the intent of Congress.We conclude that the CPSC has not "improperly" withheld the accident reports from the requesters under the Freedom of Information Act. [Footnote 11] The judgment of the United States Court of Appeals for the District of Columbia Circuit accordingly is Reversed

U.S. Supreme CourtGTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375 (1980)GTE Sylvania, Inc. v. Consumers Union of the United States, Inc.No. 78-1248Argued November 28, 1979Decided March 19, 1980445 U.S. 375SyllabusIn connection with an investigation of hazards in the operation of television receivers, respondent Consumer Product Safety Commission (CPSC) obtained various accident reports from television manufacturers, including petitioners. Respondents Consumers Union of the United States, Inc., and Public Citizen's Health Research Group (requesters) sought disclosure of the accident reports under the Freedom of Information Act (FOIA), and the CPSC determined that the reports did not fall within any of the FOIA's exemptions and notified the requesters and the manufacturers that it would release the material on a specified date. Petitioners then filed suits in various Federal District Courts to enjoin disclosure of the allegedly confidential reports, which suits were consolidated in the Federal District Court for the District of Delaware. While those suits were pending, the requesters filed the instant action against the CPSC, its Chairman, Commissioners, and Secretary, and petitioners in the Federal District Court for the District of Columbia, seeking release of the accident reports under the FOIA. That court dismissed the complaint while a motion for a preliminary injunction was still pending in Delaware, observing that the CPSC had assured the court that disclosure would be made as soon as the agency was not enjoined from doing so, and concluding, inter alia, that there was no Art. III case or controversy between the requesters and the federal defendants, and therefore no jurisdiction. Ultimately, the Court of Appeals reversed, holding that there was a case or controversy between the requesters and the CPSC as to the scope and effect of the proceedings in Delaware, and that a permanent injunction which meanwhile had been issued in the Delaware proceedings did not foreclose the requesters' FOIA suit.Held:1. There is a case or controversy as required to establish jurisdiction pursuant to Art. III even though the CPSC agrees with the requesters that the documents should be released under the FOIA. While there is no case or controversy when the parties desire "precisely the same result," here the parties do not desire "precisely the same result," since Page 445 U. S. 376 the CPSC contends that the Delaware injunction prevents it from releasing the documents, whereas the requesters believe that an equitable decree obtained by the manufacturers in a suit in which the requesters were not parties cannot deprive them of their rights under the FOIA. Pp. 445 U. S. 382-383.2. Information may not be obtained under the FOIA when the agency holding the material has been enjoined from disclosing it by a federal district court. The Act gives federal district courts jurisdiction to order the production of "improperly" withheld agency records, but here the CPSC has not "improperly" withheld the accident reports. The Act's legislative history shows that Congress was largely concerned with the unjustified suppression of information by agency officials in the exercise of their discretion, but here the CPSC had no discretion to exercise, since its sole basis for not releasing the documents was the injunction issued by the Federal District Court in Delaware. The CPSC was required to obey the injunction out of respect for judicial process, and there is nothing in the legislative history to suggest that Congress intended to require an agency to commit contempt of court in order to release documents. Pp. 445 U. S. 384 387.192 U.S.App.D.C. 93, 590 F.2d 1209, reversed. MARSHALL, J., delivered the opinion for a unanimous Court.

2002_01-1491

Syllabusdid not serve its purported immigration purpose. Id., at 690. In contrast, because the statutory provision at issue in this case governs detention of deportable criminal aliens pending their removal proceedings, the detention necessarily serves the purpose of preventing the aliens from fleeing prior to or during such proceedings. Second, while the period of detention at issue in Zadvydas was "indefinite" and "potentially permanent," id., at 690-691, the record shows that §1226(c) detention not only has a definite termination point, but lasts, in the majority of cases, for less than the 90 days the Court considered presumptively valid in Zadvydas. Pp. 517-531.276 F.3d 523, reversed.REHNQUIST, C. J., delivered the opinion of the Court, in which KENNEDY, J., joined in full, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined as to Part I, and in which O'CONNOR, SCALIA, and THOMAS, JJ., joined as to all but Part I. KENNEDY, J., filed a concurring opinion, post, p. 531. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA and THOMAS, JJ., joined, post, p. 533. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which STEVENS and GINSBURG, JJ., joined, post, p. 540. BREYER, J., filed an opinion concurring in part and dissenting in part, post, p. 576.Solicitor General Olson argued the cause for petitioners.With him on the briefs were Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, Austin C. Schlick, Donald E. Keener, and Mark C. Walters.Judy Rabinovitz argued the cause for respondent. With her on the brief were Lucas Guttentag, Lee Gelernt, Steven R. Shapiro, A. Stephen Hut, Jr., Christopher J. Meade, Liliana M. Garces, and Jayashri Srikantiah. ** 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 American Bar Association by Alfred P. Carlton, Jr., and Jeffrey L. Bleich; for Citizens and Immigrants for Equal Justice et al. by Nancy Morawetz; for International Human Rights Organizations by William J. Aceves and Paul L. Hoffman; for Law Professors by Daniel Kanstroom; for the National Asian Pacific American Legal Consortium et al. by Richard A. Cordray, Eugene F. Chay, Vincent A. Eng, and William L. Taylor; and for T. Alexander Aleinikoff et al. by Anthony J. Grler.513CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Section 236(c) of the Immigration and Nationality Act, 66 Stat. 200, as amended, 110 Stat. 3009-585, 8 U. S. C. § 1226(c), provides that "[t]he Attorney General shall take into custody any alien who" is removable from this country because he has been convicted of one of a specified set of crimes. Respondent is a citizen of the Republic of South Korea. He entered the United States in 1984, at the age of six, and became a lawful permanent resident of the United States two years later. In July 1996, he was convicted of first-degree burglary in state court in California and, in April 1997, he was convicted of a second crime, "petty theft with priors." The Immigration and Naturalization Service (INS) charged respondent with being deportable from the United States in light of these convictions, and detained him pending his removal hearing.1 We hold that Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings.Respondent does not dispute the validity of his prior convictions, which were obtained following the full procedural protections our criminal justice system offers. Respondent also did not dispute the INS' conclusion that he is subject to1 App. to Pet. for Cert. 32a; see 8 U. S. C. §§ 1l01(a)(43)(G), 1227(a)(2) (A)(iii). Section 1226(c) authorizes detention of aliens who have committed certain crimes including, inter alia, any "aggravated felony," §§ 1226(c)(1)(B), 1227(a)(2)(A)(iii), and any two "crimes involving moral turpitude," §§ 1226(c)(1)(B), 1227(a)(2)(A)(ii). Although the INS initially included only respondent's 1997 conviction in the charging document, it subsequently amended the immigration charges against him to include his 1996 conviction for first-degree burglary as another basis for mandatory detention and deportation. Brief for Petitioners 3, n. 2 (alleging that respondent's convictions reflected two" 'crimes involving moral turpitude' ").514mandatory detention under § 1226(c). See Brief in Opposition 1-2; App. 8-9.2 In conceding that he was deportable, respondent forwent a hearing at which he would have been entitled to raise any nonfrivolous argument available to demonstrate that he was not properly included in a mandatory detention category. See 8 CFR § 3.19(h)(2)(ii) (2002); Matter of Joseph, 22 1. & N. Dec. 799 (BIA 1999).3 Respondent instead filed a habeas corpus action pursuant to 28 U. S. C. § 2241 in the United States District Court for the Northern District of California challenging the constitutionality of § 1226(c) itself. App. to Pet. for Cert. 2a. He argued that his detention under § 1226(c) violated due process because the INS had made no determination that he posed either a danger to society or a flight risk. Id., at 31a, 33a.The District Court agreed with respondent that § 1226(c)'s requirement of mandatory detention for certain criminal aliens was unconstitutional. Kim v. Schiltgen, No. C 99-2 As respondent explained: "The statute requires the [INS] to take into custody any alien who 'is deportable' from the United States based on having been convicted of any of a wide range of crimes .... [Respondent] does not challenge INS's authority to take him into custody after he finished serving his criminal sentence. His challenge is solely to Section 1226(c)'s absolute prohibition on his release from detention, even where, as here, the INS never asserted that he posed a danger or significant flight risk." Brief in Opposition 1-2.3This "Joseph hearing" is immediately provided to a detainee who claims that he is not covered by § 1226(c). Tr. of Oral Arg. 22. At the hearing, the detainee may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that the INS is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention. See 8 CFR § 3. 19(h)(2)(ii) (2002); Matter of Joseph, 22 1. & N. Dec. 799 (BIA 1999). Because respondent conceded that he was deportable because of a conviction that triggers § 1226(c) and thus sought no Joseph hearing, we have no occasion to review the adequacy of Joseph hearings generally in screening out those who are improperly detained pursuant to § 1226(c). Such individualized review is available, however, and JUSTICE SOUTER is mistaken if he means to suggest otherwise. See post, at 555-556, 558 (opinion concurring in part and dissenting in part) (hereinafter dissent).5152257 SI (Aug. 11, 1999), App. to Pet. for Cert. 31a-51a. The District Court therefore granted respondent's petition subject to the INS' prompt undertaking of an individualized bond hearing to determine whether respondent posed either a flight risk or a danger to the community. Id., at 50a. Following that decision, the District Director of the INS released respondent on $5,000 bond.The Court of Appeals for the Ninth Circuit affirmed.Kim v. Ziglar, 276 F.3d 523 (2002). That court held that § 1226(c) violates substantive due process as applied to respondent because he is a permanent resident alien. Id., at 528. It noted that permanent resident aliens constitute the most favored category of aliens and that they have the right to reside permanently in the United States, to work here, and to apply for citizenship. Ibid. The court recognized and rejected the Government's two principal justifications for mandatory detention under § 1226(c): (1) ensuring the presence of criminal aliens at their removal proceedings; and (2) protecting the public from dangerous criminal aliens. The Court of Appeals discounted the first justification because it found that not all aliens detained pursuant to § 1226(c) would ultimately be deported. Id., at 531-532. And it discounted the second justification on the grounds that the aggravated felony classification triggering respondent's detention included crimes that the court did not consider "egregious" or otherwise sufficiently dangerous to the public to necessitate mandatory detention. Id., at 532-533. Respondent's crimes of first-degree burglary (burglary of an inhabited dwelling) and petty theft, for instance, the Ninth Circuit dismissed as "rather ordinary crimes." Id., at 538. Relying upon our recent decision in Zadvydas v. Davis, 533 U. S. 678 (2001), the Court of Appeals concluded that the INS had not provided a justification "for no-bail civil detention sufficient to overcome a lawful permanent resident alien's liberty interest." 276 F. 3d, at 535.516Three other Courts of Appeals have reached the same conclusion. See Patel v. Zemski, 275 F.3d 299 (CA3 2001); Welch v. Ashcroft, 293 F.3d 213 (CA4 2002); Hoang v. Comfort, 282 F.3d 1247 (CAlO 2002). The Seventh Circuit, however, rejected a constitutional challenge to § 1226(c) by a permanent resident alien. Parra v. Perryman, 172 F.3d 954 (1999). We granted certiorari to resolve this conflict, see 536 U. S. 956 (2002), and now reverse.IWe address first the argument that 8 U. S. C. § 1226(e) deprives us of jurisdiction to hear this case. See Florida v. Thomas, 532 U. S. 774, 777 (2001) ("Although the parties did not raise the issue in their briefs on the merits, we must first consider whether we have jurisdiction to decide this case"). An amicus argues, and the concurring opinion agrees, that § 1226(e) deprives the federal courts of jurisdiction to grant habeas relief to aliens challenging their detention under § 1226(c). See Brief for Washington Legal Foundation et al. as Amici Curiae. Section 1226(e) states:"(e) Judicial review"The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole."The amicus argues that respondent is contesting a "decision by the Attorney General" to detain him under § 1226(c), and that, accordingly, no court may set aside that action. Brief for Washington Legal Foundation et al. as Amici Curiae 7-8.But respondent does not challenge a "discretionary judgment" by the Attorney General or a "decision" that the Attorney General has made regarding his detention or release.517Rather, respondent challenges the statutory framework that permits his detention without bail. Parra v. Perryman, supra, at 957 ("Section 1226(e) likewise deals with challenges to operational decisions, rather than to the legislation establishing the framework for those decisions").This Court has held that "where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear." Webster v. Doe, 486 U. S. 592, 603 (1988); see also Johnson v. Robison, 415 U. S. 361, 367 (1974) (holding that provision barring review of "'decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans'" did not bar constitutional challenge (emphasis deleted)). And, where a provision precluding review is claimed to bar habeas review, the Court has required a particularly clear statement that such is Congress' intent. See INS v. St. Cyr, 533 U. S. 289, 308-309 (2001) (holding that title of provision, "Elimination of Custody Review by Habeas Corpus," along with broad statement of intent to preclude review, was not sufficient to bar review of habeas corpus petitions); see also id., at 298 (citing cases refusing to find bar to habeas review where there was no specific mention of the Court's authority to hear habeas petitions); id., at 327 (SCALIA, J., dissenting) (arguing that opinion established "a superclear statement, 'magic words' requirement for the congressional expression of" an intent to preclude habeas review).Section 1226(e) contains no explicit provision barring habeas review, and we think that its clear text does not bar respondent's constitutional challenge to the legislation authorizing his detention without bail.IIHaving determined that the federal courts have jurisdiction to review a constitutional challenge to § 1226(c), we proceed to review respondent's claim. Section 1226(c) man-518dates detention during removal proceedings for a limited class of deportable aliens-including those convicted of an aggravated felony. Congress adopted this provision against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens. See, e. g., Criminal Aliens in the United States: Hearings before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, 103d Cong., 1st Sess. (1993); S. Rep. No. 104-48, p. 1 (1995) (hereinafter S. Rep. 104-48) (confinement of criminal aliens alone cost $724 million in 1990). Criminal aliens were the fastest growing segment of the federal prison population, already constituting roughly 25% of all federal prisoners, and they formed a rapidly rising share of state prison populations as well. Id., at 6-9. Congress' investigations showed, however, that the INS could not even identify most deportable aliens, much less locate them and remove them from the country. Id., at 1. One study showed that, at the then-current rate of deportation, it would take 23 years to remove every criminal alien already subject to deportation. Id., at 5. Making matters worse, criminal aliens who were deported swiftly reentered the country illegally in great numbers. Id., at 3.The INS' near-total inability to remove deportable criminal aliens imposed more than a monetary cost on the Nation. First, as Congress explained, "[a]liens who enter or remain in the United States in violation of our law are effectively taking immigration opportunities that might otherwise be extended to others." S. Rep. No. 104-249, p. 7 (1996). Second, deportable criminal aliens who remained in the United States often committed more crimes before being removed. One 1986 study showed that, after criminal aliens were identified as deportable, 77% were arrested at least once more and 45%-nearly half-were arrested multiple times before their deportation proceedings even began. Hearing on H. R. 3333 before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the519Judiciary, 101st Cong., 1st Sess., 54, 52 (1989) (hereinafter 1989 House Hearing); see also Zadvydas, 533 U. S., at 713714 (KENNEDY, J., dissenting) (discussing high rates of recidivism for released criminal aliens).Congress also had before it evidence that one of the major causes of the INS' failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings. See Department of Justice, Office of the Inspector General, Immigration and N aturalization Service, Deportation of Aliens After Final Orders Have Been Issued, Rep. No. 1-96-03 (Mar. 1996), App. 46 (hereinafter Inspection Report) ("Detention is key to effective deportation"); see also H. R. Rep. No. 104-469, p. 123 (1995). The Attorney General at the time had broad discretion to conduct individualized bond hearings and to release criminal aliens from custody during their removal proceedings when those aliens were determined not to present an excessive flight risk or threat to society. See 8 U. S. C. § 1252(a) (1982 ed.). Despite this discretion to conduct bond hearings, however, in practice the INS faced severe limitations on funding and detention space, which considerations affected its release determinations. S. Rep. 104-48, at 23 ("[R]elease determinations are made by the INS in large part, according to the number of beds available in a particular region"); see also Reply Brief for Petitioners 9.Once released, more than 20% of deportable criminal aliens failed to appear for their removal hearings. See S. Rep. 104-48, at 2; see also Brief for Petitioners 19.4 The4 Although the Attorney General had authority to release these aliens on bond, it is not clear that all of the aliens released were in fact given individualized bond hearings. See Brief for Petitioners 19 ("[M]ore than 20% of criminal aliens who were released on bond or otherwise not kept in custody throughout their deportation proceedings failed to appear for those proceedings" (emphasis added)), citing S. Rep. 104-48, at 2. The evidence does suggest, however, that many deportable criminal aliens in this "released criminal aliens" sample received such determinations. See520dissent disputes that statistic, post, at 562-564 (opinion of SOUTER, J.), but goes on to praise a subsequent study conducted by the Vera Institute of Justice that more than confirms it. Post, at 565-566. As the dissent explains, the Vera study found that "77% of those [deportable criminal aliens] released on bond" showed up for their removal proceedings. Post, at 565. This finding-that one out of four criminal aliens released on bond absconded prior to the completion of his removal proceedings-is even more striking than the one-in-five flight rate reflected in the evidence before Congress when it adopted § 1226(c).5 The Vera Institute study strongly supports Congress' concern that, even with individualized screening, releasing deportable criminal aliens on bond would lead to an unacceptable rate of flight.Congress amended the immigration laws several times toward the end of the 1980's. In 1988, Congress limitedBrief for Petitioners 19 (noting that, for aliens not evaluated for flight risk at a bond hearing, the prehearing skip rate doubled to 40%).5 The dissent also claims that the study demonstrated that "92% of criminal aliens ... who were released under supervisory conditions attended all of their hearings." Post, at 565 (opinion of SOUTER, J.). The study did manage to raise the appearance rate for criminal aliens through a supervision program known as the Appearance Assistance Program (AAP). But the AAP study is of limited value. First, the study included only 16 aliens who, like respondent, were released from prison and charged with being deportable on the basis of an aggravated felony. 1 Vera Institute of Justice, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, pp. 33-34, 36 (Aug. 1, 2000). In addition, all 127 aliens in the AAP study were admitted into the study group only after being screened for "strength of family and community ties, appearance rates in prior legal proceedings, and eligibility to apply for a legal remedy." Id., at 13; see also id., at 37. Following this selection process, "supervision staff were in frequent, ongoing communication with participants," id., at 14, through, among other things, required reporting sessions, periodic home visits, and assistance in retaining legal representation, id., at 41-42. And, in any event, respondent seeks an individualized bond hearing, not "community supervision." The dissent's claim that criminal aliens released under supervisory conditions are likely to attend their hearings, post, at 565, therefore, is totally beside the point.521the Attorney General's discretion over custody determinations with respect to deportable aliens who had been convicted of aggravated felonies. See Pub. L. 100-690, Tit. VII, § 7343(a), 102 Stat. 4470. Then, in 1990, Congress broadened the definition of "aggravated felony," subjecting more criminal aliens to mandatory detention. See Pub. L. 101-649, Tit. V, § 501(a), 104 Stat. 5048. At the same time, however, Congress added a new provision, 8 U. S. C. § 1252(a)(2)(B) (1988 ed., Supp. II), authorizing the Attorney General to release permanent resident aliens during their deportation proceedings where such aliens were found not to constitute a flight risk or threat to the community. See Pub. L. 101-649, Tit. V, § 504(a)(5), 104 Stat. 5049.During the same period in which Congress was making incremental changes to the immigration laws, it was also considering wholesale reform of those laws. Some studies presented to Congress suggested that detention of criminal aliens during their removal proceedings might be the best way to ensure their successful removal from this country. See, e. g., 1989 House Hearing 75; Inspection Report, App. 46; S. Rep. 104-48, at 32 ("Congress should consider requiring that all aggravated felons be detained pending deportation. Such a step may be necessary because of the high rate of no-shows for those criminal aliens released on bond"). It was following those Reports that Congress enacted 8 U. S. C. § 1226, requiring the Attorney General to detain a subset of deportable criminal aliens pending a determination of their removability."In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." Mathews v. Diaz, 426 U. S. 67, 79-80 (1976). The dissent seeks to avoid this fundamental premise of immigration law by repeatedly referring to it as "dictum." Post, at 547-549, n. 9 (opinion of SOUTER, J.). The Court in Mathews, however, made the statement the dissent now seeks to avoid in reliance on clear522precedent establishing that "'any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.'" 426 U. S., at 81, n. 17 (quoting Harisiades v. Shaughnessy, 342 U. S. 580, 588-589 (1952)). And, since Mathews, this Court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens. See, e. g., Zadvydas, 533 U. S., at 718 (KENNEDY, J., dissenting) ("The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens"); Reno v. Flores, 507 U. S. 292, 305-306 (1993) ("Thus, 'in the exercise of its broad power over immigration and naturalization, "Congress regularly makes rules that would be unacceptable if applied to citizens"'" (quoting Fiallo v. Bell, 430 U. S. 787, 792 (1977), in turn quoting Mathews, supra, at 79-80)); United States v. Verdugo-Urquidez, 494 U. S. 259, 273 (1990).In his habeas corpus challenge, respondent did not contest Congress' general authority to remove criminal aliens from the United States. Nor did he argue that he himself was not "deportable" within the meaning of § 1226(c).6 Rather,6 Respondent's concession on this score is relevant for two reasons: First, because of the concession, respondent by his own choice did not receive one of the procedural protections otherwise provided to aliens detained under § 1226(c). And, second, because of the concession we do not reach a contrary argument raised by respondent for the first time in his brief on the merits in this Court. Specifically, in his brief on the merits, respondent suggests that he might not be subject to detention under § 1226(c) after all because his 1997 conviction for petty theft with priors might not qualify as an aggravated felony under recent Ninth Circuit precedent. Respondent now states that he intends to argue at his next removal hearing that "his 1997 conviction does not constitute an aggravated felony ... and his 1996 conviction [for first-degree burglary] does not constitute either an aggravated felony or a crime involving moral turpitude." Brief for Respondent 11-12. As respondent has conceded that he is deportable for purposes of his habeas corpus challenge to § 1226(c) at all previous stages of this proceeding, see n. 3, supra, we decide the case on that basis.523respondent argued that the Government may not, consistent with the Due Process Clause of the Fifth Amendment, detain him for the brief period necessary for his removal proceedings. The dissent, after an initial detour on the issue of respondent's concession, see post, at 541-543 (opinion of SouTER, J.), ultimately acknowledges the real issue in this case. Post, at 555-556, n. 11; see also Brief in Opposition 1-2 (explaining that respondent's "challenge is solely to Section 1226(c)'s absolute prohibition on his release from detention")."It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Flores, supra, at 306. At the same time, however, this Court has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process. As we said more than a century ago, deportation proceedings "would be vain if those accused could not be held in custody pending the inquiry into their true character." Wong Wing v. United States, 163 U. S. 228, 235 (1896); see also Flores, supra, at 305-306; Zadvydas, 533 U. S., at 697 (distinguishing constitutionally questioned detention there at issue from "detention pending a determination of removability"); id., at 711 (KENNEDY, J., dissenting) ("Congress' power to detain aliens in connection with removal or exclusion ... is part of the Legislature's considerable authority over immigration matters").7In Carlson v. Landon, 342 U. S. 524 (1952), the Court considered a challenge to the detention of aliens who were deportable because of their participation in Communist ac-Lest there be any confusion, we emphasize that by conceding he is "deportable" and, hence, subject to mandatory detention under § 1226(c), respondent did not concede that he will ultimately be deported. As the dissent notes, respondent has applied for withholding of removal. Post, at 541 (opinion of SOUTER, J.).7 In fact, prior to 1907 there was no provision permitting bail for any aliens during the pendency of their deportation proceedings. See §20, 34 Stat. 905.524tivities. The detained aliens did not deny that they were members of the Communist Party or that they were therefore deportable. Id., at 530. Instead, like respondent in the present case, they challenged their detention on the grounds that there had been no finding that they were unlikely to appear for their deportation proceedings when ordered to do so. Id., at 531-532; see also Brief for Petitioner in Carlson v. Landon, O. T. 1951, No. 35, p. 12 (arguing that legislative determinations could not justify "depriving [an alien] of his liberty without facts personal to the individual"). Although the Attorney General ostensibly had discretion to release detained Communist aliens on bond, the INS had adopted a policy of refusing to grant bail to those aliens in light of what Justice Frankfurter viewed as the mistaken "conception that Congress had made [alien Communists] in effect unbailable." 342 U. S., at 559, 568 (dissenting opinion).The Court rejected the aliens' claims that they were entitled to be released from detention if they did not pose a flight risk, explaining "[d]etention is necessarily a part of this deportation procedure." Id., at 538; see also id., at 535. The Court noted that Congress had chosen to make such aliens deportable based on its "understanding of [Communists'] attitude toward the use of force and violence ... to accomplish their political aims." Id., at 541. And it concluded that the INS could deny bail to the detainees "by reference to the legislative scheme" even without any finding of flight risk. Id., at 543; see also id., at 550 (Black, J., dissenting) ("Denial [of bail] was not on the ground that if released [the aliens] might try to evade obedience to possible deportation orders"); id., at 551, and n. 6.The dissent argues that, even though the aliens in Carlson were not flight risks, "individualized findings of dangerousness were made" as to each of the aliens. Post, at 573 (opinion of SOUTER, J.). The dissent, again, is mistaken. The aliens in Carlson had not been found individually dangerous.525The only evidence against them was their membership in the Communist Party and "a degree ... of participation in Communist activities." 342 U. S., at 541. There was no "individualized findin[gJ" of likely future dangerousness as to any of the aliens and, in at least one case, there was a specific finding of nondangerousness.8 The Court nonetheless concluded that the denial of bail was permissible "by reference to the legislative scheme to eradicate the evils of Communist activity." Id., at 543.98 See Carlson v. Landon, 342 U. S., at 549 (Black, J., dissenting) (noting that, in at least one case, the alien involved had been found" 'not likely to engage in any subversive activities'" (emphasis added)); see also id., at 550, n. 5 (quoting the District Judge's finding in case No. 35 that '''I don't know whether it is true ... that their release is dangerous to the security of the United States' "); id., at 552 ("[T]he bureau agent is not required to prove that a person he throws in jail is ... 'dangerous'" (emphasis added)); see also id., at 567 (Frankfurter, J., dissenting) ("[T]he Attorney General ... did not deny bail from an individualized estimate of 'the danger to the public safety of [each person's] presence within the community'" (emphasis added)).9 Apart from its error with respect to the dangerousness determination, the dissent attempts to distinguish Carlson from the present case by arguing that the aliens in Carlson had engaged in "'personal activity'" in support of a political party Congress considered "'a menace to the public.' " Post, at 569 (opinion of SOUTER, J.). In suggesting that this is a distinction, the dissent ignores the "personal activity" that aliens like respondent have undertaken in committing the crimes that subject them to detention in the first instance-personal activity that has been determined with far greater procedural protections than any finding of "active membership" in the Communist Party involved in Carlson. See 342 U. S., at 530 ("[T]he Director made allegation[s], supported by affidavits, that the Service's dossier of each petitioner contained evidence indicating to him that each was at the time of arrest a member of the Communist Party of the United States and had since 1930 participated ... in the Party's indoctrination of others"). In the present case, respondent became "deportable" under § 1226(c) only following criminal convictions that were secured following full procedural protections. These convictions, moreover, reflect "personal activity" that Congress considered relevant to future dangerousness. Cf. Zadvydas v. Davis, 533 U. S. 678, 714 (2001) (KENNEDY, J., dissenting) (noting that "a criminal record accumulated by an526In Reno v. Flores, 507 U. S. 292 (1993), the Court considered another due process challenge to detention during deportation proceedings. The due process challenge there was brought by a class of alien juveniles. The INS had arrested them and was holding them in custody pending their deportation hearings. The aliens challenged the INS' policy of releasing detained alien juveniles only into the care of their parents, legal guardians, or certain other adult relatives. See, e. g., id., at 297 (citing Detention and Release of Juveniles, 53 Fed. Reg. 17449 (1988) (codified as to deportation at 8 CFR § 242.24 (1992))). The aliens argued that the policy improperly relied "upon a 'blanket' presumption of the unsuitability of custodians other than parents, close relatives, and guardians" to care for the detained juvenile aliens. 507 U. S., at 313. In rejecting this argument, the Court emphasized that "reasonable presumptions and generic rules," even when made by the INS rather than Congress, are not necessarily impermissible exercises of Congress' traditional power to legislate with respect to aliens. Ibid.; see also id., at 313-314 ("In the case of each detained alien juvenile, the INS makes those determinations that are specific to the individual and necessary to accurate application of the regulation .... The particularization and individuation need go no further than this"). Thus, as with the prior challenges to detention during deportation proceedings, the Court in Flores rejected the due process challenge and upheld the constitutionality of the detention.Despite this Court's longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings, respondent argues that the narrow detention policy reflected in 8 U. S. C. § 1226(c) violates due process. Respondent, likeadmitted alien" is a good indicator of future danger, and that "[a]ny suggestion that aliens who have completed prison terms no longer present a danger simply does not accord with the reality that a significant risk may still exist").527the four Courts of Appeals that have held § 1226(c) to be unconstitutional, relies heavily upon our recent opinion in Zadvydas v. Davis, 533 U. S. 678 (2001).In Zadvydas, the Court considered a due process challenge to detention of aliens under 8 U. S. C. § 1231 (1994 ed., Supp. V), which governs detention following a final order of removal. Section 1231(a)(6) provides, among other things, that when an alien who has been ordered removed is not in fact removed during the 90-day statutory "removal period," that alien "may be detained beyond the removal period" in the discretion of the Attorney General. The Court in Zadvydas read § 1231 to authorize continued detention of an alien following the 90-day removal period for only such time as is reasonably necessary to secure the alien's removal. 533 U. S., at 699.But Zadvydas is materially different from the present case in two respects.First, in Zadvydas, the aliens challenging their detention following final orders of deportation were ones for whom removal was "no longer practically attainable." Id., at 690. The Court thus held that the detention there did not serve its purported immigration purpose. Ibid. In so holding, the Court rejected the Government's claim that, by detaining the aliens involved, it could prevent them from fleeing prior to their removal. The Court observed that where, as there, "detention's goal is no longer practically attainable, detention no longer bears a reasonable relation to the purpose for which the individual was committed." Ibid. (internal quotation marks and citation omitted).lOIn the present case, the statutory provision at issue governs detention of deportable criminal aliens pending their10 The dissent denies this point, insisting that the detention at issue in Zadvydas actually did bear a reasonable relation to its immigration purpose. Post, at 561 (opinion of SOUTER, J.) ("[T]he statute in Zadvydas ... served the purpose of preventing aliens ... from fleeing prior to actual deportation").528removal proceedings. Such detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed. Respondent disagrees, arguing that there is no evidence that mandatory detention is necessary because the Government has never shown that individualized bond hearings would be ineffective. See Brief for Respondent 14. But as discussed above, see supra, at 519-520, in adopting § 1226(c), Congress had before it evidence suggesting that permitting discretionary release of aliens pending their removal hearings would lead to large numbers of deportable criminal aliens skipping their hearings and remaining at large in the United States unlawfully.Respondent argues that these statistics are irrelevant and do not demonstrate that individualized bond hearings "are ineffective or burdensome." Brief for Respondent 33-40. It is of course true that when Congress enacted § 1226, individualized bail determinations had not been tested under optimal conditions, or tested in all their possible permutations. But when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal. The evidence Congress had before it certainly supports the approach it selected even if other, hypothetical studies might have suggested different courses of action. Cf., e. g., Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 436-437 (2002); Flores, supra, at 315 ("It may well be that other policies would be even better, but 'we are [not] a legislature charged with formulating public policy''' (quoting Schall v. Martin, 467 U. S. 253, 281 (1984))).Zadvydas is materially different from the present case in a second respect as well. While the period of detention at issue in Zadvydas was "indefinite" and "potentially permanent," 533 U. S., at 690-691, the detention here is of a much shorter duration.529Zadvydas distinguished the statutory prOVlSlon it was there considering from § 1226 on these very grounds, noting that "post-removal-period detention, unlike detention pending a determination of removability ... , has no obvious termination point." Id., at 697 (emphasis added). Under §1226(c), not only does detention have a definite termination point, in the majority of cases it lasts for less than the 90 days we considered presumptively valid in ZadvydasY The Executive Office for Immigration Review has calculated that, in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days. Brief for Petitioners 39-40. In the remaining 15% of cases, in which the alien appeals the decision of the immigration judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter. Id., at 40.12These statistics do not include the many cases in which removal proceedings are completed while the alien is still serving time for the underlying conviction. Id., at 40,11 The dissent concedes that "[t]he scheme considered in Zadvydas did not provide review immediately .... [C]ustody review hearings usually occurred within three months of a transfer to a postorder detention unit." Post, at 555, n. 11 (opinion of SOUTER, J.). Yet, in discussing the present case, the dissent insists that "the due process requirement of an individualized finding of necessity applies to detention periods shorter than" respondent's. Post, at 568, n. 24 (citing Schall v. Martin, 467 U. S. 253, 270, 276-277 (1984), in which "the detainee was entitled to a hearing" when threatened with "a maximum detention period of 17 days"). The dissent makes no attempt to reconcile its suggestion that aliens are entitled to an immediate hearing with the holding in Zadvydas permitting aliens to be detained for several months prior to such a hearing.12 The very limited time of the detention at stake under § 1226(c) is not missed by the dissent. See post, at 568 (opinion of SOUTER, J.) ("Successful challenges often require several months"); ibid. (considering "[t]he potential for several months [worth] of confinement"); but see post, at 549 ("potentially lengthy detention").530n. 17.13 In those cases, the aliens involved are never subjected to mandatory detention at all. In sum, the detention at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.14 Respondent was detained for some-13 Congress has directed the INS to identify and track deportable criminal aliens while they are still in the criminal justice system, and to complete removal proceedings against them as promptly as possible. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, §§432, 438(a), 110 Stat. 1273-1276; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, §§ 326, 329, 110 Stat. 3009-630 to 3009-631 (codified at 8 U. S. C. § 1228). The INS therefore established the Institutional Hearing Program (IHP) (subsequently subsumed under the "Institutional Removal Program"). By 1997, the General Accounting Office found that nearly half of all deportable criminal aliens' cases were completed through the IHP prior to the aliens' release from prison. See General Accounting Office, Report to the Chairman, Subcommittee on Immigration and Claims of the House Committee on the Judiciary, INS' Efforts to Remove Imprisoned Aliens Continue to Need Improvement 10, Fig. 1 (Oct. 1998). The report urged, however, that the INS needed to improve its operations in order to complete removal proceedings against all deportable criminal aliens before their release. Id., at 13. Should this come to pass, of course, § 1226(c) and the temporary detention it mandates would be rendered obsolete.14 Prior to the enactment of § 1226(c), when the vast majority of deportable criminal aliens were not detained during their deportation proceedings, many filed frivolous appeals in order to delay their deportation. See S. Rep. 104-48, at 2 ("Delays can earn criminal aliens more than work permits and wages-if they delay long enough they may even obtain U. S. citizenship"). Cf. Zadvydas, 533 U. S., at 713 (KENNEDY, J., dissenting) ("[C]ourt ordered release cannot help but encourage dilatory and obstructive tactics by aliens"). Respondent contends that the length of detention required to appeal may deter aliens from exercising their right to do so. Brief for Respondent 32. As we have explained before, however, "the legal system ... is replete with situations requiring the making of difficult judgments as to which course to follow," and, even in the criminal context, there is no constitutional prohibition against requiring parties to make such choices. McGautha v. California, 402 U. S. 183,213 (1971) (internal quotation marks omitted); accord, Chaffin v. Stynchcombe, 412 U. S. 17, 30-31 (1973).531what longer than the average-spending six months in INS custody prior to the District Court's order granting habeas relief, but respondent himself had requested a continuance of his removal hearing. 15For the reasons set forth above, respondent's claim must fail. Detention during removal proceedings is a constitutionally permissible part of that process. See, e. g., Wong Wing, 163 U. S., at 235 ("We think it clear that detention, or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens would be valid"); Carlson v. Landon, 342 U. S. 524 (1952); Reno v. Flores, 507 U. S. 292 (1993). The INS detention of respondent, a criminal alien who has conceded that he is deportable, for the limited period of his removal proceedings, is governed by these cases. The judgment of the Court of Appeals isReversed

OCTOBER TERM, 2002SyllabusDEMORE, DISTRICT DIRECTOR, SAN FRANCISCO DISTRICT OF IMMIGRATION AND NATURALIZATION SERVICE, ET AL. v. KIMCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 01-1491. Argued January 15, 2003-Decided April 29, 2003Under the Immigration and Nationality Act, 8 U. S. C. § 1226(c), "[t]he Attorney General shall take into custody any alien who" is removable from this country because he has been convicted of one of a specified set of crimes, including an "aggravated felony." After respondent, a lawful permanent resident alien, was convicted in state court of first-degree burglary and, later, of "petty theft with priors," the Immigration and Naturalization Service (INS) charged him with being deportable from the United States in light of these convictions, and detained him pending his removal hearing. Without disputing the validity of his convictions or the INS' conclusion that he is deportable and therefore subject to mandatory detention under § 1226(c), respondent filed a habeas corpus action challenging § 1226(c) on the ground that his detention thereunder violated due process because the INS had made no determination that he posed either a danger to society or a flight risk. The District Court agreed and granted respondent's petition subject to the INS' prompt undertaking of an individualized bond hearing, after which respondent was released on bond. In affirming, the Ninth Circuit held that § 1226(c) violates substantive due process as applied to respondent because he is a lawful permanent resident, the most favored category of aliens. The court rejected the Government's two principal justifications for mandatory detention under § 1226(c), discounting the firstensuring the presence of criminal aliens at their removal proceedingsupon finding that not all aliens detained pursuant to § 1226(c) would ultimately be deported, and discounting the second-protecting the public from dangerous criminal aliens-on the grounds that the aggravated felony classification triggering respondent's detention included crimes (such as respondent's) that the court did not consider "egregious" or otherwise sufficiently dangerous to the public to necessitate mandatory detention. Relying on Zadvydas v. Davis, 533 U. S. 678, the court concluded that the INS had not provided a justification for no-bail civil detention sufficient to overcome a permanent resident alien's liberty interest.511Held:1. Section 1226(e)-which states that "[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review" and that "[n]o court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien" -does not deprive the federal courts of jurisdiction to grant habeas relief to aliens challenging their detention under § 1226(c). Respondent does not challenge a "discretionary judgment" by the Attorney General or a "decision" that the Attorney General has made regarding his detention or release. Rather, respondent challenges the statutory framework that permits his detention without bail. Where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear. E. g., Webster v. Doe, 486 U. S. 592, 603. And, where a provision precluding review is claimed to bar habeas review, the Court requires a particularly clear statement that such is Congress' intent. See INS v. St. Cyr, 533 U. S. 289, 308-309, 298, 327. Section 1226(e) contains no explicit provision barring habeas review. Pp. 516-517.2. Congress, justifiably concerned with evidence that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings. In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. Mathews v. Diaz, 426 U. S. 67, 79-80. Although the Fifth Amendment entitles aliens to due process in deportation proceedings, Reno v. Flores, 507 U. S. 292, 306, detention during such proceedings is a constitutionally valid aspect of the process, e. g., Wong Wing v. United States, 163 U. S. 228, 235, even where, as here, aliens challenge their detention on the grounds that there has been no finding that they are unlikely to appear for their deportation proceedings, Carlson v. Landon, 342 U. S. 524, 538. The INS detention of respondent, a criminal alien who has conceded that he is deportable, for the limited period of his removal proceedings, is governed by these cases. Respondent argues unpersuasively that the § 1226(c) detention policy violates due process under Zadvydas, 533 U. S., at 699, in which the Court held that § 1231(a)(6) authorizes continued detention of an alien subject to a final removal order beyond that section's 90-day removal period for only such time as is reasonably necessary to secure the removal. Zadvydas is materially different from the present case in two respects. First, the aliens there challenging their detention following final deportation orders were ones for whom removal was "no longer practically attainable," such that their detention512Full Text of Opinion

1979_78-972

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondent Apfelbaum invoked his privilege against compulsory self-incrimination while being questioned before a grand jury in the Eastern District of Pennsylvania. The Government then granted him immunity in accordance with 18 U.S.C. § 6002, and he answered the questions propounded to him. He was then charged with and convicted of making false statements in the course of those answers. [Footnote 1] The Court Page 445 U. S. 117 of Appeals reversed the conviction, however, because the District Court had admitted into evidence relevant portions of respondent's grand jury testimony that had not been alleged in the indictment to constitute the "corps delicti" or "core" of the false statements offense. Because proper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely, we hold that neither the statute nor the Fifth Amendment requires that the admissibility of immunized testimony be governed by any different rules than other testimony at a trial for making false statements in violation of 18 U.S.C. § 1623(a) (1976 ed., Supp. II). We therefore reverse the judgment of the Court of Appeals.IThe grand jury had been investigating alleged criminal activities in connection with an automobile dealership located in the Chestnut Hill section of Philadelphia. The investigation focused on a robbery of $175,000 in cash that occurred at the dealership on April 16, 1975, and on allegations that two officers of the dealership staged the robbery in order to repay loan-shark debts. [Footnote 2] The grand jury also heard testimony that the officers were making extortionate extensions of credit through the Chestnut Hill Lincoln-Mercury dealership.In 1976, respondent Apfelbaum, then an administrative assistant to the District Attorney in Philadelphia, was called to testify because it was thought likely that he was an aider or abettor or an accessory after the fact to the allegedly staged robbery. When the grand jury first sought to question him about his relationship with the two dealership officials suspected Page 445 U. S. 118 of the staged robbery, he claimed his Fifth Amendment privilege against compulsory self-incrimination and refused to testify. The District Judge entered an order pursuant to 18 U.S.C. § 6002 granting him immunity and compelling him to testify. [Footnote 3] Respondent ultimately complied with this order to testify. [Footnote 4]During the course of his grand jury testimony, respondent made two series of statements that served as the basis for his subsequent indictment and conviction for false swearing. The first series was made in response to questions concerning whether respondent had attempted to locate Harry Brown, one of the two dealership officials, while on a "fishing trip" in Ft. Lauderdale, Fla., during the month of December, 1975. Respondent testified that he was "positive" he had not attempted to locate Brown, who was also apparently in the Ft. Lauderdale area at the time. In a second series of statements, respondent denied that he had told FBI agents that he had lent $10,000 to Brown. The grand jury later indicted respondent Page 445 U. S. 119 pursuant to 18 U.S.C. § 1623(a) (1976 ed., Supp. II) for making these statements, charging that the two series of statements were false and that respondent knew they were false.At trial, the Government introduced into evidence portions of respondent's grand jury testimony in order to put the charged statements in context and to show that respondent knew they were false. The excerpts concerned respondent's relationship with Brown, his 1976 trip to Florida to visit Brown, the discussions he had with Brown on that occasion, and his denial that he had financial dealings with the automobile dealership in Philadelphia or had cosigned a loan for Brown. Respondent objected to the use of all the immunized testimony except the portions charged in the indictment as false. The District Court overruled the objection and admitted the excerpts into evidence on the ground that they were relevant to prove that respondent had knowingly made the charged false statements. The jury found respondent guilty on both counts of the indictment.The Court of Appeals for the Third Circuit reversed, holding that, because the immunized testimony did not constitute "the corpus delicti or core of a defendant's false swearing indictment," it could not be introduced. 584 F.2d 1264, 1265 (1978). We granted certiorari because of the importance of the issue and because of a difference in approach to it among the Courts of Appeals. [Footnote 5] 440 U.S. 957 (1979). Page 445 U. S. 120The differing views that this question has elicited from the Courts of Appeals are not surprising, because there are considered statements in one line of cases from this Court, and both statements and actual holdings in another line of cases, that, as a matter of strict and literal reading, cannot be wholly reconciled. [Footnote 6] Though most of the decisions of the Courts of Page 445 U. S. 121 Appeals turn on the interaction between perjury and immunity statutes enacted by Congress and the privilege against compulsory self-incrimination conferred by the Fifth Amendment to the United States Constitution, it is of course our first duty to decide whether the statute relied upon in this case to sustain the conviction of respondent may properly be interpreted to do so. We turn now to decision of that question.IIDid Congress intend the federal immunity statute, 18 U.S.C. § 6002, to limit the use of a witness' immunized grand jury testimony in a subsequent prosecution of the witness for false statements made at the grand jury proceeding? Respondent contends that, while § 6002 permits the use of a witness' false statements in a prosecution for perjury or for making false declarations, it establishes an absolute prohibition against the use of truthful immunized testimony in such prosecutions. But this contention is wholly at odds with the explicit language of the statute, and finds no support even in its legislative history.It is a well established principle of statutory construction that, absent clear evidence of a contrary legislative intention, a statute should be interpreted according to its plain language. Here, 18 U.S.C. § 6002 provides that, when a witness is compelled to testify over his claim of a Fifth Amendment privilege,"no testimony or other information compelled under the order (or any information directly or indirectly derived from Page 445 U. S. 122 such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order."(Emphasis added.) The statute thus makes no distinction between truthful and untruthful statements made during the course of the immunized testimony. Rather, it creates a blanket exemption from the bar against the use of immunized testimony in cases in which the witness is subsequently prosecuted for making false statements.The legislative history of § 6002 shows that Congress intended the perjury and false declarations exception to be interpreted as broadly as constitutionally permissible. The present statute was enacted as a part of the Organized Crime Control Act of 1970, [Footnote 7] after a reexamination of the broad transactional immunity statute enacted in response to this Court's decision in Counselman v. Hitchcock, 142 U. S. 547 (1892). See Kastigar v. United States, 406 U. S. 441, 406 U. S. 452, and n. 36 (1972). Its design was not only to bring about uniformity in the operation of immunity grants within the federal system, [Footnote 8] but also to restrict the grant of immunity to that required by the United States Constitution. Thus, the statute derives from a 1969 report of the National Commission on the Reform of the Federal Criminal Laws which proposed a general use immunity statute under which "the immunity conferred would Page 445 U. S. 123 be confined to the scope required by the Fifth Amendment." [Footnote 9] And as stated in both the Senate and House Reports on the proposed legislation:"This statutory immunity is intended to be as broad as, but no broader than, the privilege against self-incrimination. . . . It is designed to reflect the use-restriction immunity concept of Murphy v. Waterfront Commission, 378 U. S. 52 (1964), rather [than] the transaction immunity concept of Counselman v. Hitchcock, 142 U. S. 547 (1892). [Footnote 10]"In light of the language and legislative history of § 6002, the conclusion is inescapable that Congress intended to permit the use of both truthful and false statements made during the course of immunized testimony if such use was not prohibited by the Fifth Amendment.IIIThe limitation placed on the use of relevant evidence by the Court of Appeals may be justified, then, only if required by the Fifth Amendment. Respondent contends that his conviction was properly reversed because, under the Fifth Amendment, his truthful immunized statements were inadmissible at his perjury trial, and the Government never met its burden of showing that the immunized statements it introduced into evidence were not truthful. The Court of Appeals, as noted Page 445 U. S. 124 above, concluded that the Fifth Amendment prohibited the use of all immunized testimony except the "corpus delicti" or "core" of the false swearing indictment.In reaching its conclusion, the Court of Appeals initially observed that a grant of immunity must be coextensive with the Fifth Amendment. Kastigar v. United States, supra at 406 U. S. 449. It then reasoned that, had respondent not been granted immunity, he would have been entitled under the Fifth Amendment to remain silent. And if he had remained silent, he would not have answered any questions, truthfully or falsely. There consequently would have been no testimony whatsoever to use against him. A prosecution for perjury committed at the immunized proceeding, the Court of Appeals continued, must be permitted, because "as a practical matter, if immunity constituted a license to lie, the purpose of immunity would be defeated." Such a prosecution is but a "narrow exception" carved out to preserve the integrity of the truth-seeking process. But the subsequent use of statements made at the immunized proceeding, other than those alleged in the indictment to be false, is impermissible because the introduction of such statements cannot be reconciled with the privilege against self-incrimination. 584 F.2d at 1269-1271.AThere is more than one flaw in this reasoning. Initially, it presumes that, in order for a grant of immunity to be "coextensive with the Fifth Amendment privilege," the witness must be treated as if he had remained silent. This presumption focuses on the effect of the assertion of the Fifth Amendment privilege, rather than on the protection the privilege is designed to confer. In so doing, it calls into question the constitutionality of all immunity statutes, including "transactional" immunity statutes as well as "use" immunity statutes such as 6002. Such grants of immunity would not provide a full and complete substitute for a witness' silence because, for example, they do not bar the use of the witness' statements Page 445 U. S. 125 in civil proceedings. Indeed, they fail to prevent the use of such statements for any purpose that might cause detriment to the witness other than that resulting from subsequent criminal prosecution.This Court has never held, however, that the Fifth Amendment requires immunity statutes to preclude all uses of immunized testimony. Such a requirement would be inconsistent with the principle that the privilege does not extend to consequences of a noncriminal nature, such as threats of liability in civil suits, disgrace in the community, or the loss of employment. See, e.g., Brown v. Walker, 161 U. S. 591, 161 U. S. 605-606 (1896); Smith v. United States, 337 U. S. 137, 337 U. S. 147 (1949); Ullmann v. United States, 350 U. S. 422, 350 U. S. 430-431 (1956); Uniformed Sanitation Men Assn. v. Commissioner of Sanitation, 392 U. S. 280, 392 U. S. 284-285 (1968); Gardner v. Broderick, 392 U. S. 273, 392 U. S. 279 (1968).And this Court has repeatedly recognized the validity of immunity statutes. Kastigar v. United States, 406 U.S. at 406 U. S. 449, acknowledged that Congress included immunity statutes in many of the regulatory measures adopted in the first half of this century, and that, at the time of the enactment of 18 U.S.C. § 6002, the statute under which this prosecution was brought, there were in force over 50 federal immunity statutes, as well as similar laws in every State of the Union. 406 U.S. at 406 U. S. 447. This Court, in Ullmann v. United States, supra, stated that such statutes have "become part of our constitutional fabric." 350 U.S. at 350 U. S. 438. And the validity of such statutes may be traced in our decisions at least as far back as Brown v. Walker, supra.These cases also establish that a strict and literal reading of language in cases such as Counselman v. Hitchcock, 142 U.S. at 124 U. S. 585 -- that an immunity statute "cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect" -- does not require the sort of "but for" analysis used by the Court of Appeals in order to enable it to survive Page 445 U. S. 126 attack as being violative of the privilege against compulsory self-incrimination. Indeed, in Brown v. Walker, supra at 161 U. S. 600, this Court stated that"[t]he danger of extending the principle announced in Counselman v. Hitchcock is that the privilege may be put forward for a sentimental reason, or for a purely fanciful protection of the witness against an imaginary danger, and for the real purpose of securing immunity to some third person, who is interested in concealing the facts to which he would testify."And in Kastigar v. United States, we concluded that"[t]he broad language in Counselman relied upon by petitioners was unnecessary to the Court's decision, and cannot be considered binding authority."406 U.S. at 406 U. S. 454-455. Kastigar also expressly declined a request by the petitioner to reconsider and overrule Brown v. Walker, supra, and Ullmann v. United States, supra, and went on to expressly reaffirm the validity of those decisions.The reasoning of the Court of Appeals is also internally inconsistent, in that logically it would not permit a prosecution for perjury or false swearing committed during the course of the immunized testimony. If a witness must be treated as if he had remained silent, the mere requirement that he answer questions, thereby subjecting himself to the possibility of being subsequently prosecuted for perjury or false swearing, places him in a position that is substantially different from that he would have been in had he been permitted to remain silent.All of the Courts of Appeals, however, have recognized that the provision in 18 U.S.C. § 6002 allowing prosecutions for perjury in answering questions following a grant of immunity does not violate the Fifth Amendment privilege against compulsory self-incrimination. And we ourselves have repeatedly held that perjury prosecutions are permissible for false answers to questions following the grant of immunity. See, e.g., United States v. Wong, 431 U. S. 174 (1977); United States v. Mandujano, 425 U. S. 564 (1976) (plurality opinion); id. at 425 U. S. 584-585 (BRENNAN, J., concurring in judgment); Page 445 U. S. 127 id. at 425 U. S. 609 (STEWART, J., joined by BLACKMUN, J., concurring in judgment).It is therefore analytically incorrect to equate the benefits of remaining silent as a result of invocation of the Fifth Amendment privilege with the protections conferred by the privilege -- protections that may be invoked with respect to matters that pose substantial and real hazards of subjecting a witness to criminal liability at the time he asserts the privilege. For a grant of immunity to provide protection "coextensive" with that of the Fifth Amendment, it need not treat the witness as if he had remained silent. Such a conclusion, as noted above, is belied by the fact that immunity statutes and prosecutions for perjury committed during the course of immunized testimony are permissible at all.BThe principle that the Fifth Amendment privilege against compulsory self-incrimination provides no protection for the commission of perjury has frequently been cited without any elaboration as to its underlying rationale. See, e.g., Bryson v. United States, 396 U. S. 64, 396 U. S. 72 (1969); United States v. Knox, 396 U. S. 77, 396 U. S. 82 (1969). Its doctrinal foundation, as relied on in both Wong and Mandujano, is traceable to Glickstein v. United States, 222 U. S. 139, 222 U. S. 142 (1911). Glickstein stated that the Fifth Amendment "does not endow the person who testifies with a license to commit perjury," ibid., and that statement has been so often repeated in our cases as to be firmly established constitutional law. But just as we have refused to read literally the broad dicta of Counselman, supra, we are likewise unwilling to decide this case solely upon an epigram contained in Glickstein, supra. Thus, even if, as the Court of Appeals said, a perjury prosecution is but a "narrow exception" to the principle that a witness should be treated as if he had remained silent, it does not follow that the Court of Appeals was correct in its view of the question before us now. Page 445 U. S. 128Perjury prosecutions based on immunized testimony, even if they be but a "narrow exception" to the principle that a witness should be treated as if he had remained silent after invoking the Fifth Amendment privilege, are permitted by our cases. And so long as they are, there is no principle or decision that limits the admissibility of evidence in a manner peculiar only to them. To so hold would not be an exercise in the balancing of competing constitutional rights, but in a comparison of apples and oranges. [Footnote 11] For even if both truthful and untruthful testimony from the immunized proceeding are admissible in a subsequent perjury prosecution, the exception surely would still be properly regarded as "narrow," once it is recognized that the testimony remains inadmissible in all prosecutions for offenses committed prior to the grant of immunity that would have permitted the witness to invoke his Fifth Amendment privilege absent the grant.While the application of the Fifth Amendment privilege to various types of claims has changed in some respects over the past three decades, the basic test reaffirmed in each case has been the same."The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination. Rogers v. United States, 340 U. S. 367, 340 U. S. 374; Brown v. Walker, 161 U. S. 591, 161 U. S. 600."Marchetti v. United States, 390 U. S. 39, 390 U. S. 53 (1968).Marchetti, which overruled earlier decisions of this Court in United States v. Kahriger, 345 U. S. 22 (1953), and Lewis v. United States, 348 U. S. 419 (1955), invalidated the federal Page 445 U. S. 129 wagering statutes at issue in Kahriger and Lewis on the ground that they contravened the petitioner's Fifth Amendment right against compulsory self-incrimination. The practical effect of the requirements of those statutes was to compel petitioner, a professional gambler engaged in ongoing gambling activities that he had commenced and was likely to continue, to choose between openly exposing himself as acting in violation of state and federal gambling laws and risking federal prosecution for tax avoidance. [Footnote 12] The Court held that petitioner was entitled to assert his Fifth Amendment privilege in these circumstances. But it also observed that "prospective acts will doubtless ordinarily involve only speculative and insubstantial risks of incrimination." 390 U.S. at 390 U. S. 54. Thus, although Marchetti rejected "the rigid chronological distinction adopted in Kahriger and Lewis," id. at 390 U. S. 53, that distinction does not aid respondent here.In United States v. Freed, 401 U. S. 601 (1971), this Court rejected the argument that a registration requirement of the National Firearms Act violated the Fifth Amendment because the information disclosed could be used in connection with offenses that the transferee of the firearm might commit in the future. In so doing, the Court stated:"Appellees' argument assumes the existence of a periphery of the Self-Incrimination Clause which protects a Page 445 U. S. 130 person against incrimination not only against past or present transgressions, but which supplies insulation for a career of crime about to be launched. We cannot give the Self-Incrimination Clause such an expansive interpretation."Id. at 401 U. S. 606-607.And MR. JUSTICE BRENNAN, in his concurring opinion, added:"I agree with the Court that the Self-Incrimination Clause of the Fifth Amendment does not require that immunity be given as to the use of such information in connection with crimes that the transferee might possibly commit in the future with the registered firearm."Id. at 401 U. S. 611.In light of these decisions, we conclude that the Fifth Amendment does not prevent the use of respondent's immunized testimony at his trial for false swearing because, at the time he was granted immunity, the privilege would not have protected him against false testimony that he later might decide to give. Respondent's assertion of his Fifth Amendment privilege arose from his claim that the questions relating to his connection with the Chestnut Hill auto dealership would tend to incriminate him. The Government consequently granted him "use" immunity under § 6002, which prevents the use and derivative use of his testimony with respect to any subsequent criminal case except prosecutions for perjury and false swearing offenses, in exchange for his compelled testimony.The Government has kept its part of the bargain; this is a perjury prosecution, and not any other kind of criminal prosecution. The Court of Appeals agreed that such a prosecution might be maintained, but, as noted above, severely limited the admissibility of immunized testimony to prove the Government's case. We believe that it could not be fairly said that respondent, at the time he asserted his privilege and was consequently granted immunity, was confronted with more than a "trifling or imaginary" hazard of compelled self-incrimination as a result of the possibility that he might commit Page 445 U. S. 131 perjury during the course of his immunized testimony. In United States v. Bryan, 339 U. S. 323 (1950), we held that an immunity statute that provided that"[n]o testimony given by a witness before . . . any committee of either House . . . shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony"did not bar the use at respondent's trial for willful default of the testimony given by her before a congressional committee. In so holding, we stated that "[t]here is, in our jurisprudence, no doctrine of anticipatory contempt.'" Id. at 339 U. S. 341.We hold here that in our jurisprudence there likewise is no doctrine of "anticipatory perjury." In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur. [Footnote 13] Similarly, a future intention to commit perjury or to make false statements if granted immunity because of a claim of compulsory self-incrimination is not, by itself, sufficient to create a "substantial and real'" hazard that permits invocation of the Fifth Amendment. Brown v. Walker, 161 U. S. 591 (1896); Rogers v. United States, 340 U. S. 367 (1951). Therefore, neither the immunity statute nor the Fifth Amendment precludes the use of respondent's immunized testimony at a subsequent prosecution for making false statements, so long as that testimony conforms to otherwise applicable rules of evidence. The exception of a perjury prosecution from the prohibition against the use of immunized testimony may be a narrow Page 445 U. S. 132 one, but it is also a complete one. The Court of Appeals having held otherwise, its judgment is accordinglyReversed

U.S. Supreme CourtUnited States v. Apfelbaum, 445 U.S. 115 (1980)United States v. ApfelbaumNo. 78-972Argued December 3, 1979Decided March 3, 1980445 U.S. 115SyllabusAfter initially invoking his Fifth Amendment privilege against self-incrimination while being questioned before a federal grand jury, respondent ultimately testified when the Government granted him immunity in accordance with 18 U.S.C. § 6002, which provides that, when a witness is compelled to testify over his claim of a Fifth Amendment privilege, no testimony or other information compelled under the order to testify may be used against the witness in any criminal case, "except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." Respondent was later indicted and convicted under 18 U.S.C. § 1623(a) (1976 ed., Supp. II) for false swearing in his grand jury testimony with regard to certain statements. At trial, respondent objected to the use of any of his immunized testimony except the portions charged in the indictment as false, but the District Court admitted other portions of the testimony as being relevant to prove that he had knowingly made the charged false statements. The Court of Appeals reversed, holding that, because such immunized testimony did not constitute the "corps delicti" or "core" of the false-statements offense, it could not be introduced.Held: Because proper invocation of the Fifth Amendment privilege against self-incrimination allows a witness to remain silent, but not to swear falsely, neither § 6002 nor the Fifth Amendment precludes the use of respondent's immunized grand jury testimony at a subsequent prosecution for making false statements, so long as that testimony conforms to otherwise applicable rules of evidence. Pp. 445 U. S. 121-132.(a) Section 6002's language makes no distinction between truthful and untruthful statements made during the course of immunized testimony, but, rather, creates a blanket exemption from the bar against the use of such testimony where the witness is subsequently prosecuted for making false statements. And § 6002's legislative history shows that Congress intended the perjury and false-declarations exception to be interpreted as broadly as constitutionally permissible. Thus, it is evident that Congress intended to permit the use of both truthful and false statements made during the course of immunized testimony if such use was not prohibited by the Fifth Amendment. Pp. 445 U. S. 121-123. Page 445 U. S. 116(b) It is analytically incorrect to equate the benefits of remaining silent as a result of invocation of the Fifth Amendment privilege with the protections conferred by the privilege -- protections that may be invoked with respect to matters that pose substantial and real hazards of subjecting a witness to criminal liability at the time he asserts the privilege. For a grant of immunity to provide protection "coextensive" with that of the Fifth Amendment, it need not treat the witness as if he had remained silent. Here, the Fifth Amendment does not prevent the use of respondent's immunized testimony at his trial for false swearing because, at the time he was granted immunity, the privilege would not have protected him against false testimony that he later might decide to give. Pp. 445 U. S. 123-132.584 F.2d 1264, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 445 U. S. 132. BLACKMUN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 445 U. S. 133.

1989_89-369

JUSTICE BLACKMUN delivered the opinion of the Court.This case concerns a Clean Air Act enforcement action by the Environmental Protection Agency (EPA) against petitioner General Motors Corporation (GMC). We are asked to decide whether the 4-month time limit on EPA review of an original state implementation plan (SIP) also applies to its review of a SIP revision, and whether, if EPA fails to complete its review of a SIP revision in a timely manner, EPA is prevented from enforcing an existing SIP.IWhat is known as the Clean Air Act, 77 Stat. 392, became law on December 17, 1963. Twenty years ago, Congress enacted the Clean Air Amendments of 1970, 84 Stat. 1676, a comprehensive national program that made the States and the Federal Government partners in the struggle against air pollution. The threats to human health were regarded as urgent, and the 1970 Amendments were designed to result in the expeditious establishment of programs to deal with the problem. The amendments specified a detailed timetable for Page 496 U. S. 533 federal and state action to accomplish this objective. They required the EPA Administrator, within 30 days of the passage of the amendments, to promulgate national ambient air quality standards (NAAQS). § 109(a)(1), 42 U.S.C. § 7409(a)(1) (1982 ed.). Within nine months thereafter, each State was to submit a SIP to implement, maintain, and enforce the NAAQS. § 110(a)(1), 42 U.S.C. § 7410(a)(1) (1982 ed.). As the final step in this start-up phase of the program, EPA was to act on a proposed SIP within four months:"The Administrator shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan or any portion thereof."§ 110(a)(2), as amended, 42 U.S.C. § 7410(a)(2) (1982 ed.). The Administrator was directed to approve the SIP if he determined that it was adopted after reasonable notice and hearing and that it met various substantive requirements, including emissions limitations, devices for monitoring air quality data, and enforcement mechanisms.The integrated timetable established by the 1970 amendments reflected the urgency of establishing air pollution controls. But the amendments also recognized that local needs and control strategies could evolve over time, and that SIP's would have to change as well. The States therefore were authorized to propose SIP revisions, and the EPA Administrator was directed to approve any such proposed revision"if he determines that it meets the requirements of paragraph (2) and has been adopted by the State after reasonable notice and public hearings."§ 110(a)(3), 42 U.S.C. § 7410(a)(3)(A) (1982 ed.).The 1970 Amendments also specified certain enforcement mechanisms. The Act empowered EPA to order compliance with an applicable implementation plan, § 113(a), 42 U.S.C. § 7413(a) (1982 ed.), and to seek injunctive relief against a source violating the plan or an EPA order, § 113(b), as amended, 42 U.S.C. § 7413(b) (1982 ed.). In addition, Congress prescribed criminal penalties for knowing violations of Page 496 U. S. 534 plans and orders, § 113(c), 42 U.S.C. § 7413(c) (1982 ed.), and authorized citizen suits for injunctions against violators, in the absence of Government enforcement, § 304, as amended, 42 U.S.C. § 7604(1982ed.).Congress further amended the Clean Air Act by the Clean Air Act Amendments of 1977. 91 Stat. 685. It added to the Act the concept of a "nonattainment area" -- an area where air quality falls short of the NAAQS. § 171(2), 42 U.S.C. § 7501(2) (1982 ed.). The deadline for attainment of the primary NAAQS in a nonattainment area was December 31, 1982. § 172(a)(1), 42 U.S.C. § 7502(a)(1) (1982 ed.). Further extensions were permitted for "photochemical oxidants" (ozone) or carbon monoxide, but only if the State demonstrated that attainment was not possible before 1983 "despite the implementation of all reasonably available measures," and that attainment would be achieved "as expeditiously as practicable, but not later than December 31, 1987." § 172(a)(2), 42 U.S.C. § 7502(a)(2) (1982 ed.).IIAThe entire Commonwealth of Massachusetts is a nonattainment area for NAAQS with respect to ozone. See 40 CFR § 81.322, p. 126 (1989). Petitioner GMC owns and operates an automobile assembly plant in Framingham, Mass. The plant's painting operation is a source of volatile organic compounds that contribute to ozone. In 1980, EPA approved Massachusetts' proposed nonattainment area SIP governing volatile organic compound emissions from automobile painting operations. The SIP permitted GMC to meet emissions limits in stages, but required full compliance by December 31, 1985. In 1981, EPA published a policy statement suggesting that new technology in automobile painting operations might justify deferral of industry compliance until 1986 or 1987. 46 Fed.Reg. 51386. Three years later, in November, 1984, GMC sought an extension from the Page 496 U. S. 535 December 31, 1985, compliance date imposed by the existing SIP, not for the new technology, but rather for additional time to install emission controls on its existing lines. App. 38. In June, 1985, GMC proposed converting to the new technology, and requested a summer, 1987, deadline. Id. at 41. The Commonwealth approved the revision and submitted the proposal to EPA on December 30, 1985, one day before the existing SIP compliance deadline. Id. at 50.GMC began construction of a new painting facility but continued to operate its existing plant. On August 14, 1986, EPA sent GMC a notice of violation, informing GMC that it was in violation of the applicable SIP. Id. at 75. Approximately one year later, on August 17, 1987, respondent filed an enforcement action under § 113(b) of the Act, 42 U.S.C. § 7413(b) (1982 ed.), alleging violations of the existing SIP's 1985 deadline. On September 4, 1988, the agency made its final decision to reject the revision. 53 Fed.Reg. 36011.BThe District Court construed § 110(a)(3) as imposing a 4-month time limit on EPA review of a SIP revision, App. 123-124, and concluded that, when EPA failed to complete its review within four months, it was barred from enforcing the existing SIP during the interval between the end of the 4-month period and the time EPA finally acted on the revision, id. at 125. Because EPA had not issued a notice of noncompliance until well after the 4-month period had elapsed, and, at the time of the court's ruling, had yet to make a final decision on the Commonwealth's SIP revision, summary judgment was entered for GMC.The Court of Appeals for the First Circuit reversed that judgment and remanded the case for further proceedings. 876 F.2d 1060 (1989). The Court of Appeals agreed with the District Court that the Act imposed a 4-month deadline on EPA review of a SIP revision, but concluded that the failure Page 496 U. S. 536 to meet that deadline did not preclude EPA from enforcing the existing SIP.Reasoning that an enforcement bar was too drastic a remedy for agency delay, the court concluded that the appropriate remedies for agency inaction were those provided by the Act itself: a suit to compel agency action under § 304(a)(2), 42 U.S.C. § 7604(a)(2) (1982 ed.), or a request pursuant to § 113(b), 42 U.S.C. § 7413(b) (1982 ed.), for reduction or elimination of penalties during the period in which unreasonable agency delay resulted in prejudice. 876 F.2d at 1067-1068. We granted certiorari because of a disagreement among the Circuits as to whether EPA is barred from enforcing an existing SIP if the agency fails to take action on a proposed SIP revision within four months. [Footnote 1] 493 U.S. 991 (1989).IIITo assure that some form of pollution control requirements were put in place quickly, the 1970 Amendments established a series of deadlines. One of these was the requirement that EPA act on a proposed SIP within four months after the State submits its plan. § 110(a)(2), 42 U.S.C. § 7410(a)(2) (1982 ed.). Specifically, the provision requires EPA to act within "four months after the date required for submission of a plan." This seems to us to refer only to the action required on the original SIP. Section 110(a)(2), by its terms, therefore does not impose such a time restraint on EPA review of a SIP revision.Petitioner nevertheless claims that § 110(a)(3) requires EPA to act on a proposed SIP revision within four months. That provision requires the Administrator to approve"any revision of an implementation plan . . . if he determines that it meets the requirements of paragraph (2) [§ 110(a)(2)] and has been adopted by the State after reasonable notice and Page 496 U. S. 537 public hearings."Petitioner contends that the reference to § 110(a)(2) was intended to incorporate both the substantive and the procedural requirements of that provision. Brief for Petitioner 13.We are not persuaded. The Administrator is to approve the proposed revision if he determines that "it" -- that is, the revision -- meets the substantive requirements imposed on a SIP by § 110(a)(2). There is no requirement that "he" -- that is, the Administrator -- meet the deadline of that section. Petitioner's reading, moreover, makes nonsense of the further requirement in § 110(a)(3) that the Administrator find that the proposed revision "has been adopted by the State after reasonable notice and public hearings." If, as petitioner contends, § 110(a)(3) incorporates the procedural provisions of § 110(a)(2), it surely incorporates § 110(a)(2)'s requirement that the Administrator find that the SIP was adopted after reasonable notice and hearing. The separate mention in § 110(a)(3) of the notice and hearing requirement demonstrates that it does not simply incorporate every direction of § 110(a)(2); and since § 110(a)(3) does not separately require the Administrator to process a proposed revision within four months, we are not free to read that limitation into the statute.This suffices to dispose of petitioner's contention, but if additional support is needed, it is available. The statute elsewhere explicitly imposes upon the Administrator deadlines of the kind that petitioner would insert into § 110(a)(3). Indeed, the very next provision of the Act contains just such an express time restraint on EPA approval of a SIP revision. See § 110(a)(3)(B) (with respect to certain SIP revisions for fuel-burning stationary sources, "[t]he Administrator shall approve or disapprove any revision no later than three months after its submission"). For other examples of explicit deadlines in the Clean Air Act, see § 110(c)(1) (6-month deadline for imposition of federal implementation "plan (or revision thereof)"); § 113(d)(2) (90-day deadline for review of Page 496 U. S. 538 state-issued delayed compliance order). Since the statutory language does not expressly impose a 4-month deadline and Congress expressly included other deadlines in the statute, it seems likely that Congress acted intentionally in omitting the 4-month deadline in § 110(a)(3)(A). See Russello v. United States, 464 U. S. 16, 464 U. S. 23 (1983) ("[W]here Congress includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion,'" quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (CA5 1972)).Petitioner's final contention is that § 110(g) imposes a 4-month limitation on EPA's action on a proposed SIP revision. That section provides:"(1) In the case of any State which has adopted and submitted to the Administrator a proposed plan revision which the State determines -- ""(A) meets the requirements of this section, and""(B) is necessary (i) to prevent the closing for one year or more of any source of air pollution, and (ii) to prevent substantial increases in unemployment which would result from such closing, and which the Administrator has not approved or disapproved under this section within the required four-month period, the Governor may issue a temporary emergency suspension of the part of the applicable implementation plan for such State which is proposed to be revised with respect to such source. . . .""(2) A temporary emergency suspension issued by a Governor under this subsection shall remain in effect for a maximum of four months. . . ."(Emphasis added.) According to petitioner, § 110(g), on its own terms, "require[s]" the Administrator to process a proposed revision within a "four-month period." Reply Brief for Petitioner 7.This is petitioner's strongest claim, but we are constrained to reject it. Section 110(g) does not, by its terms, require Page 496 U. S. 539 the Administrator to take any action. It merely authorizes the Governor to suspend the existing SIP if certain action has occurred. True, it presupposes that some "four-month period" is "required," but the incorporation of that mistaken presupposition does not, of itself, create a general requirement that the Administrator process all proposed revisions within four months. [Footnote 2] Whatever may be the correct interpretation of § 110(g)'s "required four-month period," we do not think this passing mention can be inflated into a requirement that the Administrator process each and every proposed revision within four months.IVAlthough the 4-month deadline does not apply, EPA remains subject to the Administrative Procedure Act's (APA's) statutory requirements of timeliness. The APA requires agencies to conclude matters "within a reasonable time," 5 U.S.C. § 555(b), and provides a remedy for agency action "unreasonably delayed," 5 U.S.C. § 706(1). The Government concedes, as we think it must, that its action on a proposed SIP revision is subject to that mandate. Brief for United States 19-20.Petitioner's main claim is that any delay over four months is categorically unreasonable because it violates EPA's statutory Page 496 U. S. 540 duty to process a revision within that period. We have rejected that claim above, but we nevertheless must consider petitioner's alternative contention that EPA may not bring an action to enforce an existing SIP if it unreasonably delays in acting on the proposed revision. Without deciding whether the delay in this case was unreasonable, we now address this claim. Because the statute does not reveal any congressional intent to bar enforcement of an existing SIP if EPA delays unreasonably in acting on a proposed SIP revision, we agree with the Court of Appeals that such an enforcement action is not barred.The language of the Clean Air Act plainly states that EPA may bring an action for penalties or injunctive relief whenever a person is in violation of any requirement of an "applicable implementation plan." § 113(b)(2), 42 U.S.C. § 7413(b)(2) (1982 ed.). There can be little or no doubt that the existing SIP remains the "applicable implementation plan" even after the State has submitted a proposed revision. The statute states:"For purposes of this chapter, an applicable implementation plan is the implementation plan, or most recent revision thereof, which has been approved under [§ 110(a), 42 U.S.C. § 7410(a) (1982 ed.),] or promulgated under [110(c), 42 U.S.C. § 7410(c) (1982 ed.),] and which implements the requirements of this section."§ 110(d), 42 U.S.C. § 7410(d) (1982 ed.). Both this Court and the Courts of Appeals have recognized that the approved SIP is the applicable implementation plan during the time a SIP revision proposal is pending. See, e.g., Train v. Natural Resources Defense Council, Inc., 421 U. S. 60, 421 U. S. 92 (1975); United States v. Alcan Foil Products Division of Alcan Aluminum Corp., 889 F.2d 1513, 1519 (CA6 1989), cert. pending, No. 89-1104; United States v. Wheeling-Pittsburgh Steel Corp., 818 F.2d 1077, 1084 (CA3 1987); Duquesne Light Co. v. EPA, 225 U.S.App.D.C. 290, 305, 698 F.2d 456, 471 (1983). The commentators agree with this conclusion. See D. Currie, Air Pollution: Federal Law and Analysis § 8.07, Page 496 U. S. 541 n. 14 (Supp.1990); 1 W. Rodgers, Environmental Law: Air and Water § 3.39(c) (1986 and Supp.1988).There is nothing in the statute that limits EPA's authority to enforce the "applicable implementation plan" solely to those cases where EPA has not unreasonably delayed action on a proposed SIP revision. Moreover, we find it significant that Congress expressly enacted an enforcement bar elsewhere in the statute. See § 113(d)(10); 42 U.S.C. § 7413(d)(10) (1982 ed.) ("During the period of the order . . . no Federal enforcement action pursuant to this section and no action under section 304 of this Act shall be pursued against such owner. . . ."). The fact that Congress explicitly enacted an enforcement bar similar to the one proposed by petitioner in one section of the statute, but failed to do so in the section at issue in this case, reinforces our refusal to import such a bar here. See Russello v. United States, 464 U.S. at 464 U. S. 23. [Footnote 3]We note that other statutory remedies are available when EPA delays action on a SIP revision. [Footnote 4] Although these statutory remedies may not appear to be so strong a deterrent to EPA delay as would an enforcement bar, these are the remedies that Congress has provided in the statute. [Footnote 5] Cf. 476 U. S. S. 542� v. Pierce County,@ 476 U. S. 253, 476 U. S. 260 (1986) ("We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act" (footnote omitted)). In the absence of a specific provision suggesting that Congress intended to create an enforcement bar, we decline to infer one.The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtGeneral Motors Corp. v. United States, 496 U.S. 530 (1990)General Motors Corp. v. United StatesNo. 89-369Argued March 21, 1990Decided June 14, 1990496 U.S. 530SyllabusThe Clean Air Act was amended in 1970 to deal with a perceived national air pollution emergency. The amendments required that the Administrator of the Environmental Protection Agency (EPA) promulgate national ambient air quality standards (NAAQS) within 30 days, and that each State thereafter submit a state implementation plan (SIP) within nine months. Section 110(a)(2) of the Act required the Administrator to approve a SIP within four months of its submission if the SIP met various substantive requirements. Section 110(a)(3) authorizes a State to propose a SIP revision, and requires the Administrator to approve that revision if he determines, among other things, that it "meets the requirements of [§ 110(a)(2)]." In 1980, EPA approved Massachusetts' proposed SIP governing certain emissions from automobile painting operations. The SIP permitted petitioner General Motors Corporation (GMC) -- whose automobile plant's painting operation is a source of ozone -- to meet emissions limits in stages, but required full compliance by December 31, 1985. In June, 1985, GMC sought an extension of that deadline until summer, 1987. Massachusetts approved the revision and submitted it to EPA on the day before the existing SIP's deadline, but EPA did not reject it until September, 1988. In the meantime, EPA sent GMC a notice of violation of the existing SIP and filed an enforcement action in the District Court. In May, 1988, the District Court entered summary judgment for GMC, holding that § 110(a)(3) imposed a 4-month time limit on EPA review of a SIP revision, and that EPA was therefore barred from enforcing the existing SIP from the end of the 4-month period until it finally acted on the revision. Although agreeing that the Act imposed a 4-month deadline, the Court of Appeals reversed, concluding that the failure to meet that deadline did not preclude EPA from enforcing the existing SIP.Held:1. EPA is not required to act on a proposed SIP revision within four months. Since § 110(a)(2)'s 4-month requirement was enacted as one of a series of deadlines designed to assure quick implementation of pollution control requirements, that section refers only to the action required on the original SIP, and not to a revision. Moreover, in the absence of an express requirement that the Administrator process a proposed revision within four months, this Court is not free to read such a Page 496 U. S. 531 limitation into § 110(a)(3). That section incorporates only the substantive, but not the procedural, requirements of § 110(a)(2). Nor does § 110(g) -- which authorizes a State Governor, in certain circumstances, temporarily to suspend a SIP for which the State has submitted a proposed revision when the Administrator has not taken action "within the required four-month period" -- impose a 4-month limitation on EPA. That section does not require the Administrator to do anything, and its incorporation of the mistaken presupposition that some "four-month period" is "required" does not impose a general requirement on EPA. Pp. 496 U. S. 536-539.2. Although subject to the Administrative Procedure Act's requirement that agencies conclude matters "within a reasonable time," EPA is not barred from bringing suit to enforce an existing SIP if it unreasonably delays action on a proposed revision. This Court will not infer an enforcement bar in the absence of a specific provision in the Clean Air Act suggesting that Congress intended to create one. In fact, that Act plainly states that EPA may bring an enforcement action whenever a person is in violation of any "applicable implementation plan" requirement, § 113(b)(2), and there is little doubt that the existing SIP remains the "applicable implementation plan" even after the State has submitted a proposed revision. See, e.g., Train v. Natural Resources Defense Council, Inc., 421 U. S. 60, 421 U. S. 92. It is significant that Congress explicitly enacted an enforcement bar elsewhere in the Act, see § 113(d)(10), but failed to do so in the section at issue, and that it provided other, less drastic, remedies when EPA delays action on a SIP revision, see §§ 304(a)(2), 113(b). Pp. 496 U. S. 539-542.876 F.2d 1060, affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court. Page 496 U. S. 532

1997_96-827

Syllabusfor imposing a clear and convincing burden of proof. The Court of Appeals' unprecedented change lacks any common-law pedigree and alters the cause of action in a way that undermines § 1983's very purpose-to provide a remedy for the violation of federal rights. This Court has consistently declined similar invitations to revise established rules that are separate from the qualified immunity defense. See, e. g., Gomez v. Toledo, 446 U. S. 635, 639-640. To the extent that the Court of Appeals was concerned with preventing discovery, such questions are most frequently and effectively resolved by the rulemaking or legislative process. Moreover, the court's indirect effort to regulate discovery employs a blunt instrument with a high cost that also imposes a heightened standard of proof at trial upon plaintiffs with bona fide constitutional claims. Congress has already fashioned special rules to discourage inmates' insubstantial suits in the Prison Litigation Reform Act, which draws no distinction between constitutional claims that require proof of an improper motive and those that do not. If there is a compelling need to frame new rules based on such a distinction, presumably Congress would have done so or will respond to it in future legislation. pp.594-597.(e) Existing procedures are available to federal trial judges for use in handling claims that involve examination of an official's state of mind. pp. 597-601.93 F.3d 813, vacated and remanded.STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 601. REHNQUIST, C. J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 601. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 611.Daniel M. Schember argued the cause and filed briefs for petitioner.Walter A. Smith, Jr., Special Deputy Corporation Counsel of the District of Columbia, argued the cause for respondent. With him on the brief were John M. Ferren, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel.Jeffrey P. Minear argued the cause for the United States as amicus curiae urging affirmance. On the brief were Acting Solicitor General Waxman, Assistant Attorney General577Hunger, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Preston, Irving L. Gornstein, Barbara L. Herwig, and Robert Loeb. *JUSTICE STEVENS delivered the opinion of the Court. Petitioner, a long-time prison inmate, seeks damages from a corrections officer based on a constitutional claim that requires proof of improper motive. The broad question presented is whether the courts of appeals may craft special procedural rules for such cases to protect public servants from the burdens of trial and discovery that may impair the performance of their official duties. The more specific question is whether, at least in cases brought by prisoners, the*Briefs of amici curiae urging affirmance were filed for the State of Missouri et al. by Jeremiah W (Jay) Nixon, Attorney General of Missouri, John R. Munich, Deputy Attorney General, and Alana M. Barragan-Scott and Gretchen E. Rowan, Assistant Attorneys General, Charles H. Troutman, Acting Attorney General of Guam, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Margery S. Bronster of Hawaii, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, 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, Jeffrey B. Pine of Rhode Island, Mark W Barnett of South Dakota, Dan Morales of Texas, Jan Graham of Utah, William H. Sorrell of Vermont, Richard Cullen of Virginia, Julio A. Brady of the Virgin Islands, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the American Civil Liberties Union et al. by Arthur B. Spitzer and Steven R. Shapiro; and for J. Michael Quinlan et al. by Michael L. Martinez.Daniel H. Bromberg and Paul Michael Pohl filed a brief for William G.Moore, Jr., as amicus curiae.578plaintiff must adduce clear and convincing evidence of improper motive in order to defeat a motion for summary judgment.IPetitioner is serving a life sentence in the District of Columbia's correctional system. During his confinement he has filed several lawsuits and has assisted other prisoners with their cases. He has also provided interviews to reporters who have written news stories about prison conditions. He is a litigious and outspoken prisoner.The events that gave rise to this case occurred in 1988 and 1989. Because of overcrowding in the District of Columbia prison in Lorton, Virginia, petitioner and other inmates were transferred to the county jail in Spokane, Washington. Thereafter, he was moved, first to a Washington State prison, later to a facility in Cameron, Missouri, next back to Lorton, then to Petersburg, Virginia, and ultimately to the federal prison in Marianna, Florida. Three boxes containing his personal belongings, including legal materials, were transferred separately. When the District of Columbia Department of Corrections received the boxes from the Washington State facility, respondent, a District correctional officer, asked petitioner's brother-in-law to pick them up rather than sending them directly to petitioner's next destination. The boxes were ultimately shipped to Marianna by petitioner's mother, at petitioner's expense, but he was initially denied permission to receive them because they had been sent outside official prison channels. He finally recovered the property several months after his arrival in Florida.Petitioner contends that respondent deliberately misdirected the boxes to punish him for exercising his First Amendment rights and to deter similar conduct in the future. Beyond generalized allegations of respondent's hostility, he alleges specific incidents in which his protected speech had579provoked her.1 His claimed injury caused by the delay in receiving his boxes includes the costs of having the boxes shipped and purchasing new clothes and other items in the interim, as well as mental and emotional distress. Respondent denies any retaliatory motive and asserts that she entrusted the property to petitioner's brother-in-law, who was also a District of Columbia corrections employee, in order to ensure its prompt and safe delivery.Although the factual dispute is relatively simple, it engendered litigation that has been both protracted and complex. We shall briefly describe the proceedings that led to the en banc Court of Appeals decision that we are reviewing, and then summarize that decision.The Early ProceedingsPetitioner filed suit against respondent and the District of Columbia seeking damages under Rev. Stat. § 1979, 42 U. S. C. § 1983.2 The principal theory advanced in his origi-1 In 1986, petitioner had invited a Washington Post reporter to visit the Lorton prison and obtained a visitor application for the reporter, which resulted in a front-page article on the prison's overcrowding "crisis." Respondent had approved the visitor application, which did not disclose the visitor's affiliation with the newspaper; she allegedly accused petitioner of tricking her and threatened to make life "as hard for him as possible." App. to Pet. for Cert. 178a. Petitioner also alleges that when he had complained in 1988 about invasions of privacy, respondent told him, "You're a prisoner, you don't have any rights." Id., at 179a. Later in 1988, after another front-page Washington Post article quoted petitioner as saying that litigious prisoners had been "handpicked" for transfer to Spokane "so our lawsuits will be dismissed on procedural grounds," respondent allegedly referred to him as a "legal troublemaker." Id., at 180a-181a.2 Title 42 U. S. C. § 1983 provides:"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,580nal complaint was that respondent had diverted the boxes containing his legal materials in order to interfere with his constitutional right of access to the courts.Prior to discovery, respondent, relying in part on a qualified immunity defense, moved for dismissal of the complaint or summary judgment. The motion was denied and respondent appealed, arguing, first, that the complaint did not allege a violation of any constitutional right that was clearly established at the time of her acts; and, second, that the complaint "failed to satisfy the 'heightened pleading standard' that this circuit applies to damage actions against government officials." 951 F.2d 1314, 1316 (CADC 1991).The Court of Appeals agreed with petitioner that his constitutional right of access to the courts was well established in 1989, and that his allegations of wrongful intent were sufficiently detailed and specific to withstand a motion to dismiss even under the Circuit's "heightened pleading standard." Id., at 1318, 1321. The court concluded, however, that the allegations of actual injury to his ability to litigate were insufficient under that standard; accordingly, the complaint should have been dismissed. Id., at 1321-1322. Because the contours of the pleading standard had been clarified in a decision announced while the case was on appeal, see Hunter v. District of Columbia, 943 F.2d 69 (CADC 1991), the court concluded that petitioner should be allowed to replead.On remand, petitioner filed an amended complaint adding more detail to support his access claim and also adding two new claims: a due process claim and the claim that respondent's alleged diversion of his property was motivated by anshall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... "Only the claim against respondent is before us. The Court of Appeals did not consider whether petitioner's amended complaint stated a cause of action against the District.581intent to retaliate against him for exercising his First Amendment rights. The District Court dismissed the amended complaint because the court access claim and the due process claim were legally insufficient, and because the First Amendment retaliation claim did not allege "direct evidence of unconstitutional motive." 844 F. Supp. 795, 802 (DC 1994). The dismissal was, in effect, mandated by prior decisions of the Court of Appeals holding that allegations of circumstantial evidence of such a motivation were insufficient to withstand a motion to dismiss. See Martin v. D. C. Metropolitan Police Department, 812 F.2d 1425, 1435 (1987); Siegert v. Gilley, 895 F.2d 797, 800-802 (1990), aff'd on other grounds, 500 U. S. 226 (1991).The En Banc ProceedingA panel of the Court of Appeals affirmed the dismissal of the first two claims but suggested that the entire court should review the dismissal of the First Amendment retaliation claim. Accordingly, the en banc court ordered the parties to file briefs addressing five specific questions, two of which concerned the power of the Circuit to supplement the Federal Rules of Civil Procedure with special pleading requirements for plaintiffs bringing civil rights claims against government officials,3 and two of which concerned possible special grounds for granting defense motions for summary judgment in cases "where the unlawfulness depends on the3 The first two questions asked:"1. In cases where plaintiffs bring civil rights claims against Government officials who assert qualified immunity, may this circuit supplement the Federal Rules of Civil Procedure by requiring plaintiffs to satisfy a heightened pleading requirement in their complaint or face dismissal prior to discovery? If so, should it be done?"2. May this circuit require that plaintiffs who allege that Government officials acted with unconstitutional intent plead direct, as opposed to circumstantial evidence of that intent? If so, should it be done?" App. to Pet. for Cert. 108a.582actor's unconstitutional motive."4 The fifth was a catchall question that asked the parties whether there are "any alternative devices which protect defendants with qualified immunity, in cases of constitutional tort depending on the defendant's motive or intent, from the costs of litigation?" App. to Pet. for Cert. 109a.The en bane court responded to these questions in five separate opinions. A majority of the judges appear to have agreed on these four propositions: (1) the case should be remanded to the District Court for further proceedings; (2) the plaintiff does not have to satisfy any heightened pleading requirement, and may rely on circumstantial as well as direct evidence; 5 (3) in order to prevail in an unconstitutionalmotive case, the plaintiff must establish that motive by clear and convincing evidence; and (4) special procedures to protect defendants from the costs of litigation in4 The questions regarding summary judgment asked:"3. In claims of constitutional tort where the unlawfulness depends on the actor's unconstitutional motive and the defendant enjoys qualified immunity, should the court grant a defense motion for summary judgment, made before plaintiff has conducted discovery, if the plaintiff has failed to adduce evidence from which the fact finder could reasonably infer the illicit motive? See Harlow v. Fitzgerald, 457 U. S. 800, 815-18 (1982); Elliott v. Thomas, 937 F.2d 338, 345-46 (7th Cir. 1991)?"4. In claims of constitutional tort where the unlawfulness depends on the actor's unconstitutional motive and the defendant enjoys qualified immunity, are there any circumstances, apart from national security issues of the sort at stake in Halperin v. Kissinger, 807 F.2d 180, 184-85 (D. C. Cir. 1986), where the court should grant a defense motion for summary judgment on a showing by the defendant such that a reasonable jury would necessarily conclude that the defendant's stated motivation 'would have been reasonable'? Id. at 188; see also id. at 189 (summary judgment warranted where no reasonable jury could find that 'it was objectively unreasonable for the defendants' to be acting for stated, innocent motives)." Id., at 108a-109a.5 On this point, the court disavowed its prior direct-evidence rule of Martin V. D. C. Metropolitan Police Department, 812 F.2d 1425, 1435 (CADC 1987), and Siegert V. Gilley, 895 F.2d 797, 800-802 (CADC 1990), aff'd on other grounds, 500 U. S. 226 (1991).583unconstitutional-motive cases are required by the reasoning in this Court's opinion in Harlow v. Fitzgerald, 457 U. S. 800 (1982).The primary opinion, written by Judge Williams, announced two principal conclusions: "First, we think Harlow allows an official to get summary judgment resolution of the qualified immunity issue, including the question of the official's state of mind, before the plaintiff has engaged in discovery on that issue. Second, we believe that unless the plaintiff offers clear and convincing evidence on the state-of-mind issue at summary judgment and trial, judgment or directed verdict (as appropriate) should be granted for the individual defendant." 93 F.3d 813, 815 (CADC 1996).Judge Silberman criticized Judge Williams' approach as confusing, id., at 833, and suggested that Harlow's reasoning pointed to a "more straightforward solution," 93 F. 3d, at 834. In his opinion, whenever a defendant asserts a legitimate motive for his or her action, only an objective inquiry into pretextuality should be allowed. "If the facts establish that the purported motivation would have been reasonable, the defendant is entitled to qualified immunity." Ibid.Judge Ginsburg agreed with the decision to impose a clear and convincing standard of proof on the unconstitutional motive issue, but he could not accept Judge Williams' new requirement that the District Court must "grant summary judgment prior to discovery unless the plaintiff already has in hand" sufficient evidence to satisfy that standard. Id., at 839. He described that innovation as "a rather bold intrusion into the district court's management of the fact-finding process" that would result in the defeat of meritorious claims and "invite an increase in the number of constitutional torts that are committed." Ibid. He would allow limited discovery on a proper showing before ruling on a summary judgment motion, but noted that in cases involving qualified immunity it would be an abuse of discretion for the trial judge to fail to consider, not only the interests of the parties, "but584also the social costs associated with discovery had against a government official." Id., at 840. With reference to the case at hand, he expressed the view that if petitioner could not show that discovery might reveal more than already appeared in the record, summary judgment would be appropriate without any discovery. Id., at 841-844.Judge Henderson "fully" endorsed the plurality's new clear and convincing evidence standard, but thought that it was a mistake for her colleagues to hear this case en bane because the record already made it abundantly clear that petitioner's claim had no merit. Id., at 844-845.Chief Judge Edwards, joined by four other judges, criticized the majority for" 'crossing the line between adjudication and legislation.''' Id., at 847 (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 535 (1947)). He expressed the view that the new evidentiary standards were unauthorized by statute or precedent and "would make it all but certain that an entire category of constitutional tort claims against government officials-whether or not meritorious-would never be able to survive a defendant's assertion of qualified immunity." 93The different views expressed in those five opinions attest to the importance of both the underlying issue and a correct understanding of the relationship between our holding in Harlow v. Fitzgerald, 457 U. S. 800 (1982), and the plaintiff's burden when his or her entitlement to relief depends on proof of an improper motive. Despite the relative unimportance of the facts of this particular case, we therefore decided to grant certiorari. 520 U. S. 1273 (1997).IIThe Court of Appeals' requirement of clear and convincing evidence of improper motive is that court's latest effort to address a potentially serious problem: Because an official's585state of mind is "easy to allege and hard to disprove," insubstantial claims that turn on improper intent may be less amenable to summary disposition than other types of claims against government officials. 93 F. 3d, at 816, 821. This category of claims therefore implicates obvious concerns with the social costs of subjecting public officials to discovery and trial, as well as liability for damages. The other Courts of Appeals have also grappled with this problem, but none has adopted a heightened burden of proof. See id., at 851852, n. 7 (Edwards, C. J., concurring in judgment) (citing cases).The new rule established in this case is not limited to suits by prisoners against local officials, but applies to all classes of plaintiffs bringing damages actions against any government official, whether federal, state, or local. See Butz v. Economou, 438 U. S. 478, 500-504 (1978). The heightened burden of proof applies, moreover, to the wide array of different federallaw claims for which an official's motive is a necessary element, such as claims of race and gender discrimination in violation of the Equal Protection Clause,6 cruel and unusual punishment in violation of the Eighth Amendment,7 and termination of employment based on political affiliation in violation of the First Amendment,S as well as retaliation for the exercise of free speech or other constitutional rights.9 A bare majority of the Court of Appeals regarded this sweeping rule as a necessary corollary to our opinion in Harlow.There is, of course, an important difference between the holding in a case and the reasoning that supports that holding. We shall, therefore, begin by explaining why our hold-6 Washington v. Davis, 426 U. S. 229, 239-248 (1976) (race); PersonnelAdministrator of Mass. v. Feeney, 442 U. S. 256,274 (1979) (gender). 7 Farmer v. Brennan, 511 U. S. 825, 835-840 (1994).8 Branti v. Finkel, 445 U. S. 507, 513-517 (1980).9 E. g., Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 574 (1968).586ing in Harlow does not resolve the issue presented in this case-indeed, it does not even address any question concerning the plaintiff's affirmative case. We shall then consider whether the reasoning in that opinion nevertheless supports the conclusion reached by the Court of Appeals.Harlow's Specific HoldingIn 1968, A. Ernest Fitzgerald testified before a congressional subcommittee about technical difficulties and excessive costs incurred in the development of a new transport plane. His testimony was widely reported and evidently embarrassed his superiors in the Department of Defense. In 1970, his job as a management analyst with the Department of the Air Force was eliminated in a "departmental reorganization and reduction in force." Nixon v. Fitzgerald, 457 U. S. 731, 733 (1982). After the conclusion of extended proceedings before the Civil Service Commission in 1973, Fitzgerald filed suit against the President of the United States and some of his aides alleging that they had eliminated his job in retaliation for his testimony. He sought damages on both statutory grounds and "in a direct action under the Constitution." Id., at 748. When his charges were reviewed in this Court, we considered the defendants' claims to immunity in two separate opinions. In Nixon v. Fitzgerald, we held that a former President is entitled to absolute immunity from damages liability predicated on conduct within the scope of his official duties. Id., at 749. In Harlow v. Fitzgerald, 457 U. S. 800 (1982), we held that the senior aides and advisers of the President were not entitled to absolute immunity, id., at 808-813, but instead were protected by a "qualified immunity standard that would permit the defeat of insubstantial claims without resort to trial." Id., at 813.Our definition of that qualified immunity standard was informed by three propositions that had been established by earlier cases. First, in Gomez v. Toledo, 446 U. S. 635, 639-587641 (1980), we held that qualified immunity is an affirmative defense and that "the burden of pleading it rests with the defendant." Second, in Butz v. Economou, 438 U. S., at 503504, we determined that the scope of that defense was the same in actions against state officials under 42 U. S. C. § 1983 and in actions against federal officials under the Federal Constitution, and that in both types of actions the courts are "competent to determine the appropriate level of immunity." Third, in Scheuer v. Rhodes, 416 U. S. 232 (1974), we presumed that the defense protects all officers in the executive branch of government performing discretionary functions, id., at 245-248, but held that the presumption was rebuttable, id., at 249-250.The actual scope of the defense had been the subject of debate within the Court in Wood v. Strickland, 420 U. S. 308 (1975), a case involving a constitutional claim against the members of a school board. A bare majority in that case concluded that the plaintiff could overcome the defense of qualified immunity in two different ways, either if (1) the defendant "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected," or (2) "he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student." Id., at 322. In dissent, Justice Powell argued that the majority's standard was too demanding of public officials, but his proposed standard, like the majority's, included both an objective and a subjective component. In his view, our opinion in Scheuer had established this standard: "whether in light of the discretion and responsibilities of his office, and under all of the circumstances as they appeared at the time, the officer acted reasonably and in good faith." 420 U. S., at 330 (emphasis added).In Harlow, the Court reached a consensus on the proper formulation of the standard for judging the defense of quali-588fied immunity. Speaking for the Court, Justice Powell announced a single objective standard:"Consistently with the balance at which we aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U. S., at 817-818.Under that standard, a defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant's subjective intent is simply irrelevant to that defense.Our holding that "bare allegations of malice" cannot overcome the qualified immunity defense did not implicate the elements of the plaintiff's initial burden of proving a constitutional violation. It is obvious, of course, that bare allegations of malice would not suffice to establish a constitutional claim. It is equally clear that an essential element of some constitutional claims is a charge that the defendant's conduct was improperly motivated. For example, A. Ernest Fitzgerald's constitutional claims against President Nixon and his aides were based on the theory that they had retaliated against him for speaking out on a matter of public concern.10 Our consideration of the immunity issues in both the Nixon10 The reason why such retaliation offends the Constitution is that it threatens to inhibit exercise of the protected right. Pickering, 391 U. S., at 574. Retaliation is thus akin to an "unconstitutional condition" demanded for the receipt of a government-provided benefit. See Perry v. Sindermann, 408 U. S. 593, 597 (1972).589case and in Harlow itself assumed that Fitzgerald would be entitled to prevail but for the immunity defenses.ll Thus, although evidence of improper motive is irrelevant on the issue of qualified immunity, it may be an essential component of the plaintiff's affirmative case. Our holding in Harlow, which related only to the scope of an affirmative defense, provides no support for making any change in the nature of the plaintiff's burden of proving a constitutional violation.Nevertheless, the en banc court's ruling makes just such a change in the plaintiff's cause of action. The court's clear and convincing evidence requirement applies to the plaintiff's showing of improper intent (a pure issue of fact), not to the separate qualified immunity question whether the official's alleged conduct violated clearly established law, which is an "essentially legal question." Mitchell v. Forsyth, 472 U. S. 511, 526-529 (1985); see Gomez, 446 U. S., at 640 ("[T]his Court has never indicated that qualified immunity is relevant to the existence of the plaintiff's cause of action"). Indeed, the court's heightened proof standard logically should govern even if the official never asserts an immunity defense. See 93 F. 3d, at 815, 838. Such a rule is not required by the holding in Harlow.11 See Siegert v. Gilley, 500 U. S. 226, 232 (1991) (observing that "the determination of whether the plaintiff has asserted a violation of a constitutional right at all" is a "necessary concomitant" to the threshold immunity question). Indeed, when JUSTICE GINSBURG was a judge on the District of Columbia Circuit, she commented:"Had the Court [in Harlow] intended its formulation of the qualified immunity defense to foreclose all inquiry into the defendants' state of mind, the Court might have instructed the entry of judgment for defendants Harlow and Butterfield on the constitutional claim without further ado. In fact, the Court returned the case to the district court in an open-ended remand, a disposition hardly consistent with a firm intent to delete the state of mind inquiry from every constitutional tort calculus." Martin, 812 F. 2d, at 1432.This correct understanding explains why Harlow does not support the change in the law advocated by THE CHIEF JUSTICE, post, at 602.590The Reasoning in HarlowTwo reasons that are explicit in our opinion in Harlow, together with a third that is implicit in the holding, amply justified Harlow's reformulation of the qualified immunity defense. First, there is a strong public interest in protecting public officials from the costs associated with the defense of damages actions.12 That interest is best served by a defense that permits insubstantial lawsuits to be quickly terminated. Second, allegations of subjective motivation might have been used to shield baseless lawsuits from summary judgment. 457 U. S., at 817-818. The objective standard, in contrast, raises questions concerning the state of the law at the time of the challenged conduct-questions that normally can be resolved on summary judgment. Third, focusing on "the objective legal reasonableness of an official's acts," id., at 819, avoids the unfairness of imposing liability on a defendant who "could not reasonably be expected to anticipate subsequent legal developments, nor ... fairly be said to 'know' that the law forbade conduct not previously identified as unlawful," id., at 818.13 That unfairness may12 "These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.' Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949), cert. denied, 339 U. S. 949 (1950)." Harlow, 457 U. S., at 814.13 Our opinion in Scheuer v. Rhodes, 416 U. S. 232 (1974), explicitly identified fairness as an important concern: "This official immunity apparently rested, in its genesis, on two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good." Id., at 239-240 (footnote omitted). Fairness alone is not, however, a sufficient reason for the immunity defense, and thus does not justify its extension to private parties. Wyatt v. Cole, 504 U. S. 158, 168 (1992).591be present even when the official conduct is motivated, in part, by hostility to the plaintiff.This last rationale of fairness does not provide any justification for the imposition of special burdens on plaintiffs who allege misconduct that was plainly unlawful when it occurred. While there is obvious unfairness in imposing liability-indeed, even in compelling the defendant to bear the burdens of discovery and trial-for engaging in conduct that was objectively reasonable when it occurred, no such unfairness can be attributed to holding one accountable for actions that he or she knew, or should have known, violated the constitutional rights of the plaintiff. Harlow itself said as much: "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Id., at 818-819; see also Butz, 438 U. S., at 506 ("[I]t is not unfair to hold liable the official who knows or should know he is acting outside the law ... ").The first two reasons underlying our holding in Harlow, however, would provide support for a procedural rule that makes it harder for any plaintiff, especially one whose constitutional claim requires proof of an improper motive, to survive a motion for summary judgment. But there are countervailing concerns that must be considered before concluding that the balance struck in the context of defining an affirmative defense is also appropriate when evaluating the elements of the plaintiff's cause of action. In Harlow, we expressly noted the need for such a balance "between the evils inevitable in any available alternative." 457 U. S., at 813-814. We further emphasized: "In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees." Id., at 814. Social costs that adequately justified the elimination of the subjective component of an affirmative defense do not necessarily justify serious limitations upon "the only realistic" remedy for the violation of constitutional guarantees.592There are several reasons why we believe that here, unlike Harlow, the proper balance does not justify a judicial revision of the law to bar claims that depend on proof of an official's motive. Initially, there is an important distinction between the "bare allegations of malice" that would have provided the basis for rebutting a qualified immunity defense under Wood v. Strickland and the allegations of intent that are essential elements of certain constitutional claims. Under Wood, the mere allegation of intent to cause any "other injury," not just a deprivation of constitutional rights, would have permitted an open-ended inquiry into subjective motivation. 420 U. S., at 322. When intent is an element of a constitutional violation, however, the primary focus is not on any possible animus directed at the plaintiff; rather, it is more specific, such as an intent to disadvantage all members of a class that includes the plaintiff, see, e. g., Washington v. Davis, 426 U. S. 229, 239-248 (1976), or to deter public comment on a specific issue of public importance. Thus, in Harlow, hostility to the content of Fitzgerald's testimony, rather than an intent to cause him harm, was the relevant component of the constitutional claim. In this case, proof that respondent diverted the plaintiff's boxes because she hated him would not necessarily demonstrate that she was responding to his public comments about prison conditions, although under Wood such evidence might have rebutted the qualified immunity defense.Moreover, existing law already prevents this more narrow element of unconstitutional motive from automatically carrying a plaintiff to trial. The immunity standard in Harlow itself eliminates all motive-based claims in which the official's conduct did not violate clearly established law. Even when the general rule has long been clearly established (for instance, the First Amendment bars retaliation for protected speech), the substantive legal doctrine on which the plaintiff relies may facilitate summary judgment in two different593ways. First, there may be doubt as to the illegality of the defendant's particular conduct (for instance, whether a plaintiff's speech was on a matter of public concern). See generally Anderson v. Creighton, 483 U. S. 635, 640-641 (1987). Second, at least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation-there must also be evidence of causation. Accordingly, when a public employee shows that protected speech was a "motivating factor" in an adverse employment decision, the employer still prevails by showing that it would have reached the same decision in the absence of the protected conduct. Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977). Furthermore, various procedural mechanisms already enable trial judges to weed out baseless claims that feature a subjective element, as we explain in more detail in Part IV; infra.14Thus, unlike the subjective component of the immunity defense eliminated by Harlow, the improper intent element of various causes of action should not ordinarily preclude summary disposition of insubstantial claims. The reasoning in Harlow, like its specific holding, does not justify a rule that places a thumb on the defendant's side of the scales when the merits of a claim that the defendant knowingly violated the law are being resolved. And, a fortiori, the policy con-14 These various protections may not entirely foreclose discovery on the issue of motive, and the Court of Appeals adopted its heightened proof standard in large part to facilitate the resolution of summary judgment motions before any discovery at all. Discovery involving public officials is indeed one of the evils that Harlow aimed to address, but neither that opinion nor subsequent decisions create an immunity from all discovery. Harlow sought to protect officials from the costs of "broad-reaching" discovery, 457 U. S., at 818, and we have since recognized that limited discovery may sometimes be necessary before the district court can resolve a motion for summary judgment based on qualified immunity. Anderson v. Creighton, 483 U. S. 635, 646, n. 6 (1987); see also Mitchell v. Forsyth, 472 U. S. 511, 526 (1985).594cerns underlying Harlow do not support JUSTICE SCALIA'S unprecedented proposal to immunize all officials whose conduct is "objectively valid," regardless of improper intent, see post, at 612 (dissenting opinion).IIIIn fashioning a special rule for constitutional claims that require proof of improper intent, the judges of the Court of Appeals relied almost entirely on our opinion in Harlow, and on the specific policy concerns that we identified in that opinion. As we have explained, neither that case nor those concerns warrant the wholesale change in the law that they have espoused. Without such precedential grounding, for the courts of appeals or this Court to change the burden of proof for an entire category of claims would stray far from the traditional limits on judicial authority.Neither the text of § 1983 or any other federal statute, nor the Federal Rules of Civil Procedure, provide any support for imposing the clear and convincing burden of proof on plaintiffs either at the summary judgment stage or in the trial itself. The same might be said of the qualified immunity defense; but in Harlow, as in the series of earlier cases concerning both the absolute and the qualified immunity defenses, we were engaged in a process of adjudication that we had consistently and repeatedly viewed as appropriate for judicial decision-a process "predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it." Imbler v. Pachtman, 424 U. S. 409, 421 (1976); see also Butz, 438 U. S., at 503-504; Wyatt v. Cole, 504 U. S. 158, 170-172 (1992) (KENNEDY, J., concurring).15 The unprecedented change15 Though our opinion in Harlow was forthright in revising the immunity defense for policy reasons, see Anderson, 483 U. S., at 645, that decision nonetheless followed recent Court precedent and simply eliminated one aspect of the established doctrine; it did not create a new immunity standard out of whole cloth.595made by the Court of Appeals in this case, however, lacks any common-law pedigree and alters the cause of action itself in a way that undermines the very purpose of § 1983-to provide a remedy for the violation of federal rights.16In the past, we have consistently declined similar invitations to revise established rules that are separate from the qualified immunity defense. We refused to change the Federal Rules governing pleading by requiring the plaintiff to anticipate the immunity defense, Gomez, 446 U. S., at 639640, or requiring pleadings of heightened specificity in cases alleging municipal liability, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 164-169 (1993). We also declined to craft an exception to settled rules of interlocutory appellate jurisdiction and rejected the argument that the policies behind the immunity defense justify interlocutory appeals on questions of evidentiary sufficiency. Johnson v. Jones, 515 U. S. 304, 317-318 (1995). Our reasons for those unanimous rulings apply with equal force to the imposition of a clear and convincing burden of proof in cases alleging unconstitutional motive.As we have noted, the Court of Appeals adopted a heightened proof standard in large part to reduce the availability of discovery in actions that require proof of motive. To the extent that the court was concerned with this procedural issue, our cases demonstrate that questions regarding pleading, discovery, and summary judgment are most frequently and most effectively resolved either by the rulemaking process or the legislative process. See, e. g., Leatherman, 507 U. S., at 168-169. Moreover, the Court of Appeals' indirect effort to regulate discovery employs a blunt instrument that carries a high cost, for its rule also imposes a heightened standard of proof at trial upon plaintiffs with bona fide con-16 Ironically, the heightened standard of proof directly limits the availability of the remedy in cases involving the specific evil at which the Civil Rights Act of 1871 (the predecessor of § 1983) was originally aimed-race discrimination. See Monroe v. Pape, 365 U. S. 167, 174-175 (1961).596stitutional claims. See Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 252-255 (1986).One particular recent action by Congress highlights our concern with judicial rulemaking to protect officials from damages actions. Both Judge Silberman's opinion below and a brief filed in this Court by 34 States, Guam, and the Virgin Islands suggest that new substantive or procedural rules are warranted because of the very large number of civil rights actions filed by prison inmates. See 93 F. 3d, at 830, 838; Brief for State of Missouri et al. as Amici Curiae 12. Arguably, such cases deserve special attention because many of them are plainly frivolous and some may be motivated more by a desire to obtain a "holiday in court," 17 than by a realistic expectation of tangible relief.Even assuming that a perceived problem with suits by inmates could justify the creation of new rules by federal judges, Congress has already fashioned special rules to cover these cases. The Prison Litigation Reform Act, Pub. L. 104-134, 110 Stat. 1321, enacted in April 1996, contains provisions that should discourage prisoners from filing claims that are unlikely to succeed. Among the many new changes relating to civil suits, the statute requires all inmates to pay filing fees; denies in forma pauperis status to prisoners with three or more prior "strikes" (dismissals because a filing is frivolous, malicious, or fails to state a claim upon which relief may be granted) unless the prisoner is "under imminent danger of serious physical injury," § 804(d); bars suits for mental or emotional injury unless there is a prior showing of physical injury; limits attorney's fees; directs district courts to screen prisoners' complaints before docketing and authorizes the court on its own motion to dismiss "frivolous," "malicious," or meritless actions; permits the revocation of good17 In his dissent in Harris v. Pate, 440 F.2d 315 (CA7 1971), Judge Hastings wrote in reference to the "ever increasing volume of frivolous civil actions filed by state custodial prisoners" that "[o]f course, most prisoners would enjoy a holiday in court." Id., at 320.597time credits for federal prisoners who file malicious or false claims; and encourages hearings by telecommunication or in prison facilities to make it unnecessary for inmate plaintiffs to leave prison for pretrial proceedings. See 28 U. S. C. §§ 1346(b)(2), 1915, 1915A, 1932 (1994 ed., Supp. II); 42 U. S. C. § 1997e (1994 ed., Supp. II). Recent statistics suggest that the Act is already having its intended effect.18Most significantly, the statute draws no distinction between constitutional claims that require proof of an improper motive and those that do not. If there is a compelling need to frame new rules of law based on such a distinction, presumably Congress either would have dealt with the problem in the Reform Act, or will respond to it in future legislation.IVIn Harlow, we noted that a "'firm application of the Federal Rules of Civil Procedure' is fully warranted" and may lead to the prompt disposition of insubstantial claims. 457 U. S., at 819-820, n. 35 (quoting Butz, 438 U. S., at 508). Though we have rejected the Court of Appeals' solution, we are aware of the potential problem that troubled the court. It is therefore appropriate to add a few words on some of the existing procedures available to federal trial judges in handling claims that involve examination of an official's state of mind.When a plaintiff files a complaint against a public official alleging a claim that requires proof of wrongful motive, the trial court must exercise its discretion in a way that protects the substance of the qualified immunity defense. It must18 Despite the continuing rise in the state and federal prison populations, the number of prisoner civil rights suits filed in federal court dropped from 41,215 in fiscal year 1996 (Oct. 1, 1995-Sept. 30, 1996) to 28,635 in fiscal year 1997 (Oct. 1, 1996-Sept. 30, 1997), a decline of 31 percent. Administrative Office of the United States Courts, L. Mecham, Judicial Business of the United States Courts: 1997 Report of the Director 131-132 (Table C-2A).598exercise its discretion so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings. The district judge has two primary options prior to permitting any discovery at all. First, the court may order a reply to the defendant's or a third party's answer under Federal Rule of Civil Procedure 7(a), or grant the defendant's motion for a more definite statement under Rule 12(e). Thus, the court may insist that the plaintiff "put forward specific, nonconclusory factual allegations" that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment. Siegert v. Gilley, 500 U. S. 226, 236 (1991) (KENNEDY, J., concurring in judgment). This option exists even if the official chooses not to plead the affirmative defense of qualified immunity. Second, if the defendant does plead the immunity defense, the district court should resolve that threshold question before permitting discovery. Harlow, 457 U. S., at 818. To do so, the court must determine whether, assuming the truth of the plaintiff's allegations, the official's conduct violated clearly established law.19 Because the former option of demanding more specific allegations of intent places no burden on the defendant-official, the district judge may choose that alternative before resolving the immunity question, which sometimes requires complicated analysis of legal issues.If the plaintiff's action survives these initial hurdles and is otherwise viable, the plaintiff ordinarily will be entitled to some discovery. Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery. On its own motion, the trial court"may alter the limits in [the Federal Rules] on the number of depositions and interrogatories and may also limit the length of depositions under Rule 30 and the number19 If the district court enters an order denying the defendant's motion for dismissal or summary judgment, the official is entitled to bring an immediate interlocutory appeal of that legal ruling on the immunity question. Johnson v. Jones, 515 U. S. 304, 313, 319-320 (1995).599of requests under Rule 36. The frequency or extent of use of the discovery methods otherwise permitted under these rules ... shall be limited by the court if it deter mines that ... (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." Rule 26(b)(2).Additionally, upon motion the court may limit the time, place, and manner of discovery, or even bar discovery altogether on certain subjects, as required "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Rule 26(c). And the court may also set the timing and sequence of discovery. Rule 26(d).These provisions create many options for the district judge. For instance, the court may at first permit the plaintiff to take only a focused deposition of the defendant before allowing any additional discovery. See, e. g., Martin, 812 F. 2d, at 1437 (opinion of R. B. Ginsburg, J.). Alternatively, the court may postpone all inquiry regarding the official's subjective motive until discovery has been had on objective factual questions such as whether the plaintiff suffered any injury or whether the plaintiff actually engaged in protected conduct that could be the object of unlawful retaliation. The trial judge can therefore manage the discovery process to facilitate prompt and efficient resolution of the lawsuit; as the evidence is gathered, the defendant-official may move for partial summary judgment on objective issues that are potentially dispositive and are more amenable to summary disposition than disputes about the official's intent, which frequently turn on credibility assessments.20 Of course, the20 The judge does, however, have discretion to postpone ruling on a defendant's summary judgment motion if the plaintiff needs additional discovery to explore "facts essential to justify the party's opposition." Rule 56(f).600judge should give priority to discovery concerning issues that bear upon the qualified immunity defense, such as the actions that the official actually took, since that defense should be resolved as early as possible. See Anderson, 483 U. S., at 646, n. 6.21Beyond these procedures and others that we have not mentioned, summary judgment serves as the ultimate screen to weed out truly insubstantial lawsuits prior to trial. At that stage, if the defendant-official has made a properly supported motion,22 the plaintiff may not respond simply with general attacks upon the defendant's credibility, but rather must identify affirmative evidence from which a jury could find that the plaintiff has carried his or her burden of proving the pertinent motive. Liberty Lobby, 477 U. S., at 256-257. Finally, federal trial judges are undoubtedly familiar with two additional tools that are available in extreme cases to protect public officials from undue harassment: Rule 11, which authorizes sanctions for the filing of papers that are frivolous, lacking in factual support, or "presented for any improper purpose, such as to harass"; and 28 U. S. c. § 1915(e)(2) (1994 ed., Supp. II), which authorizes dismissal "at any time" of in forma pauperis suits that are "frivolous or malicious."It is the district judges rather than appellate judges like ourselves who have had the most experience in managing cases in which an official's intent is an element. Given the21 If the official seeks summary judgment on immunity grounds and the court denies the motion, the official can take an immediate interlocutory appeal, even if she has already so appealed a prior order. Behrens v. Pelletier, 516 U. S. 299, 311 (1996).22 "Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U. S. 317, 323 (1986) (quoting Fed. Rule Civ. Proc. 56(c)).601wide variety of civil rights and "constitutional tort" claims that trial judges confront, broad discretion in the management of the factfinding process may be more useful and equitable to all the parties than the categorical rule imposed by the Court of Appeals.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, 1997SyllabusCRAWFORD-EL v. BRITTONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 96-827. Argued December 1, 1997-Decided May 4,1998Petitioner is a litigious and outspoken prisoner in the District of Columbia's correctional system. Because of overcrowding at the District's prison, he was transferred, first to Washington State, then to facilities in several other locations, and ultimately to Florida. His belongings were transferred separately. When the District's Department of Corrections received his belongings from Washington State, respondent, a District correctional officer, had petitioner's brother-in-law pick them up, rather than shipping them directly to petitioner's next destination. Petitioner did not recover the belongings until several months after he reached Florida. He filed suit under 42 U. S. C. § 1983, alleging, inter alia, that respondent's diversion of his property was motivated by an intent to retaliate against him for exercising his First Amendment rights. The District Court dismissed the complaint. In remanding, the en banc Court of Appeals concluded, among other things, that in an unconstitutional-motive case, a plaintiff must establish motive by clear and convincing evidence, and that the reasoning in Harlow v. Fitzgerald, 457 U. S. 800, requires special procedures to protect defendants from the costs of litigation.Held: The Court of Appeals erred in fashioning a heightened burden of proof for unconstitutional-motive cases against public officials. Pp. 584-60l.(a) That court adopted a clear and convincing evidence requirement to deal with a potentially serious problem: because an official's state of mind is easy to allege and hard to disprove, insubstantial claims turning on improper intent may be less amenable to summary disposition than other types of claims against government officials. The standard was intended to protect public servants from the burdens of trial and discovery that may impair the performance of their official duties. Pp. 584-586.(b) Harlow's holding does not support the imposition of a heightened proof standard for a plaintiff's affirmative case. In Harlow, the Court found that the President's senior aides and advisers were protected by a qualified immunity standard that would permit the defeat of insubstantial claims without resort to trial. The Court announced a single objective standard for judging that defense, shielding officials from "lia-575bility for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," 457 U. S., at 818, and eliminated the subjective standard, put forth in Wood v. Strickland, 420 U. S. 308, that "bare allegations of malice" could rebut the defense, 457 U. S., at 817-818. However, evidence concerning the defendant's subjective intent, although irrelevant to the qualified immunity defense, may be an essential component of the plaintiff's affirmative case. Since Harlow's holding related only to the scope of the affirmative defense, it provides no support for making any change in the nature of the plaintiff's burden of proving a constitutional violation. pp. 586-589.(c) One reason implicit in Harlow's holding-fairness to the public official-provides no justification for special burdens on plaintiffs who allege unlawful motive. Two other reasons underlying Harlow's holding-that the strong public interest in protecting officials from the costs of damages actions is best served by a defense permitting insubstantial lawsuits to be quickly terminated, and that allegations of subjective motivation might have been used to shield baseless suits from summary judgment-would provide support for the type of procedural rule adopted by the Court of Appeals here. However, countervailing concerns indicate that the balance struck in the context of defining an affirmative defense is not appropriate when evaluating the elements of the plaintiff's cause of action. Initially, there is an important distinction between the bare allegations of malice that would have provided the basis for rebutting a qualified immunity defense in Wood and the more specific allegations of intent that are essential elements of certain constitutional claims. In the latter instance, for example, the primary emphasis is on an intent to disadvantage all members of a class that includes the plaintiff or to deter public comment on a specific issue of public importance, not on any possible animus directed at the plaintiff. Moreover, existing law already prevents this more narrow element of unconstitutional motive from automatically carrying a plaintiff to trial. Summary judgment may be available ifthere is doubt as to the illegality of the defendant's particular conduct; and, at least with certain claims, there must be evidence of causation as well as proof of an improper motive. Unlike the subjective component of the immunity defense eliminated by Harlow, the improper intent element of various causes of action should not ordinarily preclude summary disposition of insubstantial claims. Pp. 590-594.(d) Without precedential grounding, changing the burden of proof for an entire category of claims would stray far from the traditional limits on judicial authority. Neither the text of § 1983 or any other federal statute nor the Federal Rules of Civil Procedure provide any support576Full Text of Opinion

1973_73-263

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case presents the sole issue whether, for federal income tax purposes, a taxpayer is entitled to a deduction from gross income, under § 167(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 167(a), [Footnote 1] for depreciation on equipment the taxpayer owns and uses in the construction of its own capital facilities, or whether the capitalization provision of § 263(a)(1) of the Code, 26 U.S.C. § 263(a)(1), [Footnote 2] bars the deduction. Page 418 U. S. 4The taxpayer claimed the deduction, but the Commissioner of Internal Revenue disallowed it. The Tax Court (Scott, J., in an opinion not reviewed by the full court) upheld the Commissioner's determination. 29 T.C.M. 383 (1970). The United States Court of Appeals for the Ninth Circuit, declining to follow a Court of Claims decision, Southern Natural Gas Co. v. United States, 188 Ct.Cl. 302, 372-380, 412 F.2d 1222, 1264-1269 (1969), reversed. 477 F.2d 688 (1973). We granted certiorari in order to resolve the apparent conflict between the Court of Claims and the Court of Appeals. 414 U.S. 999 (1973).INearly all the relevant facts are stipulated. The taxpayer-respondent, Idaho Power Company, is a Maine corporation organized in 1915, with its principal place of business at Boise, Idaho. It is a public utility engaged in the production, transmission, distribution, and sale of electric energy. The taxpayer keeps its books and files its federal income tax returns on the calendar year accrual basis. The tax years at issue are 1962 and 1963.For many years, the taxpayer has used its own equipment and employees in the construction of improvements and additions to its capital facilities. [Footnote 3] The major work has consisted of transmission lines, transmission switching stations, distribution lines, distribution stations, and connecting facilities. Page 418 U. S. 5During 1962 and 1963, the tax years in question, taxpayer owned and used in its business a wide variety of automotive transportation equipment, including passenger cars, trucks of all descriptions, power-operated equipment, and trailers. Radio communication devices were affixed to the equipment, and were used in its daily operations. The transportation equipment was used in part for operation and maintenance and in part for the construction of capital facilities having a useful life of more than one year.On its books, the taxpayer used various methods of charging costs incurred in connection with its transportation equipment either to current expense or to capital accounts. To the extent the equipment was used in construction, the taxpayer charged depreciation of the equipment, as well as all operating and maintenance costs (other than pension contributions and social security and motor vehicle taxes) to the capital assets so constructed. This was done either directly or through clearing accounts in accordance with procedures prescribed by the Federal Power Commission and adopted by the Idaho Public Utilities Commission.For federal income tax purposes, however, the taxpayer treated the depreciation on transportation equipment differently. It claimed as a deduction from gross income all the year's depreciation on such equipment, including that portion attributable to its use in constructing capital facilities. The depreciation was computed on composite life of 10 years and under straight-line and declining-balance methods. The other operating and maintenance costs the taxpayer had charged on its books to capital were not claimed as current expenses, and were not deducted.To summarize: on its books, in accordance with Federal Power Commission-Idaho Public Utilities Commission Page 418 U. S. 6 prescribed methods, the taxpayer capitalized the construction-related depreciation, but, for income tax purposes, that depreciation increment was claimed as a deduction under § 167(a). [Footnote 4]Upon audit, the Commissioner of Internal Revenue disallowed the deduction for the construction-related depreciation. He ruled that that depreciation was a nondeductible capital expenditure to which § 263(a)(1) had application. He added the amount of the depreciation so disallowed to the taxpayer's adjusted basis in its capital facilities, and then allowed a deduction for an appropriate amount of depreciation on the addition, computed over the useful life (30 years or more) of the property constructed. A deduction for depreciation of the transportation equipment to the extent of its use in day-to-day operation and maintenance was also allowed. The result of these adjustments was the disallowance of depreciation, as claimed by the taxpayer on its returns, in the net amounts of $140,429.75 and $96,811.95 for 1962 and 1963, respectively. This gave rise to asserted deficiencies in taxpayer's income taxes for those two years of $73,023.47 and $50,342.21.The Tax Court agreed with the decision of the Court of Claims in Southern Natural Gas, supra, and described that holding as one to the effect that"depreciation allocable to the use of the equipment in the construction of capital improvements was not deductible in the year the Page 418 U. S. 7 equipment as so used, but should be capitalized and recovered over the useful life of the assets constructed."29 T.C.M. at 386. The Tax Court, accordingly, held that the Commissioner"properly disallowed as a deduction . . . this allocable portion of depreciation, and that such amount should be capitalized as part of [taxpayer's] basis in the permanent improvements in the construction of which the equipment was used."Ibid.The Court of Appeals, on the other hand, perceived in the Internal Revenue Code of 1954 the presence of a liberal congressional policy toward depreciation, the underlying theory of which is that capital assets used in business should not be exhausted without provision for replacement. 477 F.2d at 690-693. The court concluded that a deduction expressly enumerated in the Code, such as that for depreciation, may properly be taken, and that "no exception is made should it relate to a capital item." Id. at 693. Section 263(a)(1) of the Code was found not to be applicable, because depreciation is not an "amount paid out," as required by that section. The court found Southern Natural Gas unpersuasive, and felt "constrained to distinguish" it in reversing the Tax Court judgment. 477 F.2d at 695-696.The taxpayer asserts that its transportation equipment is used in its "trade or business," and that depreciation thereon is therefore deductible under § 167(a)(1) of the Code. The Commissioner concedes that § 167 may be said to have a literal application to depreciation on equipment used in capital construction. [Footnote 5] Brief for Petitioner Page 418 U. S. 8 16, but contends that the provision must be read in light of § 263(a)(1), which specifically disallows any deduction for an amount "paid out for new buildings or for Page 418 U. S. 9 permanent improvements or betterments." He argues that § 263 takes precedence over § 167 by virtue of what he calls the "priority-ordering" terms (and what the taxpayer describes as "housekeeping" provisions) of § 161 of the Code, 26 U.S.C. § 161, [Footnote 6] and that sound principles of accounting and taxation mandate the capitalization of this depreciation.It is worth noting the various items that are not at issue here. The mathematics, as such, is not in dispute. The taxpayer has capitalized, as part of its cost of acquisition of capital assets, the operating and maintenance costs (other than depreciation, pension contributions, and social security and motor vehicle taxes) of the transportation equipment attributable to construction. This is not contested. The Commissioner does not dispute that the portion of the transportation equipment's depreciation allocable to operation and maintenance of facilities, in contrast with construction thereof, qualifies as a deduction from gross income. There is no disagreement Page 418 U. S. 10 as to the allocation of depreciation between construction and maintenance. The issue thus comes down primarily to a question of timing, as the Court of Appeals recognized, 477 F.2d at 692, that is, whether the construction-related depreciation is to be amortized and deducted over the shorter life of the equipment or, instead, is to be amortized and deducted over the longer life of the capital facilities constructed.IIOur primary concern is with the necessity to treat construction-related depreciation in a manner that comports with accounting and taxation realities. Over a period of time, a capital asset is consumed and, correspondingly over that period, its theoretical value and utility are thereby reduced. Depreciation is an accounting device which recognizes that the physical consumption of a capital asset is a true cost, since the asset is being depleted. [Footnote 7] As the process of consumption continues, and depreciation is claimed and allowed, the asset's adjusted income tax basis is reduced to reflect the distribution of its cost over the accounting periods affected. The Court stated in Hertz Corp. v. United States, 364 U. S. 122, 364 U. S. 126 (1960):"[T]he purpose of depreciation accounting is to allocate the expense of using an asset to the various periods Page 418 U. S. 11 which are benefited by that asset."See also United States v. Lude, 274 U. S. 295, 274 U. S. 300-301 (1927); Massey Motors, Inc. v. United States, 364 U. S. 92, 364 U. S. 96 (1960); Fribourg Navigation Co. v. Commissioner, 383 U. S. 272, 383 U. S. 276-277 (1966). When the asset is used to further the taxpayer's day-to-day business operations, the periods of benefit usually correlate with the production of income. Thus, to the extent that equipment is used in such operations, a current depreciation deduction is an appropriate offset to gross income currently produced. It is clear, however, that different principles are implicated when the consumption of the asset takes place in the construction of other assets that, in the future, will produce income themselves. In this latter situation, the cost represented by depreciation does not correlate with production of current income. Rather, the cost, although certainly presently incurred, is related to the future and is appropriately allocated as part of the cost of acquiring an income-producing capital asset.The Court of Appeals opined that the purpose of the depreciation allowance under the Code was to provide a means of cost recovery, Knoxville v. Knoxville Water Co., 212 U. S. 1, 212 U. S. 13-14 (1909), and that this Court's decisions, e.g., Detroit Edison Co. v. Commissioner, 319 U. S. 98, 319 U. S. 101 (1943), endorse a theory of replacement through "a fund to restore the property." 477 F.2d at 691. Although tax-free replacement of a depreciating investment is one purpose of depreciation accounting, it alone does not require the result claimed by the taxpayer here. Only last Term, in United States v. Chicago, B. & Q. R. Co., 412 U. S. 401 (1973), we rejected replacement as the strict and sole purpose of depreciation:"Whatever may be the desirability of creating a depreciation reserve under these circumstances, as a matter of good business and accounting practice, Page 418 U. S. 12 the answer is . . . [depreciation] reflects the cost of an existing capital asset, not the cost of a potential replacement."Id. at 412 U. S. 415. Even were we to look to replacement, it is the replacement of the constructed facilities, not the equipment used to build them, with which we would be concerned. If the taxpayer now were to decide not to construct any more capital facilities with its own equipment and employees, it, in theory, would have no occasion to replace its equipment to the extent that it was consumed in prior construction.Accepted accounting practice [Footnote 8] and established tax principles require the capitalization of the cost of acquiring a capital asset. In Woodward v. Commissioner, 397 U. S. 572, 397 U. S. 575 (1970), the Court observed:"It has long been recognized, as a general matter, that costs incurred in the acquisition . . . of a capital asset are to be treated as capital expenditures."This principle has obvious application to the acquisition of a capital asset by purchase, but it has been applied, as well, to the costs incurred in a taxpayer's construction of capital facilities. See, e.g., Southern Natural Gas Co. v. United States, supra; Great Northern R. Co. v. Commissioner, 40 F.2d 372 (CA8), cert. denied, 282 U.S. 855 (1930); Coors v. Commissioner, Page 418 U. S. 13 60 T.C. 368, 398 (1973); Norfolk Shipbuilding & Drydock Corp. v. United States, 321 F. Supp. 222 (ED Va.1971); Producers Chemical Co. v. Commissioner, 50 T.C. 940 (1968); Brooks v. Commissioner, 50 T.C. 927, 935-936 (1968), rev'd on other grounds, 424 F.2d 116 (CA5 1970). [Footnote 9]There can be little question that other construction-related expense items, such as tools, materials, and wages paid construction workers, are to be treated as part of the cost of acquisition of a capital asset. The taxpayer does not dispute this. Of course, reasonable wages paid in the carrying on of a trade or business qualify as a deduction from gross income. § 162(a)(1) of the 1954 Code, 26 U.S.C. § 162(a)(1). But when wages are paid in connection with the construction or acquisition of a capital asset, they must be capitalized, and are then entitled to be amortized over the life of the capital asset so acquired. Briarcliff Candy Corp. v. Commissioner, 475 F.2d 775, 781 (CA2 1973); Perlmutter v. Commissioner, 44 T.C. 382, 404 (1965), aff'd, 373 F.2d 45 (CA10 1967); Jaffa v. United States, 198 F. Supp. 234, 236 (ND Ohio 1961). See Treas.Reg. § 1.266-1(e).Construction-related depreciation is not unlike expenditures for wages for construction workers. The significant fact is that the exhaustion of construction equipment does not represent the final disposition of the taxpayer's investment Page 418 U. S. 14 in that equipment; rather, the investment in the equipment is assimilated into the cost of the capital asset constructed. Construction-related depreciation on the equipment is not an expense to the taxpayer of its day-to-day business. It is, however, appropriately recognized as a part of the taxpayer's cost or investment in the capital asset. The taxpayer's own accounting procedure reflects this treatment, for, on its books, the construction-related depreciation was capitalized by a credit to the equipment account and a debit to the capital facility account. By the same token, this capitalization prevents the distortion of income that would otherwise occur if depreciation properly allocable to asset acquisition were deducted from gross income currently realized. See, e.g., Coors v. Commissioner, 60 T.C. at 398; Southern Natural Gas Co. v. United States, 188 Ct.Cl. at 373-374, 412 F.2d at 1265.An additional pertinent factor is that capitalization of construction-related depreciation by the taxpayer who does its own construction work maintains tax parity with the taxpayer who has its construction work done by an independent contractor. The depreciation on the contractor's equipment incurred during the performance of the job will be an element of cost charged by the contractor for his construction services, and the entire cost, of course, must be capitalized by the taxpayer having the construction work performed. The Court of Appeals' holding would lead to disparate treatment among taxpayers, because it would allow the firm with sufficient resources to construct its own facilities and to obtain a current deduction, whereas another firm without such resources would be required to capitalize its entire cost, including depreciation charged to it by the contractor.Some, although not controlling, weight must be given to the fact that the Federal Power Commission and the Idaho Public Utilities Commission required the taxpayer Page 418 U. S. 15 to use accounting procedures that capitalized construction-related depreciation. Although agency-imposed compulsory accounting practices do not necessarily dictate tax consequences, Old Colony R. Co. v. Commissioner, 284 U. S. 552, 284 U. S. 562 (1932), they are not irrelevant, and may be accorded some significance. Commissioner v. Lincoln Savings & Loan Assn., 403 U. S. 345, 403 U. S. 355-356 (1971). The opinions in American Automobile Assn. v. United States, 367 U. S. 687 (1961), and Schlude v. Commissioner, 372 U. S. 128 (1963), urged upon us by the taxpayer here, are not to the contrary. In the former case, it was observed that merely because the method of accounting a taxpayer employs is in accordance with generally accepted accounting procedures, this "is not to hold that, for income tax purposes, it so clearly reflects income as to be binding on the Treasury." 367 U.S. at 367 U. S. 693. See also Cincinnati, N. O. & T. P. R. Co. v. United States, 191 Ct.Cl. 572, 583-584, 424 F.2d 563, 570 (1970). Nonetheless, where a taxpayer's generally accepted method of accounting is made compulsory by the regulatory agency and that method clearly reflects income, [Footnote 10] it is almost presumptively controlling of federal income tax consequences. Page 418 U. S. 16The presence of 263(a)(1) in the Code is of significance. Its literal language denies a deduction for "[a]ny amount paid out" for construction of permanent improvement of facilities. The taxpayer contends, and the Court of Appeals held, that depreciation of construction equipment represents merely a decrease in value, and is not an amount "paid out," within the meaning of § 263(a)(1). We disagree.The purpose of § 263 is to reflect the basic principle that a capital expenditure may not be deducted from current income. It serves to prevent a taxpayer from utilizing currently a deduction properly attributable, through amortization, to later tax years when the capital asset becomes income-producing. The regulations state that the capital expenditures to which § 263(a) extends include the "cost of acquisition, construction, or erection of buildings." Treas.Reg. § 1.263(a)-2(a). This manifests an administrative understanding that, for purposes of § 263(a)(1), "amount paid out" equates with "cost incurred." The Internal Revenue Service for some time has taken the position that construction-related depreciation is to be capitalized. Rev.Rul. 59-380, 1959-2 Cum.Bull. 87; Rev.Rul. 55-252, 1951 Cum.Bull. 319.There is no question that the cost of the transportation equipment was "paid out" in the same manner as the cost of supplies, materials, and other equipment, and the wages of construction workers. [Footnote 11] The taxpayer does not Page 418 U. S. 17 question the capitalization of these other items as elements of the cost of acquiring a capital asset. We see no reason to treat construction-related depreciation differently. In acquiring the transportation equipment, taxpayer "paid out" the equipment's purchase price; depreciation is simply the means of allocating the payment over the various accounting periods affected. As the Tax Court stated in Brooks v. Commissioner, 50 T.C. at 935, "depreciation -- inasmuch as it represents a using up of capital -- is as much an expenditure' as the using up of labor or other items of direct cost."Finally, the priority-ordering directive of § 161 -- or, for that matter, § 261 of the Code, 26 U.S.C. § 261 [Footnote 12] -- requires that the capitalization provision of § 263(a) take precedence, on the facts here, over § 167(a). Section 161 provides that deductions specified in Part VI of Subchapter B of the Income Tax Subtitle of the Code are "subject to the exceptions provided in part IX." Part VI includes § 167, and Part IX includes § 263. The clear import of § 161 is that, with stated exceptions set forth either in § 263 itself or provided for elsewhere (as, for example, in § 404, relating to pension contributions), none of which is applicable here, an expenditure incurred in acquiring capital assets must be capitalized even when the expenditure otherwise might be deemed deductible under Part VI.The Court of Appeals concluded, without reference to § 161, that § 263 did not apply to a deduction, such as that for depreciation of property used in a trade or business, Page 418 U. S. 18 allowed by the Code even though incurred in the construction of capital assets. [Footnote 13] We think that the court erred in espousing so absolute a rule, and it obviously overlooked the contrary direction of § 161. To the extent that reliance was placed on the congressional intent, in the evolvement of the 1954 Code, to provide for "liberalization of depreciation," H.R.Rep. No. 1337, 83d Cong., 2d Sess., 22 (1954), that reliance is misplaced. The House Report also states that the depreciation provisions would "give the economy added stimulus and resilience without departing from realistic standards of depreciation accounting." Id. at 24. To be sure, the 1954 Code provided for new and accelerated methods for depreciation, Page 418 U. S. 19 resulting in the greater depreciation deductions currently available. These changes, however, relate primarily to computation of depreciation. Congress certainly did not intend that provisions for accelerated depreciation should be construed as enlarging the class of depreciable assets to which § 167(a) has application or as lessening the reach of § 263(a). See Note, 1973 Duke L.J. 1386.We hold that the equipment depreciation allocable to taxpayer's construction of capital facilities is to be capitalized.The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtCommissioner v. Idaho Power Co., 418 U.S. 1 (1974)Commissioner of Internal Revenue v. Idaho Power Co.No. 73-263Argued February 27, 1974Decided June 24, 1974418 U.S. 1SyllabusSection 167(a) of the Internal Revenue Code of 1954 allows a depreciation deduction from gross income for "property used in the [taxpayer's] trade or business" or "held for the production of income," whereas § 263(a)(1) of the Code disallows a deduction for "[a]ny amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate," expenditures which, the regulations state, include the "cost of acquisition, construction, or erection of buildings." Section 161 makes the deductions specified in that part of the Code, including § 167(a), subject to the exceptions provided in the part including § 263. Respondent public utility claimed a deduction from gross income under § 167(a) for all the depreciation for the year on its transportation equipment (car, trucks, etc.), including that portion attributable to its use in constructing capital facilities, although, on its books, as required by the regulatory agencies, it charged such equipment, to the extent it was used in construction, to the capital assets so constructed. The Commissioner of Internal Revenue disallowed the deduction for the construction-related depreciation, ruling that that depreciation was a nondeductible capital expenditure under § 263(a). Page 418 U. S. 2 The Commissioner was upheld by the Tax Court, but the Court of Appeals reversed, holding that a deduction expressly enumerated in the Code, such as that for depreciation, may properly be taken even if it relates to a capital item, and that § 263(a)(1) was inapplicable because depreciation is not an "amount paid out" as required by that section.Held: The equipment depreciation allocable to the taxpayer's construction of capital facilities must be capitalized under § 263(a)(1). Pp. 418 U. S. 10-19.(a) Accepted accounting practice and established tax principles require the capitalization of the cost of acquiring a capital asset, including the cost incurred in a taxpayer's construction of capital facilities. The purpose of depreciation accounting is the allocation of the expense of using an asset over the tax periods benefited by that asset. Pp. 418 U. S. 10-13.(b) Construction-related depreciation is not unlike expenditure for other construction-related items, such as construction workers' wages, which must be treated as part of the cost of acquiring a capital asset. The significant fact is that the exhaustion of the construction equipment does not represent the final disposition of the taxpayer's investment in that equipment; rather such investment is assimilated into the cost of the capital asset constructed, and this capitalization prevents the distortion of income that would otherwise occur if depreciation properly allocable to asset acquisition were deducted from gross income currently realized. Pp. 418 U. S. 13-14.(c) Capitalization of construction-related equipment depreciation by the taxpayer which does its own construction work maintains tax parity with the taxpayer which has such work done independently. P. 418 U. S. 14.(d) Where a taxpayer's generally accepted method of accounting is made compulsory by the regulatory agency and that method clearly reflects income, as here, it is almost presumptively controlling of federal income tax consequences. Pp. 418 U. S. 14-15.(e) Considering § 263(a)(1)'s literal language in denying a deduction for "[a]ny amount paid out" for construction or permanent improvement of facilities, and its purpose to reflect the basic principle that a capital expenditure may not be deducted from current income, as well as the regulations indicating that, for purposes of § 263(a)(1) "amount paid out" equates with "cost incurred," there is no question that the cost of the transportation equipment was "paid out" in the same manner as the cost of other Page 418 U. S. 3 construction-related items, such as supplies, materials, and wages, which the taxpayer capitalized. Pp. 418 U. S. 16-17.(f) The priority-ordering directive of § 161 requires that § 263(a)'s capitalization provision take precedence, on the facts, over § 167(a). Pp. 418 U. S. 17-19.477 F.2d 688, reversed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 418 U. S. 19.

1989_88-1671

Justice SCALIA delivered the opinion of the Court.This case calls into question the constitutionality of the Department of Labor's administration of that provision of the Black Lung Benefits Act of 1972, which prohibits the acceptance of attorney's fees for the representation of claimants, except such fees as are approved by the Department. Respondent contends that the Secretary's manner of implementing this restriction violates the Due Process Clause of the Fifth Amendment because it renders qualified attorneys unavailable, and thereby deprives claimants of legal assistance in the prosecution of their claims.IThe Black Lung Benefits Act of 1972, 83 Stat. 792, as amended, 30 U.S.C. § 901 et seq. (1982 ed. and Supp. V), provides federal funds to those who have been totally disabled by pneumoconiosis, a respiratory disease commonly caused by coal mine employment, and to their eligible survivors. See Pittston Coal Group v. Sebben, 488 U. S. 105, 488 U. S. 108 (1988). The Department of Labor (Department) awards benefits after adjudication by a deputy commissioner, and after review (if requested) by an administrative law judge (ALJ), the Benefits Review Board, and a Federal Court of Appeals. 20 CFR §§ 725.410, 725.419(a), 725.481 (1989); 30 U.S.C. § 932(a) (1982 ed., Supp. V) (incorporating 33 U.S.C. § 921(c) (1982 ed.)).A claimant may be represented throughout these proceedings by an attorney, 20 CFR §§ 725.362, 725.363(a) (1989), and the Act provides that, when the claimant wins a contested case the employer, his insurer, or (in some cases, see 30 U.S.C. § 934 (1982 ed.)) the Black Lung Disability Trust Fund shall pay a "reasonable attorney's fee" to the claimant's lawyer. 30 U.S.C. § 932(a) (incorporating 33 U.S.C. § 928(a) (1982 ed.)). The Act also incorporates, however, Page 494 U. S. 718 that provision of the Longshore and Harbor Workers' Compensation Act (LHWCA), 44 Stat. 1438, as amended, 33 U.S.C. § 928(d) (1982 ed.), which prohibits an attorney from receiving a fee -- whether from the employer, insurer or Trust Fund, or from the claimant himself -- unless approved by the appropriate agency or court. 30 U.S.C. § 932(a) (1982 ed., Supp. V). The Department's regulations invalidate all contractual agreements for fees, see 20 CFR §§ 725.365, 802.203(f) (1989), and the Department will not approve a fee if the claimant is unsuccessful, see Director, OWCP v. Hemingway Transport Inc., 1 BRBS 73, 75 (1974). Once the claimant's compensation order becomes final, 33 U.S.C. § 928(a), the attorney may apply to each tribunal before whom the services were performed, 20 CFR § 725.366(a) (1989), and shall be awarded a fee "reasonably commensurate with the necessary work done," § 725.366(b), taking into account"the quality of the representation, the qualifications of the representative, the complexity of the legal issues involved, the level of proceedings to which the claim was raised, the level at which the representative entered the proceedings, and any other information which may be relevant to the amount of fee requested."Ibid.Respondent violated these restrictions by receiving unapproved fees. He agreed to represent claimants in exchange for 25% of any award obtained, and collected those fees without the required approval. The Committee on Legal Ethics of the West Virginia State Bar initiated a disciplinary action against respondent for these infractions. The Committee, after a hearing, recommended a 6-month suspension, and filed a complaint in the West Virginia Supreme Court of Appeals to enforce that sanction.That court denied enforcement. Although the respondent had not raised such a contention, it occurred to the court that the Act's restriction on payment of fees, as implemented by the Department, might violate the Due Process Clause of the Page 494 U. S. 719 Fifth Amendment and thus be impermissible as the premise for the disciplinary action. After asking for and receiving supplemental briefing on the issue, it held the Department's implementation of the Act unconstitutional because it "effectively den[ied] claimants necessary access to counsel," and, alternatively, because it "den[ied] qualified claimants the procedural safeguards provided by Congress that are essential to vindicate the right to benefits also granted by Congress." ___ W.Va. ___, 378 S.E.2d 82, 85, 93 (1988). Two justices dissented, finding the factual record upon which the majority relied "woefully inadequate." Id. at 378 S.E.2d at 98.After issuing this opinion, the court invited the Department to intervene. The Department did so, supplemented the record, and petitioned for rehearing. The court denied the petition in a brief opinion that found the Department's proffered justifications for the fee limitation system, and its new evidence, unpersuasive. Id. at ___, 378 S.E.2d at 96.Both the Department (in No. 88-1671) and the Committee (in No. 88-1688) petitioned for certiorari. We granted the petitions. 493 U.S. 807 (1989).IIAWe deal first with the parties' standing. On petitioners' side, the Committee on Legal Ethics has the classic interest of a government prosecuting agency arguing for the validity of a law upon which its prosecution is based. It has preferred charges against respondent that rest upon his disregard of the fee restrictions administered by the Department; those charges cannot be sustained if the restrictions themselves are unlawful. Since the Committee has standing, we need not inquire whether the Department does as well. Bowsher v. Synar, 478 U. S. 714, 478 U. S. 721 (1986). Page 494 U. S. 720On respondent's side, Triplett invokes not his own legal rights and interests, but those of the black lung claimants who hired him. Respondent's defense to the disciplinary proceeding is that the fee scheme he is accused of violating contravenes those claimants' due process rights because, by prohibiting collection pursuant to voluntary fee agreements and failing to provide adequate alternative means of attorney compensation, it renders claimants unable to obtain legal representation for their black lung claims. Ordinarily, of course, a litigant "must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'" Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 454 U. S. 474 (1982) (quoting Warth v. Seldin, 422 U. S. 490, 422 U. S. 499 (1975)). This is generally so even when the very same allegedly illegal act that affects the litigant also affects a third party. See United States v. Payner, 447 U. S. 727, 447 U. S. 731-732 (1980) (criminal defendant "lacks [third-party] standing under the Fourth Amendment to suppress . . . documents illegally seized from" his banker). When, however, enforcement of a restriction against the litigant prevents a third party from entering into a relationship with the litigant (typically a contractual relationship), to which relationship the third party has a legal entitlement (typically a constitutional entitlement), third-party standing has been held to exist. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 467 U. S. 954-958 (1984) (professional fundraiser given third-party standing to challenge statute limiting its commission to 25 percent as violation of clients' First Amendment right to hire him for a higher fee). A restriction upon the fees a lawyer may charge that deprives the lawyer's prospective client of a due process right to obtain legal representation falls squarely within this principle. See Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, Page 494 U. S. 721 491 U. S. 623-624, n. 3 (1989).** There is no question that a due process right to representation is placed at issue here, since at least one of the claimants who retained respondent received benefits that the Government was seeking to recover as erroneously paid. See ___ W.Va. at ___, 378 S.E.2d at 92, n. 31; Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 473 U. S. 320, n. 8 (1985).Accordingly, we find standing on both sides of this case.IIIIn Walters v. National Assn. of Radiation Survivors, supra, we upheld against due process attack a statutory $10 limitation on attorney's fees payable by veterans seeking disability or death benefits in proceedings before the Veterans' Administration. We began there, as we begin here, by noting the heavy presumption of constitutionality to which a "carefully considered decision of a coequal and representative branch of our Government" is entitled. Id., 473 U.S. at 473 U. S. 319. We determined in Walters that the Government had an interest in administering benefits in an informal and nonadversarial fashion so that claimants would receive the entirety of an award without having to divide it with a lawyer. Id. at 473 U. S. 321-323. We accorded that interest "great weight," id. at Page 494 U. S. 722 473 U. S. 326, and required those challenging the law to make"an extraordinarily strong showing of probability of error under the present system -- and the probability that the presence of attorneys would sharply diminish that possibility -- to warrant a holding that the fee limitation denies claimants due process of law."Ibid. Applying a similar analysis here, we conclude that the fee limitation scheme must be upheld.The Government pursues an obvious and legitimate interest through the current regime. The regulation of attorney's fees payable by claimants themselves is designed to protect claimants from their "improvident contracts, in the interest not only of themselves and their families but of the public." Yeiser v. Dysart, 267 U. S. 540, 267 U. S. 541 (1925) (upholding similar state limitation). When fees are payable by persons other than the claimants, as Congress has provided, regulation is designed to assure fairness to the employer, carrier, or Trust Fund, and to protect those sources from a depletion that would leave other claimants without a source of compensation. The Government has good reason, moreover, to defer payment until the compensation award is final. A regime of payment immediately upon success at every level, subject to recovery in the event the judgment in favor of the claimant is reversed at a higher level, would impose upon the payor the onerous task of seeking to obtain refund.In Walters v. National Assn. of Radiation Survivors, supra, we assumed that the fee limitation would make attorneys unavailable to claimants, but nevertheless upheld the statute because attorneys were not essential to vindicate the claims. Here, we need not reach the latter issue unless respondent has proved what was assumed in that case, viz., that the regime made attorneys unavailable to his prospective clients at the time respondent violated the Act. That showing contains two component parts: (1) that claimants could not obtain representation, and (2) that this unavailability of attorneys was attributable to the Government's fee regime. That is no small burden, and respondent has failed to bear it. Page 494 U. S. 723Since the due process issue in this case first arose during the original enforcement proceeding in the West Virginia Supreme Court of Appeals, no lower court had heard evidence or made factual findings. Although the Committee had heard evidence concerning respondent's misconduct, it made no findings regarding the effect of the fee regime on the availability of lawyers. The "factual record" upon which the court relied to invalidate this federal program consisted of testimony by two lawyers in the disciplinary proceeding, five affidavits attached to an amicus brief to the court, and statements by attorneys in hearings before a House of Representatives subcommittee in 1985. Since it is critical to our disposition of the case, we shall describe the evidence the court relied upon in some detail.As to the first issue -- unavailability of attorneys -- the court relied upon three lawyers' assessments. One stated that "fewer qualified attorneys are accepting black lung claims," and that more claimants are proceeding pro se. ___ W.Va. at ___, 378 S.E.2d at 90. According to a second attorney, "few attorneys are willing to represent black lung claimants." Ibid. A third lawyer's evaluation was not contained in the record, but consisted of his 1985 testimony to the House subcommittee that "many of his colleagues had . . . stated unequivocally that they would not take black lung cases. . . . '" Id. at ___, 378 S.E.2d at 91 (quoting Hearings on Investigation of Backlog of Black Lung Cases before the Subcommittee on Labor Relations of the House Committee on Education and Labor, 99th Cong., 1st Sess. 188 (1985)). (The court did not mention the testimony of other witnesses before the subcommittee to the opposite effect. See, e.g., id. at 45.)This will not do. We made clear in Walters that this sort of anecdotal evidence will not overcome the presumption of regularity and constitutionality to which a program established by Congress is entitled. 473 U.S. at 473 U. S. 324, n. 11. The impressions of three lawyers that the current system has produced "few" lawyers, or "fewer qualified attorneys" Page 494 U. S. 724 (whatever that means), and that "many" have left the field, are blatantly insufficient to meet respondent's burden of proof, even if entirely unrebutted.In unneeded addition, there was rebuttal here -- affirmative indication that attorneys willing to take black lung cases were in adequate supply. Data submitted by the Department in support of its petition for rehearing showed that, in 1987, claimants were represented by counsel at the ALJ stage in 92% of cases resulting in grant or denial of benefits. Although these statistics are not conclusive of adequate attorney availability (they do not show, for example, the proportion of unrepresented claimants who never reached the ALJ stage), they are the only nonanecdotal evidence in the record, and they powerfully suggest that claimants whose chances of success are high enough to attract contingent-fee lawyers have no difficulty finding them.Even if respondent had demonstrated an unavailability of attorneys, he would have been obliged further to show that its cause was the regulation of fees. He did not do so. In finding to the contrary, the West Virginia Supreme Court relied mainly on statements by attorneys concerning the delay in receiving payment. Of the three lawyers who claimed that there was a shortage of attorneys (see supra at 494 U. S. 723), two attributed the shortage, in part, to the delay in payment of fees. ___ W.Va. at ___, 378 S.E.2d at 90, 91. See also id. at ___, n. 6, 378 S.E.2d at 85, n. 6 (lawyer testified that he had not yet been paid in "three or four" cases in which he had prevailed); id. at ___, 378 S.E.2d at 90-91 (testimony at congressional hearings that payment was delayed 2-3 years); id. at ___, 378 S.E.2d at 90 (lawyer stated that he is owed more than $30,000 in fees that have been awarded but not paid). The court thought this proved that the delay built into the fee-approval system produced the unavailability of attorneys:"In a small, depressed West Virginia town, $30,000 is a substantial amount of money for an individual practitioner. In the long run, as John Maynard Keynes once observed, we are all dead. In Page 494 U. S. 725 the short run, lawyers have offices to run, mortgages to pay, and children to educate."Ibid.The court did not explain why the Keynesian imperative of cash-on-the-barrelhead has not eliminated the contingent fee, the very institution respondent seeks to shield from regulation -- which itself yields no office funds, mortgage payments or tuition fees until often lengthy litigation is completed. The answer, of course, is that the contingent fees contracted for are high enough to compensate not only for the contingency but also for the delay until the contingency is resolved. There is no apparent reason why compensation cannot render palatable the additional delay inherent in the Department's approval procedure as well. At one point, the West Virginia Supreme Court seemed to acknowledge this, asserting that its whole case against the Department's scheme boils down to the fact that the fees are too low:"It is clear from the evidence before us that most lawyers are unwilling to represent black lung claimants because of the inadequate fees awarded by the DOL."Id. at 378 S.E.2d at 94. The evidence to support this economic assessment is similar to that for the unavailability of attorneys: small in volume, anecdotal in character, and self-interested in motivation -- to-wit, a portion of the affidavit of one claimants' attorney who has not abandoned the practice. Id. at ___, 378 S.E.2d at 90 (citing Muth affidavit). On the face of the matter, it is difficult to understand how the Department could maintain a system of inadequate fees if it wanted to. The statute itself requires that the fees awarded be "reasonable," see 33 U.S.C. § 928(a) (1982 ed.); 30 U.S.C. § 932(a) (1982 ed., Supp. V), which the agency has interpreted to include a requirement that they compensate for delay, cf. Hobbs v. Director, OWCP, 820 F.2d 1528, 1529 (CA9 1987) (applying LHWCA); and where the statutory requirement is not observed, the dissatisfied attorney has a remedy in the appropriate Court of Appeals, see 33.U.S.C. §§ 921(c), 928(a) (1982 ed.); 30 U.S.C. § 932(a) (1982 ed., Supp. V); Hobbs v. Director, OWCP, supra. Page 494 U. S. 726To establish the requisite causality between the Department's scheme and the (alleged) unavailability of attorneys, the court also relied upon the impressions of the three lawyers (see supra at 494 U. S. 723) who attributed the departure of many black lung attorneys to the risk of nonrecovery if the claimant loses. ___ W.Va. at ___, 378 S.E.2d at 90-91. But as noted above, the existence in this country of a thriving contingent-fee practice demonstrates that this risk can be compensated for -- so it comes down once again to the level of compensation. And we note that the Benefits Review Board has construed the regulations of the Secretary of Labor governing the award of attorney's fees to permit consideration of the attorney's risk of going unpaid. See Risden v. Director OWCP, 11 BRBS 819, 824 (1980).Finally, to establish the necessary causality, the court relied on the conclusory impressions of interested lawyers as to the effect of the Department's fee regime on the availability of attorneys. One lawyer, for example, whose experience consisted of representing two claimants prior to 1981, said that he did not take black lung cases because of the difficulty in obtaining fees. ___ W.Va. at ___, n. 6, 378 S.E.2d at 85, n. 6; Tr. 206. Cf. ___ W.Va. at ___, 378 S.E.2d at 91. Perhaps so; but that does not come close to proving that the fee regime dried up the supply of attorneys.In sum, the evidence relied upon by the West Virginia Supreme Court did not remotely establish either that black lung claimants are unable to retain qualified counsel or that the cause of such inability is the attorney's fee system administered by the Department. The court therefore had no basis for concluding that that system deprives claimants of property without due process of law.IVIt is not clear to us what the West Virginia Supreme Court meant by what it described as its "independent Page 494 U. S. 727 basis" for finding a due process violation, which was set forth as follows:"Congress has conferred upon qualified claimants the right to receive black lung benefits. Congress has also prescribed the remedy (the claims process) to guarantee this right, an essential part of which is the right to counsel. It is, therefore, unconstitutional for the Department of Labor by its regulations to deny qualified claimants the procedural safeguards provided by Congress that are essential to vindicate the right to benefits also granted by Congress."Id. at ___, 378 S.E.2d at 93.It seems to us this adds nothing to the prior analysis except the assertion that the right to counsel, besides being constitutionally required (as we have earlier assumed) was part of the statutory "remedy" prescribed by Congress. If that were so, of course, it would not be necessary to invoke the Due Process Clause, since, in denying the right, the Department of Labor would be violating the statute. In any case, the asserted basis is not "independent" -- or at least not independent of the central proposition that black lung claimants have been deprived of their ability to obtain counsel. Our conclusion that that proposition has not remotely been established disposes of the West Virginia Supreme Court's alternative ground of decision as well.The judgment of the West Virginia Supreme Court of Appeals is reversed and remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtU.S. Department of Labor v. Triplett, 494 U.S. 715 (1990)SyllabusThe Black Lung Benefits Act of 1972 prohibits attorneys from receiving fees for representing claimants except as approved by petitioner Department of Labor. In implementing this provision, the Department promulgated approval procedures which, inter alia, invalidate all contractual fee arrangements. Respondent Triplett, an attorney, violated the Department's fee scheme when he agreed to represent claimants on a contingent fee basis and collected fees without the required approval. Petitioner Committee on Legal Ethics of the West Virginia State Bar recommended that he be suspended for these infractions and filed a complaint in the West Virginia Supreme Court of Appeals to enforce the sanction. The court denied enforcement, ruling that the scheme was unconstitutional because it effectively denied claimants necessary access to counsel and, alternatively, because it denied them the procedural safeguards provided by the Act.Held:1. Both sides have standing. The Committee has standing on the basis of its classic interest as a government prosecuting agency in defending the law on which its prosecution is based, and there is therefore no need to inquire into the Department's standing. Triplett has third-party standing by virtue of his claim that enforcement of the fee scheme against him deprives his clients of a due process right to obtain legal representation. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 467 U. S. 964-958. ASARCO Inc. v. Kadish, 490 U. S. 605, distinguished. There is no question that such a right is placed at issue here, since at least one of Triplett's clients received benefits that the Government was seeking to recover as erroneously paid. Pp. 494 U. S. 719-721.2. The Department's fee limitation scheme does not violate due process. Pp. 494 U.S. 721-727.(a) In light of the Government's obvious and legitimate interest in protecting claimants and others who may be required by the Act to pay Page 494 U. S. 716 fees, the Department's scheme is entitled to a heavy presumption of constitutionality. Respondent must prove that the scheme made attorneys unavailable to his prospective clients at the time he violated the Act. See Walters v. National Assn. of Radiation Survivors, 473 U. S. 305. The "factual record" upon which the state court relied is blatantly insufficient to meet respondent's burden. The only nonanecdotal evidence in the record powerfully suggests that claimants whose chances of success are high enough to attract contingent-fee lawyers have no difficulty finding them. Pp. 494 U.S. 721-726.(b) The state court's alternative holding that the fee scheme violated due process by depriving claimants of statutory procedural safeguards, including the right to counsel, is disposed of by the conclusion that they have not been deprived of their asserted constitutional right to representation. Pp. 494 U. S. 726-727.___ W.Va. ___, 378 S.E.2d 82, reversed and remanded.SCALIA, J., delivered the opinion of the Court, in Parts I, II-A, III, and IV of which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, and KENNEDY, JJ., joined, and in Part II-B of which REHNQUIST, C.J., and STEVENS, O'CONNOR, and KENNEDY, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 494 U. S. 727. MARSHALL, J., filed an opinion concurring in the judgment, in Part II of which BRENNAN, J., joined, post, p. 494 U. S. 728. BRENNAN, J., filed a separate statement, post, p. 494 U. S. 736. Page 494 U. S. 717

2001_00-730

PER CURIAM.We granted certiorari to review for a second time whether the Court of Appeals was correct when it concluded that the Department of Transportation's (DOT's) Disadvantaged Business Enterprise (DB E) program is consistent with the constitutional guaranty of equal protection. But upon full briefing and oral argument we find that the current posture of this case prevents review of that important question. To address it would require a threshold inquiry into issues decided by the Court of Appeals but not presented in the petition for certiorari. We therefore dismiss the writ of certiorari as improvidently granted.Six years ago in Adarand Constructors, Inc. v. Pena, 515 U. S. 200 (1995) (Adarand I), we held that strict scrutiny governs whether race-based classifications violate the equal protection component of the Fifth Amendment's Due Process Clause. See id., at 235 ("Federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest"). We remanded for a determination whether the race-based components of the DOT's DBE program could survive this standard of review.On remand, the District Court for the District of Colorado found that no such race-based component then in operation could so survive. Adarand Constructors, Inc. v. Pena, 965 F. Supp. 1556 (1997). The Court of Appeals vacated the District Court's judgment, reasoning that petitioner's cause of action had been mooted because the Colorado Department of Transportation had recently certified petitioner as a DBE. Adarand Constructors, Inc. v. Slater, 169 F.3d 1292, 12961297 (CAlO 1999). Finding it not at all clear that petitioner's certification was valid under DOT regulations, we againand Vincent A. Eng; for Social Science and Comparative Law Scholars by Clark D. Cunningham; for the Southeastern Legal Foundation, Inc., by Walter H. Ryland and Valle Simms Dutcher; and for L. S. Lee, Inc., by Mr. Ryland.106granted certiorari, reversed the Court of Appeals, and remanded for a determination on the merits consistent with Adarand 1. Adarand Constructors, Inc. v. Slater, 528 U. S. 216 (2000) (per curiam).Following the submission of supplemental briefs addressing statutory and regulatory changes that had occurred since the District Court's 1997 judgment favorable to petitioner, the Court of Appeals affirmed in part and reversed in part. 228 F.3d 1147 (CAlO 2000). The Court of Appeals agreed with the District Court that the DOT's DBE program was unconstitutional as it was administered in 1997. It further agreed that the automatic use of financial incentives to encourage the award of subcontracts to DBEs, as originally contemplated by the DOT's Subcontractor Compensation Clause (SCC) program, was "unconstitutional under Adarand [1's] strict standard of scrutiny." Id., at 1187. The Secretary of Transportation never challenged these rulings and has since discontinued any and all use of the SCC program. Brief for Respondents 2, 10, 13, 20, n. 3, 23. See also 228 F. 3d, at 1194 ("The government maintains, and Adarand does not dispute, that the SCC, which spawned this litigation in 1989, is no longer in use"); Tr. of Oral Arg. 25 ("[SCCs] ha[ve been] abandoned in all respects, [they] have not been justified, and the United States Government is not employing [them]").The Court of Appeals next turned its attention to new regulations issued by the Secretary of Transportation under the Transportation Equity Act for the 21st Century (TEA21), § 1101(b)(1), 112 Stat. 113. See 49 CFR pt. 26 (1999). These regulations pertain almost exclusively to use of federal funds for highway projects let by States and localities, which the Court of Appeals found to be the only "relevant" aspect of the DBE program under review. 228 F. 3d, at 1160. The Court of Appeals further noted that petitioner either lacked standing or had waived its right to challenge any other race-conscious program. Ibid. Finally, the107Court of Appeals held that, by virtue of the new regulatory framework under which the DOT's state and local DBE program now operates, that program passed constitutional muster under Adarand 1. 228 F. 3d, at 1176-1187.We again granted certiorari to decide whether the Court of Appeals misapplied the strict scrutiny standard announced in Adarand 1. 532 U. S. 941 (2001). We anticipated that we would be able to review the same "relevant program" that was addressed by the Court of Appeals.1 But since certiorari was granted there has been a shift in the posture of the case that precludes such review.Both parties agree that the Court of Appeals confined its opinion to the constitutionality of the DOT's DBE program as it pertains to the use of federal funds for highway projects let by States and localities. See Brief for Petitioner 15-17; Brief for Respondents 19-23. It is clear from its opinion that the Court of Appeals considered no other programs; its strict scrutiny analysis relies almost exclusively on regulations designed to channel benefits, through States and localities, to firms owned by individuals who hold themselves out to be socially and economically disadvantaged. See 228 F. 3d, at 1176-1188. These regulations clearly permit the award of contracts based on raceconscious measures in jurisdictions where petitioner operates, and, as the Government concedes, provide petitioner with a potential basis for prospective relief, at least to the extent petitioner challenges them. Brief for Respondents 3.It appeared at the certiorari stage that petitioner was indeed challenging these statutes and regulations. Nothing1 We granted certiorari to review the following questions:"1. Whether the Court of Appeals misapplied the strict scrutiny standard in determining if Congress had a compelling interest to enact legislation designed to remedy the effects of racial discrimination?"2. Whether the United States Department of Transportation's current Disadvantaged Business Enterprise program is narrowly tailored to serve a compelling governmental interest?" 532 U. S. 968 (2001).108in the petition for certiorari contested the Court of Appeals' determination that petitioner lacked standing to challenge the statutes and regulations relating to any other raceconscious program. The petition for certiorari simply noted the Court of Appeals' determination on this ground as a matter of fact, without further comment. Pet. for Cert. 4, nn. 2, 3.Petitioner now asserts, however, that it is not challenging any part of DOT's state and local procurement program. Instead, it claims to be challenging only the statutes and regulations that pertain to DOT's direct procurement of highway construction on federal lands. Brief for Petitioner 12-17. But the statutes and regulations relating to direct procurement are quite different from the statutes and regulations reviewed by the Court of Appeals. In particular, while procurement by States and localities is governed by the regulations issued by the Secretary of Transportation under TEA-21, direct federal procurement is governed by the Small Business Act, including §§ 8(d)(4)-(6), as added by § 211 of Pub. L. 95-507, 92 Stat. 1768, and as amended, 15 U. S. C. §§ 637(d)(4)-(6) (1994 ed. and Supp. V), and the regulations promulgated thereunder, 48 CFR pt. 19 (1998).This shift in posture requires dismissal of the writ for two reasons. First, the Court of Appeals has not considered whether the various race-based programs applicable to direct federal contracting could satisfy strict scrutiny. See 228 F. 3d, at 1189, n. 35 ("There is no indication from any of the parties in their briefs or elsewhere that the particular requirements of paragraphs (4)-(6) of § 8(d) are at issue in the instant lawsuit") (citing 15 U. S. C. §§ 637(d)(4)-(6) (1994 ed. and Supp. IV)); see also 228 F. 3d, at 1188-1189, n. 32 ("The parties have not addressed paragraph (4) of § 8(d) at all, and ... we do not address it in great detail"). The Government also has not addressed such programs in its brief on the merits. Brief for Respondents 38-50. Petitioner urges us to take on this task ourselves, and apply109strict scrutiny in the first instance to a complex web of statutes and regulations without benefit of any lower court review. But in Adarand I, 515 U. S., at 238-239, we said that application of our strict scrutiny standard "should be addressed in the first instance by the lower courts." We ordinarily "do not decide in the first instance issues not decided below." National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999). See also Glover v. United States, 531 U. S. 198, 205 (2001) ("In the ordinary course we do not decide questions neither raised nor resolved below"); Youakim v. Miller, 425 U. S. 231 (1976) (per curiam) (same).Second, to reach the merits of any challenge to statutes and regulations relating to direct federal procurement would require a threshold examination of whether petitioner has standing to challenge such statutes and regulations. Petitioner has sought to show that it does have such standing, but this showing was not made (and no argument was ever advanced) until three weeks before oral argument. It was made then in a reply brief submitted with a lodging of voluminous evidence that has never been presented to any lower court. Reply Brief for Petitioner 1-9. The Government has responded with a lodging of its own, contending that no race-conscious measures are used for direct procurement in any jurisdiction in which petitioner does business.2 Whatever the merits of these competing positions, the petition for certiorari nowhere disputed the Court of Appeals' explicit2 The Government states that a "Benchmark Study" completed by the Department of Commerce, see 64 Fed. Reg. 52806 (1999); 63 Fed. Reg. 35714 (1998), prohibits the use of race-conscious mechanisms for direct federal procurement of highway construction projects in any State other than Alabama, Mississippi, Louisiana, Arkansas, Kentucky, Tennessee, Texas, and Oklahoma, in none of which does petitioner conduct operations. Brief for Respondents 8-10, 22. At oral argument, the Government stated its view that the §§ 8(d)(4)-(6) programs in their current form would not meet the constitutional requirement of "narrow tailoring" if used in jurisdictions where the Benchmark Study has found no disparity suggesting discrimination or its continuing effects. Tr. of Oral Arg. 29-30.110holding that petitioner lacked standing to challenge the very provisions petitioner now asks us to review. 228 F. 3d, at 1160 ("Nor are we presented with any indication that Adarand has standing to challenge paragraphs (4)-(6) of 15 U. S. C. § 637(d)").We are obliged to examine standing sua sponte where standing has erroneously been assumed below. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 95 (1998) (" '[I]f the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it''') (quoting United States v. Corrick, 298 U. S. 435, 440 (1936)). But we do not examine standing sua sponte simply to reach an issue for which standing has been denied below-exactly what petitioner asks that we do here. See, e. g., Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 31-32 (1993) (per curiam) (discussing this Court's Rule 14.1(a) and the "heavy presumption" against reaching threshold questions not presented in the petition for certiorari (internal quotation marks and citations omitted))."Mindful that this is a court of final review and not first view," Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 399 (1996) (GINSBURG, J., concurring in part and dissenting in part), we thus decline to reach the merits of petitioner's present challenge. Petitioner points out that this case presents questions of fundamental national importance calling for final resolution by this Court. But the importance of an issue should not distort the principles that control the exercise of our jurisdiction. To the contrary, "by adhering scrupulously to the customary limitations on our discretion regardless of the significance of the underlying issue, we promote respect ... for the Court's adjudicatory process." Adams v. Robertson, 520 U. S. 83, 92, n. 6 (1997) (per curiam) (internal quotation marks omitted). We also "ensure that we are not tempted to engage in ill-considered111decisions of questions not presented in the petition." Izumi Seimitsu, supra, at 34.For the foregoing reasons, the writ of certiorari is dismissed as improvidently granted.It is so ordered

OCTOBER TERM, 2001SyllabusADARAND CONSTRUCTORS, INC. v. MINETA, SECRETARY OF TRANSPORTATION, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUITNo. 00-730. Argued October 31, 200l-Decided November 27, 2001In Adarand Constructors, Inc. v. Pena, 515 U. S. 200 (Adarand I), this Court held that strict scrutiny governs whether race-based classifications violate equal protection and remanded for a determination whether the race-based components of the Department of Transportation's (DOT's) Disadvantaged Business Enterprise (DBE) program could survive such review. The District Court then found that no such component could survive, but the Tenth Circuit vacated and this Court again reversed and remanded, Adarand Constructors, Inc. v. Slater, 528 U. S. 216 (per curiam). Subsequently, the Tenth Circuit held, inter alia, that new regulations issued under the Transportation Equity Act for the 21st Century (TEA-21) pertain almost exclusively to the use of federal funds for highway projects let by States and localities, the only relevant aspect of the DBE program under review; that petitioner lacked standing and had waived its right to challenge any other raceconscious program; and that under the new regulatory framework, the DBE program being reviewed was constitutional. When this Court again granted certiorari to decide whether the Tenth Circuit misapplied Adarand I, it appeared that petitioner was challenging the DBE program as it pertains to the use of federal funds for state and local highway projects. Petitioner now asserts that it is challenging only the statutes and regulations pertaining to DOT's direct procurement of highway construction on federal lands.Held: The writ of certiorari is dismissed as improvidently granted. The direct procurement statutes and regulations are quite different from the ones the Tenth Circuit reviewed. While state and local procurement is governed by the Transportation Secretary under TEA-21, direct federal procurement is governed by the Small Business Act and regulations promulgated thereunder. The shift in this case's posture requires dismissal of the writ for two reasons. First, this Court held in Adarand I that application of the strict scrutiny standard should be addressed in the first instance by the lower courts. However, the Tenth Circuit has not considered whether race-based programs applicable to direct federal contracting could satisfy strict scrutiny, and the Government has not addressed such programs in its merits brief. Second, to reach the merits of any challenge to the direct procurement statutes and regulations104would require a threshold examination of standing, but petitioner, in its certiorari petition, did not dispute the Tenth Circuit's holding that it lacked standing to make such a challenge. This Court is obliged to examine standing sua sponte where it has erroneously been presumed below, but not simply to reach an issue for which standing has been denied below. Mindful that this is a Court of final review, not first view, the Court thus declines to reach the merits of the present challenge.Certiorari dismissed. Reported below: 228 F.3d 1147.William Perry Pendley argued the cause and filed briefs for petitioner.Solicitor General Olson argued the cause for respondents.With him on the brief were Assistant Attorney General Boyd, Deputy Solicitor General Clement, Jeffrey A. Lamken, Mark L. Gross, Teresa Kwong, Paul M. Geier, Peter J. Plocki, Peter S. Smith, and Edward v: A. Kussy. **Briefs of amici curiae urging reversal were filed for the Associated General Contractors of America, Inc., by John G. Roberts, Jr., and Michael E. Kennedy; for the Center for Individual Rights by Michael E. Rosman; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for GEOD Corp. et al. by Martin S. Kaufman and Briscoe R. Smith; and for the Pacific Legal Foundation et al. by John H. Findley and Sharon L. Browne.Briefs of amici curiae urging affirmance were filed for the City and County of Denver by Eileen Penner and J. Wallace Wortham, Jr.; for the Lawyers' Committee for Civil Rights Under Law et al. by John A. Payton, Charles T. Lester, Jr., Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Steven R. Shapiro, Christopher A. Hansen, Antonia Hernandez, Dennis C. Hayes, and Elliot M. Mincberg; for the NOW Legal Defense and Education Fund et al. by Martha F. Davis and Mitchell A. Lowenthal; for the Minority Business Enterprise Legal Defense and Education Fund, Inc., et al. by Bradley S. Phillips, Paul J. Watford, and Fred A. Rowley, Jr.; for the NAACP Legal Defense and Educational Fund, Inc., by Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, James L. Cott, and Robert H. Stroup; for the National League of Cities et al. by Richard Ruda, James I. Crowley, and Robert Brauneis; for the Office of Communication of the United Church of Christ et al. by David Honig and Shelby D. Green; for the Women First National Legislative Committee et al. by Edward W Correia; and for Senator Max Baucus et al. by Mr. Correia.Briefs of amici curiae were filed for the National Asian Pacific American Legal Consortium et al. by Mark A. Packman, Jonathan M. Cohen,105Full Text of Opinion

1979_79-5601

MR. JUSTICE MARSHALL delivered the opinion of the Court.The question presented is whether, in an action brought under 42 U.S.C. § 1983 against a public official whose position might entitle him to qualified immunity, a plaintiff must Page 446 U. S. 636 allege that the official has acted in bad faith in order to state a claim for relief or, alternatively, whether the defendant must plead good faith as an affirmative defense.IPetitioner Carlos Rivera Gomez brought this action against respondent, the Superintendent of the Police of the Commonwealth of Puerto Rico, contending that respondent had violated his right to procedural due process by discharging him from employment with the Police Department's Bureau of Criminal Investigation. [Footnote 1] Basing jurisdiction on 28 U.S.C. § 1343(3), [Footnote 2] petitioner alleged the following facts in his complaint. [Footnote 3] Petitioner had been employed as an agent with the Puerto Rican police since 1968. In April, 1975, he submitted a sworn statement to his supervisor in which he asserted that two other agents had offered false evidence for use in a criminal case under their investigation. As a result of this statement, petitioner was immediately transferred from the Criminal Investigation Corps for the Southern Area to Police Headquarters in San Juan, and a few weeks later to the Police Academy in Gurabo, where he was given no investigative authority. In the meantime respondent ordered an investigation of petitioner's claims, and the Legal Division of Page 446 U. S. 637 the Police Department concluded that all of petitioner's factual allegations were true.In April, 1976, while still stationed at the Police Academy, petitioner was subpoenaed to give testimony in a criminal case arising out of the evidence that petitioner had alleged to be false. At the trial, petitioner, appearing as a defense witness, testified that the evidence was in fact false. As a result of this testimony, criminal charges, filed on the basis of information furnished by respondent, were brought against petitioner for the allegedly unlawful wiretapping of the agents' telephones. Respondent suspended petitioner in May, 1976, and discharged him without a hearing in July. In October, the District Court of Puerto Rico found no probable cause to believe that petitioner was guilty of the allegedly unlawful wiretapping and, upon appeal by the prosecution, the Superior Court affirmed. Petitioner, in turn, sought review of his discharge before the Investigation, Prosecution, and Appeals Commission of Puerto Rico, which, after a hearing, revoked the discharge order rendered by respondent and ordered that petitioner be reinstated with backpay.Based on the foregoing factual allegations, petitioner brought this suit for damages, contending that his discharge violated his right to procedural due process, and that it had caused him anxiety, embarrassment, and injury to his reputation in the community. In his answer, respondent denied a number of petitioner's allegations of fact and asserted several affirmative defenses. Respondent then moved to dismiss the complaint for failure to state a cause of action, see Fed.Rule Civ Proc. 12(b)(6), and the District Court granted the motion. Observing that respondent was entitled to qualified immunity for acts done in good faith within the scope of his official duties, it concluded that petitioner was required to plead as part of his claim for relief that, in committing the actions alleged, respondent was motivated by bad faith. The absence of any such allegation, it held, required dismissal of Page 446 U. S. 638 the complaint. The United States Court of Appeals for the First Circuit affirmed. 602 F.2d 1018 (1979). [Footnote 4]We granted certiorari to resolve a conflict anong the Courts of Appeals. [Footnote 5] 444 U.S. 1031 (1980). We now reverse.IISection 1983 provides a cause of action for "the deprivation of ay rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under color of a.ny statute, ordinance, regulation, custom, or usage, of any State or Territory." 42 U.S.C. § 1983. [Footnote 6] This statute, enacted to aid in "the preservation of human liberty and human rights,'" Owen v. City of Independence, 445 U. S. 622, 445 U. S. 636 (1980), quoting Cong.Globe, 42d Cong., 1st Sess., App. 68 Page 446 U. S. 639 (1871) (Rep. Shellabarger), reflects a congressional judgment that a "damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees," 445 U.S. at 445 U. S. 651. As remedial legislation, § 1983 is to be construed generously to further its primary purpose. See 445 U.S. at 445 U. S. 636.In certain limited circumstances, we have held that public officers are entitled to a qualified immunity from damages liability under § 1983. This conclusion has been based on an unwillingness to infer from legislative silence a congressional intention to abrogate immunities that were both "well established at common law" and "compatible with the purposes of the Civil Rights Act." 445 U.S. at 445 U. S. 638. Findings of immunity have thus been"predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it."Imbler v. Pachtman, 424 U. S. 409, 424 U. S. 421 (1976). In Pierson v. Ray, 386 U. S. 547, 386 U. S. 555 (1967), for example, we concluded that a police officer would be"excus[ed] from liability for acting under a statute that he reasonably believed to be valid, but that was later held unconstitutional, on its face or as applied."And in other contexts we have held, on the basis of "[c]ommon law tradition . . . and strong public policy reasons," Wood v. Strickland, 420 U. S. 308, 420 U. S. 318 (1975), that certain categories of executive officers should be allowed qualified immunity from liability for acts done on the basis of an objectively reasonable belief that those acts were lawful. See Procunier v. Navarette, 434 U. S. 555 (1978) (prison officials); O'Connor v. Donaldson, 422 U. S. 563 (1975) (superintendent of state hospital); Wood v. Strickland, supra, (local school board members); Scheuer v. Rhodes, 416 U. S. 232 (1974) (state Governor and other executive officers). Cf. Owen v. City of Independence, supra, (no qualified immunity for municipalities).Nothing in the language or legislative history of § 1983, Page 446 U. S. 640 however, suggests that, in an action brought against a public official whose position might entitle him to immunity if he acted in good faith, a plaintiff must allege bad faith in order to state a claim for relief. By the plain terms of § 1983, two -- and only two -- allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law. See Monroe v. Pape, 365 U. S. 167, 365 U. S. 171 (1961). Petitioner has made both of the required allegations. He alleged that his discharge by respondent violated his right to procedural due process, see Board of Regents v. Roth, 408 U. S. 564 (1972), and that respondent acted under color of Puerto Rican law. See Monroe v. Pape, supra, at 365 U. S. 172-187. [Footnote 7]Moreover, this Court has never indicated that qualified immunity is relevant to the existence of the plaintiff's cause of action; instead, we have described it as a defense available to the official in question. See Procuner v. Navarette, supra at 434 U. S. 562; Pierson v. Ray, supra at 386 U. S. 556, 386 U. S. 557; Butz v. Economou, 438 U. S. 478, 438 U. S. 508 (1978). Since qualified immunity is a defense, the burden of pleading it rests with the defendant. See Fed.Rule Civ.Proc. 8(c) (defendant must plead any "matter constituting an avoidance or affirmative defense"); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1271 (1969). It is for the official to claim that his conduct was justified by an objectively reasonable belief that it was lawful. We see no basis for imposing on the plaintiff an obligation to anticipate such a defense by stating in his complaint that the defendant acted in bad faith.Our conclusion as to the allocation of the burden of pleading is supported by the nature of the qualified immunity Page 446 U. S. 641 defense. As our decisions make clear, whether such immunity has been established depends on facts peculiarly within the knowledge and control of the defendant. Thus, we have stated that"[i]t is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct."Scheuer v. Rhodes, supra at 416 U. S. 247-248. The applicable test focuses not only on whether the official has an objectively reasonable basis for that belief, but also on whether "[t]he official himself [is] acting sincerely, and with a belief that he is doing right," Wood v. Strickland, supra at 420 U. S. 321. There may be no way for a plaintiff to know in advance whether the official has such a belief or, indeed, whether he will even claim that he does. The existence of a subjective belief will frequently turn on factors which a plaintiff cannot reasonably be expected to know. For example, the official's belief may be based on state or local law, advice of counsel, administrative practice, or some other factor of which the official alone is aware. To impose the pleading burden on the plaintiff would ignore this elementary fact, and be contrary to the established practice in analogous areas of the law. [Footnote 8] Page 446 U. S. 642The decision. of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtGomez v. Toledo, 446 U.S. 635 (1980)Gomez v. ToledoNo. 79-5601Argued April 16, 1980Decided May 27, 1980446 U.S. 635SyllabusHeld: In an action brought under 42 U.S.C. § 1983 against a public official whose position might entitle him to qualified immunity, the plaintiff is not required to allege that the defendant acted in bad faith in order to state a claim for relief, but the burden is on the defendant to plead good faith as an affirmative defense. By § 1983's plain terms, the plaintiff is required to make only two allegations in order to state a cause of action under the statute: (1) that some person deprived him of a federal right, and (2) that such person acted under color of state or territorial law. This allocation of the burden of pleading is supported by the nature of the qualified immunity defense, since whether such immunity has been established depends on facts peculiarly within the defendant's knowledge and control, the applicable test focusing not only on whether he has an objectively reasonable basis for his belief that his conduct was lawful, but also on whether he has a subjective belief. Pp. 446 U. S. 638-641.602 F.2d 1018, reversed and remanded.MARSHALL, J., delivered the opinion for a unanimous Court. REHNQUIST, J., filed a concurring statement, post, p. 446 U. S. 642.

1981_81-202

JUSTICE STEVENS delivered the opinion of the Court.The term "concerted action" encompasses unlawful conspiracies and constitutionally protected assemblies. The "looseness and pliability" of legal doctrine applicable to concerted action led Justice Jackson to note that certain joint activities have a "chameleon-like" character. [Footnote 1] The boycott of white merchants in Claiborne County, Miss., that gave rise to this litigation had such a character; it included elements of criminality and elements of majesty. Evidence that fear of reprisals caused some black citizens to withhold their patronage from respondents' businesses convinced the Supreme Court of Mississippi that the entire boycott was unlawful, and that each of the 92 petitioners was liable for all of its economic consequences. Evidence that persuasive rhetoric, determination to remedy past injustices, and a host of voluntary decisions by free citizens were the critical Page 458 U. S. 889 factors in the boycott's success presents us with the question whether the state court's judgment is consistent with the Constitution of the United States.IIn March, 1966, black citizens of Port Gibson, Miss., and other areas of Claiborne County presented white elected officials with a list of particularized demands for racial equality and integration. [Footnote 2] The complainants did not receive a satisfactory response and, at a local National Association for the Advancement of Colored People (NAACP) meeting at the First Baptist Church, several hundred black persons voted to place a boycott on white merchants in the area. On October 31, 1969, several of the merchants filed suit in state court to recover losses caused by the boycott and to enjoin future boycott activity. We recount first the course of that litigation and then consider in more detail the events that gave rise to the merchants' claim for damages.AThe complaint was filed in the Chancery Court of Hinds County by 17 white merchants. [Footnote 3] The merchants named two corporations and 146 individuals as defendants: the NAACP, a New York membership corporation; Mississippi Action for Progress (MAP), a Mississippi corporation that implemented Page 458 U. S. 890 the federal "Head Start" program; Aaron Henry, the President of the Mississippi State Conference of the NAACP; Charles Evers, the Field Secretary of the NAACP in Mississippi; and 144 other individuals who had participated in the boycott. [Footnote 4] The complaint sought injunctive relief and an attachment of property, as well as damages. Although it alleged that the plaintiffs were suffering irreparable injury from an ongoing conspiracy, no preliminary relief was sought.Trial began before a chancellor in equity on June 11, 1973. [Footnote 5] The court heard the testimony of 144 witnesses during an 8-month trial. In August, 1976, the chancellor issued an opinion and decree finding that "an overwhelming preponderance of the evidence" established the joint and several liability of Page 458 U. S. 891 130 of the defendants on three separate conspiracy theories. [Footnote 6] First, the court held that the defendants were liable for the tort of malicious interference with the plaintiffs' businesses, which did not necessarily require the presence of a conspiracy. [Footnote 7] Second, the chancellor found a violation of a state Page 458 U. S. 892 statutory prohibition against secondary boycotts, on the theory that the defendants' primary dispute was with the governing authorities of Port Gibson and Claiborne County, and not with the white merchants at whom the boycott was directed. [Footnote 8] Third, the court found a violation of Mississippi's antitrust statute, on the ground that the boycott had diverted black patronage from the white merchants to black merchants and to other merchants located out of Claiborne County, and thus had unreasonably limited competition between black and white merchants that had traditionally existed. [Footnote 9] The chancellor specifically rejected the defendants' claim that their conduct was protected by the First Amendment. [Footnote 10] Page 458 U. S. 893Five of the merchants offered no evidence of business losses. The chancellor found that the remaining 12 had suffered lost business earnings and lost goodwill during a 7-year period from 1966 to 1972 amounting to $944,699. That amount, plus statutory antitrust penalties of $6,000 and a $300,000 award of attorney's fees, produced a final judgment of $1,250,699, plus interest from the date of judgment and costs. As noted, the chancellor found all but 18 of the original 148 defendants jointly and severally liable for the entire judgment. The court justified imposing full liability on the national organization of the NAACP on the ground that it had failed to "repudiate" the actions of Charles Evers, its Field Secretary in Mississippi.In addition to imposing damages liability, the chancellor entered a broad permanent injunction. He permanently enjoined petitioners from stationing "store watchers" at the respondents' business premises; from "persuading" any person to withhold his patronage from respondents; from "using demeaning and obscene language to or about any person" because that person continued to patronize the respondents; from "picketing or patroling" the premises of any of the respondents; and from using violence against any person or inflicting damage to any real or personal property. [Footnote 11] Page 458 U. S. 894In December, 1980, the Mississippi Supreme Court reversed significant portions of the trial court's judgment. 393 So. 2d 1290. It held that the secondary boycott statute was inapplicable because it had not been enacted until "the boycott had been in operation for upward of two years." [Footnote 12] The court declined to rely on the restraint of trade statute, noting that the"United States Supreme Court has seen fit to hold boycotts to achieve political ends are not a violation of the Sherman Act, 15 U.S.C. § 1 (1970), after which our statute is patterned. [Footnote 13] Thus, the court rejected two theories of liability that were consistent with a totally voluntary and nonviolent withholding of patronage from the white merchants."The Mississippi Supreme Court upheld the imposition of liability, however, on the basis of the chancellor's common law tort theory. After reviewing the chancellor's recitation of the facts, the court quoted the following finding made by the trial court:"In carrying out the agreement and design, certain of the defendants, acting for all others, engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers. Intimidation, threats, social ostracism, vilification, and traduction were some of the devices used by the defendants to achieve the desired results. Most effective, also, was the stationing of guards ('enforcers,' 'deacons,' or 'black hats') in the vicinity of white-owned businesses. Unquestionably, the evidence shows that the volition of many black persons was overcome out of sheer fear, and they were forced and compelled against their personal wills to withhold their trade and business intercourse Page 458 U. S. 895 from the complainants."App. to Pet. for Cert. 39b (quoted 393 So.2d at 1300). On the basis of this finding, the court concluded that the entire boycott was unlawful."If any of these factors -- force, violence, or threats -- is present, then the boycott is illegal regardless of whether it is primary, secondary, economical, political, social or other. [Footnote 14]"In a brief passage, the court rejected petitioners' reliance on the First Amendment:"The agreed use of illegal force, violence, and threats against the peace to achieve a goal makes the present state of facts a conspiracy. We know of no instance, and our attention has been drawn to no decision, wherein it has been adjudicated that free speech guaranteed by the First Amendment includes in its protection the right to commit crime."Id. at 1301. The theory of the Mississippi Supreme Court, then, was that petitioners had agreed to use force, violence, and "threats" to effectuate the boycott. [Footnote 15] To the trial court, such a finding had not been necessary. [Footnote 16]Although the Mississippi Supreme Court affirmed the chancellor's basic finding of liability, the court held that respondents Page 458 U. S. 896 "did not establish their case" with respect to 38 of the defendants. [Footnote 17] The court found that MAP was a victim, rather than a willing participant, in the conspiracy, and dismissed -- without further explanation -- 37 individual defendants for lack of proof. Finally, the court ruled that certain damages had been improperly awarded, and that other damages had been inadequately proved. The court remanded for further proceedings on the computation of damages. [Footnote 18]We granted a petition for certiorari. 454 U.S. 1030. At oral argument, a question arose concerning the factual basis for the judgment of the Mississippi Supreme Court. As noted, that court affirmed petitioners' liability for damages on the ground that each of the petitioners had agreed to effectuate the boycott through force, violence, and threats. Such a finding was not necessary to the trial court's imposition of liability, and neither state court had identified the evidence actually linking the petitioners to such an agreement. In response to a request from this Court, respondents filed a supplemental brief "specifying the acts committed by each of the petitioners giving rise to liability for damages." Supplemental Brief for Respondents 1. That brief helpfully places the petitioners in different categories; we accept respondents' framework for analysis, and identify these classes as a preface to our review of the relevant incidents that occurred during the 7-year period for which damages were assessed. [Footnote 19] Page 458 U. S. 897First, respondents contend that liability is justified by evidence of participation in the "management" of the boycott. [Footnote 20] Respondents identify two groups of persons who may be found liable as "managers": 79 individuals who regularly attended Tuesday night meetings of the NAACP at the First Baptist Church; and 11 persons who took "leadership roles" at those meetings. [Footnote 21]Second, respondents contend that liability is justified by evidence that an individual acted as a boycott "enforcer." [Footnote 22] In this category, respondents identify 22 persons as members of the "Black Hats" -- a special group organized during the boycott -- and 19 individuals who were simply "store watchers."Third, respondents argue that those petitioners"who themselves engaged in violent acts or who threatened violence have provided the best possible evidence that they wanted the boycott to succeed by coercion whenever it could not succeed by persuasion."Id. at 10. They identify 16 individuals Page 458 U. S. 898 for whom there is direct evidence of participation in what respondents characterize as violent acts or threats of violence.Fourth, respondents contend that Charles Evers may be held liable because he "threatened violence on a number of occasions against boycott breakers." Id. at 13. Like the chancellor, respondents would impose liability on the national NAACP because Evers "was acting in his capacity as Field Secretary of the NAACP when he committed these tortious and constitutionally unprotected acts." Ibid.Finally, respondents state that they are "unable to determine on what record evidence the state courts relied in finding liability on the part of seven of the petitioners." Id. at 16. With these allegations of wrongdoing in mind, we turn to consider the factual events that gave rise to this controversy.BThe chancellor held petitioners liable for all of respondents' lost earnings during a 7-year period from 1966 to December 31, 1972. We first review chronologically the principal events that occurred during that period, describe some features of the boycott that are not in dispute, and then identify the most significant evidence of violent activity.In late 1965 or early 1966, Charles Evers, the Field Secretary of the NAACP, helped organize the Claiborne County Branch of the NAACP. The pastor of the First Baptist Church, James Dorsey, was elected president of the Branch; regular meetings were conducted each Tuesday evening at the church. At about the same time, a group of black citizens formed a Human Relations Committee and presented a petition for redress of grievances to civic and business leaders of the white community. In response, a biracial committee -- including five of the petitioners and several of the respondents -- was organized and held a series of unproductive meetings.The black members of the committee then prepared a further petition entitled "Demands for Racial Justice." This petition Page 458 U. S. 899 was presented for approval at the local NAACP meeting conducted on the first Tuesday evening in March. As described by the chancellor, "the approximately 500 people present voted their approval unanimously." [Footnote 23] On March 14, 1966, the petition was presented to public officials of Port Gibson and Claiborne County.The petition included 19 specific demands. It called for the desegregation of all public schools and public facilities, the hiring of black policemen, public improvements in black residential areas, selection of blacks for jury duty, integration of bus stations so that blacks could use all facilities, and an end to verbal abuse by law enforcement officers. It stated that"Negroes are not to be addressed by terms as 'boy,' 'girl,' 'shine,' 'uncle,' or any other offensive term, but as 'Mr.,' 'Mrs.,' or 'Miss,' as is the case with other citizens. [Footnote 24]"As described by the chancellor, the purpose of the demands "was to gain equal rights and opportunities for Negro citizens." [Footnote 25] The petition further provided that black leaders hoped it would not be necessary to resort to the "selective buying campaigns" that had been used in other communities. [Footnote 26] On March 23, two demands that had been omitted Page 458 U. S. 900 from the original petition were added, one of which provided: "All stores must employ Negro clerks and cashiers." [Footnote 27] This supplemental petition stated that a response was expected by April 1.A favorable response was not received. On April 1, 1966, the Claiborne County NAACP conducted another meeting at the First Baptist Church. As described by the chancellor:"Several hundred black people attended the meeting, and the purpose was to decide what action should be taken relative to the twenty-one demands. Speeches were made by Evers and others, and a vote was taken. It was the unanimous vote of those present, without dissent, to place a boycott on the white merchants of Port Gibson and Claiborne County."App. to Pet. for Cert. 15b. The boycott was underway. [Footnote 28]In September, 1966, Mississippi Action for Progress, Inc. (MAP), was organized to develop community action programs in 20 counties of Mississippi. One of MAP's programs -- known as Head Start -- involved the use of federal funds to provide food for young children. Originally, food purchases in Claiborne County were made alternately from white-owned and black-owned stores, but in February, 1967 the directors Page 458 U. S. 901 of MAP authorized their Claiborne County representatives to purchase food only from black-owned stores. Since MAP bought substantial quantities of food, the consequences of this decision were significant. A large portion of the trial was devoted to the question whether MAP participated in the boycott voluntarily and -- under the chancellor's theories of liability -- could be held liable for the resulting damages. The chancellor found MAP a willing participant, noting that,"during the course of the trial, the only Head Start cooks called to the witness stand testified that they refused to go into white-owned stores to purchase groceries for the children in the program for the reason that they were in favor of the boycott and wanted to honor it. [Footnote 29]"Several events occurred during the boycott that had a strong effect on boycott activity. On February 1, 1967, Port Gibson employed its first black policeman. During that month, the boycott was lifted on a number of merchants. On April 4, 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis. The chancellor found that this tragic event had a depressing effect on the black community and, as a result, the boycott "tightened." [Footnote 30] Page 458 U. S. 902One event that occurred during the boycott is of particular significance. On April 18, 1969, a young black man named Roosevelt Jackson was shot and killed during an encounter with two Port Gibson police officers. [Footnote 31] Large crowds immediately gathered, first at the hospital and later at the church. Tension in the community neared a breaking point. The local police requested reinforcements from the State Highway Patrol, and sporadic acts of violence ensued. The Mayor and Board of Aldermen placed a dawn-to-dusk curfew into effect.On April 19, Charles Evers spoke to a group assembled at the First Baptist Church and led a march to the courthouse, where he demanded the discharge of the entire Port Gibson Police Force. When this demand was refused, the boycott was reimposed on all white merchants. One of Evers' speeches on this date was recorded by the police. In that speech -- significant portions of which are reproduced in an 458 U.S. 886app|>Appendix to this opinion -- Evers stated that boycott violators would be "disciplined" by their own people, and warned that the Sheriff could not sleep with boycott violators at night.On April 20, Aaron Henry came to Port Gibson, spoke to a large gathering, urged moderation, and joined local leaders in a protest march and a telegram sent to the Attorney General of the United States. On April 21, Evers gave another speech to several hundred people, in which he again called for a discharge of the police force and for a total boycott of all white-owned businesses in Claiborne County. Although this speech was not recorded, the chancellor found that Evers stated: "If we catch any of you going in any of them racist stores, we're gonna break your damn neck." [Footnote 32]As noted, this lawsuit was filed in October, 1969. No significant events concerning the boycott occurred after that Page 458 U. S. 903 time. The chancellor identified no incident of violence that occurred after the suit was brought. He did identify, however, several significant incidents of boycott-related violence that occurred some years earlier.Before describing that evidence, it is appropriate to note that certain practices generally used to encourage support for the boycott were uniformly peaceful and orderly. The few marches associated with the boycott were carefully controlled by black leaders. Pickets used to advertise the boycott were often small children. The police made no arrests -- and no complaints are recorded -- in connection with the picketing and occasional demonstrations supporting the boycott. Such activity was fairly irregular, occurred primarily on weekends, and apparently was largely discontinued around the time the lawsuit was filed. [Footnote 33]One form of "discipline" of black persons who violated the boycott appears to have been employed with some regularity. Individuals stood outside of boycotted stores and identified those who traded with the merchants. Some of these "store watchers" were members of a group known as the "Black Hats" or the "Deacons." [Footnote 34] The names of persons who violated Page 458 U. S. 904 the boycott were read at meetings of the Claiborne County NAACP and published in a mimeographed paper entitled the "Black Times." As stated by the chancellor, those persons "were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites." [Footnote 35]The chancellor also concluded that a quite different form of discipline had been used against certain violators of the boycott. He specifically identified 10 incidents that "strikingly" revealed the "atmosphere of fear that prevailed among blacks from 1966 until 1970." [Footnote 36] The testimony concerning four incidents convincingly demonstrates that they occurred because the victims were ignoring the boycott. In two cases, shots were fired at a house; in a third, a brick was thrown through a windshield; in the fourth, a flower garden was damaged. None of these four victims, however, ceased trading with white merchants. [Footnote 37] Page 458 U. S. 905The evidence concerning four other incidents is less clear, but again it indicates that an unlawful form of discipline was applied to certain boycott violators. In April, 1966, a black couple named Cox asked for a police escort to go into a white-owned dry cleaner and, a week later, shots were fired into their home. In another incident, an NAACP member took a bottle of whiskey from a black man who had purchased it in a white-owned store. The third incident involved a fight between a commercial fisherman who did not observe the boycott and four men who "grabbed me and beat me up and took a gun off me." [Footnote 38] In a fourth incident, described only in hearsay testimony, a group of young blacks apparently pulled down the overalls of an elderly brick mason known as "Preacher White" and spanked him for not observing the boycott. [Footnote 39]Two other incidents discussed by the chancellor are of less certain significance. Jasper Coleman testified that he participated Page 458 U. S. 906 in an all-night poker game at a friend's house on Christmas Eve, 1966. The following morning, he discovered that all four tires of his pickup truck had been slashed with a knife. Coleman testified that he did not participate in the boycott, but was never threatened for refusing to do so. Record 13791. Finally, Willie Myles testified that he and his wife received a threatening phone call, and that a boy on a barge told him that he would be whipped for buying his gas at the wrong place.Five of these incidents occurred in 1966. The other five are not dated. The chancellor thus did not find that any act of violence occurred after 1966. [Footnote 40] In particular, he made no reference to any act of violence or threat of violence -- with the exception, of course, of Charles Evers' speeches -- after the shootings of Martin Luther King, Jr., in 1968 or Roosevelt Jackson in 1969. The chancellor did not find that any of the incidents of violence was discussed at the Tuesday evening meetings of the NAACP. [Footnote 41]IIThis Court's jurisdiction to review the judgment of the Mississippi Supreme Court is, of course, limited to the federal Page 458 U. S. 907 questions necessarily decided by that court. [Footnote 42] We consider first whether petitioners' activities are protected in any respect by the Federal Constitution and, if they are, what effect such protection has on a lawsuit of this nature.AThe boycott of white merchants at issue in this case took many forms. The boycott was launched at a meeting of a local branch of the NAACP attended by several hundred persons. Its acknowledged purpose was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice. The boycott was supported by speeches and nonviolent picketing. Participants repeatedly encouraged others to join in its cause.Each of these elements of the boycott is a form of speech or conduct that is ordinarily entitled to protection under the First and Fourteenth Amendments. [Footnote 43] The black citizens named as defendants in this action banded together and collectively expressed their dissatisfaction with a social structure that had denied them rights to equal treatment and respect. As we so recently acknowledged in Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 454 U. S. 294,"the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process."We recognized that, "by collective effort, individuals can make their views known when, individually, their voices would be faint Page 458 U. S. 908 or lost." Ibid. In emphasizing "the importance of freedom of association in guaranteeing the right of people to make their voices heard on public issues," id. at 454 U. S. 295, we noted the words of Justice Harlan, writing for the Court in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 357 U. S. 460:"Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly."THE CHIEF JUSTICE stated for the Court in Citizens Against Rent Control:"There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them."454 U.S. at 454 U. S. 296.The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected. In De Jonge v. Oregon, 299 U. S. 353, the Court unanimously held that an individual could not be penalized simply for assisting in the conduct of an otherwise lawful meeting held under the auspices of the Communist Party, an organization that advocated "criminal syndicalism." After reviewing the rights of citizens "to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances," id. at 299 U. S. 364, Chief Justice Hughes, writing for the Court, stated:"It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices Page 458 U. S. 909 under which the meeting is held, but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge."Id. at 299 U. S. 365.Of course, the petitioners in this case did more than assemble peaceably and discuss among themselves their grievances against governmental and business policy. Other elements of the boycott, however, also involved activities ordinarily safeguarded by the First Amendment. In Thornhill v. Alabama, 310 U. S. 88, the Court held that peaceful picketing was entitled to constitutional protection, even though, in that case, the purpose of the picketing"was concededly to advise customers and prospective customers of the relationship existing between the employer and its employees, and thereby to induce such customers not to patronize the employer."Id. at 310 U. S. 99. Cf. Chauffeurs v. Newell, 356 U. S. 341. In Edwards v. South Carolina, 372 U. S. 229, we held that a peaceful march and demonstration was protected by the rights of free speech, free assembly, and freedom to petition for a redress of grievances.Speech itself also was used to further the aims of the boycott. Nonparticipants repeatedly were urged to join the common cause, both through public address and through personal solicitation. These elements of the boycott involve speech in its most direct form. In addition, names of boycott violators were read aloud at meetings at the First Baptist Church and published in a local black newspaper. Petitioners admittedly sought to persuade others to join the boycott Page 458 U. S. 910 through social pressure and the "threat" of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action. As Justice Rutledge, in describing the protection afforded by the First Amendment, explained:"It extends to more than abstract discussion, unrelated to action. The First Amendment is a charter for government, not for an institution of learning. 'Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts."Thomas v. Collins, 323 U. S. 516, 323 U. S. 537.In Organization for a Better Austin v. Keefe, 402 U. S. 415, the Court considered the validity of a prior restraint on speech that invaded the "privacy" of the respondent. Petitioner, a racially integrated community organization, charged that respondent, a real estate broker, had engaged in tactics known as "blockbusting" or "panic peddling." [Footnote 44] Petitioner asked respondent to sign an agreement that he would not solicit property in their community. When he refused, petitioner distributed leaflets near respondent's home that were critical of his business practices. [Footnote 45] A state court enjoined petitioner from distributing the leaflets; an appellate court affirmed on the ground that the alleged activities were coercive and intimidating, rather than informative, and therefore not entitled to First Amendment protection. Id. at 402 U. S. 418. This Court reversed. THE CHIEF JUSTICE explained:"This Court has often recognized that the activity of peaceful pamphleteering is a form of communication protected Page 458 U. S. 911 by the First Amendment. E.g., Martin v. City of Struthers, 319 U. S. 141 (1943); Schneider v. State, 308 U. S. 147 (1939); Lovell v. Griffin, 303 U. S. 444 (1938). In sustaining the injunction, however, the Appellate Court was apparently of the view that petitioners' purpose in distributing their literature was not to inform the public, but to 'force' respondent to sign a no-solicitation agreement. The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper. See Schneider v. State, supra; Thornhill v. Alabama, 310 U. S. 88 (1940). Petitioners were engaged openly and vigorously in making the public aware of respondent's real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability."Id. at 402 U. S. 419. In dissolving the prior restraint, the Court recognized that "offensive" and "coercive" speech was nevertheless protected by the First Amendment. [Footnote 46]In sum, the boycott clearly involved constitutionally protected activity. The established elements of speech, assembly, association, and petition, "though not identical, are inseparable." Thomas v. Collins, supra, at 323 U. S. 530. Through exercise of these First Amendment rights, petitioners sought to bring about political, social, and economic change. Page 458 U. S. 912 Through speech, assembly, and petition -- rather than through riot or revolution -- petitioners sought to change a social order that had consistently treated them as second-class citizens.The presence of protected activity, however, does not end the relevant constitutional inquiry. Governmental regulation that has an incidental effect on First Amendment freedoms may be justified in certain narrowly defined instances. See United States v. O'Brien, 391 U. S. 367. [Footnote 47] A nonviolent and totally voluntary boycott may have a disruptive effect on local economic conditions. This Court has recognized the strong governmental interest in certain forms of economic regulation, even though such regulation may have an incidental effect on rights of speech and association. See Giboney v. Empire Storage & Ice Co., 336 U. S. 490; NLRB v. Retail Store Employees, 447 U. S. 607. The right of business entities to "associate" to suppress competition may be curtailed. National Society of Professional Engineers v. United States, 435 U. S. 679. Unfair trade practices may be restricted. Secondary boycotts and picketing by labor unions may be prohibited, as part of"Congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife."NLRB v. Retail Store Employees, supra, at 447 U. S. 617-618 (BLACKMUN, J., concurring in part). See Longshoremen v. Allied International, Inc., 456 U. S. 212, 456 U. S. 222-223, and n. 20. Page 458 U. S. 913While States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. This Court has recognized that expression on public issues "has always rested on the highest rung of the hierarchy of First Amendment values." Carey v. Brown, 447 U. S. 455, 447 U. S. 467. "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 74-75. There is a "profound national commitment" to the principle that "debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 270.In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, the Court considered whether the Sherman Act prohibited a publicity campaign waged by railroads against the trucking industry that was designed to foster the adoption of laws destructive of the trucking business, to create an atmosphere of distaste for truckers among the general public, and to impair the relationships existing between truckers and their customers. Noting that the"right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms,"the Court held that the Sherman Act did not proscribe the publicity campaign. Id. at 366 U. S. 137-138. The Court stated that it could not see how an intent to influence legislation to destroy the truckers as competitors "could transform conduct otherwise lawful into a violation of the Sherman Act." Id. at 366 U. S. 138-139. Noting that the right of the people to petition their representatives in government "cannot properly be made to depend on their intent in doing so," the Court held that,"at least insofar as the railroads' campaign was directed toward obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had."Id. at 366 U. S. 139-140. This conclusion was not changed by the fact that the railroads' anticompetitive purpose produced an anticompetitive Page 458 U. S. 914 effect; the Court rejected the truckers' Sherman Act claim despite the fact that "the truckers sustained some direct injury as an incidental effect of the railroads' campaign to influence governmental action." Id. at 366 U. S. 143.It is not disputed that a major purpose of the boycott in this case was to influence governmental action. Like the railroads in Noerr, the petitioners certainly foresaw -- and directly intended -- that the merchants would sustain economic injury as a result of their campaign. Unlike the railroads in that case, however, the purpose of petitioners' campaign was not to destroy legitimate competition. Petitioners sought to vindicate rights of equality and of freedom that lie at the heart of the Fourteenth Amendment itself. The right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself. [Footnote 48]In upholding an injunction against the state supersedeas bonding requirement in this case, Judge Ainsworth of the Court of Appeals for the Fifth Circuit cogently stated:"At the heart of the Chancery Court's opinion lies the belief that the mere organization of the boycott and every activity undertaken in support thereof could be subject to judicial prohibition under state law. This Page 458 U. S. 915 view accords insufficient weight to the First Amendment's protection of political speech and association. There is no suggestion that the NAACP, MAP or the individual defendants were in competition with the white businesses, or that the boycott arose from parochial economic interests. On the contrary, the boycott grew out of a racial dispute with the white merchants and city government of Port Gibson, and all of the picketing, speeches, and other communication associated with the boycott were directed to the elimination of racial discrimination in the town. This differentiates this case from a boycott organized for economic ends, for speech to protest racial discrimination is essential political speech lying at the core of the First Amendment."Henry v. First National Bank of Clarksdale, 595 F.2d 291, 303 (1979) (footnote omitted). We hold that the nonviolent elements of petitioners' activities are entitled to the protection of the First Amendment. [Footnote 49]BThe Mississippi Supreme Court did not sustain the chancellor's imposition of liability on a theory that state law prohibited a nonviolent, politically motivated boycott. The fact that such activity is constitutionally protected, however, imposes a special obligation on this Court to examine critically the basis on which liability was imposed. [Footnote 50] In particular, we Page 458 U. S. 916 consider here the effect of our holding that much of petitioners' conduct was constitutionally protected on the ability of the State to impose liability for elements of the boycott that were not so protected. [Footnote 51]The First Amendment does not protect violence."Certainly violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of 'advocacy.'"Samuels v. Makell, 401 U. S. 66, 401 U. S. 75 (Douglas, J., concurring). Although the extent and significance of the violence in this case are vigorously disputed by the parties, there is no question that acts of violence occurred. No federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and by threats of violence. When such conduct occurs in the context of constitutionally protected activity, however, "precision of regulation" is demanded. NAACP v. Button, 371 U. S. 415, 371 U. S. 438. [Footnote 52] Specifically, the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to Page 458 U. S. 917 damages liability and on the persons who may be held accountable for those damages.In Mine Workers v. Gibbs, 383 U. S. 715, the Court considered a case in many respects similar to the one before us. The case grew out of the rivalry between the United Mine Workers (UMW) and the Southern Labor Union (SLU) over representation of workers in the southern Appalachian coal fields. A coal company laid off 100 miners of UMW's Local 5881 when it closed one of its mines. That same year, a subsidiary of the coal company hired Gibbs as mine superintendent to attempt to open a new mine on nearby property through use of members of the SLU. Gibbs also received a contract to haul the mine's coal to the nearest railroad loading point. When he attempted to open the mine, however, he was met by armed members of Local 5881 who threatened Gibbs and beat an SLU organizer. These incidents occurred on August 15 and 16. Thereafter, there was no further violence at the mine site, and UMW members maintained a peaceful picket line for nine months. No attempts to open the mine were made during that period.Gibbs lost his job as superintendent and never began performance of the haulage contract. Claiming to have suffered losses as a result of the union's concerted plan against him, Gibbs filed suit in federal court against the international UMW. He alleged an unlawful secondary boycott under the federal labor laws and, as a pendent state law claim,"an unlawful conspiracy and an unlawful boycott aimed at him . . . to maliciously, wantonly and willfully interfere with his contract of employment and with his contract of haulage."Id. at 383 U. S. 720. The federal claim was dismissed on the ground that the dispute was "primary," and therefore not cognizable under the federal prohibition of secondary labor boycotts. Damages were awarded against the UMW, however, on the state claim of interference with an employment relationship.This Court reversed. The Court found that the pleadings, arguments of counsel, and jury instructions had not adequately Page 458 U. S. 918 defined the compass within which damages could be awarded under state law. The Court noted that it had "consistently recognized the right of States to deal with violence and threats of violence appearing in labor disputes," and had sustained "a variety of remedial measures against the contention that state law was preempted by the passage of federal labor legislation." Id. at 383 U. S. 729. To accommodate federal labor policy, however, the Court in Gibbs held:"the permissible scope of state remedies in this area is strictly confined to the direct consequences of such [violent] conduct, and does not include consequences resulting from associated peaceful picketing or other union activity."Ibid. The Court noted that, in Construction Workers v. Laburnum Construction Corp., 347 U. S. 656, damages were restricted to those directly and proximately caused by wrongful conduct chargeable to the defendants."'Thus, there [was] nothing in the measure of damages to indicate that state power was exerted to compensate for anything more than the direct consequences of the violent conduct.'"383 U.S. at 383 U. S. 730 (quoting San Diego Building Trades Council v. Garmon, 359 U. S. 236, 359 U. S. 249, n. 6).The careful limitation on damages liability imposed in Gibbs resulted from the need to accommodate state law with federal labor policy. That limitation is no less applicable, however, to the important First Amendment interests at issue in this case. Petitioners withheld their patronage from the white establishment of Claiborne County to challenge a political and economic system that had denied them the basic rights of dignity and equality that this country had fought a Civil War to secure. While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity. Only those losses proximately caused by unlawful conduct may be recovered.The First Amendment similarly restricts the ability of the State to impose liability on an individual solely because of his Page 458 U. S. 919 association with another. In Scales v. United States, 367 U. S. 203, 367 U. S. 229, the Court noted that a "blanket prohibition of association with a group having both legal and illegal aims" would present "a real danger that legitimate political expression or association would be impaired." The Court suggested that to punish association with such a group, there must be "clear proof that a defendant specifically intend[s] to accomplish [the aims of the organization] by resort to violence.'" Ibid. (quoting Noto v. United States, 367 U. S. 290, 367 U. S. 299). [Footnote 53] Moreover, in Noto v. United States, the Court emphasized that this intent must be judged "according to the strictest law," [Footnote 54] for"otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes because of other and unprotected purposes which he does not necessarily share."Id. at 367 U. S. 299-300.In Healy v. James, 408 U. S. 169, the Court applied these principles in a noncriminal context. In that case, the Court held that a student group could not be denied recognition at a state-supported college merely because of its affiliation with a national organization associated with disruptive and violent campus activity. It noted that"the Court has consistently disapproved governmental action imposing criminal sanctions or denying rights and privileges solely because of a citizen's association with an unpopular organization."Id. at 408 U. S. 185-186. The Court stated that"it has been established that 'guilt by association alone, without [establishing] that an individual's association poses the threat feared by the Government,' is an impermissible basis upon which to deny First Amendment rights."Id. at 408 U. S. 186 (quoting United States v. Robel, 389 U. S. 258, 389 U. S. 265)."The government has the burden Page 458 U. S. 920 of establishing a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims."408 U.S. at 408 U. S. 186 (footnote omitted). [Footnote 55]The principles announced in Scales, Noto, and Healy are relevant to this case. Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims. [Footnote 56]"In this sensitive field, the State may not employ 'means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488 (1960)."Carroll v. Princess Anne, 393 U. S. 175, 393 U. S. 183-184.IIIThe chancellor awarded respondents damages for all business losses that were sustained during a 7-year period beginning in 1966 and ending December 31, 1972. [Footnote 57] With the exception Page 458 U. S. 921 of Aaron Henry, all defendants were held jointly and severally liable for these losses. The chancellor's findings were consistent with his view that voluntary participation in the boycott was a sufficient basis on which to impose liability. The Mississippi Supreme Court properly rejected that theory; it nevertheless held that petitioners were liable for all damages "resulting from the boycott." [Footnote 58] In light of the principles set forth above, it is evident that such a damages award may not be sustained in this case.The opinion of the Mississippi Supreme Court itself demonstrates that all business losses were not proximately caused by the violence and threats of violence found to be present. The court stated that "coercion, intimidation, and threats" formed "part of the boycott activity" and "contributed to its almost complete success." [Footnote 59] The court broadly asserted -- without differentiation -- that "[i]ntimidation, threats, social ostracism, vilification, and traduction'" were devices used by the defendants to effectuate the boycott. [Footnote 60] The court repeated the chancellor's finding that "the volition of many black persons was overcome out of sheer fear." [Footnote 61] These findings are inconsistent with the court's imposition of all damages "resulting from the boycott." To the extent that the court's judgment rests on the ground that "many" black citizens were "intimidated" by "threats" of "social ostracism, vilification, and traduction," it is flatly inconsistent with the First Amendment. The ambiguous findings of the Mississippi Supreme Court are inadequate to assure the "precision of regulation" demanded by that constitutional provision. Page 458 U. S. 922The record in this case demonstrates that all of respondents' losses were not proximately caused by violence or threats of violence. As respondents themselves stated at page 12 of their brief in the Mississippi Supreme Court:"Most of the witnesses testified that they voluntarily went along with the NAACP and their fellow black citizens in honoring and observing the boycott because they wanted the boycott."This assessment is amply supported by the record. [Footnote 62] It is indeed inconceivable that a boycott launched by the unanimous vote of several hundred persons succeeded solely through fear and intimidation. Moreover, the fact that the boycott "intensified" following the shootings of Martin Luther King, Jr., and Roosevelt Jackson demonstrates that factors other than force and violence (by the petitioners) figured Page 458 U. S. 923 prominently in the boycott's success. The chancellor made no finding that any act of violence occurred after 1966. While the timing of the acts of violence was not important to the chancellor's imposition of liability, it is a critical factor under the narrower rationale of the Mississippi Supreme Court. That court has completely failed to demonstrate that business losses suffered in 1972 -- three years after this lawsuit was filed -- were proximately caused by the isolated acts of violence found in 1966. [Footnote 63] It is impossible to conclude that state power has not been exerted to compensate respondents for the direct consequences of nonviolent, constitutionally protected activity.This case is not like Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U. S. 287, in which the Court held that the presence of violence justified an injunction against both violent and nonviolent activity. [Footnote 64] The violent conduct present in that case was pervasive. [Footnote 65] The Court in Meadowmoor stated that "utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force." Id. at 312 U. S. 293. The Court emphasized, however: Page 458 U. S. 924"Still it is of prime importance that no constitutional freedom, least of all the guarantees of the Bill of Rights, be defeated by insubstantial findings of fact screening reality. That is why this Court has the ultimate power to search the records in the state courts where a claim of constitutionality is effectively made. And so the right of free speech cannot be denied by drawing from a trivial rough incident or a moment of animal exuberance the conclusion that otherwise peaceful picketing has the taint of force."Ibid. Such "insubstantial findings" were not present in Meadowmoor. But in this case, the Mississippi Supreme Court has relied on isolated acts of violence during a limited period to uphold respondents' recovery of all business losses sustained over a 7-year span. No losses are attributed to the voluntary participation of individuals determined to secure "justice and equal opportunity." [Footnote 66] The court's judgment "screens reality," and cannot stand. [Footnote 67]Respondents' supplemental brief also demonstrates that, on the present record, no judgment may be sustained against most of the petitioners. Regular attendance and participation at the Tuesday meetings of the Claiborne County Branch of the NAACP is an insufficient predicate on which to impose liability. The chancellor's findings do not suggest that any illegal conduct was authorized, ratified, or even discussed at any of the meetings. The Sheriff testified that he was kept Page 458 U. S. 925 informed of what transpired at the meetings; he made no reference to any discussion of unlawful activity. [Footnote 68] To impose liability for presence at weekly meetings of the NAACP would -- ironically -- not even constitute "guilt by association," since there is no evidence that the association possessed unlawful aims. Rather, liability could only be imposed on a "guilt for association" theory. Neither is permissible under the First Amendment. [Footnote 69]Respondents also argue that liability may be imposed on individuals who were either "store watchers" or members of the "Black Hats." There is nothing unlawful in standing outside a store and recording names. Similarly, there is nothing unlawful in wearing black hats, although such apparel may cause apprehension in others. As established above, mere association with either group -- absent a specific intent to further an unlawful aim embraced by that group -- is Page 458 U. S. 926 an insufficient predicate for liability. At the same time, the evidence does support the conclusion that some members of each of these groups engaged in violence or threats of violence. Unquestionably, these individuals may be held responsible for the injuries that they caused; a judgment tailored to the consequences of their unlawful conduct may be sustained.Respondents have sought separately to justify the judgment entered against Charles Evers and the national NAACP. As set forth by the chancellor, Evers was specially connected with the boycott in four respects. First, Evers signed the March 23 supplemental demand letter, and unquestionably played the primary leadership role in the organization of the boycott. Second, Evers participated in negotiations with MAP, and successfully convinced MAP to abandon its practice of purchasing food alternately from white-owned and black-owned stores. Third, he apparently presided at the April 1, 1966, meeting at which the vote to begin the boycott was taken; he delivered a speech to the large audience that was gathered on that occasion. See n 28, supra. Fourth, Evers delivered the speeches on April 19 and 21, 1969, which we have discussed previously. See supra at 458 U. S. 902; Appendix to this opinion.For the reasons set forth above, liability may not be imposed on Evers for his presence at NAACP meetings or his active participation in the boycott itself. To the extent that Evers caused respondents to suffer business losses through his organization of the boycott, his emotional and persuasive appeals for unity in the joint effort, or his "threats" of vilification or social ostracism, Evers' conduct is constitutionally protected and beyond the reach of a damages award. Respondents point to Evers' speeches, however, as justification for the chancellor's damages award. Since respondents would impose liability on the basis of a public address -- which predominantly contained highly charged political rhetoric Page 458 U. S. 927 lying at the core of the First Amendment -- we approach this suggested basis of liability with extreme care.There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.While many of the comments in Evers' speeches might have contemplated "discipline" in the permissible form of social ostracism, it cannot be denied that references to the possibility that necks would be broken and to the fact that the Sheriff could not sleep with boycott violators at night implicitly conveyed a sterner message. In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence whether or not improper discipline was specifically intended.It is clear that "fighting words" -- those that provoke immediate violence -- are not protected by the First Amendment. Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 572. Similarly, words that create an immediate panic are not entitled to constitutional protection. Schenck v. United States, 249 U. S. 47. [Footnote 70] This Court has made clear, however, that mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment. In Brandenbrg v. Ohio, 395 U. S. 444, we reversed the conviction of a Ku Klux Klan leader for threatening "revengeance" if the "suppression" of the white race continued; we relied on Page 458 U. S. 928"the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."Id. at 395 U. S. 447. See Noto v. United States, 367 U.S. at 367 U. S. 297-298 ("the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action"). See also Whitney v. California, 274 U. S. 357, 274 U. S. 372 (Brandeis, J., concurring).The emotionally charged rhetoric of Charles Evers' speeches did not transcend the bounds of protected speech set forth in Brandenburg. The lengthy addresses generally contained an impassioned plea for black citizens to unify, to support and respect each other, and to realize the political and economic power available to them. In the course of those pleas, strong language was used. If that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct. In this case, however -- with the possible exception of the Cox incident -- the acts of violence identified in 1966 occurred weeks or months after the April 1, 1966, speech; the chancellor made no finding of any violence after the challenged 1969 speech. Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the "profound national commitment" that "debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270. [Footnote 71] Page 458 U. S. 929For these reasons, we conclude that Evers' addresses did not exceed the bounds of protected speech. If there were other evidence of his authorization of wrongful conduct, the references to discipline in the speeches could be used to corroborate that evidence. But any such theory fails for the simple reason that there is no evidence -- apart from the speeches themselves -- that Evers authorized, ratified, or directly threatened acts of violence. [Footnote 72] The chancellor's findings are not sufficient to establish that Evers had a duty to "repudiate" the acts of violence that occurred. [Footnote 73] The findings are constitutionally inadequate to support the damages judgment against him.The liability of the NAACP derived solely from the liability of Charles Evers. [Footnote 74] The chancellor found:"The national NAACP was well advised of Evers' actions, and it had the option of repudiating his acts or ratifying them. It never repudiated those acts, and therefore it is deemed by this Court to have affirmed them."App. to Pet. for Cert. 42b-43b. Page 458 U. S. 930 Of course, to the extent that Charles Evers' acts are insufficient to impose liability upon him, they may not be used to impose liability on his principal. On the present record, however, the judgment against the NAACP could not stand in any event.The associational rights of the NAACP and its members have been recognized repeatedly by this Court. [Footnote 75] The NAACP -- like any other organization -- of course may be held responsible for the acts of its agents throughout the country that are undertaken within the scope of their actual or apparent authority. [Footnote 76] Cf. American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U. S. 556. Moreover, the NAACP may be found liable for other conduct of which it had knowledge and specifically ratified.The chancellor made no finding that Charles Evers or any other NAACP member had either actual or apparent authority to commit acts of violence or to threaten violent conduct. The evidence in the record suggests the contrary. Aaron Henry, President of the Mississippi State Conference of the NAACP and a member of the Board of Directors of the national organization, testified that the statements attributed to Evers were directly contrary to NAACP policy. Record 4930. [Footnote 77] Similarly, there is no evidence that the NAACP ratified Page 458 U. S. 931 -- or even had specific knowledge of -- any of the acts of violence or threats of discipline associated with the boycott. Henry testified that the NAACP never authorized, and never considered taking, any official action with respect to the boycott. Id. at 4896. The NAACP supplied no financial aid to the boycott. Id. at 4940. The chancellor made no finding that the national organization was involved in any way in the boycott. [Footnote 78]To impose liability without a finding that the NAACP authorized -- either actually or apparently -- or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment. As Justice Douglas noted in NAACP v. Overstreet, 384 U. S. 118, dissenting from a dismissal of a writ of certiorari found to have been improvidently granted:"To equate the liability of the national organization with that of the Branch in the absence of any proof that the national authorized or ratified the misconduct in question could ultimately destroy it. The rights of political association are fragile enough without adding the Page 458 U. S. 932 additional threat of destruction by lawsuit. We have not been slow to recognize that the protection of the First Amendment bars subtle, as well as obvious, devices by which political association might be stifled. See Bates v. Little Rock, 361 U. S. 516, 361 U. S. 523. Thus, we have held that forced disclosure of one's political associations is, at least in the absence of a compelling state interest, inconsistent with the First Amendment's guaranty of associational privacy. E.g., DeGregory v. New Hampshire, 383 U. S. 825; Gibson v. Florida Legislative Comm., 372 U. S. 539, 372 U. S. 543-546; Shelton v. Tucker, 364 U. S. 479; NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462-463. Recognizing that guilt by association is a philosophy alien to the traditions of a free society (see Schware v. Board of Bar Examiners, 353 U. S. 232, 353 U. S. 245-246), and the First Amendment itself, we have held that civil or criminal disabilities may not be imposed on one who joins an organization which has among its purposes the violent overthrow of the Government, unless the individual joins knowing of the organization's illegal purposes (Wieman v. Updegraff, 344 U. S. 183) and with the specific intention to further those purposes. See Elfbrandt v. Russell, [384 U.S. at] 384 U. S. 11; Aptheker v. Secretary of State, 378 U. S. 500."Id. at 384 U. S. 122. The chancellor's findings are not adequate to support the judgment against the NAACP.IVIn litigation of this kind, the stakes are high. Concerted action is a powerful weapon. History teaches that special dangers are associated with conspiratorial activity. [Footnote 79] And Page 458 U. S. 933 yet one of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means. [Footnote 80]At times, the difference between lawful and unlawful collective action may be identified easily by reference to its purpose. In this case, however, petitioners' ultimate objectives were unquestionably legitimate. The charge of illegality -- like the claim of constitutional protection -- derives from the means employed by the participants to achieve those goals. The use of speeches, marches, and threats of social ostracism cannot provide the basis for a damages award. But violent conduct is beyond the pale of constitutional protection.The taint of violence colored the conduct of some of the petitioners. They, of course, may be held liable for the consequences of their violent deeds. The burden of demonstrating that it colored the entire collective effort, however, is not satisfied by evidence that violence occurred or even that violence contributed to the success of the boycott. A massive and prolonged effort to change the social, political, and economic structure of a local environment cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts. Such a characterization must be supported by findings that adequately disclose the evidentiary basis for concluding that specific parties agreed to use unlawful means, that carefully Page 458 U. S. 934 identify the impact of such unlawful conduct, and that recognize the importance of avoiding the imposition of punishment for constitutionally protected activity. The burden of demonstrating that fear, rather than protected conduct, was the dominant force in the movement is heavy. A court must be wary of a claim that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees. The findings of the chancellor, framed largely in the light of two legal theories rejected by the Mississippi Supreme Court, are constitutionally insufficient to support the judgment that all petitioners are liable for all losses resulting from the boycott.The judgment is reversed. The case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtNAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)National Association for the Advancement of Colored Peoplev. Claiborne Hardware Co.No. 81-202Argued March 3, 1982Decided July 2, 1982458 U.S. 886SyllabusIn 1966, a boycott of white merchants in Claiborne County, Miss., was launched at a meeting of a local branch of the National Association for the Advancement of Colored People (NAACP) attended by several hundred black persons. The purpose of the boycott was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice. The boycott was largely supported by speeches encouraging nonparticipants to join the common cause and by nonviolent picketing, but some acts and threats of violence did occur. In 1969, respondent white merchants filed suit in Mississippi Chancery Court for injunctive relief and damages against petitioners (the NAACP, the Mississippi Action for Progress, and a number of individuals who had participated in the boycott, including Charles Evers, the field secretary of the NAACP in Mississippi and a principal organizer of the boycott). Holding petitioners jointly and severally liable for all of respondents' lost earnings during a 7-year period from 1966 to the end of 1972 on three separate conspiracy theories, including the tort of malicious interference with respondents' businesses, the Chancery Court imposed damages liability and issued a permanent injunction. The Mississippi Supreme Court rejected two theories of liability, but upheld the imposition of liability on the basis of the common law tort theory. Based on evidence that fear of reprisals caused some black citizens to withhold their patronage from respondents' businesses, the court held that the entire boycott was unlawful, and affirmed petitioners' liability for all damages "resulting from the boycott" on the ground that petitioners had agreed to use force, violence, and "threats" to effectuate the boycott.Held:1. The nonviolent elements of petitioners' activities are entitled to the protection of the First Amendment. Pp. 458 U. S. 907-915.(a) Through exercise of their First Amendment rights of speech, assembly, association, and petition, rather than through riot or revolution, petitioners sought to bring about political, social, and economic change. Pp. 458 U. S. 907-912.(b) While States have broad power to regulate economic activities, there is no comparable right to prohibit peaceful political activity such as that found in the boycott in this case. Pp. 458 U. S. 912-915. Page 458 U. S. 8872. Petitioners are not liable in damages for the consequences of their nonviolent, protected activity. Pp. 458 U. S. 915-920.(a) While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity; only those losses proximately caused by the unlawful conduct may be recovered. Pp. 458 U. S. 915-918.(b) Similarly, the First Amendment restricts the ability of the State to impose liability on an individual solely because of his association with another. Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims. Pp. 458 U. S. 918-920.3. The award for all damages "resulting from the boycott" cannot be sustained, where the record discloses that all of the respondents' business losses were not proximately caused by violence or threats of violence. Pp. 458 U. S. 920-932.(a) To the extent that the Mississippi Supreme Court's judgment rests on the ground that "many" black citizens were "intimidated" by "threats" of "social ostracism, vilification, and traduction," it is flatly inconsistent with the First Amendment. The court's ambiguous findings are inadequate to assure the "precision of regulation" demanded by that Amendment. Pp. 458 U. S. 920-924.(b) Regular attendance and participation at the meetings of the Claiborne County Branch of the NAACP is an insufficient predicate on which to impose liability on the individual petitioners. Nor can liability be imposed on such individuals simply because they were either "store watchers" who stood outside the boycotted merchants' stores to record the names of black citizens who patronized the stores or members of a special group of boycott "enforcers." Pp. 458 U. S. 924-926.(c) For similar reasons, the judgment against Evers cannot be separately justified, nor can liability be imposed upon him on the basis of speeches that he made, because those speeches did not incite violence or specifically authorize the use of violence. His acts, being insufficient to impose liability on him, may not be used to impose liability on the NAACP, his principal. Moreover, there is no finding that Evers or any other NAACP member had either actual or apparent authority from the NAACP to commit acts of violence or to threaten violent conduct or that the NAACP ratified unlawful conduct. To impose liability on the NAACP without such a finding would impermissibly burden the rights of political association that are protected by the First Amendment. Pp. 458 U. S. 926-932.393 So. 2d 1290, reversed and remanded. Page 458 U. S. 888STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. REHNQUIST, J., concurred in the result. MARSHALL, J., took no part in the consideration or decision of the case.

1970_783

PER CURIAM.The petitioner was convicted for willful refusal to submit to induction into the Armed Forces. 62 Stat. 622, as amended, 50 U.S.C.App. § 462(a) (1964 ed., Supp. Page 403 U. S. 699 V). The judgment of conviction was affirmed by the Court of Appeals for the Fifth Circuit. [Footnote 1] We granted certiorari, 400 U.S. 990, to consider whether the induction notice was invalid because grounded upon an erroneous denial of the petitioner's claim to be classified as a conscientious objector.IThe petitioner's application for classification as a conscientious objector was turned down by his local draft board, and he took an administrative appeal. The State Appeal Board tentatively classified him I-A (eligible for unrestricted military service) and referred his file to the Department of Justice for an advisory recommendation, in accordance with then-applicable procedures. 50 U.S.C.App. § 456(j) (1964 ed., Supp. V). The FBI then conducted an "inquiry" as required by the statute, interviewing some 35 persons, including members of the petitioner's family and many of his friends, neighbors, and business and religious associates.There followed a hearing on "the character and good faith of the [petitioner's] objections" before a hearing officer appointed by the Department. The hearing officer, a retired judge of many years' experience, [Footnote 2] heard testimony from the petitioner's mother and father, from one of his attorneys, from a minister of his religion, and from the petitioner himself. He also had the benefit of a full report from the FBI. On the basis of this record, the hearing officer concluded that the registrant Page 403 U. S. 700 was sincere in his objection on religious grounds to participation in war in any form, and he recommended that the conscientious objector claim be sustained. [Footnote 3]Notwithstanding this recommendation, the Department of Justice wrote a letter to the Appeal Board, advising it that the petitioner's conscientious objector claim should be denied. Upon receipt of this letter of advice, the Board denied the petitioner's claim without a statement of reasons. After various further proceedings which it is not necessary to recount here, the petitioner was ordered to report for induction. He refused to take the traditional step forward, and this prosecution and conviction followed.IIIn order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form. Gillette v. United States, 401 U. S. 437. He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions. United States v. Seeger, 380 U. S. 163; Welsh v. United States, 398 U. S. 333. And he must show that this objection is sincere. Witmer v. United States, 348 U. S. 375. In applying these tests, the Selective Service System must be concerned with the registrant as an individual, not with its own interpretation of the dogma of the religious sect, if any, to which he may belong. United States v. Seeger, supra; Gillette v. United States, supra; Williams v. United States, 216 F.2d 350, 352. Page 403 U. S. 701In asking us to affirm the judgment of conviction, the Government argues that there was a "basis in fact," cf. Estep v. United States, 327 U. S. 114, for.holding that the petitioner is not opposed to "war in any form," but is only selectively opposed to certain wars. See Gillette v. United States, supra. Counsel for the petitioner, needless to say, takes the opposite position. The issue is one that need not be resolved in this case. For we have concluded that, even if the Government's position on this question is correct, the conviction before us must still be set aside for another quite independent reason.IIIThe petitioner's criminal conviction stemmed from the Selective Service System's denial of his appeal seeking conscientious objector status. That denial, for which no reasons were ever given, was, as we have said, based on a recommendation of the Department of Justice, overruling its hearing officer and advising the Appeal Board that it "finds that the registrant's conscientious objector claim is not sustained and recommends to your Board that he be not [so] classified." This finding was contained in a long letter of explanation, from which it is evident that Selective Service officials were led to believe that the Department had found that the petitioner had failed to satisfy each of the three basic tests for qualification as a conscientious objector.As to the requirement that a registrant must be opposed to war in any form, the Department letter said that the petitioner's expressed beliefs"do not appear to preclude military service in any form, but rather are limited to military service in the Armed Forces of the United States. . . . These constitute only objections to certain types of war in certain circumstances, rather than a general scruple against participation in war in any form. However, only a general scruple against participation Page 403 U. S. 702 in war in any form can support an exemption as a conscientious objector under the Act. United States v. Kauten, 133 F.2d 703."As to the requirement that a registrant's opposition must be based upon religious training and belief, the Department letter said:"It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form, but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. . . . It is therefore our conclusion that registrant's claimed objections to participation in war, insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial."As to the requirement that a registrant's opposition to war must be sincere, that part of the letter began by stating that"the registrant has not consistently manifested his conscientious objector claim. Such a course of overt manifestations is requisite to establishing a subjective state of mind and belief."There followed several paragraphs reciting the timing and circumstances of the petitioner's conscientious objector claim, and a concluding paragraph seeming to state a rule of law -- that"a registrant has not shown overt manifestations sufficient to establish his subjective belief where, as here, his conscientious objector claim was not asserted until military service became imminent. Campbell v. United States, 221 F.2d 454. United States v. Corliss, 280 F.2d 808, cert. denied, 364 U.S. 884."In this Court, the Government has now fully conceded that the petitioner's beliefs are based upon "religious training and belief," as defined in United States v. Seeger, supra:"There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, Page 403 U. S. 703 as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, 380 U. S. 163, his claim unquestionably was within the 'religious training and belief' clause of the exemption provision. [Footnote 4]"This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States, 398 U. S. 333.The Government in this Court has also made clear that it no longer questions the sincerity of the petitioner's beliefs. [Footnote 5] This concession is also correct. The Department hearing officer--the only person at the administrative appeal level who carefully examined the petitioner and other witnesses in person and who had the benefit of the full FBI file -- found "that the registrant is sincere in his objection." The Department of Justice was wrong in advising the Board in terms of a purported rule of law that it should disregard this finding simply because of the circumstances and timing of the petitioner's claim. See Ehlert v. United States, 402 U. S. 99, 402 U. S. 103-104; United States ex rel. Lehman v. Laird, 430 F.2d 96, 99; United States v. Abbott, 425 F.2d 910, 915; United States ex rel. Tobias v. Laird, 413 F.2d 936, 939-940; Cohen v. Laird, 315 F. Supp. 1265, 1277-1278.Since the Appeal Board gave no reasons for its denial of the petitioner's claim, there is absolutely no way of knowing upon which of the three grounds offered in the Department's letter it relied. Yet the Government now acknowledges that two of those grounds were not valid. Page 403 U. S. 704 And, the Government's concession aside, it is indisputably clear, for the reasons stated, that the Department was simply wrong as a matter of law in advising that the petitioner's beliefs were not religiously based and were not sincerely held.This case, therefore, falls squarely within the four corners of this Court's decision in Sicurella v. United States, 348 U. S. 385. There, as here, the Court was asked to hold that an error in an advice letter prepared by the Department of Justice did not require reversal of a criminal conviction because there was a ground on which the Appeal Board might properly have denied a conscientious objector classification. This Court refused to consider the proffered alternative ground:"[W]e feel that this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings, at least where it is not clear that the Board relied on some legitimate ground. Here, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds. There is an impressive body of lower court cases taking this position, and we believe that they state the correct rule."Id. at 348 U. S. 392.The doctrine thus articulated 16 years ago in Sicurella was hardly new. It was long ago established as essential to the administration of criminal justice. Stromberg v. California, 283 U. S. 359. In Stromberg, the Court reversed a conviction for violation of a California statute containing three separate clauses, finding one of the three clauses constitutionally invalid. As Chief Justice Hughes put the matter, "[I]t is impossible to say under which clause of the statute the conviction was obtained." Thus, "if any of the clauses in question is invalid under the Page 403 U. S. 705 Federal Constitution, the conviction cannot be upheld." Id. at 283 U. S. 368.The application of this doctrine in the area of Selective Service law goes back at least to 1945, and Judge Learned Hand's opinion for the Second Circuit in United States v. Cain, 149 F.2d 338. It is a doctrine that has been consistently and repeatedly followed by the federal courts in dealing with the criminal sanctions of the selective service laws. See, e.g., United States v. Lemmens, 430 F.2d 619, 623-624 (CA7 1970); United States v. Broyles, 423 F.2d 1299, 1303-1304 (CA4 1970); United States v. Haughton, 413 F.2d 736 (CA9 1969); United States v. Jakobson, 325 F.2d 409, 416-417 (CA2 1963), aff'd sub nom. United States v. Seeger, 380 U. S. 163; Kretchet v. United States, 284 F.2d 561, 565-566 (CA9 1960); Ypparila v. United States, 219 F.2d 465, 469 (CA10 1954); United States v. Englander, 271 F. Supp. 182 (SDNY 1967); United States v. Erikson, 149 F. Supp. 576, 578-579 (SDNY 1957). In every one of the above cases, the defendant was acquitted or the conviction set aside under the Sicurella application of the Stromberg doctrine.The long established rule of law embodied in these settled precedents thus clearly requires that the judgment before us be reversed.It is so ordered

U.S. Supreme CourtClay v. United States, 403 U.S. 698 (1971)Clay v. United StatesNo. 783Argued April 19, 1971Decided June 28, 1971403 U.S. 698SyllabusPetitioner appealed his local draft board's rejection of his application for conscientious objector classification. The Justice Department, in response to the State Appeal Board's referral for an advisory recommendation, concluded, contrary to a hearing officer's recommendation, that petitioner's claim should be denied, and wrote that board that petitioner did not meet any of the three basic tests for conscientious objector status. The Appeal Board then denied petitioner's claim, but without stating its reasons. Petitioner refused to report for induction, for which he was thereafter tried and convicted. The Court of Appeals affirmed. In this Court, the Government has rightly conceded the invalidity of two of the grounds for denial of petitioner's claim given in its letter to the Appeal Board, but argues that there was factual support for the third ground.Held: Since the Appeal Board gave no reason for the denial of a conscientious objector exemption to petitioner, and it is impossible to determine on which of the three grounds offered in the Justice Department's letter that board relied, petitioner's conviction must be reversed. Sicurella v. United States, 348 U. S. 385.430 F.2d 165, reversed.

1972_71-738

MR. JUSTICE WHITE delivered the opinion of the Court.The Mescalero Apache Tribe operates a ski resort in the State of New Mexico on land located outside the boundaries of the Tribe's reservation. The State has asserted the right to impose a tax on the gross receipts of the ski resort and a use tax on certain personalty purchased out of State and used in connection with the resort. Whether paramount federal law permits these taxes to be levied is the issue presented by this case.The home of the Mescalero Apache Tribe is on reservation lands in Lincoln and Otero Counties in New Mexico. The Sierra Blanca Ski Enterprises, owned and operated by the Tribe, is adjacent to the reservation, and was developed under the auspices of the Indian Reorganization Act of 1934, 48 Stat. 984, as amended, 25 U.S.C. § 461 et seq. [Footnote 1] After a feasibility study by the Bureau of Indian Affairs, equipment and construction money was provided by a loan from the Federal Government under § 10 of the Act, 25 U.S.C. § 470, and the necessary land was leased from the United States Forest Service for a term of 30 years. The ski area borders on the Tribe's reservation, but, with the exception of some cross-country ski trails, no part of the enterprise, its buildings, or equipment is located within the existing boundaries of the reservation.The Tribe has paid under protest $26,086.47 in taxes to the State, pursuant to the sales tax law, N.M.Stat.Ann. Page 411 U. S. 147 § 72-16-1 et seq. (1953), based on the gross receipts of the ski resort from the sale of services and tangible property. [Footnote 2] In addition, in 1968, the State assessed compensating use taxes against the Tribe in the amount of $5,887.19 (plus penalties and interest), based on the purchase price of materials used to construct two ski lifts at the resort. N.M.Stat.Ann. § 72-17-1 et seq. (1953). The Tribe duly protested the use tax assessment and sought a refund of the sales taxes paid. The State Commissioner of Revenue denied both the claim for refund and the protest of assessment, and the Court of Appeals of the State affirmed. The court held, essentially, that the State had authority to apply its nondiscriminatory taxes to the Tribe's enterprise and property involved in the dispute, and that the Indian Reorganization Act did not render the Tribe's enterprise a federal instrumentality, constitutionally immune from state taxation, nor did it, by its own terms, grant immunity from the taxes here involved. 83 N.M. 158, 489 P.2d 666 (1971). The Supreme Court of New Mexico denied certiorari. 83 N.M. 151, 489 P.2d 659 (1971). We granted the Tribe's petition for a writ of certiorari, 406 U.S. 905, to consider its claim that the income and property of the ski resort are not properly subject to state taxation. We affirm in part and in part reverse.IAt the outset, we reject -- as did the state court -- the broad assertion that the Federal Government has exclusive jurisdiction over the Tribe for all purposes, and that the State is therefore prohibited from enforcing its revenue laws against any tribal enterprise, "[w]hether Page 411 U. S. 148 the enterprise is located on or off tribal land." [Footnote 3] Generalizations on this subject have become particularly treacherous. The conceptual clarity of Chief Justice Marshall's view in Worcester v. Georgia, 6 Pet. 515, 31 U. S. 556-561 (1832), has given way to more individualized treatment of particular treaties and specific federal statutes, including statehood enabling legislation, as they, taken together, affect the respective rights of States, Indians, and the Federal Government. See McClanahan v. Arizona State Tax Comm'n, post, p. 411 U. S. 164; Organized Village of Kake v. Egan, 369 U. S. 60, 369 U. S. 71-73 (1982). The upshot has been the repeated statements of this Court to the effect that, even on reservations, state laws may be applied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law. Organized Village of Kake, supra, at 369 U. S. 75; Williams v. Lee, 358 U. S. 217 (1959); New York ex rel. Ray v. Martin, 326 U. S. 498, 326 U. S. 499 (1946); Draper v. United States, 164 U. S. 240 (1896). Even so, in the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan v. Arizona State Tax Comm'n, supra, lays to rest any doubt in this respect by holding that such taxation is not permissible absent congressional consent. But tribal activities conducted outside the reservation present different considerations. "State authority over Indians is yet more extensive over activities . . . not on any reservation." Organized Village of Kake, supra, at 369 U. S. 75. Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally Page 411 U. S. 149 been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State. See, e.g., Puyallup Tribe v. Department of Game, 391 U. S. 392, 391 U. S. 398 (1968); Organized Village of Kake, supra, at 369 U. S. 75-76; Tulee v. Washington, 315 U. S. 681, 315 U. S. 683 (1942); Shaw v. Gibson-Zahniser Oil Corp., 276 U. S. 575 (1928); Ward v. Race Horse, 163 U. S. 504 (1896). That principle is as relevant to a State's tax laws as it is to state criminal laws, see Ward v. Race Horse, supra, at 163 U. S. 516, and applies as much to tribal ski resorts as it does to fishing enterprises. See Organized Village of Kake, supra.The Enabling Act for New Mexico, 36 Stat. 557, [Footnote 4] reflects the distinction between on- and off-reservation activities. Section 2 of the Act provides that the people of the State disclaim "all right and title" to lands"owned or held by any Indian or Indian tribes the right or title to which shall have been acquired through or from the United States . . . , and that . . . the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States."But the Act expressly provides, with respect to taxation, that"nothing herein . . . shall preclude the said State from taxing, as other lands and other property are taxed, any lands and other property outside of an Indian reservation owned or held by any Indian, save and except such lands as have been granted . . . or as may be granted or confirmed to any Indian or Indians under any Act of Congress, but . . . all such lands shall be exempt from taxation by said State [only] so long and to such extent as Congress has prescribed or may hereafter prescribe."It is thus clear that, in terms of general power, New Mexico retained the right to tax, unless Congress forbade it, Page 411 U. S. 150 all Indian land and Indian activities located or occurring "outside of an Indian reservation." [Footnote 5]We also reject the broad claim that the Indian Reorganization Act of 1934 rendered the Tribe's off-reservation ski resort a federal instrumentality constitutionally immune from state taxes of all sorts. M'Culloch v. Maryland, 4 Wheat. 316 (1819). The intergovernmental immunity doctrine was once much in vogue in a variety of contexts and, with respect to Indian affairs, was consistently held to bar a state tax on the lessees of, or the product or income from, restricted lands of tribes or individual Indians. The theory was that a federal instrumentality was involved, and that the tax would interfere with the Government's realizing the maximum return for its wards. This approach did not survive; its rise and decline in Indian affairs is described and reflected in Helvering v. Mountain Producers Corp., 303 U. S. 376 (1938); Oklahoma Tax Comm'n v. United States, 319 U. S. 598 (1943); and Oklahoma Tax Comm'n v. Texas Co., 336 U. S. 342 (1949), where the Court cut to the bone the proposition that restricted Indian lands and the proceeds from them were -- as a matter of constitutional law -- automatically exempt from state taxation. Rather, the Court held that Congress has the power "to immunize these lessees from the taxes we think the Constitution permits Oklahoma to impose in the absence of such action," and that "[t]he question whether immunity shall be extended in situations like these is essentially legislative in character." Oklahoma Tax Comm'n v. Texas Co., supra, at 336 U. S. 365-366. Page 411 U. S. 151The Indian Reorganization Act of 1934 neither requires nor counsels us to recognize this tribal business venture as a federal instrumentality. Congress itself felt it necessary to address the immunity question and to provide tax immunity to the extent it deemed desirable. There is, therefore, no statutory invitation to consider projects undertaken pursuant to the Act as federal instrumentalities generally and automatically immune from state taxation. Unquestionably, the Act reflected a new policy of the Federal Government, and aimed to put a halt to the loss of tribal lands through allotment. It gave the Secretary of the Interior power to create new reservations, and tribes were encouraged to revitalize their self-government through the adoption of constitutions and bylaws and through the creation of chartered corporations, with power to conduct the business and economic affairs of the tribe. [Footnote 6] As was true in the case before us, a tribe taking advantage of the Act might generate substantial revenues for the education and the social and economic welfare of its people. [Footnote 7] So viewed, an enterprise such as the ski resort in this case serve a federal function with respect to the Government's role in Indian affairs. But the"mere fact that property is used, among others, by the United States as an instrument for effecting its purpose does not relieve it from state taxation."Choctaw, Oklahoma & Gulf R. Co. v. Mackey, 256 U. S. 531, 256 U. S. 536 (1921). See also Henderson Bridge Co. v. Kentucky, 166 U. S. 150, 166 U. S. 154 (1897). Page 411 U. S. 152The intent and purpose of the Reorganization Act was"to rehabilitate the Indian's economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism."H.R.Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934). See also S.Rep. No. 1080, 73d Cong., 2d Sess., 1 (1934). As Senator Wheeler, on the floor, put it:"This bill . . . seeks to get away from the bureaucratic control of the Indian Department, and it seeks further to give the Indians the control of their own affairs and of their own property; to put it in the hands either of an Indian council or in the hands of a corporation to be organized by the Indians."78 Cong.Rec. 11125. Representative Howard explained that:"The program of self-support and of business and civic experience in the management of their own affairs, combined with the program of education, will permit increasing numbers of Indians to enter the white world on a footing of equal competition."Id. at 11732. [Footnote 8] The Reorganization Act did not strip Indian tribes and their reservation lands of their historic immunity from state and local control. [Footnote 9] But, in the context of the Reorganization Page 411 U. S. 153 Act, we think it unrealistic to conclude that Congress conceived of off-reservation tribal enterprises "virtually as an arm of the Government." Department of Employment v. United States, 385 U. S. 355, 385 U. S. 359-360 (1966). Cf. Clallam County v. United States, 263 U. S. 341 (1923). On the contrary, the aim was to dissentangle the tribes from the official bureaucracy. The Court's decision in Organized Village of Kake, supra, which involved tribes organized under the Reorganization Act, demonstrates that off-reservation activities are within the reach of state law. See also Puyallup Tribe, 391 U.S. at 391 U. S. 398. What was said in Shaw v. Gibson-Zahner Oil Corp., 276 U. S. 575 (1928), is relevant here. At issue there was the taxability of off-reservation Indian land purchased with consent of the Secretary of the Interior with the accumulated royalties from the individual Page 411 U. S. 154 Indian's restricted allotted lands. Alienation of the purchased land was federally restricted. In rejecting a claim that state taxation of the land was barred by the federal instrumentality doctrine, [Footnote 10] the then Mr. Justice Stone wrote for a unanimous Court:"What governmental instrumentalities will be held free from state taxation, though Congress has not expressly so provided, cannot be determined apart from the purpose and character of the legislation creating them. . . .""* * * *" "The early legislation affecting the Indians had as its immediate object the closest control by the government of their lives and property. The first and principal need then was that they should be shielded alike from their own improvidence and the spoliation of others, but the ultimate purpose was to give them the more independent and responsible status of citizens and property owners. . . .""* * * *" "In a broad sense, all lands which the Indians are permitted to purchase out of the taxable lands of the state in this process of their emancipation and assumption of the responsibility of citizenship, whether restricted or not, may be said to be instrumentalities in that process. But . . .[t]o hold them immune would be inconsistent with one of the Page 411 U. S. 155 very purposes of their creation, to educate the Indians in responsibility. . . ."Id. at 276 U. S. 578-581. We accordingly decline the invitation to resurrect the expansive version of the intergovernmental immunity doctrine that has been so consistently rejected in modern times.IIThe Tribe's broad claims of tax immunity must therefore be rejected. But there remains to be considered the scope of the immunity specifically afforded by § 5 of the Indian Reorganization Act. 25 U.S.C. § 465.ASection 465 provides, in part, that "any lands or rights acquired" pursuant to any provision of the Act"shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation. [Footnote 11]"On its face, the statute exempts land and rights in land, not income derived from its use. It is true that a statutory tax exemption for "lands" may, in light of its context and purposes, be construed Page 411 U. S. 156 to support an exemption for taxation on income derived from the land. See Squire v. Capoeman, 351 U. S. 1 (1956); cf. Superior Bath House Co. v. McCarroll, 312 U. S. 176 (1941). [Footnote 12] But, absent clear statutory guidance, courts ordinarily will not imply tax exemptions and will not exempt off-reservation income from tax simply because the land from which it is derived, or its other source, is itself exempt from tax."This Court has repeatedly said that tax exemptions are not granted by implication. . . . It has applied that rule to taxing acts affecting Indians as to all others. . . . If Congress intends to prevent the State of Oklahoma from levying a general nondiscriminatory estate tax applying alike to all its citizens, it should say so in plain words. Such a conclusion cannot rest on dubious inferences."Oklahoma Tax Comm'n v. United States, 319 U.S. at 319 U. S. 606-607. See Squire v. Capoeman, supra, at 351 U. S. 6. Absent a "definitely expressed" exemption, an Indian's royalty income from Indian oil lands is subject to the federal income tax although the source of the income may be exempt from tax. Choteau v. Burnet, 283 U. S. 691, 283 U. S. 696-697 (1931). Page 411 U. S. 157 The Court has also held that a State, as well as the Federal Government, may tax an Indian's pro rata share of income from a tribe's restricted mineral resources. Leahy v. State Treasurer, 297 U. S. 420 (1936). Lessees of otherwise exempt Indian lands are also subject to state taxation. Oklahoma Tax Comm'n v. Texas Co., 336 U. S. 342 (1949).On the face of § 465, therefore, there is no reason to hold that it forbids income, as well as property, taxes. Nor does the legislative history support any other conclusion. As we have noted, several explicit provisions encompassing a broad tax immunity for chartered Indian communities were dropped from the bills that preceded the Wheeler-Howard bill. See n 9, supra. Similarly, the predecessor to the exemption embodied in § 465 dealt only with lands acquired for new reservations or for additions to existing reservations. 1934 House Hearings 11. Here, the rights and land were acquired by the Tribe beyond its reservation borders for the purpose of carrying on a business enterprise as anticipated by §§ 476 and 477 of the Act. [Footnote 13] These provisions were designed to encourage tribal enterprises "to enter the white world on a footing of equal competition." 78 Cong.Rec. 11732. In this context, we will not imply an expansive immunity from ordinary income taxes that businesses throughout the State are subject to. We therefore Page 411 U. S. 158 hold that the exemption in § 465 does not encompass or bar the collection of New Mexico's nondiscriminatory gross receipts tax and that the Tribe's ski resort is subject to that tax.BWe reach a different conclusion with respect to the compensating use tax imposed on the personalty installed in the construction of the ski lifts. According to the Stipulation of Facts, that personal property has been "permanently attached to the realty." In view of § 465, these permanent improvements on the Tribe's tax exempt land would certainly be immune from the State's ad valorem property tax. See United States v. Rickert, 188 U. S. 432, 188 U. S. 441-443 (1903). We think the same immunity extends to the compensating use tax on the property. The jurisdictional basis for use taxes is the use of the property in the State. See Henneford v. Silas Mason Co., 300 U. S. 577 (1937); McLeod v. J. E. Dilworth Co., 322 U. S. 327, 322 U. S. 330 (1944). It has long been recognized that "use" is among the "bundle of privileges that make up property or ownership" of property and, in this sense at least, a tax upon "use" is a tax upon the property itself. Henneford v. Silas Mason Co., supra, at 300 U. S. 582. This is not to say that use taxes are, for all purposes, to be deemed simple ad valorem property taxes. See, e.g., United States v. Detroit, 355 U. S. 466 (1958), and its companion cases; Sullivan v. United States, 395 U. S. 169 (1969). But use of permanent improvements upon land is so intimately connected with use of the land itself that an explicit provision relieving the latter of state tax burdens must be construed to encompass an exemption for the former."Every reason that can be urged to show that the land was not subject to local taxation applies to Page 411 U. S. 159 the assessment and taxation of the permanent improvements."United States v. Rickert, supra, at 188 U. S. 442.The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtMescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)Mescalero Apache Tribe v. JonesNo. 71-738Argued December 12, 1972Decided March 27, 1973411 U.S. 145SyllabusThe State of New Mexico may impose a nondiscriminatory gross receipts tax on a ski resort operated by petitioner Tribe on off-reservation land that the Tribe leased from the Federal Government under § 5 of the Indian Reorganization Act, 25 U.S.C. § 465. Though § 465 exempts the land acquired from state and local taxation, neither that provision nor the federal instrumentality doctrine bars taxing income from the land. But § 465 bars a use tax that the State seeks to impose on personalty that the Tribe purchased out of State and which, having been installed as a permanent improvement at the resort, became so intimately connected with the land itself as to be encompassed by the statutory exemption. Pp. 411 U. S. 147-159.83 N.M. 158, 489 P.2d 666, affirmed in part and reversed in part.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed an opinion dissenting in part, in which BRENNAN and STEWART, JJ., joined, post, p. 411 U. S. 159. Page 411 U. S. 146

1983_82-1616

JUSTICE STEVENS delivered the opinion of the Court.The Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982 ed.), requires federal agencies to disclose records [Footnote 1] that Page 465 U. S. 794 do not fall into one of nine exempt categories. [Footnote 2] The question presented is whether confidential statements obtained during an Air Force investigation of an air crash are protected from disclosure by Exemption 5, which exempts"inter-agency or intra-agency memorandums or letters which would not be Page 465 U. S. 795 available by law to a party other than an agency in litigation with the agency."IOn October 9, 1973, the engine of an Air Force F-106B aircraft failed in flight. Captain Richard Hoover, the pilot, was severely injured when he ejected from the plane. Under Air Force regulations, the incident was a significant air crash that required two separate investigations: a "collateral investigation" and a "safety investigation."The collateral investigation is conducted"to preserve available evidence for use in claims, litigation, disciplinary actions, administrative proceedings, and all other purposes. [Footnote 3]"Witnesses in a collateral investigation testify under oath and generally are protected by the procedural safeguards that are applicable in other formal hearings. The record of the collateral investigation is public.The safety investigation is quite different. It is conducted by a specially appointed tribunal which prepares a report that is intended for "the sole purpose of taking corrective action in the interest of accident prevention." [Footnote 4] To encourage witnesses to speak fully and frankly, they are not sworn, and receive an assurance that their statements will not be used for any purpose other than accident prevention. [Footnote 5] Air Force regulations contain a general prohibition against the release of safety investigation reports and their attachments, [Footnote 6] subject to an exception which allows the Judge Advocate General to release specified categories of "factual material" and "nonpersonal evidence." [Footnote 7] Page 465 U. S. 796After the collateral and safety investigations had been completed, Captain Hoover filed a damages action against various entities responsible for the design and manufacture of his plane's ejection equipment. [Footnote 8] During pretrial discovery in that litigation, two of the parties (respondents Weber [Footnote 9] and Mills [Footnote 10]) sought discovery of all Air Force investigative reports pertaining to the accident. The Air Force released the entire record of the collateral investigation, as well as certain factual portions of the safety investigation, but it refused to release the confidential portions of the safety investigation.Confidential statements made to air crash safety investigators were held to be privileged with respect to pretrial discovery over 20 years ago. Machin v. Zukert, 114 U.S.App.D.C. 335, 316 F.2d 336, cert. denied, 375 U.S. 896 (1963). That holding effectively prevented respondents from obtaining the pretrial discovery they sought -- specifically the unsworn statements given by Captain Hoover and by the airman who had rigged and maintained his parachute equipment. Respondents therefore filed requests for those statements under the FOIA, and when the Air Force refused production, they commenced this action.In the District Court, the Government filed an affidavit executed by the General responsible for Air Force safety investigations, explaining that the material that had been withheld Page 465 U. S. 797 contained "conclusions, speculations, findings and recommendations made by the Aircraft Mishap Investigators," as well as "testimony provided by witnesses under a pledge of confidentiality." App. 38. The affidavit explained why the General believed that the national security would be adversely affected by the disclosure of such material. [Footnote 11] The District Court held that the material at issue would not be available by law to a party other than an agency in litigation with an agency, and hence need not be disclosed by virtue of Page 465 U. S. 798 Exemption 5. [Footnote 12] The Court of Appeals reversed. 688 F.2d 638 (CA9 1982). It agreed that the requested documents were "intra-agency memorandums" within the meaning of Exemption 5, and that they were protected from civil discovery under the Machin privilege. It held, however, that the statutory phrase "would not be available by law" did not encompass every civil discovery privilege, but rather reached only those privileges explicitly recognized in the legislative history of the FOIA. It read that history as accepting an executive privilege for predecisional documents containing advice, opinions, or recommendations of Government agents, but as not extending to the Machin civil discovery privilege for official Government information. It accordingly remanded the case with directions to disclose the factual portions of the witnesses' statements.IIThe plain language of the statute itself, as construed by our prior decisions, is sufficient to resolve the question presented. The statements of the two witnesses are unquestionably "intra-agency memorandums or letters," [Footnote 13] and, since the Machin privilege normally protects them from discovery in civil litigation, they "would not be available by law to a party other than [the Air Force] in litigation with [the Air Force]." [Footnote 14] Page 465 U. S. 799Last Term, in FTC v. Grolier Inc., 462 U. S. 19 (1983), we held that Exemption 5 simply incorporates civil discovery privileges:"The test under Exemption 5 is whether the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance."Id. at 462 U. S. 26. [Footnote 15] Thus, since the Machin privilege is well recognized in the case law as precluding routine disclosure of the statements, the statements are covered by Exemption 5.Grolier was consistent with our prior cases. For example, Grolier itself relied on Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U. S. 168 (1975), which Grolier quoted on the scope of Exemption 5:"'Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context.'"462 U.S. at 462 U. S. 26-27 (emphasis added in Grolier) (quoting 421 U.S. at 421 U. S. 184). Similarly, in NLRB v. Sears, Roebuck & Co., 421 U. S. 132 (1975), we wrote: "Exemption 5 withholds from a member of the public documents which a private party could not discover in litigation with the agency." Id. at 421 U. S. 148. [Footnote 16] In Federal Open Market Committee v. Merrill, 443 U. S. 340 (1979), we wrote:"The House Report [on the FOIA] states that Exemption 5 was intended to Page 465 U. S. 800 allow an agency to withhold intra-agency memoranda which would not 'routinely be disclosed to a private party through the discovery process in litigation with the agency. . . .'"Id. at 443 U. S. 353 (quoting H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966)). And in EPA v. Mink, 410 U. S. 73 (1973), the Court observed:"This language clearly contemplates that the public is entitled to all such memoranda or letters that a private party could discover in litigation with the agency."Id. at 410 U. S. 86. [Footnote 17]Respondents read Merrill as limiting the scope of Exemption 5 to privileges explicitly identified by Congress in the legislative history of the FOIA. But in Merrill, we were confronted with a claimed exemption that was not clearly covered by a recognized pretrial discovery privilege. We held that Exemption 5 protected the Federal Open Market Committee's Domestic Policy Directives, although it was not entirely clear that they fell within any recognized civil discovery privilege, because statements in the legislative history supported an inference that Congress intended to recognize such a privilege. See 443 U.S. at 443 U. S. 357-360. Thus, the holding of Merrill was that a privilege that was mentioned in the legislative history of Exemption 5 is incorporated by the Exemption -- not that all privileges not mentioned are excluded. Page 465 U. S. 801 Moreover, the Merrill dictum upon which respondents rely merely indicates "that it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery." Id. at 443 U. S. 354. It is one thing to say that recognition under Exemption 5 of a novel privilege, or one that has found less than universal acceptance, might not fall within Exemption 5 if not discussed in its legislative history. It is quite another to say that the Machin privilege, which has been well settled for some two decades, need be viewed with the same degree of skepticism. [Footnote 18] In any event, the Merrill dictum concludes only that"a claim that a privilege other than executive privilege or the attorney privilege is covered by Exemption 5 must be viewed with caution."443 U.S. at 443 U. S. 355. The claim of privilege sustained in Machin was denominated as one of executive privilege. See 114 U.S.App.D.C. at 337, 316 F.2d at 338. [Footnote 19] Hence, the dictum is of little aid to respondents.Moreover, respondents' contention that they can obtain through the FOIA material that is normally privileged would create an anomaly, in that the FOIA could be used to supplement civil discovery. We have consistently rejected such a construction of the FOIA. See Baldrige v. Shapiro, 455 U. S. 345, 455 U. S. 360, n. 14 (1982); NLRB v. Sears, Roebuck & Co., 421 U.S. at 421 U. S. 143, n. 10; Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1, 415 U. S. 24 (1974). We do not Page 465 U. S. 802 think that Congress could have intended that the weighty policies underlying discovery privileges could be so easily circumvented. [Footnote 20]Finally, the legislative history of Exemption 5 does not contain the kind of compelling evidence of congressional intent that would be necessary to persuade us to look beyond the plain statutory language. Because of the difficulty inherent in compiling an exhaustive list of evidentiary privileges, [Footnote 21] it would be impractical to treat the legislative history of Exemption 5 as containing a comprehensive list of all privileges Congress intended to adopt. Rather, the history of Exemption 5 can be understood by means of "rough analogies." EPA v. Mink, supra, at 410 U. S. 86. The legislative history of Exemption 5 indicates that Congress intended to incorporate governmental privileges analogous to the Machin privilege. That history recognizes a need for claims of privilege when confidentiality is necessary to ensure frank and open discussion, and hence efficient governmental operations. See Grolier, 462 U.S. at 462 U. S. 27-28; Merrill, 443 U.S. at 443 U. S. 359; Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. at 421 U. S. 186, 421 U. S. 189-190; NLRB v. Sears, Roebuck & Co., supra, at 421 U. S. 150-152; Mink, supra, at 410 U. S. 86-89; H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966); S.Rep. Page 465 U. S. 803 No. 813, 89th Cong., 1st Sess., 9 (1965). [Footnote 22] The Machin privilege was recognized for precisely this reason. [Footnote 23] Thus, the Machin privilege is sufficiently related to the concerns expressed in the legislative history [Footnote 24] that we cannot say that the legislative history demonstrates that the statute should not be construed to mean what it says with respect to the Machin privilege. [Footnote 25] Page 465 U. S. 804We therefore simply interpret Exemption 5 to mean what it says. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtUnited States v. Weber Aircraft Corp., 465 U.S. 792 (1984)United States v. Weber Aircraft Corp.No. 82-1616Argued January 11, 1984Decided March 20, 1984465 U.S. 792SyllabusWhen the engine of an Air Force aircraft failed in flight, the pilot was severely injured when he ejected from the plane. After Air Force collateral and safety investigations of the incident had been completed, the pilot filed a damages action against respondents as the entities responsible for the design and manufacture of the plane's ejection equipment. Respondents sought pretrial discovery of documents containing confidential unsworn statements made during the safety investigation by the pilot and the airman who had rigged and maintained the pilot's parachute equipment. But such discovery was prevented by Machin v. Zukert, 114 U.S.App.D.C. 335, 316 F.2d 336, cert. denied, 375 U.S. 896, which held that confidential statements made to air crash safety investigators are privileged with respect to pretrial discovery. Respondents then filed requests for the statements under the Freedom of Information Act (FOIA) and, when the Air Force refused production, commenced an action in Federal District Court, which held that the statements were protected from disclosure by Exemption 5 of the FOIA, which exempts from disclosure"inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."The Court of Appeals reversed, holding that, although the requested documents were "intra-agency memorandums" within the meaning of Exemption 5 and were protected from civil discovery under the Machin privilege, the statutory phrase "would not be available by law" did not encompass every civil discovery privilege, but rather reached only those privileges explicitly recognized in the FOIA's legislative history, which the court read as not extending to the Machin privilege.Held: The statements in question are protected from disclosure by Exemption 5. The Exemption's plain language, as construed by this Court's prior decisions, is sufficient to resolve the question presented. The statements are unquestionably "intra-agency memorandums or letters" within the meaning of the Exemption, and, since the Machin privilege normally protects them from civil discovery, they "would not be available by law to a party other than [the Air Force] in litigation with [the Air Force]." Exemption 5's scope is not limited to privileges Page 465 U. S. 793 explicitly identified by Congress in the FOIA's legislative history. To hold that material that is normally privileged can be obtained through the FOIA would create an anomaly in that the FOIA could be used to supplement civil discovery. And Exemption 5's legislative history does not contain the kind of compelling evidence of congressional intent that would necessitate looking beyond the plain statutory language, but rather indicates that Congress intended to incorporate governmental privileges analogous to the Machin privilege. Pp. 465 U. S. 798-804.688 F.2d 638, reversed. STEVENS, J., delivered the opinion for a unanimous Court.

1965_46

MR. JUSTICE FORTAS delivered the opinion of the Court.This is a civil action brought by the United States to enjoin the appellees from participating in an alleged conspiracy to restrain trade in violation of § 1 of the Sherman Act. [Footnote 1] The United States District Court for the Southern District of California concluded that the proof failed to establish the alleged violation, and entered judgment for the defendants. The case is here on direct appeal under § 2 of the Expediting Act, 32 Stat. 823, 15 U.S.C. § 29 (1964 ed.). We reverse.IThe appellees are the General Motors Corporation, which manufactures, among other things, the Chevrolet line of cars and trucks, and three associations of Chevrolet dealers in and around Los Angeles, California. [Footnote 2] All of the Chevrolet dealers in the area belong to one or more of the appellee associations. Page 384 U. S. 130Chevrolets are ordinarily distributed by dealers operating under a franchise from General Motors. The dealers purchase the cars from the manufacturer, and then retail them to the public. The relationship between manufacturer and dealer is incorporated in a comprehensive uniform Dealer Selling agreement. This agreement does not restrict or define those to whom the dealer may sell. Nor are there limitations as to the territory within which the dealer may sell. Compare White Motor Co. v. United States, 372 U. S. 253. The franchise agreement does, however, contain a clause (hereinafter referred to as the "location clause") which prohibits a dealer from moving to or establishing"a new or different location, branch sales office, branch service station, or place of business including any used car lot or location without the prior written approval of Chevrolet."Beginning in the late 1950's, "discount houses" engaged in retailing consumer goods in the Los Angeles area, and "referral services" [Footnote 3] began offering to sell new cars to the public at allegedly bargain prices. Their sources of supply were the franchised dealers. By 1960, a number of individual Chevrolet dealers, without authorization from General Motors, had developed working relationships with these establishments. A customer would enter one of these establishments and examine the literature and price lists for automobiles produced by several manufacturers. In some instances, floor models were available for inspection. Some of the establishments negotiated Page 384 U. S. 131 with the customer for a trade-in of his old car, and provided financing for his new car purchase.The relationship with the franchised dealer took various forms. One arrangement was for the discounter to refer the customer to the dealer. The car would then be offered to him by the dealer at a price previously agreed upon between the dealer and the discounter. In 1960, a typical referral agreement concerning Chevrolets provided that the price to the customer was not to exceed $250 over the dealer's invoiced cost. For its part in supplying, the discounter received $50 per sale.Another common arrangement was for the discounter itself to negotiate the sale, the dealer's role being to furnish the car and to transfer title to the customer at the direction of the discounter. One dealer furnished Chevrolets under such an arrangement, charging the discounter $85 over its invoiced cost, with the discounter getting the best price it could from its customer.These were the principal forms of trading involved in this case, although, within each, there were variations, [Footnote 4] and there were schemes which fit neither pattern. [Footnote 5] Page 384 U. S. 132 By 1960, these methods for retailing new cars had reached considerable dimensions. Of the 100,000 new Chevrolets sold in the Los Angeles area in that year, some 2,000 represented discount house or referral sales. One Chevrolet dealer attributed as much as 25% of its annual sales to participation in these arrangements, while another accounted for between 400 and 525 referral sales in a single year.Approximately a dozen of the 85 Chevrolet dealers in the Los Angeles area were furnishing cars to discounters in 1960. As the volume of these sales grew, the nonparticipating Chevrolet dealers located near one or more of the discount outlets [Footnote 6] began to feel the pinch. Dealers lost sales because potential customers received, or thought they would receive, [Footnote 7] a more attractive deal from a discounter Page 384 U. S. 133 who obtained its Chevrolets from a distant dealer. The discounters vigorously advertised Chevrolets for sale, with alluring statements as to price savings. The discounters also advertised that all Chevrolet dealers were obligated to honor the new car warranty and to provide the free services contemplated therein; and General Motors does indeed require Chevrolet dealers to service Chevrolet cars, wherever purchased, pursuant to the new car warranty and service agreement. Accordingly, nonparticipating dealers were increasingly called upon to service, without compensation, Chevrolets purchased through discounters. Perhaps what grated most was the demand that they "precondition" cars so purchased -- make the hopefully minor adjustments and do the body and paint work necessary to render a factory-fresh car both customer- and road-worthy.On June 28, 1960 at a regular meeting of the appellee Losor Chevrolet Dealers Association, member dealers discussed the problem and resolved to bring it to the attention of the Chevrolet Division's Los Angeles zone manager, Robert O'Connor. Shortly thereafter, a delegation from the association called upon O'Connor, presented evidence that some dealers were doing business with the discounters, and asked for his assistance. O'Connor promised he would speak to the offending dealers. When no help was forthcoming, Owen Keown, a director of Losor, took matters into his own hands. First, he spoke to Warren Biggs and Wilbur Newman, Chevrolet dealers who were then doing a substantial business with discounters. According to Keown's testimony, Newman told him that he would continue the practice "until . . . told not to by" Chevrolet, and that, "when the Chevrolet Motor Division told him not to do it, he Page 384 U. S. 134 knew that they wouldn't let some other dealer carry on with it." [Footnote 8]Keown then reported the foregoing events at the association's annual meeting in Honolulu on November 10, 1960. The member dealers present agreed immediately to flood General Motors and the Chevrolet Division with letters and telegrams asking for help. Salesmen, too, were to write. [Footnote 9]Hundreds of letters and wires descended upon Detroit -- with telling effect. Within a week, Chevrolet's O'Connor was directed to furnish his superiors in Detroit with "a detailed report of the discount house operations . . . as well as what action we in the Zone are taking to curb such sales." [Footnote 10]By mid-December, General Motors had formulated its response. On December 15, James M. Roche, then an executive vice president of General Motors, wrote to some of the complaining dealers. He noted that the Page 384 U. S. 135 practices to which they were objecting,"in some instances, represent the establishment of a second and unauthorized sales outlet or location contrary to the provisions of the General Motors Dealers Selling Agreements."(Emphasis supplied.) Recipients of the letter were advised that General Motors personnel proposed to discuss that matter with each of the dealers. [Footnote 11] O'Connor in Los Angeles was apprised of the letter's content and instructed to carry on the personal discussions referred to therein. With respect to the offending dealers, he was to work with Roy Cash, regional manager for the Chevrolet Division. Cash had been briefed on the subject in Detroit on December 14.General Motors personnel proceeded to telephone all area dealers, both to identify those associated with the discounters and to advise nonparticipants that General Motors had entered the lists. The principal offenders were treated to unprecedented individual confrontations with Cash, the regional manager. These brief meetings were wholly successful in obtaining from each dealer his agreement to abandon the practices in question. Some capitulated during the course of the four- or five-minute meeting, or immediately thereafter. [Footnote 12] One dealer, who met not with Cash, but with the city sales manager for Page 384 U. S. 136 Chevrolet, put off decision for a week "to make sure that the other dealers, or most of them, had stopped their business dealings with discount houses." [Footnote 13]There is evidence that unanimity was not obtained without reference to the ultimate power of General Motors. The testimony of dealer Wilbur Newman was that regional manager Cash related a story, the relevance of which was not lost upon him, that, in handling children, "I can tell them to stop something. If they don't do it . . . , I can knock their teeth down their throats."By mid-January, General Motors had elicited from each dealer a promise not to do business with the discounters. But such agreements would require policing -- a fact which had been anticipated. General Motors earlier had initiated contacts with firms capable of performing such a function. This plan unilaterally to police the agreements was displaced, however, in favor of a joint effort between General Motors, the three appellee associations, and a number of individual dealers.On December 15, 1960, representatives of the three appellee associations had met and appointed a joint committee to study the situation and to keep in touch with Page 384 U. S. 137 Chevrolet's O'Connor. [Footnote 14] Early in 1961, the three associations agreed jointly to finance the "shopping" of the discounters to assure that no Chevrolet dealer continued to supply them with cars. Each of the associations contributed $5,000, and a professional investigator was hired. He was instructed to try to purchase new Chevrolets from the proscribed outlets, to tape-record the transactions, if any, and to gather all the necessary documentary evidence -- which the associations would then lay "at the doorstep of Chevrolet." These joint associational activities were both preceded and supplemented by similar "shopping" activities by individual dealers and by appellee Losor Chevrolet Dealers Association.General Motors collaborated with these policing activities. There is evidence that zone manager O'Connor and a subordinate, Jere Faust, actively solicited the help of individual dealers in uncovering violations. Armed with information of such violations obtained from the dealers or their associations, O'Connor or members of his staff would ask the offending dealer to come in and talk. The dealer then was confronted with the car purchased by the "shopper," the documents of sale, and in most cases a tape recording of the transaction. In every instance, the embarrassed dealer repurchased the car, sometimes at a substantial loss, and promised to stop such sales. At the direction of O'Connor or a subordinate, the checks with which the cars were repurchased were Page 384 U. S. 138 made payable to an attorney acting jointly for the three defendant associations.O'Connor testified that on no occasion did he "force" a dealer to repurchase; he merely made the opportunity available. But one dealer testified that, when an assistant zone manager for the Chevrolet Division asked him to come in and talk about discount sales,"he specified a sum of money which I was to bring with me when I came down and saw him. . . . I kept the appointment, and brought a cashier's check. I knew when I came down to Los Angeles that I was going to repurchase an automobile. . . ."Another dealer testified that, upon being confronted with evidence that one of his cars had been purchased through a referral service, he not only bought it back (without questioning the correctness of the price exacted), but also fired the employee responsible for the transaction -- although the employee had been commended by the Chevrolet Division a few weeks earlier as the "number one fleet salesman" in the 11-state Pacific region.By the spring of 1961, the campaign to eliminate the discounters from commerce in new Chevrolet cars was a success. Sales through the discount outlets seem to have come to a halt. Not until a federal grand jury commenced an inquiry into the matters which we have sketched does it appear that any Chevrolet dealer resumed its business association with the discounters.IIOn these basic facts, the Government first proceeded criminally. A federal grand jury in the Southern District of California returned an indictment. After trial, the defendants were found not guilty. The present civil action, filed shortly after return of the indictment, was then brought to trial. Page 384 U. S. 139Both the Government and the appellees urge the importance, for purposes of decision, of the "location clause" in the Dealer Selling Agreement, which prohibits a franchised dealer from moving to or establishing"a new or different location, branch sales office, branch service station, or place of business . . . without the prior written approval of Chevrolet."The appellees contend that this contractual provision is lawful, and that it justifies their actions. They argue that General Motors acted lawfully to prevent its dealers from violating the "location clause," that the described arrangements with discounters constitute the establishment of additional sales outlets in violation of the clause, and that the individual dealers -- and their associations -- have an interest in uniform compliance with the franchise agreement, which interest they lawfully sought to vindicate.The Government invites us to join in the assumption, only for purposes of this case, that the "location clause" encompasses sales by dealers through the medium of discounters. But it urges us to hold that, so construed, the provision is unlawful as an unreasonable restraint of trade in violation of the Sherman Act. [Footnote 15]We need not reach these questions concerning the meaning, effect, or validity of the "location clause" or of any other provision in the Dealer Selling Agreement, and we do not. We do not decide whether the "location Page 384 U. S. 140 clause" may be construed to prohibit a dealer, party to it, from selling through discounters, or whether General Motors could, by unilateral action, enforce the clause so construed. We have here a classic conspiracy in restraint of trade: joint, collaborative action by dealers, the appellee associations, and General Motors to eliminate a class of competitors by terminating business dealings between them and a minority of Chevrolet dealers and to deprive franchised dealers of their freedom to deal through discounters if they so choose. Against this fact of unlawful combination, the "location clause" is of no avail. Whatever General Motors might or might not lawfully have done to enforce individual Dealer Selling Agreements, by action within the borders of those agreements and the relationship which each defines, is beside the point. And, because the action taken constitutes a combination or conspiracy, it is not necessary to consider what might be the legitimate interest of a dealer in securing compliance by others with the "location clause," or the lawfulness of action a dealer might individually take to vindicate this interest.The District Court decided otherwise. It concluded that the described events did not add up to a combination or conspiracy violative of the antitrust laws. But its conclusion cannot be squared with its own specific findings of fact. These findings include the essentials of a conspiracy within § 1 of the Sherman Act: that, in the summer of 1960 ,the Losor Chevrolet Dealers Association, "through some of its dealer members," complained to General Motors personnel about sales through discounters (Finding 34); that at a Losor meeting in November, 1960, the dealers there present agreed to embark on a letter-writing campaign directed at enlisting the aid of General Motors (Finding 35); that, in December and January, General Motors personnel discussed the matter with every Chevrolet dealer in the Los Angeles area and elicited from Page 384 U. S. 141 each a promise not to do business with the discounters (Finding 39); that representatives of the three associations of Chevrolet dealers met on December 15, 1960, and created a joint investigating committee (Finding 40); that the three associations then undertook jointly to police the agreements obtained from each of the dealers by General Motors; that the associations supplied information to General Motors for use by it in bringing wayward dealers into line, and that Chevrolet's O'Connor asked the associations to do so (Findings 41 and 42); that, as a result of this collaborative effort, a number of Chevrolet dealers were induced to repurchase cars they had sold through discounters and to promise to abjure such sales in future (Finding 42).These findings by the trial judge compel the conclusion that a conspiracy to restrain trade was proved. [Footnote 16] The Page 384 U. S. 142 error of the trial court lies in its failure to apply the correct and established standard for ascertaining the existence of a combination or conspiracy under § 1 of the Sherman Act. See United States v. Parke, Davis & Co., 362 U. S. 29, 362 U. S. 44-45. The trial court attempted to justify its conclusion on the following reasoning: that each defendant and alleged co-conspirator acted to promote its own self-interest; that General Motors, as well as the defendant associations and their members, has a lawful interest in securing compliance with the "location clause," and in thus protecting the franchise system of distributing automobiles business arrangements which the court deemed lawful and proper; and that, in seeking to vindicate these interests, the defendants and their alleged co-conspirators entered into no "agreements" among themselves, although they may have engaged in "parallel action."These factors do not justify the result reached. It is of no consequence, for purposes of determining whether there has been a combination or conspiracy under § 1 of the Sherman Act, that each party acted in its own lawful interest. Nor is it of consequence for this purpose whether the "location clause" and franchise system are lawful or economically desirable. And although we regard as clearly erroneous and irreconcilable with its other findings the trial court's conclusory "finding" that there had been no "agreement" among the defendants and their alleged co-conspirators, it has long been settled that explicit agreement is not a necessary part of a Sherman Page 384 U. S. 143 Act conspiracy -- certainly not where, as here, joint and collaborative action was pervasive in the initiation, execution, and fulfillment of the plan. United States v. Parke, Davis & Co., supra, at 362 U. S. 43; United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 321 U. S. 722-723; Federal Trade Comm'n v. Beech-Nut Packing Co., 257 U. S. 441, 257 U. S. 455.Neither individual dealers nor the associations acted independently or separately. The dealers collaborated, through the associations and otherwise, among themselves and with General Motors, both to enlist the aid of General Motors and to enforce dealers' promises to forsake the discounters. The associations explicitly entered into a joint venture to assist General Motors in policing the dealers' promises, and their joint proffer of aid was accepted and utilized by General Motors.Nor did General Motors confine its activities to the contractual boundaries of its relationships with individual dealers. As the trial court found (Finding 39), General Motors at no time announced that it would terminate the franchise of any dealer which furnished cars to the discounters. [Footnote 17] The evidence indicates that it had no intention of acting in this unilateral fashion. [Footnote 18] On the contrary, overriding corporate policy with respect to Page 384 U. S. 144 proper dealer relations [Footnote 19] dissuaded General Motors from engaging in this sort of wholly unilateral conduct, the validity of which under the antitrust laws was assumed, without being decided, in Parke Davis, supra.As Parke Davis had done, General Motors sought to elicit from all the dealers agreements, substantially interrelated and interdependent, that none of them would do business with the discounters. These agreements were hammered out in meetings between nonconforming dealers and officials of General Motors' Chevrolet Division, and in telephone conversations with other dealers. It was acknowledged from the beginning that substantial unanimity would be essential if the agreements were to be forthcoming. And once the agreements were secured, General Motors both solicited and employed the assistance of its alleged co-conspirators in helping to police them. What resulted was a fabric interwoven by many strands of joint action to eliminate the discounters from participation in the market, to inhibit the free choice of franchised dealers to select their own methods of trade, and to provide multilateral surveillance and enforcement. This process for achieving and enforcing the desired objective Page 384 U. S. 145 can by no stretch of the imagination be described as "unilateral" or merely "parallel." See Parke Davis, supra, at 362 U. S. 46; Federal Trade Comm'n v. Beech-Nut Packing Co., 257 U. S. 441, 257 U. S. 453; United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 321 U. S. 722-723; Interstate Circuit, Inc. v. United States, 306 U. S. 208, 306 U. S. 226; United States v. Masonite Corp., 316 U. S. 265, 316 U. S. 275; Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv.L.Rev. 655 (1962). [Footnote 20]There can be no doubt that the effect of the combination or conspiracy here was to restrain trade and commerce within the meaning of the Sherman Act. Elimination, by joint collaborative action, of discounters from access to the market is a per se violation of the Act.In Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207, the Court was confronted with the question whether"a group of powerful businessmen may act in concert to deprive a single merchant, like Klor, of the goods he needs to compete effectively."359 U.S. at 359 U. S. 210. The allegation was that manufacturers and distributors of electrical appliances had conspired among themselves and with a major retailer, Broadway-Hale,"either not to sell to Klor's (Broadway-Hale's next-door neighbor and competitor) or to sell to it only at discriminatory prices and highly unfavorable terms."359 U.S. at 359 U. S. 209. The Court concluded that the alleged group boycott of even a single trader violated the statute, [Footnote 21] without regard to the Page 384 U. S. 146 reasonableness of the conduct in the circumstances. Group boycotts of a trader, said the Court, are among those "classes of restraints which, from their "nature or character," were unduly restrictive. . . ." 359 U.S. at 359 U. S. 211. This was not new doctrine, for it had long been recognized that"there 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,"and that group boycotts are of this character. Northern Pac. R. Co. v. United States, 356 U. S. 1, 356 U. S. 5. See also Fashion Originators' Guild of America, Inc. v. Federal Trade Comm'n, 312 U. S. 457, and Eastern States Retail Lumber Dealers' Assn. v. United States, 234 U. S. 600, 234 U. S. 613-614, neither of which involved price-fixing.The principle of these cases is that, where businessmen concert their actions in order to deprive others of access to merchandise which the latter wish to sell to the public, we need not inquire into the economic motivation underlying their conduct. See Barber, Refusals To Deal Under the Federal Antitrust Laws, 103 U.Pa.L.Rev. 847, 872-885 (1955). Exclusion of traders from the market by means of combination or conspiracy is so inconsistent with the free market principles embodied in the Sherman Act that it is not to be saved by reference to the need for preserving the collaborators' profit margins or their system for distributing automobiles, any more than by reference to the allegedly tortious conduct against which a combination or conspiracy may be directed Page 384 U. S. 147 -- as in Fashion Originators' Guild of America, Inc. v. Federal Trade Comm'n, supra, at 312 U. S. 468.We note, moreover, that inherent in the success of the combination in this case was a substantial restraint upon price competition -- a goal unlawful per se when sought to be effected by combination or conspiracy. E.g., United States v. Parke, Davis & Co., 362 U. S. 29, 362 U. S. 47; United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 310 U. S. 223. And the per se rule applies even when the effect upon prices is indirect. Simpson v. Union Oil Co., 377 U. S. 13, 377 U. S. 16-22; Socony-Vacuum Oil Co., supra.There is in the record ample evidence that one of the purposes behind the concerted effort to eliminate sales of new Chevrolet cars by discounters was to protect franchised dealers from real or apparent price competition. The discounters advertised price savings. See n 7, supra. Some purchasers found and others believed that discount prices were lower than those available through the franchised dealers. Ibid. Certainly, complaints about price competition were prominent in the letters and telegrams with which the individual dealers and salesmen bombarded General Motors in November, 1960. [Footnote 22] (Finding 38.) And although the District Court found to the contrary, there is evidence in the record that General Motors itself was not unconcerned about the effect of discount sales upon general price levels. [Footnote 23] Page 384 U. S. 148The protection of price competition from conspiratorial restraint is an object of special solicitude under the antitrust laws. We cannot respect that solicitude by closing our eyes to the effect upon price competition of the removal from the market, by combination or conspiracy, of a class of traders. Nor do we propose to construe the Sherman Act to prohibit conspiracies to fix prices at which competitors may sell, but to allow conspiracies or combinations to put competitors out of business entirely.Accordingly, we reverse and remand to the United States District Court for the Southern District of California in order that it may fashion appropriate equitable relief. See United States v. Parke, Davis & Co., supra, at 362 U. S. 47-48.It is so ordered

U.S. Supreme CourtUnited States v. General Motors Corp., 384 U.S. 127 (1966)United States v. General Motors Corp.No. 46Argued December 9, 1965Decided April 28, 1966384 U.S. 127SyllabusThis is a civil action to enjoin General Motors Corporation (GM) and three associations of Chevrolet dealers in the Los Angeles area from participating in an alleged conspiracy to restrain in violation of § 1 of the Sherman Act by eliminating sales of new Chevrolets through "discount houses" and "referral services." The District Court found, among other things, that the Losor Chevrolet Dealers Association, in the summer of 1960, complained to GM personnel about sales to discounters; that at a Losor meeting in November, 1960, member dealers agreed to embark on a letter-writing campaign to enlist GM's aid; that, in December and January, GM personnel talked to every dealer in the area and obtained promises not to deal with discounters; that representatives of the three dealer associations met on December 15, 1960, and created a joint investigating committee; that the associations then undertook to police the agreements so obtained by GM; that the associations supplied information to GM for use in bringing wayward dealers into line, and that the Chevrolet zone manager asked them to do so; that, as a result, a number of dealers were induced to repurchase cars they had sold to discounters, and agreed to refrain from making such sales in the future; and that, by spring, 1961, sales through discounters seem to have ended. However, the District Court found no conspiracy in violation of the Sherman Act, holding that each alleged conspirator acted to promote its own self-interest, and that, in seeking to vindicate these interests, the alleged conspirators entered into no "agreements" among themselves, although they may have engaged in "parallel action."Held: this is a classic conspiracy in restraint of trade: joint, collaborative action by dealers, associations, and GM to eliminate a class of competitors by terminating dealings between them and a minority of Chevrolet dealers and to deprive franchised dealers of their freedom to deal through discounters if they so choose. Pp. 384 U. S. 138-148.(a) The District Court's conclusion that appellees' conduct did not amount to a conspiracy within the meaning of the Act was Page 384 U. S. 128 not the kind of factfinding shielded from review by the "clearly erroneous" test embodied in Rule 52(a) of the Federal Rules of Civil Procedure, since the question involved the application of a legal standard to undisputed facts, and since the bulk of the case was presented to the trial judge in the form of documents, depositions, and written statements. P. 384 U. S. 141, n. 16.(b) In determining whether there has been a conspiracy or combination under § 1 of the Sherman Act, it is of no consequence that each party acted in its own lawful interest or whether the franchise system is lawful or economically desirable. P. 384 U. S. 142.(c) Even if it were assumed that there had been no explicit agreement among the appellees and their alleged co-conspirators, such an agreement is not a necessary part of a Sherman Act conspiracy -- certainly not where, as here, joint and collaborative action was pervasive in the initiation, execution, and fulfillment of the plan. United States v. Parke, Davis & Co., 362 U. S. 29, 362 U. S. 43. Pp. 384 U. S. 142-143.(d) The joint and interrelated activities of GM and the co-conspirators in obtaining the agreements not to deal with discounters and in policing such agreements cannot be described as "unilateral" or merely "parallel." Pp. 384 U. S. 144-145.(e) The elimination, by joint collaborative action, of businessmen from access to the market is a per se violation of the Act. Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207. Pp. 384 U. S. 145-146.(f) The economic motivation of those who, by concerted action, seek to keep others from trading in the market is irrelevant. Pp. 384 U. S. 146-147.(g) Inherent in the success of the combination in this case was a substantial restraint upon price competition, a goal unlawful per se when sought to be effected by combination or conspiracy. United States v. Parke, Davis & Co., supra. P. 384 U. S. 147.234 F. Supp. 85, reversed and remanded. Page 384 U. S. 129

1998_98-591

istration, the DOT agency responsible for overseeing the motor carrier safety regulations, made a considered determination about the visual acuity level needed for safe operation of commercial motor vehicles in interstate commerce. In contrast, the regulatory record made it plain that the waiver program at issue in this case was simply an experiment proposed as a means of obtaining data, resting on a hypothesis whose confirmation or refutation would provide a factual basis for possibly relaxing existing standards. Pp. 570-576.(c) The ADA should not be read to require an employer to defend its decision not to participate in such an experiment. It is simply not credible that Congress enacted the ADA with the understanding that employers choosing to respect the Government's visual acuity regulation in the face of an experimental waiver might be burdened with an obligation to defend the regulation's application according to its own terms. pp. 577-578.143 F.3d 1228, reversed.SOUTER, J., delivered the opinion for a unanimous Court with respect to Parts I and III, and the opinion of the Court with respect to Part II, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concurring opinion, post, p. 578.Corbett Gordon argued the cause for petitioner. With her on the briefs were Heidi Guettler and Kelliss Collins.Scott N. Hunt argued the cause for respondent. With him on the brief was Richard C. Busse.Edward C. DuMont argued the cause for the United States et al. as amici curiae urging affirmance. On the brief were Solicitor General Waxman, Acting Assistant Attorney General Lee, Deputy Solicitor General Underwood, James A. Feldman, Jessica Dunsay Silver, Timothy J. Moran, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory. **Briefs of amici curiae urging reversal were filed for the American Trucking Associations, Inc., et al. by James D. Holzhauer, Timothy S. Bishop, and Robert Digges; for the Equal Employment Advisory Council et al. by Ann Elizabeth Reesman, Corrie L. Fischel, Stephen A. Bokat, and Robin S. Conrad; and for the United Parcel Service of America, Inc.,558JUSTICE SOUTER delivered the opinion of the Court. * The question posed is whether, under the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 327, as amended, 42 U. S. C. § 12101 et seq. (1994 ed. and Supp. III), an employer who requires as a job qualification that an employee meet an otherwise applicable federal safety regulation must justify enforcing the regulation solely because its standard may be waived in an individual case. We answer no.IIn August 1990, petitioner, Albertson's, Inc., a grocerystore chain with supermarkets in several States, hired respondent, Hallie Kirkingburg, as a truckdriver based at its Portland, Oregon, warehouse. Kirkingburg had more than a decade's driving experience and performed well when petitioner's transportation manager took him on a road test.Before starting work, Kirkingburg was examined to see if he met federal vision standards for commercial truckdrivers. 143 F.3d 1228, 1230-1231 (CA9 1998). For many decades the Department of Transportation and its predecessors have been responsible for devising these standards for individuals who drive commercial vehicles in interstate commerce.1 Since 1971, the basic vision regulation has required corrected distant visual acuity of at least 20/40 in each eyeby William J. Kilberg, Thomas G. Hungar, Pamela L. Hemminger, and Patricia S. Radez.Briefs of amici curiae urging affirmance were filed for Justice for All et al. by Catherine A. Hanssens, Beatrice Dohrn, Bennett Klein, and Wendy Parmet; for the National Employment Lawyers Association by Gary Phelan, Paula A. Brantner, and Daniel S. Goldberg; and for James Strickland, Sr., et al. by Douglas L. Parker.*JUSTICE STEVENS and JUSTICE BREYER join Parts I and III of this opinion.1 See Motor Carrier Act, § 204(a), 49 Stat. 546; Department of Transportation Act, § 6(e)(6)(C), 80 Stat. 939-940; 49 CFR § 1.4(c)(9) (1968); Motor Carrier Safety Act of 1984, § 206, 98 Stat. 2835, as amended, 49 U. S. C. § 31136(a)(3); 49 CFR § 1.48(aa) (1998).559and distant binocular acuity of at least 20/40. See 35 Fed. Reg. 6458, 6463 (1970); 57 Fed. Reg. 6793, 6794 (1992); 49 CFR § 391.41(b)(10) (1998).2 Kirkingburg, however, suffers from amblyopia, an uncorrectable condition that leaves him with 20/200 vision in his left eye and monocular vision in effect.3 Despite Kirkingburg's weak left eye, the doctor erroneously certified that he met the DOT's basic vision standards, and Albertson's hired him.4In December 1991, Kirkingburg injured himself on the job and took a leave of absence. Before returning to work in November 1992, Kirkingburg went for a further physical as required by the company. This time, the examining physician correctly assessed Kirkingburg's vision and explained that his eyesight did not meet the basic DOT standards. The physician, or his nurse, told Kirkingburg that in order to be legally qualified to drive, he would have to obtain a waiver of its basic vision standards from the DOT. See 1432 Visual acuity has a number of components but most commonly refers to "the ability to determine the presence of or to distinguish between more than one identifying feature in a visible target." G. von Noorden, Binocular Vision and Ocular Motility 114 (4th ed. 1990). Herman Snellen was a Dutch ophthalmologist who, in 1862, devised the familiar letter chart still used to measure visual acuity. The first figure in the Snellen score refers to distance between the viewer and the visual target, typically 20 feet. The second corresponds to the distance at which a person with normal acuity could distinguish letters of the size that the viewer can distinguish at 20 feet. See C. Snyder, Our Ophthalmic Heritage 97-99 (1967); D. Vaughan, T. Asburg, & P. Riordan-Eva, General Ophthalmology 30 (15th ed. 1999).3 "Amblyopia," derived from Greek roots meaning dull vision, is a general medical term for "poor vision caused by abnormal visual development secondary to abnormal visual stimulation." K. Wright et al., Pediatric Ophthalmology and Strabismus 126 (1995); see id., at 126-131; see also Von Noorden, supra, at 208-245.4 Several months later, Kirkingburg's vision was recertified by a physician, again erroneously. Both times Kirkingburg received certification although his vision as measured did not meet the DOT minimum requirement. See 143 F.3d 1228, 1230, and n. 2 (CA9 1998); App. 49-50, 297-298, 360-361.560F. 3d, at 1230; App. 284-285. The doctor was alluding to a scheme begun in July 1992 for giving DOT certification to applicants with deficient vision who had three years of recent experience driving a commercial vehicle without a license suspension or revocation, involvement in a reportable accident in which the applicant was cited for a moving violation, conviction for certain driving-related offenses, citation for certain serious traffic violations, or more than two convictions for any other moving violations. A waiver applicant had to agree to have his vision checked annually for deterioration, and to report certain information about his driving experience to the Federal Highway Administration (FHW A or Administration), the agency within the DOT responsible for overseeing the motor carrier safety regulations. See 57 Fed. Reg. 31458, 31460-31461 (1992).5 Kirkingburg applied for a waiver, but because he could not meet the basic DOT vision standard Albertson's fired him from his job as a truckdriver.6 In early 1993, after he had left Albertson's, Kirkingburg received a DOT waiver, but Albertson's refused to rehire him. See 143 F. 3d, at 1231.Kirkingburg sued Albertson's, claiming that firing him violated the ADA.7 Albertson's moved for summary judgment5 In February 1992, the FHWA issued an advance notice of proposed rulemaking to review its vision standards. See 57 Fed. Reg. 6793. Shortly thereafter, the FHWA announced its intent to set up a waiver program and its preliminary acceptance of waiver applications. See id., at 10295. It modified the proposed conditions for the waivers and requested comments in June. See id., at 23370. After receiving and considering the comments, the Administration announced its final decision to grant waivers in July.6 Albertson's offered Kirkingburg at least one and possibly two alternative jobs. The first was as a "yard hostler," a truckdriver within the premises of petitioner's warehouse property, the second as a tire mechanic. The company apparently withdrew the first offer, though the parties dispute the exact sequence of events. Kirkingburg turned down the second because it paid much less than driving a truck. See App. 14-16, 41-42.7The ADA provides: "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement,561solely on the ground that Kirkingburg was "not 'otherwise qualified' to perform the job of truck driver with or without reasonable accommodation." App. 39-40; see id., at 119. The District Court granted the motion, ruling that Albertson's had reasonably concluded that Kirkingburg was not qualified without an accommodation because he could not, as admitted, meet the basic DOT vision standards. The court held that giving Kirkingburg time to get a DOT waiver was not a required reasonable accommodation because the waiver program was "a flawed experiment that has not altered the DOT vision requirements." I d., at 120.A divided panel of the Ninth Circuit reversed. In addition to pressing its claim that Kirkingburg was not otherwise qualified, Albertson's for the first time on appeal took the position that it was entitled to summary judgment because Kirkingburg did not have a disability within the meaning of the Act. See id., at 182-185. The Court of Appeals considered but rejected the new argument, concluding that because Kirkingburg had presented "uncontroverted evidence" that his vision was effectively monocular, he had demonstrated that "the manner in which he sees differs significantly from the manner in which most people see." 143 F. 3d, at 1232. That difference in manner, the court held, was sufficient to establish disability. Ibid.The Court of Appeals then addressed the ground upon which the District Court had granted summary judgment, acknowledging that Albertson's consistently required its truckdrivers to meet the DOT's basic vision standards and that Kirkingburg had not met them (and indeed could not). The court recognized that the ADA allowed Albertson's to establish a reasonable job-related vision standard as a prerequisite for hiring and that Albertson's could rely on Government regulations as a basis for setting its standard. The court held, however, that Albertson's could not use compli-or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U. S. C. § 12112(a).562ance with a Government regulation as the justification for its vision requirement because the waiver program, which Albertson's disregarded, was "a lawful and legitimate part of the DOT regulatory scheme." I d., at 1236. The Court of Appeals conceded that Albertson's was free to set a vision standard different from that mandated by the DOT, but held that under the ADA, Albertson's would have to justify its independent standard as necessary to prevent "'a direct threat to the health or safety of other individuals in the workplace.'" Ibid. (quoting 42 U. S. C. § 12113(b)). Although the court suggested that Albertson's might be able to make such a showing on remand, 143 F. 3d, at 1236, it ultimately took the position that the company could not, interpreting petitioner's rejection of DOT waivers as flying in the face of the judgment about safety already embodied in the DOT's decision to grant them, id., at 1237.Judge Rymer dissented. She contended that Albertson's had properly relied on the basic DOT vision standards in refusing to accept waivers because, when Albertson's fired Kirkingburg, the waiver program did not rest upon "a rule or a regulation with the force of law," but was merely a way of gathering data to use in deciding whether to refashion the still-applicable vision standards. Id., at 1239.IIThough we need not speak to the issue whether Kirkingburg was an individual with a disability in order to resolve this case, that issue falls within the first question on which we granted certiorari,s 525 U. S. 1064 (1999), and we think it worthwhile to address it briefly in order to correct three missteps the Ninth Circuit made in its discussion of the matter. Under the ADA:8 "Whether a monocular individual is 'disabled' per se, under the Americans with Disabilities Act." Pet. for Cert. i (citation omitted).563"The term 'disability' means, with respect to an individual-"(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;"(B) a record of such an impairment; or"(C) being regarded as having such an impairment."42 U. s. C. § 12102(2).We are concerned only with the first definition.9 There is no dispute either that Kirkingburg's amblyopia is a physical impairment within the meaning of the Act, see 29 CFR § 1630.2(h)(1) (1998) (defining "physical impairment" as "[a]ny physiological disorder, or condition ... affecting one or more of the following body systems: ... special sense organs"), or that seeing is one of his major life activities, see § 1630.2(i) (giving seeing as an example of a major life activity).l0 The question is whether his monocular vision alone "substantially limits" Kirkingburg's seeing.In giving its affirmative answer, the Ninth Circuit relied on a regulation issued by the Equal Employment Opportunity Commission (EEOC), defining "substantially limits" as "[s]ignificantly restrict[s] as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the gen-9 The Ninth Circuit also discussed whether Kirkingburg was disabled under the third, "regarded as," definition of "disability." See 143 F. 3d, at 1233. Albertson's did not challenge that aspect of the Court of Appeals's decision in its petition for certiorari, and we therefore do not address it. See this Court's Rule 14.1(a); see also, e. g., Yee v. Escondido, 503 U. S. 519, 535 (1992).10 As the parties have not questioned the regulations and interpretive guidance promulgated by the EEOC relating to the ADA's definitional section, 42 U. S. C. § 12102, for the purposes of this case, we assume, without deciding, that such regulations are valid, and we have no occasion to decide what level of deference, if any, they are due, see Sutton v. United Airlines, Inc., ante, at 479-480.564eral population can perform that same major life activity." § 1630.2(j)(ii). The Ninth Circuit concluded that "the manner in which [Kirkingburg] sees differs significantly from the manner in which most people see" because, "[t]o put it in its simplest terms [he] sees using only one eye; most people see using two." 143 F. 3d, at 1232. The Ninth Circuit majority also relied on a recent Eighth Circuit decision, whose holding it characterized in similar terms: "It was enough to warrant a finding of disability ... that the plaintiff could see out of only one eye: the manner in which he performed the major life activity of seeing was different." Ibid. (characterizing Doane v. Omaha, 115 F.3d 624, 627-628 (1997)).11But in several respects the Ninth Circuit was too quick to find a disability. First, although the EEOC definition11 Before the Ninth Circuit, Albertson's presented the issue of Kirkingburg's failure to meet the Act's definition of disability as an alternative ground for affirmance, i. e., for a grant of summary judgment in the company's favor. It thus contended that Kirkingburg had "failed to produce any material issue of fact" that he was disabled. App. 182. Parts of the Ninth Circuit's discussion suggest that it was merely denying the company's request for summary judgment, leaving the issue open for factual development and resolution on remand. See, e. g., 143 F. 3d, at 1232 ("Albertson's first contends that Kirkingburg failed to raise a genuine issue of fact regarding whether he is disabled"); ibid. ("Kirkingburg has presented uncontroverted evidence showing that ... [his] inability to see out of one eye affects his peripheral vision and his depth perception"); ibid. ("if the facts are as Kirkingburg alleges"). Moreover the Government (and at times even Albertson's, see Pet. for Cert. 15) understands the Ninth Circuit to have been simply explaining why the company was not entitled to summary judgment on this score. See Brief for United States et al. as Amici Curiae 11, and n. 5 ("The Ninth Circuit therefore correctly declined to grant summary judgment to petitioner on the ground that monocular vision is not a disability"). Even if that is an accurate reading, the statements the Ninth Circuit made setting out the standards governing the finding of disability would have largely dictated the outcome. Whether one views the Ninth Circuit's opinion as merely denying summary judgment for the company or as tantamount to a grant of summary judgment for Kirkingburg, our rejection of the sweeping character of the Court of Appeals's pronouncements remains the same.565of "substantially limits" cited by the Ninth Circuit requires a "significant restrict[ion]" in an individual's manner of performing a major life activity, the court appeared willing to settle for a mere difference. By transforming "significant restriction" into "difference," the court undercut the fundamental statutory requirement that only impairments causing "substantial limitat[ions]" in individuals' ability to perform major life activities constitute disabilities. While the Act "addresses substantial limitations on major life activities, not utter inabilities," Bragdon v. Abbott, 524 U. S. 624, 641 (1998), it concerns itself only with limitations that are in fact substantial.Second, the Ninth Circuit appeared to suggest that in gauging whether a monocular individual has a disability a court need not take account of the individual's ability to compensate for the impairment. The court acknowledged that Kirkingburg's "brain has developed subconscious mechanisms for coping with [his] visual impairment and thus his body compensates for his disability." 143 F. 3d, at 1232. But in treating monocularity as itself sufficient to establish disability and in embracing Doane, the Ninth Circuit apparently adopted the view that whether "the individual had learned to compensate for the disability by making subconscious adjustments to the manner in which he sensed depth and perceived peripheral objects," 143 F. 3d, at 1232, was irrelevant to the determination of disability. See, e. g., Sutton v. United Air Lines, Inc., 130 F.3d 893, 901, n. 7 (CAlO 1997) (characterizing Doane as standing for the proposition that mitigating measures should be disregarded in assessing disability); EEOC v. Union Pacific R. Co., 6 F. Supp. 2d 1135, 1137 (Idaho 1998) (same). We have just held, however, in Sutton v. United Airlines, Inc., ante, at 482, that mitigating measures must be taken into account in judging whether an individual possesses a disability. We see no principled basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and566measures undertaken, whether consciously or not, with the body's own systems.Finally, and perhaps most significantly, the Court of Appeals did not pay much heed to the statutory obligation to determine the existence of disabilities on a case-by-case basis. The Act expresses that mandate clearly by defining "disability" "with respect to an individual," 42 U. S. C. § 12102(2), and in terms of the impact of an impairment on "such individual," § 12102(2)(A). See Sutton, ante, at 483; cf. 29 CFR pt. 1630, App. § 1630.2(j) (1998) ("The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual"); ibid. ("The determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis"). While some impairments may invariably cause a substantiallimitation of a major life activity, cf. Bragdon, supra, at 642 (declining to address whether HIV infection is a per se disability), we cannot say that monocularity does. That category, as we understand it, may embrace a group whose members vary by the degree of visual acuity in the weaker eye, the age at which they suffered their vision loss, the extent of their compensating adjustments in visual techniques, and the ultimate scope of the restrictions on their visual abilities. These variables are not the stuff of a per se rule. While monocularity inevitably leads to some loss of horizontal field of vision and depth perception,12 consequences the Ninth12 Individuals who can see out of only one eye are unable to perform stereopsis, the process of combining two retinal images into one through which two-eyed individuals gain much of their depth perception, particularly at short distances. At greater distances, stereopsis is relatively less important for depth perception. In their distance vision, monocular individuals are able to compensate for their lack of stereopsis to varying degrees by relying on monocular cues, such as motion parallax, linear perspective, overlay of contours, and distribution of highlights and shadows. See Von Noorden, supra n. 2, at 23-30; App. 300-302.567Circuit mentioned, see 143 F. 3d, at 1232, the court did not identify the degree of loss suffered by Kirkingburg, nor are we aware of any evidence in the record specifying the extent of his visual restrictions.This is not to suggest that monocular individuals have an onerous burden in trying to show that they are disabled. On the contrary, our brief examination of some of the medicalliterature leaves us sharing the Government's judgment that people with monocular vision "ordinarily" will meet the Act's definition of disability, Brief for United States et al. as Amici Curiae 11, and we suppose that defendant companies will often not contest the issue. We simply hold that the Act requires monocular individuals, like others claiming the Act's protection, to prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial.IIIPetitioner's primary contention is that even if Kirkingburg was disabled, he was not a "qualified" individual with a disability, see 42 U. S. C. § 12112(a), because Albertson's merely insisted on the minimum level of visual acuity set forth in the DOT's Motor Carrier Safety Regulations, 49 CFR § 391.41(b)(10) (1998). If Albertson's was entitled to enforce that standard as defining an "essential job functio[n] of the employment position," see 42 U. S. C. § 12111(8), that is the end of the case, for Kirkingburg concededly could not satisfy it.1313 Kirkingburg asserts that in showing that Albertson's initially allowed him to drive with a DOT certification, despite the fact that he did not meet the DOT's minimum visual acuity requirement, he produced evidence from which a reasonable juror could find that he satisfied the legitimate prerequisites of the job. See Brief for Respondent 36, 37; see also id., at 6. But petitioner's argument is a legal, not a factual, one. In any event, the ample evidence in the record on petitioner's policy of requiring adherence to minimum DOT vision standards for its truckdrivers, see, e. g.,568Under Title I of the ADA, employers may justify their use of "qualification standards ... that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability," so long as such standards are "job-related and consistent with business necessity, and ... performance cannot be accomplished by reasonable accommodation .... " § 12113(a). See also § 12112(b)(6) (defining discrimination to include "using qualification standards ... that screen out or tend to screen out an individual with a disability ... unless the standard ... is shown to be job-related for the position in question and is consistent with business necessity").14Kirkingburg and the Government argue that these provisions do not authorize an employer to follow even a facially applicable regulatory standard subject to waiver without making some enquiry beyond determining whether the applicant or employee meets that standard, yes or no. Before an employer may insist on compliance, they say, the employer must make a showing with reference to the particular job that the waivable regulatory standard is "jobrelated ... and ... consistent with business necessity," see § 12112(b)(6), and that after consideration of the capabilities of the individual a reasonable accommodation could not fairly resolve the competing interests when an applicant or employee cannot wholly satisfy an otherwise justifiable job qualification.App. 53, 55-56, 333, would bar any inference that petitioner's failure to detect the discrepancy between the level of visual acuity Kirkingburg was determined to have had during his first two certifications and the DOT's minimum visual acuity requirement raised a genuine factual dispute on this issue.14 The EEOC's regulations implementing Title I define "[q]ualification standards" to mean "the personal and professional attributes including the skill, experience, education, physical, medical, safety and other requirements established by a covered entity as requirements which an individual must meet in order to be eligible for the position held or desired." 29 CFR § 1630.2(q) (1998).569The Government extends this argument by reference to a further section of the statute, which at first blush appears to be a permissive provision for the employer's and the public's benefit. An employer may impose as a qualification standard "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace," § 12113(b), with "direct threat" being defined by the Act as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation," § 12111(3); see also 29 CFR § 1630.2(r) (1998). The Government urges us to read subsections (a) and (b) together to mean that when an employer would impose any safety qualification standard, however specific, tending to screen out individuals with disabilities, the application of the requirement must satisfy the ADA's "direct threat" criterion, see Brief for United States et al. as Amici Curiae 22. That criterion ordinarily requires "an individualized assessment of the individual's present ability to safely perform the essential functions of the job," 29 CFR § 1630.2(r) (1998), "based on medical or other objective evidence," Bragdon, 524 U. S., at 649 (citing School Bd. of Nassau Cty. v. Arline, 480 U. S. 273, 288 (1987)); see 29 CFR § 1630.2(r) (1998) (assessment of direct threat "shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence").1515 This appears to be the position taken by the EEOC in the Interpretive Guidance promulgated under its authority to issue regulations to carry out Title I of the ADA, 42 U. S. C. § 12116, see 29 CFR pt. 1630, App. §§ 1630.15(b) and (c) (1998) (requiring safety-related standards to be evaluated under the ADA's direct threat standard); see also App. § 1630.10 (noting that selection criteria that screen out individuals with disabilities, including "safety requirements, vision or hearing requirements," must be job-related, consistent with business necessity, and not amenable to reasonable accommodation); EEOC v. Exxon Corp., 1 F. Supp. 2d 635, 645 (ND Tex. 1998) (adopting the EEOC's position that safety-related qualification standards must meet the ADA's direct-threat standard). Although it might be questioned whether the Government's interpretation, which570Albertson's answers essentially that even assuming the Government has proposed a sound reading of the statute for the general run of cases, this case is not in the general run. It is crucial to its position that Albertson's here was not insisting upon a job qualification merely of its own devising, subject to possible questions about genuine appropriateness and justifiable application to an individual for whom some accommodation may be reasonable. The job qualification it was applying was the distant visual acuity standard of the Federal Motor Carrier Safety Regulations, 49 CFR § 391.41(b)(10) (1998), which is made binding on Albertson's by § 391.11: "[A] motor carrier shall not ... permit a person to drive a commercial motor vehicle unless that person is qualified to drive," by, among other things, meeting the physical qualification standards set forth in § 391.41. The validity of these regulations is unchallenged, they have the force of law, and they contain no qualifying language about individualized determinations.If we looked no further, there would be no basis to question petitioner's unconditional obligation to follow the regulations and its consequent right to do so. This, indeed, was the understanding of Congress when it enacted the ADA, see infra, at 573-574.16 But there is more: the waiver program.The Court of Appeals majority concluded that the waiver program "precludes [employers] from declaring that persons determined by DOT to be capable of performing the job of commercial truck driver are incapable of performing that job by virtue of their disability," and that in the face of a waivermight impose a higher burden on employers to justify safety-related qualification standards than other job requirements, is a sound one, we have no need to confront the validity of the reading in this case.16 The implementing regulations of Title I also recognize a defense to liability under the ADA that "a challenged action is required or necessitated by another Federal law or regulation," 29 CFR § 1630. 15(e) (1998). As the parties do not invoke this specific regulation, we have no occasion to consider its effect.571an employer "will not be able to avoid the [ADA's] strictures by showing that its standards are necessary to prevent a direct safety threat," 143 F. 3d, at 1237. The Court of Appeals thus assumed that the regulatory provisions for the waiver program had to be treated as being on par with the basic visual acuity regulation, as if the general rule had been modified by some different safety standard made applicable by grant of a waiver. Cf. Conroy v. Aniskoff, 507 U. S. 511, 515 (1993) (noting the" 'cardinal rule that a statute is to be read as a whole'" (quoting King v. St. Vincent's Hospital, 502 U. S. 215, 221 (1991))). On this reading, an individualized determination under a different substantive safety rule was an element of the regulatory regime, which would easily fit with any requirement of 42 U. S. C. §§ 12113(a) and (b) to consider reasonable accommodation. An employer resting solely on the federal standard for its visual acuity qualification would be required to accept a waiver once obtained, and probably to provide an applicant some opportunity to obtain a waiver whenever that was reasonably possible. If this was sound analysis, the District Court's summary judgment for Albertson's was error.But the reasoning underlying the Court of Appeals's decision was unsound, for we think it was error to read the regulations establishing the waiver program as modifying the content of the basic visual acuity standard in a way that disentitled an employer like Albertson's to insist on it. To be sure, this is not immediately apparent. If one starts with the statutory provisions authorizing regulations by the DOT as they stood at the time the DOT began the waiver program, one would reasonably presume that the general regulatory standard and the regulatory waiver standard ought to be accorded equal substantive significance, so that the content of any general regulation would as a matter of law be deemed modified by the terms of any waiver standard thus applied to it. Compare 49 U. S. C. App. § 2505(a)(3) (1988 ed.) ("Such regulation shall ... ensure that ... the physical572condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely"),17 with 49 U. S. C. App. § 2505(f) (1988 ed.) ("After notice and an opportunity for comment, the Secretary may waive, in whole or in part, application of any regulation issued under this section with respect to any person or class of persons if the Secretary determines that such waiver is not contrary to the public interest and is consistent with the safe operation of commercial motor vehicles").18 Safe operation is supposed to be the touchstone of regulation in each instance.As to the general visual acuity regulations in force under the former provision,19 affirmative determinations that the selected standards were needed for safe operation were indeed the predicates of the DOT action. Starting in 1937, the federal agencies authorized to regulate commercial motor vehicle safety set increasingly rigorous visual acuity standards, culminating in the current one, which has remained unchanged since it became effective in 1971.20 When17 This provision is currently codified at 49 U. S. C. § 31136(a)(3).18 Congress recently amended the waiver provision in the Transportation Equity Act for the 21st Century, Pub. L. 105-178, 112 Stat. 107. It now provides that the Secretary of Transportation may issue a 2-year renewable "exemption" if "such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption." See §4007, 112 Stat. 401, 49 U. S. C. § 31315(b) (1994 ed., Supp. IV).19 At the time the FHWA promulgated the current visual acuity standard, the agency was acting pursuant to § 204(a) of the Interstate Commerce Act, as amended by the Motor Carrier Act, 49 U. S. C. § 304(a) (1970 ed.), see n. 1, supra, which likewise required the agency to regulate to ensure "safety of operation."20 The Interstate Commerce Commission promulgated the first visual acuity regulations for interstate commercial drivers in 1937, requiring "[g]ood eyesight in both eyes (either with or without glasses, or by correction with glasses), including adequate perception of red and green colors." 2 Fed. Reg. 113120 (1937). In 1939, the vision standard was changed to require "visual acuity (either without glasses or by correction with glasses) of not less than 20/40 (Snellen) in one eye, and 20/100 (Snellen) in the other eye; form field of not less than 45 degrees in all meridians from the point of fixation; ability to distinguish red, green,573the FHWA proposed it, the agency found that "[a]ccident experience in recent years has demonstrated that reduction of the effects of organic and physical disorders, emotional impairments, and other limitations of the good health of drivers are increasingly important factors in accident prevention," 34 Fed. Reg. 9080, 9081 (1969) (Notice of Proposed Rule Making); the current standard was adopted to reflect the agency's conclusion that "drivers of modern, more complex vehicles" must be able to "withstand the increased physical and mental demands that their occupation now imposes." 35 Fed. Reg. 6458 (1970). Given these findings and "in the light of discussions with the Administration's medical advisers," id., at 6459, the FHWA made a considered determination about the level of visual acuity needed for safe operation of commercial motor vehicles in interstate commerce, an "area [in which] the risks involved are so well known and so serious as to dictate the utmost caution." I d., at 17419.For several reasons, one would expect any regulation governing a waiver program to establish a comparable substantive standard (albeit for exceptional cases), grounded on known facts indicating at least that safe operation would not be jeopardized. First, of course, safe operation was the criterion of the statute authorizing an administrative waiver scheme, as noted already. Second, the impetus to develop a waiver program was a concern that the existing substantive standard might be more demanding than safety required. When Congress enacted the ADA, it recognized that federal safety rules would limit application of the ADA as a matter of law. The Senate Labor and Human Resources Committee Report on the ADA stated that "a person with a disability applying for or currently holding a job subject to [DOT standards for drivers] must be able to satisfy these physical qualification standards in order to be considered a qualified individual with a disability under title I of this legislation."and yellow." 57 Fed. Reg. 6793-6794 (1992) (internal quotation marks omitted). In 1952, the visual acuity standard was strengthened to require at least 20/40 (Snellen) in each eye. Id., at 6794.574S. Rep. No. 101-116, pp. 27-28 (1998). The two primary House Committees shared this understanding, see H. R. Rep. No. 101-485, pt. 2, p. 57 (1990) (House Education and Labor Committee Report); id., pt. 3, at 34 (House Judiciary Committee Report). Accordingly, two of these Committees asked "the Secretary of Transportation [to] undertake a thorough review" of current knowledge about the capabilities of individuals with disabilities and available technological aids and devices, and make "any necessary changes" within two years of the enactment of the ADA. S. Rep. No. 101-116, at 27-28; see H. R. Rep. No. 101-485, pt. 2, at 57; see also id., pt. 3, at 34 (expressing the expectation that the Secretary of Transportation would "review these requirements to determine whether they are valid under this Act"). Finally, when the FHWA instituted the waiver program it addressed the statutory mandate by stating in its notice of final disposition that the scheme would be "consistent with the safe operation of commercial motor vehicles," just as 49 U. S. C. App. § 2505(f) (1988 ed.) required, 57 Fed. Reg. 31460 (1992).And yet, despite this background, the regulations establishing the waiver program did not modify the general visual acuity standards. It is not that the waiver regulations failed to do so in a merely formal sense, as by turning waiver decisions on driving records, not sight requirements. The FHW A in fact made it clear that it had no evidentiary basis for concluding that the pre-existing standards could be lowered consistently with public safety. When, in 1992, the FHWA published an "[a]dvance notice of proposed rulemaking" requesting comments "on the need, if any, to amend its driver qualification requirements relating to the vision standard," id., at 6793, it candidly proposed its waiver scheme as simply a means of obtaining information bearing on the justifiability of revising the binding standards already in place, see id., at 10295. The agency explained that the "object of the waiver program is to provide objective data575to be considered in relation to a rulemaking exploring the feasibility of relaxing the current absolute vision standards in 49 CFR part 391 in favor of a more individualized standard." Ibid. As proposed, therefore, there was not only no change in the unconditional acuity standards, but no indication even that the FHW A then had a basis in fact to believe anything more lenient would be consistent with public safety as a general matter. After a bumpy stretch of administrative procedure, see Advocates for Highway and Auto Safety v. FHWA, 28 F.3d 1288, 1290 (CADC 1994), the FHWA's final disposition explained again that the waivers were proposed as a way to gather facts going to the wisdom of changing the existing law. The waiver program "will enable the FHW A to conduct a study comparing a group of experienced, visually deficient drivers with a control group of experienced drivers who meet the current Federal vision requirements. This study will provide the empirical data necessary to evaluate the relationships between specific visual deficiencies and the operation of [commercial motor vehicles]. The data will permit the FHWA to properly evaluate its current vision requirement in the context of actual driver performance, and, if necessary, establish a new vision requirement which is safe, fair, and rationally related to the latest medical knowledge and highway technology." 57 Fed. Reg. 31458 (1992). And if all this were not enough to show that the FHWA was planning to give waivers solely to collect information, it acknowledged that a study it had commissioned had done no more than" 'illuminat[e] the lack of empirical data to establish a link between vision disorders and commercial motor vehicle safety,'" and" 'failed to provide a sufficient foundation on which to propose a satisfactory vision standard for drivers of [commercial motor vehicles] in interstate commerce,'" Advocates for Highway and Auto Safety, supra, at 1293 (quoting 57 Fed. Reg. 31458 (1992)).576In sum, the regulatory record made it plain that the waiver regulation did not rest on any final, factual conclusion that the waiver scheme would be conducive to public safety in the manner of the general acuity standards and did not purport to modify the substantive content of the general acuity regulation in any way. The waiver program was simply an experiment with safety, however well intended, resting on a hypothesis whose confirmation or refutation in practice would provide a factual basis for reconsidering the existing standards.2121 Though irrelevant to the disposition of this case, it is hardly surprising that two years after the events here the waiver regulations were struck down for failure of the FHWA to support its formulaic finding of consistency with public safety. See Advocates for Highway and Auto Safety v. FHWA, 28 F.3d 1288, 1289 (CADC 1994). On remand, the agency "revalidated" the waivers it had already issued, based in part on evidence relating to the safety of drivers in the program that had not been included in the record before the District of Columbia Circuit. See 59 Fed. Reg. 50887, 50889-50890 (1994); id., at 59386, 59389. In the meantime the FHWA has apparently continued to want things both ways. It has said publicly, based on a review of the data it collected from the waiver program itself, that the drivers who obtained such waivers have performed better as a class than those who satisfied the regulation. See id., at 50887, 50890. It has also recently noted that its medical panel has recommended "leaving the visual acuity standard unchanged," see 64 Fed. Reg. 16518 (1999) (citing F. Berson, M. Kuperwaser, L. Aiello, and J. Rosenberg, Visual Requirements and Commercial Drivers, Oct. 16, 1998), a recommendation which the FHWA has concluded supports its "view that the present standard is reasonable and necessary as a general standard to ensure highway safety." 64 Fed. Reg. 16518 (1999).The waiver program in which Kirkingburg participated expired on March 31, 1996, at which point the FHWA allowed all still-active participants to continue to operate in interstate commerce, provided they continued to meet certain medical and other requirements. See 61 Fed. Reg. 13338, 13345 (1996); 49 CFR § 391.64 (1998). The FHWA justified this decision based on the safety record of participants in the original waiver program. See 61 Fed. Reg. 13338, 13345 (1996). In the wake of a 1996 decision from the United States Court of Appeals for the Eighth Circuit requiring the FHW A to justify the exclusion of further participants in the waiver program, see Rauenhorst v. United States Dept. of Transporta-577Nothing in the waiver regulation, of course, required an employer of commercial drivers to accept the hypothesis and participate in the Government's experiment. The only question, then, is whether the ADA should be read to require such an employer to defend a decision to decline the experiment. Is it reasonable, that is, to read the ADA as requiring an employer like Albertson's to shoulder the general statutory burden to justify a job qualification that would tend to exclude the disabled, whenever the employer chooses to abide by the otherwise clearly applicable, unamended substantive regulatory standard despite the Government's willingness to waive it experimentally and without any finding of its being inappropriate? If the answer were yes, an employer would in fact have an obligation of which we can think of no comparable example in our law. The employer would be required in effect to justify de novo an existing and otherwise applicable safety regulation issued by the Government itself. The employer would be required on a caseby-case basis to reinvent the Government's own wheel when the Government had merely begun an experiment to provide data to consider changing the underlying specifications. And what is even more, the employer would be required to do so when the Government had made an affirmative record indicating that contemporary empirical evidence was hard to come by. It is simply not credible that Congress enacted the ADA (before there was any waiver program) with the understanding that employers choosing to respect the Government's sole substantive visual acuity regulation in thetion, FHWA, 95 F.3d 715, 723 (1996), the agency began taking new applicants for waivers, see, e. g., 63 Fed. Reg. 66226 (1998). The agency has now initiated a program under the authority granted in the Transportation Equity Act for the 21st Century, Pub. L. 105-178, 112 Stat. 107, to grant exemptions on a more regular basis, see 63 Fed. Reg. 67600 (1998) (interim final rule implementing the Transportation Equity Act for the 21st Century). The effect of the current exemption program has not been challenged in this case, and we have no occasion to consider it.578face of an experimental waiver might be burdened with an obligation to defend the regulation's application according to its own terms.The judgment of the Ninth Circuit is accordingly reversed.It is so ordered

OCTOBER TERM, 1998SyllabusALBERTSON'S, INC. v. KIRKINGBURGCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 98-591. Argued April 28, 1999-Decided June 22, 1999Before beginning a truckdriver's job with petitioner, Albertson's, Inc., in 1990, respondent, Kirkingburg, was examined to see if he met the Department of Transportation's basic vision standards for commercial truckdrivers, which require corrected distant visual acuity of at least 20/40 in each eye and distant binocular acuity of at least 20/40. Although he has amblyopia, an uncorrectable condition that leaves him with 20/200 vision in his left eye and thus effectively monocular vision, the doctor erroneously certified that he met the DOT standards. When his vision was correctly assessed at a 1992 physical, he was told that he had to get a waiver of the DOT standards under a waiver program begun that year. Albertson's, however, fired him for failing to meet the basic DOT vision standards and refused to rehire him after he received a waiver. Kirkingburg sued Albertson's, claiming that firing him violated the Americans with Disabilities Act of 1990 (ADA). In granting summary judgment for Albertson's, the District Court found that Kirkingburg was not qualified without an accommodation because he could not meet the basic DOT standards and that the waiver program did not alter those standards. The Ninth Circuit reversed, finding that Kirkingburg had established a disability under the Act by demonstrating that the manner in which he sees differs significantly from the manner in which most people see; that although the ADA allowed Albertson's to rely on Government regulations in setting a job-related vision standard, Albertson's could not use compliance with the DOT regulations to justify its requirement because the waiver program was a legitimate part of the DOT's regulatory scheme; and that although Albertson's could set a vision standard different from the DOT's, it had to justify its independent standard and could not do so here.Held:1. The ADA requires monocular individuals, like others claiming the Act's protection, to prove a disability by offering evidence that the extent of the limitation on a major life activity caused by their impairment is substantial. The Ninth Circuit made three missteps in determining that Kirkingburg's amblyopia meets the ADA's first definition of disability, i. e., a physical or mental impairment that "substantially limits" a major life activity, 42 U. S. C. § 12101(2)(A). First,556Syllabusalthough it relied on an Equal Employment Opportunity Commission regulation that defines "substantially limits" as requiring a "significant restrict[ion]" in an individual's manner of performing a major life activity, see 29 CFR § 1630.2(j)(ii), the court actually found that there was merely a significant "difference" between the manner in which Kirkingburg sees and the manner in which most people see. By transforming "significant restriction" into "difference," the court undercut the fundamental statutory requirement that only impairments that substantially limit the ability to perform a major life activity constitute disabilities. Second, the court appeared to suggest that it need not take account of a monocular individual's ability to compensate for the impairment, even though it acknowledged that Kirkingburg's brain had subconsciously done just that. Mitigating measures, however, must be taken into account in judging whether an individual has a disability, Sutton v. United Airlines, Inc., ante, at 482, whether the measures taken are with artificial aids, like medications and devices, or with the body's own systems. Finally, the Ninth Circuit did not pay much heed to the statutory obligation to determine a disability's existence on a case-by-case basis. See 42 U. S. C. § 12101(2). Some impairments may invariably cause a substantial limitation of a major life activity, but monocularity is not one of them, for that category embraces a group whose members vary by, e. g., the degree of visual acuity in the weaker eye, the extent of their compensating adjustments, and the ultimate scope of the restrictions on their visual abilities. Pp. 562-567.2. An employer who requires as a job qualification that an employee meet an otherwise applicable federal safety regulation does not have to justify enforcing the regulation solely because its standard may be waived experimentally in an individual case. Pp. 567-578.(a) Petitioner's job qualification was not of its own devising, but was the visual acuity standard of the Federal Motor Carrier Safety Regulations, and is binding on Albertson's, see 49 CFR § 391.11. The validity of these regulations is unchallenged, they have the force of law, and they contain no qualifying language about individualized determinations. Were it not for the waiver program, there would be no basis for questioning petitioner's decision, and right, to follow the regulations. pp. 567-570.(b) The regulations establishing the waiver program did not modify the basic visual acuity standard in a way that disentitles an employer like Albertson's to insist on the basic standard. One might assume that the general regulatory standard and the regulatory waiver standard ought to be accorded equal substantive significance, but that is not the case here. In setting the basic standards, the Federal Highway Admin-557Full Text of Opinion

1970_19

MR. JUSTICE HARLAN announced the judgment of the Court in an opinion joined by THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE MARSHALL.The Government directly appeals the order of the United States District Court for the District of Utah dismissing, on the ground of former jeopardy, an information charging the defendant appellee with willfully assisting in the preparation of fraudulent income tax returns, in violation of 26 U.S.C. § 7206(2).Appellee was originally charged in February 1968 with 25 counts of violating § 7206(2). He was brought to trial before Chief Judge Ritter on August 27, 1968. After the jury was chosen and sworn, 14 of the counts were dismissed on the Government's motion. The trial then commenced, the Government calling as its first witness an Internal Revenue Service agent in order to put in evidence the remaining 11 allegedly fraudulent income tax returns the defendant was charged with helping to prepare. At the trial judge's suggestion, these exhibits were stipulated to and introduced in evidence without objection. The Government's five remaining witnesses were taxpayers whom the defendant allegedly had aided in preparation of these returns.After the first of these witnesses was called, but prior to the commencement of direct examination, defense counsel suggested that these witnesses be warned of their constitutional rights. The trial court agreed, and proceeded, in careful detail, to spell out the witness' right Page 400 U. S. 473 not to say anything that might be used in a subsequent criminal prosecution against him and his right, in the event of such a prosecution, to be represented by an attorney. The first witness expressed a willingness to testify, and stated that he had been warned of his constitutional rights when the Internal Revenue Service first contacted him. The trial judge indicated, however, that he did not believe the witness had been given any warning at the time he was first contacted by the IRS, and refused to permit him to testify until he had consulted an attorney.The trial judge then asked the prosecuting attorney if his remaining four witnesses were similarly situated. The prosecutor responded that they had been warned of their rights by the IRS upon initial contact. The judge, expressing the view that any warnings that might have been given were probably inadequate, proceeded to discharge the jury; he then called all the taxpayers into court, and informed them of their constitutional rights and of the considerable dangers of unwittingly making damaging admissions in these factual circumstances. Finally, he aborted the trial so the witnesses could consult with attorneys.The case was set for retrial before another jury, but on pretrial motion by the defendant, Judge Ritter dismissed the information on the ground of former jeopardy. The Government filed a direct appeal to this Court, and we noted probable jurisdiction. 396 U.S. 810 (1969). The case was argued at the 1969 Term, and thereafter set for reargument at the present Term. 397 U.S. 1060 (1970).IAppellee contends, at the threshold, that our decision in United States v. Sisson, 399 U. S. 267, 399 U. S. 302-307 (1970), which followed our noting of probable jurisdiction in this case, forecloses appeal by the Government under Page 400 U. S. 474 the motion-in-bar provisions of 18 U.S.C. § 3731 prior to its recent amendment. [Footnote 1] The question was fully briefed and argued on reargument.The statute provided, in relevant part, for an appeal by the Government direct to the Supreme Court "[f]rom the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy." Appellee concedes, as indeed he must under the prior rulings of this Court, that his plea of former jeopardy constituted a "motion in bar" within the meaning of the statute. [Footnote 2] The issue is whether appellee had been "put in jeopardy" by virtue of the impaneling of the jury in the first proceeding before the declaration of mistrial. In Sisson, supra, the opinion of the Court [Footnote 3] -- in discussing the applicability of the motion-in-bar provision to the Government's direct appeal of the trial judge's actions there -- concluded, inter alia, that the "put in jeopardy" language applied whenever the jury had Page 400 U. S. 475 been impaneled, even if the defendant might constitutionally have been retried under the double jeopardy provisions of the Fifth Amendment. 399 U.S. at 399 U. S. 302-307. [Footnote 4]Here, the jury in the first proceeding had been impaneled before the mistrial ruling, but appellee's motion to dismiss on grounds of former jeopardy was made prior to the impaneling of the second jury. The Government contends that the impaneling of the jury must be understood to apply to the jury in the proceeding to which the plea of former jeopardy is offered as a bar, rather than the jury whose impaneling was, in the first instance, essential to sustain the plea on the merits. Appellee contends that the construction put on the statute in the Sisson opinion requires the conclusion that the Government may not appeal when a jury in the prior proceeding for the offense in question has been impaneled.We think the Government has the better of the argument. [Footnote 5] The Court's opinion in Sisson dealt with the problem presented by the trial judge's order purporting to arrest the entry of judgment on the guilty verdict Page 400 U. S. 476 returned by the very jury whose impaneling was claimed to constitute "jeopardy" within the meaning of the motion-in-bar provision. The conclusion that jeopardy had attached by the impaneling of the jury in that proceeding rested on the view that the Congress was concerned, in granting the Government appeal rights in certain classes of cases, to avoid subjecting the defendant to a second trial where the first trial had terminated in a manner favorable to the defendant either because of a jury verdict or because of judicial action. See Sisson, supra, at 397 U. S. 293-300. The "compromise origins" of the Criminal Appeals Act, see id. at 397 U. S. 307, reflected this concern, and that concern is an important consideration supporting the canon of strict construction traditionally applied to this statute. See id. at 397 U. S. 296-300; Will v. United States, 389 U. S. 90, 389 U. S. 96-98 (1967).In the mistrial situation, the judicial ruling that is chronologically analogous to the Sisson facts would be the declaration of a mistrial after the first jury has been impaneled. Obviously, the Government could not have appealed Judge Ritter's original declaration of mistrial. Since a mistrial ruling explicitly contemplates reprosecution of the defendant, the nonappealability of this judicial action fits with congressional action in excluding pleas in abatement from the class of cases warranting appellate review. The nonappealable status of rulings of this sort is fully explainable in terms of a policy disfavoring appeals from interlocutory rulings. See the discussion in Will v. United States, supra, at 389 U. S. 96-98.But it does not follow from the nonappealability of rulings which are essentially interlocutory insofar as they expressly contemplate resumption of the prosecution that Congress intended to foreclose governmental appeal from the sustaining of a later motion in bar on the trial judge's conclusion that constitutional double Page 400 U. S. 477 jeopardy policies require that the earlier mistrial ruling now be accorded the effect of barring reprosecution. Indeed, when we recall that pleas of former jeopardy were the paradigm illustrations of motions in bar at common law, see n 2, supra, it seems much more likely that the congressional decision to allow governmental appeals from the judge's decision sustaining a motion in bar was intended to permit review of later judicial action possibly premised on erroneous theories concerning constitutional effects attaching to the earlier interlocutory ruling.Consistently with the Court's opinion in Sisson, the sustaining of a motion in bar based on a plea of former jeopardy would be appealable as long as the motion in bar was sustained prior to the impaneling of the jury in the subsequent proceeding. [Footnote 6] Since Judge Ritter in Page 400 U. S. 478 this case dismissed the information on appellee's plea of former jeopardy prior to the impaneling of the second jury, we conclude that the decision is directly appealable by the Government as a motion in bar before the defendant was "put in jeopardy" within the meaning of the applicable statute. Hence, we proceed to the merits of appellee's claim that reprosecution after the declaration of mistrial in the earlier proceeding would violate his Fifth Amendment rights. [Footnote 7] Page 400 U. S. 479IIThe Fifth Amendment's prohibition against placing a defendant "twice in jeopardy" represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings. [Footnote 8] A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. Both of these considerations are expressed in Green v. United States, 355 U. S. 184, 355 U. S. 187-188 (1957), where the Court noted that the policy underlying this provision"is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty."These considerations have led this Court to conclude that a defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of the facts, whether the trier be a jury or a judge. See Green v. United States, supra, at 355 U. S. 188; Wade v. Hunter, 336 U. S. 684, 336 U. S. 688 (1949).But it is also true that a criminal trial is, even in the best of circumstances, a complicated affair to manage. The proceedings are dependent in the first instance on Page 400 U. S. 480 the most elementary sort of considerations, e.g., the health of the various witnesses, parties, attorneys, jurors, etc., all of whom must be prepared to arrive at the courthouse at set times. And when one adds the scheduling problems arising from case overloads, and the Sixth Amendment's requirement that the single trial to which the double jeopardy provision restricts the Government be conducted speedily, it becomes readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant's consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide. As the Court noted in Wade v. Hunter, supra, at 336 U. S. 689,"a defendant's valued right to have his trial completed by a particular tribunal must in some circumstances be subordinated to the public's interest in fair trials designed to end in just judgments."Thus, the conclusion that "jeopardy attaches" when the trial commences expresses a judgment that the constitutional policies underpinning the Fifth Amendment's guarantee are implicated at that point in the proceedings. The question remains, however, in what circumstances retrial is to be precluded when the initial proceedings are aborted prior to verdict without the defendant's consent.In dealing with that question, this Court has, for the most part, explicitly declined the invitation of litigants to formulate rules based on categories of circumstances which will permit or preclude retrial. Thus, in United States v. Perez, 9 Wheat. 579 (1824), this Court held that a defendant in a capital case might be retried after the trial judge had, without the defendant's consent, discharged a jury that reported itself unable to agree. Mr. Justice Story's opinion for the Court in Page 400 U. S. 481 Perez expressed the following thoughts on the problem of reprosecution after a mistrial had been declared without the consent of the defendant:"We think, that, in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject, and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes, and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life in favour of the prisoner. But, after all, they have the right to order the discharge, and the security which the public have for the faithful, sound, and conscientious exercise of this discretion rests, in this, as in other cases, upon the responsibility of the judges under their oaths of office."Id. at 22 U. S. 580.The Perez case has since been applied by this Court as a standard of appellate review for testing the trial judge's exercise of his discretion in declaring a mistrial without the defendant's consent. E.g., Simmons v. United States, 142 U. S. 148 (1891) (reprosecution not barred where mistrial declared because letter published in newspaper rendered juror's impartiality doubtful); Logan v. United States, 144 U. S. 263 (1892) (reprosecution not barred where jury discharged after 40 hours of deliberation for inability to reach a verdict); Thompson v. United States, 155 U. S. 271 (1894) (reprosecution Page 400 U. S. 482 not barred where jury discharged because one juror had served on grand jury indicting defendant); Wade v. Hunter, 336 U. S. 684 (1949) (retrial not barred where military court-martial discharged due to tactical necessity in the field). [Footnote 9]But a more recent case -- Gori v. United States, 367 U. S. 364 (1961) -- while adhering in the main to the Perez theme of a "manifest necessity" standard of appellate review -- does suggest the possibility of a variation on that theme according to a determination by the appellate court as to which party to the case was the beneficiary of the mistrial ruling. In Gori, the Court was called upon to review the action of a trial judge in discharging the jury when it appeared to the judge that the prosecution's questioning of a witness might lead to the introduction of evidence of prior crimes. We upheld reprosecution after the mistrial in an opinion which, while applying the principle of Perez, appears to tie the judgment that there was no abuse of discretion in these circumstances to the fact that the judge was acting "in the sole interest of the defendant." 367 U.S. at 367 U. S. 369; see also the dissenting opinion of MR. JUSTICE DOUGLAS, id. at 367 U. S. 370. [Footnote 10]In the instant case, the Government, relying principally on Gori, contends that, even if we conclude the trial judge here abused his discretion, reprosecution should be permitted because the judge's ruling "benefited" the defendant, and also clearly was not compelled by bad faith prosecutorial conduct aimed at triggering a mistrial in order to get another day in court. If the judgment as to who was "benefited" by the mistrial ruling turns on the appellate court's conclusion concerning Page 400 U. S. 483 which party the trial judge was, in point of personal motivation, trying to protect from prejudice, it seems reasonably clear from the trial record here that the judge's insistence on stopping the trial until the witnesses were properly warned was motivated by the desire to protect the witnesses, rather than the defendant. But the Government appears to view the question of "benefit" as turning on an appellate court's post hoc assessment as to which party would, in fact, have been aided in the hypothetical event that the witnesses had been called to the stand after consulting with their own attorneys on the course of conduct that would best serve to insulate them personally from criminal and civil liability for the fraudulent tax returns. That conception of benefit, however, involves nothing more than an exercise in pure speculation. In sum, we are unable to conclude on this record that this is a case of a mistrial made "in the sole interest of the defendant." See Gori v. United States, supra.Further, we think that a limitation on the "abuse of discretion" principle based on an appellate court's assessment of which side benefited from the mistrial ruling does not adequately satisfy the policies underpinning the double jeopardy provision. Reprosecution after a mistrial has unnecessarily been declared by the trial court obviously subjects the defendant to the same personal strain and insecurity regardless of the motivation underlying the trial judge's action. The Government contends, however, that the policies evinced by the double jeopardy provision do not reach this sort of injury; rather, the unnecessarily inflicted second trial must, in the Government's view, appear to be the result of a mistrial declaration which "unfairly aids the prosecution or harasses the defense." Govt. Brief 8.Certainly it is clear beyond question that the Double Jeopardy Clause does not guarantee a defendant that the Government will be prepared, in all circumstances, to Page 400 U. S. 484 vindicate the social interest in law enforcement through the vehicle of a single proceeding for a given offense. Thus, for example, reprosecution for the same offense is permitted where the defendant wins a reversal on appeal of a conviction. United States v. Ball, 163 U. S. 662 (1896); see Green v. United States, 355 U. S. 184, 355 U. S. 189 (1957). The determination to allow reprosecution in these circumstances reflects the judgment that the defendant's double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decisionmaking resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error. But it is also clear that recognition that the defendant can be reprosecuted for the same offense after successful appeal does not compel the conclusion that double jeopardy policies are confined to prevention of prosecutorial or judicial overreaching. For the crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that, in the first situation, the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant's consent, aborts the proceeding, the defendant has been deprived of his "valued right to have his trial completed by a particular tribunal." [Footnote 11] See Wade v. Hunter, 336 U.S. at 336 U. S. 689. Page 400 U. S. 485If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error. [Footnote 12] In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Perez, 9 Wheat. at 22 U. S. 580.The conscious refusal of this Court to channel the exercise of that discretion according to rules based on categories of circumstances, see Wade v. Hunter, 336 U.S. at 336 U. S. 691, reflects the elusive nature of the problem presented by judicial action foreclosing the defendant from going to his jury. But that discretion must still be exercised; unquestionably an important Page 400 U. S. 486 factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process. Yet we cannot evolve rules based on the source of the particular problem giving rise to a question whether a mistrial should or should not be declared, because, even in circumstances where the problem reflects error on the part of one counsel or the other, the trial judge must still take care to assure himself that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.In sum, counsel for both sides perform in an imperfect world; in this area, bright-line rules based on either the source of the problem or the intended beneficiary of the ruling would only disserve the vital competing interests of the Government and the defendant. The trial judge must recognize that lack of preparedness by the Government to continue the trial directly implicates policies underpinning both the double jeopardy provision and the speedy trial guarantee. Cf. Downum v. United States, 372 U. S. 734 (1963). Alternatively, the judge must bear in mind the potential risks of abuse by the defendant of society's unwillingness to unnecessarily subject him to repeated prosecutions. Yet, in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.IIIApplying these considerations to the record in this case, we must conclude that the trial judge here abused his discretion in discharging the jury. Despite assurances by both the first witness and the prosecuting attorney Page 400 U. S. 487 that the five taxpayers involved in the litigation had all been warned of their constitutional rights, the judge refused to permit them to testify, first expressing his disbelief that they were warned at all, and then expressing his views that any warnings that might have been given would be inadequate. App. 412. In probing the assumed inadequacy of the warnings that might have been given, the prosecutor was asked if he really intended to try a case for willfully aiding in the preparation of fraudulent returns on a theory that would not incriminate the taxpayers. When the prosecutor started to answer that he intended to do just that, the judge cut him off in midstream and immediately discharged the jury. App. 443. It is apparent from the record that no consideration was given to the possibility of a trial continuance; indeed, the trial judge acted so abruptly in discharging the jury that, had the prosecutor been disposed to suggest a continuance, or the defendant to object to the discharge of the jury, there would have been no opportunity to do so. When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial. United States v. Perez, 9 Wheat. at 22 U. S. 580. Therefore, we must conclude that, in the circumstances of this case, appellee's reprosecution would violate the double jeopardy provision of the Fifth Amendment.Affirmed

U.S. Supreme CourtUnited States v. Jorn, 400 U.S. 470 (1971)United States v. JornNo.19Argued January 12, 1970Reargued October 22, 1970Decided January 25, 1971400 U.S. 470SyllabusAppellee was tried in Federal District Court on an information charging him with willfully assisting in the preparation of fraudulent income tax returns. Following the impaneling of the jury, the prosecutor called to the stand a taxpayer whom appellee allegedly had aided in preparing his return. At defense counsel's suggestion, the judge warned the witness of his constitutional rights. The witness expressed his willingness to testify, stating that he had been warned of his rights when first contacted by the Internal Revenue Service (IRS). The judge refused to permit him to testify until he had consulted an attorney, indicating that he did not believe the witness had been warned by the IRS. Although the prosecutor advised the judge that the remaining witnesses had been warned of their rights by the IRS upon initial contact, the judge stated that the warnings were probably inadequate. Thereupon he discharged the jury and aborted the trial so that the witnesses could consult with attorneys. The case was set for retrial before another jury, but on appellee's pretrial motion, the judge dismissed the information on the ground of former jeopardy. The Government filed a direct appeal to this Court.Held: The judgment is affirmed. Pp. 400 U. S. 473-488.Affirmed.MR. JUSTICE HARLAN, joined by THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE MARSHALL, concluded that:l. The sustainment of a motion in bar based on a plea of former jeopardy is appealable by the Government, as long as the motion was sustained, as here, prior to the impaneling of the jury in the subsequent proceeding at which the motion was made. Cf. United States v. Sisson, 399 U. S. 267. Pp. 400 U. S. 473-478.2. The Fifth Amendment's Double Jeopardy Clause represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings. Pp. 400 U. S. 479-486.(a) Although it is recognized that a defendant can be reprosecuted after a successful appeal, double jeopardy policies are not Page 400 U. S. 471 confined to the prevention of prosecutorial or judicial overreaching. Pp. 400 U. S. 483-484.(b) The defendant has the option to have his case considered by the first jury, and where the judge, acting without defendant's consent, aborts the trial, the defendant has been deprived of his "valued right to have his trial completed by a particular tribunal." P. 400 U. S. 484.(c) In the absence of defendant's motion for a mistrial, the doctrine of "manifest necessity," United States v. Perez, 9 Wheat. 579, 22 U. S. 580, commands trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion warrants the conclusion that justice would not be served by a continuation of the trial. Pp. 400 U. S. 485-486.(d) A judge must temper the decision whether or not to abort the trial by considering the importance to the defendant of being able finally to conclude his confrontation with society through the verdict of a tribunal that he might believe is favorable to him. P. 400 U. S. 486.3. The trial judge here abused his discretion, and accordingly appellee's reprosecution would violate the Double Jeopardy Clause. Pp. 400 U. S. 486-487.MR. JUSTICE BLACK and MR. JUSTICE BRENNAN concluded that the Court lacks jurisdiction of the appeal under 18 U.S.C. § 3731 because the trial judge's action amounted to an acquittal, but they join the Court's judgment in view of the decision of a majority of the Court to reach the merits. Pp. 400 U. S. 487-488.STEWART, J., joined by WHITE and BLACKMUN, JJ., agree only that the Court has jurisdiction of the appeal, as concluded by HARLAN, J. See point 1 of syllabus, supra.HARLAN, J., announced the judgment of the Court in an opinion in which BURGER, C.J., and DOUGLAS and MARSHALL, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 400 U. S. 487. BLACK and BRENNAN, JJ., filed a statement concurring in the judgment, post, p. 400 U. S. 488. STEWART, J., filed a dissenting opinion in which WHITE and BLACKMUN, JJ., joined, post, p. 400 U. S. 488. Page 400 U. S. 472

1982_81-1370

JUSTICE BLACKMUN delivered the opinion of the Court.This case concerns the regulation by the State of Kansas of the price of natural gas sold at wellhead in the intrastate market. It presents a federal Contract Clause issue and a statutory issue.IOn September 27, 1975, The Kansas Power & Light Company (KPL), a public utility and appellee here, entered into two intrastate natural gas supply contracts with Clinton Oil Company, the predecessor-in-interest of appellant Energy Reserves Group, Inc. (ERG). Under the first contract, KPL agrees to purchase gas directly at the wellhead on the Spivey-Grabs Field in Kingman and Harper Counties in southern Kansas. The second contract obligates KPL to purchase from the same field residue gas, that is, gas remaining after certain recovery and processing steps are completed. The original contract price was $1.50 per thousand cubic feet (Mcf) of gas. The contracts continue in effect for the life of the field or for the life of the processing plants associated with the field.AEach contract contains two clauses known generically as indefinite price escalators. The first is a governmental price escalator clause; this provides that, if a governmental authority fixes a price for any natural gas that is higher than the price specified in the contract, the contract price shall be increased to that level. [Footnote 1] The second is a price redetermination Page 459 U. S. 404 clause; this gives ERG the option to have the contract price redetermined no more than once every two years. [Footnote 2] The new price is then set by averaging the prices being paid under three other gas contracts chosen by the parties.When the price is increased pursuant to either of these clauses, each contract requires KPL to seek from the Kansas Corporation Commission (Commission) approval to pass the increase through to consumers. App. to Juris.Statement 69a. The application for approval is to be submitted within 5 days after a price increase resulting from governmental action, Page 459 U. S. 405 or no fewer than 60 days before a price redetermination increase is to become effective. Ibid. If the Commission refuses to permit the pass-through and KPL elects not to pay the increase, ERG has the option to terminate the agreement on 30 days' written notice.Each contract states that the purpose of the price escalator clauses is "solely" to compensate ERG for "anticipated" increases in its operating costs and in the value of its gas. Id. at 70a. Each contract also provides: "Neither party shall be held in default for failure to perform hereunder if such failure is due to compliance with," ibid., any "relevant present and future state and federal laws." Id. at 69a.In 1977, ERG invoked the price redetermination clause, and the parties agreed on a price of $1.77 per Mcf, effective November 27 of that year. T he Commission approved the pass-through of this increase to consumers. KPL paid the new price through 1978. [Footnote 3]BOn December 1, 1978, the Natural Gas Policy Act of 1978 (Act), Pub.L. 95-621, 92 Stat. 3350, 15 U.S.C. § 3301 et seq. (1976 ed., Supp. V), designed in principal part to encourage increased natural gas production, became effective. The Act replaced the federal price controls that had been established under the Natural Gas Act, ch. 556, 52 Stat. 821, with price ceilings that rise monthly based on "an inflation adjustment factor" and other considerations. Different ceilings are set for different types of gas. Section 102 of the Act, 15 U.S.C. § 3312 (1976 ed., Supp. V), sets a gradually increasing ceiling price for newly discovered or newly produced natural gas. The December 1978 ceiling price under § 102 was Page 459 U. S. 406 $2.078 per million British thermal units. Section 104 sets ceiling prices for "old" interstate gas, that is, gas from already discovered and producing wells. Section 109 sets another ceiling price for categories of natural gas not covered by the other sections of the Act. As of December, 1978, the § 109 ceiling price was $1.63 per million Btu's.In another departure from the 1938 Natural Gas Act, the new Act extended federal price regulation to the intrastate gas market. See S.Conf.Rep. No. 95-1126, pp. 67-68 (1978); H.R. Conf Rep. No. 95-1752, pp. 67-68 (1978). Section 105 of the Act establishes the rule for applying price ceilings to intrastate gas, described as gas not committed to interstate commerce on November 8, 1978. [Footnote 4] It provides, in its subsection (b)(1), that the maximum lawful price of such gas"shall be the lower of . . . the price under the terms of the existing contract, to which such natural gas was subject on [November 9, 1978], . . . or . . . the maximum lawful price . . . computed for such month under section 102 (relating to new natural gas). [Footnote 5]"The parties agree that § 105(b)(1) governs these contracts.The Act, by § 602(a), also permits a State"to establish or enforce any maximum lawful price for the first sale of natural Page 459 U. S. 407 gas produced in such State which does not exceed the applicable maximum lawful price, if any, under title I of this Act."CIn direct response to the Act, the Kansas Legislature promptly imposed price controls on the intrastate gas market. In May, 1979, the Kansas Natural Gas Price Protection Act (Kansas Act), 1979 Kan.Sess.Laws, ch. 171, codified as Kan.Stat.Ann. §§ 55-1401 to 55-1415 (Supp.1982), was enacted. [Footnote 6] The Kansas Act applies only to natural gas contracts executed before April 20, 1977, § 55-1403, and controls natural gas prices until December 31, 1984, § 55-1411. Section 55-1404 prohibits consideration either of ceiling prices set by federal authorities or of prices paid in Kansas under other contracts in the application of governmental price escalator clauses and price redetermination clauses. [Footnote 7] Section Page 459 U. S. 408 55-1405 of the Kansas Act, however, permits indefinite price escalator clauses to operate after March 1, 1979, to raise the price of old intrastate gas up to the federal Act's § 109 ceiling price. Section § 55-1406 exempts new gas and gas from stripper wells.DOn November 20, 1978, ERG and other gas suppliers having similar contracts with KPL notified KPL that gas prices would be escalated to the § 102 price on December 1, pursuant to the governmental price escalator clause. KPL sought pass-through approval from the Commission for this increase by an application filed December 7, one day too late to satisfy the 5-day contractual requirement. KPL never elected to pay the higher price.On June 5, 1979, ERG notified KPL that it would terminate the contracts within 30 days because KPL had failed to apply to the Commission for pass-through authority within five days of December 1, 1978, had failed to obtain Commission approval, and had failed to pay the increased price ERG contends was required by the governmental price escalator clause. KPL's response was that the clause was not triggered by the Act, and that the Kansas Act prohibited its activation. ERG then filed an action in the District Court of Harper County, Kan., praying for a declaratory judgment that it had the contractual right to terminate the contracts.On July 24, in light of KPL's refusal to terminate, ERG requested an increase up to the Act's § 102 ceiling price under the price redetermination clause. The increase was to be effective in November, 1979, the next redetermination date possible under the contracts. KPL conceded that the price redetermination clause permitted such an increase, but contended that § 55-1404 of the Kansas Act had extinguished the utility's obligation to comply with that clause. ERG then filed an amended complaint, alleging that it was entitled to terminate the contracts because of KPL's refusal to redetermine Page 459 U. S. 409 the price. KPL counterclaimed for a declaratory judgment that the contracts were still in effect.On the parties' cross-motions for summary judgment, the state trial court held that the Act's imposition of price ceilings on intrastate gas did not trigger the governmental escalator clause. It also found that the Kansas Act did not violate the Contract Clause, reasoning that Kansas has a legitimate interest in addressing and controlling the serious economic dislocations that the sudden increase in gas prices would cause, and that the Kansas Act reasonably furthered that interest. App. to Juris.Statement 25a, 42a, 45a. The Supreme Court of Kansas, by unanimous vote, affirmed. 230 Kan. 176, 630 P.2d 1142 (1981). [Footnote 8] We noted probable jurisdiction. 456 U.S. 904 (1982).IIERG raises both statutory and constitutional issues in challenging the ruling of the Kansas Supreme Court. The constitutional issue is whether the Kansas Act impairs ERG's contracts with KPL in violation of the Contract Clause, U.S.Const., Art. I, § 10, cl. 1. [Footnote 9] The statutory issue is whether the federal enactment of § 105 triggered the governmental price escalator clause. As to the latter issue, if § 105's enactment did have that effect, ERG was entitled to a price increase on December 1, 1978. If not, ERG could rely only on the price redetermination clause for any increase. That clause could not be exercised until November, 1979. The Page 459 U. S. 410 statutory issue thus controls the timing of any increase. The constitutional issue, on the other hand, affects the price that ERG may claim under either clause. If ERG prevails, the price may be escalated to the § 102 ceiling; if ERG does not prevail, the price may be escalated only to the § 109 ceiling. We consider the Contract Clause issue first. [Footnote 10]AAlthough the language of the Contract Clause is facially absolute, its prohibition must be accommodated to the inherent police power of the State "to safeguard the vital interests of its people." Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 290 U. S. 434 (1934). In Blaisdell, the Court approved a Minnesota mortgage moratorium statute, even though the statute retroactively impaired contract rights. The Court balanced the language of the Contract Clause against the State's interest in exercising its police power, and concluded that the statute was justified. [Footnote 11]The Court in two recent cases has addressed Contract Clause claims. In United States Trust Co. v. New Jersey, 431 U. S. 1 (1977), the Court held that New Jersey could not retroactively alter a statutory bond covenant relied upon by bond purchasers. One year later, in Allied Structural Steel Co. v. Spannaus, 438 U. S. 234 (1978), the Court invalidated a Minnesota statute that required an employer who closed its office in the State to pay a "pension funding charge" if its Page 459 U. S. 411 pension fund at the time was insufficient to provide full benefits for all employees with at least 10 years' seniority. [Footnote 12] Although the legal issues and facts in these two cases differ in certain ways, they clarify the appropriate Contract Clause standard.The threshold inquiry is "whether the state law has, in fact, operated as a substantial impairment of a contractual relationship." Allied Structural Steel Co., 438 U.S. at 438 U. S. 244. See United States Trust Co., 431 U.S. at 431 U. S. 17. The severity of the impairment is said to increase the level of scrutiny to which the legislation will be subjected. Allied Structural Steel Co., 438 U.S. at 438 U. S. 245. Total destruction of contractual expectations is not necessary for a finding of substantial impairment. United States Trust Co., 431 U.S. at 431 U. S. 26-27. On the other hand, state regulation that restricts a party to gains it reasonably expected from the contract does not necessarily constitute a substantial impairment. Id. at 431 U. S. 31, citing El Paso v. Simmons, 379 U. S. 497, 379 U. S. 515 (1965). In determining the extent of the impairment, we are to consider whether the industry the complaining party has entered has been regulated in the past. Allied Structural Steel Co., 438 U.S. at 438 U. S. 242, n. 13, citing Veix v. Sixth Ward Bldg. & Loan Assn., 310 U. S. 32, 310 U. S. 38 (1940) ("When he purchased into an enterprise already regulated in the particular to which he now objects, he purchased subject to further legislation upon the same topic"). The Court long ago observed:"One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them."Hudson Water Co. v. McCarter, 209 U. S. 349, 209 U. S. 357 (1908).If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, United Page 459 U. S. 412 States Trust Co., 431 U.S. at 431 U. S. 22, such as the remedying of a broad and general social or economic problem. Allied Structural Steel Co., 438 U.S. at 438 U. S. 247, 438 U. S. 249. Furthermore, since Blaisdell, the Court has indicated that the public purpose need not be addressed to an emergency or temporary situation. United States Trust Co., 431 U.S. at 431 U. S. 22, n. 19; Veix v. Sixth Ward Bldg. & Loan Assn., 310 U.S. at 310 U. S. 39-40. One legitimate state interest is the elimination of unforeseen windfall profits. United States Trust Co., 431 U.S. at 431 U. S. 31, n. 30. The requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests. [Footnote 13]Once a legitimate public purpose has been identified, the next inquiry is whether the adjustment of"the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation's] adoption."United States Trust Co., 431 U.S. at 431 U. S. 22. Unless the State itself is a contracting party, see id. at 431 U. S. 23, [Footnote 14]"[a]s is customary in reviewing Page 459 U. S. 413 economic and social regulation, . . . courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure."Id. at 431 U. S. 22-23.BThe threshold determination is whether the Kansas Act has impaired substantially ERG's contractual rights. Significant here is the fact that the parties are operating in a heavily regulated industry. [Footnote 15] See Veix v. Sixth Ward Bldg. & Loan Assn., 310 U.S. at 310 U. S. 38. State authority to regulate natural gas prices is well established. See Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U. S. 179 (1950). [Footnote 16] At the time of the execution of these contracts, Kansas did not regulate natural gas prices specifically, [Footnote 17] but its supervision Page 459 U. S. 414 of the industry was extensive and intrusive. [Footnote 18] Moreover, under the authority of § 5(a) of the 1938 Natural Gas Act, the Federal Power Commission (FPC) set "just and reasonable" rates for prices of gas both at the wellhead and in pipelines. Although prices in the intrastate market have diverged somewhat from those in the interstate market due to the recent shortage of natural gas, [Footnote 19] the regulation of interstate prices effectively limits intrastate price increases. [Footnote 20] Page 459 U. S. 415It is in this context that the indefinite escalator clauses at issue here are to be viewed. In drafting each of the contracts, the parties included a statement of intent, which made clear that the escalator clause was designed to guarantee price increases consistent with anticipated increases in the value of ERG's gas. App. to Juris.Statement 70a. While it is not entirely inconceivable that ERG in September, 1975, anticipated the deregulation of gas prices introduced by the Act in 1978, we think this is highly unlikely, and we read the statement of intent to refer to nothing more than changes in value resulting from changes in the federal regulator's "just and reasonable" rates. In exchange for these anticipated increases, KPL agreed to accept gas from the Spivey-Grabs field for the lifetime of that field. Thus, at the time of the execution of the contracts, ERG did not expect to receive deregulated prices. The very existence of the governmental price escalator clause and the price redetermination clause indicates that the contracts were structured against the background of regulated gas prices. If deregulation had not occurred, the contracts undoubtedly would have called for a much smaller price increase than that provided by the Kansas Act's adoption of the § 109 ceiling. [Footnote 21] Page 459 U. S. 416Moreover, the contracts expressly recognize the existence of extensive regulation by providing that any contractual terms are subject to relevant present and future state and federal law. [Footnote 22] This latter provision could be interpreted to incorporate all future state price regulation, and thus dispose of the Contract Clause claim. Regardless of whether this interpretation is correct, [Footnote 23] the provision does suggest that ERG knew its contractual rights were subject to alteration by state price regulation. Price regulation existed and was foreseeable as the type of law that would alter contract obligations. Reading the Contract Clause as ERG does would mean that indefinite price escalator clauses could exempt ERG from any regulatory limitation of prices whatsoever. Such a result cannot be permitted. Hudson Water Co. v. McCarter, 209 U.S. at 209 U. S. 357. In short, ERG's reasonable expectations have not been impaired by the Kansas Act. See El Paso v. Simmons, 379 U.S. at 379 U. S. 515.CTo the extent, if any, the Kansas Act impairs ERG's contractual interests, the Kansas Act rests on, and is prompted by, significant and legitimate state interests. Kansas has Page 459 U. S. 417 exercised its police power to protect consumers from the escalation of natural gas prices caused by deregulation. The State reasonably could find that higher gas prices have caused and will cause hardship among those who use gas heat but must exist on limited fixed incomes.The State also has a legitimate interest in correcting the imbalance between the interstate and intrastate markets by permitting intrastate prices to rise only to the § 109 level. By slowly deregulating interstate prices, the Act took the cap off intrastate prices as well. [Footnote 24] The Kansas Act attempts to coordinate the intrastate and interstate prices by supplementing the federal Act's regulation of intrastate gas. Congress specifically contemplated such action:"The conference agreement provides that nothing in this Act shall affect the authority of any State to establish or enforce any maximum lawful price for sales of gas in intrastate commerce which does not exceed the applicable maximum lawful price, if any, under Title I of this Act. This authority extends to the operation of any indefinite price escalator clause."S.Conf.Rep. No. 95-1126, pp. 124-125 (1978); H.R.Conf.Rep. No. 951752, pp. 124-125 (1978). There can be little doubt about the legitimate public purpose behind the Act. [Footnote 25] Page 459 U. S. 418Nor are the means chosen to implement these purposes deficient, particularly in light of the deference to which the Kansas Legislature's judgment is entitled. On the surface, the State's Act seems limited to altering indefinite price escalation clauses of intrastate contracts that affect less than 10% of the natural gas consumed in Kansas. Tr. of Oral Arg. 16. To analyze properly the Kansas Act's effect, however, we must consider the entire state and federal gas price regulatory structure. Only natural gas subject to indefinite price escalator clauses poses the danger of rapidly increasing prices in Kansas. Gas under contracts with fixed escalator clauses and interstate gas purchased by the utilities subject to § 109 would not escalate as would intrastate gas subject to indefinite price escalator clauses. The Kansas Act simply brings the latter category into line with old interstate gas prices by limiting the operation of the indefinite price escalator clauses.The Kansas Act also rationally exempts the types of new gas the production of which Congress sought to encourage through the higher § 102 prices. Finally, the Act is a temporary measure that expires when federal price regulation of certain categories of gas terminates. The Kansas statute Page 459 U. S. 419 completes the regulation of the gas market by imposing gradual escalation mechanisms on the intrastate market, consistent with the new national policy toward gas regulation.We thus resolve the constitutional issue against ERG.IIIWe turn to ERG's statutory contention that the Kansas courts misconstrued § 105 as fixing the contract price at the November 9, 1978, level. While, on this point, the opinion of the Kansas Supreme Court is not entirely clear to us, it does not appear so to construe § 105. And KPL, in fact, does not contend that it did. Instead, the court recognized that § 105 permits the indefinite price escalator clauses to continue to operate to raise the contract price up to the lawful ceiling. See Pennzoil Co. v. FERC, 645 F.2d 360, 379 (CA5 1981) ("[T]he NGPA does not preclude escalation of area rate clauses [a type of indefinite price escalators] to NGPA prices"), cert. denied, 454 U.S. 1142 (1982).The actual point of dispute is whether the governmental price escalator clauses in these contracts were triggered by the enactment of § 105. The Kansas Supreme Court acknowledged that the Act could trigger a governmental price escalator clause. 230 Kan. at 184, 630 P.2d at 1149. In this case, however, it held that "[t]he NGPA did not trigger a price increase because the contracts herein did not contain a sufficient escalation mechanism." Id. at 185, 630 P.2d at 1150. We agree that, as a matter of federal statutory interpretation, the Act does not trigger such clauses automatically. See 44 Fed.Reg. 16895, 16904 (1979). [Footnote 26] Section 105(b)(1) provides that the ceiling price shall be the lower of Page 459 U. S. 420 the § 102 price and"the price under the terms of the existing contract, to which such natural gas was subject on [November 9, 1978], as such contract was in effect on such date."By this language, Congress set a ceiling for the operation of contractual provisions; it did not prescribe a price:"[T]he price under the contract may escalate through the operation of both fixed price escalator clauses and indefinite price escalator clauses in existence as of the date of enactment, but the price may not exceed the new gas price [provided by § 102].""* * * *" ". . . The conferees do not intend that the mere establishment of the ceiling prices under this Act shall trigger indefinite price escalator clauses in existing intrastate contracts."S.Conf.Rep. No. 95-1126, pp. 8283 (1978); H.R.Conf.Rep. No. 95-1752, pp. 82-83 (1978). See Pennzoil Co. v. FERC, 645 F.2d at 379.The Kansas Supreme Court relied on its prior decision in Mesa Petroleum Co. v. Kansas Power & Light Co., 229 Kan. 631, 629 P.2d 190, clarified, 230 Kan. 166, 630 P.2d 1129 (1981), cert. denied, 455 U.S. 928 (1982), which interpreted the effect of § 105 on a similar contract provision. In that decision, it read § 105 to set the lawful ceiling at the lower price provided by the contract. In light of our discussion above, we view this reading of the federal statute as unassailable. The Kansas Supreme Court's further holding in this case that these particular governmental price escalator clauses were insufficient to escalate the gas price is an interpretation of state law to which, of course, we defer.IVThe regulation of energy production and use is a matter of national concern. Congress set out on a new path with the Natural Gas Policy Act of 1978. In pursuing this path, Congress explicitly envisioned that the States would regulate intrastate Page 459 U. S. 421 markets in accordance with the overall national policy. The Kansas Natural Gas Price Protection Act is one State's effort to balance the need to provide incentives for the production of gas against the need to protect consumers from hardships brought on by deregulation of a traditionally regulated commodity. We see no constitutional or statutory infirmity in Kansas' attempt. The judgment of the Supreme Court of Kansas is thereforeAffirmed

U.S. Supreme CourtEnergy Reserves Group v. Kansas P. & L. Co., 459 U.S. 400 (1983)Energy Reserves Group, Inc. v. Kansas City Power & Light Co.No. 81-1370Argued November 9, 1982Decided January 24, 1983459 U.S. 400SyllabusIn 1975, appellee public utility entered into two intrastate contracts with appellant's predecessor-in-interest to purchase wellhead and residue gas from a certain gas field. Each contract contains a "governmental price escalator clause," which provides that, if any governmental authority fixes a price for any natural gas that is higher than the contract price, the contract price shall be increased to that level, and a "price redetermination clause," which gives appellant the option to have the contract price redetermined no more than once every two years by averaging the prices being paid under three other gas contracts chosen by the parties. If the price is increased pursuant to either clause, each contract requires appellee, within specified time periods, to seek from the Kansas Corporation Commission (Commission) approval to pass the increase through to consumers. If pass-through approval is refused and appellee elects not to pay the increase, appellant has the option to terminate the agreement. Pursuant to the price redetermination clauses, the parties agreed on a higher price to be effective November 27, 1977, the Commission approved the pass-through of the increase to consumers, and appellee paid the new price through 1978. Effective December 1, 1978, the Natural Gas Policy Act of 1978 replaced earlier federal price controls for interstate natural gas with gradually increasing price ceilings, including a ceiling for newly discovered or newly produced gas (§ 102) and a lower ceiling for categories of gas not otherwise covered by the Act (§ 109). The Act also extended federal price regulation to the intrastate gas market, providing in § 105(b)(1) that the ceiling price for intrastate gas shall be the lower of the § 102 price and "the price under the terms of the existing contract, to which such natural gas was subject on [November 9, 1978]." As authorized by the federal Act, the Kansas Natural Gas Price Protection Act was enacted in May, 1979, imposing price controls on the intrastate gas market with regard to contracts executed before April 20, 1977, and prohibiting consideration either of ceiling prices set by federal authorities or of prices paid in Kansas under other contracts in the application of governmental price escalator and price redetermination clauses. However, the Kansas Act permits indefinite price escalator clauses to operate after March 1, 1979, to raise the price of "old" intrastate gas up to the federal Act's § 109 ceiling price. In November, 1978, Page 459 U. S. 401 appellant notified appellee that gas prices would be escalated to the § 102 price pursuant to the governmental price escalator clauses, but appellee, after failing to obtain pass-through approval because of its failure to file a timely application with the Commission, elected not to pay the higher price, and appellant then sought to terminate the contracts. When appellee contended that the governmental price escalator clauses were not triggered by the federal Act, and that the Kansas Act prohibited their activation, appellant filed suit in a Kansas state court, seeking a declaratory judgment that it had the contractual right to terminate the contracts. Appellee later rejected appellant's request under the price redetermination clauses for a price increase, to be effective in November, 1979, contending that the Kansas Act had extinguished appellee's obligation to comply with those clauses. Appellant then filed an amended complaint, alleging that it was entitled to terminate the contracts because of appellee's refusal to redetermine the price. Appellee counterclaimed for a declaratory judgment that the contracts were still in effect. The trial court entered summary judgment for appellee, holding that the federal Act's imposition of price ceilings on intrastate gas did not trigger the governmental price escalator clauses, and that the Kansas Act did not violate the Contract Clause of the Federal Constitution. The Kansas Supreme Court affirmed.Held:1. The Kansas Act does not impair appellant's contracts with appellee in violation of the Contract Clause, and thus the contract price may be escalated under either escalator clause only to the ceiling under § 109 of the federal Act, not to the § 102 ceiling. Pp. 459 U. S. 409-419.(a) The Contract Clause's prohibition of any state law impairing the obligation of contracts must be accommodated to the State's inherent police power to safeguard the vital interests of its people. The threshold inquiry is "whether the state law has, in fact, operated as a substantial impairment of a contractual relationship." Allied Structural Steel Co. v. Spannaus, 438 U. S. 234, 438 U. S. 244. If a substantial impairment is found, the State, in justification, must have a significant and legitimate public purpose behind the regulation. Once such a purpose has been identified, the adjustment of the contracting parties' rights and responsibilities must be based upon reasonable conditions, and must be of a character appropriate to the public purpose justifying the legislation's adoption. Pp. 459 U. S. 410-413.(b) Here, the Kansas Act has not impaired substantially appellant's contractual rights. The parties are operating in a heavily regulated industry, and the statement of intent in their contracts made clear that the escalator clauses were designed to guarantee price increases consistent with anticipated regulated increases in the value of appellant's gas, not Page 459 U. S. 402 that appellant expected to receive deregulated prices. Moreover, the contract provision making any contractual term subject to relevant present and future state and federal law suggests that appellant knew its contractual rights were subject to alteration by state price regulation. Pp. 459 U. S. 413-416.(c) To the extent, if any, the Kansas Act impairs appellant's contractual interests, it rests on significant state interests in protecting consumers from the escalation of natural gas prices caused by deregulation, and in correcting the imbalance between the interstate and intrastate markets by permitting the intrastate prices to rise only to the § 109 level. Nor are the means chosen to implement these purposes deficient, particularly in light of the deference to which the Kansas Legislature's judgment is entitled. Pp. 459 U. S. 416-419.2. The Kansas Supreme Court did not err in holding that the enactment of § 105 of the federal Act did not trigger the governmental price escalator clauses in these contracts so as to entitle appellant to a price increase on December 1, 1978. As a matter of federal statutory interpretation, the federal Act does not trigger such clauses automatically. By the language of § 105(b)(1), Congress set a ceiling for the operation of contractual provisions; it did not prescribe a price. And the Kansas Supreme Court's holding that the particular governmental price escalator clauses involved here were insufficient to escalate the gas price is an interpretation of state law to which this Court defers. Pp. 459 U. S. 419-420.230 Kan. 176, 630 P.2d 1142, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, STEVENS, and O'CONNOR, JJ., joined, and in all but Part II-C of which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined. POWELL, J., filed an opinion concurring in part, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 459 U. S. 421. Page 459 U. S. 403

1985_85-62

JUSTICE BLACKMUN delivered the opinion of the Court.Once again, a little fish has caused a commotion. See Hughes v. Oklahoma, 441 U. S. 322 (1979); TVA v. Hill, 437 U. S. 153 (1978); Cappaert v. United States, 426 U. S. 128 (1976). The fish in this case is the golden shiner, a species of minnow commonly used as live bait in sport fishing.Appellee Robert J. Taylor (hereafter Taylor or appellee) operates a bait business in Maine. Despite a Maine statute prohibiting the importation of live baitfish, [Footnote 1] he arranged to have 158,000 live golden shiners delivered to him from outside the State. The shipment was intercepted, and a federal grand jury in the District of Maine indicted Taylor for violating and conspiring to violate the Lacey Act Amendments of 1981, 95 Stat. 1073, 16 U.S.C. §§ 3371-3378. Section 3(a)(2)(A) of those Amendments, 16 U.S.C. § 3372(a)(2)(A), makes it a federal crime"to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce . . . any fish or wildlife taken, possessed, transported, Page 477 U. S. 133 or sold in violation of any law or regulation of any State or in violation of any foreign law."Taylor moved to dismiss the indictment on the ground that Maine's import ban unconstitutionally burdens interstate commerce, and therefore may not form the basis for a federal prosecution under the Lacey Act. Maine, pursuant to 28 U.S.C. § 2403(b), intervened to defend the validity of its statute, arguing that the ban legitimately protects the State's fisheries from parasites and nonnative species that might be included in shipments of live baitfish. The District Court found the statute constitutional, and denied the motion to dismiss. United States v. Taylor, 585 F. Supp. 393 (Me.1984). Taylor then entered a conditional plea of guilty pursuant to Federal Rule of Criminal Procedure 11(a)(2), reserving the right to appeal the District Court's ruling on the constitutional question. The Court of Appeals for the First Circuit reversed, agreeing with Taylor that the underlying state statute impermissibly restricts interstate trade. United States v. Taylor, 752 F.2d 757 (1985). Maine appealed. We set the case for plenary review and postponed consideration of Taylor's challenges to our appellate jurisdiction. 474 U.S. 943 (1985).IMaine invokes our jurisdiction under 28 U.S.C. § 1254(2), which authorizes an appeal as of right to this Court"by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States."Appellee, however, contends that this provision applies only to civil cases, and that, in any event, Maine lacks standing to appeal the reversal of a federal conviction. These contentions both relate to the unusual procedural posture of the case: an appeal by a State from the reversal of a federal conviction based on a violation of state law. We consider them in turn.First, despite its procedural peculiarities, this case fits squarely within the plain terms of § 1254(2): Maine relies on a state statute that the Court of Appeals held to be unconstitutional. Page 477 U. S. 134 Although statutes authorizing appeals as of right to this Court are strictly construed, see, e.g., Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 247 (1984), nothing in the language or legislative history of § 1254(2) suggests that its scope is limited to civil litigation. In arguing for such a limitation, appellee relies principally on the fact that §§ 1254(1) and (3) -- which authorize discretionary review of cases from the Courts of Appeals by writ of certiorari and certification, respectively -- both apply explicitly to "any civil or criminal case." [Footnote 2] Since this express language is absent from § 1254(2), appellee contends that Congress must have intended this Court's appellate jurisdiction over cases from the courts of appeals to remain limited to civil cases, as indeed it was limited prior to the 1925 enactment of § 1254's predecessor. [Footnote 3] Page 477 U. S. 135We find the argument unconvincing. While some statutes governing this Court's jurisdiction, such as §§ 1254(1) and (3), expressly apply to both civil and criminal cases, others are explicitly limited to civil actions. See, e.g., 28 U.S.C. §§ 1252 and 1253. The absence of either sort of provision from § 1254(2) hardly demonstrates that Congress had only civil cases in mind, and we see no reason to read such a limitation into the straightforward and unambiguous terms of the statute. This is not a situation where "the sense of the statute and the literal language are at loggerheads," or where adherence to the plain terms of the statute "would confer upon this Court a jurisdiction beyond what "naturally and properly belongs to it."'" Heckler v. Edwards, 465 U. S. 870, 465 U. S. 879 (1984), quoting Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73, 362 U. S. 94 (1960) (Frankfurter, J., dissenting), in turn quoting American Security & Trust Co. v. District of Columbia, 224 U. S. 491, 495 (1912). Section 1254(2) serves to ensure that a state statute is struck down by the federal judiciary only when it is found invalid by this Court, or when the parties acquiesce in the decision of a lower federal court. Federal nullification of a state statute is a grave matter, whether it occurs in civil litigation or in the course of a criminal prosecution, and review by this Court is particularly warranted in either event. [Footnote 4] Page 477 U. S. 136Appellee's second jurisdictional argument is based on the fact that the only appellant before this Court is the State of Maine -- only an intervenor in the District Court -- not the United States, which brought the original prosecution. [Footnote 5] Since the United States and its attorneys have the sole power to prosecute criminal cases in the federal courts, appellee contends that Maine may not seek review of the Court of Appeals' reversal of his conviction. By statute, however, Maine intervened with "all the rights of a party," 28 U.S.C. § 2403(b), [Footnote 6] and appeals may be taken to this Court under § 1254(2) by any "party relying on a State statute" held invalid under federal law by a Court of Appeals. We previously have recognized that intervenors in lower federal courts may seek review in this Court on their own, so long as they have "a sufficient stake in the outcome of the controversy" to satisfy the constitutional requirement of genuine adversity. Bryant v. Yellen, 447 U. S. 352, 447 U. S. 368 (1980); see Page 477 U. S. 137 also, e.g., Diamond v. Charles, 476 U. S. 54, 476 U. S. 68 (1986). Maine's stake in the outcome of this litigation is substantial: if the judgment of the Court of Appeals is left undisturbed, the State will be bound by the conclusive adjudication that its import ban is unconstitutional. See, e.g., Stoll v. Gottlieb, 305 U. S. 165 (1938). And although private parties, and perhaps even separate sovereigns, have no legally cognizable interest in the prosecutorial decisions of the Federal Government, cf., e.g., Diamond v. Charles, supra, at 476 U. S. 64-65; Linda R. S. v. Richard D., 410 U. S. 614, 410 U. S. 619 (1973), a State clearly has a legitimate interest in the continued enforceability of its own statutes, see Diamond v. Charles, supra, at 476 U. S. 65; Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 458 U. S. 601 (1982). Furthermore, because reversal of the judgment of the Court of Appeals would result in the automatic reinstatement of appellee's guilty plea, the controversy before us clearly remains live notwithstanding the Federal Government's decision to abandon its own appeal. [Footnote 7] We turn to the merits.IIThe Commerce Clause of the Constitution grants Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Art. I, § 8, cl. 3."Although the Clause thus speaks in terms of powers bestowed upon Congress, the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade."Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 447 U. S. 35 (1980). Maine's statute restricts interstate trade in the most direct manner possible, blocking all inward shipments of live baitfish at the State's border. Still, as both the District Court and the Court of Page 477 U. S. 138 Appeals recognized, this fact alone does not render the law unconstitutional. The limitation imposed by the Commerce Clause on state regulatory power "is by no means absolute," and"the States retain authority under their general police powers to regulate matters of 'legitimate local concern,' even though interstate commerce may be affected."Id. at 447 U. S. 36.In determining whether a State has overstepped its role in regulating interstate commerce, this Court has distinguished between state statutes that burden interstate transactions only incidentally and those that affirmatively discriminate against such transactions. While statutes in the first group violate the Commerce Clause only if the burdens they impose on interstate trade are "clearly excessive in relation to the putative local benefits," Pike v. Bruce Church, Inc., 397 U. S. 137, 397 U. S. 142 (1970), statutes in the second group are subject to more demanding scrutiny. The Court explained in Hughes v. Oklahoma, 441 U.S. at 441 U. S. 336, that once a state law is shown to discriminate against interstate commerce "either on its face or in practical effect," the burden falls on the State to demonstrate both that the statute "serves a legitimate local purpose" and that this purpose could not be served as well by available nondiscriminatory means. See also e.g., Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941, 957 (1982); Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333, 432 U. S. 353 (1977); Dean Milk Co. v. Madison, 340 U. S. 349, 340 U. S. 354 (1951).The District Court and the Court of Appeals both reasoned correctly that, since Maine's import ban discriminates on its face against interstate trade, it should be subject to the strict requirements of Hughes v. Oklahoma, notwithstanding Maine's argument that those requirements were waived by the Lacey Act Amendments of 1981. It is well established that Congress may authorize the States to engage in regulation that the Commerce Clause would otherwise forbid. See, e.g., Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 325 U. S. 769 (1945). But because of the important role Page 477 U. S. 139 the Commerce Clause plays in protecting the free flow of interstate trade, this Court has exempted state statutes from the implied limitations of the Clause only when the congressional direction to do so has been "unmistakably clear." South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82, 467 U. S. 91 (1984). The 1981 Amendments of the Lacey Act clearly provide for federal enforcement of valid state and foreign wildlife laws, but Maine identifies nothing in the text or legislative history of the Amendments that suggests Congress wished to validate state laws that would be unconstitutional without federal approval.Before this Court, Maine concedes that the Lacey Act Amendments do not exempt state wildlife legislation from scrutiny under the Commerce Clause. See Reply Brief for Appellant 3, n. 2. The State insists, however, that the Amendments should lower the intensity of the scrutiny that would otherwise be applied. We do not agree. An unambiguous indication of congressional intent is required before a federal statute will be read to authorize otherwise invalid state legislation, regardless of whether the purported authorization takes the form of a flat exemption from Commerce Clause scrutiny or the less direct form of a reduction in the level of scrutiny. Absent "a clear expression of approval by Congress," any relaxation in the restrictions on state power otherwise imposed by the Commerce Clause unacceptably increases "the risk that unrepresented interests will be adversely affected by restraints on commerce." South-Central Timber, supra, at 467 U. S. 92.In this case, there simply is no unambiguous statement of any congressional intent whatsoever "to alter the limits of state power otherwise imposed by the Commerce Clause," United States v. Public Utilities Comm'n of California, 345 U. S. 295, 345 U. S. 304 (1953). In arguing to the contrary, Maine relies almost exclusively on the following findings in the Senate Report on the Lacey Act Amendments: Page 477 U. S. 140"It is desirable to extend protection to species of wildlife not now covered by the Lacey Act, and to plants which are presently not covered at all. States and foreign government are encouraged to protect a broad variety of species. Legal mechanisms should be supportive of those governments."S.Rep. No. 97-123, pp. 3-4 (1981).Maine reads this passage, particularly the last sentence, to direct federal courts to treat state wildlife laws more leniently. We find this interpretation not only less than obvious, but positively strained; by far the more natural reading of the last sentence is that it refers only to the availability of federal investigative and prosecutorial resources to enforce valid state wildlife laws. The passage certainly does not make "unmistakably clear" that Congress intended in 1981 to alter in any way the level of Commerce Clause scrutiny applied to those laws. Maine's ban on the importation of live baitfish thus is constitutional only if it satisfies the requirements ordinarily applied under Hughes v. Oklahoma to local regulation that discriminates against interstate trade: the statute must serve a legitimate local purpose, and the purpose must be one that cannot be served as well by available nondiscriminatory means.IIIThe District Court found after an evidentiary hearing that both parts of the Hughes test were satisfied, but the Court of Appeals disagreed. We conclude that the Court of Appeals erred in setting aside the findings of the District Court. To explain why, we need to discuss the proceedings below in some detail.AThe evidentiary hearing on which the District Court based its conclusions was one before a Magistrate. Three scientific experts testified for the prosecution, and one for the defense. The prosecution experts testified that live baitfish imported Page 477 U. S. 141 into the State posed two significant threats to Maine's unique and fragile fisheries. [Footnote 8] First, Maine's population of wild fish -- including its own indigenous golden shiners -- would be placed at risk by three types of parasites prevalent in out-of-state baitfish, but not common to wild fish in Maine. See, e.g.,App. 39-55. [Footnote 9] Second, nonnative species inadvertently included in shipments of live baitfish could disturb Maine's aquatic ecology to an unpredictable extent by competing with native fish for food or habitat, by preying on native species, or by disrupting the environment in more subtle ways. See, e.g., id. at 59-70, 141-149. [Footnote 10]The prosecution experts further testified that there was no satisfactory way to inspect shipments of live baitfish for parasites or commingled species. [Footnote 11] According to their testimony, the small size of baitfish and the large quantities in which they are shipped made inspection for commingled species "a physical impossibility." Id. at 81. [Footnote 12] Parasite inspection posed a separate set of difficulties because the examination procedure required destruction of the fish. Id. at 81-82, Page 477 U. S. 142 195. Although statistical sampling and inspection techniques had been developed for salmonids (i.e., salmon and trout), so that a shipment could be certified parasite-free based on a standardized examination of only some of the fish, no scientifically accepted procedures of this sort were available for baitfish. See, e.g., id. at 71, 184, 193-194. [Footnote 13]Appellee's expert denied that any scientific justification supported Maine's total ban on the importation of baitfish. Id. at 241. He testified that none of the three parasites discussed by the prosecution witnesses posed any significant threat to fish in the wild, id. at 206-212, 228-232, and that sampling techniques had not been developed for baitfish precisely because there was no need for them. Id. at 265-266. He further testified that professional baitfish farmers raise their fish in ponds that have been freshly drained to ensure that no other species is inadvertently collected. Id. at 239-240.Weighing all the testimony, the Magistrate concluded that both prongs of the Hughes test were satisfied, and accordingly that appellee's motion to dismiss the indictment should be denied. Appellee filed objections, but the District Court, after an independent review of the evidence, reached the same conclusions. First, the court found that Maine "clearly has a legitimate and substantial purpose in prohibiting the importation of live bait fish," because "substantial uncertainties" surrounded the effects that baitfish parasites would have on the State's unique population of wild fish, and the consequences of introducing nonnative species were similarly Page 477 U. S. 143 unpredictable. 585 F. Supp. at 397. [Footnote 14] Second, the court concluded that less discriminatory means of protecting against these threats were currently unavailable, and that, in particular, testing procedures for baitfish parasites had not yet been devised. Id. at 398. Even if procedures of this sort could be effective, the court found that their development probably would take a considerable amount of time. Id. at 398, n. 11. [Footnote 15]Although the Court of Appeals did not expressly set aside the District Court's finding of a legitimate local purpose, it noted that several factors "cast doubt" on that finding. 752 F.2d at 762. First, Maine was apparently the only State to bar all importation of live baitfish. See id. at 761. Second, Maine accepted interstate shipments of other freshwater fish, subject to an inspection requirement. Third, "an aura Page 477 U. S. 144 of economic protectionism" surrounded statements made in 1981 by the Maine Department of Inland Fisheries and Wildlife in opposition to a proposal by appellee himself to repeal the ban. Ibid. Finally, the court noted that parasites and nonnative species could be transported into Maine in shipments of nonbaitfish, and that nothing prevented fish from simply swimming into the State from New Hampshire. Id. at 762, n. 12.Despite these indications of protectionist intent, the Court of Appeals rested its invalidation of Maine's import ban on a different basis, concluding that Maine had not demonstrated that any legitimate local purpose served by the ban could not be promoted equally well without discriminating so heavily against interstate commerce. Specifically, the court found it "difficult to reconcile" Maine's claim that it could not rely on sampling and inspection with the State's reliance on similar procedures in the case of other freshwater fish. Id. at 762. [Footnote 16]Following the reversal of appellee's conviction, Maine and the United States petitioned for rehearing on the ground that the Court of Appeals had improperly disregarded the District Court's findings of fact. The court denied the petitions, concluding that, since the unavailability of a less discriminatory alternative "was a mixed finding of law and fact," a reviewing court "was free to examine carefully the factual record and to draw its own conclusions." Id. at 765.BAlthough the proffered justification for any local discrimination against interstate commerce must be subjected to "the strictest scrutiny," Hughes v. Oklahoma, 441 U.S. at 441 U. S. 337, the empirical component of that scrutiny, like any other form of factfinding, "is the basic responsibility of district courts, Page 477 U. S. 145 rather than appellate courts,'" Pullman-Standard v. Swint, 456 U. S. 273, 456 U. S. 291 (1982), quoting DeMarco v. United States, 415 U. S. 449, 415 U. S. 450, n. (1974). As this Court frequently has emphasized, appellate courts are not to decide factual questions de novo, reversing any findings they would have made differently. See, e.g., Anderson v. Bessemer City, 470 U. S. 564, 470 U. S. 573 (1985); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 395 U. S. 123 (1969). The Federal Rules of Criminal Procedure contain no counterpart to Federal Rule of Civil Procedure 52(a), which expressly provides that findings of fact made by the trial judge "shall not be set aside unless clearly erroneous." But the considerations underlying Rule 52(a) -- the demands of judicial efficiency, the expertise developed by trial judges, and the importance of firsthand observation, see Anderson, supra, at 470 U. S. 574-575 -- all apply with full force in the criminal context, at least with respect to factual questions having nothing to do with guilt. Accordingly, the "clearly erroneous" standard of review long has been applied to nonguilt findings of fact by district courts in criminal cases. See Campbell v. United States, 373 U. S. 487, 373 U. S. 493 (1963); 2 C. Wright, Federal Practice and Procedure § 374 (2d ed.1982). We need not decide now whether all such findings should be reviewed under the "clearly erroneous" standard, because appellee concedes that the standard applies to the factual findings made by the District Court in this case. See Tr. of Oral Arg. 27. We note, however, that no broader review is authorized here simply because this is a constitutional case, or because the factual findings at issue may determine the outcome of the case. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 466 U. S. 501 (1984); Pullman-Standard v. Swint, 456 U.S. at 456 U. S. 287. [Footnote 17] Page 477 U. S. 146No matter how one describes the abstract issue whether "alternative means could promote this local purpose as well without discriminating against interstate commerce," Hughes v. Oklahoma, 441 U.S. at 441 U. S. 336, the more specific question whether scientifically accepted techniques exist for the sampling and inspection of live baitfish is one of fact, and the District Court's finding that such techniques have not been devised cannot be characterized as clearly erroneous. Indeed, the record probably could not support a contrary finding. Two prosecution witnesses testified to the lack of such procedures, and appellee's expert conceded the point, although he disagreed about the need for such tests. See App. 74-75, 184, 265-266. That Maine has allowed the importation of other freshwater fish after inspection hardly demonstrates that the District Court clearly erred in crediting the corroborated and uncontradicted expert testimony that standardized inspection techniques had not yet been developed for baitfish. This is particularly so because the text of the permit statute suggests that it was designed specifically to regulate importation of salmonids, for which, the experts testified, testing procedures had been developed. [Footnote 18] Page 477 U. S. 147Before this Court, appellee does not argue that sampling and inspection procedures already exist for baitfish; he contends only that such procedures "could be easily developed." Brief for Appellee 25. Perhaps this is also what the Court of Appeals meant to suggest. Unlike the proposition that the techniques already exist, the contention that they could readily be devised enjoys some support in the record. Appellee's expert testified that developing the techniques "would just require that those experts in the field . . . get together and do it." App. 271. He gave no estimate of the time and expense that would be involved, however, and one of the prosecution experts testified that development of the testing procedures for salmonids had required years of heavily financed research. See id. at 74. In light of this testimony, we cannot say that the District Court clearly erred in concluding, 585 F. Supp. at 398, n. 11, that the development of sampling and inspection techniques for baitfish could be expected to take a significant amount of time.More importantly, we agree with the District Court that the "abstract possibility," id. at 398, of developing acceptable testing procedures, particularly when there is no assurance as to their effectiveness, does not make those procedures an "[a]vailabl[e] . . . nondiscriminatory alternativ[e]," Hunt, 432 U.S. at 432 U. S. 353, for purposes of the Commerce Clause. A State must make reasonable efforts to avoid restraining the free flow of commerce across its borders, but it is not required to develop new and unproven means of protection at an uncertain cost. Appellee, of course, is free to work on his own or in conjunction with other bait dealers to develop scientifically acceptable sampling and inspection procedures for golden shiners; if and when such procedures are developed, Maine no longer may be able to justify its import ban. The State need not join in those efforts, however, and it need not pretend they already have succeeded. Page 477 U. S. 148CAlthough the Court of Appeals did not expressly overturn the District Court's finding that Maine's import ban serves a legitimate local purpose, appellee argues as an alternative ground for affirmance that this finding should be rejected. After reviewing the expert testimony presented to the Magistrate, however, we cannot say that the District Court clearly erred in finding that substantial scientific uncertainty surrounds the effect that baitfish parasites and nonnative species could have on Maine's fisheries. Moreover, we agree with the District Court that Maine has a legitimate interest in guarding against imperfectly understood environmental risks, despite the possibility that they may ultimately prove to be negligible."[T]he constitutional principles underlying the commerce clause cannot be read as requiring the State of Maine to sit idly by and wait until potentially irreversible environmental damage has occurred or until the scientific community agrees on what disease organisms are or are not dangerous before it acts to avoid such consequences."585 F. Supp. at 397.Nor do we think that much doubt is cast on the legitimacy of Maine's purposes by what the Court of Appeals took to be signs of protectionist intent. Shielding in-state industries from out-of-state competition is almost never a legitimate local purpose, and state laws that amount to "simple economic protectionism" consequently have been subject to a "virtually per se rule of invalidity." Philadelphia v. New Jersey, 437 U. S. 617, 437 U. S. 624 (1978); accord, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 449 U. S. 471 (1981). [Footnote 19] But Page 477 U. S. 149 there is little reason in this case to believe that the legitimate justifications the State has put forward for its statute are merely a sham or a "post hoc rationalization." Hughes, 441 U.S. at 441 U. S. 338, n. 20. In suggesting to the contrary, the Court of Appeals relied heavily on a 3-sentence passage near the end of a 2,000-word statement submitted in 1981 by the Maine Department of Inland Fisheries and Wildlife in opposition to appellee's proposed repeal of the State's ban on the importation of live baitfish:"'[W]e can't help asking why we should spend our money in Arkansas when it is far better spent at home? It is very clear that much more can be done here in Maine to provide our sportsmen with safe, home-grown bait. There is also the possibility that such an industry could develop a lucrative export market in neighboring states.'"752 F.2d at 760, quoting Baitfish Importation: The Position of the Maine Department of Inland Fisheries and Wildlife, App. 294, 309-310. We fully agree with the Magistrate that "[t]hese three sentences do not convert the Maine statute into an economic protectionism Page 477 U. S. 150 measure." App. to Juris. Statement E-6, n. 4. [Footnote 20] As the Magistrate pointed out, the context of the statements cited by appellee"reveals [they] are advanced not in direct support of the statute, but to counter the argument that inadequate bait supplies in Maine require acceptance of the environmental risks of imports. Instead, the Department argues, Maine's own bait supplies can be increased."Ibid. Furthermore, the comments were made by a state administrative agency long after the statute's enactment, and thus constitute weak evidence of legislative intent, in any event. See ibid. [Footnote 21]The other evidence of protectionism identified by the Court of Appeals is no more persuasive. The fact that Maine allows importation of salmonids, for which standardized sampling and inspection procedures are available, hardly demonstrates that Maine has no legitimate interest in prohibiting the importation of baitfish, for which such procedures have not yet been devised. Nor is this demonstrated by the fact that other States may not have enacted similar bans, especially Page 477 U. S. 151 given the testimony that Maine's fisheries are unique and unusually fragile. [Footnote 22] Finally, it is of little relevance that fish can swim directly into Maine from New Hampshire. As the Magistrate explained: "The impediments to complete success . . . cannot be a ground for preventing a state from using .its best efforts to limit [an environmental] risk." Id. at E-10, n. 8.IVThe Commerce Clause significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce, but it does not elevate free trade above all other values. As long as a State does not needlessly obstruct interstate trade or attempt to "place itself in a position of economic isolation," Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 294 U. S. 527 (1935), it retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources. The evidence in this case amply supports the District Court's findings that Maine's ban on the importation of live baitfish serves legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives. This is not a case of arbitrary discrimination against interstate commerce; the Page 477 U. S. 152 record suggests that Maine has legitimate reasons, "apart from their origin, to treat [out-of-state baitfish] differently," Philadelphia v. New Jersey, 437 U.S. at 437 U. S. 627. The judgment of the Court of Appeals setting aside appellee's conviction is therefore reversed.It is so ordered

U.S. Supreme CourtMaine v. Taylor, 477 U.S. 131 (1986)Maine v. TaylorNo. 85-62Argued March 24, 1986Decided June 23, 1986477 U.S. 131SyllabusAppellee bait dealer (appellee) arranged to have live baitfish imported into Maine, despite a Maine statute prohibiting such importation. He was indicted under a federal statute making it a federal crime to transport fish in interstate commerce in violation of state law. He moved to dismiss the indictment on the ground that the Maine statute unconstitutionally burdened interstate commerce, and Maine intervened to defend the validity of its statute. After an evidentiary hearing, the District Court denied the motion to dismiss and held the state statute constitutional. The court found that substantial uncertainties surrounded the effects that baitfish parasites and nonnative species would have on the State's wild fish population, and that less discriminatory means of protecting against those threats were currently unavailable. Appellee then entered a conditional guilty plea, reserving the right to appeal the District Court's constitutional ruling. The Court of Appeals reversed, concluding that the state statute was unconstitutional.Held:1. Maine is entitled to invoke this Court's jurisdiction under 28 U.S.C. § 1254(2). Nothing in the language or history of § 1254(2) suggests that its scope is limited to civil litigation. The fact that Maine was only an intervenor in the District Court does not deprive it of standing to pursue this appeal, because its stake in the outcome is substantial and the controversy remains live, notwithstanding the Federal Government's decision to abandon its own appeal. Pp. 477 U. S. 133-137.2. The Maine statute is constitutional. The federal statute under which appellee was convicted did not waive the requirement of Hughes v. Oklahoma, 441 U. S. 322, that where a state statute, such as Maine's import ban, discriminates against interstate commerce either on its face or in practical effect, the State must show both that the statute serves a legitimate local purpose, and that this purpose cannot be served as well by available nondiscriminatory means. But the evidence amply supports the District Court's findings that Maine has made both showings. Under the "clearly erroneous" standard of review applicable to these findings, the Court of Appeals erred in setting them aside. Pp. 477 U. S. 137-152.752 F.2d 757, reversed. Page 477 U. S. 132BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 477 U. S. 152.

1977_76-879

MR. JUSTICE MARSHALL delivered the opinion of the Court.At issue in this ease is the constitutionality of a Wisconsin statute, Wis.Stat. §§ 245.10(1), (4), (5) (1973), which provides that members of a certain class of Wisconsin residents may not marry, within the State or elsewhere, without first obtaining a court order granting permission to marry. The class is defined by the statute to include any "Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment." The statute specifics that court permission cannot be granted unless the marriage applicant submits proof of compliance with the support obligation and, in addition, demonstrates that the children covered by the support order "are not then and are not likely thereafter to become public charges." No marriage license may lawfully be issued in Wisconsin to a person covered by the statute, except upon court order; any marriage entered into without compliance with § 245.10 is declared void; and persons acquiring marriage licenses in violation of the section are subject to criminal penalties. [Footnote 1] Page 434 U. S. 376After being denied a marriage license because of his failure to comply with § 245.10, appellee brought this class action under 42 U.S.C. § 1983, challenging the statute as violative Page 434 U. S. 377 of the Equal Protection and Due Process Clauses of the Fourteenth Amendment and seeking declaratory and injunctive relief. The United States District Court for the Eastern District of Wisconsin held the statute unconstitutional under the Equal Protection Clause, and enjoined its enforcement. 418 F. Supp. 1061 (1976). We noted probable jurisdiction, 429 U.S. 1089 (1977), and we now affirm.IAppellee Redhail is a Wisconsin resident who, under the terms of § 245.10, is unable to enter into a lawful marriage in Wisconsin or elsewhere so long as he maintains his Wisconsin residency. The facts, according to the stipulation filed by the parties in the District Court, are as follows. In January, 1972, when appellee was a minor and a high school student, a paternity action was instituted against him in Milwaukee County Court, alleging that he was the father of a baby girl Page 434 U. S. 378 born out of wedlock on July 5, 1971. After he appeared and admitted that he was the child's father, the court entered an order on May 12, 1972, adjudging appellee the father and ordering him to pay $109 per month as support for the child until she reached 18 years of age. From May, 1972, until August, 1974, appellee was unemployed and indigent, and consequently was unable to make any support payments. [Footnote 2]On September 27, 1974, appellee filed an application for a marriage license with appellant Zablocki, the County Clerk of Milwaukee County, [Footnote 3] and a few days later the application was denied on the sole ground that appellee had not obtained a court order granting him permission to marry, as required by § 245.10. Although appellee did not petition a state court thereafter, it is stipulated that he would not have been able to satisfy either of the statutory prerequisites for an order granting permission to marry. First, he had not satisfied his support obligations to his illegitimate child, and, as of December, 1974, there was an arrearage in excess of $3,700. Second, the child had been a public charge since her birth, receiving benefits under the Aid to Families with Dependent Children program. It is stipulated that the child's benefit payments were such that she would have been a public charge even if appellee had been current in his support payments.On December 24, 1974, appellee filed his complaint in the District Court, on behalf of himself and the class of all Wisconsin residents who had been refused a marriage license pursuant to § 245.10(1) by one of the county clerks in Wisconsin. Zablocki was named as the defendant, individually Page 434 U. S. 379 and as representative of a class consisting of all county clerks in the State. The complaint alleged, among other things, that appellee and the woman he desired to marry were expecting a child in March, 1975, and wished to be lawfully married before that time. The statute was attacked on the grounds that it deprived appellee, and the class he sought to represent, of equal protection and due process rights secured by the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution.A three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284. Appellee moved for certification of the plaintiff and defendant classes named in his complaint, and, by order dated February 20, 1975, the plaintiff class was certified under Fed.Rule Civ.Proc. 23(b)(2). [Footnote 4] After the parties filed the stipulation of facts, and briefs on the merits, oral argument was heard in the District Court on June 23, 1975, with a representative from the Wisconsin Attorney General's office participating in addition to counsel for the parties.The three-judge court handed down a unanimous decision on August 31, 1976. The court ruled, first, that it was not required to abstain from decision under the principles set forth in Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), and Younger v. Harris, 401 U. S. 37 (1971), since there was no pending state court proceeding that could be frustrated by the declaratory and injunctive relief requested. [Footnote 5] Second, the court held Page 434 U. S. 380 that the class of all county clerks in Wisconsin was a proper defendant class under Rules 23(a) and (b)(2), and that neither Rule 23 nor due process required pre-judgment notice to the members of the plaintiff or the defendant class. [Footnote 6] Page 434 U. S. 381On the merits, the three-judge panel analyzed the challenged statute under the Equal Protection Clause and concluded that "strict scrutiny" was required because the classification created by the statute infringed upon a fundamental right, the right to marry. [Footnote 7] The court then proceeded to evaluate the interests advanced by the State to justify the statute, and, finding that the classification was not necessary for the achievement of those interests, the court held the statute invalid and enjoined the county clerks from enforcing it. [Footnote 8]Appellant brought this direct appeal pursuant to 28 U.S.C. Page 434 U. S. 382 § 1253, claiming that the three-judge court erred in finding §§ 245.10(1), (4), (5) invalid under the Equal Protection Clause. Appellee defends the lower court's equal protection holding and, in the alternative, urges affirmance of the District Court's judgment on the ground that the statute does not satisfy the requirements of substantive due process. We agree with the District Court that the statute violates the Equal Protection Clause. [Footnote 9] Page 434 U. S. 383IIIn evaluating §§ 245.10(1), (4), (5) under the Equal Protection Clause,"we must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests affected."Memorial Hospital v. Maricopa County, 415 U. S. 250, 415 U. S. 253 (1974). Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required. Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 427 U. S. 312, 314 (1976); see, e.g., San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 411 U. S. 17 (1973).The leading decision of this Court on the right to marry is Loving v. Virginia, 388 U. S. 1 (1967). In that case, an interracial couple who had been convicted of violating Virginia's miscegenation laws challenged the statutory scheme on both equal protection and due process grounds. The Court's opinion could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause; id. at 388 U. S. 11-12. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. The Court's language on the latter point bears repeating:"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.""Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."Id. at 388 U. S. 12, quoting Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 316 U. S. 541 (1942). Page 434 U. S. 384Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. Long ago, in Maynard v. Hill, 125 U. S. 190 (1888), the Court characterized marriage as "the most important relation in life," id. at 125 U. S. 205, and as "the foundation of the family and of society, without which there would be neither civilization nor progress," id. at 125 U. S. 211. In Meyer v. Nebraska, 262 U. S. 390 (1923), the Court recognized that the right "to marry, establish a home and bring up children" is a central part of the liberty protected by the Due Process Clause, id. at 262 U. S. 399, and in Skinner v. Oklahoma ex rel. Williamson, supra, marriage was described as "fundamental to the very existence and survival of the race," 316 U.S. at 316 U. S. 541.More recent decisions have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause. In Griswold v. Connecticut, 381 U. S. 479 (1965), the Court observed:"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."Id. at 381 U. S. 486. See also id. at 381 U. S. 495 (Goldberg, J., concurring); id. at 381 U. S. 502-503 (WHITE, J., concurring in judgment).Cases subsequent to Griswold and Loving have routinely categorized the decision to marry as among the personal decisions protected by the right of privacy. See generally Whalen v. Roe, 429 U. S. 589, 429 U. S. 598-600, and nn. 23-26 (1977). For Page 434 U. S. 385 example, last Term, in Carey v. Population Services International, 431 U. S. 678 (1977), we declared:"While the outer limits of [the right of personal privacy] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions 'relating to marriage, Loving v. Virginia, 388 U. S. 1, 388 U. S. 12 (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 316 U. S. 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 405 U. S. 453-454; id. at 405 U. S. 460, 405 U. S. 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 268 U. S. 535 (1925); Meyer v. Nebraska, [262 U.S. 390, 262 U. S. 399 (1923)]."Id. at 431 U. S. 684-685, quoting Roe v. Wade, 410 U. S. 113, 410 U. S. 152-153 (1973). See also Cleveland Board of Education v. LaFleur, 414 U. S. 632, 414 U. S. 639-640 (1974) ("This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment"); Smith v. Organization of Foster Families, 431 U. S. 816, 431 U. S. 842-844 (1977); Moore v. East Cleveland, 431 U. S. 494, 431 U. S. 499 (1977); Paul v. Davis, 424 U. S. 693, 424 U. S. 713 (1976). [Footnote 10] Page 434 U. S. 386It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, childrearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, see Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings, see Trimble v. Gordon, 430 U. S. 762, 430 U. S. 768-770, and n. 13 (1977); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 406 U. S. 175-176 (1972). Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place. [Footnote 11]By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. See Califano v. Jobst, ante p. 434 U. S. 47; Page 434 U. S. 387 n 12, infra. The statutory classification at issue here, however, clearly does interfere directly and substantially with the right to marry.Under the challenged statute, no Wisconsin resident in the affected class may marry in Wisconsin or elsewhere without a court order, and marriages contracted in violation of the statute are both void and punishable as criminal offenses. Some of those in the affected class, like appellee, will never be able to obtain the necessary court order, because they either lack the financial means to meet their support obligations or cannot prove that their children will not become public charges. These persons are absolutely prevented from getting married. Many others, able in theory to satisfy the statute's requirements, will be sufficiently burdened by having to do so that they will, in effect be coerced into forgoing their right to marry. And even those who can be persuaded to meet the statute's requirements suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental. [Footnote 12] Page 434 U. S. 388IIIWhen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. See, e.g., Carey v. Population Services International, 431 U.S. at 431 U. S. 686; Memorial Hospital v. Maricopa County, 415 U.S. at 415 U. S. 262-263; San Antonio Independent School Dist. v. Rodriguez, 411 U.S. at 411 U. S. 117; Bullock v. Carter, 405 U. S. 134, 405 U. S. 144 (1972). Appellant asserts that two interests are served by the challenged statute: the "permission to marry" proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations; and the welfare of the "out of custody" children is protected. We may accept for present purposes that these are legitimate and substantial interests, but, since the means selected by the State for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained.There is evidence that the challenged statute, as originally introduced in the Wisconsin Legislature, was intended merely to establish a mechanism whereby persons with support obligations to children from prior marriages could be counseled before they entered into new marital relationships and incurred further support obligations. [Footnote 13] Court permission to marry was to be required, but apparently permission was automatically to be granted after counseling was completed. [Footnote 14] The statute actually enacted, however, does not expressly require or provide for any counseling whatsoever, nor for any automatic granting of permission to marry by the court, [Footnote 15] and thus it can Page 434 U. S. 389 hardly be justified as a means for ensuring counseling of the persons within its coverage. Even assuming that counseling does take place -- a fact as to which there is no evidence in the record -- this interest obviously cannot support the withholding of court permission to marry once counseling is completed.With regard to safeguarding the welfare of the "out of custody" children, appellant's brief does not make clear the connection between the State's interest and the statute's requirements. At argument, appellant's counsel suggested that, since permission to marry cannot be granted unless the applicant shows that he has satisfied his court-determined support obligations to the prior children and that those children will not become public charges, the statute provides incentive for the applicant to make support payments to his children. Tr. of Oral Arg. 17-20. This "collection device" rationale cannot justify the statute's broad infringement on the right to marry.First, with respect to individuals who are unable to meet the statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant's prior children. More importantly, regardless of the applicant's ability or willingness to meet the statutory requirements, the State already has numerous other means for exacting compliance with support obligations, means that are at least as effective as the instant statute's, and yet do not impinge upon the right to marry. Under Wisconsin law, whether the children are from a prior marriage or were born out of wedlock, court-determined support obligations may be enforced directly via Page 434 U. S. 390 wage assignments, civil contempt proceedings, and criminal penalties. [Footnote 16] And, if the State believes that parents of children out of their custody should be responsible for ensuring that those children do not become public charges, this interest can be achieved by adjusting the criteria used for determining the amounts to be paid under their support orders.There is also some suggestion that § 245.10 protects the ability of marriage applicants to meet support obligations to prior children by preventing the applicants from incurring new support obligations. But the challenged provisions of § 245.10 are grossly underinclusive with respect to this purpose, since they do not limit in any way new financial commitments by the applicant other than those arising out of the contemplated marriage. The statutory classification is substantially overinclusive as well: given the possibility that the new spouse will actually better the applicant's financial situation, by contributing income from a job or otherwise, the statute in many cases may prevent affected individuals from improving their ability to satisfy their prior support obligations. And, although it is true that the applicant will incur support obligations to any children born during the contemplated marriage, preventing the marriage may only result in the children's being born out of wedlock, as in fact occurred in appellee's case. Since the support obligation is the same whether the child is born in or out of wedlock, the net result of preventing the marriage is simply more illegitimate children.The statutory classification created by §§ 245.10(1), (4), Page 434 U. S. 391 (5) thus cannot be justified by the interests advanced in support of it. The judgment of the District Court is, accordingly,Affirmed

U.S. Supreme CourtZablocki v. Redhail, 434 U.S. 374 (1978)Zablocki v. RedhailNo. 76-879Argued October 4, 1977Decided January 18, 1978434 U.S. 374SyllabusWisconsin statute providing that any resident of that State "having minor issue not in his custody and which he is under obligation to support by any court order or judgment" may not marry without a court approval order, which cannot be granted absent a showing that the support obligation has been met and that children covered by the support order "are not then and are not likely thereafter to become public charges," held to violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 434 U. S. 383-391.(a) Since the right to marry is of fundamental importance, e.g., Loving v. Virginia, 388 U. S. 1, and the statutory classification involved here significantly interferes with the exercise of that right, "critical examination" of the state interests advanced in support of the classification is required. Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 427 U. S. 312, 314. Pp. 383-387.(b) The state interests assertedly served by the challenged statute unnecessarily impinge on the right to marry. If the statute is designed to furnish an opportunity to counsel persons with prior child support obligations before further such obligations are incurred, it neither expressly requires counseling nor provides for automatic approval after counseling is completed. The statute cannot be justified as encouraging an applicant to support his children. By the proceeding, the State, which already possesses numerous other means for exacting compliance with support obligations, merely prevents the applicant from getting married, without ensuring support of the applicant's prior children. Though it is suggested that the statute protects the ability of marriage applicants to meet prior support obligations before new ones are incurred, the statute is both underinclusive (as it does not limit new financial commitments other than those arising out of the contemplated marriage) and overinclusive (since the new spouse may better the applicant's financial situation). Pp. 434 U. S. 388-390.418 F. Supp. 1061, affirmed. Page 434 U. S. 375MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, and BLACKMUN, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 434 U. S. 391. STEWART, J., post, p. 434 U. S. 391 POWELL, J., post, p. 434 U. S. 396, and STEVENS, J., post, p. 434 U. S. 403, filed opinions concurring in the judgment. REHNQUIST, J., filed a dissenting opinion, post, p. 434 U. S. 407.

1976_75-1053

MR. JUSTICE MARSHALL delivered the opinion of the Court.Petitioner Jones is Director of the Department of Weights and Measures in Riverside County, Cal. [Footnote 1] In that capacity, he ordered removed from sale bacon packaged by respondent Rath Packing Co. and flour packaged by three millers, respondents General Mills, Inc., Pillsbury Co., and Seaboard Allied Milling Corp. (hereafter millers). Jones acted after determining, by means of procedures set forth in 4 Cal.Admin.Code c. 8, Art. 5, that the packages were contained in lots [Footnote 2] whose average net weight was less than the net weight stated on the packages. The removal orders were authorized by Cal.Bus. & Prof.Code § 12211 (West Supp. 1977). [Footnote 3] Page 430 U. S. 523Rath and the millers responded by filing suits in the District Court for the Central District of California. [Footnote 4] They sought both declarations that § 12211 and Art 5 are preempted Page 430 U. S. 524 by federal laws regulating net weight labeling and injunctions prohibiting Jones from enforcing those provisions. The District Court granted the requested relief [Footnote 5] and, insofar as is relevant here, the Court of Appeals armed. [Footnote 6] We granted Jones' petition for certiorari, 425 U.S. 933 (1976), [Footnote 7] and now affirm the judgment of the Court of Appeals.IIn its present posture, this litigation contains no claim that the Constitution alone denies California power to enact Page 430 U. S. 525 the challenged provisions. [Footnote 8] We are required to decide only whether the federal laws which govern respondents' packing operations preclude California from enforcing § 12211, as implemented by Art. 5.Our prior decisions have clearly laid out the path we must follow to answer this question. The first inquiry is whether Congress, pursuant to its power to regulate commerce, U.S.Const., Art. 1, § 8, has prohibited state regulation of the particular aspects of commerce involved in this case. Where, as here, the field which Congress is said to have preempted has been traditionally occupied by the States, see, e.g., U.S.Const., Art. I, § 10; Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 171 U. S. 358 (1898),"we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947). This assumption provides assurance that "the federal-state balance," United States v. Bass, 404 U. S. 336, 404 U. S. 349 (1971), will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has "unmistakably . . . ordained," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142 (1963), that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose. City of Burbank v. Lockheed Air Terminal, Inc., 411 U. S. 624, 411 U. S. 633 (1973); Rice v. Santa Fe Elevator Corp., supra at 331 U. S. 230.Congressional enactments that do not exclude all state legislation in the same field nevertheless override state laws Page 430 U. S. 526 with which they conflict. U.S.Const., Art. VI. The criterion for determining whether state and federal laws are so inconsistent that the state law must give way is firmly established in our decisions. Our task is"to determine whether, under the circumstances of this particular case, [the State's] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941). Accord, De Canas v. Bica, 424 U. S. 351, 424 U. S. 363 (1976); Perez v. Campbell, 402 U. S. 637, 402 U. S. 649 (1971); Florida Lime & Avocado Growers, Inc. v. Paul, supra at 373 U. S. 141; id. at 373 U. S. 165 (WHITE, J., dissenting). This inquiry requires us to consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written. See De Canas v. Bica, supra at 424 U. S. 363-365; Swift & Co. v. Wickham, 230 F. Supp. 398, 408 (SDNY 1964), appeal dismissed, 382 U. S. 111 (1965), aff'd on further consideration, 364 F.2d 241 (CA2 1966), cert. denied, 385 U.S. 1036 (1967).IISection 12211 of the Cal.Bus. & Prof.Code (West Supp. 1977) applies to both Rath's bacon and the millers' flour. The standard it establishes is straightforward:"[T]he average weight or measure of the packages or containers in a lot of any . . . commodity sampled shall not be less, at the time of sale or offer for sale, than the net weight or measure stated upon the package."In order to determine whether that standard has been violated, local officials such as Jones follow the statistical sampling procedure set forth in Art. 5. [Footnote 9] That procedure requires the inspector to identify a lot of identical packages of a commodity and determine the number of packages in that lot. Page 430 U. S. 527 He then determines, from tables in the regulation, the number of packages necessary to provide a suitable sample of the lot, and a smaller number of packages which is used to determine the average tare. [Footnote 10] After determining that average, the inspector weighs each package in the sample, subtracts the average tare, and records the difference between the measured and the stated net weights. These measurements are used to identify individual packages in the sample which deviate unreasonably from the stated weight. Those packages are replaced [Footnote 11] in the sample and the replacements weighed. Page 430 U. S. 528 Finally, the deviations from the stated weight are totaled algebraically and compared with tables which indicate the magnitude of the total error necessary to conclude that the lot's average weight is or is not less than the stated weight. [Footnote 12]IIIA. Rath's bacon is produced at plants subject to federal inspection under the Federal Meat Inspection Act (FMIA or Act), as amended by the Wholesome Meat Act, 81 Stat. 584, 21 U.S.C. § 601 et seq. Among the requirements imposed on federally inspected plants, and enforced by Department of Agriculture inspectors, [Footnote 13] are standards of accuracy in labeling. On the record before us, we may assume that Rath's bacon complies with these standards. [Footnote 14]The federal labeling requirement is imposed by § 7(b) of the FMIA, 81 Stat. 588, 21 U.S.C. § 607(b), which commands:"All . . . meat and meat food products inspected at any Page 430 U. S. 529 establishment under the authority of this title . . . shall at the time they leave the establishment bear . . . the information required under paragraph (n) of section 1 of this Act."Section 1(n) of the FMIA, 21 U.S.C. § 601(n), defines the term "misbranded." As relevant here, it provides that meat or a meat product is misbranded"(5) if in a package or other container unless it bears a label showing . . . (b) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That . . . reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations prescribed by the Secretary."81 Stat. 586. Other sections of the FMIA prohibit dealing in misbranded products, as defined by § 1 (n). [Footnote 15]The Secretary of Agriculture has used his discretionary authority to permit "reasonable variations" in the accuracy of the required statement of quantity:"The statement [of net quantity of contents] as it is shown on a label shall not be false or misleading and shall express an accurate statement of the quantity of contents of the container exclusive of wrappers and packing substances. Reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large."9 CFR § 317.2(h)(2) (1976) Thus, the FMIA, as implemented by statutorily authorized regulations, requires the label of a meat product accurately to indicate the net weight of the contents unless the difference Page 430 U. S. 530 between stated and actual weights is reasonable and results from the specified causes. [Footnote 16]B. Section 408 of the FMIA, 21 U.S.C. § 678, prohibits the imposition of "[m]arking, labeling, packaging, or ingredient requirements in addition to, or different than, those made under" the Act. [Footnote 17] This explicit preemption provision Page 430 U. S. 531 dictates the result in the controversy between Jones and Rath. California's use of a statistical sampling process to determine the average net weight of a lot implicitly allows for variations from stated weight caused by unavoidable deviations in the manufacturing process. [Footnote 18] But California makes no allowance for loss of weight resulting from moisture loss during the course of good distribution practice. [Footnote 19] Thus, the state Page 430 U. S. 532 law's requirement that the label accurately state the net weight, with implicit allowance only for reasonable manufacturing variations -- is "different than" the federal requirement, which permits manufacturing deviations and variations caused by moisture loss during good distribution practice.Petitioner Jones seeks to avoid this result by arguing that the FMIA's provisions governing the accuracy of the required net quantity statements are not "labeling requirements" within the meaning of § 408. He contends that "labeling" refers only to the format and placement of information, not to its content. [Footnote 20] Requirements relating to accuracy, according to Jones, deal with the problem of misbranding, and § 408 grants the States concurrent jurisdiction over that subject.We agree with the Court of Appeals that this argument is "strained." 530 F.2d at 1314 n. 25. Nothing in the Act suggests the restrictive meaning petitioner ascribe to the phrase "labeling requirements." To the contrary, § 7(b) requires that the product bear specified information, see supra at 430 U. S. 528-529, and § 1(p) of the FMIA, 21 U.S.C. § 601(p), [Footnote 21] makes clear that any material bearing that information is part of the product's labeling. It twists the language beyond the breaking point to say that a law mandating that labeling contain certain information is not a "labeling requirement."We therefore conclude that, with respect to Rath's packaged bacon, § 12211 and Art. 5 are preempted by federal law.IVA. The federal law governing net weight labeling of the millers' flour is contained in two statutes, the Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, Page 430 U. S. 533 21 U.S.C. § 301 et seq., and the Fair Packaging and Labeling Act (FPLA), 80 Stat. 1296, as amended, 15 U.S.C. §§ 1451-1461. For the reasons stated below, we conclude that the federal weight labeling standard for flour is the same as that for meat.The FDCA prohibits the introduction or delivery for introduction into interstate commerce of any food [Footnote 22] that is misbranded. 21 U.S.C. § 331. A food is misbranded under the FDCA,"[i]f in package form unless it bears a label containing . . . an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That . . reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the Secretary."§ 343(e) This provision is identical to the parallel provision in the FMIA, see supra at 430 U. S. 529, except that the FDCA mandates, rather than allows, the promulgation of implementing regulations. [Footnote 23] The regulation issued in response to this statutory mandate is also substantially identical to its counterpart under the FMIA:"The declaration of net quantity of contents shall express an accurate statement of the quantity of contents of the package. Reasonable variations caused by loss or gain of moisture during the course of good distribution practice or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large."21 CFR § 1.8b(q) (1976). Page 430 U. S. 534Since flour is a food under the FDCA, its manufacture is also subject to the provisions of the FPLA. See 15 U.S.C. §§ 1452, 1459(a). That statute states a congressional policy that"[p]ackages and their labels should enable consumers to obtain accurate information as to the quantity of the contents, and should facilitate value comparisons."§ 1451. To accomplish those goals, insofar as is relevant here, the FPLA bans the distribution in commerce of any packaged commodity unless it complies with regulations"which shall provide that -- ""* * * *" "(2) The net quantity of contents (in terms of weight, measure, or numerical count) shall be separately and accurately stated in a uniform location upon the principal display panel of [the required] label."§ 1453(a). The FPLA also contains a saving clause which specifics that nothing in the FPLA "shall be construed to repeal, invalidate, or supersede" the FDCA. § 1460. Nothing in the FPLA explicitly permits any variation between stated weight and actual weight.The amici States contend that, since the FPLA does not allow any variations from stated weight, there is no difference between federal law governing labeling of flour and California law. The Court of Appeals, however, held that, because of the saving clause, compliance with the FDCA, which does allow reasonable variations, satisfies the requirements of the FPLA. 530 F.2d at 1325. Amici respond that the Court of Appeals misinterpreted the FDCA, and that the FDCA establishes a statutory standard of strict accuracy for net weight labeling. They argue, therefore, that the saving clause of the FPLA does not alter the standard mandated by § 1453. Brief for 39 States as Amici Curiae 15-21. Alternatively, the States argue that, although the saving clause means that the FPLA does not supersede the FDCA, "it Page 430 U. S. 535 cannot be construed to excuse compliance with FPLA standards where both FDCA and FPLA requirements are applicable." Id. at 28.The States' argument that the FDCA standard makes no allowance for reasonable variations is based on this Court's opinion in United States v. Shreveport Grain & Elevator Co., 287 U. S. 77 (1932). Shreveport decided an appeal by the Government in a criminal case involving shortweighting in violation of the predecessor of the FDCA, the Food and Drugs Act, 34 Stat. 768, as amended, c. 117, 37 Stat. 732. The trial court had dismissed the indictment under that statute, which was essentially identical to the net weight labeling requirement of the FDCA, [Footnote 24] on the ground that the prohibition of unreasonable variations from the marked weight was too indefinite to state a criminal offense. We reversed, holding that the statute's substantive standard was created by the "accurate statement" language which preceded the proviso allowing reasonable variations, and that the proviso merely granted administrative authority to promulgate regulations permitting variations "from the hard and fast rule of the act." 287 U.S. at 287 U. S. 81-82. Since Congress reenacted the language interpreted by the Shreveport Court, FDCA, c. 675, § 403(e), 52 Stat. 1047, amici conclude that the standard under the FDCA is also a "hard and fast rule."We need not decide whether the rationale as well as the Page 430 U. S. 536 result of Shreveport remains good law. [Footnote 25] It is clear that 21 CFR § 1.8b(q) (1976), insofar as it is based on the FDCA, has the force of law, [Footnote 26] and allows reasonable variations. Thus, whether the statutory standard is viewed as strict, with the regulation considered a restriction on the power to prosecute, or whether the standard is itself viewed as incorporating the flexibility of the proviso and its implementing regulation, [Footnote 27] the result is the same. Under the FDCA, reasonable variations from the stated net weight do not subject a miller to prosecution, whether civil or criminal, if the variations arise from the permitted causes. The question raised by the arguments of amici is whether, by enacting the FPLA, Congress intended to eliminate the area of freedom from prosecution created by the FDCA and its implementing regulation.Over 60 years ago, Congress concluded that variations must be allowed because of the nature of certain foods and the impossibility of developing completely accurate means of packing. H.R.Rep. No. 850, 62d Cong., 2d Sess., 2 Page 430 U. S. 537 (1912); S.Rep. No. 1216, 62d Cong., 3d Sess., 3 (1913). [Footnote 28] Since 1914, regulations under the food and drug laws have permitted reasonable variations from stated net weight resulting from packing deviations or gain or loss of moisture occurring despite good commercial practice. See United States v. Shreveport Grain & Elevator Co., supra, at 287 U. S. 84. If Congress had intended to overrule this longstanding administrative practice, founded on a legislative statement of necessity, we would expect it to have done so clearly. Instead, it explicitly preserved existing law, with "no changes." 15 U.S.C. § 1460; S.Rep. No. 1186, 89th Cong., 2d Sess., 20 (1966). The legislative history of the FPLA contains some indication that the saving clause was understood to preserve the reasonable variation regulation under the FDCA, [Footnote 29] and no evidence that Congress affirmatively intended to overrule that regulation. [Footnote 30] We can only conclude that, under the FPLA, as under the FDCA, a manufacturer of food is not Page 430 U. S. 538 subject to enforcement action for violation of the net weight labeling requirements if the label accurately states the net weight, with allowance for the specified reasonable variations.B. The FDCA contains no preemptive language. The FPLA, on the other hand, declares that"it is the express intent of Congress to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for the labeling of the net qua[nt]ity of contents of the package of any consumer commodity covered by this chapter which are less stringent than or require information different from the requirements of section 1453 of this title or regulations promulgated pursuant thereto."15 U.S.C. § 1461. [Footnote 31] The Court of Appeals, although recognizing that this section leaves more scope for state law than does the FMIA, concluded that § 12211, as implemented by Art. 5, is preempted because it is less stringent than the Federal Acts, 530 F.2d at 1324-1327.The basis for the Court of Appeals' holding is unclear. Its opinion may be read as based on the conclusion that the state law is inadequate because its enforcement relies on a statistical averaging procedure. We have rejected that conclusion. See supra at 430 U. S. 531, and n. 18. Alternatively, the Court of Appeals may have found California's approach less stringent because the State takes no enforcement action against lots whose Page 430 U. S. 539 average net weight exceeds the weight stated on the label, even if that excess is not a reasonable variation attributable to a federally allowed cause.We have some doubt that, by preempting less stringent state laws, Congress intended to compel the States to expend scarce enforcement resources to prevent the sale of packages which contain more than the stated net weight. We do not have to reach that question, however, because, in this respect, California law apparently differs not at all from federal law, as applied. The inspectors responsible for enforcing the net weight labeling provisions of the Federal Acts are officially informed that "[f]ield weighing for net weight is primarily to determine the likelihood of short weight units in the lots." Moreover, they are not required to submit samples to headquarters "if the average net is not below the amount declared on the label." Food and Drug Administration, Inspection Operations Manual 448.1, 448.13 (1976). These instructions undercut the argument that there is a federal interest in preventing packages from being overfilled. [Footnote 32] Since neither jurisdiction is concerned with overweighting in the administration of its weights and measures laws, we cannot say that California's statutory lack of concern for that "problem" [Footnote 33] makes its laws less stringent than the federal. Page 430 U. S. 540Respondents argue that California's law is preempted because it requires information different from that required by federal law. The meaning of the statutory preemption of laws that require "information different from" the federal net weight labeling provisions, like the meaning of the phrase "less stringent," is unclear. Respondents attribute to the ban on requiring different information a broad meaning, similar in scope to the preemption provision of the FMIA. They contend that, since California law requires the label to state the minimum net weight, it requires "information different from" the federal laws, which demand an accurate statement with allowance for the specified reasonable variations. Brief for Respondents 31-32. The legislative history, however, suggests that the statute expressly preempts as requiring "different information" only state laws governing net quantity labeling which impose requirements inconsistent with those imposed by federal law. [Footnote 34] Since it would be possible to comply with the state law without triggering federal enforcement action, we conclude that the state requirement is not inconsistent with federal law. We therefore hold that 15 U.S.C. § 1461 does not preempt California's § 12211 as implemented by Art. 5.That holding does not, however, resolve this case, for we still must determine whether the state law "stands as an obstacle to the accomplishment and execution of the full Page 430 U. S. 541 purposes and objectives of Congress." See supra at 430 U. S. 526. As Congress clearly stated, a major purpose of the FPLA is to facilitate value comparisons among similar products. Obviously, this goal cannot be accomplished unless packages that bear the same indicated weight in fact contain the same quantity of the product for which the consumer is paying. The significance of this requirement for our purposes results from the physical attributes of flour.Flour is composed of flour solids and moisture. The average water content of wheat kernels used to make flour is 12.5% by weight, with a range from 10% to 14.5%. Efficient milling practice requires adding water to raise the moisture content to 15% to 16%; if the wheat is to wet or too dry, milling will be hindered. During milling, the moisture content is reduced to 13% to 14%. App. 229. [Footnote 35]The moisture content of flour does not remain constant after milling is completed. If the relative humidity of the atmosphere in which it is stored is greater than 60%, flour will gain moisture, and if the humidity is less than 60%, it will lose moisture. [Footnote 36] The federal net weight labeling standard permits variations from stated weight caused by this gain or loss of moisture.Packages that meet the federal labeling requirements [Footnote 37] Page 430 U. S. 542 and that have the same stated quantity of contents can be expected to contain the same amount of flour solids. [Footnote 38] Manufacturers will produce flour with a moisture content fixed by the requirements of the milling process. [Footnote 39] Since manufacturers have reason not to pack significantly more than is required, and federal law prohibits underpacking, they will pack the same amount of this similarly composed flour into packages of any given size. [Footnote 40] Despite any changes in weight resulting from changes in moisture content during distribution, the packages will contain the same amount of flour solids when they reach the consumer. This identity of contents facilitates consumer value comparisons.The State's refusal to permit reasonable weight variations resulting from loss of moisture during distribution produces a different effect. [Footnote 41] In order to be certain of meeting the California standard, a miller must ensure that loss of moisture during distribution will not bring the weight of the contents below the stated weight. Local millers, which serve a limited area, could do so by adjusting their packing practices to the specific humidity conditions of their region. For example, a miller in an area where the humidity is typically higher than Page 430 U. S. 543 60% would not need to overpack at all. By contrast, a miller with a national marketing area would not know the destination of its flour when it was packaged and would therefore have to assume that the flour would lose weight during distribution. The national manufacturer, therefore, would have to overpack.Similarly, manufacturers who distributed only in States that followed the federal standard would not be concerned with compensating for possible moisture loss during distribution. National manufacturers who did not exclude the nonconforming States from their marketing area, on the other hand, would have to overpack. Thus, as a result of the application of the California standard, consumers throughout the country who attempted to compare the value of identically labeled packages of flour would not be comparing packages which contained identical amounts of flour solids. Value comparisons which did not account for this difference -- and there would be no way for the consumer to make the necessary calculations -- would be misleading.We therefore conclude that, with respect to the millers' flour, enforcement of § 12211, as implemented by Art. 5, would prevent "the accomplishment and execution of the full purposes and objectives of Congress" in passing the FPLA. Under the Constitution, that result is impermissible, and the state law must yield to the federal.The judgments are affirmed.It is so ordered

U.S. Supreme CourtJones v. Rath Packing, 430 U.S. 519 (1977)Jones v. Rath PackingNo. 75-1053Argued December 7, 1976Decided March 29, 1977*430 U.S. 519SyllabusSection 12211 of the California Business and Professions Code provides that"the average weight or measure of the packages or containers in a lot of any . . . commodity sampled shall not be less, at the time of sale or offer for sale, than the net weight or measure stated upon the package."Article 5, § 2930 et seq., of Title 4 of the California Administrative Code, in implementing § 12211, requires a statistical sampling process for determining the average net weight of a lot, which implicitly allows for variations from stated weight caused by unavoidable deviations in the manufacturing process, but makes no allowance for loss of weight resulting from moisture loss during the course of good distribution practice. Petitioner county Director of Weights and Measures, pursuant to § 12211, ordered removed from sale bacon packaged by respondent packing company and flour packaged by respondent millers after he had determined under Art. 5 that the packages were contained in lots whose average net weights were less than the net weights stated on the packages. Respondent packing company's bacon is also subject to inspection under the Federal Meat Inspection Act (FMIA), as amended by the Wholesome Meat Act, which requires a meat or a meat product package to bear a label showing, inter alia, an accurate statement of the quantity of the contents in terms of weight, but permits "reasonable variations"; and implementing regulations permit"reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviation in good manufacturing practice."The FMIA prohibits labeling or packaging requirements "different than" those imposed under that statute. The federal law governing net weight labeling of respondent millers' flour is contained in Page 430 U. S. 520 the Federal Food, Drug, and Cosmetic Act (FDCA) and the Fair Packaging and Labeling Act (FPLA), which impose the same federal weight labeling standard for flour as the FMIA imposes for meat. The FDCA and implementing regulations permit the same kind of reasonable variations from the packaging requirements as does the FMIA and its implementing regulations. The FDCA contains no preemptive language, but the FPLA in 15 U.S.C. § 1461 provides that the Act supersedes any state laws that are "less stringent than or require information different from" the requirements of the FPLA or its implementing regulations. Respondents brought suits in Federal District Court, seeking declarations that § 12211 and Art. 5 were preempted by the federal laws and injunctions against enforcement of those provisions. The District Court granted the requested relief, and the Court of Appeals affirmed.Held:1. With respect to respondent packing company's packaged bacon, § 12211 and Art. 5 are preempted by the FMIA. Since California makes no allowance for loss of weight resulting from moisture loss during the course of good distribution practice, the state law's requirement -- that the label accurately state the net weight, with implicit allowance only for reasonable manufacturing variations -- is "different than" the federal requirement, which permits manufacturing deviations and variations caused by moisture loss during good distribution practice. Pp. 430 U. S. 528-532.2. Although 15 U.S.C. § 1461 does not preempt § 12211 as implemented by Art. 5, since it appears that the California law is not "less stringent than," and does not "require information different from," the FPLA and implementing regulations, nevertheless, with regard to respondent millers' flour, enforcement of § 12211, as implemented by Art. 5, would prevent "the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67, in passing the FPLA, an impermissible result under the Constitution, and hence the state law must yield to the federal. The goal of the FPLA to facilitate value comparisons among similar products cannot be accomplished unless packages that bear the same indicated weight in fact contain the same quantity of the product for which the consumer is paying. Here, packages of flour that meet the federal labeling requirements and that have the same stated quantity of contents can be expected to contain the same amount of flour solids, since variations from stated weight caused by loss of moisture are permitted, whereas, as a result of the application of the California standard, which does not permit such variations, consumers who attempt to compare the value of identically labeled packages of flour would not be comparing packages Page 430 U. S. 521 that contain identical amounts of flour solids, and hence would be misled. Pp. 430 U. S. 532-543.530 F.2d 1295 and 530 F.2d 1317, affirmed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed an opinion concurring in part and dissenting in part, in which STEWART, J., joined, post, p. 430 U. S. 543. Page 430 U. S. 522

1960_33

MR. JUSTICE WHITTAKER delivered the opinion of the Court.We here review petitioner's conviction under 2 U.S.C. § 192 [Footnote 1] for willful failure to comply with a subpoena of the House of Representatives commanding him to produce certain records of the Civil Rights Congress before a Subcommittee of the House Committee on Un-American Activities. The principal question presented is whether the evidence justified the trial court's rulings that the records called for by the subpoena were in existence, subject to petitioner's control, and pertinent to the Committee's inquiry.The relevant evidence was as follows. Having knowledge that the Civil Rights Congress had been declared a subversive organization by the Attorney General -- indeed, having itself earlier found that organization to be a subversive one -- and having reason to believe that petitioner Page 364 U. S. 374 was its Executive Secretary, [Footnote 2] the House Committee on Un-American Activities caused a subpoena of the House of Representatives to be issued and served upon petitioner commanding him to appear before its Committee on Un-American Activities, or a subcommittee thereof at a stated time and place in Detroit, Michigan, on February 26, 1952, and there to produce"all records, correspondence and memoranda pertaining to the organization of, the affiliation with other organizations and all monies received or expended by the Civil Rights Congress . . . [and] then and there to testify touching matters of inquiry committed to said Committee. . . ."Upon the opening of the hearings before the Subcommittee at Detroit on February 26, 1952, the chairman made a public statement, saying, among other things, that earlier Committee hearings has "disclosed a concentration of Communist effort in certain defense areas of the country," consisting in part of keeping "the national organization of the Communist Party and the international Communist movement fully advised of industrial potentialities" in such areas, and that "[t]here is no area of greater importance to the Nation as a whole, both in time of peace and in time of war, than the general area of Detroit," and he concluded with the statement that:"The purpose of this investigation is to determine first, whether there has been Communist activity in this vital defense area, and if so, the nature, extent, character and objects thereof."Accompanied by counsel, petitioner appeared before the Subcommittee at the time and place commanded by the subpoena, and the following colloquy occurred:"Mr. WOOD [the chairman]: Mr. McPhaul, the committee has heretofore served upon you a subpoena Page 364 U. S. 375 duces tecum, to produce certain records and documents. Are you prepared to respond to that subpoena?""* * * *" "Mr. WOOD: . . . Will you answer my question, Mr. McPhaul. Are you prepared to produce the documents and papers that have been called upon for you to produce under the subpoena?""Mr. McPHAUL: Mr. Wood, I refuse to answer this or any question which deals with the possession or custody of the books and records called for in the subpoena . I claim my privilege under the Fifth Amendment of the Constitution.""* * * *" "Mr. TAVENNER [Committee counsel]: I would like to ask the witness if he has any other reason for refusing to produce the documents called for in the subpoena?""* * * *" "Mr. WOOD: In order to complete the record, Mr. McPhaul is it in response to this subpoena that has just been read that you now decline, for the reason you have stated, to produce the documents and books and records therein called for?""Mr. McPHAUL: I have stated the reasons, for the record.""Mr. WOOD: Is it in responses to this subpoena that you refuse to answer?""Mr. McPHAUL: That is my answer that I have just given.""Mr. WOOD: To this subpoena?""Mr. McPHAUL: To that subpoena; yes. "Page 364 U. S. 376Petitioner was then sworn, and, after submitting a prepared statement and answering a few preliminary questions, the following occurred:"Mr. TAVENNER: The question is as to whether or not you are refusing to produce the records directed to be produced under the subpoena?""Mr. McPHAUL: My answer to that is, I refuse to answer this or any questions which deal with possession or custody of the books and records called for in this subpoena. I claim my privilege under the Fifth Amendment of the United States Constitution.""Mr. TAVENNER: My question to you was not answered by that statement, in my judgment. My question was whether or not you are refusing to produce the records which you were directed to produce under this subpoena?""Mr. McPHAUL: I have answered it in this statement.""Mr. TAVENNER: No sir. You have stated that you refuse to answer any questions pertaining to them. I have not asked you a question that pertains to them. I have asked you to produce the records. Now, will you produce them?""Mr. McPHAUL: I will not."Following receipt of the Subcommittee's report of these occurrences, the House certified the matter to the United States Attorney for the Eastern District of Michigan for initiation of contempt proceedings against petitioner, and he was indicted on July 29, 1954. After denial of his motion to dismiss the indictment, [Footnote 3] petitioner entered a Page 364 U. S. 377 plea of not guilty, and the case was put to trial before a jury. The Government offered, and there was received in evidence, those portions of the transcript of the Detroit hearings which we have mentioned, various House documents authorizing the initiation of this proceeding, and a letter on the letterhead of the Civil Rights Congress, dated February 16, 1952, over petitioner's name, and what purported to be his signature, as Executive Secretary. [Footnote 4]"whether the records and documents designated in the subpoena were actually in existence or under the possession or control of the defendant, because if the defendant had legitimate reasons for failing to produce the said records, he should have stated his reasons for noncompliance with the subpoena when he appeared before the said subcommittee."The jury found petitioner guilty, and he was fined the sum of $500 and sentenced to imprisonment for a period of nine months. The Court of Appeals affirmed, 272 F.2d 627, and we granted certiorari, 362 U.S. 917.Petitioner's principal contentions here are that there was no evidence showing that the records called for by the subpoena were in existence or, if it may be said that there was, that those records were in petitioner's possession or subject to his control, and the trial court therefore should have sustained his motion for a directed verdict of acquittal or, at the minimum, should have submitted those matters to the jury for resolution.It is, of course, true that"[a] court will not imprison a witness for failure to produce documents which he does not have unless he is responsible for their unavailability, cf. 294 U. S. MacCracken [294 U.S. 125], or is impeding justice by not explaining what happened to them, United States v. Goldstein, 105 F.2d 150 (1939)."United States v. Bryan, 339 U. S. 323, 339 U. S. 330-331. But, so far as the record shows, petitioner has never claimed -- either before the Subcommittee, the District Court, or the Court of Appeals, and he does not claim here -- that the records called for by the subpoena did not exist, or that they were not in his possession or subject to his control. Rather, his claim, first raised at his contempt trial more than two years after his appearance before the Subcommittee, is that the Government failed to show that he could have produced the records before the Subcommittee, Page 364 U. S. 379 notwithstanding he has never claimed he could not produce them.We think the Court's decision in United States v. Bryan, 339 U. S. 323, is highly relevant to these questions. [Footnote 5] For it is as true here as it was there that,"if [petitioner] had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that [he] state [his] reasons for noncompliance upon the return of the writ."Id. at 339 U. S. 332. Such a statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records."To deny the Committee the opportunity to consider the objection or remedy it is in itself a contempt of its authority and an obstruction of its processes. See Bevan v. Krieger, 289 U. S. 459, 289 U. S. 464-465 (1933). "His failure to make any such statement was "a patent evasion of the duty of one summoned to produce papers before a congressional committee[, and] cannot be condoned." Id. at 339 U. S. 333.The Government's proof at the trial thus established a prima facie case of willful failure to comply with the subpoena. The evidence of the Subcommittee's reasonable basis for believing that the petitioner could produce the records in question, coupled with the evidence of his failure even to suggest to the Subcommittee his ability to produce those records, clearly supported an inference that he could have produced them. The burden then shifted to the petitioner to present some evidence to explain or justify his refusal. Morrison v. California, 291 U. S. 82, 291 U. S. 88-89. But he elected not to present any evidence. In these circumstances, there was no factual issue, respecting the existence of the records or his ability to produce them, for resolution by the jury. Page 364 U. S. 380The Fifth Amendment did not excuse petitioner from producing the records of the Civil Rights Congress, for it is well settled that"[b]ooks and records kept '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 (their keeper) personally.' United States v. White, 322 U. S. 694, 322 U. S. 699 (1944)."Rogers v. United States, 340 U. S. 367, 340 U. S. 372. And see Curcio v. United States, 354 U. S. 118, 354 U. S. 122-123. Similarly, there is no merit in petitioner's argument that he could not have advised the Subcommittee that he was unable to produce the records without thereby inviting other questions respecting the records, and thus risking waiver of his privilege against self-incrimination. See Curcio v. United States, 354 U. S. 118. Nor does the rule of Blau v. United States, 340 U. S. 159, excuse one subpoenaed to produce records in a representative capacity, United States v. White, 322 U. S. 694, from asserting inability to produce the records if at a later contempt trial for failure to produce the records he expects to put the Government to proof on that matter.Inasmuch as petitioner neither advised the Subcommittee that he was unable to produce the records nor attempted to introduce any evidence at his contempt trial of his inability to produce them, we hold that the trial court was justified in concluding and in charging the jury that the records called for by the subpoena were in existence and under petitioner's control at the time of the subpoena was served upon him.Petitioner next contends that the evidence was not sufficient to show that the records called for by the subpoena were pertinent to the inquiry. In the first place, petitioner made no objection to the subpoena before the Subcommittee on the ground of pertinency, see Barenblatt v. United States, 360 U. S. 109, 360 U. S. 123, but we need not Page 364 U. S. 381 rest decision on that score, for here, "pertinency" was clearly shown. The stated purposes of the hearing were to determine"whether there has been Communist activity in this vital defense area [Detroit], and, if so, the nature, extent character and objects thereof."Earlier Subcommittee hearings had "disclosed a concentration of Communist effort in certain defense areas of the country," consisting in part of keeping "the national organization of the Communist Party and the international Communist movement fully advised of industrial potentialities" in such areas, and the Subcommittee also had reason to believe that the Civil Rights Congress was being used for subversive purposes. The subpoena called for "all records, correspondence and memoranda" of the Civil Rights Congress relating to three specified subjects: (1) The "organization of" the group, (2) its "affiliation with other organizations," and (3) "all monies received or expended by [it]." It would seem clear enough that the auspices under which the Civil Rights Congress was organized, the identity and extent of its affiliations, the source of its funds and to whom distributed would be prime considerations in determining whether the organization was being used by the Communists in the Detroit area. If the Civil Rights Congress was affiliated with known Communist organizations, or if its funds were received from such organizations or were used to support Communist activities in the Detroit area, those facts, it is reasonable to suppose, would be shown by the records called for by the subpoena, and those facts would be highly pertinent to the Subcommittee's inquiry. It thus appears that the records called for by the subpoena were not "plainly incompetent or irrelevant to any lawful purpose [of the Subcommittee] in the discharge of [its] duties," Endicott Johnson Corp. v. Perkins, 317 U. S. 501, 317 U. S. 509, but, on the contrary, were reasonably "relevant to the Page 364 U. S. 382 inquiry," Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 327 U. S. 209.Finally, petitioner contends that the subpoena was so broad as to constitute an unreasonable search and seizure in violation of the Fourth Amendment of the Constitution. "[A]dequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry," Oklahoma Press Publishing Co. v. Walling, supra, at 327 U. S. 209. The Subcommittee's inquiry here was a relatively broad one -- whether "there has been Communist activity in this vital defense area [Detroit], and, if so, the nature, extent, character and objects thereof" -- and the permissible scope of materials that could reasonably be sought was necessarily equally broad.It is not reasonable to suppose that the Subcommittee knew precisely what books and records were kept by the Civil Rights Congress, and therefore the subpoena could only "specif[y] . . . with reasonable particularity the subjects to which the documents . . . relate." Brown v. United States, 276 U. S. 134, 276 U. S. 143. The call of the subpoena for "all records, correspondence and memoranda" of the Civil Rights Congress relating to the three specified subjects describes them "with all of the particularity the nature of the inquiry and the [Subcommittee's] situation would permit," Oklahoma Press Publishing Co. v. Walling, supra, at 327 U. S. 210, n. 48."[T]he description contained in the subpoena was sufficient to enable [petitioner] to know what particular documents were required, and to select them accordingly,"Brown v. United States, supra, at 276 U. S. 143. If petitioner was in doubt as to what records were required by the subpoena, or found it unduly burdensome, or found it to call for records unrelated to the inquiry, he could and should have so advised the Subcommittee where the defect, if any, "could easily have been remedied," United States v. Bryan, supra, at 339 U. S. 333. This subpoena was Page 364 U. S. 383 not more sweeping than those sustained against challenges of undue breadth in Endicott Johnson Corp. v. Perkins, 317 U. S. 501, and Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186.Under these circumstances, we cannot say that the breadth of the subpoena was such as to violate the Fourth Amendment.Affirmed

U.S. Supreme CourtMcPhaul v. United States, 364 U.S. 372 (1960)McPhaul v. United StatesNo. 33Argued October 13, 1960Decided November 14, 1960364 U.S. 372SyllabusPetitioner was convicted under 2 U.S.C. § 192 for willful failure to comply with a subpoena of the House of Representatives commanding him to produce before one of its Subcommittees certain records of the Civil Rights Congress. The evidence showed: before issuance of the subpoena, the Subcommittee had reason to believe that the Civil Rights Congress was a subversive organization, and that petitioner was its Executive Secretary. At the hearing, the Chairman of the Subcommittee explained that Detroit is a vital defense area and that the purpose of the hearing was to investigate Communist activities there. When asked whether he would produce the documents called for by the subpoena, petitioner stated flatly that he would not. Neither at the hearing nor at his trial did petitioner deny the existence of the records or his ability to produce them. He based his refusal upon a claim of his privilege under the Fifth Amendment.Held: the conviction is sustained. Pp. 364 U. S. 373-383.(a) The Government's proof at the trial established a prima facie case of willful refusal to comply with the subpoena, and, inasmuch as petitioner neither advised the Subcommittee that he was unable to produce the records nor attempted to introduce at his trial any evidence of his inability to produce them, the trial court was justified in concluding and in charging the jury that the records called for by the subpoena were in existence and under petitioner's control at the time the subpoena was served upon him. Pp. 364 U. S. 373-380.(b) The Fifth Amendment did not excuse petitioner from producing the records, since records held in a representative, rather than in a personal, capacity cannot be the subject of the personal privilege against self-incrimination. P. 364 U. S. 380.(c) The evidence was sufficient to show that the records called for by the subpoena were pertinent to the inquiry. Pp. 364 U. S. 380-382.(d) The subpoena was not so broad as to constitute an unreasonable search and seizure in violation of the Fourth Amendment. Pp. 364 U. S. 382-383.272 F.2d 627, affirmed. Page 364 U. S. 373

1980_79-1423

JUSTICE BRENNAN delivered the opinion of the Court.California imposes two insurance taxes on insurance companies doing business in the State. A premiums tax, set at a fixed percentage of premiums paid on insurance policies issued Page 451 U. S. 650 in the State, is imposed on both foreign and domestic insurance companies, and a "retaliatory" tax, set in response to the insurance tax laws of the insurer's home State, is imposed on some foreign insurance companies. This case presents the question of the constitutionality of retaliatory taxes assessed by the State of California against appellant Western & Southern Life Insurance Co., an Ohio corporation, and paid under protest for the years 1965 through 1971.ISection 685 of the California Insurance Code imposes a retaliatory tax on out-of-state insurers doing business in California when the insurer's State of incorporation imposes higher taxes on California insurers doing business in that State than California would otherwise impose on that State's insurers doing business in California. [Footnote 1] In computing the retaliatory Page 451 U. S. 651 tax owed by a given out-of-state insurer, California subtracts the California taxes otherwise due from the total taxes that would be imposed on a hypothetical similar California company doing business in the out-of-state insurer's State of incorporation. If the other State's taxes on the hypothetical California insurer would be greater than California's taxes on the other State's insurer, a retaliatory tax in the amount of the difference is imposed. If the other State's taxes on the hypothetical California insurer would be less than or equal to California's taxes, however, California exacts no retaliatory tax from the other State's insurer.Western & Southern, an Ohio corporation headquartered in Ohio, has engaged in the business of insurance in California since 1955. During the years in question, the company paid a total of $977,853.57 to the State in retaliatory taxes. After unsuccessfully filing claims for refunds with appellee Board of Equalization, Western & Southern initiated this refund suit in Superior Court, arguing that California's retaliatory tax violates the Commerce and Equal Protection Clauses of the United States Constitution. [Footnote 2] Page 451 U. S. 652The Superior Court tried the case on stipulated facts without a jury, and ruled that the retaliatory tax is unconstitutional. It ordered a full refund of retaliatory taxes paid, plus interest and costs. App. 78-79. The California Court of Appeal reversed, upholding the retaliatory tax. 99 Cal. App. 3d 410, 159 Cal. Rptr. 539. The California Supreme Court denied Western & Southern's petition for hearing. App. 89. Western & Southern filed a notice of appeal in this Court, and we noted probable jurisdiction. 449 U.S. 817 (1980). We affirm.IIThe Commerce Clause provides that "The Congress shall have Power . . . To regulate Commerce . . . among the several States." U.S.Const, Art. I, § 8, cl. 3. In terms, the Clause is a grant of authority to Congress, not an explicit limitation on the power of the States. In a long line of cases stretching back to the early days of the Republic, however, this Court has recognized that the Commerce Clause contains an implied limitation on the power of the States to interfere with or impose burdens on interstate commerce. [Footnote 3] Even in the absence of congressional action, the courts may decide whether state regulations challenged under the Commerce Clause impermissibly burden interstate commerce. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 (1981); Philadelphia v. New Jersey, 437 U. S. 617 (1978).Our decisions do not, however, limit the authority of Congress to regulate commerce among the several States as it sees fit. In the exercise of this plenary authority, Congress may "confe[r] upon the States an ability to restrict the flow of interstate commerce that they would not otherwise enjoy." Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 447 U. S. 44 (1980); see H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 336 U. S. 542-543 (1949). If Congress ordains that the States Page 451 U. S. 653 may freely regulate an aspect of interstate commerce, any action taken by a State within the scope of the congressional authorization is rendered invulnerable to Commerce Clause challenge.Congress removed all Commerce Clause limitations on the authority of the States to regulate and tax the business of insurance when it passed the McCarran-Ferguson Act, 59 Stat. 33, 15 U.S.C. § 1011 et seq., as this Court acknowledged in State Board of Insurance v. Todd Shipyards Corp., 370 U. S. 451, 370 U. S. 452 (1962). See also Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205, 440 U. S. 219, n. 18 (1979); Wilburn Boat Co. v. Firemen's Fund Ins. Co., 348 U. S. 310, 348 U. S. 319 (1955). Nevertheless, Western & Southern, joined by the Solicitor General as amicus curiae, argues that the McCarran-Ferguson Act does not permit "anticompetitive state taxation that discriminates against out-of-state insurers." Brief for Appellant 28; Brief for United States as Amicus Curiae 16. We find no such limitation in the language or history of the Act.Section 1 of the Act, 59 Stat. 33, 15 U.S.C. § 1011, contains a declaration of policy:"Congress declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States."Section 2(a), 59 Stat. 33, 15 U.S.C. § 1012(a), declares: "The business of insurance . . . shall be subject to the laws of the several States which relate to the regulation or taxation of such business." The unequivocal language of the Act suggests no exceptions.The McCarran-Ferguson Act was passed in the wake of United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944), which held that insurance is "commerce" within the meaning of the Commerce Clause. Prior to South-Eastern Page 451 U. S. 654 Underwriters, insurance was not considered to be commerce within the meaning of the Commerce Clause, New York Life Ins. Co. v. Deer Lodge County, 231 U. S. 495 (1913); Paul v. Virginia, 8 Wall. 168 (1869), and thus "negative implication from the commerce clause was held not to place any limitation upon state power over the [insurance] business." Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 328 U. S. 414 (1946) (emphasis added). Believing that the business of insurance is "a local matter, to be subject to and regulated by the laws of the several States," H.R.Rep. No. 143, 79th Cong., 1st Sess., 2 (1945), Congress explicitly intended the McCarran-Ferguson Act to restore state taxing and regulatory powers over the insurance business to their pre-South-Eastern Underwriters scope. H.R.Rep. No. 143, supra, at 3; see SEC v. National Securities, Inc., 393 U. S. 453, 393 U. S. 459 (1969); Maryland Casualty Co. v. Cushing, 347 U. S. 409, 347 U. S. 412-413 (1954). The Court has squarely rejected the argument that discriminatory state insurance taxes may be challenged under the Commerce Clause despite the McCarran-Ferguson Act. Prudential Ins. Co. v. Benjamin, supra; Prudential Ins. Co. v. Hobbs, 328 U.S. 822 (1946) (per curiam). In Benjamin, the Court considered a South Carolina insurance premiums tax imposed solely on foreign insurance companies. The Court found it unnecessary to decide whether the tax "would be valid in the dormancy of Congress' power," 328 U.S. at 328 U. S. 427, or whether the tax "would be discriminatory in the sense of an exaction forbidden by the commerce clause," id. at 328 U. S. 428. Expressly assuming that the tax would be discriminatory, id. at 328 U. S. 429, the Court held that enactment of the McCarran-Ferguson Act"put the full weight of [Congress'] power behind existing and future state legislation to sustain it from any attack under the commerce clause to whatever extent this may be done with the force of that power behind it, subject only to the exceptions expressly provided for."Id. at 328 U. S. 431. In Hobbs, this Court sustained against a Commerce Clause challenge a Kansas retaliatory insurance tax indistinguishable Page 451 U. S. 655 from California's. [Footnote 4] The Kansas Supreme Court, upholding the retaliatory tax, had held that the McCarran-Ferguson Act "left the matter of regulation and taxation of insurance companies to the states." In re Insurance Tax Cases, 160 Kan. 300, 313, 161 P.2d 726, 735 (1945). This Court summarily affirmed, citing Benjamin and its companion case, Robertson v. California, 328 U. S. 440 (1946). Prudential Ins. Co. v. Hobbs, supra, at 822. [Footnote 5]We must therefore reject Western & Southern's Commerce Clause challenge to the California retaliatory tax: the McCarran-Ferguson Act removes entirely any Commerce Clause restriction upon California's power to tax the insurance business.IIIOrdinarily, there are three provisions of the Constitution under which a taxpayer may challenge an allegedly discriminatory state tax: [Footnote 6] the Commerce Clause, see, e.g., 430 U. S. S. 656� Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977); the Privileges and Immunities Clause of Art. IV, § 2, see, e.g., Toomer v. Witsell, 334 U. S. 385 (1948); and the Equal Protection Clause, see, e.g., Wheeling Steel Corp. v. Glander, 337 U. S. 562 (1949). [Footnote 7] This case assumes an unusual posture, however, because the Commerce Clause is inapplicable to the business of insurance, see 451 U. S. supra, and the Privileges and Immunities Clause is inapplicable to corporations, see Hemphill v. Orloff,@ 277 U. S. 537, 277 U. S. 548-550 (1928). Only the Equal Protection Clause remains as a possible ground for invalidation of the California tax. [Footnote 8]The Fourteenth Amendment forbids the States to "deny to any person within [their] jurisdiction the equal protection Page 451 U. S. 657 of the laws," but does not prevent the States from making reasonable classifications among such persons. See Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356, 410 U. S. 359-360 (1973); Allied Stores of Ohio v. Bowers, 358 U. S. 522, 358 U. S. 526-527 (1959). Thus, California's retaliatory insurance tax should be sustained if we find that its classification is rationally related to achievement of a legitimate state purpose.But as appellee points out, state tax provisions directed against out-of-state parties have not always been subjected to such scrutiny. Rather, a line of Supreme Court cases most recently exemplified by Lincoln National Life Ins. Co. v. Read, 325 U. S. 673 (1945), holds that a State may impose a tax on out-of-state corporations for the "privilege" of doing business in the State, without any requirement of a rational basis. Since the California courts have defined the retaliatory tax as a "privilege" tax, Western & Southern Life Ins. Co. v. State Board of Equalization, 4 Cal. App. 3d 21, 35, 84 Cal. Rptr. 88, 97-98 (1970), application of the reasoning of these cases would require us to sustain the tax without further inquiry into its rational basis. We must therefore decide first whether California's retaliatory tax is subject to such further inquiry.Some past decisions of this Court have held that a State may exclude a foreign corporation from doing business or acquiring or holding property within its borders. E.g., Asbury Hospital v. Cass County, 326 U. S. 207, 326 U. S. 211 (1945); Bank of Augusta v. Earle, 13 Pet. 519, 38 U. S. 588-589, 38 U. S. 592 (1839). From this principle has arisen the theory that a State may attach such conditions as it chooses upon the grant of the privilege to do business within the State. Paul v. Virginia, 8 Wall. at 75 U. S. 181. While this theory would suggest that a State may exact any condition, no matter how onerous or otherwise unconstitutional, from a foreign corporation desiring to do business within it, this Court has also held that a State may not impose unconstitutional conditions on the grant of a privilege. Page 451 U. S. 658 E.g., Sherbert v. Verner, 374 U. S. 398, 374 U. S. 404 (1963); Wieman v. Updegraff, 344 U. S. 183, 344 U. S. 192 (1952); Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U. S. 583, 271 U. S. 592-593 (1926).These two principles are in obvious tension. If a State cannot impose unconstitutional conditions on the grant of a privilege, then its right to withhold the privilege is less than absolute. But if the State's right to withhold the privilege is absolute, then no one has the right to challenge the terms under which the State chooses to exercise that right. In view of this tension, it is not surprising that the Court's attempt to accommodate both principles has produced results that seem inconsistent or illogical. Compare Dole v. Continental Ins. Co., 94 U. S. 535 (1877), with 87 U. S. v. Morse, 20 Wall. 445 (1874); and compare Lincoln National Life Ins. Co. v. Read, supra, with Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (1926).The doctrine that a State may impose taxes and conditions at its unfettered discretion on foreign corporations, in return for granting the "privilege" of doing business within the State, originated in Paul v. Virginia, supra, a case decided only 15 months after the effective date of the Fourteenth Amendment. A Virginia statute required foreign insurance companies to purchase and file a specified amount of bonds as security for the protection of persons insured. No such requirement was imposed on domestic insurers. Several New York insurance companies refused to comply, and their agent was accordingly denied a license to engage in the insurance business in Virginia. The agent was prosecuted for selling insurance without a license; he defended on the ground that the statute was unconstitutional under the Privileges and Immunities Clause of Art. IV, § 2, and the Commerce Clause. [Footnote 9] Page 451 U. S. 659This Court sustained the Virginia statute. Viewing corporations as recipients of "special privileges," 8 Wall. at 75 U. S. 181, and believing that "it might be of the highest public interest that the number of corporations in the Sate should be limited," id. at 75 U. S. 182, the Court held that a State's assent to the creation of a domestic corporation or the entry of a foreign corporation "may be granted upon such terms and conditions as those States may think proper to impose." Id. at 75 U. S. 181. [Footnote 10] Under this view, there was no need for the Court to consider whether the statute was arbitrary, irrational, or discriminatory."[The States] may exclude the foreign corporation entirely; they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion."Ibid.In two important respects, the legal underpinnings of Paul v. Virginia were soon eroded. First, the advent of laws of general incorporation, which swept the country in the late 19th century, see Louis K. Liggett Co. v. Lee, 288 U. S. 517, 288 U. S. 557-564 (1933) (Brandeis, J., dissenting), altered the very nature of the corporation. Such laws, stimulated largely by "the desire for equality and the dread of special privilege[s]," id. at 288 U. S. 549, n. 4, permitted persons to form corporations freely, subject only to generally applicable requirements and limitations. Incorporation lost its status as a special privilege. See Page 451 U. S. 660 Henderson 68. [Footnote 11] Second, the Fourteenth Amendment, ratified in 1868, introduced the constitutional requirement of equal protection, prohibiting the States from acting arbitrarily or treating similarly situated persons differently, even with respect to privileges formerly dispensed at the State's discretion. The combination of general incorporation laws and equal protection necessarily undermined the doctrine of Paul v. Virginia. If the right to incorporate or to do business within a State ceases to be a privilege to be dispensed by the State as it sees fit, and becomes a right generally available to all on equal terms, then the argument for special exactions as "privilege taxes" is destroyed.The Court was slow to recognize the consequences of these developments. In Philadelphia Fire Assn. v. New York, 119 U. S. 110 (1886), the first relevant decision governed by the Fourteenth Amendment, the Court unhesitatingly applied the doctrine of Paul v. Virginia to sustain a New York retaliatory insurance tax against an equal protection challenge. The Court held that a corporation is not a "person within [the State's] jurisdiction," 119 U.S. at 119 U. S. 116, for purposes of the Equal Protection Clause unless it is in compliance with the conditions placed upon its entry into the State, and that a corporation assents to all state laws in effect at the time of its entry. Id. at 119 U. S. 119. [Footnote 12]"The State, having the power to exclude entirely, has Page 451 U. S. 661 the power to change the conditions of admission at any time, for the future, and to impose as a condition the payment of a new tax, or a further tax, as a license fee. If it imposes such license fee as a prerequisite for the future, the foreign corporation, until it pays such license fee, is not admitted willing the State or within its jurisdiction. It is outside, at the threshold, seeking admission, with consent not yet given. . . . By going into the State of New York in 1872, [the Philadelphia Fire Association] assented to such prerequisite as a condition of its admission within the jurisdiction of New York."Id. at 119 U. S. 119-120.Justice Harlan dissented. Acknowledging that a State may prescribe certain conditions upon the entry of a foreign corporation, he insisted"that it is the settled doctrine of this court that the terms and conditions so prescribed must not be repugnant to the Constitution of the United States or inconsistent with any right granted or secured by that instrument."Id. at 119 U. S. 125. "Can it be," he asked,"that a corporation is estopped to claim the benefit of the constitutional provision securing to it the equal protection of the laws simply because it voluntarily entered and remained in a State which has enacted a statute denying such protection to it and to like corporations from the same State?"Id. at 119 U. S. 127.Although dicta in several cases supported Justice Harlan's view that a State may not impose conditions repugnant to the Constitution upon the grant of a privilege, see, e.g., 77 U. S. Chicago, 10 Wall. 410, 77 U. S. 415 (1871); Doyle v. Continental Page 451 U. S. 662 Ins. Co., 94 U.S. at 94 U. S. 540, the Court continued to reject constitutional claims by corporations challenging conditions to entry. E.g., New York v. Roberts, 171 U. S. 658, 171 U. S. 665-666 (1898); Horn Silver Mining Co. v. New York, 143 U. S. 305, 143 U. S. 312-315 (1892); Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania, 125 U. S. 181, 125 U. S. 184-185 (188). Nonetheless, the first quarter of this century saw "an almost complete disintegration" of the doctrine of Paul v. Virginia. Henderson 111. The change became evident in the October Term, 1909, when the Court decided four cases in conflict with the principle that the States possess unlimited power to condition the entry of foreign corporations. [Footnote 13] The most significant of these decisions for our purposes is Southern R. Co. v. Greene, 216 U. S. 400 (1910), which expressly rejected the contention"that the imposition of special taxes upon foreign corporations for the privilege of doing business within the State is sufficient to justify such different taxation."Id. at 216 U. S. 417. [Footnote 14] Page 451 U. S. 663The plaintiff, Southern Railway, had been admitted to do business in Alabama and had invested in permanent facilities in the State. At that time, franchise taxes imposed on domestic corporations were equal to privilege taxes imposed on foreign corporations. Later, Alabama imposed an additional privilege tax on foreign corporations, which Southern Railway challenged on equal protection grounds. The Court held that classifications among corporations for purposes of taxation are constitutional under the Equal Protection Clause only if they bear a "reasonable and just relation" to the purpose for which they are imposed. Ibid. Noting that there were domestic corporations in Alabama whose business was indistinguishable from that of Southern Railway, the Court stated that"[i]t would be a fanciful distinction to say that there is any real difference in the burden imposed because the one is taxed for the privilege of a foreign corporation to do business in the State and [the] other for the right to be a corporation."Id. at 216 U. S. 417-418. The Court held that"to tax the foreign corporation for carrying on business under the circumstances shown, by a different and much more onerous rule than is used in taxing domestic corporations for the same privilege, is a denial of the equal protection of the laws."Id. at 216 U. S. 418. [Footnote 15] Page 451 U. S. 664In Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (1926), the Court extended the protections of Southern Railway against discriminatory taxation to corporations holding short-term licenses, and to those without substantial permanent property in the State. [Footnote 16] 272 U.S. at 272 U. S. 508, 509, 272 U. S. 514-515. With respect to the general tax burden on business, "the foreign corporation stands equal, and is to be classified with domestic corporations of the same kind." Id. at 272 U. S. 511. [Footnote 17]After Hanover Fire Ins. Co., little was left of the doctrine of Paul v. Virginia and Philadelphia Fire Assn. v. New York, 119 U. S. 110 (1886). It was replaced by a new doctrine:"It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution of the United States may Page 451 U. S. 665 thus he manipulated out of existence."Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. at 271 U. S. 593-594. See also Power Manufacturing Co. v. Saunders, 274 U. S. 490, 274 U. S. 497 (1927).The decision in Lincoln National Life Ins. Co. v. Read, 325 U. S. 673 (1945), thus stands as a surprising throwback to the doctrine of Paul v. Virginia and Philadelphia Fire Assn. v. New York. There, the Court seemed to adopt precisely the argument that was rejected in Hanover Fire Ins. Co.:"that a State may discriminate against foreign corporations by admitting them under more onerous conditions than it exacts from domestic companies. . . ."325 U.S. at 325 U. S. 677; cf. 272 U.S. at 272 U. S. 507. [Footnote 18] The Court stated that the argument that a State may not impose unconstitutional conditions to entry "proves too much." 325 U.S. at 325 U. S. 677. "If it were adopted," the Court said,"then the long-established rule that a State may discriminate against foreign corporations by admitting them under more onerous conditions than it exacts from domestic companies would go into the discard."Ibid. [Footnote 19] So long as a tax is "levied upon the privilege of entering the State and engaging in business there," it may not be challenged under the Equal Protection Clause, even though it may impose a burden greater and more discriminatory than was imposed at the date of the corporation's entry into the State. Id. at 325 U. S. 678.The holding in Lincoln National has been implicitly rejected Page 451 U. S. 666 in at least three subsequent cases. In Wheeling Steel Corp. v. Glander, 337 U. S. 562 (1949), the Court struck down a provision of Ohio's ad valorem tax law that subjected certain intangible property of non-Ohio corporations to a tax not applied to identical property of Ohio corporations. The Court concluded that the provision violated the Equal Protection Clause on the ground that the inequality of treatment was "not because of the slightest difference in Ohio's relation to the decisive transaction, but solely because of the different residence of the owner." Id. at 336 U. S. 572. [Footnote 20] The decision in Wheeling Steel was not directly in conflict with that in Lincoln National, because the Ohio courts had held the tax in Wheeling Steel an "ad valorem property tax, . . . and in no sense a franchise, privilege, occupation, or income tax." 337 U.S. at 337 U. S. 572. However, the Wheeling Steel decision rejected the principle of Lincoln National: the opinion declared that a State's power to exclude out-of-state corporations is limited by the Constitution; the State may not "exac[t] surrender of rights derived from the Constitution of the United States." 337 U.S. at 337 U. S. 571 (citing Hanover Fire Ins. Co. v. Harding, supra, at 272 U. S. 507).In Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522 (1959), this Court sustained an Ohio statute exempting nonresidents from an ad valorem tax on certain property held in a storage warehouse, but not exempting Ohio residents from the tax. Without alluding to any possibility that legislative classifications based on State of incorporation should be subject to a different standard from other classifications, the Court held that state tax laws "must proceed upon a rational Page 451 U. S. 667 basis, and may not resort to a classification that is palpably arbitrary." Id. at 358 U. S. 527. [Footnote 21]Finally, in WHYY, Inc. v. Glassboro, 393 U. S. 117 (1968), this Court struck down a New Jersey statute exempting nonprofit corporations incorporated in New Jersey from tax, but denying a similar exemption to nonprofit corporations incorporated in other States. Disregarding Lincoln National, the Court stated the applicable principle of law as follows:"This Court has consistently held that, while a State may impose conditions on the entry of foreign corporations to do business in the State, once it has permitted them to enter,""the adopted corporations are entitled to equal protection with the state's own corporate progeny, at least to the extent that their property is entitled to an equally favorable ad valorem tax basis.""Wheeling Steel Corp. v. Glander, 337 U. S. 562, 337 U. S. 571-572. See Reserve Life Ins. Co. v. Bowers, 380 U. S. 258; Hanover Fire Ins. Co. v. Harding, 272 U. S. 494; Southern R. Co. v. Greene, 216 U. S. 400."393 U.S. at 393 U. S. 119-120.In view of the decisions of this Court both before and after Lincoln National, it is difficult to view that decision as other than an anachronism. We consider it now established that, whatever the extent of a State's authority to exclude foreign corporations from doing business within its boundaries, that Page 451 U. S. 668 authority does not justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose. As we held in Power Manufacturing Co. v. Saunders, 274 U.S. at 274 U. S. 493-494:"No doubt there are . . . subjects as to which foreign corporations may be classified separately from both individuals and domestic corporations and dealt with differently. But there are other subjects as to which such a course is not admissible, the distinguishing principle being that classification must rest on differences pertinent to the subject in respect of which the classification is made."IVIn determining whether a challenged classification is rationally related to achievement of a legitimate state purpose, we must answer two questions: (1) does the challenged legislation have a legitimate purpose? and (2) was it reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose? See Minnesota v. Clover Leaf Creamery Co., 449 U.S. at 449 U. S. 461-463; Vance v. Bradley, 440 U. S. 93, 440 U. S. 97-98 (1979).The legislative purpose of California's retaliatory tax is not difficult to discern, for such taxes have been a common feature of insurance taxation for over a century. Although variously expressed, the principal purpose of retaliatory tax laws is to promote the interstate business of domestic insurers by deterring other States from enacting discriminatory or excessive taxes. A survey of state retaliatory tax laws summarized:"[W]hatever their character, it is obvious . . . that their ultimate object is not to punish foreign corporations doing business in the state, or retort the action of the foreign state in placing upon corporations of the enacting Page 451 U. S. 669 state doing business therein burdens heavier than those imposed upon corporations of such foreign state doing business in the enacting state, but to induce such foreign state to show the same consideration to corporations of the enacting state doing business therein as is shown to corporations of such foreign state doing business in the enacting state."Annot., 91 A.L.R. 795 (1934). Accord, Bankers Life Co. v. Richardson, 192 Cal. 113, 124-125, 218 P. 586, 591 (1923); State ex rel. Crittenberger v. Continental Ins. Co., 67 Ind.App. 536, 542, 116 N.E. 929, 936 (1917); Phoenix Ins. Co. v. Welch, 29 Kan. 672, 674-675 (1883); Life & Cas. Ins. Co. v. Coleman, 233 Ky. 350, 351-352, 25 S.W.2d 748, 749-750 (1930); State v. Ins. Co. of North America, 71 Neb. 320, 324, 99 N.W. 36, 38 (1904); Massachusetts Mut. Ins. Co. v. Knowlton, 94 N.H. 409, 412, 54 A.2d 163, 165 (1947); Commonwealth v. Fireman's Fund Ins. Co., 369 Pa. 560, 565-566, 87 A.2d 255, 258 (1952); Pacific Mut. Life Ins. Co. v. State, 161 Wash. 135, 137-138, 296 P. 813, 814-815 (1931). [Footnote 22]California's retaliatory tax is based upon a model statute drafted by the insurance industry, and is virtually identical to that enacted by many other States. 4 California Assembly Interim Committee on Revenue and Taxation, The Insurance Tax, No. 15, pp. 64, 66 (1964) (hereafter Insurance Tax). Since the amount of revenue raised by the retaliatory tax is relatively modest, id. at 65, and the impetus for passage of the tax comes from the nationwide insurance industry, it is clear that the purpose is not to generate revenue at the expense of out-of-state insurers, but to apply pressure on other Page 451 U. S. 670 States to maintain low taxes on California insurers. As a committee of the California Assembly has said:"The actual rationale for the provision is that the application of the retaliatory laws acts as a deterrent to state taxation on the insurance industry."Id. at 66. [Footnote 23]Decisions by the California courts lend weight to this analysis. The Court of Appeal in the instant case held that the purpose of the retaliatory tax"is to put pressure on the several states to impose the same tax burden on all insurance companies, foreign or domestic, and thereby encourage the doing of interstate business."99 Cal. App. 3d at 413, 159 Cal. Rptr. at 541. Accord, Western & Southern life Ins. Co. v. State Board of Equalization, 4 Cal. App. 3d at 34, 84 Cal. Rptr. at 96; Atlantic Ins. Co. v. State Board of Equalization, 255 Cal. App. 2d 1, 4, 62 Cal. Rptr. 784, 786 (1967), cert. denied and appeal dism'd, 390 U. S. 529 (1968).Many may doubt the wisdom of California's retaliatory tax; indeed, the retaliatory tax has often been criticized as a distortion of the tax system and an impediment to the raising of revenue from the taxation of insurance. See, e.g., Council of State Governments, State Retaliatory Taxation of the Insurance Industry 12-13 (1977); Task Force Report, Statement of Policy on Insurance Premium Taxation, 1 Proc.Nat.Assn. of Ins.Comm'rs 71 (1971); Report of New Jersey Tax Policy Comm., Pt. V, pp. 47-48 (1972); Strickler, The Mess in State Premium Taxation of Insurance Companies, 69 Best's Rev. 34, 38 (1969). But the courts are not empowered to second-guess the wisdom of state policies. Ferguson v. Skrupa, 372 U. S. 726, 372 U. S. 729 (1963). Our review is confined to the legitimacy of the purpose. Page 451 U. S. 671There can be no doubt that promotion of domestic industry by deterring barriers to interstate business is a legitimate state purpose. This Court has recognized the legitimacy of state efforts to maintain the profit level of a domestic industry, Parker v. Brown, 317 U. S. 341, 317 U. S. 363-367 (1943), and of efforts to "protect and enhance the reputation" of a domestic industry so that it might compete more effectively in the interstate market, Pike v. Bruce Church, Inc., 397 U. S. 137, 397 U. S. 143 (1970). California's effort on behalf of its domestic insurance industry is no less legitimate.The mere fact that California seeks to promote its insurance industry by influencing the policies of other States does not render the purpose illegitimate. As we said in United States Steel Corp. v. Multistate Tax Comm'n, 434 U. S. 452, 434 U. S. 478 (1978):"Any time a State adopts a fiscal or administrative policy that affects the programs of a sister State, pressure to modify those programs may result. Unless that pressure transgresses the bounds of the Commerce Clause or the Privileges and Immunities Clause of Art. IV, § 2, see, e.g., Austin v. New Hampshire, 420 U. S. 656 (1975), it is not clear how our federal structure is implicated."Having established that the purpose of California's lawmakers in enacting the retaliatory tax was legitimate, we turn to the second element in our analysis: whether it was reasonable for California's lawmakers to believe that use of the challenged classification would promote that purpose. We acknowledge at the outset that many persons believe that retaliatory taxes are not an effective means for accomplishment of the goal of deterring discriminatory and excessive taxation of insurance companies by the various States. See, e.g., Bodily, The Effects of Retaliation on the State Taxation of Life Insurers, 44 J. of Risk & Ins. 21 (1977); Pelletier, Insurance Retaliatory Laws, 39 Notre Dame Law. 243, 268-269 (1964); Task Force Report, supra, at 71. But whether, Page 451 U. S. 672 in fact, the provision will accomplish its objectives is not the question: the Equal Protection Clause is satisfied if we conclude that the California Legislature rationally could have believed that the retaliatory tax would promote its objective. Minnesota v. Clover Leaf Creamery Co., 449 U.S. at 449 U. S. 466; Vance v. Bradley, 440 U.S. at 440 U. S. 111; United States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 154 (1938).The Interim Committee on Revenue and Taxation of the California Assembly conducted a major study of the State's tax system before recommending passage of a constitutional amendment permitting enforcement of the present retaliatory tax. [Footnote 24] That study found:"It is true that insurers are disadvantaged by retaliatory taxation provisions in the short run, for they usually result in some insurers' paying more in taxes in retaliating states. But, in the long run, insurers as a group pay less in taxes because of these provisions, since legislators, when considering measures affecting insurers, do consider retaliatory effects in instance after instance."Insurance Tax, at 66. The study concluded that retaliatory taxes "have kept premiums lower and insurers' profits higher than would otherwise have been the case." Id. at 67. It therefore recommended passage of the proposed constitutional amendment. See ibid.We cannot say that the California Legislature's conclusions were irrational, or even unreasonable. Assuming that the lawmakers of each State are motivated in part by a desire to promote the interests of their domestic insurance industry, it is reasonable to suppose that California's retaliatory tax will induce other States to lower the burdens on California insurers in order to spare their domestic insurers the cost of the retaliatory tax in California. Page 451 U. S. 673In any event, we do not find the evidence against the retaliatory tax overwhelming. The California Department of Finance evaluated the effect of the retaliatory laws:"Whether the insurance companies have sponsored this legislation or not, in their resistance to tax change, they have benefitted by it. The home-owned companies in all but a half dozen states are able to say, 'Don't raise our taxes. If you do, we will have to pay more in other states.' The effectiveness of this barrier is demonstrated by the fact that, of the 48 states, only 9 increased their insurance tax rates in the last twelve years. . . . None of these is an outstanding insurance state."State Department of Finance, Budget Div., Highlights of Proposal for Quarterly Insurance Tax Payments 3 (1963). The California courts examined the issue, and found:"The common purpose of [retaliatory tax] legislation in the several states has been to discourage any state from imposing discriminatory taxes or other burdens upon out-of-state companies. The effort seems to have been very largely successful; in any event, taxes on insurance premiums have stayed close to 2 percent in most states, for both domestic and out-of-state insurers."Atlantic Ins. Co. v. State Board of Equalization, 255 Cal. App. 2d at 4, 62 Cal. Rptr. at 786.Authorities in the field have found the evidence mixed. The leading empirical study of the effect of retaliatory tax laws examined tax rates on life insurance premiums from 1935 through 1972, and found: (1) that tax rates have not increased significantly in absolute terms over the period; (2) that life insurance premiums taxes have declined as a percentage of total state tax revenues; [Footnote 25] and (3) that discrimination Page 451 U. S. 674 against foreign insurance companies has declined over the period. Bodily, 44 J. of Risk & Ins. at 27-32. These results are precisely those that advocates of the retaliatory tax would predict, and thus provide some support for that theory. Statistical analysis of the available data, however, failed to verify this conclusion: the correlation between retaliatory tax laws and the observed results was not found to be statistically significant. Id. at 30-31. The author therefore concluded that retaliatory taxes have been "of questionable value." Id. at 34. Cf. Pelletier, 39 Notre Dame Law. at 267-269; Felton, Retaliatory Insurance Company Taxation: An Evaluation, 28 J. of Ins. 71, 77-78 (1961).Parties challenging legislation under the Equal Protection Clause cannot prevail so long as"it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable."United States v. Carolene Products Co., supra, at 304 U. S. 154. On this standard, we cannot but conclude that the California retaliatory insurance tax withstands the strictures of the Fourteenth Amendment.Affirmed

U.S. Supreme CourtW. & S. Life Ins. Co. v. Board of Equalization, 451 U.S. 648 (1981)Western & Southern Life Ins. Co. v. Board of EqualizationNo. 79-1423Argued January 12, 1981Decided May 26, 1981451 U.S. 648SyllabusCalifornia, in addition to imposing a premiums tax on both foreign and domestic insurance companies doing business in the State, imposes a "retaliatory" tax on such a foreign insurer when the insurer's State of incorporation imposes higher taxes on California insurers doing business in that State than California would otherwise impose on that State's insurers doing business in California. Appellant, an Ohio insurer doing business in California, after unsuccessfully filing administrative refund claims for California retaliatory taxes paid, brought a refund suit in California Superior Court, alleging that the retaliatory tax violates the Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment. The Superior Court ruled the tax unconstitutional, but the California Court of Appeal reversed.Held:1. The retaliatory tax does not violate the Commerce Clause. The McCarran-Ferguson Act, which leaves the regulation and taxation of insurance companies to the States, removes entirely any Commerce Clause restriction upon California's power to tax the insurance business. Neither the language nor the history of that Act suggests that it does not permit, as appellant argues, "anticompetitive state taxation that discriminates against out-of-state insurers." Pp. 451 U. S. 652-655.2. Nor does the retaliatory tax violate the Equal Protection Clause. Pp. 451 U. S. 655-674.(a) Whatever the extent of a State's authority to exclude foreign corporations from doing business within the State, that authority does not justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose. Pp. 451 U. S. 655-668.(b) The purpose of the retaliatory tax, to promote the interstate business of California insurers by deterring other States from imposing discriminatory or excessive taxes on California insurers, is a legitimate state purpose. And the California Legislature rationally could have Page 451 U. S. 649 believed that the retaliatory tax would promote that purpose, it being immaterial whether, in fact, the tax will accomplish its objectives. Assuming that the lawmakers of each State are motivated in part by a desire to promote the interests of their domestic insurance industry, it is reasonable to suppose that California's retaliatory tax will induce other States to lower the burdens on California insurers in order to spare their domestic insurers the cost of the retaliatory tax in California. Pp. 451 U. S. 668-674.99 Cal. App. 3d 410, 159 Cal. Rptr. 539, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 451 U. S. 674.

1986_85-1088

JUSTICE MARSHALL delivered the opinion of the Court.This case presents the issue whether, in diversity actions, federal courts must apply a state statute that imposes a fixed penalty on appellants who obtain stays of judgment pending unsuccessful appeals.IRespondents brought this tort action in Alabama state court to recover damages for injuries sustained in a motorcycle accident. Petitioner removed the case to a Federal District Court having diversity jurisdiction. A jury trial resulted in a judgment of $300,000 for respondent Alan Woods and $5,000 for respondent Cara Woods. Petitioner posted bond to stay the judgment pending appeal, and the Court of Appeals affirmed without modification. 768 F.2d 1287 (CA11 1985). Page 480 U. S. 3Respondents then moved in the Court of Appeals, pursuant to Ala. Code §12-22-72 (1986), for imposition of that State's mandatory affirmance penalty of 10% of the amount of judgment. Petitioner challenged the application of this statute as violative of the equal protection and due process guarantees of the Fourteenth Amendment and as "a procedural rule . . . inapplicable in federal court under the doctrine of Erie Railroad Company v. Tompkins, 304 U. S. 64 (1938), and its progeny." App. to Pet. for Cert. A-5. The Court of Appeals summarily granted respondents' motion to assess the penalty and subsequently denied a petition for rehearing. The parties have stipulated that the final judgment has been paid, except for the $30,500 statutory affirmance penalty, which petitioner has withheld pending proceedings in this Court.We granted certiorari to consider the equal protection and due process challenges as well as the Erie claim. 475 U.S. 1080 (1986). Because we conclude that the Alabama statute imposing a mandatory affirmance penalty has no application in federal diversity actions, we decline to reach the Fourteenth Amendment issues.IIThe Alabama Statute provides in relevant part:"When a judgment or decree is entered or rendered for money, whether debt or damages, and the same has been stayed on appeal by the execution of bond, with surety, if the appellate court affirms the judgment of the court below, it must also enter judgment against all or any of the obligors on the bond for the amount of the affirmed judgment, 10 percent damages thereon and the costs of the appellate court. . . ."Ala. Code §12-22-72 (1986). [Footnote 1] Page 480 U. S. 4 As set forth in the statute, then, a combination of three conditions will automatically trigger the 10% penalty: (1) the trial court must enter a money judgment or decree, (2) the judgment or decree must be stayed by the requisite bond, [Footnote 2] and (3) the judgment or decree must be affirmed without substantial modification. E.g., Chapman v. Rivers Construction Co., 284 Ala. 633, 644-645, 227 So. 2d 403, 414-415 (1969). The purposes of the mandatory affirmance penalty are to penalize frivolous appeals and appeals interposed for delay, Montgomery Light & Water Power Co. v. Thombs, 204 Ala. 678, 684, 87 So. 205, 211 (1920), and to provide "additional damages" as compensation to the appellees for having to suffer the ordeal of defending the judgments on appeal. Birmingham v. Bowen, 254 Ala. 41, 46-47, 47 So. 2d 174, 179-180 (1950).Petitioner contends that the statute's underlying purposes and mandatory mode of operation conflict with the purposes and operation of Rule 38 of the Federal Rules of Appellate Procedure, and therefore that the statute should not be applied by federal courts sitting in diversity. Entitled "Damages for delay," Rule 38 provides:"If the court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee."See also 28 U.S.C. §1912. Under this Rule,"damages are awarded by the court in its discretion in the case of a frivolous appeal as a matter of justice to the appellee and as a penalty against the appellant."Advisory Committee's Notes on Fed.Rule App.Proc. 38, 28 U.S.C.App., p. 492.In Hanna v. Plumer, 380 U. S. 460 (1965), we set forth the appropriate test for resolving conflicts between state law and the Federal Rules. The initial step is to determine whether, when fairly construed, the scope of Federal Rule 38 is "sufficiently Page 480 U. S. 5 broad" to cause a "direct collision" with the state law or, implicitly, to "control the issue" before the court, thereby leaving no room for the operation of that law. Walker v. Armco Steel Corp., 446 U. S. 740, 446 U. S. 749-750, and n. 9 (1980); Hanna, supra, at 380 U. S. 471-472. The Rule must then be applied if it represents a valid exercise of Congress' rulemaking authority, which originates in the Constitution and has been bestowed on this Court by the Rules Enabling Act, 28 U.S.C. §2072. [Footnote 3] Hanna, 380 U.S. at 380 U. S. 471-474.The constitutional constraints on the exercise of this rulemaking authority define a test of reasonableness. Rules regulating matters indisputably procedural are a priori constitutional. Rules regulating matters "which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either," also satisfy this constitutional standard. Id. at 380 U. S. 472. The Rules Enabling Act, however, contains an additional requirement. The Federal Rule must not "abridge, enlarge or modify any substantive right. . . ." 28 U.S.C. §2072. The cardinal purpose of Congress in authorizing the development of a uniform and consistent system of rules governing federal practice and procedure suggests that Rules which incidentally affect litigants' substantive rights do not violate this provision if reasonably necessary to maintain the integrity of that system of rules. See Hanna, supra, at 380 U. S. 464-465; Mississippi Page 480 U. S. 6 Publishing Corp. v. Murphree, 326 U. S. 438, 326 U. S. 445-446 (1946); 19 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4509, pp. 145-146 (1982). Moreover, the study and approval given each proposed Rule by the Advisory Committee, the Judicial Conference, and this Court, and the statutory requirement that the Rule be reported to Congress for a period of review before taking effect, see 28 U.S.C. §2072, give the Rules presumptive validity under both the constitutional and statutory constraints. See Hanna, supra, at 380 U. S. 471.Applying the Hanna analysis to an analogous Mississippi statute which provides for a mandatory affirmance penalty, the United States Court of Appeals for the Fifth Circuit concluded in Affholder, Inc. v. Southern Rock, Inc., 746 F.2d 305 (1984), that the statute conflicted with Rule 38 and thus was not applicable in federal diversity actions. [Footnote 4] The Fifth Circuit discussed two aspects of the conflict: (1) the discretionary mode of operation of the Federal Rule, compared to the mandatory operation of the Mississippi statute, and (2) the limited effect of the Rule in penalizing only frivolous appeals or appeals interposed for purposes of delay, compared to the effect of the Mississippi statute in penalizing every unsuccessful appeal regardless of merit. Id. at 308-309. Page 480 U. S. 7We find the Fifth Circuit's analysis persuasive. Rule 38 affords a court of appeals plenary discretion to assess "just damages" in order to penalize an appellant who takes a frivolous appeal and to compensate the injured appellee for the delay and added expense of defending the district court's judgment. Thus, the Rule's discretionary mode of operation unmistakably conflicts with the mandatory provision of Alabama's affirmance penalty statute. Moreover, the purposes underlying the Rule are sufficiently coextensive with the asserted purposes of the Alabama statute to indicate that the Rule occupies the statute's field of operation so as to preclude its application in federal diversity actions. [Footnote 5]Respondents argue that, because Alabama has a similar Appellate Rule which may be applied in state court alongside the affirmance penalty statute, see Ala.Rule App.Proc. 38; McAnnally v. Levco, Inc., 456 So. 2d 66, 67 (Ala. 1984), a federal court sitting in diversity could impose the mandatory penalty and likewise remain free to exercise its discretionary authority under Federal Rule 38. This argument, however, ignores the significant possibility that a court of appeals may, in any given case, find a limited justification for imposing penalties in an amount less than 10% of the lower court's Page 480 U. S. 8 judgment. Federal Rule 38 adopts a case-by-case approach to identifying and deterring frivolous appeals; the Alabama statute precludes any exercise of discretion within its scope of operation. Whatever circumscriptive effect the mandatory affirmance penalty statute may have on the state court's exercise of discretion under Alabama's Rule 38, that Rule provides no authority for defining the scope of discretion allowed under Federal Rule 38.Federal Rule 38 regulates matters which can reasonably be classified as procedural, thereby satisfying the constitutional standard for validity. Its displacement of the Alabama statute also satisfies the statutory constraints of the Rules Enabling Act. The choice made by the drafters of the Federal Rules in favor of a discretionary procedure affects only the process of enforcing litigants' rights, and not the rights themselves.IIIWe therefore hold that the Alabama mandatory affirmance penalty statute has no application to judgments entered by federal courts sitting in diversity.Reversed

U.S. Supreme CourtBurlington Northern v. Woods, 480 U.S. 1 (1986)Burlington Northern Railroad Co. v. WoodsNo. 85-1088Argued Nov. 4, 1986Decided Feb. 24, 1987480 U.S. 1SyllabusAn Alabama statute requires an appellate court, upon affirming a money judgment without substantial modification, to impose a 10% penalty on any appellant who had obtained a stay of that judgment by executing a bond. The statute's purposes are to penalize frivolous appeals and those interposed for delay, and to provide appellees with additional compensation for having to suffer the ordeal of appeal. Upon affirming without modification a judgment for respondents in their federal diversity action arising from a motorcycle accident, the Eleventh Circuit imposed the Alabama statute's penalty on petitioner, which had posted bond to stay the judgment pending appeal.Held: The Alabama mandatory affirmance penalty statute has no application to judgments entered by federal courts sitting in diversity. Pp. 480 U. S. 3-8.(a) Rule 38 of the Federal Rules of Appellate Procedure affords federal courts of appeals plenary discretion to award damages to an appellee upon determining that the appeal is frivolous. Federal Rule 38's discretionary mode of operation conflicts with the Alabama statute's mandatory operation. Furthermore, the purposes underlying Rule 38 -- to penalize frivolous appeals and to compensate injured appellees for the delay and added expense inherent therein -- are sufficiently coextensive with the statute's purposes to indicate that the Rule occupies the statute's field of operation. The fact that Alabama has a similar Appellate Page 480 U. S. 2 Rule coexisting with the statute does not mean that a federal court could impose the mandatory statutory penalty while remaining free to exercise its Federal Rule 38 discretionary authority, since the statute would improperly limit the exercise of that discretion in instances in which the court wished to impose a penalty of less than 10%. Pp. 480 U. S. 4-8.(b) Rule 38 must be applied under the analysis set forth in Hanna v. Plumer, 380 U. S. 460, since (a) it is a constitutional exercise of rulemaking authority in that it regulates matters that can reasonably be classified as procedural, and (b) it affects only the process of enforcing litigants' rights, and not the rights themselves, and therefore does not violate the Rule Enabling Act's prohibition against affecting substantive rights (28 U.S.C. §2072). P. 480 U. S. 8.Reversed.MARSHALL, J., delivered the opinion for a unanimous Court.

1971_70-5037

MR. JUSTICE WHITE delivered the opinion of the Court.In 1964, this Court held that a criminal defendant who challenges the voluntariness of a confession made to officials and sought to be used against him at his trial has a due process right to a reliable determination that the confession was, in fact, voluntarily given, and not the outcome of coercion which the Constitution forbids. Jackson v. Denno, 378 U. S. 368. While our decision made plain that only voluntary confessions may be admitted at the trial of guilt or innocence, we did not then announce, or even suggest, that the factfinder at a coercion hearing need judge voluntariness with reference to an especially severe standard of proof. Nevertheless, Page 404 U. S. 479 since Jackson, state and federal courts have addressed themselves to the issue with a considerable variety of opinions. [Footnote 1] We granted certiorari in this case to resolve the question. 401 U.S. 992 (1971). Page 404 U. S. 480Petitioner Lego was convicted of armed robbery in 1961 after a jury trial in Superior Court, Cook County, Illinois. The court sentenced him to prison for 25 to 50 years. The evidence introduced against Lego at trial included a confession he had made to police after arrest and while in custody at the station house. Prior to trial, Lego sought to have the confession suppressed. He did not deny making it, but did challenge that he had done so voluntarily. The trial judge conducted a hearing, out of the presence of the jury, at which Lego testified that police had beaten him about the head and neck with a gun butt. His explanation of this treatment was that the local police chief, a neighbor and former classmate of the robbery victim, had sought revenge upon him. Lego introduced into evidence a photograph that had been taken of him at the county jail on the day after his arrest. The photograph showed that petitioner's face had been swollen and had traces of blood on it. Lego admitted that his face had been scratched in a scuffle with the robbery victim, but maintained that the encounter did not explain the condition shown in the photograph. The police chief and four officers also testified. They denied either beating or threatening petitioner and disclaimed knowledge that any other officer had done so. The trial judge resolved this credibility problem in favor of the police and ruled the confession admissible. [Footnote 2] At trial, Lego testified in his own behalf. Although he did not dispute the truth of the confession directly, he did tell his version of the events that had transpired at the Page 404 U. S. 481 police station. The trial judge instructed the jury as to the prosecution's burden of proving guilt. He did not instruct that the jury was required to find the confession voluntary before it could be used in judging guilt or innocence. [Footnote 3] On direct appeal, the Illinois Supreme Court affirmed the conviction. People v. Lego, 32 Ill. 2d 76, 203 N.E.2d 875 (1965).Four years later, petitioner challenged his conviction by seeking a writ of habeas corpus in the United States District Court for the Northern District of Illinois. He maintained that the trial judge should have found the confession voluntary beyond a reasonable doubt before admitting it into evidence. Although the judge had made no mention of the standard he used, Illinois law provided that a confession challenged as involuntary could be admitted into evidence if, at a hearing outside the presence of the jury, the judge found it voluntary by a preponderance of the evidence. [Footnote 4] In the alternative, petitioner argued that the voluntariness question should also have been submitted to the jury for its separate consideration. Page 404 U. S. 482 After first denying the writ for failure to exhaust state remedies, the District Court granted a rehearing motion, concluded that Lego had no state remedy then available to him, and denied relief on the merits. United States ex rel. Lego v. Pate, 308 F. Supp. 38 (1970). [Footnote 5] The Court of Appeals for the Seventh Circuit affirmed. [Footnote 6]IPetitioner challenges the judgment of the Court of Appeals on three grounds. The first is that he was not proved guilty beyond a reasonable doubt, as required by In re Winship, 397 U. S. 358 (1970), because the confession used against him at his trial had been proved voluntary only by a preponderance of the evidence. Implicit in the claim is an assumption that a voluntariness hearing is designed to enhance the reliability of jury verdicts. To judge whether that is so, we must return to Jackson v. Denno, 378 U. S. 368 (1964).In New York prior to Jackson, juries most often determined the voluntariness of confessions, and hence whether confessions could be used in deciding guilt or innocence. Trial judges were required to make an initial determination, and could exclude a confession, but only if it could not under any circumstances be deemed voluntary. [Footnote 7] When voluntariness was fairly debatable, either because a dispute of fact existed or because reasonable men could have drawn differing inferences from undisputed facts, the question whether the confession violated due process was for the jury. This meant the confession Page 404 U. S. 483 was introduced at the trial itself. If evidence challenging its voluntariness were adduced, the jury was instructed first to pass upon voluntariness and, if it found the confession involuntary, ignore it in determining guilt. If, on the other hand, the confession were found to be voluntary, the jury was then free to consider its truth or falsity and give the confession an appropriate weight in judging guilt or innocence.We concluded that the New York procedure was constitutionally defective because at no point along the way did a criminal defendant receive a clear-cut determination that the confession used against him was in fact, voluntary. The trial judge was not entitled to exclude a confession merely because he himself would have found it involuntary, and, while we recognized that the jury was empowered to perform that function, we doubted it could do so reliably. Precisely because confessions of guilt, whether coerced or freely given, may be truthful and potent evidence, we did not believe a jury could be called upon to ignore the probative value of a truthful but coerced confession; it was also likely, we thought, that, in judging voluntariness itself, the jury would be influenced by the reliability of a confession it considered an accurate account of the facts. "It is now axiomatic," we said,"that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U. S. 534, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U. S. 401; Stroble v. California, 343 U. S. 181; Payne v. Arkansas, 356 U. S. 560. Equally clear is the defendant's constitutional right at some stage in the proceedings to object to the use of the confession Page 404 U. S. 484 and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra. [Footnote 8]"We did not think it necessary, or even appropriate, in Jackson to announce that prosecutors would be required to meet a particular burden of proof in a Jackson hearing held before the trial judge. [Footnote 9] Indeed, the then-established duty to determine voluntariness had not been framed in terms of a burden of proof, [Footnote 10] nor has it been since Jackson was decided. [Footnote 11] We could fairly assume then, as we can now, that a judge would admit into evidence only those confessions that he reliably found, at least by a preponderance of the evidence, had been made voluntarily.We noted in Jackson that there may be a relationship between the involuntariness of a confession and its unreliability. [Footnote 12] But our decision was not based in the Page 404 U. S. 485 slightest on the fear that juries might misjudge the accuracy of confessions and arrive at erroneous determinations of guilt or innocence. That case was not aimed at reducing the possibility of convicting innocent men.Quite the contrary, we feared that the reliability and truthfulness of even coerced confessions could impermissibly influence a jury's judgment as to voluntariness. The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles. Rogers v. Richmond, 365 U. S. 534, 365 U. S. 540-541 (1961). [Footnote 13] The procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances. Nothing in Jackson questioned the province or capacity of juries to assess the truthfulness of confessions. Nothing in that opinion took from the jury any evidence relating to the accuracy or weight of confessions admitted into evidence. A defendant has Page 404 U. S. 486 been as free since Jackson as he was before to familiarize a jury with circumstances that attend the taking of his confession, including facts bearing upon its weight and voluntariness. [Footnote 14] In like measure, of course, juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief.Since the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts, we cannot accept the charge that judging the admissibility of a confession by a preponderance of the evidence undermines the mandate of In re Winship, 397 U. S. 358 (1970). Our decision in Winship was not concerned with standards for determining the admissibility of evidence or with the prosecution's burden of proof at a suppression hearing when evidence is challenged on constitutional grounds. Winship went no further than to confirm the fundamental right that 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."Id. at 397 U. S. 364. A high standard of proof is Page 404 U. S. 487 necessary, we said, to ensure against unjust convictions by giving substance to the presumption of innocence. Id. at 397 U. S. 363. A guilty verdict is not rendered less reliable or less consonant with Winship simply because the admissibility of a confession is determined by a less stringent standard. Petitioner does not maintain that either his confession or its voluntariness is an element of the crime with which he was charged. He does not challenge the constitutionality of the standard by which the jury was instructed to decide his guilt or innocence; nor does he question the sufficiency of the evidence that reached the jury to satisfy the proper standard of proof. Petitioner's rights under Winship have not been violated. [Footnote 15]IIEven conceding that Winship is inapplicable because the purpose of a voluntariness hearing is not to implement the presumption of innocence, petitioner presses for reversal on the alternative ground that evidence offered against a defendant at a criminal trial and challenged on constitutional grounds must be determined admissible beyond a reasonable doubt in order to give adequate protection to those values that exclusionary rules are designed to serve. Jackson v. Denno, supra, an offspring of Brown v. Mississippi, 297 U. S. 278 (1936), requires judicial rulings on voluntariness prior to admitting confessions. Miranda v. Arizona, 384 Page 404 U. S. 488 U.S. 436 (1966), excludes confessions flowing from custodial interrogations unless adequate warnings were administered and a waiver was obtained. Weeks v. United States, 232 U. S. 383 (1914), and Mapp v. Ohio, 367 U. S. 643 (1961), make impermissible the introduction of evidence obtained in violation of a defendant's Fourth Amendment rights. In each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts. These independent values, it is urged, themselves require a stricter standard of proof in judging admissibility.The argument is straightforward, and has appeal. But we are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond reasonable doubt. [Footnote 16] Evidence obtained in violation of the Fourth Amendment has been excluded from federal criminal trials for many years. Weeks v. United States, supra. The same is true of coerced confessions offered in either federal or state trials. Bram v. United States, 168 U. S. 532 (1897); Brown v. Mississippi, supra. But, from our experience over this period of time, no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence. Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard. Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence Page 404 U. S. 489 before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here, nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution, and it is very doubtful that escalating the prosecution's burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.To reiterate what we said in Jackson: when a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact, voluntarily rendered. Thus, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary. Of course, the States are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake. [Footnote 17]IIIWe also reject petitioner's final contention that, even though the trial judge ruled on his coercion claim, he was entitled to have the jury decide the claim anew. To the extent this argument asserts that the judge's determination was insufficiently reliable, it is no more persuasive than petitioner's other contentions. To the extent the position assumes that a jury is better suited than a judge to determine voluntariness, it, questions the basic assumptions of Jackson v. Denno; it also ignores Page 404 U. S. 490 that Jackson neither raised any question about the constitutional validity of the so-called orthodox rule for judging the admissibility of confessions nor even suggested that the Constitution requires submission of voluntariness claims to a jury as well as a judge. Finally, Duncan v. Louisiana, 391 U. S. 145 (1968), which made the Sixth Amendment right to trial by jury applicable to the States, did not purport to change the normal rule that the admissibility of evidence is a question for the court, rather than the jury. Nor did that decision require that both judge and jury pass upon the admissibility of evidence when constitutional grounds are asserted for excluding it. We are not disposed to impose as a constitutional requirement a procedure we have found wanting merely to afford petitioner a second forum for litigating his claim.The decision of the Court of Appeals isAffirmed

U.S. Supreme CourtLego v. Twomey, 404 U.S. 477 (1972)Lego v. TwomeyNo. 70-5037Argued November 11, 1971Decided January 12, 1972404 U.S. 477SyllabusFollowing a pretrial suppression hearing at which conflicting evidence was presented as to the voluntariness of a confession that petitioner had given the police, the trial judge, presumably applying the Illinois preponderance of the evidence standard, held the confession admissible, and it was introduced into evidence at the trial, which resulted in petitioner's conviction. The judge had instructed the jury as to the prosecution's burden of proving guilt, but did not instruct that the jury had to find the confession voluntary before it could be used in reaching its verdict. In a habeas corpus proceeding petitioner challenged his conviction. The District Court denied relief, and the Court of Appeals affirmed. Petitioner contends, relying upon In re Winship, 397 U. S. 358, that the trial judge should have found the confession voluntary beyond a reasonable doubt before admitting it into evidence, or, alternatively, that the admissibility of the confession as evidence in a criminal trial (quite apart from its probative value) had to be determined by a reasonable doubt standard to protect the values that exclusionary rules are designed to serve. Petitioner also urges that, even though the trial judge ruled on his coercion claim, he was entitled, under Duncan v. Louisiana, 391 U. S. 145, to have the jury decide that issue anew.Held:1. The hearing on the voluntariness of a confession required by this Court's decision in Jackson v. Denno, 378 U. S. 368, is not designed to implement the presumption of innocence and enhance the reliability of jury verdicts, but to prevent the use of a coerced confession as violative of due process quite apart from its truth or falsity. Consequently, determining the admissibility of a confession by a preponderance of the evidence is not inconsistent with the mandate of In re Winship, supra. Pp. 404 U. S. 482-487.2. Petitioner has not demonstrated that admissibility rulings based on the preponderance of evidence standard are unreliable or that imposition of any higher standard under expanded exclusionary rules would be sufficiently productive to outweigh the Page 404 U. S. 478 public interest in having probative evidence available to juries. pp. 404 U. S. 487-489.3. The procedure followed here comported with the requirements of Jackson, supra, and petitioner was not entitled to have the voluntariness issue which had been resolved by the trial judge also submitted to a jury for its separate consideration. Nor did Duncan, supra, change the rule that determining the admissibility of evidence is a function of the court, rather than of the jury. Pp. 404 U. S. 489-490.Affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART and BLACKMUN, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 404 U. S. 490. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

1994_94-325

regardless of his duties. An appropriate rule of thumb is that a worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman. This figure is only a guideline that allows a court to take the question from the jury when a worker has a clearly inadequate temporal connection to the vessel. On the other hand, the seaman status inquiry should not be limited exclusively to an examination of the overall course of a worker's service with a particular employer, since his seaman status may change with his basic assignment. Pp. 368-372.2. The District Court's drydock instruction was erroneous. Whether a vessel is in navigation is a fact-intensive question that can be removed from the jury's consideration only where the facts and the law will reasonably support one conclusion. Based upon the record here, the trial court failed adequately to justify its decision to remove that question from the jury. Moreover, the court's charge to the jury swept too broadly in prohibiting the jury from considering the time Latsis spent with the vessel while in drydock for any purpose. Pp. 372-376.20 F.3d 45, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which THOMAS and BREYER, JJ., joined, post, p. 377.David W McCreadie argued the cause for petitioners.With him on the briefs were David F. Pope and Christ Stratakis.Lewis Rosenberg argued the cause for respondent. With him on the brief was Barry 1. Levy. *JUSTICE O'CONNOR delivered the opinion of the Court. This case asks us to clarify what "employment-related connection to a vessel in navigation," McDermott Int'Z, Inc. v.*Briefs of amici curiae urging reversal were filed for the City of New York by Paul A. Crotty and Leonard J. Koerner; and for TECO Transport & Trade Corp. et al. by Robert B. Acomb, Jr., and Robert T. Lemon II.Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Stevan C. Dittman and Larry S. Stewart; and for the United Brotherhood of Carpenters and Joiners of America by John R. Hillsman.350Wilander, 498 U. S. 337, 355 (1991), is necessary for a maritime worker to qualify as a seaman under the Jones Act, 46 U. S. C. App. § 688(a). In Wi lander, we addressed the type of activities that a seaman must perform and held that, under the Jones Act, a seaman's job need not be limited to transportation-related functions that directly aid in the vessel's navigation. We now determine what relationship a worker must have to the vessel, regardless of the specific tasks the worker undertakes, in order to obtain seaman status.IIn May 1989, respondent Antonios Latsis was employed by petitioner Chandris, Inc., as a salaried superintendent engineer. Latsis was responsible for maintaining and updating the electronic and communications equipment on Chandris' fleet of vessels, which consisted of six passenger cruise ships. Each ship in the Chandris fleet carried between 12 and 14 engineers who were assigned permanently to that vessel. Latsis, on the other hand, was one of two supervising engineers based at Chandris' Miami office; his duties ran to the entire fleet and included not only overseeing the vessels' engineering departments, which required him to take a number of voyages, but also planning and directing ship maintenance from the shore. Latsis claimed at trial that he spent 72 percent of his time at sea, App. 58; his immediate supervisor testified that the appropriate figure was closer to 10 percent, id., at 180.On May 14, 1989, Latsis sailed for Bermuda aboard the S. S. Galileo to plan for an upcoming renovation of the ship, which was one of the older vessels in the Chandris fleet. Latsis developed a problem with his right eye on the day of departure, and he saw the ship's doctor as the Galileo left port. The doctor diagnosed a suspected detached retina but failed to follow standard medical procedure, which would have been to direct Latsis to see an ophthalmologist on an emergency basis. Instead, the ship's doctor recommended351that Latsis relax until he could see an eye specialist when the Galileo arrived in Bermuda two days later. No attempt was made to transport Latsis ashore for prompt medical care by means of a pilot vessel or helicopter during the 11 hours it took the ship to reach the open sea from Baltimore, and Latsis received no further medical care until after the ship arrived in Bermuda. In Bermuda, a doctor diagnosed a detached retina and recommended immediate hospitalization and surgery. Although the operation was a partial success, Latsis lost 75 percent of his vision in his right eye.Following his recuperation, which lasted approximately six weeks, Latsis resumed his duties with Chandris. On September 30, 1989, he sailed with the Galileo to Bremerhaven, Germany, where the vessel was placed in drydock for a 6month refurbishment. After the conversion, the company renamed the vessel the S. S. Meridian. Latsis, who had been with the ship the entire time it was in drydock in Bremerhaven, sailed back to the United States on board the Meridian and continued to work for Chandris until November 1990, when his employment was terminated for reasons that are not clear from the record.In October 1991, Latsis filed suit in the United States District Court for the Southern District of New York seeking compensatory damages under the Jones Act, 46 U. S. C. App. § 688, for the negligence of the ship's doctor that resulted in the significant loss of sight in Latsis' right eye. The Jones Act provides, in pertinent part, that "[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury .... " The District Court instructed the jury that it could conclude that Latsis was a seaman within the meaning of the statute if it found as follows:"[T]he plaintiff was either permanently assigned to the vessel or performed a substantial part of his work on the vessel. In determining whether Mr. Latsis performed a352substantial part of his work on the vessel, you may not consider the period of time the Galileo was in drydock in Germany, because during that time period she was out of navigation. You may, however, consider the time spent sailing to and from Germany for the conversion. Also, on this first element of being a seaman, seamen do not include land-based workers." App. 210.The parties stipulated to the District Court's second requirement for Jones Act coverage-that Latsis' duties contributed to the accomplishment of the missions of the Chandris vessels. Id., at 211. Latsis did not object to the seaman status jury instructions in their entirety, but only contested that portion of the charge which explicitly took from the jury's consideration the period of time that the Galileo was in drydock. The jury returned a verdict in favor of Chandris solely on the issue of Latsis' status as a seaman under the Jones Act. Id., at 213.Respondent appealed to the Court of Appeals for the Second Circuit, which vacated the judgment and remanded the case for a new trial. 20 F.3d 45 (1994). The court emphasized that its longstanding test for seaman status under the Jones Act required "'a more or less permanent connection with the ship,'" Salgado v. M. J. Rudolph Corp., 514 F.2d 750, 755 (CA2 1975), a connection that need not be limited to time spent on the vessel but could also be established by the nature of the work performed. The court thought that the alternate formulation employed by the District Court (permanent assignment to the vessel or performance of a substantial part of his work on the vessel), which was derived from Offshore Co. v. Robison, 266 F.2d 769, 779 (CA5 1959), improperly framed the issue for the jury primarily, if not solely, in terms of Latsis' temporal relationship to the vessel. With that understanding of what the language of the Robison test implied, the court concluded that the District Court's seaman status jury instructions constituted plain error under established Circuit precedent. The court then353took this case as an opportunity to clarify its seaman status requirements, directing the District Court that the jury should be instructed on remand as follows:"[T]he test of seaman status under the Jones Act is an employment-related connection to a vessel in navigation. The test will be met where a jury finds that (1) the plaintiff contributed to the function of, or helped accomplish the mission of, a vessel; (2) the plaintiff's contribution was limited to a particular vessel or identifiable group of vessels; (3) the plaintiff's contribution was substantial in terms of its (a) duration or (b) nature; and (4) the course of the plaintiff's employment regularly exposed the plaintiff to the hazards of the sea." 20 F. 3d, at 57.Elsewhere on the same page, however, the court phrased the third prong as requiring a substantial connection in terms of both duration and nature. Finally, the Court of Appeals held that the District Court erred in instructing the jury that the time Latsis spent with the ship while it was in drydock could not count in the substantial connection equation. Id., at 55-56. Judge Kearse dissented, arguing that the drydock instruction was not erroneous and that the remainder of the charge did not constitute plain error. Id., at 58.We granted certiorari, 513 U. S. 945 (1994), to resolve the continuing conflict among the Courts of Appeals regarding the appropriate requirements for seaman status under the Jones Act.**We granted certiorari on the following question, set forth in the petition: "What employment-related connection to a vessel in navigation is necessary for a maritime worker to qualify as a seaman under the Jones Act, 46 U. S. C. § 688?" Pet. for Cert. i. Petitioners argue for the first time in their opening brief on the merits that, because respondent failed to raise a timely objection under Rule 51 of the Federal Rules of Civil Procedure, we should limit the scope of our review to the narrower issue of whether the District Court's seaman status jury instructions constituted "plain error." Brieffor Petitioners 12-14. Under this Court's Rule 14.1(a), "[o]nly the questions set forth in the petition [for certiorari], or354IIThe Jones Act provides a cause of action in negligence for "any seaman" injured "in the course of his employment." 46 U. S. C. App. § 688(a). Under general maritime law prevailing prior to the statute's enactment, seamen were entitled to "maintenance and cure" from their employer for injuries incurred "in the service of the ship" and to recover damages from the vessel's owner for "injuries received by seamen in consequence of the unseaworthiness of the ship," but they were "not allowed to recover an indemnity for the negligence of the master, or any member of the crew." The Osceola, 189 U. S. 158, 175 (1903); see also Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367, 370-371 (1932). Congress enacted the Jones Act in 1920 to remove the bar to suit for negligence articulated in The Osceola, thereby completing the trilogy of heightened legal protections (unavailable to other maritime workers) that seamen receive because of their exposure to the "perils of the sea." See G. Gilmore & C. Black, Law of Admiralty § 6-21, pp. 328-329 (2d ed. 1975); Robertson, A New Approach to Determining Seaman Status, 64 Texas L. Rev. 79 (1985) (hereinafter Robertson). Justice Story identified this animating purpose behind the legal regime governing maritime injuries when he observed that seamen "are emphatically the wards of the admiralty" because they "are by the peculiarity of their lives liable to sudden sickness fromfairly included therein, will be considered by the Court," see, e. g., Berkemer v. McCarty, 468 U. S. 420, 443, n. 38 (1984), and our Rule 24.1(a) provides that a merits brief should not "raise additional questions or change the substance of the questions already presented" in the petition. See also Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 31-32 (1993); Taylor v. Freeland & Kronz, 503 U. S. 638, 645-646 (1992). Because petitioners did not raise the issue in the petition for certiorari, we will not consider any argument they may have under Rule 51 concerning the effect of respondent's failure to object to the seaman status jury instructions in their entirety.355change of climate, exposure to perils, and exhausting labour." Harden v. Gordon, 11 F. Cas. 480, 485, 483 (No. 6,047) (CC Me. 1823). Similarly, we stated in Wilander that "[t]raditional seamen's remedies ... have been 'universally recognized as ... growing out of the status of the seaman and his peculiar relationship to the vessel, and as a feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to sea in ships are subjected.'" 498 U. S., at 354 (quoting Seas Shipping Co. v. Sieracki, 328 U. S. 85, 104 (1946) (Stone, C. J., dissenting) ).The Jones Act, however, does not define the term "seaman" and therefore leaves to the courts the determination of exactly which maritime workers are entitled to admiralty's special protection. Early on, we concluded that Congress intended the term to have its established meaning under the general maritime law at the time the Jones Act was enacted. See Warner v. Goltra, 293 U. S. 155, 159 (1934). In Warner, we stated that "a seaman is a mariner of any degree, one who lives his life upon the sea." Id., at 157. Similarly, in Norton v. Warner Co., 321 U. S. 565, 572 (1944), we suggested that" 'every one is entitled to the privilege of a seaman who, like seamen, at all times contributes to the labors about the operation and welfare of the ship when she is upon a voyage'" (quoting The Buena Ventura, 243 F.7d 7, 799 (SDNY 1916)).Congress provided some content for the Jones Act requirement in 1927 when it enacted the Longshore and Harbor Workers' Compensation Act (LHWCA), which provides scheduled compensation (and the exclusive remedy) for injury to a broad range of land-based maritime workers but which also explicitly excludes from its coverage "a master or member of a crew of any vessel." 44 Stat. (part 2) 1424, as amended, 33 U. S. C. § 902(3)(G). As the Court has stated on several occasions, the Jones Act and the LHWCA are mu-356tually exclusive compensation regimes: "'master or member of a crew' is a refinement of the term 'seaman' in the Jones Act; it excludes from LHWCA coverage those properly covered under the Jones Act." Wilander, 498 U. S., at 347. Indeed, "it is odd but true that the key requirement for Jones Act coverage now appears in another statute." Ibid. Injured workers who fall under neither category may still recover under an applicable state workers' compensation scheme or, in admiralty, under general maritime tort principles (which are admittedly less generous than the Jones Act's protections). See Cheavens, Terminal Workers' Injury and Death Claims, 64 Tulane L. Rev. 361, 364-365 (1989).Despite the LHWCA language, drawing the distinction between those maritime workers who should qualify as seamen and those who should not has proved to be a difficult task and the source of much litigation-particularly because "the myriad circumstances in which men go upon the water confront courts not with discrete classes of maritime employees, but rather with a spectrum ranging from the blue-water seaman to the land-based longshoreman." Brown v. ITT Rayonier, Inc., 497 F.2d 234, 236 (CA5 1974). The federal courts have struggled over the years to articulate generally applicable criteria to distinguish among the many varieties of maritime workers, often developing detailed multipronged tests for seaman status. Since the 1950's, this Court largely has left definition of the Jones Act's scope to the lower courts. Unfortunately, as a result, "[t]he perils of the sea, which mariners suffer and shipowners insure against, have met their match in the perils of judicial review." Gilmore & Black, supra, § 6-1, at 272. Or, as one court paraphrased Diderot in reference to this body of law: "'We have made a labyrinth and got lost in it. We must find our way out.'" Johnson v. John F. Beasley Constr. Co., 742 F.2d 1054, 1060 (CA7 1984), cert. denied, 469 U. S. 1211 (1985); see 9 Oeuvres Completes de Diderot, 203 (J. Assezat ed. 1875).357AIn Wilander, decided in 1991, the Court attempted for the first time in 33 years to clarify the definition of a "seaman" under the Jones Act. Jon Wilander was injured while assigned as a foreman supervising the sandblasting and painting of various fixtures and piping on oil drilling platforms in the Persian Gulf. His employer claimed that he could not qualify as a seaman because he did not aid in the navigation function of the vessels on which he served. Emphasizing that the question presented was narrow, we considered whether the term "seaman" is limited to only those maritime workers who aid in a vessel's navigation.After surveying the history of an "aid in navigation" requirement under both the Jones Act and general maritime law, we concluded that "all those with that 'peculiar relationship to the vessel' are covered under the Jones Act, regardless of the particular job they perform," 498 U. S., at 354, and that "the better rule is to define 'master or member of a crew' under the LHWCA, and therefore 'seaman' under the Jones Act, solely in terms of the employee's connection to a vessel in navigation," ibid. Thus, we held that, although "[i]t is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, ... a seaman must be doing the ship's work." Id., at 355. We explained that "[t]he key to seaman status is employment-related connection to a vessel in navigation," and that, although "[w]e are not called upon here to define this connection in all details, ... we believe the requirement that an employee's duties must 'contribut[e] to the function of the vessel or to the accomplishment of its mission' captures well an important requirement of seaman status." Ibid.Beyond dispensing with the "aid to navigation" requirement, however, Wilander did not consider the requisite connection to a vessel in any detail and therefore failed to end the prevailing confusion regarding seaman status.358BRespondent urges us to find our way out of the Jones Act "labyrinth" by focusing on the seemingly activity-based policy underlying the statute (the protection of those who are exposed to the perils of the sea), and to conclude that anyone working on board a vessel for the duration of a "voyage" in furtherance of the vessel's mission has the necessary employment-related connection to qualify as a seaman. Brief for Respondent 12-17. Such an approach, however, would run counter to our prior decisions and our understanding of the remedial scheme Congress has established for injured maritime workers. A brief survey of the Jones Act's tortured history makes clear that we must reject the initial appeal of such a "voyage" test and undertake the more difficult task of developing a status-based standard that, although it determines Jones Act coverage without regard to the precise activity in which the worker is engaged at the time of the injury, nevertheless best furthers the Jones Act's remedial goals.Our Jones Act cases establish several basic principles regarding the definition of a seaman. First, "[w]hether under the Jones Act or general maritime law, seamen do not include land-based workers." Wilander, supra, at 348; see also Allbritton, Seaman Status in Wilander's Wake, 68 Tulane L. Rev. 373, 387 (1994). Our early Jones Act decisions had not recognized this fundamental distinction. In International Stevedoring Co. v. Haverty, 272 U. S. 50 (1926), we held that a longshoreman injured while stowing cargo, and while aboard but not employed by a vessel at dock in navigable waters, was a seaman covered by the Jones Act. Recognizing that "for most purposes, as the word is commonly used, stevedores are not 'seamen,'" the Court nevertheless concluded that "[w]e cannot believe that Congress willingly would have allowed the protection to men engaged upon the same maritime duties to vary with the accident of their being employed by a stevedore rather than by the ship." Id., at35952. Because stevedores are engaged in "a maritime service formerly rendered by the ship's crew," ibid. (citing Atlantic Transport Co. of W Va. v. Imbrovek, 234 U. S. 52, 62 (1914)), we concluded, they should receive the Jones Act's protections. See also Uravic v. F. Jarka Co., 282 U. S. 234, 238 (1931); Jamison v. Encarnacion, 281 U. S. 635, 639 (1930). In 1946, the Court belatedly recognized that Congress had acted, in passing the LHWCA in 1927, to undercut the Court's reasoning in the Haverty line of cases and to emphasize that land-based maritime workers should not be entitled to the seamen's traditional remedies. Our decision in Swanson v. Marra Brothers, Inc., 328 U. S. 1, 7 (1946), acknowledged that Congress had expressed its intention to "confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery recognized by the Haverty case only such rights to compensation as are given by [the LHWCA]." See also South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251, 257 (1940). Through the LHWCA, therefore, Congress "explicitly den[ied] a right of recovery under the Jones Act to maritime workers not members of a crew who are injured on board a vessel." Swanson, supra, at 6. And this recognition process culminated in Wilander with the Court's statement that, "[w]ith the passage of the LHWCA, Congress established a clear distinction between land-based and sea-based maritime workers. The latter, who owe their allegiance to a vessel and not solely to a land-based employer, are seamen." 498 U. S., at 347.In addition to recognizing a fundamental distinction between land-based and sea-based maritime employees, our cases also emphasize that Jones Act coverage, like the jurisdiction of admiralty over causes of action for maintenance and cure for injuries received in the course of a seaman's employment, depends "not on the place where the injury is inflicted ... but on the nature of the seaman's service, his status as a member of the vessel, and his relationship as360such to the vessel and its operation in navigable waters." Swanson, supra, at 4. Thus, maritime workers who obtain seaman status do not lose that protection automatically when on shore and may recover under the Jones Act whenever they are injured in the service of a vessel, regardless of whether the injury occurs on or off the ship. In O'Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36 (1943), the Court held a shipowner liable for injuries caused to a seaman by a fellow crew member while the former was on shore repairing a conduit that was a part of the vessel and that was used for discharging the ship's cargo. We explained:"The right of recovery in the Jones Act is given to the seaman as such, and, as in the case of maintenance and cure, the admiralty jurisdiction over the suit depends not on the place where the injury is inflicted but on the nature of the service and its relationship to the operation of the vessel plying in navigable waters." Id., at 42-43. Similarly, the Court in Swanson emphasized that the LHWCA "leaves unaffected the rights of members of the crew of a vessel to recover under the Jones Act when injured while pursuing their maritime employment whether on board ... or on shore." 328 U. S., at 7-8. See also Braen v. Pfeifer Oil Transp. Co., 361 U. S. 129, 131-132 (1959).Our LHWCA cases also recognize the converse: Landbased maritime workers injured while on a vessel in navigation remain covered by the LHWCA, which expressly provides compensation for injuries to certain workers engaged in "maritime employment" that are incurred "upon the navigable waters of the United States," 33 U. S. C. § 903(a). Thus, in Director, Office of Workers' Compensation Programs v. Perini North River Associates, 459 U. S. 297 (1983), we held that a worker injured while "working on a barge in actual navigable waters" of the Hudson River, id., at 300, n. 4, could be compensated under the LHWCA, id., at 324. See also Parker v. Motor Boat Sales, Inc., 314 U. S. 244, 244245 (1941) (upholding LHWCA coverage for a worker testing361outboard motors who "was drowned when a motor boat in which he was riding capsized"). These decisions, which reflect our longstanding view of the LHWCA's scope, indicate that a maritime worker does not become a "member of a crew" as soon as a vessel leaves the dock.It is therefore well settled after decades of judicial interpretation that the Jones Act inquiry is fundamentally status based: Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act protection when the course of their service to a vessel takes them ashore. In spite of this background, respondent and JusTICE STEVENS suggest that any maritime worker who is assigned to a vessel for the duration of a voyage-and whose duties contribute to the vessel's mission-should be classified as a seaman for purposes of injuries incurred during that voyage. See Brief for Respondent 14; post, at 377 (opinion concurring in judgment). Under such a "voyage test," which relies principally upon this Court's statements that the Jones Act was designed to protect maritime workers who are exposed to the "special hazards" and "particular perils" characteristic of work on vessels at sea, see, e. g., Wi lander, supra, at 354, the worker's activities at the time of the injury would be controlling.The difficulty with respondent's argument, as the foregoing discussion makes clear, is that the LHWCA repudiated the Haverty line of cases and established that a worker is no longer considered to be a seaman simply because he is doing a seaman's work at the time of the injury. Seaman status is not coextensive with seamen's risks. See, e. g., Easley v. Southern Shipbuilding Corp., 965 F.2d 1, 4-5 (CA5 1992), cert. denied, 506 U. S. 1050 (1993); Robertson 93 (following "the overwhelming weight of authority in taking it as given that seaman status cannot be established by any worker who fails to demonstrate that a significant portion of his work was done aboard a vessel" and acknowledging that "[s]ome362workers who unmistakably confront the perils of the sea, often in extreme form, are thereby left out of the seamen's protections" (footnote omitted)). A "voyage test" would conflict with our prior understanding of the Jones Act as fundamentally status based, granting the negligence cause of action to those maritime workers who form the ship's company. Swanson, supra, at 4-5; O'Donnell, supra, at 42-43.Desper v. Starved Rock Ferry Co., 342 U. S. 187, 190 (1952), is not to the contrary. Although some language in that case does suggest that whether an individual is a seaman depends upon "the activity in which he was engaged at the time of injury," the context of that discussion reveals that "activity" referred to the worker's employment as a laborer on a vessel undergoing seasonal repairs while out of navigation, and not to his precise task at the time of injury. Similarly, despite Justice Harlan's suggestion in dissent that the Court's decision in Grimes v. Raymond Concrete Pile Co., 356 U. S. 252 (1958), necessarily construed the word seaman "to mean nothing more than a person injured while working at sea," id., at 255, our short per curiam opinion in that case does not indicate that we adopted so expansive a reading of the statutory term. Citing our prior cases which emphasized that the question of seaman status is normally for the factfinder to decide, see, e. g., Senko v. LaCrosse Dredging Corp., 352 U. S. 370, 371-372 (1957); Bassett, 309 U. S., at 257-258, we reversed the judgment of the Court of Appeals and held simply that the jury could have inferred from the facts presented that the petitioner was a member of a crew in light of his overall service to the company (as the District Court had concluded in ruling on a motion for a directed verdict at the close of petitioner's case). Grimes, supra, at 253. That neither Desper nor Grimes altered our established course in favor of a voyage test is confirmed by reference to our later decision in Braen, supra, at 131, in which we repeated that "[t]he injured party must of course have 'status as a member of the vessel' for it is seamen, not others who may work on363the vessel (Swanson v. Marra Bros., 328 U. S. 1, 4), to whom Congress extended the protection of the Jones Act."We believe it is important to avoid" 'engrafting upon the statutory classification of a "seaman" a judicial gloss so protean, elusive, or arbitrary as to permit a worker to walk into and out of coverage in the course of his regular duties.''' Barrett v. Chevron, U. S. A., Inc., 781 F.2d 1067, 1075 (CA5 1986) (en bane) (quoting Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1347, n. 6 (CA5 1980)). In evaluating the employment-related connection of a maritime worker to a vessel in navigation, courts should not employ "a 'snapshot' test for seaman status, inspecting only the situation as it exists at the instant of injury; a more enduring relationship is contemplated in the jurisprudence." Easley, supra, at 5. Thus, a worker may not oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured. Reeves v. Mobile Dredging & Pumping Co., 26 F.3d 1247, 1256 (CA3 1994). Unlike JUSTICE STEVENS, see post, at 383, we do not believe that any maritime worker on a ship at sea as part of his employment is automatically a member of the crew of the vessel within the meaning of the statutory terms. Our rejection of the voyage test is also consistent with the interests of employers and maritime workers alike in being able to predict who will be covered by the Jones Act (and, perhaps more importantly for purposes of the employers' workers' compensation obligations, who will be covered by the LHWCA) before a particular workday begins.To say that our cases have recognized a distinction between land-based and sea-based maritime workers that precludes application of a voyage test for seaman status, however, is not to say that a maritime employee must work only on board a vessel to qualify as a seaman under the Jones Act. In Southwest Marine, Inc. v. Gizoni, 502 U. S. 81 (1991), decided only a few months after Wi lander, we concluded that a worker's status as a ship repairman, one of the enumerated364occupations encompassed within the term "employee" under the LHWCA, 33 U. s. C. § 902(3), did not necessarily restrict the worker to a remedy under that statute. We explained that, "[w]hile in some cases a ship repairman may lack the requisite connection to a vessel in navigation to qualify for seaman status, ... not all ship repairmen lack the requisite connection as a matter of law. This is so because '[i]t is not the employee's particular job that is determinative, but the employee's connection to a vessel.'" Gizoni, supra, at 89 (quoting Wi lander, 498 U. S., at 354) (footnote omitted). Thus, we concluded, the Jones Act remedy may be available to maritime workers who are employed by a shipyard and who spend a portion of their time working on shore but spend the rest of their time at sea.Beyond these basic themes, which are sufficient to foreclose respondent's principal argument, our cases are largely silent as to the precise relationship a maritime worker must bear to a vessel in order to come within the Jones Act's ambit. We have, until now, left to the lower federal courts the task of developing appropriate criteria to distinguish the "ship's company" from those members of the maritime community whose employment is essentially land based.CThe Court of Appeals for the First Circuit was apparently the first to develop a generally applicable test for seaman status. In Carumbo v. Cape Cod S. S. Co., 123 F.2d 991 (1941), the court retained the pre-Swanson view that "the word 'seaman' under the Jones Act [did] not mean the same thing as 'member of a crew' under the [LHWCA]," 123 F. 2d, at 994. It concluded that "one who does any sort of work aboard a ship in navigation is a 'seaman' within the meaning of the Jones Act." Id., at 995. To the phrase "member of a crew," on the other hand, the court gave a more restrictive meaning. The court adopted three elements to define the phrase that had been used at various times in prior cases,365holding that "[t]he requirements that the ship be in navigation; that there be a more or less permanent connection with the ship; and that the worker be aboard primarily to aid in navigation appear to us to be the essential and decisive elements of the definition of a 'member of a crew.'" Ibid. Cf. Senko, supra, at 375 (Harlan, J., dissenting) ("According to past decisions, to be a 'member of a crew' an individual must have some connection, more or less permanent, with a ship and a ship's company"). Once it became clear that the phrase "master or member of a crew" from the LHWCA is coextensive with the term "seaman" in the Jones Act, courts accepted the Carumbo formulation of master or member of a crew in the Jones Act context. See Boyd v. Ford Motor Co., 948 F.2d 283 (CA6 1991); Estate of Wenzel v. Seaward Marine Services, Inc., 709 F.2d 1326, 1327 (CA91983); Whittington v. Sewer Constr. Co., 541 F.2d 427, 436 (CA4 1976); Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 36 (CA3 1975), cert. denied, 423 U. S. 1054 (1976); McKie v. Diamond Marine Co., 204 F.2d 132, 136 (CA5 1953). The Court of Appeals for the Second Circuit initially was among the jurisdictions to adopt the Carumbo formulation as the basis of its seaman status inquiry, see Salgado v. M. J. Rudolph Corp., 514 F. 2d, at 755, but that court took the instant case as an opportunity to modify the traditional test somewhat (replacing the "more or less permanent connection" prong with a requirement that the connection be "substantial in terms of its (a) duration and (b) nature"), 20 F. 3d, at 57.The second major body of seaman status law developed in the Court of Appeals for the Fifth Circuit, which has a substantial Jones Act caseload, in the wake of Offshore Co. v. Robison, 266 F.2d 769 (CA5 1959). At the time of his injury, Robison was an oil worker permanently assigned to a drilling rig mounted on a barge in the Gulf of Mexico. In sustaining the jury's award of damages to Robison under the Jones Act, the court abandoned the aid in navigation requirement of the traditional test and held as follows:366"[T]here is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel ... or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips." Id., at 779 (footnote omitted).Soon after Robison, the Fifth Circuit modified the test to allow seaman status for those workers who had the requisite connection with an "identifiable fleet" of vessels, a finite group of vessels under common ownership or control. Braniff v. Jackson Avenue-Gretna Ferry, Inc., 280 F.2d 523, 528 (1960). See also Barrett, 781 F. 2d, at 1074; Bertrand v. International Mooring & Marine, Inc., 700 F.2d 240 (CA5 1983), cert. denied, 464 U. S. 1069 (1984). The modified Robison formulation, which replaced the Carumbo version as the definitive test for seaman status in the Fifth Circuit, has been highly influential in other courts as well. See Robertson 95; Miller v. Patton-Tully Transp. Co., 851 F.2d 202, 204 (CA8 1988); Caruso v. Sterling Yacht & Shipbuilders, Inc., 828 F.2d 14, 15 (CAll 1987); Bennett v. Perini Corp., 510While the Carumbo and Robison approaches may not seem all that different at first glance, subsequent developments in the Fifth Circuit's Jones Act jurisprudence added a strictly temporal gloss to the Jones Act inquiry. Under Barrett v. Chevron, U. S. A., Inc., supra, if an employee's regular duties require him to divide his time between vessel and land, his status as a crew member is determined "in the context of his entire employment" with his current employer. Id., at 1075. See also Allbritton, 68 Tulane L. Rev., at 386; Longmire, 610 F. 2d, at 1347 (explaining that a worker's seaman status "should be addressed with reference to the na-367ture and location of his occupation taken as a whole"). In Barrett, the court noted that the worker "performed seventy to eighty percent of his work on platforms and no more than twenty to thirty percent of his work on vessels" and then concluded that, "[b]ecause he did not perform a substantial portion of his work aboard a vessel or fleet of vessels, he failed to establish that he was a member of the crew of a vessel." 781 F. 2d, at 1076. Since Barrett, the Fifth Circuit consistently has analyzed the problem in terms of the percentage of work performed on vessels for the employer in question-and has declined to find seaman status where the employee spent less than 30 percent of his time aboard ship. See, e. g., Palmer v. Fayard Moving & Transp. Corp., 930 F. 2d 437, 439 (1991); Lormand v. Superior Oil Co., 845 F. 2d 536, 541 (1987), cert. denied, 484 U. S. 1031 (1988); cf. Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291, 295 (1987); Pickle v. International Oilfield Divers, Inc., 791 F.2d 1237, 1240 (1986), cert. denied, 479 U. S. 1059 (1987).Although some Courts of Appeals have varied the applicable tests to some degree, see, e. g., Johnson v. John F. Beasley Constr. Co., 742 F. 2d, at 1062-1063, the traditional Carumbo seaman status formulation and the subsequent Robison modification are universally recognized, and one or the other is applied in every Federal Circuit to have considered the issue. See Bull, Seaman Status Revisited: A Practical Guide To Status Determination, 6 U. S. F. Mar. L. J. 547, 562-572 (1994) (collecting cases). The federal courts generally require at least a significant connection to a vessel in navigation (or to an identifiable fleet of vessels) for a maritime worker to qualify as a seaman under the Jones Act. Although the traditional test requires a "more or less permanent connection" and the Robison formulation calls for "substantial" work aboard a vessel, "this general requirement varies little, if at all, from one jurisdiction to another," Bull, supra, at 587, and "[t]he courts have repeatedly held368that the relationship creating seaman status must be substantial in point of time and work, and not merely sporadic," id., at 587-588.DFrom this background emerge the essential contours of the "employment-related connection to a vessel in navigation," Wilander, 498 U. S., at 355, required for an employee to qualify as a seaman under the Jones Act. We have said that, in giving effect to the term "seaman," our concern must be "to define the meaning for the purpose of a particular statute" and that its use in the Jones Act "must be read in the light of the mischief to be corrected and the end to be attained." Warner, 293 U. S., at 158. Giving effect to those guiding principles, we think that the essential requirements for seaman status are twofold. First, as we emphasized in Wilander, "an employee's duties must 'contribut[e] to the function of the vessel or to the accomplishment of its mission.'" 498 U. S., at 355 (quoting Robison, 266 F. 2d, at 779). The Jones Act's protections, like the other admiralty protections for seamen, only extend to those maritime employees who do the ship's work. But this threshold requirement is very broad: "All who work at sea in the service of a ship" are eligible for seaman status. 498 U. S., at 354.Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea. See 1B A. Jenner, Benedict on Admiralty § 11a, pp. 2-10.1 to 2-11 (7th ed. 1994) ("If it can be shown that the employee performed a369significant part of his work on board the vessel on which he was injured, with at least some degree of regularity and continuity, the test for seaman status will be satisfied" (footnote omitted)). This requirement therefore determines which maritime employees in Wilander's broad category of persons eligible for seaman status because they are "doing the ship's work," 498 U. S., at 355, are in fact entitled to the benefits conferred upon seamen by the Jones Act because they have the requisite employment-related connection to a vessel in navigation.It is important to recall that the question of who is a "member of a crew," and therefore who is a "seaman," is a mixed question of law and fact. Because statutory terms are at issue, their interpretation is a question of law and it is the court's duty to define the appropriate standard. Wilander, 498 U. S., at 356. On the other hand, "[i]f reasonable persons, applying the proper legal standard, could differ as to whether the employee was a 'member of a crew,' it is a question for the jury." Ibid. See also Senko, 352 U. S., at 374 (explaining that "the determination of whether an injured person was a 'member of a crew' is to be left to the finder of fact" and that "a jury's decision is final if it has a reasonable basis"). The jury should be permitted, when determining whether a maritime employee has the requisite employment-related connection to a vessel in navigation to qualify as a member of the vessel's crew, to consider all relevant circumstances bearing on the two elements outlined above.In defining the prerequisites for Jones Act coverage, we think it preferable to focus upon the essence of what it means to be a seaman and to eschew the temptation to create detailed tests to effectuate the congressional purpose, tests that tend to become ends in and of themselves. The principal formulations employed by the Courts of Appeals-"more or less permanent assignment" or "connection to a vessel that is substantial in terms of its duration and nature" -are370simply different ways of getting at the same basic point: The Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to "the special hazards and disadvantages to which they who go down to sea in ships are subjected." Sieracki, 328 U. S., at 104 (Stone, C. J., dissenting). Indeed, it is difficult to discern major substantive differences in the language of the two phrases. In our view, "the total circumstances of an individual's employment must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereon." Wallace v. Oceaneering Int'Z, 727 F.2d 427, 432 (CA5 1984). The duration of a worker's connection to a vessel and the nature of the worker's activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time.Although we adopt the centerpiece of the formulation used by the Court of Appeals in this case-that a seaman must have a connection with a vessel in navigation that is substantial in both duration and nature-we should point out how our understanding of the import of that language may be different in some respects from that of the court below. The Court of Appeals suggested that its test for seaman status "does not unequivocally require a Jones Act seaman to be substantially connected to a vessel" in terms of time if the worker performs important work on board on a steady, although not necessarily on a temporally significant, basis. 20 F. 3d, at 53. Perhaps giving effect to this intuition, or perhaps reacting to the temporal gloss placed on the Robison language by later Fifth Circuit decisions, the court phrased its standard at one point as requiring a jury to find that a Jones Act plaintiff's contribution to the function of the vessel was substantial in terms of its duration or nature. 20 F. 3d, at 57. It is not clear which version ("duration or nature"371as opposed to "duration and nature") the Court of Appeals intended to adopt for the substantial connection requirement-or indeed whether the court saw a significant difference between the two. Nevertheless, we think it is important that a seaman's connection to a vessel in fact be substantial in both respects.We agree with the Court of Appeals that seaman status is not merely a temporal concept, but we also believe that it necessarily includes a temporal element. A maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land based and therefore not a member of the vessel's crew, regardless of what his duties are. Naturally, substantiality in this context is determined by reference to the period covered by the Jones Act plaintiff's maritime employment, rather than by some absolute measure. Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case:A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases. As we have said, "[t]he inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee's precise relation to it." Wi lander, 498 U. S., at 356. Nevertheless, we believe that courts, employers, and maritime workers can all benefit from reference to these general principles. And where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, the court may take the question from the jury by granting summary judgment or a directed verdict. See, e. g., Palmer, 930 F. 2d, at 439.On the other hand, we see no reason to limit the seaman status inquiry, as petitioners contend, exclusively to an examination of the overall course of a worker's service with a372particular employer. Brief for Petitioners 14-15. When a maritime worker's basic assignment changes, his seaman status may change as well. See Barrett, 781 F. 2d, at 1077 (Rubin, J., dissenting) ("An assignment to work as a crew member, like the voyage of a vessel, may be brief, and the Robison test is applicable in deciding the worker's status during any such employment"); Longmire, 610 F. 2d, at 1347, n. 6. For example, we can imagine situations in which someone who had worked for years in an employer's shoreside headquarters is then reassigned to a ship in a classic seaman's job that involves a regular and continuous, rather than intermittent, commitment of the worker's labor to the function of a vessel. Such a person should not be denied seaman status if injured shortly after the reassignment, just as someone actually transferred to a desk job in the company's office and injured in the hallway should not be entitled to claim seaman status on the basis of prior service at sea. If a maritime employee receives a new work assignment in which his essential duties are changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new position. See Cheavens, 64 Tulane L. Rev., at 389-390. Thus, nothing in our opinion forecloses Jones Act coverage, in appropriate cases, for JUSTICE STEVENS' paradigmatic maritime worker injured while reassigned to "a lengthy voyage on the high seas," post, at 386. While our approach maintains the status-based inquiry this Court's earlier cases contemplate, we recognize that seaman status also should not be some immutable characteristic that maritime workers who spend only a portion of their time at sea can never attain.IIIOne final issue remains for our determination: whether the District Court erred in instructing the jurors that, "[i]n determining whether Mr. Latsis performed a substantial part of his work on the vessel, [they could] not consider the period373of time the Galileo was in drydock in Germany, because during that time period she was out of navigation." We agree with the Court of Appeals that it did.The foregoing discussion establishes that, to qualify as a seaman under the Jones Act, a maritime employee must have a substantial employment-related connection to a vessel in navigation. See Wi lander, supra, at 354-355. Of course, any time Latsis spent with the Galileo while the ship was out of navigation could not count as time spent at sea for purposes of that inquiry, and it would have been appropriate for the District Court to make this clear to the jury. Yet the underlying inquiry whether a vessel is or is not "in navigation" for Jones Act purposes is a fact-intensive question that is normally for the jury and not the court to decide. See Butler v. Whiteman, 356 U. S. 271 (1958) (per curiam); 2 M. Norris, Law of Seamen § 30.13, p. 363 (4th ed. 1985) ("Whether the vessel is in navigation presents a question of fact to be determined by the trier of the facts. When the case is tried to a jury the fact question should be left to their consideration if sufficient evidence has been presented to provide the basis for jury consideration"). Removing the issue from the jury's consideration is only appropriate where the facts and the law will reasonably support only one conclusion, Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 250251 (1986), and the colloquy between the court and counsel does not indicate that the District Court made any such findings before overruling respondent's objection to the drydock instruction. See Tr. 432. Based upon the record before us, we think the court failed adequately to justify its decision to remove the question whether the Galileo was "in navigation" while in Bremerhaven from the jury.Under our precedent and the law prevailing in the Circuits, it is generally accepted that "a vessel does not cease to be a vessel when she is not voyaging, but is at anchor, berthed, or at dockside," DiGiovanni v. Traylor Bros., Inc., 959 F.2d 1119, 1121 (CA1) (en bane), cert. denied, 506 U. S.374827 (1992), even when the vessel is undergoing repairs. See Butler, supra, at 271; Senko, 352 U. S., at 373; Norris, supra, at 364 ("[A] vessel is in navigation ... when it returns from a voyage and is taken to a drydock or shipyard to undergo repairs in preparation to making another trip, and likewise a vessel is in navigation, although moored to a dock, if it remains in readiness for another voyage" (footnotes omitted)). At some point, however, repairs become sufficiently significant that the vessel can no longer be considered in navigation. In West v. United States, 361 U. S. 118 (1959), we held that a shoreside worker was not entitled to recover for unseaworthiness because the vessel on which he was injured was undergoing an overhaul for the purpose of making her seaworthy and therefore had been withdrawn from navigation. We explained that, in such cases, "the focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done." Id., at 122. See also United N. Y. and N. J. Sandy Hook Pilots Assn. v. Halecki, 358 U. S. 613 (1959); Desper, 342 U. S., at 191. The general rule among the Courts of Appeals is that vessels undergoing repairs or spending a relatively short period of time in drydock are still considered to be "in navigation" whereas ships being transformed through "major" overhauls or renovations are not. See Bull, 6 U. S.Obviously, while the distinction at issue here is one of degree, the prevailing view is that "major renovations can take a ship out of navigation, even though its use before and after the work will be the same." McKinley v. All Alaskan Seafoods, Inc., 980 F.2d 567, 570 (CA9 1992). Our review of the record in this case uncovered relatively little evidence bearing on the Galileo's status during the repairs, and even less discussion of the question by the District Court. On the one hand, the work on the Chandris vessel took only about six months, which seems to be a relatively short period of time for important repairs on oceangoing vessels. Cf. id., at 571375(17 -month-long project involving major structural changes took the vessel out of navigation); Wixom v. Boland Marine & Manufacturing Co., 614 F.2d 956 (CA5 1980) (similar 3-year project); see also Senko, supra, at 373 (noting that "[e]ven a transoceanic liner may be confined to berth for lengthy periods, and while there the ship is kept in repair by its 'crew' "-and that "[t]here can be no doubt that a member of its crew would be covered by the Jones Act during this period, even though the ship was never in transit during his employment"). On the other hand, Latsis' own description of the work performed suggests that the modifications to the vessel were actually quite significant, including the removal of the ship's bottom plates and propellers, the addition of bow thrusters, overhaul of the main engines, reconstruction of the boilers, and renovations of the cabins and other passenger areas of the ship. See App. 93-94. On these facts, which are similar to those in McKinley, it is possible that Chandris could be entitled to partial summary judgment or a directed verdict concerning whether the Galileo remained in navigation while in drydock; the record, however, contains no stipulations or findings by the District Court to justify its conclusion that the modifications to the Galileo were sufficiently extensive to remove the vessel from navigation as a matter of law. On that basis, we agree with the Court of Appeals that the District Court's drydock instruction was erroneous.Even if the District Court had been justified in directing a verdict on the question whether the Galileo remained in navigation while in Bremerhaven, we think that the court's charge to the jury swept too broadly. Instead of simply noting the appropriate legal conclusion and instructing the jury not to consider the time Latsis spent with the vessel in drydock as time spent with a vessel in navigation, the District Court appears to have prohibited the jury from considering Latsis' stay in Bremerhaven for any purpose. In our view, Latsis' activities while the vessel was in drydock are at least376marginally relevant to the underlying inquiry (whether Latsis was a seaman and not a land-based maritime employee). Naturally, the jury would be free to draw several inferences from Latsis' work during the conversion, not all of which would be in his favor. But the choice among such permissible inferences should have been left to the jury, and we think the District Court's broadly worded instruction improperly deprived the jury of that opportunity by forbidding the consideration of Latsis' time in Bremerhaven at all.IVUnder the Jones Act, "[i]freasonable persons, applying the proper legal standard, could differ as to whether the employee was a 'member of a crew,' it is a question for the jury." Wilander, 498 U. S., at 356. On the facts of this case, given that essential points are in dispute, reasonable factfinders could disagree as to whether Latsis was a seaman. Because the question whether the Galileo remained "in navigation" while in drydock should have been submitted to the jury, and because the decision on that issue might affect the outcome of the ultimate seaman status inquiry, we affirm the judgment of the Court of Appeals remanding the case to the District Court for a new trial.On remand, the District Court should charge the jury in a manner consistent with our holding that the "employmentrelated connection to a vessel in navigation" necessary to qualify as a seaman under the Jones Act, id., at 355, comprises two basic elements: The worker's duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and its nature. As to the latter point, the court should emphasize that the Jones Act was intended to protect sea-based maritime workers, who owe their allegiance to a vessel, and not land-based employees, who do not. By instructing juries in Jones Act377cases accordingly, courts can give proper effect to the remedial scheme Congress has created for injured maritime workers.It is so ordered

OCTOBER TERM, 1994SyllabusCHANDRIS, INC., ET AL. v. LATSISCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 94-325. Argued February 21, 1995-Decided June 14, 1995Respondent Latsis' duties as a superintendent engineer for petitioner Chandris, Inc., required him to take voyages on Chandris' ships. He lost substantial vision in one eye after a condition that he developed while on one of those voyages went untreated by a ship's doctor. Following his recuperation, he sailed to Germany on the S. S. Galileo and stayed with the ship while it was in drydock for refurbishment. Subsequently, he sued Chandris for damages for his eye injury under the Jones Act, which provides a negligence cause of action for "any seaman" injured "in the course of his employment." The District Court instructed the jury that Latsis was a "seaman" if he was permanently assigned to, or performed a substantial part of his work on, a vessel, but that the time Latsis spent with the Galileo while it was in drydock could not be considered because the vessel was then out of navigation. The jury returned a verdict for Chandris based solely on Latsis' seaman status. The Court of Appeals vacated the judgment, finding that the jury instruction improperly framed the issue primarily in terms of Latsis' temporal relationship to the vessel. It held that the "employmentrelated connection to a vessel in navigation" required for seaman status under the Jones Act, McDermott Int'l, Inc. v. Wilander, 498 U. S. 337, 355, exists where an individual contributes to a vessel's function or the accomplishment of its mission; the contribution is limited to a particular vessel or identifiable group of vessels; the contribution is substantial in terms of its duration or nature; and the course of the individual's employment regularly exposes him to the hazards of the sea. It also found that the District Court erred in instructing the jury that the Galileo's drydock time could not count in the substantial connection equation.Held:1. The "employment-related connection to a vessel in navigation" necessary for seaman status comprises two basic elements: The worker's duties must contribute to the function of the vessel or to the accomplishment of its mission, id., at 355, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in both its duration and its nature. Pp. 354-372.(a) The Jones Act provides heightened legal protections to seamen because of their exposure to the perils of the sea, but does not define348Syllabusthe term "seaman." However, the Court's Jones Act cases establish the basic principles that the term does not include land-based workers, 498 U. S., at 348, and that seaman status depends "not on the place where the injury is inflicted ... but on the nature of the seaman's service, his status as a member of the vessel, and his relationship ... to the vessel and its operation in navigable waters," Swanson v. Marra Brothers, Inc., 328 U. S. 1, 4. Thus, land-based maritime workers do not become seamen when they happen to be working aboard a vessel, and seamen do not lose Jones Act coverage when their service to a vessel takes them ashore. Latsis' proposed "voyage test" -under which any maritime worker assigned to a vessel for the duration of a voyage, whose duties contribute to the vessel's mission, would be a seaman for injuries incurred during that voyage-conflicts with this status-based inquiry. Desper v. Starved Rock Ferry Co., 342 U. S. 187, 190, and Grimes v. Raymond Concrete Pile Co., 356 U. S. 252, 255, distinguished. Pp. 354-364.(b) Beyond the basic themes outlined here, the Court's cases have been silent as to the precise relationship a maritime worker must bear to a vessel in order to come within the Jones Act's ambit, leaving the lower federal courts the task of developing appropriate criteria to distinguish "ship's company" from land-based maritime workers. Those courts generally require at least a significant connection to a vessel in navigation (or to an identifiable fleet of vessels) for a maritime worker to qualify as a seaman under the Jones Act. Pp. 364-368.(c) The test for seaman status adopted here has two essential requirements. The first is a broad threshold requirement that makes all maritime employees who do the ship's work eligible for seaman status. Wilander, supra, at 355. The second requirement determines which of these eligible maritime employees have the required employmentrelated connection to a vessel in navigation to make them in fact entitled to Jones Act benefits. This requirement gives full effect to the remedial scheme created by Congress and separates sea-based maritime employees entitled to Jones Act protection from land-based workers whose employment does not regularly expose them to the perils of the sea. Who is a "member of a crew" is a mixed question of law and fact. A jury should be able to consider all relevant circumstances bearing on the two requirements. The duration of a worker's connection to a vessel and the nature of the worker's activities, taken together, determine whether he is a seaman, because the ultimate inquiry is whether the worker is part of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time. Although seaman status is not merely a temporal concept, it includes a temporal element. A worker who spends only a small fraction of his working time aboard a vessel is fundamentally land-based and therefore not a crew member349Full Text of Opinion

1993_92-1750

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.The Copyright Act of 1976, 17 U. s. C. § 505, provides in relevant part that in any copyright infringement action "the court may ... award a reasonable attorney's fee to the prevailing party as part of the costs." 1 The question presented in this case is what standards should inform a court's decision to award attorney's fees to a prevailing defendant in a copyright infringement action-a question that has produced conflicting views in the Courts of Appeals.Petitioner John Fogerty is a successful musician, who, in the late 1960's, was the lead singer and songwriter of a popular music group known as "Creedence Clearwater Revival." 2 In 1970, he wrote a song entitled "Run Through the Jungle" and sold the exclusive publishing rights to predecessors-ininterest of respondent Fantasy, Inc., who later obtained the copyright by assignment. The music group disbanded in 1972 and Fogerty subsequently published under another recording label. In 1985, he published and registered a copyright to a song entitled "The Old Man Down the Road," which was released on an album distributed by Warner Brothers Records, Inc. Respondent Fantasy, Inc.,1 The section provides in full: "In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs." 17 U. S. C. §505.2 Creedence Clearwater Revival (CCR), recently inducted into the Rock and Roll Hall of Fame, has been recognized as one of the greatest American rock and roll groups of all time. With Fogerty as its leader, CCR developed a distinctive style of music, dubbed "swamp rock" by the media due to its southern country and blues feel. Brief for Petitioner 4-5; see also Questions and Answers with John Fogerty, Los Angeles Times, Jan. 12, 1993, section F, p. 1, col. 2.520sued Fogerty, Warner Brothers, and affiliated companies 3 in District Court, alleging that "The Old Man Down the Road" was merely "Run Through the Jungle" with new words.4 The copyright infringement claim went to trial and a jury returned a verdict in favor of Fogerty.After his successful defense of the action, Fogerty moved for reasonable attorney's fees pursuant to 17 U. s. C. § 505. The District Court denied the motion, finding that Fantasy's infringement suit was not brought frivolously or in bad faith as required by Circuit precedent for an award of attorney's fees to a successful defendant.5 The Court of Appeals affirmed, 984 F.2d 1524 (CA9 1993), and declined to abandon the existing Ninth Circuit standard for awarding attorney's fees which treats successful plaintiffs and successful defendants differently. Under that standard, commonly termed the "dual" standard, prevailing plaintiffs are generally awarded attorney's fees as a matter of course, while prevailing defendants must show that the original suit was frivolous3 Pursuant to an agreement between Fogerty and the Warner defendants, Fogerty indemnified and reimbursed the Warner defendants for their attorney's fees and costs incurred in defending the copyright infringement action. Brief for Petitioner 4, n. 3.4 In addition to the copyright infringement claim, Fantasy asserted state law and Lanham Act claims. These claims were voluntarily dismissed before trial. Petitioner also asserted various counterclaims against Fantasy, which were ultimately dismissed on Fantasy's motion for summary judgment. These related claims and counterclaims are not before this Court.5 In making its findings, the District Court stated: "Although the facts of this case did not present the textbook scenario of copyright infringement, the Court has held that Fogerty could indeed be held liable for copyright infringement even where he also wrote the song allegedly infringed .... Nor does Fantasy's 'knowledge of Fogerty's creativity' mean that this suit was brought in bad faith, where a finding of subconscious copying would have supported Fantasy's infringement claim." App. to Pet. for Cert. A-31 (citation omitted).521or brought in bad faith.6 In contrast, some Courts of Appeals follow the so-called "evenhanded" approach in which no distinction is made between prevailing plaintiffs and prevailing defendants.7 The Court of Appeals for the Third Circuit, for example, has ruled that "we do not require bad faith, nor do we mandate an allowance of fees as a concomitant of prevailing in every case, but we do favor an evenhanded approach." Lieb v. Topstone Industries, Inc., 788We granted certiorari, 509 U. S. 903 (1993), to address an important area of federal law and to resolve the conflict between the Ninth Circuit's "dual" standard for awarding attorney's fees under § 505, and the so-called "evenhanded" approach exemplified by the Third Circuit.8 We reverse.6 By predicating an award of attorney's fees to prevailing defendants on a showing of bad faith or frivolousness on the part of plaintiffs, the "dual" standard makes it more difficult for prevailing defendants to secure awards of attorney's fees than prevailing plaintiffs. The Ninth Circuit has explained that prevailing plaintiffs, on the other hand, should generally receive such awards absent special circumstances such as "the presence of a complex or novel issue of law that the defendant litigates vigorously and in good faith .... " McCulloch v. Albert E. Price, Inc., 823 F. 2d 316, 323 (1987). In the instant case, the Court of Appeals explained:"The purpose of [the dual standard] rule is to avoid chilling a copyright holder's incentive to sue on colorable claims, and thereby to give full effect to the broad protection for copyrights intended by the Copyright Act." 984 F. 2d, at 1532.7 At oral argument, counsel for respondent voiced his dissatisfaction with the terms "dual" and "evenhanded" used to describe the differing rules in the Circuits. Tr. of Oral Arg. 31. Counsel objected to the implication from the terms-that the Ninth Circuit's dual standard was somehow not evenhanded or fair. While this point may be well taken in a rhetorical sense, we will continue to use the terms as commonly used by the lower courts for the sake of convenience.S In addition to the Ninth Circuit, the Second, Seventh, and District of Columbia Circuits have adopted a "dual" standard of awarding attorney's fees whereby a greater burden is placed upon prevailing defendants than prevailing plaintiffs. See, e. g., Diamond v. Am-Law Publishing Corp.,522Respondent advances three arguments in support of the dual standard followed by the Court of Appeals for the Ninth Circuit in this case. First, it contends that the language of § 505, when read in the light of our decisions construing similar fee-shifting language, supports the rule. Second, it asserts that treating prevailing plaintiffs and defendants differently comports with the "objectives" and "equitable considerations" underlying the Copyright Act as a whole. Finally, respondent contends that the legislative history of § 505 indicates that Congress ratified the dual standard which it claims was "uniformly" followed by the lower courts under identical language in the 1909 Copyright Act. We address each of these arguments in turn.The statutory language-"the court may also award a reasonable attorney's fee to the prevailing party as part of the costs"-gives no hint that successful plaintiffs are to be treated differently from successful defendants. But respondent contends that our decision in Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), in which we construed virtually identical language, supports a differentiation in treatment between plaintiffs and defendants.Christiansburg construed the language of Title VII of the Civil Rights Act of 1964, which in relevant part provided that the court, "in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs .... " 42 U. S. C. § 2000e-5(k). We had earlier held, interpreting the cognate provision of Title II of that Act, 42 U. S. C. § 2000a-3(b), that a prevailing plaintiff "should ordinarily745 F.2d 142, 148-149 (CA2 1984); Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1022 (CA7), cert. denied, 502 U. S. 861 (1991); Reader's Digest Assn., Inc. v. Conservative Digest, Inc., 821 F.2d 800, 809 (CADC 1987). On the other hand, the Fourth and Eleventh Circuits have been identified as following an "evenhanded" approach similar to that of the Third Circuit. See, e. g., Sherry Manufacturing Co. v. Towel King of Florida, Inc., 822 F.2d 1031, 1034-1035, n. 3 (CAll 1987); Cohen v. Virginia Electric & Power Co., 617 F. Supp. 619, 620-623 (ED Va. 1985), aff'd on other grounds, 788 F.2d 247 (CA4 1986).523recover an attorney's fee unless some special circumstances would render such an award unjust." Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402 (1968). This decision was based on what we found to be the important policy objectives of the Civil Rights statutes, and the intent of Congress to achieve such objectives through the use of plaintiffs as "'private attorney[s] generaL'" Ibid. In Christiansburg, supra, we determined that the same policy considerations were not at work in the case of a prevailing civil rights defendant. We noted that a Title VII plaintiff, like a Title II plaintiff in Piggie Park, is "the chosen instrument of Congress to vindicate 'a policy that Congress considered of the highest priority.'" 434 U. S., at 418. We also relied on the admittedly sparse legislative history to indicate that different standards were to be applied to successful plaintiffs than to successful defendants.Respondent points to our language in Flight Attendants v. Zipes, 491 U. S. 754, 758, n. 2 (1989), that "fee-shifting statutes' similar language is a 'strong indication' that they are to be interpreted alike." But here we think this normal indication is overborne by the factors relied upon in our Christiansburg opinion that are absent in the case of the Copyright Act.9 The legislative history of § 505 provides no support for treating prevailing plaintiffs and defendants differently with respect to the recovery of attorney's fees. The attorney's fees provision of § 505 of the 1976 Act was carried forward verbatim from the 1909 Act with very little discussion.10 The relevant House Report provides simply:"Under section 505 the awarding of costs and attorney's fees are left to the court's discretion, and the section also makes clear that neither costs nor attorney's fees9 Additionally, we note that Congress, in enacting § 505 of the 1976 Copyright Act, could not have been aware of the Christiansburg dual standard as Christiansburg was not decided until 1978.10 For the former provision under the Copyright Act of 1909, see 17524can be awarded to or against 'the United States or an officer thereof.'" H. R. Rep. No. 94-1476, p. 163 (1976).11See also S. Rep. No. 94-473, p. 145 (1975) (same). Other courts and commentators have noted the paucity of legislative history of § 505. See, e. g., Cohen v. Virginia Electric & Power Co., 617 F. Supp. 619, 621 (ED Va. 1985), aff'd on other grounds, 788 F.2d 247 (CA4 1986). See also Jaszi, 505 And All That-The Defendant's Dilemma, 55 Law & Contemp. Prob. 107, 107-108, and nn. 1,2 (1992).The goals and objectives of the two Acts are likewise not completely similar. Oftentimes, in the civil rights context, impecunious "private attorney general" plaintiffs can ill afford to litigate their claims against defendants with more resources. Congress sought to redress this balance in part, and to provide incentives for the bringing of meritorious lawsuits, by treating successful plaintiffs more favorably than successful defendants in terms of the award of attorney's fees. The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public. See infra, at 527. In the copyright context, it has been noted that "[e]ntities which sue for copyright infringement as plaintiffs can run the gamut from corporate behemoths to starving artists; the same is true of prospective copyright infringement defendants." Cohen, supra, at 622-623.11 The 1976 Copyright Act did change, however, the standard for awarding costs to the prevailing party. The 1909 Act provided a mandatory rule that "full costs shall be allowed." 17 U. S. C. § 116 (1976 ed.) (emphasis added). The 1976 Act changed the rule from a mandatory one to one of discretion. As the 1909 Act indicates, Congress clearly knows how to use mandatory language when it so desires. That Congress did not amend the neutral language of the 1909 rule respecting attorney's fees lends further support to the plain language of § 505-district courts are to use their discretion in awarding attorney's fees and costs to the prevailing party.525We thus conclude that respondent's argument based on our fee-shifting decisions under the Civil Rights Act must fail.12Respondent next argues that the policies and objectives of § 505 and of the Copyright Act in general are best served by the "dual approach" to the award of attorney's fees.13 The most common reason advanced in support of the dual approach is that, by awarding attorney's fees to prevailing plaintiffs as a matter of course, it encourages litigation of meritorious claims of copyright infringement. See, e. g., McCulloch v. Albert E. Price, Inc., 823 F.2d 316, 323 (CA9 1987) ("Because section 505 is intended in part to encourage the assertion of colorable copyright claims, to deter infringement, and to make the plaintiff whole, fees are generally awarded to a prevailing plaintiff") (citations omitted); Diamond v. Am-Law Publishing Corp., 745 F.2d 142, 148 (CA212 We note that the federal fee-shifting statutes in the patent and trademark fields, which are more closely related to that of copyright, support a party-neutral approach. Those statutes contain language similar to that of § 505, with the added proviso that fees are only to be awarded in "exceptional cases." 35 U. S. C. § 285 (patent) ("The court in exceptional cases may award reasonable attorney fees to the prevailing party"); 15 U. S. C. § 1117 (trademark) (same). Consistent with the party-neutral language, courts have generally awarded attorney's fees in an evenhanded manner based on the same criteria. For patent, see, e. g., Eltech Systems Corp. v. PPG Industries, Inc., 903 F.2d 805, 811 (CA Fed. 1990) ("[T]here is and should be no difference in the standards applicable to patentees and infringers who engage in bad faith litigation"). For trademark, see, e. g., Motown Productions, Inc. v. Cacomm, Inc., 849 F.2d 781, 786 (CA2 1988) (exceptional circumstances include cases in which losing party prosecuted or defended action in bad faith); but see Scotch Whisky Assn. v. Majestic Distilling Co., 958 F.2d 594, 599 (CA4) (finding in the legislative history that prevailing defendants are to be treated more favorably than prevailing plaintiffs), cert. denied, 506 U. S. 862 (1992).13 Respondent points to four important interests allegedly advanced by the dual standard: (1) it promotes the vigorous enforcement of the Copyright Act; (2) it distinguishes between the wrongdoers and the blameless; (3) it enhances the predictability and certainty in copyrights by providing a relatively certain benchmark for the award of attorney's fees; and (4) it affords copyright defendants sufficient incentives to litigate their defenses.5261984) (same). Indeed, respondent relies heavily on this argument. We think the argument is flawed because it expresses a one-sided view of the purposes of the Copyright Act. While it is true that one of the goals of the Copyright Act is to discourage infringement, it is by no means the only goal of that Act. In the first place, it is by no means always the case that the plaintiff in an infringement action is the only holder of a copyright; often times, defendants hold copyrights too, as exemplified in the case at hand. See Lieb v. Topstone Industries, Inc., 788 F. 2d, at 155 (noting that "in many cases the defendants are the [copyright] holders").More importantly, the policies served by the Copyright Act are more complex, more measured, than simply maximizing the number of meritorious suits for copyright infringement. The Constitution grants to Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U. S. Const., Art. I, §8, cl. 8. We have often recognized the monopoly privileges that Congress has authorized, while "intended to motivate the creative activity of authors and inventors by the provision of a special reward," are limited in nature and must ultimately serve the public good. Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 429 (1984). For example, in Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975), we discussed the policies underlying the 1909 Copyright Act as follows:"The limited scope of the copyright holder's statutory monopoly ... reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by527this incentive, to stimulate artistic creativity for the general public good." (Footnotes omitted.)We reiterated this theme in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 349-350 (1991), where we said:"The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work." (Citations omitted.)Because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. To that end, defendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement. In the case before us, the successful defense of "The Old Man Down the Road" increased public exposure to a musical work that could, as a result, lead to further creative pieces. Thus a successful defense of a copyright infringement action may further the policies of the Copyright Act every bit as much as a successful prosecution of an infringement claim by the holder of a copyright.Respondent finally urges that the legislative history supports the dual standard, relying on the principle of ratification. See Lorillard v. Pons, 434 U. S. 575, 580 (1978) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change ... "). Respondent surveys the great number of lower court cases interpreting the identical provision in the 1909 Act, 17528u. S. C. § 116 (1976 ed.), and asserts that "it was firmly established" that prevailing defendants should be awarded attorney's fees only where the plaintiff's claim was frivolous or brought with a vexatious purpose. Brief for Respondent 40-45. Furthermore, respondent claims that Congress was aware of this construction of former § 116 because of two copyright studies submitted to Congress when it was studying revisions to the Act. W. Strauss, Damage Provisions of the Copyright Law, Study No. 22 (hereinafter Strauss Study), and R. Brown, Operation of the Damage Provisions of the Copyright Law: An Exploratory Study, Study No. 23 (hereinafter Brown Study), Studies Prepared for Subcommittee on Patents, Trademarks, and Copyrights, 86th Cong., 2d Sess. (H. Judiciary Comm. Print 1960).Before turning to the import of the two studies and the cases decided under the 1909 Act, we summarize briefly the factual background of Lorillard, whence comes the statement upon which respondent relies. There the question was whether there was a right to jury trial in an action for lost wages under the Age Discrimination in Employment Act of 1967 (ADEA). In enacting that statute, Congress provided, inter alia, that the provisions of the ADEA were to be "enforced in accordance with the 'powers, remedies and procedures' " of specified sections of the Fair Labor Standards Act (FLSA), 81 Stat. 604, 29 U. S. C. § 626(b). Lorillard, 434 U. S., at 580. In the three decided cases which had treated the right to jury trial under the FLSA, each court had decided that there was such a right. In enacting the ADEA, "Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undesirable or inappropriate for incorporation." Id., at 581.Here, by contrast, the Strauss and Brown Studies deal only briefly with the provision for the award of attorney's fees. In the Strauss Study, the limited discussion begins with a quote to A. Weil, American Copyright Law 530-531529(1917), for an explanation of the "discretionary awarding of attorney's fees":"'The amount of money frequently involved in copyright letigation [sic], especially on the part of the defendant is trifling. The expense of any letigation [sic] is considerable. Unless, therefore, some provision is made for financial protection to a litigant, if successful, it may not pay a party to defend rights, even if valid, a situation opposed to justice .... It is increasingly recognized that the person who forces another to engage counsel to vindicate, or defend, a right should bear the expense of such engagement and not his successful opponent .... '" Strauss Study 31.The study then notes that the pending bills contemplate no change in the attorney's fees provision and concludes with the simple statement "[t]he cases indicate that this discretion has been judiciously exercised by the courts." Ibid. 14 This14 In a footnote, the Strauss Study lists several cases exemplifying the courts' use of discretion. None of these cases explicitly require a dual standard of awarding attorney's fees, but instead offer various reasons for awarding or not awarding attorney's fees to the prevailing party. Cases cited by the study involving prevailing defendants: Overman v. Loesser, 205 F.2d 521, 524 (CA9 1953) (denying counsel fees because there was "no indication that the appeal was pursued in bad faith" and "the principal question [was] a complex question of law"); Official Aviation Guide Co. v. American Aviation Associates, 162 F.2d 541, 543 (CA7 1947) (denying attorney's fee where "[t]he instant case was hard fought and prosecuted in good faith, and ... presented a complex problem in law"); Rosen v. Lowe's Inc., 162 F.2d 785 (CA2 1947) (defendant prevailed; no discussion of attorney's fees); Advertisers Exchange, Inc. v. Anderson, 144 F.2d 907 (CA8 1944) (denying attorney's fee without comment in case involving defective copyright notice); Lewys v. O'Neill, 49 F.2d 603, 618 (SDNY 1931) (awarding fees where plaintiff's case was "wholly synthetic"); Metro Associated Services, Inc. v. Webster City Graphic, Inc., 117 F. Supp. 224 (ND Iowa 1953) (denying attorney's fee without explanation where plaintiff filed defective copyright); Lowenfels v. Nathan, 2 F. Supp. 73, 80 (SDNY 1932) (awarding fees where "[t]he most earnest advocate of the plaintiff's side ... could not ... possibly find" any plagiarism by the defendant);530limited discussion of attorney's fees surely does not constitute an endorsement of a dual standard.The Brown Study was intended as a supplement to the Strauss Study and, inter alia, provides information from a survey distributed to practitioners about the practical work-Jerome v. Twentieth Century-Fox Film Corp., 71 F. Supp. 914,915 (SDNY 1946) (denying fee where court "[could] very well understand how plaintiff was driven to some litigation, although the theory of [the] action ... was not supported by the proof"), 7 F. R. D. 190 (SDNY 1947), aff'd, 165 F. 2d 784 (CA2 1948).Cases cited by the study involving prevailing plaintiffs: Advertisers Exchange, Inc. v. Hinkley, 199 F.2d 313, 316 (CA8 1952) (denying an attorney's fee where plaintiff's counsel attempted to inflate and exaggerate plaintiff's claim), cert. denied, 344 U. S. 921 (1953); Ziegelheim v. Flohr, 119 F. Supp. 324, 329 (EDNY 1954) (court denied attorney's fee "since it appears to have ... been a fairly common practice for publishers of [prayer books] to copy rather freely from each other, and since much of plaintiff's book was in the public domain, and defendant honestly, but mistakenly, believed that plaintiff was illegally attempting to copyright and monopolize the printing of ancient prayers"); Edward B. Marks Music Corp. v. Borst Music Pub. Co., 110 F. Supp. 913 (NJ 1953) (court noted only that it would not award attorney's fee because such award is discretionary); Stein v. Rosenthal, 103 F. Supp. 227, 232 (SD Cal. 1952) (awarding attorney's fees of $3,500 as an amount "reasonably necessary to redress the infringement of plaintiffs' copyright"); Northern Music Corp. v. King Record Distributing Co., 105 F. Supp. 393, 401 (SDNY 1952) (noting that prevailing plaintiff entitled to receive a reasonable attorney's fee to be assessed by the court); White v. Kimmell, 94 F. Supp. 502, 511 (SD Cal. 1950) (copyright holder, who was a successful defendant in a declaratory judgment action, was awarded costs but denied attorney's fee award without elaboration); M. Witmark & Sons v. Pastime Amusement Co., 298 F.4d 0, 482483 (EDSC 1924) (court awarded a moderate attorney's fee after noting that full allowance "would bear too heavily upon the defendant, in view of the character of the infringement and the circumstances surrounding it; but, if no fee should be allowed at all in such cases, it would probably result in many cases in a practical denial of the rights of copyright owners").The study also cited to Jewell-LaSalle Realty Co. v. Buck, 283 U. S. 202 (1931), a case that did not involve attorney's fees, but instead addressed the damages provision of § 25 of the 1909 Act, 35 Stat. 1081.531ings of the 1909 Copyright Act.15 It also does not endorse a standard of treating prevailing plaintiffs and defendants differently. At one point, the study notes that "courts do not usually make an allowance at all if an unsuccessful plaintiff's claim was not 'synthetic, capricious or otherwise unreasonable,' or if the losing defendant raised real issues of fact or law." Brown Study 85.16Our review of the prior case law itself leads us to conclude that there was no settled "dual standard" interpretation of former § 116 about which Congress could have been aware. We note initially that at least one reported case stated no reason in awarding attorney's fees to successful defendants. See, e. g., Marks v. Leo Feist, Inc., 8 F.2d 460, 461 (CA2 1925) (noting that the Copyright Act gave courts "absolute discretion," the court awarded attorney's fees to prevailing defendant after plaintiff voluntarily dismissed suit). More importantly, while it appears that the majority of lower courts exercised their discretion in awarding attorney's fees15 To this extent, the Brown Study focuses more on the effect that the prospect of an award of attorney's fees has on decisions to litigate or to settle cases. Based on its interview sources, the study concluded that the likelihood of getting a fee award is so problematic that "it is not a factor" that goes into the decision to settle or litigate. Brown Study 85. The report also noted that its observations about attorney's fees "are not intended as an exhaustive treatment of the subject" and that "[attorney's fees'] deterrent effect on ill-founded litigation, whether by plaintiffs or defendants, is outside the scope of this inquiry." Id., at 85-86.16 Citing to Cloth v. Hyman, 146 F. Supp. 185, 193 (SDNY 1956) (it is proper to award fees to prevailing defendant when copyright action is brought in bad faith, with a motive to "vex and harass the defendant," or where plaintiff's claim utterly lacks merit). The Brown Study also included cites to Eisenschiml v. Fawcett Publications, Inc., 246 F.2d 598, 604 (CA7) (reversing attorney's fee award to prevailing defendant as an abuse of discretion where plaintiff's claim was not entirely without merit and involved a close question of law), cert. denied, 355 U. S. 907 (1957); Marks v. Leo Feist, Inc., 8 F.2d 460, 461 (CA2 1925) (awarding attorney's fees to prevailing defendant after plaintiff voluntarily dismissed suit).532to prevailing defendants based on a finding of frivolousness or bad faith, not all courts expressly described the test in those terms.17 In fact, only one pre-1976 case expressly endorsed a dual standard. Breffort v. I Had a Ball Co., 271 F. Supp. 623 (SDNY 1967).18 This is hardly the sort of uniform construction that Congress might have endorsed.17See, e. g., Shroeder v. William Morrow & Co., 421 F. Supp. 372, 378 (ND Ill. 1976) (refusing to award prevailing defendant an attorney's fee because plaintiff's action was "prosecuted in good faith and with a reasonable likelihood of success"), rev'd on other grounds, 566 F.2d 3 (CA7 1977); Kinelow Publishing Co. v. Photography In Business, Inc., 270 F. Supp. 851, 855 (SDNY 1967) (denying fee award to prevailing defendant because plaintiff's claims, while "lacking in merit," were not "unreasonable or capricious"); Burnett v. Lambino, 206 F. Supp. 517, 518-519 (SDNY 1962) (granting fee award to prevailing defendant where "asserted claim of infringement was so demonstrably lacking in merit that bringing it was clearly unreasonable"); Cloth v. Hyman, supra, at 193 (noting that it is proper to award fees when a copyright action is brought in bad faith, with a motive to "vex and harass the defendant," or where plaintiff's claim utterly lacks merit); Loews, Inc. v. Columbia Broadcasting System, Inc., 131 F. Supp. 165, 186 (SD Cal. 1955) (denying prevailing defendant fee award where question presented in the case "was a nice one," and there are "no authorities squarely in point to guide the litigants or their counsel"), aff'd, 239 F.2d 532 (CA9 1956), aff'd, 356 U. S. 43 (1958); Krafft v. Cohen, 38 F. Supp. 1022, 1023 (ED Pa. 1941) (denying fee award to prevailing defendant where claim brought "in good faith," and evidence demonstrated appropriation); Lewys v. O'Neill, 49 F. 2d, at 618 (awarding fees to prevailing defendant because plaintiff's case was "wholly synthetic").18 That court concluded that "the considerations prompting an award of fees to a successful plaintiff must of necessity differ from those determining whether a prevailing defendant is entitled to such an award." Breffort, 271 F. Supp., at 627. As support, the court stated: "The purpose of an award of counsel fees to a plaintiff is to deter copyright infringement .... In the case of a prevailing defendant, however, prevention of infringement is obviously not a factor; and if an award is to be made at all, it represents a penalty imposed upon the plaintiff for institution of a baseless, frivolous, or unreasonable suit, or one instituted in bad faith." Ibid. As we have already explained, supra, at 527, such is too narrow a view of the purposes of the Copyright Act because it fails to adequately consider the important role played by copyright defendants. See also533In summary, neither of the two studies presented to Congress, nor the cases referred to by the studies, support respondent's view that there was a settled construction in favor of the "dual standard" under § 116 of the 1909 Copyright Act.We thus reject each of respondent's three arguments in support of the dual standard. We now turn to petitioner's argument that § 505 was intended to adopt the "British Rule." Petitioner argues that, consistent with the neutral language of § 505, both prevailing plaintiffs and defendants should be awarded attorney's fees as a matter of course, absent exceptional circumstances. For two reasons we reject this argument for the British Rule.First, just as the plain language of § 505 supports petitioner's claim for disapproving the dual standard, it cuts against him in arguing for the British Rule. The statute says that "the court may also award a reasonable attorney's fee to the prevailing party as part of the costs." The word "may" clearly connotes discretion. The automatic awarding of attorney's fees to the prevailing party would pretermit the exercise of that discretion.Second, we are mindful that Congress legislates against the strong background of the American Rule. Unlike Britain where counsel fees are regularly awarded to the prevailing party, it is the general rule in this country that unless Congress provides otherwise, parties are to bear their own attorney's fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247-262 (1975) (tracing the origins and development of the American Rule); Flight Attendants v. Zipes, 491 U. S., at 758. While § 505 is one situation in whichCohen v. Virginia Electric & Power Co., 617 F. Supp., at 621-622 (tracing the evolution of the Second Circuit's dual standard rule and concluding that earlier cases upon which it supposedly rests do not require bad faith or frivolousness-"[the dual standard rule] is the culmination of a long line of bootstrapping from nothing to something").534Congress has modified the American Rule to allow an award of attorney's fees in the court's discretion, we find it impossible to believe that Congress, without more, intended to adopt the British Rule. Such a bold departure from traditional practice would have surely drawn more explicit statutory language and legislative comment. Cf. Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952) ("Statutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident"). Not surprisingly, no court has held that § 505 (or its predecessor statute) adopted the British Rule.Thus we reject both the "dual standard" adopted by several of the Courts of Appeals and petitioner's claim that § 505 enacted the British Rule for automatic recovery of attorney's fees by the prevailing party. Prevailing plaintiffs and prevailing defendants are to be treated alike, but attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion. "There is no precise rule or formula for making these determinations," but instead equitable discretion should be exercised "in light of the considerations we have identified." Hensley v. Eckerhart, 461 U. S. 424, 436-437 (1983).19 Because the Court of Appeals erroneously held petitioner, the prevailing defendant, to a more stringent standard than that applicable to a prevailing19 Some courts following the evenhanded standard have suggested several nonexclusive factors to guide courts' discretion. For example, the Third Circuit has listed several nonexclusive factors that courts should consider in making awards of attorney's fees to any prevailing party. These factors include "frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence." Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (1986). We agree that such factors may be used to guide courts' discretion, so long as such factors are faithful to the purposes of the Copyright Act and are applied to prevailing plaintiffs and defendants in an evenhanded manner.535plaintiff, its judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1993SyllabusFOGERTY v. FANTASY, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 92-1750. Argued December 8, 1993-Decided March 1, 1994After petitioner Fogerty's successful defense of a copyright infringement action filed against him by respondent Fantasy, Inc., the District Court denied his motion for attorney's fees pursuant to 17 U. S. C. § 505, which provides in relevant part that in such an action "the court may ... award a reasonable attorney's fee to the prevailing party as part of the costs." The Court of Appeals affirmed, declining to abandon its "dual" standard for awarding § 505 fees-under which prevailing plaintiffs are generally awarded attorney's fees as a matter of course, while defendants must show that the original suit was frivolous or brought in bad faith-in favor of the so-called "evenhanded" approach, in which no distinction is made between prevailing plaintiffs and prevailing defendants.Held: Prevailing plaintiffs and prevailing defendants must be treated alike under § 505; attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion. Pp. 522-535.(a) Fantasy's arguments in favor of a dual standard are rejected. Section 505's language gives no hint that successful plaintiffs are to be treated differently than successful defendants. Nor does this Court's decision in Christiansburg Garment Co. v. EEOC, 434 U. S. 412, which construed virtually identical language from Title VII of the Civil Rights Act of 1964, support different treatment. The normal indication that fee-shifting statutes with similar language should be interpreted alike is overborne by factors relied upon in Christiansburg and the Civil Rights Act which are noticeably absent in the context of the Copyright Act. The legislative history of § 505 provides no support for different treatment. In addition, the two Acts' goals and objectives are not completely similar. The Civil Rights Act provides incentives for the bringing of meritorious lawsuits by impecunious "private attorney general" plaintiffs who can ill afford to litigate their claims against defendants with more resources. However, the Copyright Act's primary objective is to encourage the production of original literary, artistic, and musical expression for the public good; and plaintiffs, as well as defendants, can run the gamut from corporate behemoths to starving artists. Fantasy's argument that the dual approach to § 505 best serves the Copyright Act's policy of encouraging litigation of meritorious infringement claims expresses a one-sided view of the Copyright Act's purposes. Because copyright law ultimately serves the purpose of enriching the general518Syllabuspublic through access to creative works, it is peculiarly important that the law's boundaries be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims. Fantasy also errs in urging that the legislative history supports the dual standard based on the principle of ratification. Neither the two studies submitted to Congress while it considered revisions to the Act, nor the cases referred to in those studies, support the view that there was a settled construction in favor of the dual standard under the virtually identical provision in the 1909 Copyright Act. Pp. 522-533.(b) Also rejected is Fogerty's argument that § 505 enacted the "British Rule," which allows for automatic recovery of attorney's fees by prevailing plaintiffs and defendants, absent exceptional circumstances. The word "may" in § 505 clearly connotes discretion in awarding such fees, and an automatic award would pretermit the exercise of that discretion. In addition, since Congress legislates against the strong background of the American Rule-which requires parties to bear their own attorney's fees unless Congress provides otherwise-it would have surely drawn more explicit statutory language and legislative comment had it intended to adopt the British Rule in § 505. While there is no precise rule or formula for making fee determinations under § 505, equitable discretion should be exercised "in light of the considerations [this Court] has identified." Hensley v. Eckerhart, 461 U. S. 424, 436-437. Pp. 533-535.984 F.2d 1524, reversed and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, SOUTER, and GINSBURG, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, post, p. 535.Kenneth 1. Sidle argued the cause for petitioner. With him on the briefs were Vincent H. Chieffo and Julia L. Ross.Lawrence S. Robbins argued the cause for respondent.With him on the brief were Carlos T. Angulo, Malcolm Burnstein, and Norman G. Rudman. **Jonathan A. Marshall, William G. Pecau, Jon R. Stark, Stephen P.Fox, and Roland I. Griffin filed a brieffor Hewlett-Packard Co. as amicus curiae urging reversal.Jack E. Brown, Chris R. Ottenweller, and Charles A. Blanchard filed a brief for Apple Computer, Inc., as amicus curiae urging affirmance.519Full Text of Opinion

2001_01-394

SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, post, p. 422.Richard A. Cordray argued the cause for petitioners.With him on the briefs was Harry Litman.Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McCallum, Deputy Solicitor General Clement, Patricia A. Millett, Barbara L. Herwig, and Robert M. Loeb.Jennifer K. Harbury, respondent, argued the cause and filed a brief pro se. *JUSTICE SOUTER delivered the opinion of the Court. Respondent-plaintiff in this case alleges that Government officials intentionally deceived her in concealing information that her husband, a foreign dissident, was being detained and tortured in his own country by military officers of his government, who were paid by the Central Intelligence Agency (CIA). One count of the complaint, brought after the husband's death, charges that the official deception denied respondent access to the courts by leaving her without information, or reason to seek information, with which she could have brought a lawsuit that might have saved her husband's life. The issue is whether this count states an actionable claim. We hold that it does not, for two reasons. As stated in the complaint, it fails to identify an underlying cause of action for relief that the plaintiff would have raised had it not been for the deception alleged. And even after a*Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Jeffrey R. White and Laura C. Tharney; for the Brennan Center for Justice by Jodie L. Kelley; and for the Lawyers' Committee for Civil Rights of the San Francisco Bay Area et al. by Robert E. Borton, Scott D. Wiener, Robert Rubin, Steven R. Shapiro, and Lucas Guttentag.406subsequent, informal amendment accepted by the Court of Appeals, respondent fails to seek any relief presently available for denial of access to courts that would be unavailable otherwise.IRespondent Jennifer Harbury, a United States citizen, is the widow of Efrain Bamaca-Velasquez, a Guatemalan rebel leader who vanished in his own country in March 1992. Since we are reviewing a ruling on motion to dismiss, we accept Harbury's factual allegations and take them in the light most favorable to her. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 164 (1993). Bamaca was captured by Guatemalan army forces, including officers trained (in the United States), paid, and used as informants by the CIA. App. 27-28 (Respondent's Second Amended Complaint ~~ 35-42, 46-47). He was detained and tortured for more than a year to obtain information of interest to the CIA, for which it paid. Id., at 28 (~~ 43, 46-47). Bamaca was summarily executed on orders of the same Guatemalan officers affiliated with the CIA, id., at 28-29 (~~ 48-49), sometime before September 1993, id., at 31 (~66), 34 (~84).1The CIA knew as early as March 18, 1992, that the Guatemalan army had captured Bamaca alive and shared this information with the White House and State Department. Id., at 27 (~35). Officials there, however, "intentionally misled" Harbury, by "deceptive statements and omissions, into believing that concrete information about her husband's fate did not exist because they did not want to threaten their ability to obtain information from Mr. Bamaca through his detention and torture." Id., at 31 (~67).1 Harbury says in a footnote in her brief before this Court that "[n]ew evidence exists suggesting that Mr. Bamaca in fact survived well into 1994 if not longer," Brief for Respondent 23, n. 3, but the factual allegations in her complaint unequivocally state that the Government knew that Bamaca had been killed by September 1993.407Harbury makes three specific allegations of such Government deception, all involving State Department officials, while Bamaca was still alive. First, she says she contacted several unnamed State Department officials in March 1993 to express concerns about her husband, who, according to an eyewitness, was still alive. Id., at 29 (~~ 50, 55). They "promised to look into the matter and to assist her," ibid., but they neither gave her nor made public any information about Bamaca, though CIA reports from as early as May 1993 confirmed he was still alive. Id., at 30 (~~ 56-59). Second, in August 1993, Marilyn McAfee, then Ambassador to Guatemala, advised Harbury to submit a written report to the effect that remains found in a grave purported to be her husband's were not in fact his, as Harbury promptly did. Id., at 30-31 (~~ 60-63). Although McAfee promised that she would "investigate the matter immediately[,] report her findings," and keep Harbury "properly informed regarding her husband's situation," ibid. (~62), she gave Harbury no information, id., at 31 (~ 64). Third, in September 1993 (the same month that the Government learned Bamaca was dead, ibid. (~66)), Harbury engaged in a week-long hunger strike in Guatemala City to focus public attention on her husband's plight, but the State Department told her nothing, id., at 31-32 (~~ 64-68).According to Harbury's allegations, the Government's deceptions and omissions continued and intensified after Bamaca was killed. From October 1993 until March 1995, officials of the State Department and National Security Council (NSC) repeatedly met and communicated with Harbury, id., at 32 (~~ 70-71), 34 (~~ 80, 83), 35 (~86), conveying the impression that they knew nothing for sure but were seeking "concrete information" about her husband and would keep her informed, id., at 33 (~75). At one point, in November 1994, National Security Adviser Anthony Lake told Harbury that the Government had "'scraped the bottom of the barreI''' to no avail in seeking information about her husband,408id., at 34 (~83). All along, however, the Government officials knew that Bamaca had been killed by the Guatemalan army, ibid. (~84), but engaged in misleading statements and omissions because they did not want their complicity in Bamaca's torture and death revealed, id., at 36 (~ 92). Harbury learned that her husband was dead only in March 1995 when a congressman publicly announced that Bamaca had been killed on the orders of a Guatemalan army colonel who was also a paid agent of the CIA, ibid. (~91).IIA year later, in March 1996, Harbury filed suit in the District Court for the District of Columbia against the CIA, the State Department, the NSC, and members of each in their official and individual capacities. The complaint, as amended, listed 28 causes of action under federal, state, and international law. App. 38-62. Although only the accessto-courts counts directly concern us here, it is important to know Harbury's other claims, in order to determine whether she has stated a tenable claim for denial of judicial access.AHarbury's complaint sought relief in four categories other than access to courts. First, on behalf of Bamaca's estate, she raised claims against the CIA defendants under the Due Process Clause of the Fifth Amendment for his imprisonment, torture, and execution, seeking declaratory and injunctive relief,2 and money damages against the officials in their individual capacities on the theory of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). App. 38-42 (counts 1-5). Next, on her own behalf, Harbury sued all the Government defendants for declaratory and injunctive relief2 The injunctive relief Harbury sought in these (and other) counts was disclosure of information "concerning her husband's death and the location of his body" and an order to prevent "[d]efendants from taking such actions in the future." App. 63.409and money damages under Bivens for violating her "right to familial integrity" under the First, Fifth, and Ninth Amendments by imprisoning, torturing, and executing her husband. Id., at 42-48 (counts 6-13). Third, she alleged common law torts invoking the Federal Tort Claims Act, 28 U. S. C. §§ 2401(b) and 2675, App. 54, (1) on behalf of herself and her husband's estate against the CIA defendants for intentional infliction of emotional distress by causing and conspiring to cause Bamaca's imprisonment, torture, and execution, id., at 55 (counts 18-19); (2) on behalf of her husband's estate against the CIA defendants for negligent supervision resulting in his false imprisonment, assault and battery, and wrongful death, id., at 56-58 (counts 20-22); and (3) on her own behalf against the State Department and NSC defendants for intentional and negligent misrepresentation, constructive fraud, interference with the right to possess a spouse's dead body, id., at 58-62 (counts 24-27), and intentional infliction of emotional distress by making "intentionally deceptive statements and omissions ... about her husband, including concealing whether or not he was alive" id., at 58 (count 23). Fourth, Harbury brought a tort claim said to arise under international law against the CIA defendants on behalf of herself and her husband's estate. Id., at 62 (count 28).In addition to these counts for direct harm, Harbury relied on the First and Fifth Amendments in raising four claims that the deceptive statements and omissions of the State Department and NSC defendants had unconstitutionally impeded her access to courts, id., at 49-51 (counts 14-15), as well as her rights to speak freely and to petition the Government, id., at 51-54 (counts 16-17). The basic theory as to access to courts was that if the officials had shared what they knew or simply said "no comment" rather than affirmatively misleading Harbury into thinking they were doing something, she might have been able "to take appropriate actions410to save her husband's life." Id., at 37 (~98).3 Harbury alleged that she "was foreclosed from effectively seeking adequate legal redress." Ibid.BFor failure to state a claim, the District Court dismissed all counts for declaratory and injunctive relief (counts 1-3, 6-9, 14, 16). It also dismissed all the Bivens counts: those on behalf of Bamaca's estate for his torture and execution said to have violated his Fifth Amendment due process rights (counts 4-5), and those brought on Harbury's own behalf based on the claimed violation of her constitutional rights of familial association (counts 10-13), access to courts (count 15), and free speech and access to Government (count 17). But the District Court denied the defendants' motion to dismiss the tort claims at common law (counts 18-27) and international law (count 28).With respect to the access-to-courts claims (including Harbury's Bivens claim on this theory), the District Court acknowledged that five Courts of Appeals "have held that conspiracies to destroy or cover-up evidence of a crime that render a plaintiff's judicial remedies inadequate or ineffective violat[e] the right of access," App. to Pet. for Cert. 43a, but held that Harbury had not stated a valid cause of action for two reasons. First, the court held that Harbury's claim "would have to be dismissed" (without prejudice) because, having filed no prior suit, she had "nothing more than a guess" as to how the alleged coverup might "have prejudiced her rights to bring a separate action." Id., at 46a. Second, the District Court reasoned that the defendants in any event would be entitled to qualified immunity in their individual capacities because, unlike officials in coverup cases who destroyed, manufactured, or hid evidence, the de-3 Harbury did not allege that the State Department and NSC defendants had an affirmative duty to disclose or to provide information about her husband in response to her informal requests.411fendants here did not act contrary to "clearly established constitutional norms that a reasonable official would understand" in being less than "forthcoming in discussing the intelligence that they received about Bamaca." Id., at 48a-49a.CHarbury did not pursue her claims for declaratory or injunctive relief, and appealed only the dismissal of the Bivens causes of action. Harbury v. Deutch, 233 F.3d 596, 600-601 (CADC 2000). The Court of Appeals for the District of Columbia Circuit affirmed the dismissal of the Bivens claims of violations of Bamaca's due process rights, 233 F. 3d, at 604, Harbury's rights of familial association, id., at 606-607, and her free speech and petition rights. 4 It reversed the dismissal, however, of Harbury's Bivens claim against the State Department and NSC defendants for denial of access to courts. Id., at 607-611.The Court of Appeals agreed with the District Court that a plaintiff who merely alleges without factual basis in the conduct of a prior lawsuit that" 'key witnesses ... may now be dead or missing, ... crucial evidence may have been destroyed, and ... memories may have faded'" generally falls short of raising a claim for denial of access to courts. Id., at 609 (quoting the District Court). The court held, however, that Harbury's allegations stated a valid access claim insofar as she alleged that the Government's conduct had "effectively prevented her from seeking emergency injunctive relief in time to save her husband's life." Ibid. The District of Columbia Circuit went on to conclude that "[b]ecause his death completely foreclosed this avenue of relief, nothing would be gained by requiring Harbury to postpone this aspect of her access to courts cause of action until she4 The Court of Appeals did not explicitly say that this Bivens claim (count 17) was dismissed, but, in reversing the District Court, it spoke only of a single claim of "access to courts." 233 F. 3d, at 611 ("[W]e reverse the district court's dismissal of Harbury's access to courts claim").412finishes prosecuting her tort claims." Ibid. Nor did the court hold that qualified immunity would bar suit because, in its words, "we think it should be obvious to public officials that they may not affirmatively mislead citizens for the purpose of protecting themselves from suit." Id., at 611.5DThree categories of claims were left in the case after the Court of Appeals's decision: the various common law tort claims including intentional infliction of emotional distress, the international law claim against the CIA defendants (neither of which the District Court had dismissed), and Harbury's Bivens claims against the State Department and NSC defendants for preventing access to courts (which the Court of Appeals reinstated). The defendant officials petitioned for review of the court's holding as to the claim of denial of access to courts, but Harbury did not cross-petition on the other Bivens claims, leaving the Bivens access claim 6 the sole matter before us. We granted certiorari, 534 U. S. 1064 (2001), because of the importance of this issue to the Government in its conduct of the Nation's foreign affairs, and now reverse.III AThis Court's prior cases on denial of access to courts have not extended over the entire range of claims that have been brought under that general rubric elsewhere, but if we con-5 The District of Columbia Circuit denied rehearing, Harbury v. Deutch, 244 F.3d 956, 957 (2001) (per curiam), and rehearing en bane, 244 F.3d 960, 961 (2001), with two judges dissenting from denial of rehearing en bane.6 The petitioners did not challenge below the existence of a cause of action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and we express no opinion on the matter in deciding this case.413sider examples in the Courts of Appeals 7 as well as our own, two categories emerge. In the first are claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time. Thus, in the prisonlitigation cases, the relief sought may be a law library for a prisoner's use in preparing a case, Bounds v. Smith, 430 U. S. 817, 828 (1977); Lewis v. Casey, 518 U. S. 343, 346-348 (1996), or a reader for an illiterate prisoner, id., at 347-348, or simply a lawyer, ibid. In denial-of-access cases challenging filing fees that poor plaintiffs cannot afford to pay, the object is an order requiring waiver of a fee to open the courthouse door for desired litigation, such as direct appeals or federal habeas petitions in criminal cases,8 or civil suits asserting family-law rights, e. g., Boddie v. Connecticut, 401 U. S. 371, 372 (1971) (divorce filing fee); M. L. B. v. S. L. J., 519 U. S. 102,106-107 (1996) (record fee in parental-rights termination action). In cases of this sort, the essence of the access claim is that official action is presently denying an opportunity to litigate for a class of potential plaintiffs. The opportunity has not been lost for all time, however, but only in the short term; the object of the denial-of-access suit, and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed.The second category covers claims not in aid of a class of suits yet to be litigated, but of specific cases that cannot now7See, e. g., Delew v. Wagner, 143 F.3d 1219, 1222-1223 (CA9 1998); Swekel v. River Rouge, 119 F.3d 1259, 1263-1264 (CA6 1997); Vasquez v. Hernandez, 60 F.3d 325, 329 (CA7 1995); Foster v. Lake Jackson, 28 F.3d 425, 429-431 (CA5 1994); Williams v. Boston, 784 F.2d 430, 435 (CA1 1986); Bell v. Milwaukee, 746 F.2d 1205, 1260-1266 (CA7 1984); Ryland v. Shapiro, 708 F.2d 967, 974-975 (CA5 1983).8 E. g., Smith v. Bennett, 365 U. S. 708,713-714 (1961) (filing fee for habeas petitions); Burns v. Ohio, 360 U. S. 252, 255-258 (1959) (fee for direct appeal in a criminal case); Mayer v. Chicago, 404 U. S. 189, 195-196 (1971) (same, as to petty crime); Griffin v. Illinois, 351 U. S. 12, 16-20 (1956) (transcript fee for appellate review in a criminal case).414be tried (or tried with all material evidence), no matter what official action may be in the future.9 The official acts claimed to have denied access may allegedly have caused the loss or inadequate settlement of a meritorious case, e. g., Foster v. Lake Jackson, 28 F.3d 425, 429 (CA5 1994); Bell v. Milwaukee, 746 F.2d 1205, 1261 (CA7 1984) ("[T]he cover-up and resistance of the investigating police officers rendered hollow [the plaintiff's] right to seek redress"), the loss of an opportunity to sue, e. g., Swekel v. River Rouge, 119 F.3d 1259, 1261 (CA6 1997) (police coverup extended throughout "time to file suit ... under ... statute of limitations"), or the loss of an opportunity to seek some particular order of relief, as Harbury alleges here. These cases do not look forward to a class of future litigation, but backward to a time when specific litigation ended poorly,lO or could not have commenced, or could have produced a remedy subsequently unobtainable.ll The ultimate object of these sorts of access claims, then, is not the judgment in a further lawsuit, but simply the judgment in the access claim itself, in providing relief obtainable in no other suit in the future.While the circumstances thus vary, the ultimate justification for recognizing each kind of claim is the same. Whether an access claim turns on a litigating opportunity yet to be gained or an opportunity already lost, the very point of recognizing any access claim is to provide some ef-9 All such cases have been decided in the Courts of Appeals, see n. 7, supra; we assume, without deciding, the correctness of the decisions.10 Some Courts of Appeals have held that an actual attempt to sue is a prerequisite to any such claim. See Delew, supra, at 1222-1223; Swekel, supra, at 1263-1264. See also App. to Pet. for Cert. 46a (District Court adopting this requirement). But cf. Swekel, supra, at 1264, n. 2 ("We recognize that in some instances it would be completely futile for a plaintiff to attempt to access the state court system. The Plaintiff, however, has not presented evidence that this is such a case").11 Bifurcation into forward-looking and backward-looking access claims is a simplification, and not the only possible categorization, but it helps to focus the issues here.415fective vindication for a separate and distinct right to seek judicial relief for some wrong. However unsettled the basis of the constitutional right of access to courts, 12 our cases rest on the recognition that the right is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court. We indicated as much in our most recent case on denial of access, Lewis v. Casey, supra, where we noted that even in forward-looking prisoner class actions to remove roadblocks to future litigation, the named plaintiff must identify a "nonfrivolous," "arguable" underlying claim, id., at 353, and n. 3, and we have been given no reason to treat backward-looking access claims any differently in this respect. It follows that the underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation. It follows, too, that when the access claim (like this one) looks backward, the complaint must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought. There is, after all, no point in spending time and money to establish the facts constituting denial of access when a plaintiff would end up just as well off after litigating a simpler case without the denial-of-access element.12 Decisions of this Court have grounded the right of access to courts in the Article IV Privileges and Immunities Clause, Chambers v. Baltimore & Ohio R. Co., 207 U. S. 142, 148 (1907); Blake v. McClung, 172 U. S. 239, 249 (1898); Slaughter-House Cases, 16 Wall. 36, 79 (1873), the First Amendment Petition Clause, Bill Johnson's Restaurants, Inc. v. NLRB, 461 U. S. 731, 741 (1983); California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 513 (1972), the Fifth Amendment Due Process Clause, Murray v. Giarratano, 492 U. S. 1, 11, n. 6 (1989) (plurality opinion); Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 335 (1985), and the Fourteenth Amendment Equal Protection, Pennsylvania v. Finley, 481 U. S. 551, 557 (1987), and Due Process Clauses, Wolff v. McDonnell, 418 U. S. 539, 576 (1974); Boddie v. Connecticut, 401 U. S. 371, 380-381 (1971).416Like any other element of an access claim, the underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice to a defendant. See generally Swierkiewicz v. Sorema N. A., 534 U. S. 506, 513-515 (2002). Although we have no reason here to try to describe pleading standards for the entire spectrum of access claims, this is the place to address a particular risk inherent in backward-looking claims. Characteristically, the action underlying this sort of access claim will not be tried independently,13 a fact that enhances the natural temptation on the part of plaintiffs to claim too much, by alleging more than might be shown in a full trial focused solely on the details of the predicate action.Hence the need for care in requiring that the predicate claim be described well enough to apply the "nonfrivolous" test and to show that the "arguable" nature of the underlying claim is more than hope.14 And because these backwardlooking cases are brought to get relief unobtainable in other suits, the remedy sought must itself be identified to hedge against the risk that an access claim be tried all the way through, only to find that the court can award no remedy that the plaintiff could not have been awarded on a presently existing claim.13 It may be the case that an underlying action has already been tried to an inadequate result due to missing or fabricated evidence in an official cover-up, see, e. g., Foster, 28 F. 3d, at 427; Bell, 746 F. 2d, at 1223, or the claim may still be timely and subject to trial, but for a different remedy than the one sought under the access claim, or against different defendants.14 The District of Columbia Circuit rejected the holding of some Circuits, see n. 10, supra, that a filed suit on the underlying claim is a prerequisite for a backward-looking access claim, 233 F.3d 596, 608-610 (2000), because it would foreclose access claims in the most heinous cases where a cover-up was so pervasive that any timely attempt to litigate would have seemed futile. In essence, the Court of Appeals rejected a rule requiring an attempt to litigate, even if frivolous, as a condition of bringing a nonfrivolous backward-looking access claim.417The particular facts of this case underscore the need for care on the part of the plaintiff in identifying, and by the court in determining, the claim for relief underlying the access-to-courts plea. The action alleged on the part of all the Government defendants (the State Department and NSC defendants sued for denial of access and the CIA defendants who would have been timely sued on the underlying claim but for the denial) was apparently taken in the conduct of foreign relations by the National Government. Thus, if there is to be judicial enquiry, it will raise concerns for the separation of powers in trenching on matters committed to the other branches. See Department of Navy v. Egan, 484 U. S. 518, 529 (1988) (" '[F]oreign policy [is] the province and responsibility of the Executive' "); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948) ("[T]he very nature of executive decisions as to foreign policy is political, not judicial"). Since the need to resolve such constitutional issues ought to be avoided where possible, cf. Department of Housing and Urban Development v. Rucker, 535 U. S. 125, 134-135 (2002); Ashwander v. TV A, 297 U. S. 288, 345-348 (1936) (Brandeis, J., concurring), the trial court should be in a position as soon as possible in the litigation to know whether a potential constitutional ruling may be obviated because the allegations of denied access fail to state a claim on which relief could be granted.In sum, the right of a defendant in a backward-looking access suit to obtain early dismissal of a hopelessly incomplete claim for relief coincides in this case with the obligation of the Judicial Branch to avoid deciding constitutional issues needlessly. For the sake of each, the complaint should state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a),15 just as if it were being independently pursued, and a like plain statement should describe any rem-15 "A pleading which sets forth a claim for relief ... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief .... "418edy available under the access claim and presently unique to it.BUnder these standards, Harbury's complaint did not come even close to stating a constitutional claim for denial of access upon which relief could be granted. While we cannot read the complaint without appreciating Harbury's anguish, neither can we read it without appreciating the position of the District Judge who described Harbury's various requests for relief as "nearly unintelligible." App. to Pet. for Cert. 32a. Although the counts stating the Bivens claim for denial of judicial access seemed to confirm that Harbury intended to state a backward-looking claim, the complaint failed to identify the underlying cause of action that the alleged deception had compromised, going no further than the protean allegation that the State Department and NSC defendants' "false and deceptive information and concealment foreclosed Plaintiff from effectively seeking adequate legal redress." App. 50 (~175). The District Court and the defendants were left to guess at the unstated cause of action supposed to have been lost, and at the remedy being sought independently of relief that might be available on the 24 other counts set out in the complaint.Nothing happened in the Court of Appeals to improve Harbury's position. That court, too, was frustrated by the failure to identify the predicate claim and the need for relief otherwise unattainable,16 but it gave Harbury's counsel an opportunity at oral argument to supply the missing allega-16 The court repeatedly pressed counsel to identify the underlying claim.See Lodging for United States as Amicus Curiae Supporting Petitioners 7, 19,44,47 (respectively, "Now what would that [predicate] lawsuit have looked like? ... Can you explain what that lawsuit would look like? ... [A]ccess to do what[?] ... And what would that lawsuit have looked like?" (Tr. of Proceedings in Harbury v. Deutch, No. 99-5307 (Sept. 8, 2000))).419tions. Counsel responded that Harbury would have brought an action for intentional infliction of emotional distress 17 as one wrong for which she could have sought the injunctive relief that might have saved her husband's life:"[I]f defendants had disclosed the information they possessed about Bamaca, Harbury could have sought an emergency injunction based on an underlying tort claim for intentional infliction of emotional distress. Even if the NSC and State Department officials had simply said they could not discuss Bamaca's situation, counsel explained, Harbury would have filed her FOIA requests immediately, thus perhaps obtaining the information necessary to seek an injunction in time to save her husband's life. Instead, believing defendants' reassurances, Harbury waited for the State Department and NSC officials to complete their 'investigation.'" 233 F. 3d, at 609.The Court of Appeals adopted this theory in saying that the "adequate legal redress" alleged for purposes of Harbury's access claims meant emergency injunctive relief in a now futile lawsuit for intentional infliction of emotional distress,17Whether the Court of Appeals should have extended that opportunity is not an issue before us. We see counsel's answer as amounting to an amendment of pleadings that still fails to cure the inadequacy of the denial-of-access claim. In providing the clarification, Harbury's counsel appears to have been referring to the intentional-infliction counts against the CIA defendants alleged elsewhere in her complaint, App. 55 (counts 18-19). See infra, at 422. Whatever latitude is allowed by federal notice pleading, no one says Harbury should be allowed to construe "adequate legal redress" to mean causes of action that were not even mentioned in her complaint. As for Harbury's position here, suffice it to say that a brief to this Court, see Brief for Respondent at 22-33 (listing causes of action that Harbury could have brought in 1993), is not the place to supplement pleadings in response to a motion in the trial court to dismiss for failure to state a claim.420and it accepted this amendment as a sufficient statement of an underlying cause of action.18 Ibid.We think, however, that treating the amendment as an adequate statement was error. For even on the assumption that Harbury could surmount all difficulties raised by treating the underlying claim as one for intentional infliction of emotional distress,19 she could not satisfy the requirement18 Harbury does not argue, based on her counsel's argument before the Court of Appeals, that the allegation that official deception delayed a Freedom of Information Act filing, which, presumably, might have involved a lawsuit down the road if the defendants obstructed compulsory disclosure, can independently serve as an underlying cause of action for purposes of her access claim.19 Because the access claim as "amended" by Harbury's counsel at argument still fails to indicate any remedy that would be available in addition to potential relief on presently existing tort claims, see infra, at 422, it is unnecessary to resolve any of the claim's other difficulties in satisfying the need for nonfrivolous and arguable underlying causes of action. For example, Harbury alleges no acts of concealment by NSC officials prior to her husband's death; it would appear that the Bivens access claim should have been dismissed as to them on this ground alone. Nor does Harbury allege a plausible causal link between an injunction that might have been issued by a United States court and the behavior of the Guatemalan military alleged to have killed Harbury's husband. It is also uncertain whether the underlying cause of action could be pursued consistently with respect for separation of powers. And, of course, all of this assumes the unlikely case that the Government would not certify the defendants' action as exercises of their official capacity, or that if the Government did, an action could be maintained under the Federal Tort Claims Act. See 28 U. S. C. § 2680(h) (excluding certain intentional torts including assault, battery, false imprisonment, and misrepresentation); § 2680(k) (excluding claims arising in a foreign country); cf. United States v. Shearer, 473 U. S. 52, 57 (1985) (no claim for negligent supervision of an employee resulting in wrongful death in the military context). But see U. S. Information Agency v. Krc, 989 F.2d 1211, 1216 (CADC 1993) ("injunctive relief is available" under the Federal Tort Claims Act for an intentional-tort claim when the statute bars a damages remedy), cert. denied, 510 U. S. 1109 (1994).Indeed, even if Harbury's underlying claim could navigate these concerns, it is not at all apparent that any or all of Harbury's many factual allegations would make out a claim for intentional infliction of emotional distress. As a general matter, "[w]here [extreme and outrageous] conduct421that a backward-looking denial-of-access claim provide a remedy that could not be obtained on an existing claim. We have no choice but to assume that what Harbury intends to claim as intentional infliction of emotional distress is set out in the counts of her complaint naming the "CIA defendants," including the Guatemalan officer who allegedly tortured and killed her husband, App. 55 (counts 18-19).20 These are among the tort counts that survived the motion to dismiss under the portion of the District Court's order not before us. If an intentional-infliction claim can be maintained at all, Harbury can seek damages and even conceivably some sort of injunctive relief for the demonstrated consequences of the infliction alleged.21 It is true that she cannot obtain in any present tort action the order she would have sought before her husband's death, the order that might have saved her husband's life. But neither can she obtain any such order on her access claim, which therefore cannot recompense Har-is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm." Restatement (Second) of Torts § 46(2)(a) (1965). It is unclear that Harbury's allegations meet either the intent or the presence requirements. While there is room to argue for an exception to presence in some situations, cf. Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27, 33 (DC 2001) (allowing publication to substitute for presence), far from there being any allegation that the CIA defendants intended her husband's situation to become known to the public, the entire thrust of Harbury's pleadings is that every defendant tried to conceal it.20 See n. 17, supra. There is also an emotional-distress count against the State Department and NSC defendants, but based on their alleged deception, see App. 58 (count 23), that is, simply in duplication of the acts alleged to constitute denial of access, not on the acts underlying the predicate claim.21 While Harbury, if otherwise successful, might obtain injunctive relief requiring the CIA to reveal the location of her husband's remains (if known), she could not get any injunction against continued deception on the part of the State Department. But this is irrelevant, since Harbury has given no indication that she contemplates any future litigation to which continued deception would be relevant; she has not, in other words, pleaded any surviving, forward-looking access claim.422THOMAS, J., concurring in judgmentbury for the unique loss she claims as a consequence of her inability to bring an intentional-infliction action earlier. She has not explained, and it is not otherwise apparent, that she can get any relief on the access claim that she cannot obtain on her other tort claims, i. e., those that remain pending in the District Court. 22 And it is just because the access claim cannot address any injury she has suffered in a way the presently surviving intentional-infliction claims cannot23 that Harbury is not entitled to maintain the access claim as a substitute, backward-looking action.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, 2001SyllabusCHRISTOPHER, FORMER SECRETARY OF STATE, ET AL. v. HARBURYCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 01-394. Argued March 18, 2002-Decided June 20, 2002Respondent-plaintiff Harbury alleges that Government officials intentionally deceived her in concealing information that her husband, a Guatemalan dissident, had been detained, tortured, and executed by Guatemalan army officers paid by the Central Intelligence Agency (CIA), and that this deception denied her access to the courts by leaving her without information, or reason to seek information, with which she could have brought a lawsuit that might have saved her husband's life. In the District Court, Harbury raised against the CIA, State Department, National Security Council, and officials of each, common- and international law tort claims, and claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, on behalf of her husband's estate, and on her own behalf for violation of, inter alia, her constitutional right of access to courts. The District Court dismissed the Bivens claims. With respect to the access-to-courts counts, the court held that Harbury had not stated a valid cause of action because (1) having filed no prior suit, she could only guess how the alleged coverup might have prejudiced her rights to bring a separate action, and (2) the defendants would be entitled to qualified immunity. Harbury appealed the dismissal of her Bivens claims, but the District of Columbia Circuit reversed only the dismissal of her Bivens claim against petitioners for denial of access to courts.Held: Harbury has not stated a claim for denial of judicial access.Pp. 412-422.(a) Access-to-courts claims fall into two categories: claims that systemic official action frustrates a plaintiff in preparing and filing suits at the present time, where the suits could be pursued once the frustrating condition has been removed; and claims of specific cases that cannot be tried, no matter what official action may be in the future. Regardless of whether the claim turns on a litigating opportunity yet to be gained or an opportunity already lost, the point of recognizing an access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong. Thus, the access-to-courts right is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court. It follows that the404Syllabusunderlying claim is an element that must be described in the complaint as though it were being independently pursued; and that, when the access claim (like this one) looks backward, the complaint must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought. The underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give the defendant fair notice. The facts of this case underscore the need for care in stating a tenable predicate cause of action. The alleged acts were apparently taken in the conduct of foreign relations by the National Government, and any judicial enquiry will raise concerns for the separation of powers in trenching on matters committed to the other branches. Since the need to resolve such constitutional issues should be avoided where possible, the trial court should be in a position as soon as possible to know whether a constitutional ruling may be obviated because the denied access allegations fail to state a claim. Pp.412-418.(b) Harbury's complaint did not come even close to stating a constitutional denial-of-access claim upon which relief could be granted. It did not identify the underlying cause of action that the alleged disruption had compromised, leaving the District Court and the defendants to guess as to the unstated action supposedly lost and at the remedy being sought independently of relief that might be available on the complaint's other counts. Harbury's position did not improve when the Court of Appeals gave her counsel an opportunity at oral argument to supply the missing allegations. He stated that she would have brought an action for intentional infliction of emotional distress as one wrong for which she could have sought the injunctive relief that might have saved her husband's life. But that does not satisfy the requirement that a backward-looking denial-of-access claim provide a remedy that could not be obtained on an existing claim, for the complaint's counts naming the CIA defendants, including the Guatemalan officer who allegedly tortured and killed her husband, are among the tort claims that survived the motion to dismiss in the District Court. Harbury can seek damages and possibly some sort of injunctive relief for the consequences of the infliction of emotional distress alleged in those counts, although she cannot obtain the order that might have saved her husband's life. But neither can she obtain such an order in her access claim, which therefore cannot recompense her for the unique loss she claims as a consequence of her inability to bring an intentional-infliction action earlier. Pp. 418-422.233 F.3d 596, reversed and remanded.405Full Text of Opinion

1991_91-571

IThe debtor in this case, Emily Davis, declared bankruptcy while she was pursuing an employment discrimination claim in the state courts. The relevant proceedings began in 1978 when Davis filed a complaint with the Pittsburgh Commission on Human Relations. Davis alleged that her employer, Trans World Airlines (TWA), had denied her promotions on the basis of her race and sex. The Commission held for Davis as to liability but did not calculate the damages owed by TWA. The Pennsylvania Court of Common Pleas reversed the Commission, but the Pennsylvania Commonwealth Court reversed that court and reinstated the Commission's determination of liability. TW A next appealed to the Pennsylvania Supreme Court.In October 1984, while that appeal was pending, Davis filed a Chapter 7 bankruptcy petition. Petitioner, Robert J. Taylor, became the trustee of Davis' bankruptcy estate. Respondents, Wendell G. Freeland, Richard F. Kronz, and their law firm, represented Davis in the discrimination suit. On a schedule filed with the Bankruptcy Court, Davis claimed as exempt property the money that she expected to win in her discrimination suit against TW A. She described this property as "Proceeds from lawsuit-[Davis] v. TW A" and "Claim for lost wages" and listed its value as "unknown." App.18.Performing his duty as a trustee, Taylor held the required initial meeting of creditors in January 1985. See 11 U. S. C. § 341; Fed. Rule Bkrtcy. Proc. 2003(a). At this meeting, respondents told Taylor that they estimated that Davis might win $90,000 in her suit against TW A. Several days after the meeting, Taylor wrote a letter to respondents telling them that he considered the potential proceeds of the lawsuit to be property of Davis' bankruptcy estate. He also asked respondents for more details about the suit. Respondents described the procedural posture of the case and expressed optimism that they might settle with TWA for $110,000.641Taylor decided not to object to the claimed exemption.The record reveals that Taylor doubted that the lawsuit had any value. Taylor at one point explained: "I have had past experience in examining debtors ... [.] [M]any of them ... indicate they have potential lawsuits ... [M]any of them do not turn out to be advantageous and many of them might wind up settling far within the exemption limitation." App. 52. Taylor also said that he thought Davis' discrimination claim against TWA might be a "nullity." Id., at 58.Taylor proved mistaken. In October 1986, the Pennsylvania Supreme Court affirmed the Commonwealth Court's determination that TWA had discriminated against Davis. In a subsequent settlement of the issue of damages, TW A agreed to pay Davis a total of $110,000. TWA paid part of this amount by issuing a check made to both Davis and respondents for $71,000. Davis apparently signed this check over to respondents in payment of their fees. TW A paid the remainder of the $110,000 by other means. Upon learning of the settlement, Taylor filed a complaint against respondents in the Bankruptcy Court. He demanded that respondents turn over the money that they had received from Davis because he considered it property of Davis' bankruptcy estate. Respondents argued that they could keep the fees because Davis had claimed the proceeds of the lawsuit as exempt.The Bankruptcy Court sided with Taylor. It concluded that Davis had "no statutory basis" for claiming the proceeds of the lawsuit as exempt and ordered respondents to "return" approximately $23,000 to Taylor, a sum sufficient to payoff all of Davis' unpaid creditors. In re Davis, 105 B. R. 288 (Bkrtcy. Ct. WD Pa. 1989). The District Court affirmed, In re Davis, 118 B. R. 272 (WD Pa. 1990), but the Court of Appeals for the Third Circuit reversed, 938 F.2d 420 (1991). The Court of Appeals held that the Bankruptcy Court could not require respondents to turn over the money because Davis had claimed it as exempt, and Taylor had failed to642object to the claimed exemption in a timely manner. We granted certiorari, 502 U. S. 976 (1991), and now affirm.IIWhen a debtor files a bankruptcy petition, all of his property becomes property of a bankruptcy estate. See 11 U. S. C. § 541. The Code, however, allows the debtor to prevent the distribution of certain property by claiming it as exempt. Section 522(b) allowed Davis to choose the exemptions afforded by state law or the federal exemptions listed in § 522(d). Section 522(l) states the procedure for claiming exemptions and objecting to claimed exemptions as follows:"The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section .... Unless a party in interest objects, the property claimed as exempt on such list is exempt."Although § 522(l) itself does not specify the time for objecting to a claimed exemption, Federal Rule of Bankruptcy Procedure 4003(b) provides in part:"The trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) ... unless, within such period, further time is granted by the court."In this case, as noted, Davis claimed the proceeds from her employment discrimination lawsuit as exempt by listing them in the schedule that she filed under § 522(l). The parties agree that Davis did not have a right to exempt more than a small portion of these proceeds either under state law or under the federal exemptions specified in § 522(d). Davis in fact claimed the full amount as exempt. Taylor, as a result, apparently could have made a valid objection under § 522(l) and Rule 4003 if he had acted promptly. We hold, however, that his failure to do so prevents him from challenging the validity of the exemption now.643ATaylor acknowledges that Rule 4003(b) establishes a 30day period for objecting to exemptions and that § 522(l) states that "[u]nless a party in interest objects, the property claimed as exempt ... is exempt." He argues, nonetheless, that his failure to object does not preclude him from challenging the exemption at this time. In Taylor's view, § 522(l) and Rule 4003(b) serve only to narrow judicial inquiry into the validity of an exemption after 30 days, not to preclude judicial inquiry altogether. In particular, he maintains that courts may invalidate a claimed exemption after expiration of the 30-day period if the debtor did not have a good-faith or reasonably disputable basis for claiming it. In this case, Taylor asserts, Davis did not have a colorable basis for claiming all of the lawsuit proceeds as exempt and thus lacked good faith.Taylor justifies his interpretation of § 522(l) by arguing that requiring debtors to file claims in good faith will discourage them from claiming meritless exemptions merely in hopes that no one will object. Taylor does not stand alone in this reading of § 522(b). Several Courts of Appeals have adopted the same position upon similar reasoning. See In re Peterson, 920 F.2d 1389, 1393-1394 (CA8 1990); In re Dembs, 757 F.2d 777, 780 (CA6 1985); In re Sherk, 918 F.2d 1170, 1174 (CA5 1990).We reject Taylor's argument. Davis claimed the lawsuit proceeds as exempt on a list filed with the Bankruptcy Court. Section 522(l), to repeat, says that "[u]nless a party in interest objects, the property claimed as exempt on such list is exempt." Rule 4003(b) gives the trustee and creditors 30 days from the initial creditors' meeting to object. By negative implication, the Rule indicates that creditors may not object after 30 days "unless, within such period, further time is granted by the court." The Bankruptcy Court did not extend the 30-day period. Section 522(l) therefore has made the property exempt. Taylor cannot contest the ex-644emption at this time whether or not Davis had a colorable statutory basis for claiming it.Deadlines may lead to unwelcome results, but they prompt parties to act and they produce finality. In this case, despite what respondents repeatedly told him, Taylor did not object to the claimed exemption. If Taylor did not know the value of the potential proceeds of the lawsuit, he could have sought a hearing on the issue, see Rule 4003(c), or he could have asked the Bankruptcy Court for an extension of time to object, see Rule 4003(b). Having done neither, Taylor cannot now seek to deprive Davis and respondents of the exemption.Taylor suggests that our holding will create improper incentives. He asserts that it will lead debtors to claim property exempt on the chance that the trustee and creditors, for whatever reason, will fail to object to the claimed exemption on time. He asserts that only a requirement of good faith can prevent what the Eighth Circuit has termed "exemption by declaration." Peterson, supra, at 1393. This concern, however, does not cause us to alter our interpretation of § 522 (l).Debtors and their attorneys face penalties under various provisions for engaging in improper conduct in bankruptcy proceedings. See, e. g., 11 U. S. C. § 727(a)( 4)(B) (authorizing denial of discharge for presenting fraudulent claims); Rule 1008 (requiring filings to "be verified or contain an unsworn declaration" of truthfulness under penalty of perjury); Rule 9011 (authorizing sanctions for signing certain documents not "well grounded in fact and ... warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law"); 18 U. S. C. § 152 (imposing criminal penalties for fraud in bankruptcy cases). These provisions may limit bad-faith claims of exemptions by debtors. To the extent that they do not, Congress may enact comparable provisions to address the difficulties that Taylor predicts will645follow our decision. We have no authority to limit the application of § 522(l) to exemptions claimed in good faith.BTaylor also asserts that courts may consider the validity of the exemption under a different provision of the Bankruptcy Code, 11 U. S. C. § 105(a), despite his failure to object in a timely manner. That provision states:"The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process." Ibid. (emphasis added).Although Taylor stresses that he is not asserting that courts in bankruptcy have broad authorization to do equity in derogation of the Code and Rules, he maintains that § 105 permits courts to disallow exemptions not claimed in good faith. Several courts have accepted this position. See, e. g., Ragsdale v. Genesco, Inc., 674 F.2d 277, 278 (CA4 1982); In re Staniforth, 116 B. R. 127, 131 (Bkrtcy. Ct. WD Wis. 1990); In re Budinsky, No. 90-01099, 1991 WL 105640 (WD Pa., June 10, 1991).We decline to consider § 105(a) in this case because Taylor raised the argument for the first time in his opening brief on the merits. Our Rule 14.1(a) makes clear that "[o]nly the questions set forth in the petition [for certiorari], or fairly included therein, will be considered by the Court," and our Rule 24.1(a) states that a brief on the merits should not "raise additional questions or change the substance of the questions already presented" in the petition. See Yee v. Escondido, 503 U. S. 519, 535 (1992). In addition, we have646said that "[o]rdinarily, this Court does not decide questions not raised or resolved in the lower court[s]." Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam). These principles help to maintain the integrity of the process of certiorari. Cf. Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985). The Court decides which questions to consider through wellestablished procedures; allowing the able counsel who argue before us to alter these questions or to devise additional questions at the last minute would thwart this system. We see no "unusual circumstances" that warrant addressing Taylor's § 105(a) argument at this time. Berkemer v. McCarty, 468 U. S. 420, 443, n. 38 (1984).The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1991SyllabusTAYLOR v. FREELAND & KRaNZ ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo.91-571. Argued March 2, 1992-Decided April 21, 1992On the schedule she filed pursuant to § 522(l) of the Bankruptcy Code, debtor Davis listed as exempt property the expected proceeds from her pending employment discrimination suit. Petitioner Taylor, the trustee of Davis' bankruptcy estate, did not object to the claimed exemption within the 30-day period allowed by Federal Rule of Bankruptcy Procedure 4003(b). However, upon later learning that the discrimination suit had been settled for a substantial sum, Taylor filed a complaint in the Bankruptcy Court against respondents, Davis' attorneys in that suit, demanding that they turn over settlement proceeds as property of Davis' estate. Concluding that Davis had no statutory basis for claiming the proceeds as exempt, the court ordered respondents to "return" to Taylor a sum sufficient to payoff all of Davis' unpaid creditors, and the District Court affirmed. The Court of Appeals reversed, holding that the Bankruptcy Court had erred because Davis had claimed the money in question as exempt, and Taylor had failed to object to the claimed exemption in a timely manner.Held: A trustee may not contest the validity of a claimed exemption after the Rule 4003(b) 30-day period has expired, even though the debtor had no colorable basis for claiming the exemption. Pp. 642-646.(a) Because the parties agree that Davis did not have a statutory right to exempt more than a small portion of the lawsuit proceeds, let alone the full amount, Taylor apparently could have made a valid objection under § 522 (l)-which provides, inter alia, that "property claimed as exempt ... is exempt" "[u]nless a party in interest objects," but does not specify the time for objecting-if he had acted promptly under Rule 4003(b)-which establishes the 30-day objections period for trustees and creditors "unless, within such period, further time is granted by the court." P. 642.(b) However, Taylor's failure to promptly object precludes him from challenging the validity of the exemption at this time, regardless of whether or not Davis had a colorable statutory basis for claiming it. By negative implication, Rule 4003(b) indicates that a trustee may not object after 30 days unless a further extension of time is granted. Because no such extension was allowed by the Bankruptcy Court in this case, § 522(l) has made the settlement proceeds exempt. This Court639rejects Taylor's argument that, in order to discourage debtors from claiming meritless exemptions merely in hopes that no one will object, a court may invalidate an exemption after expiration of the 30-day period where the debtor did not have a good-faith or reasonably disputable basis for claiming it. To the extent that the various Code and Rules provisions aimed at penalizing debtors and their attorneys for improper conduct fail to limit bad-faith exemption claims, Congress, rather than this Court, may rewrite § 522(l) to include a good-faith requirement. Pp. 643-645.(c) Taylor's assertion that § 105(a) of the Code permits courts to disallow exemptions not claimed in good faith despite the absence of timely objections to such exemptions will not be considered by this Court, since that argument was first raised in Taylor's opening brief on the merits and was neither raised nor resolved in the lower courts. Pp. 645-646.938 F.2d 420, affirmed.THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 646.Timothy B. Dyk argued the cause for petitioner. With him on the briefs were Stephen J. Goodman, Peter M. Lieb, and Gary W Short.Phillip S. Simon argued the cause for respondents. With him on the brief was Kenneth P. Simon. *JUSTICE THOMAS delivered the opinion of the Court. Section 522(l) of the Bankruptcy Code requires a debtor to file a list of the property that the debtor claims as statutorily exempt from distribution to creditors. Federal Rule of Bankruptcy Procedure 4003 affords creditors and the bankruptcy trustee 30 days to object to claimed exemptions. We must decide in this case whether the trustee may contest the validity of an exemption after the 30-day period if the debtor had no colorable basis for claiming the exemption.*Gary Klein and Daniel L. Haller filed a brief for the Mon Valley Unemployed Committee et al. as amici curiae urging affirmance.640Full Text of Opinion

1976_75-562

MR. JUSTICE REHNQUIST delivered the opinion of the Court.In June, 1972, the Rosebud Sioux Tribe sued in the United States District Court for the District of South Dakota to obtain a declaratory judgment that the original boundaries of their reservation, as defined in the Act of March 2, 1889, 25 Stat. 888, had not been diminished by three subsequent Acts of Congress passed in 1904, 1907, and 1910 respectively. [Footnote 1] The District Court, noting that,"[f]rom the time these acts were passed, these [four] counties have been treated as outside the Rosebud Sioux Reservation by the settlers, their descendants, the State of South Dakota and the federal courts,"375 F. Supp. 1065, 1084, denied relief. It concluded that Congress had intended to diminish the Reservation so as to exclude the four counties in South Dakota affected by the 1904, the 1907, and the 1910 Acts. The United States Court of Appeals for the Eighth Circuit, in a careful and comprehensive opinion, affirmed the judgment of the District Court. 521 F.2d 87. We granted certiorari, 425 U.S. 989, to review this determination in the light of our recent decisions in DeCoteau v. District County Court, 420 U. S. 425 (1975), and Mattz v. Arnett, 412 U. S. 481 (1973). Since we conclude that the three Acts Page 430 U. S. 586 of Congress in question satisfy the requirement that"[a] congressional determination to terminate [an Indian reservation] must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history,"Mattz v. Arnett, supra at 412 U. S. 505, we affirm the judgment of the Court of Appeals.IWhen established, the Rosebud Indian Reservation contained somewhat over 3.2 million acres, and covered all or a portion of what later became five counties in South Dakota: Gregory, Tripp, Lyman, Mellette, and Todd. The three Acts we are asked to construe successively disposed of all unallotted lands in Gregory County (1904 Act), in Tripp and Lyman Counties (1907 Act), and in Mellette County (1910 Act). Only Todd County remains unaffected by these post-1889 enactments. The contention of the Rosebud Sioux Tribe is that these Acts, while opening up the unallotted land outside of Todd County to non-Indian settlement, did not thereby change the Reservation boundaries, which continued to encompass these five counties.In determining whether or not the 1889 Reservation boundaries were subsequently diminished by congressional enactments, we are guided by well established legal principles. The underlying premise is that congressional intent will control. DeCoteau v. District County Court, supra at 420 U. S. 444, 420 U. S. 449; United States v. Celestine, 215 U. S. 278, 215 U. S. 285 (1909). In determining this intent, we are cautioned to follow"the general rule that '[d]oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.'"McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 411 U. S. 174 (1973), quoting Carpenter v. Shaw, 280 U. S. 363, 280 U. S. 367 (1930); see also Mattz v. Arnett, supra at 412 U. S. 505. The mere fact that a reservation has been opened to settlement does not necessarily mean that the opened area has lost its reservation Page 430 U. S. 587 status. Mattz v. Arnett, supra; see also Seymour v. Superintendent, 368 U. S. 351 (1962). But the "general rule" does not command a determination that reservation status survives in the face of congressionally manifested intent to the contrary. DeCoteau v. District County Court, supra. In all cases, "the face of the Act," the "surrounding circumstances," and the "legislative history," are to be examined with an eye toward determining what congressional intent was. Mattz v. Arnett, supra at 412 U. S. 505.Applying these principles to the facts of this case, we conclude that the Acts of 1904, 1907, and 1910 did clearly evidence congressional intent to diminish the boundaries of the Rosebud Sioux Reservation. The parties agree that an amendment to the 1889 Treaty, which provided for a fixed-sum payment and which was approved by three-fourths of the Rosebud Sioux Tribe's adult males in 1901, would have resulted in the diminution of the Rosebud Reservation boundaries. Congress did not, however, approve the 1901 amendment to the Treaty which the Tribe had ratified. The Tribe contends that, lacking tribal ratification and a fixed-sum provision, the later Acts were ineffectual to accomplish this same result. In the Tribe's view, the absence of these two factors vitally distinguishes the Acts in question from the otherwise similar Act examined in DeCoteau v. District County Court, supra. Because of the reasons hereafter set forth in greater detail, we conclude that, although the Acts of 1904, 1907, and 1910 were unilateral Acts of Congress without the consent of three-quarters of the members of the tribe required by the original Treaty, [Footnote 2] that fact does not have any direct bearing on the question of whether Congress, by these later Acts, did intend to diminish the Reservation boundaries. By the time of Page 430 U. S. 588 the first of these Acts, in 1904, Congress was aware of the decision of this Court in Lone Wolf v. Hitchcock, 187 U. S. 553 (1903), which held that Congress possessed the authority to abrogate unilaterally the provisions of an Indian treaty. We also conclude that the changed method of payment is not conclusive with respect to congressional intent. Although the later Acts of Congress made less secure provisions for payment to the Tribe for the lands in question than did the 1901 Treaty, their language with respect to the reservation status of the opened lands was identical with or derivative from the language used in that proposed amendment. [Footnote 3] The language was also substantially equivalent to that used in the executed agreement involved in DeCoteau. We agree with the Court of Appeals and the District Court that this language not only opened the land for settlement, but diminished the boundaries of the Reservation pro tanto. [Footnote 4] Page 430 U. S. 589IIThe Rosebud Sioux are one of the tribes of Indians of the Sioux Nation. The Treaty of April 29, 1868, 15 Stat. 635, set aside all the land in South Dakota west of the Missouri River as the Great Sioux Reservation, consisting of some 25 million acres. Article 12 of the Treaty provided that no subsequent treaty for the cession of any part of the reservation would be valid without the written consent of three-fourths of the adult male Indians on the reservation. Despite this provision, in 1877, approximately 7.5 million acres, consisting of the Black Hills portion of the Great Sioux Reservation, were removed from the Reservation by the Act of February 28, 1877, 19 Stat. 254. See Sioux Tribe of Indians v. United States, 97 Ct.Cl. 613 (1942), cert. denied, 318 U.S. 789 (1943). Of the remaining Reservation, approximately one-half was "restored to the public domain" under the Act of March 2, 1889, 25 Stat. 896, § 21, [Footnote 5] while six separate Reservations were carved out of the remainder, §§ 1-6. Section 2 set apart the Rosebud Reservation, encompassing what were later organized as three full counties (Todd, Mellette, and Tripp), a major portion of Gregory County, and a small portion of Lyman. [Footnote 6] This Reservation, as originally delimited, contained over 3.2 million acres. Page 430 U. S. 590Around the turn of the century, the "familiar forces" to which we referred in DeCoteau v. District County Court led to demands to open up the Reservation. [Footnote 7] A provision in the Indian Department Appropriation Act, Mar. 3, 1901, 31 Stat. 1077, provided:"[T]he Secretary of the Interior be, and he is hereby, authorized, in his discretion, to negotiate, through any United States Indian inspector, agreements with any Indians for the cession to the United States of portions of their respective reservations or surplus unallotted lands, any agreements thus negotiated to be subject to subsequent ratification by Congress."Shortly thereafter, Inspector James McLaughlin was instructed by the Commissioner of Indian Affairs to begin "negotiations with the Indians of the Rosebud reservation, in South Dakota, for the cession of the unallotted eastern portion of their reserve." Letter dated Mar. 19, 1901, from W. A. Jones, Commissioner, Office of Indian Affairs, Department of Interior. Following meetings with members of the Tribe during the spring and summer of 1901, Inspector McLaughlin obtained the written consent of three-fourths of the Page 430 U. S. 591 male Indian adults to the cession of some 416,000 acres of unallotted land in Gregory County for the sum of $1,040,000, subject to congressional ratification. [Footnote 8] The negotiated Agreement, however, was never ratified, [Footnote 9] "because of the fact that it provided that the Government should pay for the lands outright. . . ." 38 Cong.Rec. 1423 (1904) (remarks of Rep. Burke). [Footnote 10]What is important for our purposes is the undisputed fact that the 1901 Agreement, had it been ratified by Congress, would have disestablished that portion of the Rosebud Reservation which lay in Gregory County. Inspector McLaughlin explained to the Tribe that "[t]he cession of Gregory County" by ratification of the Agreement"will leave your reservation a compact and almost square tract, and would leave your Page 430 U. S. 592 reservation about the size and area of Pine Ridge Reservation. [Footnote 11]"It is conceded that his description was correct; the effect and intent of the 1901 Agreement, if ratified, would have been to change the Reservation boundaries. As we noted in DeCoteau v. District County Court, 420 U.S. at 420 U. S. 445, in construing virtually identical language: "The Agreement's language . . . was precisely suited to this purpose [of disestablishment]." In this Agreement, therefore, we have -- unlike the situation in Mattz v. Arnett, 412 U. S. 481 (1973) -- an unmistakable baseline purpose of disestablishment.An examination of the legislative processes which resulted in the 1904 Act convinces us, as it did the lower courts, that this purpose was carried forth and enacted. Because of the history of the 1901 Agreement, the 1904 Act cannot, and should not, be read as if it were the first time Congress had addressed itself to the diminution of the Rosebud Reservation.In 1903, new bills were introduced, and subsequently reported from committee in both chambers of Congress, which proposed"to adopt a new policy in acquiring lands from the Indians [by] provid[ing] that the lands shall be disposed of to settlers . . and to be paid for by the settlers, and the money to be paid to the Indians only as it is received . . . from the settlers. [Footnote 12]"The Senate bill, S. 7390, passed the Senate in February, 36 Cong.Rec. 2748 (1903), but the 57th Congress expired before the House could give it consideration. In line with the changes in S. 7390, which related to the method of payment, Inspector McLaughlin was subsequently instructed to go to the Rosebud Reservation to negotiate a new Page 430 U. S. 593 agreement. [Footnote 13] He explained to the Rosebud Tribe:"I am here to enter into an agreement which is similar to that of two years ago, except as to the manner of payment. . . . You will still have as large a reservation as Pine Ridge after this is cut off. [Footnote 14]"Inspector McLaughlin failed to get three-fourths of the adult male Indians to consent to this new method of payment, although he did obtain the consent of a majority, provided that the price to homesteaders be raised from $2.50 to $2.75 per acre. Agreement of Aug. 10, 1903. [Footnote 15] However, Page 430 U. S. 594 as Inspector McLaughlin had explained to the Tribe, [Footnote 16] Congress understood that it was not bound by the three-fourths consent requirement of the 1868 Treaty with the Sioux Nation. In Lone Wolf v. Hitchcock, 187 U.S. at 187 U. S. 566, 568, this Court, dealing with the validity of a cession of tribal lands enacted in contravention of a treaty requiring three-fourths Indian consent, held:"The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians, it was never doubted that the power to abrogate existed in Congress.""* * * *" ". . . In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation."Although Inspector McLaughlin failed to garner the signatures of three-quarters of the Indians in consent of the proposed changes, Congress understandably relied on this holding as authorizing it to diminish unilaterally the Reservation boundaries.In examining congressional intent, there is no indication Page 430 U. S. 595 that Congress intended to change anything other than the form of, and responsibility for, payment. In recommending ratification of the 1901 Agreement, as modified, the accompanying House Report stated:"The purpose of this bill is to ratify and amend an agreement made with the Rosebud Indians in South Dakota by Inspector James McLaughlin, dated September 14, 1901, providing for the cession to the United States of the unallotted portion of their lands in Gregory County, S. Dak., and opening the same to settlement and entry under the homestead and town-site laws.""* * * *" "There is no question but what the Indians have no use for the land that is proposed to be ceded by this bill; that the tract is only a very small portion of the Rosebud Reservation, and is really only a corner of the reservation, which will be left compact and in a square tract and a reservation about equal in size to the Pine Ridge Reservation, in South Dakota. [Footnote 17]"On the floor of the House, Congressman Burke, the 1904 Act's sponsor, in discussing the changes in the Agreement since Page 430 U. S. 596 1901, made clear that he new bill was concerned only with the responsibility for payment, 38 Cong.Rec. 1423 (1904):"Mr. BURKE. . . . In 1901, a treaty was entered into with the Rosebud Indians on the part of the United States, by which the Indians agreed to sell to the Government this land for $2.50 per acre. That treaty was transmitted to Congress, and because of the fact that it provided that the Government should pay for the lands outright and then take the chance of the Treasury being reimbursed by disposing of the lands to settlers, it never got further than through the Committee on Indian Affairs, which unanimously reported it favorably. It was never given consideration in the House.""Toward the concluding days of the last session of Congress, a new bill was prepared, substantially as this bill now provides, and that bill provided that the lands should be ceded by the Indians to the Government, disposed of to settlers under the provisions of the homestead law, the price to be fixed at $2.50 an acre, as was provided in the original treaty. . . . This bill is substantially the same as the bill which I have just referred to. . . . "The bill itself, as introduced and passed by both Houses, incorporated the entire text of the 1903 Agreement, which itself followed the 1901 Agreement except that: (1) the Indians were not guaranteed any consideration for the land except with respect to the 16th and 36th sections (school sections), but were to be paid only as the lands were actually sold to settlers; (2) the United States did not guarantee to find purchasers, but agreed only to "act as trustee for said Indians to dispose of said lands." [Footnote 18]In particular, the 1904 Page 430 U. S. 597 Act incorporated verbatim the language of immediate cession of the 1901 Agreement:"The said Indians belonging on the Rosebud Reservation, South Dakota, for the consideration hereinafter named, do hereby cede, surrender, grant, and convey to the United States all their claim, right, title, and interest in and to all that part of the Rosebud Indian Reservation now remaining unallotted, situated within the boundaries of Gregory County. . . ."33 Stat. 256. As in DeCoteau v. District County Court, 420 U.S. at 420 U. S. 445, this language is "precisely suited" to disestablishment.Petitioner, however, objects that a "cession" requires bilateral consent, and the failure of Inspector McLaughlin to gain the approval of three-quarters of the male adult Indians vitiates any "cession." As a matter of strict English usage, petitioner is undoubtedly correct: "cession" refers to a voluntary surrender of territory or jurisdiction, rather than a withdrawal of such jurisdiction by the authority of a superior sovereign. But as Mr. Justice (then Judge) Holmes commented, we are not free to say to Congress: "We see what you are driving at, but you have not said it, and therefore we shall go on as before." Johnson v. United States, 163 F. 30, 32 (CA1 1908). Congress was simply repeating verbatim language from a bill ratifying the 1901 Agreement, which had made the proper use of the word "cession" because the Agreement had been approved by the Tribe. The use of the word "cession" in the 1904 Act, which was not consented to by the required extraordinary majority of the Tribe, does not make the meaning of the Act ambiguous as between diminution of the Reservation boundaries on the one hand, and merely opening up designated lands for settlement by non-Indians, on the other. The word is technically misused, but the meaning is quite clear. It was Page 430 U. S. 598 intended to accomplish, in 1904, precisely what it was intended to accomplish in 1901. Congress was under no misapprehension that the required portion of the Tribe had in fact approved the treaty. It knew that, while a majority of the Tribe had approved it, the required extraordinary majority had not; but it had determined nonetheless to go ahead and accomplish the same result unilaterally as the Agreement would have accomplished bilaterally. [Footnote 19]The "bill provided that the lands should be ceded by the Indians to the Government. . . ." 38 Cong.Rec. 1423 (1904) (remarks of Rep. Burke). It is clear that Congress was relying on Lone Wolf v. Hitchcock, 187 U. S. 553 (1903), in making this unilateral declaration. There is nothing in the changed method of payment, or the failure to obtain a three-quarters vote from the Indians, which indicates that the clear intent of the 1901 Agreement to diminish the Reservation boundaries had changed between 1901 and 1904. [Footnote 20] The Tribe, moreover, was eventually paid for the land, supra at 430 U. S. 588 n. 3. Page 430 U. S. 599This implied continuity in purpose from 1901 to 1904 does not, however, stand alone in indicating congressional intent. Section 4 of the 1904 Act, 33 Stat. 258, provides, in pertinent part:"[S]ections sixteen and thirty-six of the lands hereby acquired in each township shall not be subject to entry, but shall be reserved for the use of the common schools and paid for by the United States at two dollars and fifty cents per acre, and the same are hereby granted to the State of South Dakota for such purpose. . . ."When North and South Dakota were admitted into the Union, § 10 of the admitting Act, Act of Feb. 22, 1889, 25 Stat. 679, provided, in pertinent part:"[U]pon the admission of each of said States into the Union sections numbered sixteen and thirty-six in every township of said proposed States . . . are hereby granted to said States for the support of common schools . . . : Provided, That the sixteenth and thirty-sixth sections embraced in permanent reservations for national purposes Page 430 U. S. 600 shall not, at any time, be subject to the grants . . . of this act, nor shall any land embraced in Indian, military, or other reservations of any character be subject to the grants . . . of this act until the reservation shall have been extinguished and such lands be restored to, and become a part of, the public domain."The language of § 10 is mandatory: "nor shall" the 16th and 36th sections of lands within Indian reservations "be subject to the grants . . . until the reservation shall have been extinguished. . . ." While Congress would have had the power to establish other grants, cf. 43 U.S.C. § 856, the legislative history, in this case, demonstrates that Congress "included the provision to implement the grant in the enabling act, and for no other reason." 521 F.2d at 101. [Footnote 21] Both the House and Senate Reports explicitly noted that the "school sections" provision of what became the 1904 Act "is in conformity with the guarantee given to the State of South Dakota by Congress in the enabling act. . . ." [Footnote 22] Congress, therefore, clearly thought that it was acting pursuant to § 10 of the Act of February 22, 1889, and not sub silentio adding an additional grant for Page 430 U. S. 601 school lands located within a continuing reservation. [Footnote 23] The far more natural construction, then, is to read a congressional intent to disestablish Gregory County from the Rosebud Reservation, thereby making the sections available for disposition to the State of South Dakota for "school sections" under § 10 of the Act of February 22, 1889. [Footnote 24] Page 430 U. S. 602That it was clearly understood, at least by the Executive Branch, that the 1904 Act, like the 1901 Agreement, contemplated a diminution of the Reservation, is apparent from the Rosebud Proclamation of May 13, 1904, 33 Stat. 2354. In accordance with the requirement of § 2 of the 1904 Act that the land would"be disposed of under the general provisions of the homestead and town-site laws of the United States, and shall be opened to settlement and entry,"the Proclamation stated, in pertinent part:"Whereas by an agreement between the Sioux tribe of Indians on the Rosebud Reservation, in the State of South Dakota, on the one part, and James McLaughlin, a United States Indian Inspector, on the other part, amended and ratified by act of Congress . . . , the said Indian tribe ceded, conveyed, transferred, relinquished, and surrendered, forever and absolutely, without any reservation whatsoever, expressed or implied, unto the United States of America, all their claim, title, and interest of every kind and character in and to the unallotted lands embraced in the following described tract of country now in the State of South Dakota, . . .""* * * *" "NOW, THEREFORE, I, THEODORE ROOSEVELT, President of the United States of America, by virtue of the power vested in me by law, do hereby declare and make known that all of the lands so as aforesaid ceded by the Sioux tribe of Indians of the Rosebud Reservation . . . will, on the eighth day of August, 1904, at 9 o'clock a.m., in the manner herein prescribed and not otherwise, be opened to entry and settlement and to disposition under the general provisions of the homestead and townsite laws of the United States."(Emphasis supplied.) The opening portion of the Proclamation is an unambiguous, contemporaneous, statement, by the Nation's Chief Executive, Page 430 U. S. 603 of a perceived disestablishment of Gregory County. It reflects, we believe, the clear import of the congressional action in the 1904 Act.In sum, an examination of the process leading up to the enactment of the 1904 Act, as well as the language and legislative history, leads us, as it led the Court of Appeals and the District Court, to the firm conclusion that congressional intent was to exclude Gregory County from the Rosebud Reservation. [Footnote 25]Although the subsequent "jurisdictional history," DeCoteau v. District County Court, 420 U.S. at 420 U. S. 442, is not entirely clear, the single most salient fact is the unquestioned actual assumption of state jurisdiction over the unallotted lands in Gregory County since the passage of the 1904 Act, see 375 F. Supp. at 1084; Amended Complaint � 21. [Footnote 26] Since state Page 430 U. S. 604 jurisdiction over the area within a reservation's boundaries is quite limited, 18 U.S.C. § 1151; McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164 (1973); Wlliams v. Lee, 358 U. S. 217 (1959); Worcester v. Georgia, 6 Pet. 515 (1832), the fact that neither Congress nor the Department of Indian Affairs has sought to exercise its authority over this area or to challenge the State's exercise of authority is a factor entitled to weight as a part of the "jurisdictional history." [Footnote 27] The longstanding Page 430 U. S. 605 assumption of jurisdiction by the State over an area that is over 90% non-Indian, both in population and in land use, not only demonstrates the parties' understanding of the meaning of the Act, but has created justifiable expectations which should not be upset by so strained a reading of the Acts of Congress as petitioner urges. [Footnote 28] We are simply unable to conclude that the intent of the 1904 Act was other than to disestablish.IIIHaving determined that the 1904 Act carried forth the intent to disestablish which was unquestionably manifested in the 1901 Agreement, our examination of the 1907 and the Page 430 U. S. 606 1910 Acts is made easier. None of the parties really disputes that the intent of the three Acts was the same. [Footnote 29] Because the later Acts do vary in some respects, however, we shall explain briefly why we find a continuity of intent through the 1907 and the 1910 Acts. [Footnote 30]The "familiar forces" at work pressing for the opening of Indian lands did not cease with the cession of Gregory County. By late 1906, Congressman Burke was preparing a bill dealing with the "sale of that part of the reservation located in Tripp County." [Footnote 31] Inspector McLaughlin was instructed to proceed to the Rosebud Reservation to negotiate an agreement for land in Tripp County which, when "ceded, should be disposed of under the general provisions of the homestead and townsite laws of the United States," and he was given suggested terms, "similar to those in the disposal Page 430 U. S. 607 of the ceded lands in Gregory County. . . . " [Footnote 32] Inspector McLaughlin's negotiations produced virtually the same result as in 1904. A 1907 Agreement, signed by a majority, but not by three-fourths, of the adult male Indians provided that the Indians"do hereby cede, grant and relinquish to the United States all claim, right, title, and interest in and to all that part of the Rosebud Indian Reservation [in Tripp and Lyman Counties] except such portions thereof as have been, or may hereafter be, allotted to Indians. [Footnote 33]"The Secretary of the Interior recommended that Congress ratify the Agreement, Letter from E. A. Hitchcock, supra, n 33, and the Senate Committee on Indian Affairs reported a ratification bill out, S.Rep. No. 6831, 59th Cong., 2d Sess. (1907). By this time, however, the House had already passed a second bill introduced by Congressman Burke which did not incorporate the Agreement, 41 Cong.Rec. 3103-3105 (1907) (H.R. 24987), although it did substantially incorporate the terms of the Agreement, as noted by Congressman Burke, id. at 3104:"The bill is substantially in accordance with an agreement which has just been made with the Indians, signed by [a majority]. . . . It is along the line of the bill which passed in the Fifty-eighth Congress for the sale of that portion of this same reservation that is located in Gregory County. "Page 430 U. S. 608". . . They will have left, after this land is disposed of, a reservation that is substantially 50 miles square. . . . [Footnote 34]"The operative language of the bill, subsequently passed by the Senate without debate and enacted into law, 34 Stat. 1230, provided:"[T]he Secretary of the Interior be, and he is hereby, authorized and directed, as hereinafter provided, to sell or dispose of all that portion of the Rosebud Indian Reservation in South Dakota [in Tripp and Lyman Counties], except such portions thereof as have been, or may hereafter be, allotted to Indians. . . ."As the parties recognize, the substance of the 1907 Act is identical to the 1904 Act. Section 2 provides for the disposition of lands under the "general provisions of the homestead and town-site laws," while § 3 specifics land purchase prices, with the proviso that"any lands remaining unsold after the said lands have been opened to entry for seven years may be sold to the highest bidder for cash, without regard to the above minimum limit of price. [Footnote 35]"Section 6 provides for the purchase by the United States of sections 16 and 36 of the lands in each township and their transfer to South Dakota for "the use of the common schools." [Footnote 36] Sections 5 and 7 provide that the United States is to act as trustee for the Indians to dispose of the lands and to collect and dispense the proceeds. [Footnote 37]In virtually all respects, then, except for the operative language in § 1 replacing the Agreement language, the 1907 Page 430 U. S. 609 Act is a functional twin of the 1904 Act. And, as the legislative comments make clear, supra at 430 U. S. 607-608, the change in § 1 language was not intended to modify or change the purposes or operation of the 1904 Act. [Footnote 38] We agree with the Court of Appeals' conclusion, 521 F.2d at 104:"Nothing in the language of the 1907 Act or in the surrounding circumstances and legislative history indicates a change in that congressional determination to alter the reservation boundaries which we have found in the 1904 Act."The 1907 Act, like the 1904 Act which preceded it, disestablished the land in Tripp and Lyman Counties from the Rosebud Reservation.The pressures for more land had not yet expended themselves with the passage of the 1907 Act. In late 1908, Senator Gamble submitted a new bill authorizing the sale and disposition of a portion of the surplus and unallotted lands in Mellette County and in a strip located in the eastern part of Todd County, S. 7379, 43 Cong.Rec. 65 (1908). The accompanying Senate Report noted, in proposing the opening to settlement of an area comprising about 900,000 acres, that "[t]he present area of the Rosebud Indian Reservation aggregates 1,800,000 acres." S.Rep. No. 887, 60th Cong., 2d Sess., 1 (1909) (emphasis supplied). [Footnote 39] The school sections Page 430 U. S. 610 provision was again included in the bill, "to be paid for by the Government in conformity with the provisions of the act admitting the State of South Dakota into the Union." Id. at 2. [Footnote 40] Senator Gamble was unable to have the Senate consider the bill before the term of Congress expired, and Inspector McLaughlin was once again dispatched to conduct negotiations with the Rosebud Tribe concerning the Gamble bill. [Footnote 41] This time he did not seek to negotiate an agreement with the Indians, but reported back to the Secretary of the Interior the "practically unanimous" concurrence of the Indians"in the opening of the northern strip, provided the two Page 430 U. S. 611 tiers of townships in the eastern part of Meyer [sic] County remain a part of the diminished reservation. [Footnote 42]"New bills were introduced similar in purpose to the original Gamble bill. [Footnote 43] The Secretary of the Interior recommended to Congress that the bill open only Mellette County, and not the eastern part of Todd County, and that the bill also include a provision subjecting the land to be opened "for a period of twenty-five years to all the laws of the United States prohibiting the introduction of intoxicants into the Indian country." [Footnote 44] These changes were made in S. 183, see S.Rep. No. 68, 61st Cong., 2d Sess. (1910). The Report noted, id. at 2:"The present area of the Rosebud Indian Reservation aggregates about 1,800,000 acres. The lands proposed to be opened to settlement under the provisions of this bill embrace an area of about 830,000 acres. . . .""* * * *" ". . . It also provides that the Secretary of the Interior, in his discretion, may permit Indians who have allotments within the area proposed to be opened to relinquish such allotments and to receive in lieu thereof allotments anywhere within the reservation proposed to be diminished.""Sections 16 and 36 of the lands in each township are not to be disposed of, but are reserved for the use of the common schools of the State, and these lands are to be paid for by the Government in conformity with the provisions Page 430 U. S. 612 of the act admitting the State of South Dakota into the Union. . . .""* * * *" "Although Congress has full power to enact legislation of this character without the consent of the Indians, it was felt the Indians should be fully advised as to the provisions of the pending measure, and their views should be asked in regard thereto."The bill was passed by the Senate on January 17, 1910, 45 Cong.Rec. 1065-1066, 1075 (1910), and the House Committee on Indian Affairs decided to adopt the Senate bill, its Report noting:"The Rosebud Indian Reservation, when set aside as a separate reservation under the Sioux act of 1889, contained something over 3,000,000 acres of land. [Then follows a description of the 1904 Act and the 1907 Act, observing that the 1907 Act was 'substantially in the same form as the bill now under consideration. . . .']""The area comprised in the present bill is about 800,000 acres. . . . There will still be left a reservation containing about 1,000,000 acres, and as the Indians have all been allotted, there is no occasion for continuing a reservation larger than it will be when Mellette County is disposed of. [Footnote 45]"The bill then passed the House with amendments, id. at 5473, and, after conference to reconcile differences in the House and Senate bills not material here, the bill became law on May 30, 1910. [Footnote 46]The 1910 Act is substantially similar to the 1907 Act, and Page 430 U. S. 613 uses identical operative language authorizing and directing the Secretary of the Interior"to sell and dispose of all that portion of the Rosebud Indian Reservation [in present day Mellette County] except such portions thereof as have been or may be hereafter allotted to Indians. . . ."36 Stat. 448. Because of the substantive similarity of the Acts, no useful purpose would be served in recounting the similar provisions contained in the 1910 Act. Two new provisions, however, do warrant mention. The first is a proviso in § 1, stating:"[A]ny Indians to whom allotments have been made on the tract to be ceded may, in case they elect to do so before said lands are offered for sale, relinquish same and select allotments in lieu thereof on the diminished reservation."This proviso, on its face, is a strong indication of the continuing intent to disestablish the affected areas, first manifested in the 1901 Agreement. The second is the provision in § 10 of the 1910 Act, included at the suggestion of the Secretary of the Interior, subjecting the opened land "for a period of twenty-five years to all the laws of the United States prohibiting the introduction of intoxicants into the Indian country." As there existed, in 1910, an outstanding prohibition against the introduction of intoxicants into "Indian country," see Act of July 23, 1892, 27 Stat. 260, the most reasonable inference from the inclusion of this provision is that Congress was aware that the opened, unallotted areas would henceforth not be "Indian country," because not in the Reservation. [Footnote 47] Page 430 U. S. 614These added provisions, as well as the clear legislative history of the 1910 Act, reflect strongly the continued intent to diminish the Reservation boundaries. We conclude that Page 430 U. S. 615 the 1910 Act continued the policies of the prior two Acts, and Mellette County was thereby detached from the Reservation.IVThe intent of Congress in the 1904, the 1907, and the 1910 Acts was to change the boundaries of the original 1889 Rosebud Reservation. Much has changed since then, and, if Congress had it to do over again, it might well have chosen a different course. But, as we observed in DeCoteau v. District County Court, 420 U.S. at 420 U. S. 449: "[O]ur task here is a narrow one. . . . [W]e cannot remake history." [Footnote 48]Affirmed

U.S. Supreme CourtRosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977)Rosebud Sioux Tribe v. KneipNo. 75-562Argued January 12, 1977Decided April 4, 1977430 U.S. 584SyllabusBoth the language and legislative history of the Acts of 1904, 1907, and 1910, whereby land in certain counties in South Dakota located within the boundaries of the Rosebud Sioux Reservation as defined in an 1889 Treaty was required to be ceded by the Reservation Indians to the Government for sale to settlers under the homestead and townsite laws with the proceeds to be credited to the Indians only as received or, with respect to certain parcels, for transfer to South Dakota for school use, held clearly to evidence a congressional intent to diminish the boundaries of the Reservation. Although such Acts were unilateral Acts of Congress without the consent of three-fourths of the Rosebud Sioux Tribe's adult male members, as was required by the original 1868 Treaty establishing the Reservation, that fact does not directly bear on the question whether Congress, by these later Acts, intended to diminish the Reservation boundaries. Nor is it conclusive with respect to congressional intent that these Acts changed the method of payment from an outright, fixed-sum payment to the Indians required by a 1901 Agreement that would have amended the 1889 Treaty and would have resulted in a diminution of the Reservation boundaries, but which, although approved by three-fourths of the Tribe's adult male members, was never ratified by Congress. Pp. 430 U. S. 586-615.521 F.2d 87, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 430 U. S. 615. Page 430 U. S. 585

1975_74-1187

MR. JUSTICE WHITE delivered the opinion of the Court.These cases present questions as to procedures required at prison disciplinary hearings and as to the reach of our recent decision in Wolff v. McDonnell, 418 U. S. 539 (1974).IA. No. 7-1191Respondents are inmates of the California penal institution at San Quentin. They filed an action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief and alleging that the procedures used in disciplinary proceedings at San Quentin violated their rights to due process and equal protection of the laws under the Fourteenth Amendment of the Constitution. [Footnote 1] After an evidentiary Page 425 U. S. 311 hearing, the District Court granted substantial relief. Clutchette v. Procunier, 328 F. Supp. 767 (ND Cal.1971). The Court of Appeals for the Ninth Circuit, with one judge dissenting, affirmed, 497 F.2d 809 (1974), holding that an inmate facing a disciplinary proceeding at San Quentin was entitled to notice of the charges against him, to be heard and to present witnesses, to confront and cross-examine witnesses, to face a neutral and detached hearing body, and to receive a decision based solely on evidence presented at the hearing. The court also held that an inmate must be provided with counsel or a counsel substitute when the consequences Page 425 U. S. 312 of the disciplinary action are "serious," such as prolonged periods of "isolation." Id. at 821. The panel of the Court of Appeals, after granting rehearing to reconsider its conclusions in light of our intervening decision in Wolff, supra, reaffirmed its initial judgment -- again with one judge dissenting -- but modified its prior opinion in several respects. 510 F.2d 613 (1975). The Court of Appeals held that minimum notice and a right to respond are due an inmate faced even with a temporary suspension of privileges, that an inmate at a disciplinary hearing who is denied the privilege of confronting and cross-examining witnesses must receive written reasons for such denial or the denial "will be deemed prima facie evidence of abuse of discretion," id. at 616, and -- reaffirming its initial view -- that an inmate facing prison discipline for a violation that might also be punishable in state criminal proceedings has a right to counsel (not just counsel substitute) at the prison hearing. We granted certiorari and set the case for oral argument with No. 74-1187. 421 U.S. 1010 (1975).B. No. 74-1187Respondent Palmigiano is an inmate of the Rhode Island Adult Correctional Institution serving a life sentence for murder. He was charged by correctional officers with "inciting a disturbance and disrupt[ion] of [prison] operations, which might have resulted in a riot." App. 197 (No. 74-1187). He was summoned before the prison Disciplinary Board and informed that he might be prosecuted for a violation of state law, that he should consult his attorney (although his attorney was not permitted by the Board to be present during the hearing), that he had a right to remain silent during the hearing, but that, if he remained silent, his silence would be held against him. Respondent availed himself of the counsel substitute provided for by prison rules and remained Page 425 U. S. 313 silent during the hearing. The Disciplinary Board's decision was that respondent be placed in "punitive segregation" for 30 days and that his classification status be downgraded thereafter.Respondent filed an action under 42 U.S.C. § 1983 for damages and injunctive relief, claiming that the disciplinary hearing violated the Due Process Clause of the Fourteenth Amendment of the Constitution. [Footnote 2] The District Page 425 U. S. 314 Court held an evidentiary hearing and denied relief. The Court of Appeals for the First Circuit, with one judge dissenting, reversed, holding that respondent"was denied due process in the disciplinary hearing only insofar as he was not provided with use immunity for statements he might have made within the disciplinary hearing, and because he was denied access to retained counsel within the hearing."487 F.2d 1280, 1292 (1973). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded to that court for further consideration in light of Wolff v. McDonnell, supra, decided in the interim. 418 U.S. 908 (1974). On remand, the Court of Appeals affirmed its prior decision, but modified its opinion. 510 F.2d 534 (1974). The Court of Appeals held that an inmate at a prison disciplinary proceeding must be advised of his right to remain silent, that he must not be questioned further once he exercises that right, and that such silence may not be used against him at that time or in future proceedings. With respect to counsel, the Court of Appeals held:"[I]n cases where criminal charges are a realistic possibility, prison authorities should consider whether defense counsel, if requested, should not be let into the disciplinary proceeding, not because Wolff requires it in that proceeding, but because Miranda [v. Arizona, 384 U. S. 436 (1966)] requires it in light of future criminal prosecution."Id. at 537.We granted certiorari and heard the case with No. 74-1194. 421 U.S. 1010 (1975).IIIn Wolff v. McDonnell, supra, drawing comparisons to Gagnon v. Scarpelli, 411 U. S. 778 (1973), we said:"The insertion of counsel into the [prison] disciplinary process would inevitably give the proceedings Page 425 U. S. 315 a more adversary cast and tend to reduce their utility as a means to further correctional goals. There would also be delay and very practical problems in providing counsel in sufficient numbers at the time and place where hearings are to be held. At this stage of the development of these procedures, we are not prepared to hold that inmates have a right to either retained or appointed counsel in disciplinary proceedings."418 U.S. at 418 U. S. 570.Relying on Miranda v. Arizona, 384 U. S. 436 (1966), and Mathis v. United States, 391 U. S. 1 (1968), both Courts of Appeals in these cases held that prison inmates are entitled to representation at prison disciplinary hearings where the charges involve conduct punishable as a crime under state law not because of the services that counsel might render in connection with the disciplinary proceedings themselves, but because statements inmates might make at the hearings would perhaps be used in later state court prosecutions for the same conduct.Neither Miranda, supra, nor Mathis, supra, has any substantial bearing on the question whether counsel must be provided at "[p]rison disciplinary hearings [which] are not part of a criminal prosecution." Wolff v. McDonnell, supra at 418 U. S. 556. The Court has never held, and we decline to do so now, that the requirements of those cases must be met to render pretrial statements admissible in other than criminal cases.We see no reason to alter our conclusion so recently made in Wolff that inmates do not "have a right to either retained or appointed counsel in disciplinary hearings." 418 U.S. at 418 U. S. 570. Plainly, therefore, state authorities were not in error in failing to advise Palmigiano to the contrary, i.e., that he was entitled to counsel at the hearing and that the State would furnish counsel if he did not have one of his own. Page 425 U. S. 316IIIPalmigiano was advised that he was not required to testify at his disciplinary hearing, and that he could remain silent, but that his silence could be used against him. The Court of Appeals for the First Circuit held that the self-incrimination privilege of the Fifth Amendment, made applicable to the States by reason of the Fourteenth Amendment, forbids drawing adverse inferences against an inmate from his failure to testify. The State challenges this determination, and we sustain the challenge.As the Court has often held, the Fifth Amendment"not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."Lefkowitz v. Turley, 414 U. S. 70, 414 U. S. 77 (1973). Prison disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered "whatever immunity is required to supplant the privilege," and may not be required to "waive such immunity." Id. at 414 U. S. 85; Garrity v. New Jersey, 385 U. S. 493 (1967); Gardner v. Broderick, 392 U. S. 273 (1968); Sanitation Men v. Sanitation Comm'r, 392 U. S. 280 (1968). In this line of cases from Garrity to Lefkowitz, the States, pursuant to statute, sought to interrogate individuals about their job performance or about their contractual relations with the State; insisted upon waiver of the Fifth Amendment privilege not to respond or to object to later use of the incriminating statements in criminal prosecutions; and, upon refusal to waive, automatically Page 425 U. S. 317 terminated employment or eligibility to contract with the State. Holding that the State could not Constitutionally seek to compel testimony that had not been immunized by threats of serious economic reprisal, we invalidated the challenged statutes.The Court has also plainly ruled that it is constitutional error under the Fifth Amendment to instruct a jury in a criminal case that it may draw an inference of guilt from a defendant's failure to testify about facts relevant to his case. Griffin v. California, 380 U. S. 609 (1965). This holding paralleled the existing statutory policy of the United States, id. at 380 U. S. 612, and the governing statutory or constitutional rule in the overwhelming majority of the States. 8 J. Wigmore, Evidence 425-439 (McNaughton rev.1961).The Rhode Island prison rules do not transgress the foregoing principles. No criminal proceedings are or were pending against Palmigiano. The State has not, contrary to Griffin, sought to make evidentiary use of his silence at the disciplinary hearing in any criminal proceeding. Neither has Rhode Island insisted or asked that Palmigiano waive his Fifth Amendment privilege. He was notified that he was privileged to remain silent if he chose. He was also advised that his silence could be used against him, but a prison inmate in Rhode Island electing to remain silent during his disciplinary hearing, as respondent Palmigiano did here, is not, in consequence of his silence, automatically found guilty of the infraction with which he has been charged. Under Rhode Island law, disciplinary decisions "must be based on substantial evidence manifested in the record of the disciplinary proceeding." Morris v. Travisono, 310 F. Supp. 857, 873 (RI 1970). It is thus undisputed that an inmate's silence in and of itself is insufficient to support an adverse decision by the Disciplinary Board. In Page 425 U. S. 318 this respect, this case is very different from the circumstances before the Court in the Garrity-Lefkowitz decisions, where refusal to submit to interrogation and to waive the Fifth Amendment privilege, standing alone and without regard to the other evidence, resulted in loss of employment or opportunity to contract with the State. There, failure to respond to interrogation was treated as a final admission of guilt. Here, Palmigiano remained silent at the hearing in the face of evidence that incriminated him; and, as far as this record reveals, his silence was given no more evidentiary value than was warranted by the facts surrounding his case. This does not smack of an invalid attempt by the State to compel testimony without granting immunity or to penalize the exercise of the privilege. The advice given inmates by the decisionmakers is merely a realistic reflection of the evidentiary significance of the choice to remain silent.Had the State desired Palmigiano's testimony over his Fifth Amendment objection, we can but assume that it would have extended whatever use immunity is required by the Federal Constitution. Had this occurred, and had Palmigiano nevertheless refused to answer, it surely would not have violated the Fifth Amendment to draw whatever inference from his silence that the circumstances warranted. Insofar as the privilege is concerned, the situation is little different where the State advises the inmate of his right to silence but also plainly notifies him that his silence will be weighed in the balance.Our conclusion is consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment "does not preclude the inference where the privilege is claimed by a party to a civil cause." 8 J. Wigmore, Evidence 439 (McNaughton rev.1961). In criminal cases, where the stakes are Page 425 U. S. 319 higher and the State's sole interest is to convict, Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt. Disciplinary proceedings in state prisons, however, involve the correctional process and important state interests other than conviction for crime. We decline to extend the Griffin rule to this context.It is important to note here that the position adopted by the Court of Appeals is rooted in the Fifth Amendment and the policies which it serves. It has little to do with a fair trial, and derogates, rather than improves, the chances for accurate decisions. Thus, aside from the privilege against compelled self-incrimination, the Court has consistently recognized that, in proper circumstances, silence in the face of accusation is a relevant fact not barred from evidence by the Due Process Clause. Adamson v. California, 332 U. S. 46 (1947); United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 263 U. S. 153-154 (1923); Raffel v. United States, 271 U. S. 494 (1926); Twining v. New Jersey, 211 U. S. 78 (1908). See also United States v. Hale, 422 U. S. 171, 422 U. S. 176-177 (1975); Gastelum-Quinones v. Kennedy, 374 U. S. 469, 374 U. S. 479 (1963); Grunewald v. United States, 353 U. S. 391, 353 U. S. 418-424 (1957). Indeed, as Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, supra, which involved a deportation: "Silence is often evidence of the most persuasive character." 263 U.S. at 263 U. S. 153-154. And just last Term, in Hale, supra, the Court recognized that"[f]ailure to contest an assertion . . . is considered evidence of acquiescence . . . if it would have been natural under the circumstances to object to the assertion in question."422 U.S. at 422 U. S. 176. [Footnote 3] Page 425 U. S. 320The short of it is that permitting an adverse inference to be drawn from an inmate's silence at his disciplinary proceedings is not, on its face, an invalid practice; and there is no basis in the record for invalidating it as here applied to Palmigiano. [Footnote 4]IVIn Wolff v. McDonnell, we held that"the inmate facing disciplinary proceedings should be allowed to call Page 425 U. S. 321 witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals."418 U.S. at 418 U. S. 566. We noted that,"[o]rdinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that, in individual cases may be essential to carrying out the correctional program of the institution."Ibid. The right to call witnesses, like other due process rights delineated in Wolff, is thus circumscribed by the necessary "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." Id. at 418 U. S. 556. Within the reasonable limitations necessary in the prison disciplinary context, we suggested, but did not require, that the disciplinary committee "state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases." Id. at 418 U. S. 566.We were careful to distinguish between this limited right to call witnesses and other due process rights at disciplinary hearings. We noted expressly that, in comparison to the right to call witnesses, "[c]onfrontation and cross-examination present greater hazards to institutional interests." Id. at 418 U. S. 567. We said:"If confrontation and cross-examination of those furnishing evidence against the inmate were to be allowed as a matter of course, as in criminal trials, there would be considerable potential for havoc inside the prison walls. Proceedings would inevitably be longer and tend to unmanageability."Ibid. We therefore concluded that"[t]he better course at this time, in a period where prison practices are diverse and Page 425 U. S. 322 somewhat experimental, is to leave these matters to the sound discretion of the officials of state prisons."Id. at 418 U. S. 569.Although acknowledging the strictures of Wolff with respect to confrontation and cross-examination, the Court of Appeals for the Ninth Circuit, on rehearing in No. 74-1194, went on to require prison authorities to provide reasons in writing to inmates denied the privilege to cross-examine or confront witnesses against them in disciplinary proceedings; absent explanation, failure to set forth reasons related to the prevention of one or more of the four concerns expressly mentioned in Wolff would be deemed prima facie abuse of discretion.This conclusion is inconsistent with Wolff. We characterized as "useful," but did not require, written reasons for denying inmates the limited right to call witnesses in their defense. We made no such suggestion with respect to confrontation and cross-examination which, as was there pointed out, stand on a different footing because of their inherent danger and the availability of adequate bases of decision without them. See 418 U.S. at 418 U. S. 567-568. Mandating confrontation and cross-examination, except where prison officials can justify their denial on one or more grounds that appeal to judges, effectively preempts the area that Wolff left to the sound discretion of prison officials. [Footnote 5] We add that, on the record before us, Page 425 U. S. 323 there is no evidence of the abuse of discretion by the state prison officials.Finally, the Court of Appeals for the Ninth Circuit in No. 74-1194 held that minimum due process -- such as notice, opportunity for response, and statement of reasons for action by prison officials -- was necessary where inmates were deprived of privileges. 510 F.2d at 615. We did not reach the issue in Wolff; indeed, we said:"We do not suggest, however, that the procedures required by today's decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges."418 U.S. at 418 U. S. 572 n.19. Nor do we find it necessary to reach the issue now in light of the record before us. None of the named plaintiffs in No. 74-1194 was subject solely to loss of privileges; all were brought before prison disciplinary hearings for allegations of the type of "serious misconduct," 418 U.S. at 418 U. S. 558, that we held in Wolff to trigger procedures therein outlined. See n 1, supra. Without such a record, we are unable to consider the degree of "liberty" at stake in loss of privileges and thus whether some sort of procedural safeguards are due when only such "lesser penalties" are at stake. To the extent that the Court of Appeals for the Ninth Circuit required any procedures in such circumstances, the Court of Appeals Page 425 U. S. 324 acted prematurely, and its decision on the issue cannot stand. [Footnote 6]We said in Wolff v. McDonnell:"As the nature of the prison disciplinary process changes in future years, circumstances may then exist which will require further consideration and reflection of this Court. It is our view, however, that the procedures we have now required in prison disciplinary proceedings represent a reasonable accommodation between the interests of the inmates and the needs of the institution."418 U.S. at 418 U. S. 572. We do not retreat from that view. However, the procedures required by the Courts of Appeals in Nos. 74-1187 and 74-1194 are either inconsistent with the "reasonable accommodation" reached in Wolff or premature on the bases of the records before us. The judgments in Nos. 74-1187 and 74-1194 accordingly areReversed

U.S. Supreme CourtBaxter v. Palmigiano, 425 U.S. 308 (1976)Baxter v. PalmigianoNo. 74-1187Argued December 15, 1975Decided April 20, 1976*425 U.S. 308SyllabusRespondent state prison inmates in No. 74-1194 filed an action for declaratory and injunctive relief alleging that procedures used in prison disciplinary proceedings violated their rights to due process and equal protection of the laws under the Fourteenth Amendment. The District Court granted relief, and the Court of Appeals affirmed, holding that minimum notice and a right to respond are due an inmate faced even with a temporary suspension of privileges, that an inmate at a disciplinary hearing who is denied the privilege of confronting and cross-examining witnesses must receive written reasons or the denial will be deemed prima facie evidence of abuse of discretion, and that an inmate facing prison discipline for a violation that might also be punishable in state criminal proceedings has a right to counsel (not just counsel substitute) at the prison hearing. Respondent state prison inmate in No. 74-1187, upon being charged with inciting a prison disturbance, was summoned before prison authorities and informed that he might be prosecuted for a violation of state law, that he should consult an attorney (although the attorney would not be permitted to be present during the disciplinary hearing), and that he had a right to remain silent during the hearing, but that, if he did so, his silence would be held against him. On the basis of the hearing, at which respondent remained silent, he was placed in "punitive segregation" for 30 days. He then filed an action for damages and injunctive relief, claiming that the disciplinary hearing violated the Due Process Clause of the Fourteenth Amendment. The District Court denied relief, but the Court of Appeals reversed, holding that an inmate at a prison disciplinary proceeding must be advised of his right to remain silent, that he must not be questioned further once he exercises that right, that such silence may not be used against him at that time or in future proceedings, and that, where criminal charges Page 425 U. S. 309 are a realistic possibility, prison authorities should consider whether defense counsel, if requested, should be permitted at the proceeding.Held: The procedures required by the respective Courts of Appeals are either inconsistent with the "reasonable accommodation" reached in Wolff v. McDonnell, 418 U. S. 539, between institutional needs and objectives and the constitutional provisions of general application, or are premature on the basis of the case records. Pp. 425 U. S. 314-324.(a) Prison inmates do not "have a right to either retained or appointed counsel in disciplinary hearings." Wolff, supra, at 418 U. S. 570. Pp. 425 U. S. 314-315.(b) Permitting an adverse inference to be drawn from an inmate's silence at his disciplinary proceedings is not, on its face, an invalid practice, and there is no basis in the record for invalidating it as applied to respondent in No. 74-1187. Pp. 425 U. S. 316-320.(c) Mandating that inmates should have the privilege of confrontation and cross-examination of witnesses at prison disciplinary proceedings, except where prison officials can justify their denial of such privilege on grounds that would satisfy a court of law, effectively preempts the area that Wolff, supra, left to the sound discretion of prison officials, and there is no evidence of abuse of such discretion by the prison officials in No. 74-1194. Pp. 425 U. S. 320-323.(d) Where there was no evidence that any of the respondents in No. 74-1194 were subject to the "lesser penalty" of loss of privileges, but rather it appeared that all were charged with "serious misconduct," the Court of Appeals acted prematurely to the extent it required procedures such as notice and an opportunity to respond even when an inmate is faced with a temporary suspension of privileges. Pp. 425 U. S. 323-324.No. 74-1187, 510 F.2d 534; No. 74-1194, 510 F.2d 613, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Part V of which BRENNAN and MARSHALL, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 425 U. S. 324. STEVENS, J., took no part in the consideration or decision of the cases. Page 425 U. S. 310

1972_71-229

MR. JUSTICE STEWART delivered the opinion of the Court.A special grand jury was convened in the Northern District of Illinois in February, 1971, to investigate possible violations of federal criminal statutes relating to gambling. In the course of its investigation, the grand jury received in evidence certain voice recordings that had been obtained pursuant to court orders. [Footnote 1] Page 410 U. S. 3The grand jury subpoenaed approximately 20 persons, including the respondent Dionisio, seeking to obtain from them voice exemplars for comparison with the recorded conversations that had been received in evidence. Each witness was advised that he was a potential defendant in a criminal prosecution. Each was asked to examine a transcript of an intercepted conversation, and to go to a nearby office of the United States Attorney to read the transcript into a recording device. The witnesses were advised that they would be allowed to have their attorneys present when they read the transcripts. Dionisio and other witnesses refused to furnish the voice exemplars, asserting that these disclosures would violate their rights under the Fourth and Fifth Amendments.The Government then filed separate petitions in the United States District Court to compel Dionisio and the other witnesses to furnish the voice exemplars to the grand jury. The petitions stated that the exemplars were "essential and necessary" to the grand jury investigation, and that they would "be used solely as a standard of comparison in order to determine whether or not the witness is the person whose voice was intercepted. . . ."Following a hearing, the District Judge rejected the witnesses' constitutional arguments and ordered them to comply with the grand jury's request. He reasoned that voice exemplars, like handwriting exemplars or fingerprints, were not testimonial or communicative evidence, and that consequently the order to produce them would Page 410 U. S. 4 not compel any witness to testify against himself. The District Judge also found that there would be no Fourth Amendment violation, because the grand jury subpoena did not itself violate the Fourth Amendment, and the order to produce the voice exemplars would involve no unreasonable search and seizure within the proscription of that Amendment:"The witnesses are lawfully before the grand jury pursuant to subpoena. The Fourth Amendment prohibition against unreasonable search and seizure applies only where identifying physical characteristics, such as fingerprints, are obtained as a result of unlawful detention of a suspect, or when an intrusion into the body, such as a blood test, is undertaken without a warrant, absent an emergency situation. E.g., Davis v. Mississippi, 394 U. S. 721, 394 U. S. 724-728 (1969); Schmerber v. California, 384 U. S. 757, 384 U. S. 770-771 (1966). [Footnote 2]"When Dionisio persisted in his refusal to respond to the grand jury's directive, the District Court adjudged him in civil contempt and ordered him committed to custody until he obeyed the court order, or until the expiration of 18 months. [Footnote 3]The Court of Appeals for the Seventh Circuit reversed. 442 F.2d 276. It agreed with the District Court in rejecting the Fifth Amendment claims, [Footnote 4] but concluded that to compel the voice recordings would violate the Fourth Amendment. In the court's view, the grand Page 410 U. S. 5 jury was"seeking to obtain the voice exemplars of the witnesses by the use of its subpoena powers because probable cause did not exist for their arrest or for some other, less unusual, method of compelling the production of the exemplars."Id. at 280. The court found that the Fourth Amendment applied to grand jury process, and that,"under the fourth amendment, law enforcement officials may not compel the production of physical evidence absent a showing of the reasonableness of the seizure. Davis v. Mississippi, 394 U. S. 721. . . ."Ibid.In Davis, this Court held that it was error to admit the petitioner's fingerprints into evidence at his trial for rape, because they had been obtained during a police detention following a lawless wholesale roundup of the petitioner and more than 20 other youths. Equating the procedures followed by the grand jury in the present case to the fingerprint detentions in Davis, the Court of Appeals reasoned that"[t]he dragnet effect here, where approximately twenty persons were subpoenaed for purposes of identification, has the same invidious effect on fourth amendment rights as the practice condemned in Davis."Id. at 281.In view of a clear conflict between this decision and one in the Court of Appeals for the Second Circuit, [Footnote 5] we granted the Government's petition for certiorari. 406 U.S. 956.IThe Court of Appeals correctly rejected the contention that the compelled production of the voice exemplars would violate the Fifth Amendment. It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by Page 410 U. S. 6 the privilege against compulsory self-incrimination. In Holt v. United States, 218 U. S. 245, 218 U. S. 252, Mr. Justice Holmes, writing for the Court, dismissed as an "extravagant extension of the Fifth Amendment" the argument that it violated the privilege to require a defendant to put on a blouse for identification purposes. He explained that"the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material."Id. at 218 U. S. 252-253.More recently, in Schmerber v. California, 384 U. S. 757, we relied on Holt, and noted that:"[B]oth federal and state courts have usually held that [the privilege] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it."Id. at 384 U. S. 764 (footnote omitted). The Court held that the extraction and chemical analysis of a blood sample involved no "shadow of testimonial compulsion upon or enforced communication by the accused." Id. at 384 U. S. 765.These cases led us to conclude in Gilbert v. California, 388 U. S. 263, that handwriting exemplars were not protected by the privilege against compulsory self-incrimination. While "[o]ne's voice and handwriting are, of course, means of communication," we held that a"mere handwriting exemplar, in contrast to the content of what Page 410 U. S. 7 is written, like the voice or body itself, is an identifying physical characteristic outside its protection."Id. at 388 U. S. 266-267. And similarly in United States v. Wade, 388 U. S. 218, we found no error in compelling defendant accused of bank robbery to utter in a lineup words that had allegedly been spoken by the robber. The accused there was "required to use his voice as an identifying physical characteristic, not to speak his guilt." Id. at 388 U. S. 222-223.Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said. [Footnote 6] Page 410 U. S. 8IIThe Court of Appeals held that the Fourth Amendment required a preliminary showing of reasonableness before a grand jury witness could be compelled to furnish a voice exemplar, and that in this case the proposed "seizures" of the voice exemplars would be unreasonable because of the large number of witnesses summoned by the grand jury and directed to produce such exemplars. We disagree.The Fourth Amendment guarantees that all people shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." Any Fourth Amendment violation in the present setting must rest on a lawless governmental intrusion upon the privacy of "persons," rather than on interference with "property relationships or private papers." Schmerber v. California, 384 U.S. at 384 U. S. 767; see United States v. Doe (Schwartz), 457 F.2d 895, 897. In Terry v. Ohio, 392 U. S. 1, the Court explained the protection afforded to "persons" in terms of the statement in Katz v. United States, 389 U. S. 347, that "the Fourth Amendment protects people, not places," id. at 389 U. S. 351, and concluded that"wherever an individual may harbor a reasonable 'expectation of privacy,' . . . The is entitled to be free from unreasonable governmental intrusion."Terry v. Ohio, supra, at 392 U. S. 9.As the Court made clear in Schmerber, supra, the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels -- the "seizure" of the "person" necessary to bring him into contact with government agents, see Davis v. Mississippi, 394 U. S. 721, and the subsequent search for and seizure of the evidence. In Schmerber, we found the initial seizure of the accused justified as a lawful arrest, and the subsequent seizure of the blood sample from his body reasonable in light of the exigent circumstances. Page 410 U. S. 9 And in Terry, we concluded that neither the initial seizure of the person, an investigatory "stop" by a policeman, nor the subsequent search, a "pat-down" of his outer clothing for weapons, constituted a violation of the Fourth and Fourteenth Amendments. The constitutionality of the compulsory production of exemplars from a grand jury witness necessarily turns on the same dual inquiry -- whether either the initial compulsion of the person to appear before the grand jury or the subsequent directive to make a voice recording is an unreasonable "seizure" within the meaning of the Fourth Amendment.It is clear that a subpoena to appear before a grand jury is not a "seizure" in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome. Last Term, we again acknowledged what has long been recognized, [Footnote 7] that "[c]itizens generally are not constitutionally immune from grand jury subpoenas. . . ." Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 682. We concluded that:"Although the powers of the grand jury are not unlimited, and are subject to the supervision of a judge, the longstanding principle that 'the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common law, or statutory privilege, United States v. Bryan, 339 U.S. at 339 U. S. 331; Blackmer v. United States, 284 U. S. 421, 284 U. S. 438 (1932); 8 J. Wigmore, Evidence § 2192 (McNaughton rev.1961), is particularly applicable to grand jury proceedings."Id. at 408 U. S. 688.These are recent reaffirmations of the historically grounded obligation of every person to appear and give Page 410 U. S. 10 his evidence before the grand jury. "The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public." Blair v. United States, 250 U. S. 273, 250 U. S. 281. See also Garland v. Torre, 259 F.2d 545, 549. And while the duty may be "onerous" at times, it is "necessary to the administration of justice." Blair v. United States, supra, at 250 U. S. 281. [Footnote 8]The compulsion exerted by a grand jury subpoena differs from the seizure effected by an arrest or even an investigative "stop" in more than civic obligation. For, as Judge Friendly wrote for the Court of Appeals for the Second Circuit:"The latter is abrupt, is effected with force or the threat of it, and often in demeaning circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court."United States v. Doe (Schwartz), 457 F.2d at 898. Thus, the Court of Appeals for the Seventh Circuit correctly recognized in a case subsequent to the one now before us, that a"grand jury subpoena to testify is not that kind of governmental intrusion on privacy against which the Fourth Amendment affords protection, once the Fifth Amendment is satisfied."Fraser v. United States, 452 F.2d 616, 620; cf. United States v. Weinberg, 439 F.2d 743, 748-749. Page 410 U. S. 11This case is thus quite different from Davis v. Mississippi, supra, on which the Court of Appeals primarily relied. For, in Davis, it was the initial seizure -- the lawless dragnet detention -- that violated the Fourth and Fourteenth Amendments, not the taking of the fingerprints. We noted that"[i]nvestigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention,"394 U.S. at 394 U. S. 726, and we left open the question whether, consistently with the Fourth and Fourteenth Amendments, narrowly circumscribed procedures might be developed for obtaining fingerprints from people when there was no probable cause to arrest them. Id. at 394 U. S. 728. [Footnote 9] Davis is plainly inapposite to a case where the initial restraint does not itself infringe the Fourth Amendment.This is not to say that a grand jury subpoena is some talisman that dissolves all constitutional protections. The grand jury cannot require a witness to testify against himself. It cannot require the production by a person of private books and records that would incriminate him. See Boyd v. United States, 116 U. S. 616, 116 U. S. 633-635. [Footnote 10] The Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms "to be regarded as reasonable." Hale v. Page 410 U. S. 12 Henkel, 201 U. S. 43, 201 U. S. 76; cf. Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 327 U. S. 208, 327 U. S. 217. And last Term, in the context of a First Amendment claim, we indicated that the Constitution could not tolerate the transformation of the grand jury into an instrument of oppression:"Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth."Branzburg v. Hayes, 408 U.S. at 408 U. S. 707-708. See also id. at 408 U. S. 710 (POWELL, J., concurring).But we are here faced with no such constitutional infirmities in the subpoena to appear before the grand jury or in the order to make the voice recordings. There is, as we have said, no valid Fifth Amendment claim. There was no order to produce private books and papers, and no sweeping subpoena duces tecum. And even if Branzburg be extended beyond its First Amendment moorings and tied to a more generalized due process concept, there is still no indication in this case of the kind of harassment that was of concern there.The Court of Appeals found critical significance in the fact that the grand jury had summoned approximately 20 witnesses to furnish voice exemplars. [Footnote 11] We think that fact is basically irrelevant to the constitutional issues here. The grand jury may have been attempting to Page 410 U. S. 13 identify a number of voices on the tapes in evidence, or it might have summoned the 20 witnesses in an effort to identify one voice. But whatever the case,"[a] grand jury's investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed. . . ."United States v. Stone, 429 F.2d 138, 140. See also Wood v. Georgia, 370 U. S. 375, 370 U. S. 392. As the Court recalled last Term,"Because its task is to inquire into the existence of possible criminal conduct and to return only well founded indictments, its investigative powers are necessarily broad."Branzburg v. Hayes, supra, at 408 U. S. 688. [Footnote 12] The grand jury may well find it desirable to call numerous witnesses in the course of an investigation. It does not follow that each witness may resist a subpoena on the ground that too many witnesses have been called. Neither the order to Dionisio to appear nor the order to make a voice recording was rendered unreasonable by the fact that many others were subjected to the same compulsion.But the conclusion that Dionisio's compulsory appearance before the grand jury was not an unreasonable "seizure" is the answer to only the first part of the Fourth Amendment inquiry here. Dionisio argues that the grand jury's subsequent directive to make the voice recording was itself an infringement of his rights Page 410 U. S. 14 under the Fourth Amendment. We cannot accept that argument.In Katz v. United States, supra, we said that the Fourth Amendment provides no protection for what "a person knowingly exposes to the public, even in his own home or office. . . ." 389 U.S. at 389 U. S. 351. The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world. As the Court of Appeals for the Second Circuit stated:"Except for the rare recluse who chooses to live his life in complete solitude, in our daily lives we constantly speak and write, and while the content of a communication is entitled to Fourth Amendment protection . . . the underlying identifying characteristics -- the constant factor throughout both public and private communications -- are open for all to see or hear. There is no basis for constructing a wall of privacy against the grand jury which does not exist in casual contacts with strangers. Hence, no intrusion into an individual's privacy results from compelled execution of handwriting or voice exemplars; nothing is being exposed to the grand jury that has not previously been exposed to the public at large."United States v. Doe (Schwartz), 457 F.2d at 898-899.The required disclosure of a person's voice is thus immeasurably further removed from the Fourth Amendment protection than was the intrusion into the body effected by the blood extraction in Schmerber."The Page 410 U. S. 15 interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained."Schmerber v. California, 384 U.S. at 384 U. S. 769-770. Similarly, a seizure of voice exemplars does not involve the "severe, though brief, intrusion upon cherished personal security," effected by the "pat-down" in Terry -- "surely . . . an annoying, frightening, and perhaps humiliating experience." Terry v. Ohio, 392 U.S. at 392 U. S. 24-25. Rather, this is like the fingerprinting in Davis, where, though the initial dragnet detentions were constitutionally impermissible, we noted that the fingerprinting itself "involves none of the probing into an individual's private life and thoughts that marks an interrogation or search." Davis v. Mississippi, 394 U.S. at 394 U. S. 727; cf. Thom v. New York Stock Exchange, 306 F. Supp. 1002, 1009.Since neither the summons to appear before the grand jury nor its directive to make a voice recording infringed upon any interest protected by the Fourth Amendment, there was no justification for requiring the grand jury to satisfy even the minimal requirement of "reasonableness" imposed by the Court of Appeals. [Footnote 13] See United States v. Doe (Schwartz), supra, at 899-900. A grand jury has broad investigative powers to determine whether a crime has been committed and who has committed it. The jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge. Branzburg v. Hayes, 408 U.S. at 408 U. S. 701. No grand jury witness is "entitled to set limits to the investigation that the grand jury may conduct." Blair v. United States, 250 U.S. at 250 U. S. 282. And a sufficient basis Page 410 U. S. 16 for an indictment may only emerge at the end of the investigation when all the evidence has been received."It is impossible to conceive that . . . the examination of witnesses must be stopped until a basis is laid by an indictment formally preferred, when the very object of the examination is to ascertain who shall be indicted."Hale v. Henkel, 201 U.S. at 201 U. S. 65. Since Dionisio raised no valid Fourth Amendment claim, there is no more reason to require a preliminary showing of reasonableness here than there would be in the case of any witness who, despite the lack of any constitutional or statutory privilege, declined to answer a question or comply with a grand jury request. Neither the Constitution nor our prior cases justify any such interference with grand jury proceedings. [Footnote 14]The Fifth Amendment guarantees that no civilian may be brought to trial for an infamous crime "unless on a presentment or indictment of a Grand Jury." This constitutional guarantee presupposes an investigative body "acting independently of either prosecuting attorney or judge," Stirone v. United States, 361 U. S. 212, 361 U. S. 218, whose mission is to clear the innocent, no less than Page 410 U. S. 17 to bring to trial those who may be guilty. [Footnote 15] Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws. Cf. United States v. Ryan, 402 U. S. 530, 402 U. S. 532-533; Costello v. United States, 350 U. S. 359, 350 U. S. 363-364; Cobbledick v. United States, 309 U. S. 323, 309 U. S. 327-328. [Footnote 16] The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor, but if it is even to approach the proper performance of its constitutional mission, it must be free to pursue its investigations unhindered by external influence or supervision Page 410 U. S. 18 so long as it does not trench upon the legitimate rights of any witness called before it.Since the Court of Appeals found an unreasonable search and seizure where none existed, and imposed a preliminary showing of reasonableness where none was required, its judgment is reversed and this case is remanded to that court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Dionisio, 410 U.S. 1 (1973)United States v. DionisioNo. 71-229Argued November 6, 1972Decided January 22, 1973410 U.S. 1SyllabusA grand jury subpoenaed about 20 persons, including respondent, to give voice exemplars for identification purposes. Respondent, on Fourth and Fifth Amendment grounds, refused to comply. The District Court rejected both claims and adjudged respondent in contempt. The Court of Appeals agreed in rejecting respondent's Fifth Amendment claim but reversed on the ground that the Fourth Amendment required a preliminary showing of reasonableness before a grand jury witness could be compelled to furnish a voice exemplar and that, here, the proposed "seizures" would be unreasonable because of the large number of witnesses subpoenaed to produce the exemplars.Held:1. The compelled production of the voice exemplars would not violate the Fifth Amendment privilege against compulsory self-incrimination, since they were to be used only for identification purposes, and not for the testimonial or communicative content of the utterances. Pp. 410 U. S. 5-7.2. Respondent's Fourth Amendment claim is also invalid. Pp. 410 U. S. 8-18.(a) A subpoena to compel a person to appear before a grand jury does not constitute a "seizure" within the meaning of the Fourth Amendment, and the fact that many others besides respondent were ordered to give voice recordings did not render Page 410 U. S. 2 the subpoena unconstitutional. Davis v. Mississippi, 394 U. S. 721, distinguished. Pp. 410 U. S. 8-13.(b) The grand jury's directive to make the voice recording infringed no valid Fourth Amendment interest. Pp. 410 U. S. 13-15.(c) Since neither the summons to appear before the grand jury nor its directive to give a voice exemplar contravened the Fourth Amendment, the Court of Appeals erred in requiring a preliminary showing of reasonableness before respondent could be compelled to furnish the exemplar. Pp. 410 U. S. 15-16.442 F.2d 276, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, post, p. 410 U.S. 22. DOUGLAS,AS, J., post, p. 410 U. S. 23, and MARSHALL, J., post, p. 410 U. S. 31, filed dissenting opinions.

1958_45

MR. JUSTICE BLACK delivered the opinion of the Court.Petitioner, Beacon Theatres, Inc., sought by mandamus to require a district judge in the Southern District of California to vacate certain orders alleged to deprive it of a jury trial of issues arising in a suit brought against it by Fox West Coast Theatres, Inc. The Court of Appeals for the Ninth Circuit refused the writ, holding that the trial judge had acted within his proper discretion in denying petitioner's request for a jury. 252 F.2d 864. We granted certiorari, 356 U.S. 956, because"Maintenance of the jury as a factfinding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care."Dimick v. Schiedt, 293 U. S. 474, 293 U. S. 486. Page 359 U. S. 502Fox had asked for declaratory relief against Beacon, alleging a controversy arising under the Sherman Antitrust Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2, and under the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, which authorizes suits for treble damages against Sherman Act violators. According to the complaint, Fox operates a movie theatre in San Bernardino, California, and has long been exhibiting films under contracts with movie distributors. These contracts grant it the exclusive right to show "first run" pictures in the "San Bernardino competitive area" and provide for "clearance" -- a period of time during which no other theatre can exhibit the same pictures. After building a drive-in theatre about 11 miles from San Bernardino, Beacon notified Fox that it considered contracts barring simultaneous exhibitions of first-run films in the two theatres to be overt acts in violation of the antitrust laws. [Footnote 1] Fox's complaint alleged that this notification, together with threats of treble damage suits against Fox and its distributors, gave rise to "duress and coercion" which deprived Fox of a valuable property right, the right to negotiate for exclusive first-run contracts. Unless Beacon was restrained, the complaint continued, irreparable harm would result. Accordingly, while its pleading was styled a "Complaint for Declaratory Relief," Fox prayed both for a declaration that a grant of clearance between the Fox and Beacon theatres is reasonable and Page 359 U. S. 503 not in violation of the antitrust laws, and for an injunction, pending final resolution of the litigation, to prevent Beacon from instituting any action under the antitrust laws against Fox and its distributors arising out of the controversy alleged in the complaint. [Footnote 2] Beacon filed an answer, a counterclaim against Fox, and a cross-claim against an exhibitor who had intervened. These denied the threats and asserted that there was no substantial competition between the two theatres, that the clearances granted were therefore unreasonable, and that a conspiracy existed between Fox and its distributors to manipulate contracts and clearances so as to restrain trade and monopolize first-run pictures in violation of the antitrust laws. Treble damages were asked.Beacon demanded a jury trial of the factual issues in the case, as provided by Federal Rule of Civil Procedure 38(b). The District Court, however, viewed the issues raised by the "Complaint for Declaratory Relief," including the question of competition between the two theatres, as essentially equitable. Acting under the purported authority of Rules 42(b) and 57, it directed that these issues be tried to the court before jury determination of the validity of the charges of antitrust violations made in the counterclaim and cross-claim. [Footnote 3] A common issue of the "Complaint for Declaratory Relief," the counterclaim, and the cross-claim was the reasonableness of the clearances granted to Fox, which depended, in part, on the Page 359 U. S. 504 existence of competition between the two theatres. Thus, the effect of the action of the District Court could be, as the Court of Appeals believed, "to limit the petitioner's opportunity fully to try to a jury every issue which has a bearing upon its treble damage suit," for determination of the issue of clearances by the judge might"operate either by way of res judicata or collateral estoppel so as to conclude both parties with respect thereto at the subsequent trial of the treble damage claim."252 F.2d at 874.The District Court's finding that the Complaint for Declaratory Relief presented basically equitable issues draws no support from the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202; Fed.Rules Civ.Proc. 57. See also 48 Stat. 955, 28 U.S.C. (1940 ed.) § 400. That statute, while allowing prospective defendants to sue to establish their nonliability, specifically preserves the right to jury trial for both parties. [Footnote 4] It follows that, if Beacon would have been entitled to a jury trial in a treble damage suit against Fox, it cannot be deprived of that right merely because Fox took advantage of the availability of declaratory relief to sue Beacon first. Since the right to trial by jury applies to treble damage suits under the antitrust laws, and is, in fact, an essential part of the congressional plan for making competition, rather than monopoly, the rule of trade, see Fleitmann v. Welsbach Street Lighting Co., 240 U. S. 27, 240 U. S. 29, the Sherman and Clayton Act issues on which Fox sought a declaration were essentially jury questions.Nevertheless, the Court of Appeals refused to upset the order of the district judge. It held that the question of whether a right to jury trial existed was to be judged Page 359 U. S. 505 by Fox's complaint read as a whole. In addition to seeking a declaratory judgment, the court said, Fox's complaint can be read as making out a valid plea for injunctive relief, thus stating a claim traditionally cognizable in equity. A party who is entitled to maintain a suit in equity for an injunction, said the court, may have all the issues in his suit determined by the judge without a jury, regardless of whether legal rights are involved. The court then rejected the argument that equitable relief, traditionally available only when legal remedies are inadequate, was rendered unnecessary in this case by the filing of the counterclaim and cross-claim which presented all the issues necessary to a determination of the right to injunctive relief. Relying on American Life Ins. Co. v. Stewart, 300 U. S. 203, 300 U. S. 215, decided before the enactment of the Federal Rules of Civil Procedure, it invoked the principle that a court sitting in equity could retain jurisdiction even though later a legal remedy became available. In such instances, the equity court had discretion to enjoin the later lawsuit in order to allow the whole dispute to be determined in one case in one court. [Footnote 5] Reasoning by analogy, the Court of Appeals held it was not an abuse of discretion for the district judge, acting under Federal Rule of Civil Procedure 42(b), to try the equitable cause first, even though this might, through collateral estoppel, prevent a full jury trial of the counterclaim and cross-claim which were as effectively stopped as by an equity injunction. [Footnote 6] Page 359 U. S. 506Beacon takes issue with the holding of the Court of Appeals that the complaint stated a claim upon which equitable relief could be granted. As initially filed, the complaint alleged that threats of lawsuits by petitioner against Fox and its distributors were causing irreparable harm to Fox's business relationships. The prayer for relief, however, made no mention of the threats, but asked only that, pending litigation of the claim for declaratory judgment, Beacon be enjoined from beginning any lawsuits under the antitrust laws against Fox and its distributors arising out of the controversy alleged in the complaint. Evidently of the opinion that this prayer did not state a good claim for equitable relief, the Court of Appeals construed it to include a request for an injunction against threats of lawsuits. This liberal construction of a pleading is in line with Rule 8 of the Federal Rules of Civil Procedure. See Conley v. Gibson, 355 U. S. 41, 355 U. S. 47-48. But this fact does not solve our problem. Assuming that the pleadings can be construed to support such a request, and assuming additionally that the complaint can be read as alleging the kind of harassment by a multiplicity of lawsuits which would traditionally have justified equity to take jurisdiction and settle the case in one suit, [Footnote 7] we are nevertheless of the opinion that, under the Declaratory Judgment Act and the Federal Rules of Civil Procedure, neither claim can justify denying Beacon a trial by jury of all the issues in the antitrust controversy.The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal Page 359 U. S. 507 remedies. [Footnote 8] At least as much is required to justify a trial court in using its discretion under the Federal Rules to allow claims of equitable origins to be tried ahead of legal ones, since this has the same effect as an equitable injunction of the legal claims. And it is immaterial, in judging if that discretion is properly employed, that, before the Federal Rules and the Declaratory Judgment Act were passed, courts of equity, exercising a jurisdiction separate from courts of law, were, in some cass, allowed to enjoin subsequent legal actions between the same parties involving the same controversy. This was because the subsequent legal action, though providing an opportunity to try the case to a jury, might not protect the right of the equity plaintiff to a fair and orderly adjudication of the controversy. See, e.g., New York Life Ins. Co. v. Seymour, 45 F.2d 47. Under such circumstances, the legal remedy could quite naturally be deemed inadequate. Inadequacy of remedy and irreparable harm are practical terms, however. As such, their existence today must be determined not by precedents decided under discarded procedures, but in the light of the remedies now made available by the Declaratory Judgment Act and the Federal Rules. [Footnote 9] Page 359 U. S. 508Viewed in this manner, the use of discretion by the trial court under Rule 42(b) to deprive Beacon of a full jury trial on its counterclaim and cross-claim, as well as on Fox's plea for declaratory relief, cannot be justified. Under the Federal Rules, the same court may try both legal and equitable causes in the same action. Fed.Rules Civ.Proc. 1, 2, 18. Thus, any defenses, equitable or legal, Fox may have to charges of antitrust violations can be raised either in its suit for declaratory relief or in answer to Beacon's counterclaim. On proper showing, harassment by threats of other suits, or other suits actually brought, involving the issues being tried in this case, could be temporarily enjoined pending the outcome of this litigation. Whatever permanent injunctive relief Fox might be entitled to on the basis of the decision in this case could, of course, be given by the court after the jury renders its verdict. In this way, the issues between these parties could be settled in one suit giving Beacon a full jury trial of every antitrust issue. Cf. Ring v. Spina, 166 F.2d 546. By contrast, the holding of the court below while granting Fox no additional protection unless the avoidance of jury trial be considered as such, would compel Beacon to split his antitrust case, trying part to a judge and part to a jury. [Footnote 10] Such a result, which involves the postponement and subordination of Fox's own legal claim for declaratory relief, as well as of the counterclaim which Beacon was compelled by the Federal Rules to bring, [Footnote 11] is not permissible.Our decision is consistent with the plan of the Federal Rules and the Declaratory Judgment Act to effect Page 359 U. S. 509 substantial procedural reform while retaining a distinction between jury and nonjury issues and leaving substantive rights unchanged. [Footnote 12] Since, in the federal courts, equity has always acted only when legal remedies were inadequate, [Footnote 13] the expansion of adequate legal remedies provided by the Declaratory Judgment Act and the Federal Rules necessarily affects the scope of equity. Thus, the justification for equity's deciding legal issues once it obtains jurisdiction, and refusing to dismiss a case merely because subsequently a legal remedy becomes available, must be reevaluated in the light of the liberal joinder provisions of the Federal Rules which allow legal and equitable causes to be brought and resolved in one civil action. [Footnote 14] Similarly, the need for, and therefore the availability of, such equitable remedies as Bills of Peace, Quia Timet, and Injunction must be reconsidered in view of the existence of the Declaratory Judgment Act, as well as the liberal joinder provision of the Rules. [Footnote 15] This is not only in accord with the spirit of the Rules and the Act, Page 359 U. S. 510 but is required by the provision in the Rules that"[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved . . . inviolate. [Footnote 16]"If there should be cases where the availability of declaratory judgment or joinder in one suit of legal and equitable causes would not in all respects protect the plaintiff seeking equitable relief from irreparable harm while affording a jury trial in the legal cause, the trial court will necessarily have to use its discretion in deciding whether the legal or equitable cause should be tried first. Since the right to jury trial is a constitutional one, however, while no similar requirement protects trials by the court, [Footnote 17] that discretion is very narrowly limited, and must, wherever possible, be exercised to preserve jury trial. As this Court said in Scott v. Neely, 140 U. S. 106, 140 U. S. 109-110:"In the Federal courts, this [jury] right cannot be dispensed with except by the assent of the parties entitled to it, nor can it be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action, or during its pendency. [Footnote 18]"This longstanding principle of equity dictates that only under the Page 359 U. S. 511 most imperative circumstances, circumstances which, in view of the flexible procedures of the Federal Rules, we cannot now anticipate, [Footnote 19] can the right to a jury trial of legal issues be lost through prior determination of equitable claims. See Leimer v. Woods, 196 F.2d 828, 833-836. As we have shown, this is far from being such a case.Respondent claims mandamus is not available under the All Writs Act, 28 U.S.C. § 1651. Whatever differences of opinion there may be in other types of cases, we think the right to grant mandamus to require jury trial where it has been improperly denied is settled. [Footnote 20]The judgment of the Court of Appeals isReversed

U.S. Supreme CourtBeacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959)Beacon Theatres, Inc. v. WestoverNo. 45Argued December 10, 1958Decided May 25, 1959359 U.S. 500SyllabusIn anticipation of a suit by petitioner for treble damages under the Sherman and Clayton Acts, the prospective defendant brought suit against petitioner in a Federal District Court for a declaratory judgment which would have settled some of the key issues in such an antitrust suit, and prayed that the bringing of such a suit be enjoined pending outcome of the declaratory judgment litigation. Petitioner filed a counterclaim raising the issues which would have been raised in the antitrust suit for treble damages, and demanded a jury trial. Purporting to act in the exercise of its discretion under Rules 42(b) and 57 of the Federal Rules of Civil Procedure, the District Court ruled that it would try in equity, without a jury, the issues common to both proceedings before trying petitioner's counterclaim. The Court of Appeals held that the District Court had acted within the proper scope of its discretion, and it denied petitioner's application for a writ of mandamus requiring the District Court to set aside its ruling.Held: the judgment of the Court of Appeals is reversed. Pp. 359 U. S. 501-511.1. The District Court's finding that the complaint for declaratory relief presented basically equitable issues draws no support from the Declaratory Judgment Act, which specifically preserves the right to a jury trial for both parties. P. 359 U. S. 504.2. If petitioner would have been entitled to a jury trial in a treble damage suit, he cannot be deprived of that right merely because the prospective defendant took advantage of the availability of declaratory relief to sue petitioner first. P. 359 U. S. 504.3. Since the right to trial by jury applies to treble damage suits under the antitrust laws, and is an essential part of the congressional plan for making competition, rather than monopoly, the rule of trade, the antitrust issues raised in the declaratory judgment suit were essentially jury questions. P. 359 U. S. 504.4. Assuming that the pleadings can be construed to support a request for an injunction against threats of lawsuits, and as alleging the kind of harassment by a multiplicity of lawsuits which would traditionally have justified equity in taking jurisdiction and settling Page 359 U. S. 501 the case in one suit, nevertheless, under the Declaratory Judgment Act and the Federal Rules of Civil Procedure, neither claim can justify denying petitioner a trial by jury of all the issues in the antitrust controversy. Pp. 359 U. S. 506-511.(a) Today, the existence of irreparable harm and inadequacy of legal remedies as a basis of injunctive relief must be determined not by precedents under discarded procedures, but in the light of the remedies now made available by the Declaratory Judgment Act and the Federal Rules of Civil Procedure. Pp. 359 U. S. 506-510.(b) Viewed in this manner, the use of discretion by the District Court under Rule 42(b) to deprive petitioner of a full jury trial of the issues in the antitrust controversy cannot be justified. P. 359 U. S. 508.5. Mandamus is available under the All Writs Act, 28 U.S.C. § 1651, to require jury trial where it has been improperly denied. P. 359 U. S. 511.252 F.2d 864 reversed.

1980_80-202

JUSTICE BLACKMUN delivered the opinion of the Court.The question presented is whether a creditor must follow the requirements specified in 1974 by the Fair Credit Billing Act, Pub.L. 93-495, Tit. III, 88 Stat. 1511, for the correction of billing errors, when both a corporation and an individual officer are liable for a debt.IThe Fair Credit Billing Act added a number of provisions to the Truth in Lending Act (TILA), Pub.L. 9321, Tit. I, 82 Stat. 146. A primary provision, and the one at issue in this case, is § 161(a), as so added. 88 Stat. 1512, 15 U.S.C. § 1666(a). [Footnote 1] This section applies whenever a creditor transmits Page 452 U. S. 235 to an obligor "a statement of the obligor's account in connection with an extension of consumer credit." If the Page 452 U. S. 236 obligor believes that the statement contains a billing error, [Footnote 2] he then may send the creditor a written notice setting forth that belief, indicating the amount of the error and the reasons supporting his belief that it is an error. If the creditor receives this notice within 60 days of transmitting the statement of account, § 161(a) imposes two separate obligations upon the creditor. Within 30 days, it must send a written acknowledgment that it has received the notice. And, within 90 days Page 452 U. S. 237 or two complete billing cycles, whichever is shorter, the creditor must investigate the matter and either make appropriate corrections in the obligor's account or send a written explanation of its belief that the original statement sent to the obligor was correct. The creditor must send its explanation before making any attempt to collect the disputed amount.A creditor that fails to comply with § 161(a) forfeits its right to collect the first $50 of the disputed amount, including finance charges. § 161(e), 15 U.S.C. § 1666(e). In addition, § 161(d) provides that, pursuant to regulations of the Federal Reserve Board, a creditor operating an "open end consumer credit plan" may not restrict or close an account due to an obligor's failure to pay a disputed amount until the creditor has sent the written explanation required by § 161(a).Every creditor under an "open end consumer credit plan" must disclose the protections available under § 161 to the obligor. This disclosure must occur at the time the account is opened and at semiannual intervals thereafter. See § 127(a)(8), 15 U.S.C. § 1637(a)(8).IIThis case presents a dispute over the applicability of § 161. The relevant facts, as the District Court noted, are largely undisputed. on November 16, 1965, prior to the enactment of the TILA, John E. Koerner & Co., Inc., applied for a credit card account with petitioner American Express Company. The application was for a "company account" designed for business customers. App. 27a. The Koerner Company asked American Express to issue cards bearing the company's name to respondent Louis R. Koerner, Sr., and four other officers of the corporation. Respondent was required to sign a "company account" form, agreeing that he would be jointly and severally liable with the company for all charges incurred through the use of the company card that was issued to him. Id. at 28a. American Express, before issuing the cards, investigated Page 452 U. S. 238 the company's credit rating, but not that of respondent or the other officers.American Express billed the Koerner Company for all charges arising from the use of the five cards issued for the company account. It sent a monthly statement showing the total due and listing individual subtotals for each of the five users. Although respondent employed his card mostly for business-related expenses, he used it occasionally for personal expenses. When he did so, he paid for these items by sending his personal check to American Express. Charges for his business-related expenses were paid by the company.In 1975, a dispute arose between the Koerner Company and American Express concerning charges that appeared on the company account. American Express had billed the company for flight insurance for three business trips made by company employees, and for renewal fees for two of the cards that the company claimed were no longer desired. The total amount in dispute, which the company refused to pay, was $55. Company officials wrote to American Express several times about this. The record does not indicate that American Express responded in any way prior to November, 1976. [Footnote 3]On September 28, 1976, respondent attempted to use his card to purchase a plane ticket for a business trip. After getting in touch with American Express, the ticket agent requested that respondent speak by telephone with an American Express employee. This employee informed respondent that the account was canceled because of delinquency in payment. She instructed the ticket agent to cut respondent's card in two and return it to him.Shortly thereafter, respondent filed this action in the United States District Court for the Eastern District of Louisiana. He alleged that American Express had canceled the Page 452 U. S. 239 account because of the Koerner Company's refusal to pay the disputed charges and in retaliation for the many complaints that had been made by the company in its attempt to resolve the dispute. Jurisdiction was based upon § 130 of the TILA, 15 U.S.C. § 1640, which provides for the recovery of actual damages sustained by any person as the result of a creditor's failure to comply with various provisions of the TILA, including § 161, and grants jurisdiction of such actions to the federal district courts. The complaint sought damages of $25,000 for "inconvenience, mental anguish, grief, aggravation, and humiliation." App. 20a. [Footnote 4] Respondent, invoking diversity jurisdiction, also sought damages under Louisiana law.The District Court granted American Express' motion for summary judgment. 444 F. Supp. 334 (1977). It held that both § 161, which applies only to "an extension of consumer credit," and § 104(1), 15 U.S.C. § 1603(1), which exempts "[c]redit transactions involving extensions of credit for business or commercial purposes" from most of the provisions of the TILA, [Footnote 5] required the conclusion that the procedures established by § 161 do not apply to an account opened in the Page 452 U. S. 240 name of a corporation in reliance upon the corporation's credit. [Footnote 6]The United States Court of Appeals for the Fifth Circuit reversed. 615 F.2d 191 (1980). Noting that respondent was jointly and severally liable with the company for all debts incurred by his use of the card, the court concluded:"If [American Express] can recover from a consumer, then it must abide by the requirements of [§ 161] for correction of billing errors in a consumer's credit card statement. The credit card company cannot have it both ways. . ."Id. at 195.Because of the significance of the issue in the enforcement of the TILA, we granted certiorari. 449 U.S. 1076 (1981).IIIThe threshold inquiry under § 161(a) is whether the creditor has transmitted to an obligor "a statement of the obligor's account in connection with an extension of consumer credit." If there has been no extension of "consumer credit," the section imposes no obligation upon a creditor, and the creditor is free to adopt its own procedures for responding to a customer's complaint about a billing error. We conclude that, on the undisputed facts of this case, respondent has failed to show that American Express has extended him "consumer credit" in any relevant transaction. Section 161(a), therefore, is not applicable to the dispute between these parties. [Footnote 7]In order for there to be an extension of consumer credit, Page 452 U. S. 241 there first must be an extension of "credit." The TILA's definition of "credit" is contained in § 103(e), 15 U.S.C. § 1602(e): "The term credit' means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment." [Footnote 8]Thus, a credit card company such as American Express extends credit to an individual or an organization when it opens or renews an account, as well as when the cardholder actually uses the credit card to make purchases. When the account is opened or renewed, the creditor has granted a right "to incur debt and defer its payment"; when the card is used, the creditor has allowed the cardholder "to defer payment of debt."An extension of credit is an extension of "consumer credit" if the conditions specified in the statute's definition of "consumer" are also satisfied. Section 103(h) of the TILA, 15 U.S.C. § 1602(h), defines "consumer" as follows:"The adjective 'consumer,' used with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is offered or extended is a natural person, and the money, property, or services which are the subject of the transaction are primarily for personal, family, household, or agricultural purposes."Two elements thus must be present in every "consumer credit" transaction: the party to whom the credit is extended must be a natural person, and the money, property, or services received by that person must be "primarily for personal, family, household, or agricultural purposes." [Footnote 9] We therefore conclude that the Court of Appeals erred in holding respondent to be a "consumer" without deciding whether American Page 452 U. S. 242 Express had extended him credit primarily for any of the purposes specified in §103(h). If it had considered this issue, the only permissible conclusion for it to reach would have been that the undisputed facts of this case establish that the threshold requirement of §161 (a) -- an "extension of consumer credit" -- has not been satisfied, because none of the credit transactions relevant to the billing dispute was entered into "primarily" for consumer purposes.The language of §161(a) does not distinguish between the two types of transactions included in the definition of "credit" or indicate which of them must satisfy the definition of "consumer" in order for the section to be applicable. There are several possibilities. The relevant extension of credit may be only the creation or renewal of the account. Under this view, adopted by the District Court, 444 F. Supp. at 340, if an account is opened by a natural person, its overall purpose must be considered. If the account is opened primarily for consumer purposes, §161(a) applies, even if the cardholder uses the card for an occasional nonconsumer purchase. On the other hand, the language might be interpreted to call for a transaction by transaction approach. With such an approach, §161 would apply if the transaction that is the subject of the dispute is a consumer credit transaction, regardless of the overall purpose of the account. A third alternative would be to combine the two approaches by holding §161 applicable to all disputes that arise under an account that is characterized as a consumer credit account, as well as to any dispute concerning an individual transaction that is an extension of consumer credit, even if the overall purpose of the account is primarily a business one.We need not choose among these alternatives in order to decide this case, [Footnote 10] for we find that respondent is unable to Page 452 U. S. 243 succeed under any of them. The undisputed facts of this case reveal that the Koerner Company obtained the right "to incur debt and defer its payment" from American Express Page 452 U. S. 244 primarily for business, not consumer, purposes. In addition, the specific transactions that were the subject of the dispute between the company and American Express also were business transactions. The facts of this case, therefore, are not encompassed within any possible interpretation of the phrase "extension of consumer credit" in § 161(a).The overall purpose of the Koerner Company's account is clear, and respondent has not claimed that the company sought its account with American Express primarily for consumer purposes. Rather, the company applied for a "company account" using a form supplied by American Express for such an account. App. 27a. Respondent's separate application for a supplementary credit card for the same account also was submitted on a company account form. Id. at 28a. The only credit references submitted to American Express on these forms were those of the Koerner Company, and respondent has admitted that the account was billed to the Koerner Company as a business account. Id. at 25a and 30a. We agree with the District Court that this evidence is sufficient to indicate that the account was opened primarily for business or commercial purposes. See 444 F. Supp. at 340. The evidence submitted by respondent does not weaken this conclusion. In fact, it confirms it. Respondent admitted that he used the card mostly for business purposes. [Footnote 11] His answers to petitioner's interrogatories identified no more than seven nonbusiness uses of the card between 1972 and 1976. App. 42a-43a. [Footnote 12] Page 452 U. S. 245We do not suggest that it always will be easy to determine whether the opening of a credit account involves an extension of consumer credit. The Court of Appeals noted that often it is difficult to characterize the overall purpose of a credit card account that allows for a large number of individual transactions. 615 F.2d at 195. [Footnote 13] It is clear, however, that the Fair Credit Billing Act requires creditors and the courts to undertake this task. See n 10, supra. On this record, there can be no dispute that the Koerner Company's account was not covered by § 103(h)'s definition of "consumer," because it was not opened "primarily for personal, family, household, or agricultural purposes."Similarly, the transactions that were the subject of the underlying dispute cannot be characterized as extensions of consumer credit. These transactions involved either charges for flight insurance added to the cost of airline tickets purchased with the Koerner Company's American Express card or charges for the renewal of cards that the company asserted were no longer wanted. None of these charges was an extension of consumer credit. Respondent's answers to interrogatories admitted that the airline tickets were purchased for business trips. App. 41a-42a. The renewal charges could be considered charges for an extension of consumer credit only if the overall purposes of the account were consumer purposes. As we already have seen, respondent has provided no evidence indicating that this was so.Inasmuch as the record establishes that there was no dispute between petitioner and respondent concerning "a statement of [respondent's] account in connection with an extension Page 452 U. S. 246 of consumer credit," petitioner was not required to follow the procedures mandated by § 161(a)IVBecause Congress has restricted the operation of § 161(a) to disputes concerning extensions of consumer credit, and because the dispute between American Express and respondent did not concern an extension of consumer credit, the judgment of the Court of Appeals must be, and is, reversed.It is so ordered

U.S. Supreme CourtAmerican Express Co. v. Koerner, 452 U.S. 233 (1981)American Express Co. v. KoernerNo. 80-202Argued April 20, 1981Decided June 8, 1981452 U.S. 233SyllabusSection 161(a) of the Truth in Lending Act (TILA), as added by the Fair Credit Billing Act, provides that, whenever a creditor sends an obligor a statement of the obligor's account "in connection with an extension of consumer credit" and the obligor believes that the statement contains a billing error, the obligor may send the creditor a written notice. If such a notice is sent, the creditor then must acknowledge receipt of it, investigate the matter, and either correct the account or send a written explanation of its belief that the original statement was correct. Section 103(h) of the TILA provides that the adjective "consumer," used with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is offered or extended "is a natural person" and the money, property, or services which are the subject of the transaction are "primarily for personal, family, household, or agricultural purposes." A corporation of which respondent is an officer applied to petitioner for a "company account" designed for business customers and asked petitioner to issue credit cards to respondent and other officers. Respondent was required to sign a "company account" form, agreeing to be jointly and severally liable with the company for all charges incurred through use of the card issued to him. Cards were issued on the company's credit rating. A dispute arose between the company and petitioner with respect to charges for flight insurance for certain business trips made by company employees and for renewal of cards that the company claimed were no longer desired, and the company refused to pay the amount in dispute. Company officers wrote to petitioner several times about this, but it does not appear that petitioner ever responded. Subsequently, when respondent attempted to use his company card, he was informed that the account had been canceled because of delinquency in payment. Respondent then filed an action in Federal District Court, alleging, inter alia, that petitioner had canceled the account because of respondent's company's refusal to pay the disputed charges, and seeking damages for petitioner's failure to comply with § 161(a). The District Court granted summary judgment for petitioner, holding that § 161(a) did Page 452 U. S. 234 not apply to an account opened in the name of a corporation in reliance on the corporation's credit. The Court of Appeals reversed.Held: Section 161(a) is not applicable to the dispute between these parties, and hence petitioner was not required to follow the procedures mandated by § 161(a). The threshold requirement of § 161(a) -- an "extension of consumer credit" -- was not satisfied. The company account was not covered by § 103(h)'s definition of "consumer," because it was opened primarily for business purposes, and not "primarily for personal, family, household, or agricultural purposes." Similarly, the transactions giving rise to the billing dispute cannot be characterized as extensions of consumer credit, since they were business transactions. Pp. 452 U. S. 240-246.615 F.2d 191, reversed.BLACKMUN, J., delivered the opinion for a unanimous Court.

1991_90-6352

IRS object. However, because testimony anticipated by the Government from one of its witnesses did not materialize, the evidence did not connect petitioner to the DEA object. On that basis, petitioner moved for a severance, but her motion was denied. At the close of trial, she proposed instructions to the effect that she could be convicted only if the jury found she was aware of the IRS object of the conspiracy. She also proposed special interrogatories asking the jury to identify the object or objects of the conspiracy of which she had knowledge. Both requests were denied. The court instructed the jury in a manner that would permit it to return a guilty verdict against petitioner on Count 20 if it found her to have participated in either one of the two objects of the conspiracy. The jury returned a general verdict of guilty on Count 20 against Beverly, McNulty, and petitioner.The Court of Appeals for the Seventh Circuit upheld petitioner's conviction, rejecting the argument that the general verdict could not stand because it left in doubt whether the jury had convicted her of conspiring to defraud the IRS, for which there was sufficient proof, or of conspiring to defraud the DEA, for which (as the Government concedes) there was not. United States v. Beverly, 913 F.2d 337 (1990). We granted certiorari, 498 U. S. 1082 (1991).The question presented for review, as set forth in the petition, is simply whether a general verdict of guilty under circumstances such as existed here "is reversible." The body of the petition, however, sets forth the Due Process Clause of the Fifth Amendment and the jury trial provision of the Sixth Amendment as bases for the relief requested. Only the former has been discussed (and that briefly) in the written and oral argument before us. For that reason, and also because the alleged defect here is not that a jury determination was denied but rather that a jury determination was permitted, we find it unnecessary to say anything more about the Sixth Amendment. We address below the Due49Process Clause and also the various case precedents relied upon by petitioner.IIThe rule of criminal procedure applied by the Seventh Circuit here is not an innovation. It was settled law in England before the Declaration of Independence, and in this country long afterwards, that a general jury verdict was valid so long as it was legally supportable on one of the submitted grounds-even though that gave no assurance that a valid ground, rather than an invalid one, was actually the basis for the jury's action. As Wharton wrote in 1889:"For years it was the prevailing practice in England and this country, where there was a general verdict of guilty on an indictment containing several counts, some bad and some good, to pass judgment on the counts that were good, on the presumption that it was to them that the verdict of the jury attached, and upon the withdrawal by the prosecution of the bad counts .... [I]n the United States, with but few exceptions, the courts have united in sustaining general judgments on an indictment in which there are several counts stating cognate offences, irrespective of the question whether one of these counts is bad." F. Wharton, Criminal Pleading and Practice § 771, pp. 533-536 (9th ed. 1889) (footnotes omitted).And as this Court has observed:"In criminal cases, the general rule, as stated by Lord Mansfield before the Declaration of Independence, is 'that if there is anyone count to support the verdict, it shall stand good, notwithstanding all the rest are bad.' And it is settled law in this court, and in this country generally, that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if anyone of the counts is good and warrants the judgment, because,50in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only." Claassen v. United States, 142 U. S. 140, 146 (1891) (quoting Peake v. Oldham, 1 Cowper 275, 276, 98 Eng. Rep. 1083 (K. B. 1775)) (other citations omitted).See also Snyder v. United States, 112 U. S. 216, 217 (1884); Clifton v. United States, 4 How. 242, 250 (1846); 1 J. Bishop, Criminal Procedure § 1015, p. 631 (2d ed. 1872).This common-law rule applied in a variety of contexts. It validated general verdicts returned on multicount indictments where some of the counts were legally defective ("bad"), see, e. g., Clifton, supra, at 250; State v. Shelledy, 8 Iowa 477, 511 (1859); State v. Burke, 38 Me. 574, 575-576 (1854); Commonwealth v. Holmes, 17 Mass. 336, 337 (1821), and general verdicts returned on multicount indictments where some of the counts were unsupported by the evidence, see, e. g., State v. Long, 52 N. C. 24, 26 (1859); State v. Bugbee, 22 Vt. 32, 35 (1849); 1 Bishop, supra, § 1014, p. 630. It also applied to the analogous situation at issue here: a general jury verdict under a single count charging the commission of an offense by two or more means. For example, in reviewing a count charging defendants with composing, printing, and publishing a libel, Lord Ellenborough stated:"It is enough to prove publication. If an indictment charges that the defendant did and caused to be done a particular act, it is enough to prove either. The distinction runs through the whole criminal law, and it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified." King v. Hunt, 2 Camp. 583, 584-585, 170 Eng. Rep. 1260 (N. P. 1811).51The latter application of the rule made it a regular practice for prosecutors to charge conjunctively, in one count, the various means of committing a statutory offense, in order to avoid the pitfalls of duplicitous pleading."A statute often makes punishable the doing of one thing or another, ... sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has 'or,' and it will not be double, and it will be established at the trial by proof of anyone of them." 1 J. Bishop, New Criminal Procedure § 436, pp. 355-356 (2d ed. 1913) (footnotes omitted).See, e. g., Crain v. United States, 162 U. S. 625, 636 (1896); Sanford v. State, 8 Ala. App. 245, 247, 62 So. 317, 318 (1913); State v. Bresee, 137 Iowa 673, 681, 114 N. W. 45, 48 (1907); Morganstern v. Commonwealth, 94 Va. 787, 790,26 S. E. 402, 403 (1896). See also Schad v. Arizona, 501 U. S. 624, 630631 (1991); Fed. Rule Crim. Proc. 7(c)(1) (authorizing a single count to allege that an offense was committed "by one or more specified means").The historical practice, therefore, fails to support petitioner's claim under the Due Process Clause of the Constitution. See Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276-277 (1856). Petitioner argues, however, that-whether as a matter of due process or by virtue of our supervisory power over federal courts-a result contrary to the earlier practice has been prescribed by our decision in Yates v. United States, 354 U. S. 298 (1957). Yates involved a single-count federal indictment charging a conspiracy "(1)52to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) to organize, as the Communist Party of the United States, a society of persons who so advocate and teach." Id., at 300. The first of these objects (the "advocacy" charge) violated § 2(a)(1) of the Smith Act of 1940 (subsequently repealed and substantially reenacted as 18 U. S. C. § 2385), and the second of them (the "organizing" charge) violated § 2(a)(3). We found that the "organizing" object was insufficient in law, since the statutory term referred to initial formation, and the Communist Party had been "organized" in that sense at a time beyond the period of the applicable statute of limitations. 354 U. S., at 304-311. We then rejected the Government's argument that the convictions could nonetheless stand on the basis of the "advocacy" object. Our analysis made no mention of the Due Process Clause but consisted in its entirety of the following:"In these circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected. Stromberg v. California, 283 U. S. 359, 367-368; Williams v. North Carolina, 317 U. S. 287, 291-292; Cramer v. United States, 325 U. S. 1, 36, n. 45." Id., at 312.None of the three authorities cited for that expansive proposition in fact establishes it. The first of them, Stromberg v. California, 283 U. S. 359 (1931), is the fountainhead of decisions departing from the common law with respect to the point at issue here. That case, however-which does not explicitly invoke the Due Process Clause-does not sanction as broad a departure as the dictum in Yates expresses, or indeed even the somewhat narrower departure that the holding in Yates adopts. The defendant in Stromberg was53charged in one count of violating a California statute prohibiting the display of a red flag in a public place for anyone of three purposes: (a) as a symbol of opposition to organized government; (b) as an invitation to anarchistic action; or (c) as an aid to seditious propaganda. Id., at 361. The jury was instructed that it could convict if it found the defendant guilty of violating anyone purpose of the statute. Id., at 363-364. A conviction in the form of a general verdict followed. The California appellate court upheld the conviction on the ground that, even though it doubted the constitutionality of criminalizing the first of the three purposes, the statute (and conviction) could be saved if that provision was severed from the statute. We rejected that:"As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to anyone of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If anyone of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause .... It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if anyone of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld." Id., at 368.This language, and the holding of Stromberg, do not necessarily stand for anything more than the principle that, where a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground.54The same principle explains the other two cases relied on by Yates. In Williams v. North Carolina, 317 U. S. 287 (1942), the defendant was convicted of bigamous cohabitation after the jury had been instructed that it could disregard the defendants' Nevada divorce decrees on the ground either that North Carolina did not recognize decrees based on substituted service or that the decrees were procured by fraud. Id., at 290-291. The former of these grounds, we found, violated the Full Faith and Credit Clause. We continued:"[T]he verdict of the jury for all we know may have been rendered on that [unconstitutional] ground alone, since it did not specify the basis on which it rested .... No reason has been suggested why the rule of the Stromberg case is inapplicable here. Nor has any reason been advanced why the rule of the Stromberg case is not both appropriate and necessary for the protection of rights of the accused. To say that a general verdict of guilty should be upheld though we cannot know that it did not rest on the invalid constitutional ground on which the case was submitted to the jury, would be to countenance a procedure which would cause a serious impairment of constitutional rights." Id., at 292.The third case cited by Yates, Cramer v. United States, 325 U. S. 1 (1945), was our first opportunity to interpret the provision of Article III, § 3, which requires, for conviction of treason against the United States, that there be "two Witnesses to the same overt Act." The prosecution had submitted proof of three overt acts to the jury, which had returned a general verdict of guilty. After a comprehensive analysis of the overt-act requirement, id., at 8-35, we found that two of the acts proffered by the prosecution did not satisfy it, id., at 36-44, and accordingly reversed the conviction. "Since it is not possible," we said, "to identify the grounds on which Cramer was convicted, the verdict must be set aside if any55of the separable acts submitted was insufficient." Id., at 36, n. 45.1A host of our decisions, both before and after Yates, has applied what Williams called "the rule of the Stromberg case" to general-verdict convictions that may have rested on an unconstitutional ground. See, e. g., Bachellar v. Maryland, 397 U. S. 564, 570-571 (1970); Leary v. United States, 395 U. S. 6, 31-32 (1969); Street v. New York, 394 U. S. 576, 585-588 (1969); Terminiello v. Chicago, 337 U. S. 1, 5 (1949); Thomas v. Collins, 323 U. S. 516, 529 (1945). Cf. Zant v. Stephens, 462 U. S. 862, 880-884 (1983) (rejecting contention that Stromberg required a death sentence to be set aside if one of several statutory aggravating circumstances underlying the jury verdict was unconstitutionally vague). Yates, however, was the first and only case of ours to apply Stromberg to a general verdict in which one of the possible bases of conviction did not violate any provision of the Constitution but was simply legally inadequate (because of a statutory time bar). As we have described, that was an unexplained1 At the outset of its discussion of the two overt acts, the Cramer Court said: "At the present stage of the case we need not weigh their sufficiency as a matter of pleading. Whatever the averments might have permitted the Government to prove, we now consider their adequacy on the proof as made." 325 U. S., at 37. Petitioner suggests this means that Cramer was a sufficiency-of-the-evidence case-a point relevant to our later analysis, see infra, at 58-59. That suggestion is mistaken. As is apparent from the Court's full discussion, "adequacy on the proof as made" meant not whether the evidence sufficed to enable an alleged fact to be found, but rather whether the facts adduced at trial sufficed in law to constitute overt acts of treason. Thus the Court could say: "It is not relevant to our issue to appraise weight or credibility of the evidence apart from determining its constitutional sufficiency." 325 U. S., at 43. The Court of Appeals' opinion in Cramer makes even clearer that legal as opposed to evidentiary sufficiency was at issue; it specifically distinguishes the case from those in which multiple overt acts sufficient in law are submitted to the jury and the conviction is upheld as long as the evidence suffices to show one of them. See United States v. Cramer, 137 F.2d 888, 893-894 (CA2 1943).56extension, explicitly invoking neither the Due Process Clause (which is an unlikely basis) nor our supervisory powers over the procedures employed in a federal prosecution.Our continued adherence to the holding of Yates is not at issue in this case. What petitioner seeks is an extension of its holding-an expansion of its expansion of Stromberg-to a context in which we have never applied it before. Petitioner cites no case, and we are aware of none, in which we have set aside a general verdict because one of the possible bases of conviction was neither unconstitutional as in Stromberg, nor even illegal as in Yates, but merely unsupported by sufficient evidence. If such invalidation on evidentiary grounds were appropriate, it is hard to see how it could be limited to those alternative bases of conviction that constitute separate legal grounds; surely the underlying principle would apply equally, for example, to an indictment charging murder by shooting or drowning, where the evidence of drowning proves inadequate. See Schad v. Arizona, 501 U. S., at 630-631. But petitioner's requested extension is not merely unprecedented and extreme; it also contradicts another case, postdating Yates, that in our view must govern here.Turner v. United States, 396 U. S. 398 (1970), involved a claim that the evidence was insufficient to support a general guilty verdict under a one-count indictment charging the defendant with knowingly purchasing, possessing, dispensing, and distributing heroin not in or from the original stamped package, in violation of 26 U. S. C. § 4704(a) (1964 ed.). We held that the conviction would have to be sustained if there was sufficient evidence of distribution alone. We set forth as the prevailing rule: "[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner's indictment did, the verdict stands if the evidence is sufficient with respect to anyone of the acts57charged." Id., at 420. Cf. United States v. Miller, 471 U. S. 130, 136 (1985).Although petitioner does not ask us to overrule Turner, neither does she give us any adequate basis for distinguishing it. She claims that we have not yet applied the rule of that case to multiple-act conspiracies. That is questionable. See United States v. Socony- Vacuum Oil Co., 310 U. S. 150, 250 (1940). But whether we have yet done so or not, the controlling point is that a logical and consistent application of Turner demands that proof of alternative facts in conspiracy cases be treated the same as proof of alternative facts in other contexts. Imagine the not unlikely case of a prosecution for defrauding an insurer through two means and for conspiring to defraud the insurer through the same two means; and imagine a failure of proof with respect to one of the means. Petitioner's proposal would produce the strange result of voiding a conviction on the conspiracy while sustaining a conviction on the substantive offense. We agree with the vast majority of Federal Courts of Appeals, which have made no exception to the Turner rule for multipleobject and multiple-overt-act conspiracies. See, e. g., United States v. Bilzerian, 926 F.2d 1285, 1302 (CA2 1991), cert. denied, post, p. 813; United States v. Beverly, 913 F.2d 337, 362-365 (CA7 1990) (case below); United States v. Johnson, 713 F.2d 633, 645-646, and n. 15 (CAll 1983), cert. denied sub nom. Wilkins v. United States, 465 U. S. 1081 (1984); United States v. Wedelstedt, 589 F.2d 339, 341-342 (CA8 1978), cert. denied, 442 U. S. 916 (1979); United States v. James, 528 F.2d 999, 1014 (CA5), cert. denied sub nom. Austin v. United States, 429 U. S. 959 (1976); Moss v. United States, 132 F.2d 875, 877-878 (CA6 1943).22 The only Court of Appeals we are aware of that adheres to the contrary rule is the Third Circuit, albeit without distinguishing, or even acknowledging the existence of, Turner. See United States v. Tarnopol, 561 F.2d 466, 474-475 (1977). Many cases can be found, some of which are cited58Petitioner also seeks to distinguish Turner on the basis that it applies only where one can be sure that the jury did not use the inadequately supported ground as the basis of conviction. That assurance exists, petitioner claims, when the prosecution presents no evidence whatever to support the insufficient theory; if the prosecution offers some, but insufficient, evidence on the point, as it did in this case, then the Yates "impossible to tell" rationale controls. This novel theory posits two different degrees of failure of proof-a failure that is sufficiently insufficient, to which Turner would apply, and one that is insufficiently insufficient, to which Yates would apply. Besides producing an odd system in which the greater failure of proof is rewarded, the rule seems to us full of practical difficulty, bereft of support in Turner, and without foundation in the common-law presumption upon which Turner is based.Finally, petitioner asserts that the distinction between legal error (Yates) and insufficiency of proof (Turner) is illusory, since judgments that are not supported by the requisite minimum of proof are invalid as a matter of law-and indeed, in the criminal law field at least, are constitutionallyby petitioner, that invalidate general conspiracy verdicts on the basis of legal deficiency of some of the objects rather than inadequacy of proof; these are of course irrelevant. See, e. g., United States v. Irwin, 654 F.2d 671, 680 (CAW 1981), cert. denied, 455 U. S. 1016 (1982); United States v. Head, 641 F.2d 174, 178-179 (CA41981), cert. denied, 462 U. S. 1132 (1983); United States v. Kavazanjian, 623 F.2d 730, 739-740 (CA11980); United States v. Carman, 577 F.2d 556, 567-568 (CA9 1978); United States v. Baranski, 484 F.2d 556, 560-561 (CA7 1973); Van Liew v. United States, 321 F.2d 664, 672 (CA5 1963). Some other cases cited by petitioner do not involve a conspiracy charge at all, e. g., United States v. Natelli, 527 F. 2d 311, 324-325 (CA2 1975), cert. denied, 425 U. S. 934 (1976), or apply their ruling to both substantive and conspiracy charges, e. g., United States v. Garcia, 907 F.2d 380, 381 (CA2 1990)-which means that they flatly contradict Turner and offer no support for the distinction that petitioner suggests. Still others have been distinguished (or effectively overruled) by later cases within the Circuit, see, e. g., United States v. Berardi, 675 F.2d 894, 902 (CA7 1982).59required to be set aside. See Jackson v. Virginia, 443 U. S. 307, 319 (1979). Insufficiency of proof, in other words, is legal error. This represents a purely semantical dispute. In one sense "legal error" includes inadequacy of evidencenamely, when the phrase is used as a term of art to designate those mistakes that it is the business of judges (in jury cases) and of appellate courts to identify and correct. In this sense "legal error" occurs when a jury, properly instructed as to the law, convicts on the basis of evidence that no reasonable person could regard as sufficient. But in another sense-a more natural and less artful sense-the term "legal error" means a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence. The answer to petitioner's objection is simply that we are using "legal error" in the latter sense.That surely establishes a clear line that will separate Turner from Yates, and it happens to be a line that makes good sense. Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law-whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence, see Duncan v. Louisiana, 391 U. S. 145, 157 (1968). As the Seventh Circuit has put it:"It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chanceremote, it seems to us-that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the60BLACKMUN, J., concurring in judgmentevidence was sufficient." United States v. Townsend, 924 F.2d 1385, 1414 (1991).***What we have said today does not mean that a district court cannot, in its discretion, give an instruction of the sort petitioner requested here, eliminating from the jury's consideration an alternative basis of liability that does not have adequate evidentiary support. Indeed, if the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury's consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction. The judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1991SyllabusGRIFFIN v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 90-6352. Argued October 7, 1991-Decided December 3,1991Petitioner Griffin and others were charged in a multiple-object conspiracy.The evidence introduced at trial implicated Griffin in the first object of the conspiracy but not the second. The District Court nevertheless instructed the jury in a manner that would permit it to return a verdict against Griffin if it found her to have participated in either one of the two objects. The jury returned a general verdict of guilty. The Court of Appeals upheld Griffin's conviction, rejecting the argument that the verdict could not stand because it left in doubt whether the jury had convicted her as to the first or the second object.Held: Neither the Due Process Clause of the Fifth Amendment nor this Court's precedents require, in a federal prosecution, that a general guilty verdict on a multiple-object conspiracy be set aside if the evidence is inadequate to support conviction as to one of the objects. Pp. 49-60.(a) The historical practice fails to support Griffin's due process claim, since the rule of criminal procedure applied by the Court of Appeals was a settled feature of the common law. Pp. 49-51.(b) The precedent governing this case is not Yates v. United States, 354 U. S. 298, which invalidated a general verdict when one of the possible bases of conviction was legally inadequate, but Turner v. United States, 396 U. S. 398, 420, which upheld a general verdict when one of the possible bases of conviction was supported by inadequate evidence. The line between Yates and Turner makes good sense: Jurors are not generally equipped to determine whether a particular theory of conviction is contrary to law, but are well equipped to determine whether the theory is supported by the facts. Although it would generally be preferable to give an instruction removing from the jury's consideration an alternative basis of liability that does not have adequate evidentiary support, the refusal to do so does not provide an independent basis for reversing an otherwise valid conviction. pp. 51-60.913 F.2d 337, affirmed.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post,47p. 60. THOMAS, J., took no part in the consideration or decision of the case.Michael G. Logan argued the cause and filed briefs for petitioner.Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, and Jeffrey P. Minear.JUSTICE SCALIA delivered the opinion of the Court.This case presents the question whether, in a federal prosecution, a general guilty verdict on a multiple-object conspiracy charge must be set aside if the evidence is inadequate to support conviction as to one of the objects.IA federal grand jury returned a 23-count indictment against petitioner Diane Griffin and others. Count 20, the only count in which Griffin was named, charged her, Alex Beverly, and Betty McNulty with conspiring to defraud an agency of the Federal Government in violation of 18 U. S. C. § 371, which reads, in pertinent part, as follows:"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be [guilty of a crime]."The unlawful conspiracy was alleged to have had two objects: (1) impairing the efforts of the Internal Revenue Service (IRS) to ascertain income taxes; and (2) impairing the efforts of the Drug Enforcement Administration (DEA) to ascertain forfeitable assets.The evidence introduced at trial implicated Beverly and McNulty in both conspiratorial objects, and petitioner in the48Full Text of Opinion

1993_93-356

JUSTICE SCALIA delivered the opinion of the Court. Section 203(a) of Title 47 of the United States Code requires communications common carriers to file tariffs with the Federal Communications Commission, and § 203(b) authorizes the Commission to "modify" any requirement of § 203. These cases present the question whether the Commission's decision to make tariff filing optional for all nondominant long-distance carriers is a valid exercise of its modification authority.ILike most cases involving the role of the American Telephone and Telegraph Company (AT&T) in our national telecommunication system, these have a long history. An understanding of the cases requires a brief review of the Commission's efforts to regulate and then deregulate the telecommunications industry. When Congress created the Commission in 1934, AT&T, through its vertically integrated Bell system, held a virtual monopoly over the Nation's telephone service. The Communications Act of 1934, 48 Stat. 1064, as amended, authorized the Commission to regulate the rates charged for communication services to ensure that they were reasonable and nondiscriminatory. The requirements of § 203 that common carriers file their rates with the Commission and charge only the filed rate were the centerpiece of the Act's regulatory scheme.In the 1970's, technological advances reduced the entry costs for competitors of AT&T in the market for longdistance telephone service. The Commission, recognizing the feasibility of greater competition, passed regulations to facilitate competitive entry. By 1979, competition in the provision of long-distance service was well established, and some urged that the continuation of extensive tariff filing requirements served only to impose unnecessary costs on new entrants and to facilitate collusive pricing. The Commission held hearings on the matter, see Competitive Carrier Notice of Inquiry and Proposed Rulemaking, 77221F. C. C. 2d 308 (1979), following which it issued a series of rules that have produced this litigation.The First Report and Order, 85 F. C. C. 2d 1, 20-24 (1980), distinguished between dominant carriers (those with market power) and nondominant carriers-in the long-distance market, this amounted to a distinction between AT&T and everyone else-and relaxed some of the filing procedures for nondominant carriers, id., at 30-49. In the Second Report and Order, 91 F. C. C. 2d 59 (1982), the Commission entirely eliminated the filing requirement for resellers of terrestrial common carrier services. This policy of optional filing, or permissive detariffing, was extended to all other resellers, and to specialized common carriers, including petitioner MCI Telecommunications Corp., by the Fourth Report and Order, 95 F. C. C. 2d 554 (1983),1 and to virtually all remaining categories of nondominant carriers by the Fifth Report and Order, 98 F. C. C. 2d 1191 (1984). Then, in 1985, the Commission shifted to a mandatory detariffing policy, which prohibited nondominant carriers from filing tariffs. See Sixth Report and Order, 99 F. C. C. 2d 1020. The United States Court of Appeals for the District of Columbia Circuit, however, struck down the Sixth Report's mandatory detariffing policy in a challenge brought-somewhat ironically as it now appears-by MC!. See MCI Telecommunications Corp. v. F. C. c., 765 F.2d 1186 (1985) (Ginsburg, J.). The Court of Appeals reasoned that § 203(a)'s command that "[e]very common carrier ... shall ... file" tariffs was mandatory. And although § 203(b) authorizes the Commission to "modify any requirement" in the section, the Court of Appeals concluded that that phrase "suggest[ed] circumscribed alterations-not, as the FCC now would have it, wholesale abandonment or elimination of a requirement." Id., at 1192.1 The Third Report and Order, 48 Fed. Reg. 46791 (1983), extended the Competitive Carrier Rulemakings to carriers providing service to domestic points outside the continental United States, such as Hawaii, Puerto Rico, and the United States Virgin Islands.222In the wake of the invalidation of mandatory detariffing by the Court of Appeals, MCI continued its practice of not filing tariffs for certain services, pursuant to the permissive detariffing policy of the Fourth Report and Order. On August 7, 1989, AT&T filed a complaint, pursuant to the thirdparty complaint provision of the Communications Act, 47 U. S. C. § 208(a), which alleged that MCI's collection of unfiled rates violated §§ 203(a) and (c). MCI responded that the Fourth Report was a substantive rule, and so MCI had no legal obligation to file rates. AT&T rejoined that the Fourth Report and Order was simply a statement of the Commission's nonenforcement policy, which did not immunize MCI from private enforcement actions; and that if the Fourth Report and Order established a substantive rule, it was in excess of statutory authority. The Commission did not take final action on AT&T's complaint until almost 2lf2 years after its filing. See AT&T Communications v. MCI Telecommunications Corp., 7 FCC Rcd 807 (1992). It characterized the Fourth Report and Order as a substantive rule and dismissed AT&T's complaint on the ground that MCI was in compliance with that rule. It refused to address, however, AT&T's contention that the rule was ultra vires, announcing instead a proposed rulemaking to consider that question. See Tariff Filing Requirements for Interstate Common Carriers, Notice of Proposed Rulemaking, 7 FCC Rcd 804 (1992).AT&T petitioned for review, arguing, inter alia, that the Commission lacked authority to defer to a later rulemaking consideration of an issue which was dispositive of an adjudicatory complaint. The United States Court of Appeals for the District of Columbia Circuit granted the petition for review. See American Telephone & Telegraph Co. v. F. C. c., 978 F.2d 727 (1992) (Silberman, J.). The Court of Appeals characterized the Commission's failure to address its authority to promulgate the permissive detariffing policy as "a sort of administrative law shell game," id., at 731-732. Address-223ing that question itself, the Court of Appeals concluded that the permissive detariffing policy of the Fourth Report and Order was rendered indefensible by the 1985 MCI decision:"Whether detariffing is made mandatory, as in the Sixth Report, or simply permissive, as in the Fourth Report, carriers are, in either event, relieved of the obligation to file tariffs under section 203(a). That step exceeds the limited authority granted the Commission in section 203(b) to 'modify' requirements of the Act." Id., at 736. The Court of Appeals then remanded the case so that the Commission could award appropriate relief. See id., at 736-737. We denied certiorari. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 509 U. S. 913 (1993).Moving now with admirable dispatch, less than two weeks after the decision by the Court of Appeals concerning the adjudicatory proceeding, the Commission released a Report and Order from the rulemaking proceeding commenced in response to AT&T's complaint. See In re Tariff Filing Requirements for Interstate Common Carriers, 7 FCC Rcd 8072 (1992), stayed pending further notice, 7 FCC Rcd 7989 (1992). That is the Report and Order at issue in this case. The Commission, relying upon the § 203(b) authority to "modify" that had by then been twice rejected by the District of Columbia Circuit, determined that its permissive detariffing policy was within its authority under the Communications Act. AT&T filed a motion with the District of Columbia Circuit seeking summary reversal of the Commission's order. The motion was granted in an unpublished per curiam order stating: "The decision of this court in [American Telephone & Telegraph Co. v. FCC, 978 F.2d 727 (1992),] conclusively determined that the FCC's authorization of permissive detariffing violates Section 203(a) of the Communications Act." App. to Pet. for Cert. 2a. Both MCI and the United States (together with the Commission) petitioned for certiorari. We granted the petitions and consolidated them. 510 U. S. 989 (1993).224IISection 203 of the Communications Act contains both the filed rate provisions of the Act and the Commission's disputed modification authority. It provides in relevant part:"(a) Filing; public display."Every common carrier, except connecting carriers, shall, within such reasonable time as the Commission shall designate, file with the Commission and print and keep open for public inspection schedules showing all charges ... , whether such charges are joint or separate, and showing the classifications, practices, and regulations affecting such charges ...."(b) Changes in schedule; discretion of Commission to modify requirements."(1) No change shall be made in the charges, classifications, regulations, or practices which have been so filed and published except after one hundred and twenty days notice to the Commission and to the public, which shall be published in such form and contain such information as the Commission may by regulations prescribe."(2) The Commission may, in its discretion and for good cause shown, modify any requirement made by or under the authority of this section either in particular instances or by general order applicable to special circumstances or conditions except that the Commission may not require the notice period specified in paragraph (1) to be more than one hundred and twenty days."(c) Overcharges and rebates."No carrier, unless otherwise provided by or under authority of this chapter, shall engage or participate in such communication unless schedules have been filed and published in accordance with the provisions of this chapter and with the regulations made thereunder; and no carrier shall (1) charge, demand, collect, or receive a225greater or less or different compensation for such communication ... than the charges specified in the schedule then in effect, or (2) refund or remit by any means or device any portion of the charges so specified, or (3) extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, except as specified in such schedule." 47 U. S. C. § 203 (1988 ed. and Supp. IV).The dispute between the parties turns on the meaning of the phrase "modify any requirement" in § 203(b)(2). Petitioners argue that it gives the Commission authority to make even basic and fundamental changes in the scheme created by that section. We disagree. The word "modify"-like a number of other English words employing the root "mod-" (deriving from the Latin word for "measure"), such as "moderate," "modulate," "modest," and "modicum"-has a connotation of increment or limitation. Virtually every dictionary we are aware of says that "to modify" means to change moderately or in minor fashion. See, e. g., Random House Dictionary of the English Language 1236 (2d ed. 1987) ("to change somewhat the form or qualities of; alter partially; amend"); Webster's Third New International Dictionary 1452 (1981) ("to make minor changes in the form or structure of: alter without transforming"); 9 Oxford English Dictionary 952 (2d ed. 1989) ("[t]o make partial changes in; to change (an object) in respect of some of its qualities; to alter or vary without radical transformation"); Black's Law Dictionary 1004 (6th ed. 1990) ("[t]o alter; to change in incidental or subordinate features; enlarge; extend; amend; limit; reduce").In support of their position, petitioners cite dictionary definitions contained in, or derived from, a single source, Webster's Third New International Dictionary 1452 (1981) (Webster's Third), which includes among the meanings of226"modify," "to make a basic or important change in." 2 Petitioners contend that this establishes sufficient ambiguity to entitle the Commission to deference in its acceptance of the broader meaning, which in turn requires approval of its permissive detariffing policy. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). In short, they contend that the courts must defer to the agency's choice among available dictionary definitions, citing National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407, 418 (1992).But Boston & Maine does not stand for that proposition.That case involved the question whether the statutory term "required" could only mean "demanded as essential" or could also mean "demanded as appropriate." In holding that the latter was a permissible interpretation, to which Chevron deference was owed, the opinion did not rely exclusively upon dictionary definitions, but also upon contextual indications, see 503 U. S., at 417-419-which in the present cases, as we shall see, contradict petitioners' position. Moreover, when the Boston & Maine opinion spoke of "alternative dictionary definitions," ibid., it did not refer to what we have here: one dictionary whose suggested meaning contradicts virtually all others. It referred to alternative definitions2 Petitioners also cite Webster's Ninth New Collegiate Dictionary 763 (1991), which includes among its definitions of "modify," "to make basic or fundamental changes in often to give a new orientation to or to serve a new end." They might also have cited the eighth version of Webster's New Collegiate Dictionary 739 (1973), which contains that same definition; and Webster's Seventh New Collegiate Dictionary 544 (1963), which contains the same definition as Webster's Third New International Dictionary quoted in text. The Webster's New Collegiate Dictionaries, published by G. & C. Merriam Company of Springfield, Massachusetts, are essentially abridgments of that company's Webster's New International Dictionaries, and recite that they are based upon those lengthier works. The last New Collegiate to be based upon Webster's Second New International, rather than Webster's Third, does not include "basic or fundamental change" among the accepted meanings of "modify." See Webster's New Collegiate Dictionary 541 (6th ed. 1949).227within the dictionary cited (Webster's Third, as it happens), which was not represented to be the only dictionary giving those alternatives. To the contrary, the Court said "these alternative interpretations are as old as the jurisprudence of this Court," id., at 419, citing McCulloch v. Maryland, 4 Wheat. 316 (1819). See also Webster's New International Dictionary 2117 (2d ed. 1934); 2 New Shorter Oxford English Dictionary 2557 (1993) (giving both alternatives).Most cases of verbal ambiguity in statutes involve, as Boston & Maine did, a selection between accepted alternative meanings shown as such by many dictionaries. One can envision (though a court case does not immediately come to mind) having to choose between accepted alternative meanings, one of which is so newly accepted that it has only been recorded by a single lexicographer. (Some dictionary must have been the very first to record the widespread use of "projection," for example, to mean "forecast.") But what petitioners demand that we accept as creating an ambiguity here is a rarity even rarer than that: a meaning set forth in a single dictionary (and, as we say, its progeny) which not only supplements the meaning contained in all other dictionaries, but contradicts one of the meanings contained in virtually all other dictionaries. Indeed, contradicts one of the alternative meanings contained in the out-of-step dictionary itself-for as we have observed, Webster's Third itself defines "modify" to connote both (specifically) major change and (specifically) minor change. It is hard to see how that can be. When the word "modify" has come to mean both "to change in some respects" and "to change fundamentally" it will in fact mean neither of those things. It will simply mean "to change," and some adverb will have to be called into service to indicate the great or small degree of the change.If that is what the peculiar Webster's Third definition means to suggest has happened-and what petitioners suggest by appealing to Webster's Third-we simply disagree.228"Modify," in our view, connotes moderate change. It might be good English to say that the French Revolution "modified" the status of the French nobility-but only because there is a figure of speech called understatement and a literary device known as sarcasm. And it might be unsurprising to discover a 1972 White House press release saying that "the Administration is modifying its position with regard to prosecution of the war in Vietnam"-but only because press agents tend to impart what is nowadays called "spin." Such intentional distortions, or simply careless or ignorant misuse, must have formed the basis for the usage that Webster's Third, and Webster's Third alone, reported.3 It is perhaps gilding the lily to add this: In 1934, when the Communications Act became law-the most relevant time for determining a statutory term's meaning, see Perrin v. United States, 444 U. S. 37, 42-45 (1979)-Webster's Third was not yet even contemplated. To our knowledge all English dictionaries provided the narrow definition of "modify," including those published by G. & C. Merriam Company. See Webster's New International Dictionary 1577 (2d ed. 1934); Webster's Collegiate Dictionary 628 (4th ed. 1934). We have not the slightest doubt that is the meaning the statute intended.Beyond the word itself, a further indication that the § 203(b)(2) authority to "modify" does not contemplate fundamental changes is the sole exception to that authority which3 That is not an unlikely hypothesis. Upon its long-awaited appearance in 1961, Webster's Third was widely criticized for its portrayal of common error as proper usage. See, e. g., Follett, Sabotage in Springfield, 209 Atlantic 73 (Jan. 1962); Barzun, What is a Dictionary? 32 The American Scholar 176, 181 (spring 1963); Macdonald, The String Unwound, 38 The New Yorker 130, 156-157 (Mar. 1962). An example is its approval (without qualification) of the use of "infer" to mean "imply": "infer" "5: to give reason to draw an inference concerning: HINT (did not take part in the debate except to ask a question inferring that the constitution must be changed-Manchester Guardian Weekly)." Webster's Third New International Dictionary 1158 (1961).229the section provides. One of the requirements of § 203 is that changes to filed tariffs can be made only after 120 days' notice to the Commission and the public. § 203(b)(1). The only exception to the Commission's § 203(b)(2) modification authority is as follows: "except that the Commission may not require the notice period specified in paragraph (1) to be more than one hundred and twenty days." Is it conceivable that the statute is indifferent to the Commission's power to eliminate the tariff-filing requirement entirely for all except one firm in the long-distance sector, and yet strains out the gnat of extending the waiting period for tariff revision beyond 120 days? We think not. The exception is not as ridiculous as a Lilliputian in London only because it is to be found in Lilliput: in the small-scale world of "modifications," it is a big deal.Since an agency's interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear, see, e. g., Pittston Coal Group v. Sebben, 488 U. S. 105, 113 (1988); Chevron, 467 U. S., at 842-843, the Commission's permissive detariffing policy can be justified only if it makes a less than radical or fundamental change in the Act's tariff-filing requirement. The Commission's attempt to establish that no more than that is involved greatly understates the extent to which its policy deviates from the filing requirement, and greatly undervalues the importance of the filing requirement itself.To consider the latter point first: For the body of a law, as for the body of a person, whether a change is minor or major depends to some extent upon the importance of the item changed to the whole. Loss of an entire toenail is insignificant; loss of an entire arm tragic. The tariff-filing requirement is, to pursue this analogy, the heart of the commoncarrier section of the Communications Act. In the context of the Interstate Commerce Act, which served as its model, see, e. g., MC! Telecommunications Corp. v. FCC, 917 F. 2d23030, 38 (CADC 1990), this Court has repeatedly stressed that rate filing was Congress's chosen means of preventing unreasonableness and discrimination in charges: "[T]here is not only a relation, but an indissoluble unity between the provision for the establishment and maintenance of rates until corrected in accordance with the statute and the prohibitions against preferences and discrimination." Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 440 (1907); see also Robinson v. Baltimore & Ohio R. Co., 222 U. S. 506, 508-509 (1912). "The duty to file rates with the Commission, [the analog to § 203(a)], and the obligation to charge only those rates, [the analog to § 203(c)], have always been considered essential to preventing price discrimination and stabilizing rates." Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116, 126 (1990); see also Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370, 384 (1932) (filing requirements "render rates definite and certain, and ... prevent discrimination and other abuses"); Armour Packing Co. v. United States, 209 U. S. 56, 81 (1908) (elimination of filing requirement "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"). As the Maislin Court concluded, compliance with these provisions "is 'utterly central' to the administration of the Act." 497 U. S., at 132, quoting Regular Common Carrier Conference v. United States, 793 F.2d 376, 379 (CADC 1986).Much of the rest of the Communications Act subchapter applicable to Common Carriers, see 47 U. S. C. §§201-228, and the Act's Procedural and Administrative Provisions, 47 U. S. C. §§401-416, are premised upon the tariff-filing requirement of § 203. For example, § 415 defines "overcharges" (which customers are entitled to recover) by reference to the filed rate. See § 415(g). The provisions allowing customers and competitors to challenge rates as unreasonable or as discriminatory, see 47 U. S. C. §§204, 206-231208, 406, would not be susceptible of effective enforcement if rates were not publicly filed.4 See Maislin, supra, at 132. Rate filings are, in fact, the essential characteristic of a rateregulated industry. It is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion-and even more unlikely that it would achieve that through such a subtle device as permission to "modify" rate-filing requirements.Bearing in mind, then, the enormous importance to the statutory scheme of the tariff-filing provision, we turn to whether what has occurred here can be considered a mere "modification." The Commission stresses that its detariffing policy applies only to nondominant carriers, so that the rates charged to over half of all consumers in the longdistance market are on file with the Commission. It is not clear to us that the proportion of customers affected, rather than the proportion of carriers affected, is the proper measure of the extent of the exemption (of course all carriers in the long-distance market are exempted, except AT&T). But even assuming it is, we think an elimination of the crucial provision of the statute for 40% of a major sector of the industry is much too extensive to be considered a "modification." What we have here, in reality, is a fundamental revision of the statute, changing it from a scheme of rate regulation in long-distance common-carrier communications4 The dissent misrepresents what we say in this sentence, see post, at 242, and addresses two paragraphs to an argument we have not made, post, at 242-244. We simply say, as did the Maislin Court, that eliminating the tariff-filing requirement would frustrate complaint proceedings; not that eliminating those requirements, or indeed even eliminating the complaint proceedings, would frustrate the ultimate purposes of the Act. Perhaps, as the dissent asserts, it would not; perhaps even eliminating the FCC would not do so. But we (and the FCC) are bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes.232to a scheme of rate regulation only where effective competition does not exist. That may be a good idea, but it was not the idea Congress enacted into law in 1934.Apart from its failure to qualify as a "modification," there is an independent reason why the Commission's detariffing policy cannot come within the § 203(b)(2) authority to modify. That provision requires that when the Commission proceeds "by general order" (as opposed to when it acts "in particular instances") to make a modification, the order can only apply "to special circumstances or conditions." Although that is a somewhat elastic phrase, it is not infinitely so. It is hard to imagine that a condition shared by 40% of all long-distance customers, and by all long-distance carriers except one, qualifies as "special" within the intent of this limitation.5Both sides of this dispute contend that Congress has manifested in later legislation agreement with their respective interpretations of the Communications Act. Petitioners point to the 1990 amendment of the Act to require operator service providers (aSP's) to file informational tariffs, which can be phased out after four years, see Telephone Operator Consumer Services Improvement Act of 1990 (TOCSIA), 104 Stat. 990,47 U. S. C. § 226(h) (1988 ed., Supp. IV). Petitioners reason that this must envision a background of permissive filing, since otherwise the permitted phaseout of infor-5 The dissent suggests that we ignore § 203(c) of the Act, which prohibits carriers from providing service in the absence of a filed rate "unless provided by or under the authority of this Act." The dissent asserts that that phrase must refer to the modification authority of § 203(b)(2). See post, at 239-240. Perhaps it does so-though that would not at all contradict our interpretation of § 203(b)(2), which we have acknowledged, see infra, at 234, might in some limited circumstances permit the Commission to waive the filing requirement. But § 203(c) could just as (in fact, more) easily be read as referring to § 203(a)'s express exemption of connecting carriers, §§ 201(b) and 211's authorization of services between carriers pursuant to contractual rates, § 332(c)(1)(A)'s exemptions for mobile carriers, and other express statutory exemptions from filing requirements.233mational tariffs would be a phase-in of even more rigorous requirements. AT&T, on the other hand, claims that Congress has manifested agreement with its position in the recent amendment of 47 U. S. C. §332(c)(1)(A) that gives the Commission authority to limit the tariff-filing requirement for commercial mobile carriers-authority that would be unnecessary if the Commission's view of § 203 is correct. At most, these conflicting arguments indicate that Congress was aware of the decade-long tug of war between the Commission and the District of Columbia Circuit over the authority to relax filing requirements, and at different times proceeded on different assumptions as to who would win. We have here not a consistent history of legislation to which one or the other, interpretation of the Act is essential; but rather two pieces of legislation to which first one, and then the other, interpretation of the Act is more congenial. That is not enough to change anything.Finally, petitioners earnestly urge that their interpretation of § 203(b) furthers the Communications Act's broad purpose of promoting efficient telephone service. They claim that although the filing requirement prevented price discrimination and unfair practices while AT&T maintained a monopoly over long-distance service, it frustrates those same goals now that there is greater competition in that market. Specifically, they contend that filing costs raise artificial barriers to entry and that the publication of rates facilitates parallel pricing and stifles price competition. We have considerable sympathy with these arguments (though we doubt it makes sense, if one is concerned about the use of filed tariffs to communicate pricing information, to require filing by the dominant carrier, the firm most likely to be a price leader). The Court itself has policed trade associations and rate bureaus under the antitrust laws precisely because the sharing of pricing information can facilitate price fixing, see, e. g., Sugar Institute, Inc. v. United States, 297 U. S. 553234(1936); American Column & Lumber Co. v. United States, 257 U. S. 377 (1921), and the Court has protected regulated firms from some types of antitrust suits brought on the basis of their filed rates, see, e. g., Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409 (1986). As we noted earlier this Term, there is considerable "debate in other forums about the wisdom of the filed rate doctrine," Security Services, Inc. v. Kmart Corp., 511 U. S. 431, 440 (1994), and, more broadly, about the value of continued regulation of the telecommunications industry. But our estimations, and the Commission's estimations, of desirable policy cannot alter the meaning of the federal Communications Act of 1934. For better or worse, the Act establishes a rate-regulation, filedtariff system for common-carrier communications, and the Commission's desire "to 'increase competition' cannot provide [it] authority to alter the well-established statutory filed rate requirements," Maislin, 497 U. S., at 135. As we observed in the context of a dispute over the filed-rate doctrine more than 80 years ago, "such considerations address themselves to Congress, not to the courts," Armour Packing, 209 U. S., at 82.We do not mean to suggest that the tariff-filing requirement is so inviolate that the Commission's existing modification authority does not reach it at all. Certainly the Commission can modify the form, contents, and location of required filings, and can defer filing or perhaps even waive it altogether in limited circumstances. But what we have here goes well beyond that. It is effectively the introduction of a whole new regime of regulation (or of free-market competition), which may well be a better regime but is not the one that Congress established.The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1993SyllabusMCI TELECOMMUNICATIONS CORP. v. AMERICAN TELEPHONE & TELEGRAPH CO.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 93-356. Argued March 21, 1994-Decided June 17, 1994*Title 47 U. S. C. § 203(a) requires communications common carriers to file tariffs with the Federal Communications Commission, and § 203(b)(2) authorizes the Commission to "modify any requirement made by or under ... this section .... " Relying on the latter provision, the Commission issued an order determining that its earlier decision to make tariff filing optional for all nondominant long-distance carriers was within its authority to "modify." American Telephone and Telegraph Co., the only dominant long-distance carrier, filed a motion with the Court of Appeals seeking summary reversal of the Commission's order. The motion was granted on the basis of that court's prior decision determining that the Commission's authorization of permissive detariffing violated § 203(a).Held: The Commission's permissive detariffing policy is not a valid exercise of its § 203(b)(2) authority to "modify any requirement." Because virtually every dictionary in use now and at the time the statute was enacted defines "to modify" as meaning to change moderately or in minor fashion, the word "modify" must be seen to have a connotation of increment or limitation. That § 203(b)(2) does not contemplate basic or fundamental changes is also demonstrated by the fact that the only exception to it deals with a very minor matter: The Commission may not require the period for giving notice of tariff changes to exceed 120 days. The Commission's permissive detariffing policy cannot be justified as a nonfundamental "modification." The tariff filing requirement is the heart of the common carrier subchapter of the Communications Act of 1934, and the policy eliminates that requirement entirely for all except one firm in the long-distance sector, and for 40% of all consumers in that sector. Moreover, it is hard to imagine that a condition shared by so many affected parties qualifies as "special" under § 203(b)(2)'s requirement that when the Commission proceeds "by general order" to make a modification, the order can only apply "to special circumstances or conditions." The Commission's interpretation of the statute is there-*Together with No. 93-521, United States et al. v. American Telephone & Telegraph Co. et al., also on certiorari to the same court.219fore not entitled to deference, since it goes beyond the meaning that the statute can bear. That Congress seemed to manifest agreement with the parties' respective interpretations in later legislation is irrelevant; there has been no consistent history of legislation to which one or the other interpretation is essential. Finally, petitioners' argument that their interpretation better serves the Act's broad purpose of promoting efficient telephone service should be addressed to Congress. Pp.224-234.Affirmed.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and KENNEDY, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and SOUTER, JJ., joined, post, p. 235. O'CONNOR, J., took no part in the consideration or decision of the cases.Christopher J. Wright argued the cause for the federal petitioners. With him on the brief were Solicitor General Days, Assistant Attorney General Bingaman, and Deputy Solicitor General Wallace. Donald B. Verrilli, Jr., argued the cause for petitioner in No. 93-356. With him on the briefs were Chester T. Kamin, Michael H. Salsbury, Anthony C. Epstein, John B. Morris, Jr., Donald J. Elardo, Frank W Krogh, and Richard G. Taranto.David W Carpenter argued the cause for respondents in both cases. With him on the brief for respondent American Telephone & Telegraph Co. were Thomas W Merrill, Peter D. Keisler, Joseph D. Kearney, Mark C. Rosenblum, and John J. Langhauser. Leon M. Kestenbaum, Michael B. Fingerhut, Theodore Case Whitehouse, and W Theodore Pierson, Jr., filed a brief for respondent Sprint Communications Co. L. P. et al. ttBriefs of amici curiae urging reversal were filed for International Business Machines Corporation by T. Roger Wollenberg, William T. Lake, John H. Harwood II, and Sheila McCartney; for the California Bankers Clearing House Association et al. by Henry D. Levine, Ellen G. Block, and Francis E. Fletcher, Jr.; and for Wiltel, Inc., by David G. Leitch.220Full Text of Opinion

1984_84-363

JUSTICE REHNQUIST delivered the opinion of the Court.Respondents Bank of New England Corporation (BNE), Hartford National Corporation (HNC), and Bank of Boston Corporation (BBC) are bank holding companies which applied to the Federal Reserve Board to obtain approval for the acquisition of banks or bank holding companies in New England States other than the ones in which they are principally located. Petitioners Northeast Bancorp, Inc., Union Trust Company, and Citicorp opposed these proposed acquisitions in proceedings before the Board. The Board approved the acquisitions, and the Court of Appeals for the Second Circuit affirmed the orders of the Board. Petitioners sought certiorari, contending that the acquisitions were not authorized by the Bank Holding Company Act of 1956, 70 Stat. 133, as amended, 12 U.S.C. § 1841 et seq., and that, if they were authorized by that Act, the state statutes which permitted the acquisitions in each case violated the Commerce Clause and the Compact Clause of the United States Constitution. We granted certiorari because of the importance of these issues, 469 U.S. 810, and we now affirm.The Bank Holding Company Act (BHCA) regulates the acquisition of state and national banks by bank holding companies. Page 472 U. S. 163 The Act generally defines a bank as any institution organized under state or federal law which "(1) accepts deposits that the depositor has a legal right to withdraw on demand, and (2) engages in the business of making commercial loans." 12 U.S.C. § 1841(c). The Act defines a bank holding company as any corporation, partnership, business trust, association, or similar organization that owns or has control over a bank or another bank holding company. §§ 1841(a)(1), (b); see § 1841(a)(5). Before a company may become a bank holding company, or a bank holding company may acquire a bank or substantially all of the assets of a bank, the Act requires it to obtain the approval of the Federal Reserve Board. § 1842.The Board will evaluate the proposed transaction for anticompetitive effects, financial and managerial resources, community needs, and the like. § 1842(c). In addition, § 3(d) of the Act, 12 U.S.C. § 1842(d), known as "the Douglas Amendment," prohibits the Board from approving an application of a bank holding company or bank located in one State to acquire a bank located in another State, or substantially all of its assets, unless the acquisition"is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication."Pursuant to the Douglas Amendment, a number of States recently have enacted statutes which selectively authorize interstate bank acquisitions on a regional basis. This case requires us to consider the validity of these statutes.From 1956 to 1972, the Douglas Amendment had the effect of completely barring interstate bank acquisitions, because no State had enacted the requisite authorizing statute. Beginning in 1972, several States passed statutes permitting such acquisitions in limited circumstances or for specialized purposes. For example, Iowa passed a grandfathering statute which had the effect of permitting the only out-of-state bank holding company owning an Iowa bank to maintain and expand its in-state banking activities, Iowa Code § 524.1805 (1983); see Iowa Independent Bankers v. Board of Governors, Page 472 U. S. 164 167 U.S.App.D.C. 286, 511 F.2d 1288, cert. denied, 423 U.S. 875 (1975); Washington authorized out-of-state purchasers to acquire failing local banks, Wash.Rev.Code § 30.04.230(4)(a) (Supp.1985); and Delaware allowed out-of-state bank holding companies to set up special purpose banks, such as credit card operations, in Delaware so long as they do not compete in other respects with locally controlled full-service banks, Del.Code Ann., Tit. 5, § 801 et seq. (Supp.1984).Beginning with Massachusetts in December, 1982, several States have enacted statutes lifting the Douglas Amendment ban on interstate acquisitions on a reciprocal basis within their geographic regions. The Massachusetts Act specifically provides that an out-of-state bank holding company with its principal place of business in one of the other New England States (Connecticut, Maine, New Hampshire, Rhode Island, and Vermont), which is not directly or indirectly controlled by another corporation with its principal place of business located outside of New England, may establish or acquire a Massachusetts-based bank or bank holding company, provided that the other New England State accords equivalent reciprocal privileges to Massachusetts banking organizations. Mass.Gen.Laws Ann., ch. 167A, § 2 (West 1984). In June, 1983, Connecticut followed suit by adopting a substantially similar statute. 1983 Conn.Pub. Acts 83-411.The other New England States have taken different courses or have not acted. Rhode Island, in May, 1983, authorized acquisition of local banks by out-of-state bank holding companies on a reciprocal basis similarly limited to the New England region, but this geographic limitation will expire on June 30, 1986, after which the authorization will extend nationwide, subject only to the reciprocity requirement. R.I.Gen.Laws § 19-30-1 et seq. (Supp.1984). Since February, 1984, Maine has permitted banking organizations from all other States to acquire local banks without any Page 472 U. S. 165 reciprocity requirement. Me.Rev.Stat.Ann., Tit. 9-B, § 1013 (Supp.1984-1985). At the other extreme, New Hampshire and Vermont have not enacted any statute releasing the Douglas Amendment's ban on interstate bank acquisitions.One predictable effect of the regionally restrictive statutes will apparently be to allow the growth of regional multistate bank holding companies which can compete with the established banking giants in New York, California, Illinois, and Texas. See 740 F.2d 203, 209, and n. 16 (1984). The Massachusetts and Connecticut statutes have prompted at least 15 other States to consider legislation which, according to the Federal Reserve Board, would establish interstate banking regions in all parts of the country. 70 Fed.Res.Bull. 374, 375-376 (1984). At least seven of these States have already enacted the necessary statutes.Two months after Connecticut passed its statute, BNE applied to the Board for approval of its merger with respondent CBT Corporation (CBT), a Connecticut bank holding company, and thereby to acquire indirectly the Connecticut Bank and Trust Company, N.A., of Hartford, Connecticut. Soon thereafter HNC applied to the Board for approval of the acquisition of Arltru Bank Corporation (Arltru), a Massachusetts bank holding company which owns the Arlington Trust Company, a bank located in Lawrence, Massachusetts. Finally, BBC applied to the Board for approval of the acquisition of the successor by merger to Colonial Bancorp, Inc., a Connecticut bank holding company, by which it would acquire Colonial Bank of Waterbury, Connecticut.Citicorp offers financial services to consumers and businesses nationally through its bank and nonbank subsidiaries. In response to the Board's invitation for comments from interested persons on these three proposed acquisitions, Citicorp submitted comments opposing all three of them. Northeast owns petitioner Union Trust Company, a Connecticut bank that competes directly with banks owned by CBT, Page 472 U. S. 166 HNC, and Colonial. In addition, Bank of New York Corporation has agreed to acquire Northeast if Connecticut or the United States enacts the necessary enabling legislation. Northeast and Union Trust submitted comments opposing BNE's application to acquire CBT.The petitioners challenged the applications in part on the ground that the Douglas Amendment did not authorize them, and in part on the grounds that the Massachusetts and Connecticut statutes, by discriminating against non-New England bank holding companies, violated the Commerce, Compact, and Equal Protection Clauses of the Federal Constitution. They claimed. therefore, that the proposed interstate acquisitions were not authorized by valid state statutes, as required by the Douglas Amendment. The Board rejected these arguments. It first determined that the BNE-CBT and BBC-Colonial acquisitions were specifically authorized by the Connecticut statute and the HNC-Arltru acquisition was specifically authorized by the Massachusetts statute, and therefore that the Douglas Amendment would not prevent the Board from approving any of the three proposed transactions.The Board then rejected the constitutional challenge to the two state statutes. In doing so, it noted that it would hold a state statute unconstitutional only if there was "clear and unequivocal evidence" of its unconstitutionality. 70 Fed.Res.Bull. 353, 354 (1984); id. at 376; 70 Fed.Res.Bull. 524, 525-526 (1984). While stating that "the issue is not free from doubt," it concluded that this standard had not been met. 70 Fed. Res. Bull. at 376-377. Interpreting the statutory language and the legislative history of the Douglas Amendment, it determined that"the Douglas Amendment should be read as a renunciation of federal interest in regulating the interstate acquisition of banks by bank holding companies."Id. at 380. This renunciation of federal interest eliminated any objection to the statutes under the Compact Clause or dormant Commerce Clause. Page 472 U. S. 167The Board also found nothing in the history of the Amendment to suggest that"the states were to be permitted only to choose between not allowing out-of-state bank holding companies to enter and allowing completely free entry."Id. at 386. The Board disposed of the equal protection challenge by reasoning that the regional restriction in the two statutes was "rationally related to an attempt to maintain a banking system responsive to local needs in New England." Id. at 381. The Board then analyzed the proposed transactions in light of the relevant statutory considerations set out in 12 U.S.C. §§ 1842(c) and 1843(c)(8), and approved the applications.Pursuant to 12 U.S.C. § 1848, which provides that "[a]ny party aggrieved by an order of the Board" may seek review in a federal court of appeals, and § 1860, which permits prospective competitors to be aggrieved parties under § 1848, Citibank, Northeast, and Union Trust petitioned the Court of Appeals for the Second Circuit to review the Board's order approving the BNE-CBT acquisition. Citibank also petitioned for review of the HNC-Arltru acquisition, and Northeast and Union Trust were permitted to intervene. These petitions were consolidated and the acquisitions stayed pending expedited review. Meanwhile, the Board stayed its order approving the BBC-Colonial acquisition, and the Court of Appeals consolidated a petition filed by Citicorp for review of that transaction with the two other pending review petitions. The court also permitted BBC, BNE, CBT, HNC, the State of Connecticut, and the Commonwealth of Massachusetts to intervene. The Court of Appeals affirmed the Board's orders approving the three applications in all respects. 740 F.2d 203 (1984). It agreed with the Board's determination that the Connecticut and Massachusetts statutes satisfied the terms of the Douglas Amendment, and it then rejected challenges to the Board's orders under the Commerce Clause, the Compact Clause, and the Equal Protection Clause. The Court of Appeals stayed its mandate Page 472 U. S. 168 and ordered that the status quo be maintained pending disposition by this Court.The Douglas AmendmentThe Douglas Amendment to the BHCA prohibits the Board from approving the application of a bank holding company or a bank located in one State to acquire a bank located in another State, or substantially all of its assets, unless the acquisition"is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication."§ 1842(d). Clearly the proposed acquisitions with which we deal in this case must be consistent with the Douglas Amendment, or they are invalid as a matter of federal statutory law. If the Massachusetts and Connecticut statutes allowing regional acquisitions are not the type of state statutes contemplated by the Douglas Amendment, they would not lift the ban imposed by the general prohibition of the Douglas Amendment. While petitioners blend together arguments about the meaning of the Douglas Amendment with arguments about the effect of the Commerce Clause, U.S.Const., Art. I, § 8, cl. 3, we think the contentions are best treated separately.The Board resolved the statutory issue in favor of the state statutes, concluding that they were the sort of laws contemplated by the Douglas Amendment. While the Board apparently does not consider itself expert on any constitutional issues raised, it is nonetheless an authoritative voice on the meaning of a federal banking statute. Securities Industry Assn. v. Board of Governors of Federal Reserve System, 468 U. S. 207 (1984). The Board may have applied a higher standard than was necessary when it analyzed the Douglas Amendment to see whether there was a "clear authorization" for selective lifting of the ban, such as the Massachusetts and Connecticut statutes undertake to do. Whether or not so stringent a standard was applicable, we think the Board was correct in concluding that it was, in fact, met in this case. Page 472 U. S. 169The language of the Douglas Amendment plainly permits States to lift the federal ban entirely, as has been done by Maine. It does not specifically indicate that a State may partially lift the ban, for example in limited circumstances, for special types of acquisitions, or for purchasers from a certain geographic region. On the other hand, it also does not specifically indicate that a State is allowed only two alternatives: leave the federal ban in place or lift it completely. The Board concluded that the language "does not appear, on its face, to authorize discrimination" by region or "to meet the stringent test of explicitness laid down by" this Court in the dormant Commerce Clause cases. 70 Fed.Res.Bull. at 384. We need not resolve this issue, because we agree with the Board that the legislative history of the Amendment supplies a sufficient indication of Congress' intent.At the time of the BHCA, interstate branch banking was already prohibited by the McFadden Act. 12 U.S.C. § 36(c). The bank holding company device, however, had been created to get around this restriction. A holding company would purchase banks in different localities both within and without a State, and thereby provide the equivalent of branch banking. One of the major purposes of the BHCA was to eliminate this loophole. H.R.Rep. No. 609, 84th Cong., 1st Sess., 2-6 (1955); 101 Cong.Rec. 4407 (1955) (remarks of Rep. Wier); id. at 8028-8029 (remarks of Rep. Patman); 102 Cong.Rec. 6858-6859 (1956) (remarks of Sen. Douglas). As enacted by the House in 1955, the BHCA contained a flat ban on interstate bank acquisitions. The legislative history from the House makes it clear that the policies of community control and local responsiveness of banks inspired this flat ban. See 101 Cong.Rec. A2454 (1955) (remarks of Rep. Wier); id. at 8030-8031 (remarks of Rep. Rains); H.R.Rep. No. 609, supra, at 2-6.The Douglas Amendment was added on the floor of the Senate. Its entire legislative history is confined to the Senate debate. In such circumstances, the comments of individual Page 472 U. S. 170 legislators carry substantial weight, especially when they reflect a consensus as to the meaning and objectives of the proposed legislation, though not necessarily the wisdom of that legislation. The instant case is not a situation where the comments of an individual legislator, even a sponsor, is at odds with the language of the statute or other traditionally more authoritative indicators of legislative intent, such as the conference or committee reports.The bill reported out by the Senate Committee on Banking and Currency permitted interstate bank acquisitions conditioned only on approval by the Federal Reserve Board. This approach apparently was favored by many of the large bank holding companies which sought further expansion, see, e.g., Control of Bank Holding Companies, 1955: Hearings on S. 880 et al. before the Subcommittee of the Senate Committee on Banking and Currency, 84th Cong., 1st Sess., 132, 136 (1955) (testimony of Ellwood Jenkins, First Bank Stock Corp.), 298-299 (Baldwin Maull, Marine Midland Corp.), 320 (Cameron Thomson, Northwest Bancorporation), cf. 375, 385 (Frank N. Belgrano, Jr., Transamerica Corp.), and by some who thought the total ban in the House bill offensive to States' rights, see 102 Cong.Rec. 6752 (1956) (remarks of Sen. Robertson, floor manager of Committee bill, quoting Sen. Maybank).The Douglas Amendment was a compromise between the two extremes that also accommodated the States' rights concern:"Our amendment would prohibit bank holding companies from purchasing banks in other States unless such purchases by out-of-State holding companies were specifically permitted by law in such States."Id. at 6860 (remarks of Sen. Douglas). Accord, ibid. (remarks of Sen. Bennett in opposition to the Amendment).Of central concern to this litigation, the Douglas compromise did not simply leave to each State a choice one way or Page 472 U. S. 171 the other -- either to permit or bar interstate acquisitions of local banks -- but to allow each State flexibility in its approach. Senator Douglas explained that, under his amendment, bank holding companies would be permitted to acquire banks in other States "only to the degree that State laws expressly permit them." Id. at 6858. Petitioners contend that, by the phrase "to the degree," Senator Douglas intended merely a quantitative reference to the number of States which might lift the ban, and did not mean that a State could partially lift the ban. Petitioners' contention, however, is refuted by the close analogy drawn by Senator Douglas between his amendment and the McFadden Act, 12 U.S.C. § 36(c):"The organization of branch banks proceeded very rapidly in the 1920's, and, to check their growth, various States passed laws limiting, and in some cases preventing it, as in the case of Illinois. National banks had previously been implicitly prohibited from opening branches, and there was a strong movement to remove this prohibition and completely open up the field for the national banks. This, however, was not done. Instead, by the McFadden Act and other measures, national banks have been permitted to open branches only to the degree permitted by State laws and State authorities.""I may say that what our amendment aims to do is to carry over into the field of holding companies the same provisions which already apply for branch banking under the McFadden Act -- namely, our amendment will permit out-of-State holding companies to acquire banks in other States only to the degree that State laws expressly permit them; and that is the provision of the McFadden Act."Ibid. See id. at 6860.In enacting the McFadden Act in 1927, Congress relaxed federal restrictions on branch banking by national banks, but at the same time subjected them to the same branching Page 472 U. S. 172 restrictions imposed by the States on state banks. First National Bank v. Walker Bank & Trust Co., 385 U. S. 252, 385 U. S. 258 (1966). Congress intended "to leave the question of the desirability of branch banking up to the States," ibid., and to permit branch banking by national banks "in only those States the laws of which permit branch banking, and only to the extent that the State laws permit branch banking.'" Id. at 259 (quoting Sen. Glass, 76 Cong.Rec. 2511 (1933)). The McFadden Act did not offer the States an all-or-nothing choice with respect to branch banking. As Senator Douglas observed, some States had limited intrastate branching by state banks, and others like Illinois had prohibited it altogether.This variative approach to intrastate branching was nicely illustrated at the time by the structure in New York, which Senator Douglas described as follows:"In New York, the State is divided into 10 zones. Branch banking is permitted within each of the zones, but a bank cannot have branches in another zone."102 Cong.Rec. 6858 (1956). At the same time, Pennsylvania permitted branching in contiguous counties. Upper Darby National Bank v. Myers, 386 Pa. 12, 124 A.2d 116 (1956). In view of this analogy to the McFadden Act and Senator Douglas' explanation of that Act, there can be no other conclusion but that Congress contemplated that some States might partially lift the ban on interstate banking without opening themselves up to interstate banking from everywhere in the Nation.Not only are the Massachusetts and Connecticut statutes consistent with the Douglas Amendment's anticipation of differing approaches to interstate banking, but they are also consistent with the broader purposes underlying the BHCA as a whole and the Douglas Amendment in particular to retain local, community-based control over banking. Faced with growing competition from nonbank financial services that are not confined within state lines, these States sought an alternative that allowed expansion and growth of local Page 472 U. S. 173 banks without opening their borders to unimpeded interstate banking. The Connecticut General Assembly established a Commission in 1979 to study the problem. It concluded:"Both at the national and state levels, the philosophy underlying our structure of bank regulation has been to promote a pluralistic banking system -- a system comprised of many units, rather than a highly concentrated system made up of a few large banks. The promotion of local ownership and control of banks has, as one of its objectives, the preservation of a close relationship between those in our communities who need credit and those who provide credit. To allow the control of credit that is essential for the health of our state economy to pass to hands that are not immediately responsive to the interests of Connecticut citizens and businesses would not, we believe, serve our state well. Similarly, to expose our smaller banks to the rigors of unlimited competition from large out-of-state banking organizations -- particularly at a time when deregulation of banking products at the federal level is already putting strains on the resources of smaller banks -- would not be wise."Report to the General Assembly of the State of Connecticut (Jan. 5, 1983), 4 App. in No. 84-4047 (CA2), pp. 1230, 1240-1241. Rather, the Commission proposed "an experiment in regional banking" as a first step toward full interstate banking which"would afford the legislature an opportunity to make its own calculus of the benefits and detriments that might result from a broader program of interstate banking."Id. at 1241-1242. The Connecticut General Assembly adopted the Commission's recommendations, and we believe that Connecticut's approach is precisely what was contemplated by Congress when it adopted the Douglas Amendment.We hold that the Connecticut and Massachusetts statutes are of the kind contemplated by the Douglas Amendment to lift its bar against interstate acquisitions. Page 472 U. S. 174Petitioners contend that the regional limitation in the Massachusetts and Connecticut statutes burdens commerce from without the region while permitting a free flow of commerce among the States within the region. They provide numerous citations to prove that one of the principal purposes of the Framers of the Constitution was to break up and forestall precisely this type of economic "Balkanization" into confederations of States to the detriment of the welfare of the Union as a whole. See, e.g., H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 336 U. S. 533 (1949); Hughes v. Oklahoma, 441 U. S. 322, 441 U. S. 325-326 (1979); The Federalist Nos. 7 and 22, pp. 62-63, 143-145 (Rossiter ed.1961). There can be little dispute that the dormant Commerce Clause would prohibit a group of States from establishing a system of regional banking by excluding bank holding companies from outside the region if Congress had remained completely silent on the subject. Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 447 U. S. 39-44 (1980). Nor can there be serious question that an individual State acting entirely on its own authority would run afoul of the dormant Commerce Clause if it sought to comprehensively regulate acquisitions of local banks by out-of-state holding companies. Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982).But that is not our case. Here, the commerce power of Congress is not dormant, but has been exercised by that body when it enacted the Bank Holding Company Act and the Douglas amendment to the Act. Congress has authorized by the latter amendment the Massachusetts and Connecticut statutes which petitioners challenge as violative of the Commerce Clause. When Congress so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause. Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U. S. 648, 451 U. S. 653-654 (1981); White v. Massachusetts Council of Construction Employers, Inc., 460 U. S. 204 (1983); cf. 467 U. S. Inc. v. Wunnicke, Page 472 U. S. 175 467 U. S. 82 (1984). Petitioners' Commerce Clause attack on the challenged acquisitions therefore fails.Compact ClausePetitioners maintain that the Massachusetts and Connecticut statutes constitute a compact to exclude non-New England banking organizations which violates the Compact Clause, U.S.Const., Art. I, § 10, cl. 3, because Congress has not specifically approved it. We have some doubt as to whether there is an agreement amounting to a compact. The two statutes are similar, in that they both require reciprocity and impose a regional limitation, both legislatures favor the establishment of regional banking in New England, and there is evidence of cooperation among legislators, officials, bankers, and others in the two States in studying the idea and lobbying for the statutes. But several of the classic indicia of a compact are missing. No joint organization or body has been established to regulate regional banking or for any other purpose. Neither statute is conditioned on action by the other State, and each State is free to modify or repeal its law unilaterally. Most importantly, neither statute requires a reciprocation of the regional limitation. Bank holding companies based in Maine, which has no regional limitation, and Rhode Island, which will drop the regional limitation in 1986, are permitted by the two statutes to acquire Massachusetts and Connecticut banks. These two States are included in the ostensible compact under petitioners' theory, yet one does not impose the exclusion to which petitioners so strenuously object and the other plans to drop it after two years.But even if we were to assume that these state actions constitute an agreement or compact, not every such agreement violates the Compact Clause. Virginia v. Tennessee, 148 U. S. 503 (1893)."The application of the Compact Clause is limited to agreements that are 'directed to the formation of any combination tending to the increase of political power in Page 472 U. S. 176 the States, which may encroach upon or interfere with the just supremacy of the United States.'"New Hampshire v. Maine, 426 U. S. 363, 426 U. S. 369 (1976), quoting Virginia v. Tennessee, supra, at 148 U. S. 519.See United States Steel Corp. v. Multistate Tax Comm'n, 434 U. S. 452, 434 U. S. 471 (1978).In view of the Douglas Amendment to the BHCA, the challenged state statutes which comply with that Act cannot possibly infringe federal supremacy. To the extent that the state statutes might conflict in a particular situation with other federal statutes, such as the provision under which the Federal Deposit Insurance Corporation will arrange for the acquisition of failing banks by out-of-state bank holding companies, 12 U.S.C. § 1823(f), they would be preempted by those statutes, and therefore any Compact Clause argument would be academic. Petitioners also assert that the alleged regional compact impermissibly offends the sovereignty of sister States outside of New England. We do not see how the statutes in question either enhance the political power of the New England States at the expense of other States or have an "impact on our federal structure." United States Steel Corp. v. Multistate Tax Comm'n, supra, at 434 U. S. 471, 473.Equal Protection ClausePetitioners argued before the Board and the Court of Appeals that the Massachusetts and Connecticut statutes violated the Equal Protection Clause, U.S.Const., Amdt. 14, § 2, by excluding bank holding companies from some States while admitting those from others. This claim was abandoned in their petition for certiorari and their briefs on the merits, but, after our decision in Metropolitan Life Insurance Co. v. Ward, 470 U. S. 869 (1985), petitioners filed a supplemental brief urging us to consider the equal protection issue. Because the issue was fully reviewed by the Board and the Court of Appeals, and because it would undoubtedly Page 472 U. S. 177 cloud other pending applications for acquisitions by bank holding companies, we elect to decide it.In Metropolitan Life, we held that encouraging the formation of new domestic insurance companies within a State and encouraging capital investment in the State's assets and governmental securities were not, standing alone, legitimate state purposes which could permissibly be furthered by discriminating against out-of-state corporations in favor of local corporations. There we said:"This case does not involve or question, as the dissent suggests, post at 900-901, the broad authority of a State to promote and regulate its own economy. We hold only that such regulation may not be accomplished by imposing discriminatorily higher taxes on nonresident corporations solely because they are nonresidents."Id. at 882, n. 10.Here the States in question -- Massachusetts and Connecticut -- are not favoring local corporations at the expense of out-of-state corporations. They are favoring out-of-state corporations domiciled within the New England region over out-of-state corporations from other parts of the country, and to this extent their laws may be said to "discriminate" against the latter. But with respect to the business of banking, we do not write on a clean slate; recently in Lewis v. BT Investment Managers, Inc., 447 U.S. at 447 U. S. 38, we said that "banking and related financial activities are of profound local concern." This statement is a recognition of the historical fact that our country traditionally has favored widely dispersed control of banking. While many other western nations are dominated by a handful of centralized banks, we have some 15,000 commercial banks attached to a greater or lesser degree to the communities in which they are located. The Connecticut legislative Commission that recommended adoption of the Connecticut statute in question considered Page 472 U. S. 178 interstate banking on a regional basis to combine the beneficial effect of increasing the number of banking competitors with the need to preserve a close relationship between those in the community who need credit and those who provide credit. 4 App. in No. 84-4047 (CA2), pp. 1239-1241. The debates in the Connecticut Legislature preceding the enactment of the Connecticut law evince concern that immediate acquisition of Connecticut banks by holding companies headquartered outside the New England region would threaten the independence of local banking institutions. See, e.g., App. to Pet. for Cert. A157-A160. No doubt similar concerns motivated the Massachusetts Legislature.We think that the concerns which spurred Massachusetts and Connecticut to enact the statutes here challenged, different as they are from those which motivated the enactment of the Alabama statute in Metropolitan, meet the traditional rational basis for judging equal protection claims under the Fourteenth Amendment. Barry v. Barchi, 443 U. S. 55, 443 U. S. 67 (1979); Vance v. Bradley, 440 U. S. 93, 440 U. S. 97 (1979).We hold that the state statutes here in question comply with the Douglas Amendment, and that they do not violate the Commerce Clause, the Compact Clause, or the Equal Protection Clause of the United States Constitution. The judgment of the Court of Appeals is thereforeAffirmed

U.S. Supreme CourtNortheast Bancorp, Inc. v. Governors, FRS, 472 U.S. 159 (1985)Northeast Bancorp, Inc. v. Board of Governorsof the Federal Reserve SystemNo. 84-363Argued April 15, 1985Decided June 10, 1985472 U.S. 159SyllabusThe Bank Holding Company Act of 1956 (BHCA) requires a bank holding company to obtain the approval of the Federal Reserve Board (Board) before it may acquire a bank. Section 3(d) of the Act (known as the Douglas Amendment) prohibits the Board from approving an application of a bank holding company located in one State to acquire a bank located in another State unless the acquisition"is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication."Substantially similar Connecticut and Massachusetts statutes provide that an out-of-state bank holding company with its principal place of business in one of the other New England States may acquire an in-state bank, provided that the other State accords equivalent reciprocal privileges to the enacting State's banking organizations. Certain bank holding companies (respondents here) applied to the Board as out-of-state companies for purposes of either the Connecticut or Massachusetts statute, seeking approval for acquisitions of banks located in one or the other of those States. Petitioners, prospective competitors, opposed the proposed acquisitions in proceedings before the Board, contending that the acquisitions were not authorized by the Douglas Amendment and that, if they were, the applicable Connecticut or Massachusetts statute, by discriminating against non-New England out-of-state bank holding companies, violated the Commerce, Compact, and Equal Protection Clauses of the Federal Constitution. Rejecting petitioners' contentions, the Board approved the applications, and the Court of Appeals, in consolidated review proceedings, affirmed.Held:1. The Connecticut and Massachusetts statutes are of the kind contemplated by the Douglas Amendment to lift its ban on interstate acquisitions. The Amendment's language plainly permits States to lift the federal ban entirely, and although it does not specifically indicate that a State may partially lift the ban, neither does it specifically indicate that a State is allowed only the alternatives of leaving the federal ban in place or lifting it completely. The Amendment's legislative history indicates Page 472 U. S. 160 that Congress intended to allow each State flexibility in its approach, contemplating that some States might partially lift the ban on interstate banking without opening themselves up to interstate banking from everywhere in the Nation. Moreover, the Connecticut and Massachusetts statutes, by allowing only regional acquisitions, are consistent with the Amendment's and the BHCA's purpose of retaining local, community-based control over banking. Pp. 472 U. S. 168-173.2. The Connecticut and Massachusetts statutes do not violate the Commerce Clause. Congress' commerce power is not dormant here, but has been exercised by enactment of the BHCA and the Douglas Amendment, authorizing the challenged state statutes. State actions that Congress plainly authorizes are invulnerable to constitutional attack under the Commerce Clause. Pp. 472 U. S. 174-175.3. The challenged state statutes do not violate the Compact Clause, which provides that no State, without Congress' consent, shall enter into an agreement or compact with another State. Even assuming, arguendo, that the state statutes (along with statutes of other New England States under petitioners' theory) constitute an agreement or compact,"application of the Compact Clause is limited to agreements that are""directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States."New Hampshire v. Maine, 426 U. S. 363, 426 U. S. 369, quoting Virginia v. Tennessee, 148 U. S. 503, 148 U. S. 519. In view of the Douglas Amendment, the challenged state statutes, which comply with the BHCA, cannot possibly infringe federal supremacy. Nor do the state statutes in question either enhance the political power of the New England States at the expense of other States or have an impact on the federal structure. Pp. 472 U. S. 175-176.4. The Connecticut and Massachusetts statutes do not violate the Equal Protection Clause. The statutes favor out-of-state corporations within the New England region over corporations from other parts of the country. However, Connecticut and Massachusetts, in enacting their statutes, considered that interstate banking on a regional basis combined the beneficial effect of increasing the number of banking competitors with the need to preserve a close relationship between those in the community who need credit and those who provide credit, and that acquisition of in-state banks by holding companies headquartered outside the New England region would threaten the independence of local banking institutions. These concerns meet the traditional rational basis for judging equal protection claims. Metropolitan Life Ins. Co. v. Ward, 470 U. S. 869, distinguished. Pp. 472 U. S. 176-178.740 F.2d 203, affirmed. Page 472 U. S. 161REHNQUIST, J., delivered the opinion of the Court, in which all other Members joined except POWELL, J., who took no part in the decision of the case. O'CONNOR, J., filed a concurring opinion, post, p. 472 U. S. 178. Page 472 U. S. 162

1984_83-1911

JUSTICE STEVENS delivered the opinion of the Court.The question is whether petitioners may be permanently enjoined from publishing nonpersonalized investment advice and commentary in securities newsletters because they are not registered as investment advisers under § 203(c) of the Investment Advisers Act of 1940 (Act), 54 Stat. 850, 15 U.S.C. § 80b-3(c).Christopher Lowe is the president and principal shareholder of Lowe Management Corporation. From 1974 until 1981, the corporation was registered as an investment adviser under the Act. [Footnote 1] During that period, Lowe was convicted of misappropriating funds of an investment client, of engaging in business as an investment adviser without filing a registration application with New York's Department of Law, of tampering with evidence to cover up fraud of an investment client, and of stealing from a bank. [Footnote 2] Consequently, on May 11, 1981, the Securities and Exchange Commission (Commission), after a full hearing before an Administrative Law Judge, entered an order revoking the registration of the Lowe Management Corporation, and ordering Lowe not to associate thereafter with any investment adviser.In fashioning its remedy, the Commission took into account the fact that petitioners "are now solely engaged in the business of publishing advisory publications." The Commission noted that, unless the registration was revoked, petitioners Page 472 U. S. 184 would be "free to engage in all aspects of the advisory business," and that even their publishing activities afforded them "opportunities for dishonesty and self-dealing." [Footnote 3]A little over a year later, the Commission commenced this action by filing a complaint in the United States District Court for the Eastern District of New York, alleging that Lowe, the Lowe Management Corporation, and two other corporations [Footnote 4] were violating the Act, and that Lowe was violating the Commission's order. The principal charge in the complaint was that Lowe and the three corporations (petitioners) were publishing two investment newsletters and soliciting subscriptions for a stock-chart service. The complaint alleged that, through those publications, the petitioners were engaged in the business of advising others"as to the advisability of investing in, purchasing, or selling securities . . . and as a part of a regular business . . . issuing reports concerning securities. [Footnote 5]"Because none of the petitioners was registered or exempt from registration under the Act, the use of the mails in connection with the advisory business allegedly violated § 203(a) of the Act. The Commission prayed for a permanent injunction restraining the further distribution of petitioners' investment advisory publications; Page 472 U. S. 185 for a permanent injunction enforcing compliance with the order of May 11, 1981; and for other relief. [Footnote 6]Although three publications are involved in this litigation, only one need be described. A typical issue of the Lowe Investment and Financial Letter contained general commentary about the securities and bullion markets, reviews of market indicators and investment strategies, and specific recommendations for buying, selling, or holding stocks and bullion. The newsletter advertised a "telephone hotline" over which subscribers could call to get current information. The number of subscribers to the newsletter ranged from 3,000 to 19,000. It was advertised as a semimonthly publication, but only eight issues were published in the 15 months after the entry of the 1981 order. [Footnote 7]Subscribers who testified at the trial criticized the lack of regularity of publication, [Footnote 8] but no adverse evidence concerning the quality of the publications was offered. There was no evidence that Lowe's criminal convictions were related to the publications; [Footnote 9] no evidence that Lowe had engaged in any Page 472 U. S. 186 trading activity in any securities that were the subject of advice or comment in the publications; and no contention that any of the information published in the advisory services had been false or materially misleading. [Footnote 10]For the most part, the District Court denied the Commission the relief it requested. 556 F. Supp. 1359, 1371 (EDNY 1983). The court did enjoin petitioners from giving information to their subscribers by telephone, individual letter, or in person, but it refused to enjoin them from continuing their publication activities or to require them to disgorge any of the earnings from the publications. [Footnote 11] The District Court acknowledged that the face of the statute did not differentiate between persons whose only advisory activity is the "publication of impersonal investment suggestions, reports and analyses" and those who rendered person-to-person advice, but concluded that constitutional considerations suggested the need for such a distinction. [Footnote 12] After determining that petitioners' publications were protected by the First Amendment, the District Court held that the Act must be construed to allow a publisher who is willing to comply with the existing reporting and disclosure requirements to register for the limited purpose of publishing such material and to engage in such publishing. [Footnote 13]A splintered panel of the Court of Appeals for the Second Circuit reversed. 725 F.2d 892 (1984). The majority first Page 472 U. S. 187 held that petitioners were engaged in business as "investment advisers" within the meaning of the Act. It concluded that the Act does not distinguish between person-to-person advice and impersonal advice given in printed publications. [Footnote 14] Rather, in its view, the key statutory question was whether the exclusion in § 202(a)(11)(D), 15 U.S.C. § 80b-2(a)(11)(D), for "the publisher of any bona fide newspaper, news magazine, or business or financial publication of general and regular circulation" applied to the petitioners. Relying on its decision in SEC v. Wall Street Transcript Corp., 422 F.2d 1371, cert. denied, 398 U.S. 958 (1970), the Court of Appeals concluded that the exclusion was inapplicable. [Footnote 15]Next, the Court of Appeals rejected petitioners' constitutional claim, reasoning that this case involves "precisely the kind of regulation of commercial activity permissible under the First Amendment." [Footnote 16] Moreover, it held that Lowe's history of criminal conduct while acting as an investment adviser justified the characterization of his publications "as potentially deceptive commercial speech." [Footnote 17] The Court of Appeals reasoned that a ruling that petitioners"may not sell their views as to the purchase, sale, or holding of certain securities is no different from saying that a disbarred lawyer may not sell legal advice. [Footnote 18]"Finally, the court noted that its holding was limited to a prohibition against selling advice to clients about specific securities. [Footnote 19] Thus, the Court of Page 472 U. S. 188 Appeals apparently assumed that petitioners could continue publishing their newsletters if their content was modified to exclude any advice about specific securities. [Footnote 20]One judge concurred separately, although acknowledging his agreement with the court's opinion. [Footnote 21] The dissenting judge agreed that Lowe may not hold himself out as a registered investment adviser and may not engage in any fraudulent activity in connection with his publications, but concluded that the majority had authorized an invalid prior restraint on the publication of constitutionally protected speech. To avoid the constitutional question, he would have adopted the District Court's construction of the Act. [Footnote 22]IWe granted certiorari to consider the important constitutional question whether an injunction against the publication Page 472 U. S. 189 and distribution of petitioners' newsletters is prohibited by the First Amendment. 469 U.S. 815 (1984). [Footnote 23] Petitioners contend that such an injunction strikes at the very foundation of the freedom of the press by subjecting it to license and censorship, see, e.g., Lovell v. City of Griffin, 303 U. S. 444, 303 U. S. 451 (1938). Brief for Petitioners 15-19. In response, the Commission argues that the history of abuses in the securities industry amply justified Congress' decision to require the registration of investment advisers, to regulate their professional activities, and, as an incident to such regulation, to prohibit unregistered and unqualified persons from engaging in that business. Brief for Respondent 10; cf. Konigsberg v. State Bar of California, 366 U. S. 36, 366 U. S. 50-51 (1961). In reply, petitioners acknowledge that person-to-person communication in a commercial setting may be subjected to regulation that would be impermissible in a public forum, cf. Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 436 U. S. 455 (1978), but contend that the regulated class -- investment advisers -- may not be so broadly defined as to encompass the distribution of impersonal investment advice and commentary in a public market. Reply Brief for Petitioners 1-4.In order to evaluate the parties' constitutional arguments, it is obviously necessary first to understand, as precisely as possible, the extent to which the Act was intended to regulate Page 472 U. S. 190 the publication of investment advice and the reasons that motivated Congress to authorize such regulation. Moreover, in view of the fact that we should "not decide a constitutional question if there is some other ground upon which to dispose of the case," [Footnote 24] and the further fact that the District Court and the dissenting judge in the Court of Appeals both believed that the case should be decided on statutory grounds, a careful study of the statute may either eliminate, or narrowly limit, the constitutional question that we must confront. We therefore begin with a review of the background of the Act, with a particular focus on the legislative history describing the character of the profession that Congress intended to regulate.IIAs we observed in SEC v. Capital Gains Research Bureau, Inc., the"Investment Advisers Act of 1940 was the last in a series of acts designed to eliminate certain abuses in the securities industry, abuses which were found to have contributed to the stock market crash of 1929 and the depression of the 1930's. [Footnote 25]"The Act had its genesis in the Public Utility Holding Company Act of 1935, which "authorized and directed" the Commissionto make a study of the functions and activities of investment trusts and investment companies . . . and to report the results of its study and its recommendations to the Congress on or before January 4, 1937. [Footnote 26]Pursuant to this instruction, the Commission transmitted to Congress its study on investment counsel, investment management, investment supervisory, and investment advisory services. [Footnote 27] Page 472 U. S. 191 The Report focused on "some of the more important problems of these investment counsel organizations;" [Footnote 28] significantly, the Report stated that it"was intended to exclude any person or organization which was engaged in the business of furnishing investment analysis, opinion, or advice solely through publications distributed to a list of subscribers, and did not furnish specific advice to any client with respect to securities. [Footnote 29]"The Report traced the history and growth of investment counsel, noting that the profession did not emerge until after World War 1. [Footnote 30] In the 1920's, "a distinct class of persons . . . held themselves out as giving only personalized investment advisory service"; rapid growth began in 1929, and markedly increased in the mid-1930's in response"to the demands of the investing public, which required supervision of its security investments after its experience during the depression years. [Footnote 31] "Page 472 U. S. 192Regarding the functions of investment counselors, the Report stated that"[s]ome of the representatives of investment counsel firms urged that the primary function of investment counselors was""to render to clients, on a personal basis, competent, unbiased, and continuous advice regarding the sound management of their investments. [Footnote 32]"Nevertheless, it noted that one investment counselor conceded:"[Y]ou have a gradation from individuals who are professed tipsters and do not make any pretense of being anything else, all the way up the scale to the type of individual who, as you say, desires to give the impartial scientific professional advice to persons who are trying to plan their economic situation in the light of accomplishing various results, making provision for old age, education, and so forth. However, you can readily see . . . that a very significant part of that problem, as far as we are concerned, and possibly the most vital one, is, shall we say, the individuals on the fringes. . . . [Footnote 33]"Representatives of the industry viewed the functions of investment counselors slightly differently, concluding that they should serve"individuals and institutions with substantial funds who require continuous supervision of their investments and a program of investment to cover their entire economic Page 472 U. S. 193 needs. [Footnote 34]"Turning to the problems of investment counselors, the Report concluded that they fell within two categories:"(a) the problem of distinguishing between bona fide investment counselors and 'tipster' organizations; and (b) those problems involving the organization and operation of investment counsel institutions. [Footnote 35] "Page 472 U. S. 194The Commission's work"culminated in the preparation and introduction by Senator Wagner of the bill which, with some changes, became the Investment Advisers Act of 1940. [Footnote 36]"Senator Wagner's bill, S. 3580, contained two Titles; the first, concerning investment companies, contained a definition of "investment adviser," [Footnote 37] but the second, concerning investment advisers, did not. After the introduction of S. 3580, a Senate Subcommittee held lengthy hearings at which numerous statements concerning investment advisers Page 472 U. S. 195 were received. [Footnote 38] One witness distinguishing the investment counsel profession from investment firms and businesses, explained:"It is a personal service profession, and depends for its success upon a close personal and confidential relationship between the investment counsel firm and its client. It requires frequent and personal contact of a professional nature between us and our clients. . . .""* * * *" "We must establish with each client a relationship of trust and confidence designed to last over a period of Page 472 U. S. 196 time because economic forces work themselves out slowly. Business and investment cycles last for years, and our investment plans have to be similarly long-range. No investment counsel firm could long remain in business or be of real benefit to clients except through such long-term associations. . . ."". . . Judgment of the client's circumstances and of the soundness of his financial objectives and of the risks he may assume. Judgment is the root and branch of the decisions to recommend changes in a client's security holdings. If the investment counsel profession, as we have described it, could not offer this kind of judgment with its supporting experience and information, it would not have anything to sell that could not be bought in almost any bookstore. . . .""Furthermore, our clients are not unsophisticated in financial matters. They are resourceful men and women of means who are very critical in their examination of our performance. If they disapprove of our activities, they cancel their contracts with us, which eliminates our only source of income.""* * * *" "We are quite clearly not 'hit and run' tipsters, nor do we deal with our clients at arms' length through the advertising columns of the newspapers or the mails; in fact, we regard it as a major defeat if we are unable to have frequent personal contact with a client and with his associates and dependents. We do not publish for general distribution a statistical service or compendium of general economic observations or financial recommendations. To use a hackneyed phrase, our business is 'tailor-made.' [Footnote 39] "Page 472 U. S. 197David Schenker, Chief Counsel of the Commission's Investment Trust Study, summarized the extent of the proposed legislation: "If you have been convicted of a crime, you cannot be an investment counselor and you cannot use the mails to perpetrate a fraud," Senate Hearings 996. Schenker provided the Subcommittee with a significant report [Footnote 40] prepared by the Research Department of the Illinois Legislative Council. Ibid. Referring to possible regulation of investment counselors in the State of Illinois, the report stated in part:"Regulatory statutes concerning investment counselors appear to exempt from their provisions those who furnish advice without remuneration or valuable consideration, apparently because it is thought impracticable to regulate such gratuitous services. Newspapers and journals generally also seem to be excluded, although this is not explicitly stated in the statutes, the exemption apparently being based on general constitutional and legal principles.""* * * * Page 472 U. S. 198" "A particular problem in defining the application of a law regulating investment counselors arises from the existence of individuals and.firms who furnish investment advice solely by means of publications. Insofar as such individuals and firms also render specialized advice to individual clients, they might be subject to any regulatory measure that may be adopted. The question arises, however, as to whether or not services which give the same general advice to all their clients, by means of some circular or other publication, are actually engaged in a type of investment counseling as to which regulation is feasible.""* * * *" "These investment services which function through publications sent to their subscribers, rather than through individualized advice, would present several difficulties not found in regulating investment counselors generally. In the first place, the large number of agencies publishing investment facts and interpretations is well known, and a very large administrative staff would be required to enforce detailed registration. Secondly, such information is supplied both by newspapers and by specialized financial journals and services. The accepted rights of freedom of the press and due process of law might prevent any general regulation, and perhaps also supervision over particular types of publications, even if the advertisements of these publications occasionally quite exaggerate the value of the factual information which is supplied. That the constitutional guarantee of liberty of the press is applicable to publications of all types, and not only to newspapers, has been clearly indicated by the United States Supreme Court [citing Lovell v. City of Griffin, 303 U. S. 444 (1938)]. . . .""* * * *" "To the problem of formulating reasonable and practicable regulations for the factual services must, accordingly, be added the legal and constitutional difficulties inherent in the attempted regulation of any individual or Page 472 U. S. 199 organization functioning primarily by means of published circulars and volumes. However, liberty of the press is not an absolute right, and some types of regulation may be both constitutional and feasible, assuming that regulation of some sort is thought desirable. Such regulation could probably not legally take the form of licensing publications or prohibiting certain types of publications. Regulation of the publishing of investment advice in order to conform with constitutional requirements, would probably have to be confined to punishing, by civil or criminal penalties, those who perpetrate or attempt to perpetrate frauds or other specific acts declared to be contrary to law.""* * * *" "It may be thought desirable specifically to exclude from regulation the publishers of generalized investment information, along with those who furnish economic advice generally. This may be done by carefully defining the term 'investment counselor' so as to exclude""any person or organization which engages in the business of furnishing investment analysis, opinion, or advice solely through publications distributed to a list of subscribers, and not furnishing specific advice to any client with respect to securities, and also persons or organizations furnishing only economic advice, and not advice relating to the purchase or sale of securities. [Footnote 41]"After the Senate Subcommittee hearings on S. 3580, and after meetings attended by representatives of investment adviser firms, a voluntary association of investment advisers, and the Commission, a revised bill, S. 4108, was reported by the Senate Committee on Banking and Currency. In the Report accompanying the revised bill, the Committee on Banking and Currency wrote:"Not only must the public be protected from the frauds and misrepresentations of unscrupulous tipsters and Page 472 U. S. 200 touts, but the bona fide investment adviser must be safeguarded against the stigma of the activities of these individuals. Virtually no limitations or restrictions exist with respect to the honesty and integrity of individuals who may solicit funds to be controlled, managed, and supervised. Persons who may have been convicted or enjoined by courts because of perpetration of securities fraud are able to assume the role of investment advisers.""* * * *" "Title II recognizes that, with respect to a certain class of investment advisers, a type of personalized relationship may exist with their clients. As a consequence, this relationship is a factor which should be considered in connection with the enforcement by the Commission of the provisions of this bill. [Footnote 42]"S. 4108 was introduced before the House of Representatives as H.R. 10065. [Footnote 43] After additional hearings, [Footnote 44] the Page 472 U. S. 201 Committee on Interstate and Foreign Commerce wrote in its Report accompanying the bill:"The essential purpose of Title II of this bill is to protect the public from the frauds and misrepresentations of unscrupulous tipsters and touts and to safeguard the honest investment adviser against the stigma of the activities of these individuals by making fraudulent practices by investment advisers unlawful. The title also recognizes the personalized character of the services of investment advisers, and especial care has been taken in the drafting of the bill to respect this relationship between investment advisers and their clients. [Footnote 45]"(Emphasis added.) Page 472 U. S. 202 The definition of "investment adviser" included in Title II when the Act was passed, 54 Stat. 848-849, is in all relevant respects identical to the definition before the Court today. [Footnote 46] Page 472 U. S. 203IIIThe basic definition of an "investment adviser" in the Act reads as follows:"'Investment adviser' means any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities. . . . [Footnote 47]"Petitioners' newsletters are distributed "for compensation and as part of a regular business," and they contain "analyses or reports concerning securities." Thus, on its face, the Page 472 U. S. 204 basic definition applies to petitioners. The definition, however, is far from absolute. The Act excludes several categories of persons from its definition of an investment adviser, lists certain investment advisers who need not be registered, and also authorizes the Commission to exclude "such other person" as it may designate by rule or order. [Footnote 48]One of the statutory exclusions is for "the publisher of any bona fide newspaper, news magazine or business or financial publication of general and regular circulation." [Footnote 49] Although neither the text of the Act nor its legislative history defines the precise scope of this exclusion, two points seem tolerably clear. Congress did not intend to exclude publications that are distributed by investment advisers as a normal part of the business of servicing their clients. The legislative history plainly demonstrates that Congress was primarily interested in regulating the business of rendering personalized investment advice, including publishing activities that are a normal incident thereto. On the other hand, Congress, plainly sensitive to First Amendment concerns, wanted to make clear that it did not seek to regulate the press through the licensing of nonpersonalized publishing activities.Congress was undoubtedly aware of two major First Amendment cases that this Court decided before the enactment of the Act. The first, Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), established that"liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action."Id. at 283 U. S. 707. In Near, the Court emphatically stated that the "chief purpose" of the press guarantee was "to prevent previous restraints upon publication," id. at 283 U. S. 713, and held that the Minnesota nuisance statute at issue in that case was unconstitutional because it authorized a prior restraint on publication.Almost seven years later, the Court decided Lovell v. City of Griffin, 303 U. S. 444 (1938), a case that was expressly Page 472 U. S. 205 noted by the Commission during the Senate Subcommittee hearings. In striking down an ordinance prohibiting the distribution of literature within the city without a permit, the Court wrote:"We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his 'Appeal for the Liberty of Unlicensed Printing.' And the liberty of the press became initially a right to publish 'without a license what formerly could be published only with one.' While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. . . .""The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated. Near v. Minnesota. . . ."Id. at 303 U. S. 451-452 (emphasis in original) (footnote omitted). The reasoning of Lovell, particularly since the case was cited in the legislative history, supports a broad reading of the exclusion for publishers. [Footnote 50] Page 472 U. S. 206The exclusion itself uses extremely broad language that encompasses any newspaper, business publication, or financial publication provided that two conditions are met. The publication must be "bona fide," and it must be "of regular and general circulation." Neither of these conditions is defined, but the two qualifications precisely differentiate "hit and run tipsters" and "touts" from genuine publishers. Presumably a "bona fide" publication would be genuine in the sense that it would contain disinterested commentary and analysis, as opposed to promotional material disseminated by a "tout." Moreover, publications with a "general and regular" circulation would not include "people who send out bulletins from time to time on the advisability of buying and selling stocks," see Hearings on H.R. 10065, at 87, or "hit and run tipsters." [Footnote 51] Ibid. Because the content of petitioners' newsletters was completely disinterested, and because they were offered to the general public on a regular schedule, they are described by the plain language of the exclusion.The Court of Appeals relied on its opinion in SEC v. Wall Street Transcript Corp., 422 F.2d 1371 (CA2), cert. denied, Page 472 U. S. 207 398 U.S. 958 (1970), to hold that petitioners were not bona fide newspapers, and thus not exempt from the Act's registration requirement. In Wall Street Transcript, the majority held that the"phrase 'bona fide' newspapers . . . means those publications which do not deviate from customary newspaper activities to such an extent that there is a likelihood that the wrongdoing which the Act was designed to prevent has occurred."It reasoned that whether"a given publication fits within this exclusion must depend upon the nature of its practices, rather than upon the purely formal 'indicia of a newspaper' which it exhibits on its face and in the size and nature of its subscription list."422 F.2d at 1377. The court expressed its concern that an investment adviser "might choose to present [information to clients] in the guise of traditional newspaper format." Id. at 1378. The Commission, citing Wall Street Transcript, has interpreted the exclusion to apply"only where, based on the content, advertising material, readership and other relevant factors, a publication is not primarily a vehicle for distributing investment advice. [Footnote 52]"These various formulations recast the statutory language without capturing the central thrust of the legislative history, and without even mentioning the apparent intent of Congress to keep the Act free of constitutional infirmities. [Footnote 53] The Act was designed to apply to those persons Page 472 U. S. 208 engaged in the investment-advisory profession -- those who provide personalized advice attuned to a client's concerns, whether by written or verbal communication. [Footnote 54] The mere fact that a publication contains advice and comment about specific securities does not give it the personalized character that identifies a professional investment adviser. Thus, petitioners' publications do not fit within the central purpose of the Act, because they do not offer individualized advice attuned to any specific portfolio or to any client's particular needs. On the contrary, they circulate for sale to the public at large in a free, open market -- a public forum in which typically anyone may express his views.The language of the exclusion, read literally, seems to describe petitioners' newsletters. Petitioners are "publishers of any bona fide newspaper, news magazine or business or financial publication." The only modifier that might arguably disqualify the newsletters are the words "bona fide." Notably, however, those words describe the publication, rather than the character of the publisher; hence Lowe's unsavory history does not prevent his newsletters from being "bona fide." In light of the legislative history, this phrase translates best to "genuine"; petitioners' publications meet Page 472 U. S. 209 this definition: they are published by those engaged solely in the publishing business, and are not personal communications masquerading in the clothing of newspapers, news magazines, or financial publications. Moreover, there is no suggestion that they contained any false or misleading information, or that they were designed to tout any security in which petitioners had an interest. Further, petitioners' publications are "of general and regular circulation." [Footnote 55] Although the publications have not been "regular" in the sense of consistent circulation, the publications have been "regular" in the sense important to the securities market: there is no indication that they have been timed to specific market activity, or to events affecting or having the ability to affect the securities industry. [Footnote 56] Page 472 U. S. 210The dangers of fraud, deception, or overreaching that motivated the enactment of the statute are present in personalized communications, but are not replicated in publications that are advertised and sold in an open market. [Footnote 57] To the extent that the chart service contains factual information about past transactions and market trends, and the newsletters contain commentary on general market conditions, there can be no doubt about the protected character of the communications, [Footnote 58] a matter that concerned Congress when the exclusion was drafted. The content of the publications and the audience to which they are directed in this case reveal the specific limits of the exclusion. As long as the communications between petitioners and their subscribers remain entirely impersonal and do not develop into the kind of fiduciary, person-to-person relationships that were discussed at length in the legislative history of the Act and that are characteristic of investment adviser-client relationships, we believe the publications are, at least presumptively, within the exclusion, and thus not subject to registration under the Act. [Footnote 59] Page 472 U. S. 211We therefore conclude that petitioners' publications fall within the statutory exclusion for bona fide publications, and that none of the petitioners is an "investment adviser" as defined in the Act. It follows that neither their unregistered status, nor the Commission order barring Lowe from associating with an investment adviser, provides a justification for restraining the future publication of their newsletters. It also follows that we need not specifically address the constitutional question we granted certiorari to decide.The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtLowe v. SEC, 472 U.S. 181 (1985)Lowe v. Securities and Exchange CommissionNo. 83-1911Argued January 7, 1986Decided June 10, 1985472 U.S. 181SyllabusPetitioner Lowe is the president and principal shareholder of a corporation (also a petitioner) that was registered as an investment adviser under the Investment Advisers Act of 1940 (Act). Because Lowe was convicted of various offenses involving investments, the Securities and Exchange Commission (SEC), after a hearing, ordered that the corporation's registration be revoked and that Lowe not associate with any investment adviser. Thereafter, the SEC brought an action in Federal District Court, alleging that Lowe, the corporation, and two other unregistered corporations (also petitioners) were violating the Act, and that Lowe was violating the SEC's order by publishing, for paid subscribers, purportedly semimonthly newsletters containing investment advice and commentary. After determining that petitioners' publications were protected by the First Amendment, the District Court, denying for the most part the SEC's requested injunctive relief, held that the Act must be construed to allow a publisher who is willing to comply with the Act's reporting and disclosure requirements to register for the limited purpose of publishing such material and to engage in such publishing. The Court of Appeals reversed, holding that the Act does not distinguish between person-to-person advice and impersonal advice given in publications, that petitioners were engaged in business as "investment advisers" within the meaning of the Act, and that the exclusion in § 202(a)(11)(D) of the Act from the Act's definition of covered "investment advisers" for "the publisher of any bona fide newspaper, news magazine, or business or financial publication of general and regular circulation" did not apply to petitioners. Rejecting petitioners' constitutional claim, the court further held that Lowe's history of criminal conduct justified the characterization of petitioners' publications "as potentially deceptive commercial speech."Held: Petitioners' publications fall within the statutory exclusion for bona fide publications, none of the petitioners is an "investment adviser" as defined in the Act, and therefore neither petitioners' unregistered status nor the SEC order against Lowe provides a justification for restraining the future publication of their newsletters. Pp. 472 U. S. 190-211. Page 472 U. S. 182(a) The Act's legislative history plainly demonstrates that Congress was primarily interested in regulating the business of rendering personalized investment advice, including publishing activities that are a normal incident thereto. On the other hand, Congress, plainly sensitive to First Amendment concerns, wanted to make clear that it did not seek to regulate the press through the licensing of nonpersonalized publishing activities. Pp. 472 U. S. 203-204.(b) Because the content of petitioners' newsletters was completely disinterested, and because they were offered to the general public on a regular schedule, they are described by the plain language of § 202(a)(11)(D)'s exclusion. The mere fact that a publication contains advice and comment about specific securities does not give it the personalized character that identifies a professional investment adviser. Thus, petitioners' newsletters do not fit within the Act's central purpose, because they do not offer individualized advice attuned to any specific portfolio or to any client's particular needs. On the contrary, they circulate for sale to the public in a free, open market. Lowe's unsavory history does not prevent the newsletters from being "bona fide" within the meaning of the exclusion. In light of the legislative history, the term "bona fide" translates best to "genuine"; petitioners' publications meet this definition. Moreover, the publications are "of general and regular circulation." Although they have not been published on a regular semimonthly basis as advertised, and thus have not been "regular" in the sense of consistent circulation, they have been "regular" in the sense important to the securities market. Pp. 472 U. S. 204-209.725 F.2d 892, reversed.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined. WHITE, J., filed an opinion concurring in the result, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 472 U. S. 211. POWELL, J., took no part in the decision of the case. Page 472 U. S. 183

1987_86-1521

JUSTICE BRENNAN delivered the opinion of the Court.This case, which consists of two actions consolidated below, Wells Fargo Bank v. United States and Rosenberg v. United States, 86-2 USTC � 13,703 (CD Cal.1986), presents two issues: first, whether certain state and local public housing agency obligations (Project Notes or Notes) were exempt from federal estate taxation prior to June 19, 1984, and second, if so, whether § 641 of the Deficit Reduction Act of 1984 (DEFRA), 98 Stat. 939, which forecloses any refund for estate taxes paid on such Project Notes, is unconstitutional. Relying on Haffner v. United States, 585 F. Supp. 354 (ND Ill.1984), aff'd, 757 F.2d 920 (CA7 1985), the District Court for the Central District of California ruled that Project Notes were exempt. It further held § 641 of the DEFRA unconstitutional. The United States appealed that judgment directly to this Court pursuant to 28 U.S.C. § 1252. Page 485 U. S. 353 We noted probable jurisdiction sub nom. United States v. Crocker National Bank, 481 U.S. 1047 (1987), and now reverse.In the late 1930's, the Nation faced a severe housing shortage. To meet that crisis, Congress enacted the Housing Act of 1937, 50 Stat. 888 et seq., which was designed to stimulate local financing of housing projects by empowering state and local housing authorities to issue tax-free obligations, termed "Project Notes." For almost 50 years after the Act's passage, it was generally assumed that this exempted the Notes from federal income tax, but not from federal estate tax. See Committee on Tax Exempt Financing, Section of Taxation, ABA, Report on the Tax Provisions of the United States Housing Act of 1937: Beyond the Looking Glass, 33 Tax Lawyer 71, 105 (1979); Rev.Rul. 81-63, 1981-1 Cum.Bull. 455. However, in 1984, the District Court for the Northern District of Illinois ruled that Project Notes were exempt from estate taxes as well, basing its decision on a variety of statutory construction tools. Haffner v. United States, supra. The District Court's judgment caused a "rush to market" for Project Notes, and also prompted those who had already paid estate taxes on the Notes to seek refunds. Within months of the District Court's ruling, Congress enacted the DEFRA, § 641 of which, effective June 19, 1984, eliminated the purported estate tax exemption for Project Notes and also foreclosed those who had already paid estate taxes on Project Notes from obtaining a refund thereon. Against this backdrop, we turn to the facts of the instant appeal.The Wells Fargo appellees are the executors of the estate of Jules C. Stein, who died in April, 1981. Included in the estate are Project Notes with an aggregate face value of $9,550,000. They filed an estate tax return listing these notes as taxable, and paid the tax. In June, 1984, following the Haffner decision, appellees timely filed an amended estate tax return declaring that the Project Notes were exempt Page 485 U. S. 354 from taxation and claiming a refund. After the Commissioner of Internal Revenue rejected their claim, they brought suit in the District Court for the Central District of California.The Rosenberg appellees are the coexecutors of the estate of Morris Folb, who died in July, 1982. Project Notes with face values totaling $250,000 are part of the estate. Appellees filed an estate tax return, and, like the Wells Fargo appellees, included the Project Notes as taxable assets and paid tax on them. In August, 1984, also like the Wells Fargo appellees, they filed their amended tax return claiming that the Project Notes were exempt from estate taxation. The Commissioner denied their claim and they too filed suit in the Central District of California, where their case was consolidated with Wells Fargo.On cross-motions for summary judgment, the District Court concluded, as mentioned above, that the Project Notes were tax exempt when the returns were filed, relying on the reasoning in Haffner. The court also held that § 641 of the DEFRA unconstitutionally denied appellees due process and equal protection of the laws as guaranteed by the Fifth Amendment. Although it is the portion of the judgment declaring an Act of Congress unconstitutional that provides us with appellate jurisdiction, such an appeal brings the entire case before us. United States v. Locke, 471 U. S. 84, 471 U. S. 92 (1985). Moreover, our established practice is to resolve statutory questions at the outset where to do so might obviate the need to consider a constitutional issue. Ibid.; Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Therefore, we consider first the question whether the statute exempts Project Notes from estate taxation.Informing our examination of this issue is the settled principle that exemptions from taxation are not to be implied; they must be unambiguously proved. E.g., Oklahoma Tax Comm'n v. United States, 319 U. S. 598, 319 U. S. 606 (1943); United States Trust Co. v. Helvering, 307 U. S. 57, 307 U. S. 60 (1939); Rapid Page 485 U. S. 355 Transit Corp. v. New York, 303 U. S. 573, 303 U. S. 592-593 (1938). Appellees do not dispute, however, that 26 U.S.C. §§ 2001 and 2002 (1982 ed. and Supp. III), which define the taxable estate for estate tax calculation, by their terms include the Project Notes. Only by referring outside the Internal Revenue Code, specifically to § 5(e) of the Housing Act of 1937, 50 Stat. 890, as amended, 42 U.S.C. § 1437i(b), do appellees endeavor to establish their exemption.Of course, we begin our analysis of § 5(e) with the statutory language itself. This section states that "[Project Notes], including interest thereon, . . . shall be exempt from all taxation now or hereafter imposed by the United States." Well before the Housing Act was passed, an exemption of property from all taxation had an understood meaning: the property was exempt from direct taxation, but certain privileges of ownership, such as the right to transfer the property, could be taxed. Underlying this doctrine is the distinction between an excise tax, which is levied upon the use or transfer of property even though it might be measured by the property's value, and a tax levied upon the property itself. The former has historically been permitted even where the latter has been constitutionally or statutorily forbidden. The estate tax is a form of excise tax. Greiner v. Lewellyn, 258 U. S. 384 (1922) (municipal bonds subject to federal estate taxation notwithstanding an intergovernmental tax immunity barring a direct tax on the bond); Murdock v. Ward, 178 U. S. 139, 178 U. S. 148 (1900) (federal tax exemption on federal bonds did not extend to taxation on the right to transfer the bonds at death); Plummer v. Coler, 178 U. S. 115 (1900) (State may calculate estate tax based on total value of property passing through the estate, including federal obligations exempt from direct taxation by the State). See also United States Trust Co. v. Helvering, supra, at 397 U. S. 60 (applying the rule of Greiner, Murdock, and Plummer to hold that property subject to a general exemption from "all taxation" would not exempt it from excise taxes such as the estate tax); Page 485 U. S. 356 Treas.Reg. § 20.2033-1, 26 CFR § 20.2033-1 (Supp.1964) (statutes exempting federal obligations from "all taxation" refer only to direct taxation). Cf. West v. Oklahoma Tax Comm'n, 334 U. S. 717, 727 (1948) (recognizing the distinction between direct taxes and excise taxes); Reinecke v. Northern Trust Co., 278 U. S. 339, 278 U. S. 347 (1929) (same). Consistent with this understanding, on the rare occasions when Congress has exempted property from estate taxation, it has generally adverted explicitly to that tax, rather than generically to "all taxation." E.g., Revenue Act of 1934, § 404, 48 Stat. 754, repealed by the Revenue Act of 1962, § 18, 76 Stat. 1052. Placed in context, then, § 5(e) does not stand for appellees' proposition that Project Notes were intended to be exempt from estate taxes; it stands for exactly the opposite.Appellees attempt to bolster their contrary view with various indicia of an alleged congressional intent. Although these considerations were found compelling in Haffner, we conclude, as did the Tax Court in Estate of Egger v. Commissioner, 89 T.C. 726 (1987), that the factors appellees rely upon, whether considered alone or in combination, are insufficient to demonstrate that Congress intended to exempt Project Notes from estate taxation in contravention of the understood meaning of § 5(e), a demonstration which must be unambiguous under the principle disfavoring implied tax exemptions.Appellees' first argument centers on § 20 of the Housing Act of 1937, 50 Stat. 898, later repealed, which gave the newly created United States Housing Authority the power to issue bonds and other obligations. Section 20(b) provided that"[s]uch obligations shall be exempt, both as to principal and interest, from all taxation (except surtaxes, estate, inheritance, and gift taxes) now or hereafter imposed. . . ."The familiar argument goes that Congress knew how to limit the scope of the exemption when it wanted to do so; its decision not to include limiting language in § 5(e), in light of an Page 485 U. S. 357 express limitation in § 20(b), demonstrates an intent to exempt Project Notes from estate tax.This argument does not withstand careful scrutiny. In 1937, when the Housing Act was passed, what is now the income tax comprised two parts: a "normal" tax set at a flat 4 percent, and a graduated "surtax" with rates reaching up to 75 percent. As is plain from the face of § 20(b), Congress intended federal housing obligations to be exempt only from the normal tax. Yet as the normal tax and the surtax were both direct, simply making the federal obligations "exempt from all taxation" would exempt too much. Thus, Congress "excepted" surtaxes from the exemption. But that exception, if left by itself, would have created its own anomaly: the strict application of the rule "expressio unius est exclusio alterius" -- i.e., the expression of one is the exclusion of others -- would have resulted in exempting these obligations from all taxes, direct or indirect, except the surtax. To avoid that particular pitfall, Congress also excepted estate, inheritance, and gift taxes from § 20(b). Such language was commonplace when Congress sought to exempt items from the normal tax, but not the surtax. E.g., Home Owners' Loan Act of 1933, § 4(c), 48 Stat. 130; Farm Credit Act of 1933, § 63, 48 Stat. 267.In contrast, § 5(e) needed no parenthetical exception. Congress fully intended Project Notes to be exempt from surtaxes as well as normal taxes, and thus exempting them "from all taxation" stated with precision the congressional will. We cannot attribute to Congress an intent to break new ground in tax law by cleverly hiding an estate tax exemption, discernible only by comparing two unrelated provisions of the Housing Act. Nor would it make sense for Congress to legislate in such a bizarre fashion. If Congress really wanted to create an especially broad tax exemption for Project Notes, as appellees assert, one would expect it to do so notoriously enough to attract investors, not surreptitiously enough to evade detection for half a century. Page 485 U. S. 358Appellees' second indicator of congressional intent is a statement made by Senator Walsh during the floor debate. In the midst of a lengthy speech, he stated:"Obligations, including interest thereon, issued by public housing agencies, . . . are to be exempt from all taxation now or hereafter imposed by the United States. In other words, the bill gives the public housing agencies the right to issue tax-exempt bonds, which means they are free from income tax, surtax, estate, gift, and inheritance taxes."81 Cong.Rec. 8085 (1937). If, as appears from the statement's structure, the Senator intended to offer a definition of "tax-exempt bonds," then we must conclude that he misspoke, for as we have already demonstrated, tax-exempt bonds were presumed to be exempt only from direct taxes. Even if, as appellees assert, the Senator intended to refer solely to Project Notes, we do not deem his statement compelling in this case. The relevant passage comes in the middle of a long speech, and no similar expression is to be found in any other legislative debate or document. This short, isolated comment simply cannot overcome the understood meaning of § 5(e) and the presumption against implied tax exemptions.Appellees also assert that Congress' intent can be discerned by reference to a rejected administration housing proposal, which contained in its analogue to § 5(e) an express statement that Project Notes would be subject to estate taxes. We are unpersuaded by appellees' contention that the Finance Committee's decision not to include a similar express reference to the estate tax indicates a desire to exempt Project Notes from that tax. Equally plausible is that the Committee omitted the express exception as unnecessary. Further, neither the administration, the Finance Committee nor even a single Senator considered this difference worthy of comment, although numerous other variations between the two proposals received attention.Finally, appellees point to a statement Warren J. Vinton, who later became the first Chief Economist of the United Page 485 U. S. 359 States Housing Authority, made to the American Federation of Housing Authorities shortly after the Housing Act was passed. He stated that Project Notes were"exempt from all Federal taxes, not only normal income taxes but surtax, inheritance tax, and gift tax. Investments of that nature are getting rare in the country."Brief for Appellees Wells Fargo Bank et al. 15 (emphasis added in brief omitted). However, at the time he uttered these words, Vinton was not yet employed by the Housing Authority. We cannot attribute to this isolated comment the aura of a contemporaneous agency interpretation.The understood meaning of § 5(e) and the presumption against implied tax exemptions are too powerful to be overcome by the indicia of congressional intent put forward by appellees. Accordingly, we conclude that the Housing Act of 1937 does not exempt Project Notes from estate taxation. We therefore need not consider the constitutionality of § 641 of the DEFRA. The judgment of the District Court isReversed

U.S. Supreme CourtUnited States v. Wells Fargo Bank, 485 U.S. 351 (1988)United States v. Wells Fargo BankNo. 86-1521Argued December 8, 1987Decided March 23, 1988485 U.S. 351SyllabusUnder § 5(e) of the Housing Act of 1937, certain state and local public housing agency obligations, commonly termed "Project Notes," are "exempt from all taxation . . . imposed by the United States." It was generally assumed that this exemption applied only to the federal income tax until, in 1984, a Federal District Court ruled that Project Notes were also exempt from federal estate taxes. Shortly thereafter, Congress enacted the Deficit Reduction Act of 1984 (DEFRA), § 641 of which eliminated the purported exemption and foreclosed those who had already paid estate taxes on Project Notes from obtaining a refund thereon. After the Commissioner of Internal Revenue denied appellee executors such refunds, they filed suit in the District Court below, which concluded that their Project Notes were tax exempt when they filed their estate tax returns. The court also held that § 641 of the DEFRA unconstitutionally denied appellees due process and equal protection of the laws under the Fifth Amendment. The United States appealed directly to this Court under 28 U.S.C. § 1252.Held:1. Section 5(e) of the Housing Act does not exempt Project Notes from federal estate taxation. The settled presumption against implied tax exemptions applies here, particularly since 26 U.S.C. §§ 2001 and 2002 (1982 ed. and Supp. III), which define the taxable estate for estate tax calculation, by their terms include Project Notes. Moreover, an exemption of property from all taxation, such as that contained in § 5(e), has long been understood to apply only to direct taxes such as the federal income tax, and not to excise taxes such as the estate tax. The various aspects of the legislative history relied on by appellees as indicia of congressional intent are insufficient to demonstrate unambiguously that Project Notes are exempt from estate taxes.in contravention of the aforesaid presumption and the understood meaning of § 5(e). P. 485 U. S. 359.2. Resolution of the estate tax exemption question obviates the need for this Court to consider the constitutionality of § 641 of the DEFRA.86-2 USTC � 13,703, reversed. Page 485 U. S. 352BRENNAN, J., delivered the opinion of the Court, in which all other Members joined, except KENNEDY, J., who took no part in the consideration or decision of the case.

1993_92-74

Deputy Attorney General, and Robert M. Atkinson, Assistant Attorney General.Kent L. Jones 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 Paup, Deputy Solicitor General Wallace, Gary R. Allen, Paul M. Geier, Dale C. Andrews, S. Mark Lindsey, and G. Joseph King.Carter G. Phillips argued the cause for respondents.With him on the brief was James W McBride. *JUSTICE KENNEDY delivered the opinion of the Court. The power of state and local governments to impose ad valorem property taxes upon railroads and other interstate*Briefs of amici curiae urging reversal were filed for the State of Iowa by Bonnie J. Campbell, Attorney General, and C. A. Daw; for the State of Washington et al. by Christine Q Gregoire, Attorney General of Washington, and by the Attorneys General for their respective States as follows:Grant Woods of Arizona, Daniel E. Lungren of California, Robert A. Butterworth of Florida, Larry EchoHawk of Idaho, Chris Gorman of Kentucky, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Tom Udall of New Mexico, Robert Abrams of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Lee Fisher of Ohio, Susan B. Loving of Oklahoma, T. Travis Medlock of South Carolina, Charles W Burson of Tennessee, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Stephen D. Rosenthal of Virginia, James E. Doyle of Wisconsin, and Joseph B. Meyer of Wyoming; and for the National Conference of State Legislatures et al. by Richard Ruda and Richard G. Taranto.Richard A. Malm and Thomas W Andrews filed a brief for the Railway Progress Institute et al. as amici curiae urging affirmance.Briefs of amici curiae were filed for the State of California by Daniel E. Lungren, Attorney General, Timothy G. Laddish, Assistant Attorney General, Richard F. Finn, Supervising Deputy Attorney General, and Robert E. Murphy and Marguerite C. Stricklin, Deputy Attorneys General; for the Association of American Railroads by Betty Jo Christian, Timothy M. Walsh, Jerald S. Howe, Jr., Robert W Blanchette, and Kenneth P. Kolson; and for Interstate Air Carriers by Jay R. Martin, Peter W Davis, and John E. Carne.335carriers has been the source of recurrent litigation under the Commerce Clause and the Due Process Clause. See, e. g., Central R. Co. of Pa. v. Pennsylvania, 370 U. S. 607 (1962); Braniff Airways, Inc. v. Nebraska Bd. of Equalization and Assessment, 347 U. S. 590 (1954); Morgan v. Parham, 16 Wall. 471 (1873). In the case before us, a state property tax is challenged under a federal statute, the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act). Pub. L. 94-210, 90 Stat. 31.The question presented is whether the State of Oregon violated the statute by imposing an ad valorem tax upon railroad property while exempting various other, but not all, classes of commercial and industrial property. We hold that a State may grant exemptions from a generally applicable ad valorem property tax without subjecting the taxation of railroad property to challenge under the relevant provision of the 4-R Act, § 306(1)(d), 49 U. S. C. § 11503(b)(4).IOregon imposes an ad valorem tax upon all real and personal property within its jurisdiction, except property granted an express exemption. Ore. Rev. Stat. § 307.030 (1991). Various classes of business personal property are exempt, including agricultural machinery and equipment; nonfarm business inventories; livestock; poultry; bees; furbearing animals; and agricultural products in the possession of farmers. §§ 307.325,307.400. Standing timber is also exempt, but is subject to a severance tax when harvested. § 321.272. Oregon, like many other States, exempts motor vehicles as well, instead levying upon them a modest annual registration fee. §§ 803.585, 803.420(1).Respondents, called the "Carlines" in this litigation, are eight companies that lease railroad cars to railroads and shippers. The railroad cars are considered "tangible personal property" under Oregon law, § 307.030, and are not exempt from taxation. The Carlines brought suit in United States District Court under § 306(1)(d) of the 4-R Act, seeking de-336claratory and injunctive relief against the assessment, levy, and collection of the State's property tax upon their railroad cars.Congress enacted the 4-R Act in part to "restore the financial stability of the railway system of the United States." § 101(a), 90 Stat. 33. When drafting the legislation, Congress was aware that the railroads" 'are easy prey for State and local tax assessors' in that they are 'nonvoting, often nonresident, targets for local taxation,' who cannot easily remove themselves from the locality." Western Air Lines, Inc. v. Board of Equalization of S. D., 480 U. S. 123, 131 (1987) (quoting S. Rep. No. 91-630, p. 3 (1969)). Section 306 of the 4-R Act, now codified at 49 U. S. C. § 11503, addresses this concern by prohibiting the States (and their subdivisions) from enacting certain taxation schemes that discriminate against railroads. See Burlington Northern R. Co. v. Oklahoma Tax Comm'n, 481 U. S. 454, 457 (1987).The relevant provisions of § 11503 are contained in subsec-tion (b), which states:"The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them:"(1) assess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property."(2) levy or collect a tax on an assessment that may not be made under clause (1) of this subsection."(3) levy or collect an ad valorem property tax on rail transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction.337"(4) impose another tax that discriminates against a rail carrier providing transportation .... "The reach of subsections (b)(1)-(3) is straightforward:These provisions forbid the imposition of higher assessment ratios or tax rates upon rail transportation property than upon "other commercial and industrial property." The scope of subsection (b)(4), which forbids the imposition of "another tax that discriminates against a rail carrier providing transportation," is not as clear.The Carlines do not challenge Oregon's ad valorem property tax under subsections (b)(1)-(3). We attribute this choice to the fact that the State subjects all nonexempt property "to assessment and taxation in equal and ratable proportion." Ore. Rev. Stat. § 307.030 (1991). Rather, it is the Carlines' contention that Oregon's tax should be considered "another tax that discriminates against a rail carrier," in violation of subsection (b)(4), because it exempts certain classes of commercial and industrial property while taxing railroad cars in full.The District Court, after reviewing a stipulated record, held that discriminatory property tax exemptions are subject to challenge under subsection (b)(4). On the facts presented, however, the court determined that Oregon's ad valorem property tax complied with the provision. The court observed that, in other cases, only those state taxes exempting more than 50% of nonrailroad commercial personal property had been found to contravene subsection (b)(4). See Trailer Train Co. v. Leuenberger, 885 F.2d 415 (CA8 1988), cert. denied, 490 U. S. 1066 (1989); Burlington Northern R. Co. v. Bair, 766 F.2d 1222 (CA8 1985). Because (according to the court's calculations) Oregon exempted only 31.4% of nonrailroad commercial personal property from taxation, the court granted judgment to the State.The Court of Appeals reversed. 961 F.2d 813 (CA91992).In accordance with Circuit precedent, see ACF Industries, Inc. v. Arizona, 714 F.2d 93, 94 (CA9 1983), the court ac-338knowledged that subsections (b)(1)-(3) do not speak to the question of discriminatory property tax exemptions. Like the District Court, however, the Court of Appeals accepted the Carlines' contention that property tax exemptions are subject to challenge under subsection (b)(4). The court explained that Congress enacted § 11503 to "'prevent tax discrimination against railroads in any form whatsoever.'" 961 F. 2d, at 820 (emphasis in original) (citing Ogilvie v. State Bd. of Equalization of N. D., 657 F.2d 204, 210 (CA8), cert. denied, 454 U. S. 1086 (1981)).Rejecting the District Court's apparent view that ad valorem tax schemes exempting less than 50% of nonrailroad business property are not proscribed by subsection (b)(4), the Court of Appeals held that the "most natural reading" of the provision dictates that "any exemption given to other taxpayers but not to railroads" is forbidden, with possible room for "a de minimis level of exemption[sJ." 961 F. 2d, at 822 (emphasis in original). The court found that Oregon's property tax, under the calculation most generous to the State, exempted 25% of nonrailroad commercial property, far exceeding any possible de minimis exception. On this ground, the court concluded that the State's taxation of railroad property violated subsection (b)(4). Id., at 823. Holding that the Carlines "were entitled to the same total exemption preferred property owners enjoyed," the court enjoined the State from levying any tax upon the Carlines' railroad property. Ibid.We granted certiorari, 508 U. S. 905 (1993), and now reverse.IIBefore passing upon the validity of Oregon's ad valorem property tax under § 11503(b)(4), the Court of Appeals and the District Court addressed a preliminary question:Whether a tax upon railroad property is even subject to challenge under subsection (b)(4) on the ground that certain339other classes of commercial and industrial property are exempt. We consider the same question.Both parties contend that the plain meaning of subsection (b)(4), which prohibits "another tax that discriminates against a rail carrier," dictates an answer in their favor. In the State's view, the word "another" means "different from that which precedes it." Because subsections (b)(1)-(3) address property taxes and only property taxes, it follows that the term "another tax" in subsection (b)(4) must mean "a tax different from a property tax." The State concludes that subsection (b)(4) does not speak to discriminatory property tax exemptions for the simple reason that the provision does not speak to property taxes at all.The Carlines, like the Court of Appeals, take a different view. They understand the phrase "another tax that discriminates against a rail carrier" to be a residual category designed to reach any discriminatory state tax, including discriminatory property taxes, not covered by subsections (b)(1)-(3). It follows that property tax exemptions disfavoring railroad transportation property-exemptions the Carlines in effect admit fall outside the scope of subsections (b)(1)-(3), see Brief for Respondents 16-17-are within the ambit of subsection (b)(4). Accord, e. g., Trailer Train Co. v. Leuenberger, 885 F.2d 415, 417-418 (CA8 1988), cert. denied, 490 U. S. 1066 (1989); Department of Revenue of Fla. v. Trailer Train Co., 830 F.2d 1567, 1573 (CA111987). If Congress had intended to exclude property taxes from the reach of subsection (b)(4), the Carlines contend, it would have drafted the provision to prohibit "any tax other than a property tax," and not phrased the statute as it did. Brief for Respondents 17.Both the State's and the Carlines' readings are defensible if subsection (b)(4) is read in isolation, cf. Burlington Northern R. Co. v. Oklahoma Tax Comm'n, 481 U. S., at 461 (language of subsection (b)(l) "plainly declares [its] purpose"), and so we must look elsewhere to determine its meaning.340The structure of § 11503 as a whole does yield an answer, one adverse to the Carlines' challenge to Oregon's property tax. We conclude that a State may grant exemptions from a generally applicable ad valorem property tax without exposing the taxation of railroad property to invalidation under subsection (b)(4).Subsections (b)(1)-(3) of § 11503, as noted, forbid the imposition of higher property tax rates and assessment ratios upon "rail transportation property" than upon "other commercial and industrial property." 49 U. S. C. §§ 11503(b)(1)(3). "Commercial and industrial property," which serves as the comparison class for measuring unlawful discrimination under those provisions, is defined as "property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to a commercial or industrial use and subject to a property tax levy." § 11503(a)(4).The interplay between subsections (b)(1)-(3) and the definition of "commercial and industrial property" in subsection (a)(4) is central to the interpretation of subsection (b)(4). For example, the definition of "commercial and industrial property" excludes "land used primarily for agricultural purposes." The fact that Congress made this particular exclusion demonstrates its intent to permit the States to tax railroad property at a higher rate than agricultural land, notwithstanding subsection (b)(3)'s general prohibition of rate discrimination. One still could maintain, we suppose, that taxing railroad property at a higher rate than agricultural land should be considered "another tax that discriminates against a rail carrier," and thus forbidden under subsection (b)(4). That interpretation, however, would subvert the statutory plan by reading subsection (b)(4) to prohibit what subsection (b)(3), in conjunction with subsection (a)(4), was designed to allow. The result would contravene the "elementary canon of construction that a statute should be interpreted so as not to render one part inoperative."341Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U. S. 237, 249 (1985) (internal quotation marks omitted).Congress qualified the definition of "commercial and industrial property" further, limiting the comparison class to property "subject to a property tax levy." 49 U. S. C. § 11503(a)(4). The statute does not define this phrase, which on its face could bear one of two interpretations: (1) taxed property; or (2) taxable property, a broader category consisting of the general mass of property within the State's jurisdiction and power to tax, including property that enjoys a current exemption.The first interpretation has been the subject of some criticism, see Western Air Lines, Inc. v. Board of Equalization of S. D., 480 U. S., at 135 (White, J., concurring), * but we*Western Air Lines, Inc. v. Board of Equalization of S. D. raised the question whether certain property tax exemptions were prohibited under the antidiscrimination provisions of the Airport and Airway Improvement Act of 1982 (AAIA), 49 U. S. C. App. §§ 1513(d)(1)(A)-(C), which are identical for all relevant purposes to analogous provisions under the 4-R Act, 49 U. S. C. §§ 11503(b)(1)-(3). The case was on appeal from the Supreme Court of South Dakota, which had held that such exemptions were not subject to challenge under the AAIA. Western Air Lines, Inc. v. Hughes County, 372 N. W. 2d 106 (1985). The court rested this ruling upon its conclusion that the definition of "commercial and industrial property" in the AAIA, 49 U. S. C. App. § 1513(d)(2)(D)-which, like the parallel definition in 49 U. S. C. § 11503(a)(4), is limited to property "subject to a property tax levy" -included taxed property but not exempt property, 372 N. W. 2d, at 110. Because the comparison class against which tax discrimination was measured under §§ 1513(d)(1)(A)-(C) did not include exempt property, the court reasoned that the AAIA did not prohibit property tax exemptions. We affirmed, but on grounds unrelated to the court's construction of the terms "commercial and industrial property" and "subject to a property tax levy." Western Air Lines, Inc. v. Board of Equalization of S. D., 480 U. S., at 129-134. Justice White concurred, but expressed his view that the "ground on which the South Dakota Supreme Court sustained the tax" was "plainly improvident." Id., at 135; see also Northwest Airlines, Inc. v. North Dakota, 358 N. W. 2d 515, 517 (N. D. 1984).342believe it follows from the way Congress used identical language elsewhere in § 11503. Section 11503(c) confers jurisdiction upon United States district courts to enforce the terms of § 11503(b) despite the bar otherwise imposed by the Tax Injunction Act, 28 U. S. C. § 1341. Subsection (c)(l) grants district courts the power (under certain circumstances not pertinent here) to prohibit"an assessment of the rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the assessed value of all other property subject to a property tax levy in the assessment jurisdiction has to the true market value of all other commercial and industrial property." (Emphasis added.)In the context of this provision, which concerns the differential assessment of taxed property, the words "property subject to a property tax levy" must mean "taxed property." Given the "normal rule of statutory construction" that " '''identical words used in different parts of the same act are intended to have the same meaning,"'" Sorenson v. Secretary of Treasury, 475 U. S. 851, 860 (1986) (quoting Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 87 (1934) (in turn quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932))), that phrase must carry the same meaning in subsection (a)(4), where it qualifies the definition of "commercial and industrial property."All this bears on the case before us. Because property "subject to a property tax levy" means property that is taxed, the definition of "commercial and industrial property" excludes property that is exempt. Exempt property, then, is not part of the comparison class against which discrimination is measured under subsections (b)(1)-(3), and it follows that railroads may not challenge property tax exemptions under those provisions.343As was the case with agricultural land, we must pay heed to the fact that Congress placed exempt property beyond the reach of subsections (b)(1)-(3). It would be illogical to conclude that Congress, having allowed the States to grant property tax exemptions in subsections (b)(1)-(3), would turn around and nullify its own choice in subsection (b)(4). So the Carlines' reading of subsection (b)(4), while plausible when viewed in isolation (see supra, at 339), is untenable in light of § 11503 as a whole. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 99 (1992); see also United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) ("A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme ... because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law"). It is true that tax exemptions, as an abstract matter, could be a variant of tax discrimination. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803 (1989). The structure of § 11503, however, warrants the conclusion that subsection (b)(4) does not limit state discretion to levy a tax upon railroad property while exempting various classes of nonrailroad property.Other considerations reinforce our construction of the statute. In drafting § 11503, Congress prohibited discriminatory tax rates and assessment ratios in no uncertain terms, see 49 U. S. C. §§ 11503(b)(1)-(3), and set forth precise standards for judicial scrutiny of challenged rate and assessment practices, see §§ 11503(c)(1)-(2). By contrast, the statute does not speak with any degree of particularity to the question of tax exemptions. Subsection (b)(4), which prohibits the States from "impos[ing] another tax that discriminates against a rail carrier," is, at best, vague on the point. Congress did not state whether exemptions are a form of forbidden discrimination against rail carriers, and further did not provide a standard for courts to distinguish valid from invalid exemption schemes.344Had Congress, as a condition of permitting the taxation of railroad property, intended to restrict state power to exempt nonrailroad property, we are confident that it would have spoken with clarity and precision. Property tax exemptions are an important aspect of state and local tax policy. It was common at the time § 11503 was drafted, as it is now, for States with generally applicable ad valorem property taxes to exempt various classes of commercial property. Before 1960, a number of States granted such exemptions. See, e. g., Mo. Rev. Stat. § 150.040 (1949) (exempting unmanufactured articles consigned for sale and held by commission merchants); N. J. Rev. Stat. § 54:4-3.20 (1937) (exempting personal property stored in a public warehouse); Vt. Stat. Ann., Tit. 32, § 3802 (1959) (exempting tools and implements possessed by mechanics and farmers, and highway-building equipment); see also Jacobs, Exemption of Tangible Personalty, in Tax Exemptions 141, 146 (1939) (by 1938, 16 States permitted "temporary exemption of newly located or newly constructed plants, and the machinery and equipment in such plants"). By the 1960's, about 20 States granted real and personal property tax exemptions to pollution control facilities. See McNulty, State Tax Incentives to Fight Pollution, 56 A. B. A. J. 747, 748, and n. 8 (Aug. 1970). By 1971, still well before enactment of the 4-R Act, a majority of the States exempted one or more classes of business personal property, including business inventories, raw materials used in textile manufacturing, manufacturing machinery and allied equipment, and mechanics tools. See Education Commission of the States, Property Assessment and Exemptions:They Need Reform, Table C-1 (Mar. 10, 1973). Given the prevalence of property tax exemptions when Congress enacted the 4-R Act, § 11503's silence on the subject-in light of the explicit prohibition of tax rate and assessment ratio discrimination-reflects a determination to permit the States to leave their exemptions in place.345Principles of federalism support, in fact compel, our view.Subsection (b)(4), like the whole of § 11503, sets limits upon the taxation authority of state government, an authority we have recognized as central to state sovereignty. See, e. g., Tully v. Griffin, Inc., 429 U. S. 68, 73 (1976); Railroad Co. v. Peniston, 18 Wall. 5, 29 (1873). When determining the breadth of a federal statute that impinges upon or pre-empts the States' traditional powers, we are hesitant to extend the statute beyond its evident scope. See Cipollone v. Liggett Group, Inc., 505 U. S. 504, 533 (1992) ("We do not, absent unambiguous evidence, infer a scope of pre-emption beyond that which clearly is mandated by Congress' language") (BLACKMUN, J., concurring); id., at 523 (opinion of STEVENS, J.); R. J. Reynolds Tobacco Co. v. Durham County, 479 U. S. 130, 140 (1986). We will interpret a statute to pre-empt the traditional state powers only if that result is "the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). As explained above, neither subsection (b)(4) nor the whole of § 11503 meets this standard with regard to the prohibition of property tax exemptions.The Carlines contend that the legislative history of § 11503 casts doubt upon our interpretation, but the history-to the extent it has any relevance to our inquiry-affords the Carlines no comfort. The excerpts from the legislative record cited by the Carlines do nothing more than manifest Congress' general concern with the discriminatory taxation of rail carriers. See, e. g., S. Rep. No. 94-595, p. 166 (1976) (describing the Senate bill, which the Conference adopted, as prohibiting "the imposition of any other tax which results in the discriminatory treatment of any common or contract carrier"). The Carlines do not point to a single instance in the legislative record suggesting that Congress had any particular concern with property tax exemptions, or that Congress intended to prohibit exemptions in subsection (b)(4). In fact, the available evidence suggests the opposite of what the Carlines would have us believe. See 120 Congo Rec.34638734 (1974) (providing assurances that subsection (b)(4) would not prevent the States from granting tax exemptions to encourage industrial development) (remarks of Reps. Staggers, Adams, and Kuykendall).Nor do the Carlines draw our attention to a single instance in the 15-year legislative history of the 4-R Act in which representatives of the railroad industry expressed concern about discriminatory property tax exemptions. In fact, when urging the Senate to adopt subsection (b)(4), industry representatives characterized the provision as prohibiting only discriminatory in lieu taxes and gross receipts taxes; property tax exemptions, in contrast, were not mentioned. See Hearings before the Subcommittee on Surface Transportation of the Senate Committee on Commerce on Legislation Relating to Rail Passenger Service, 94th Cong., 1st Sess., pt. 5, pp. 1837, 1883 (1975). In sum, the Carlines' argument with respect to legislative history is without foundation.As a final matter, we address the contention that our interpretation of subsection (b)(4) leads to an anomalous result. The Carlines maintain that it would be nonsensical for Congress to prohibit the States from imposing higher tax rates or assessment ratios upon railroad property than upon other taxed property, while at the same time permitting the States to exempt some or all classes of nonrailroad property altogether. That result, it is argued, prohibits discrimination of a mild form, but permits it in the extreme. We think our interpretation is not at all implausible.To begin with, this is not a case in which the railroadseither alone or as part of some isolated and targeted groupare the only commercial entities subject to an ad valorem property tax. Cf. Burlington Northern R. Co. v. Superior, 932 F.2d 1185 (CA7 1991) (occupation tax on owners and operators of "iron ore concentrates docks," in practical effect, applied only to docks owned by one particular rail carrier). If such a case were to arise, it might be incorrect to say that the State "exempted" the nontaxed property. Rather, one347could say that the State had singled out railroad property for discriminatory treatment. See J. Hellerstein & W. Hellerstein, State and Local Taxation 973 (5th ed. 1988) (the term "exemption" does not mean every exclusion from the reach of a levy, but rather exclusions of "property, persons, transactions ... which are logically within the tax base"). On the record before us, Oregon's ad valorem property tax does not single out railroad property in that manner, and we need not decide whether subsection (b)(4) would prohibit a tax of that nature.In addition, though some may think it unwise to forbid discrimination in tax rates and assessment ratios while permitting exemptions of certain nonrailroad property, the result is not "so bizarre that Congress 'could not have intended'" it. Demarest v. Manspeaker, 498 U. S. 184, 191 (1991) (citing Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 575 (1982)). About half of the States grant property tax exemptions to encourage investment in air and water pollution control devices. See 1 CCH State Tax Guide 691692 (1992). And it is standard practice for States to grant exemptions to commercial entities for other beneficial purposes. See, e. g., La. Const., Art. VII, § 21(F) (10-year exemption for any "new manufacturing establishment or [any] addition to an existing manufacturing establishment"); Ore. Rev. Stat. § 285.597 (1991) (exemption for business property in an "enterprise zone"); Va. Code Ann. § 58.1-3661 (1991) (permitting any county, city, or town to exempt from its property tax "solar energy equipment, facilities or devices" and "recycling equipment, facilities, or devices"). It is within Congress' sound discretion to weigh the benefit of preserving those exemptions, on the one hand, against the benefit of protecting rail carriers from every tax scheme that favors some nonrailroad property, on the other.We conclude that § 11503, which expresses Congress' resolution of the matter, does not limit the States' discretion to exempt nonrailroad property, but not railroad property, from348STEVENS, J., dissentingad valorem property taxes of general application. We therefore reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1993SyllabusDEPARTMENT OF REVENUE OF OREGON v. ACF INDUSTRIES, INC., ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 92-74. Argued November 8, 1993-Decided January 24,1994The Railroad Revitalization and Regulatory Reform Act of 1976, in relevant part, forbids States to impose (1) higher property tax rates and assessment ratios upon "rail transportation property" than upon "other commercial and industrial property," 49 U. S. C. §§ 11503(b)(1)-(3), and (2) "another tax that discriminates against a rail carrier providing transportation," § 11503(b)(4). Oregon exempts from its ad valorem property tax various classes of business personal property, but not railroad cars owned by respondent companies. They filed suit in the District Court, alleging that the tax violates § 11503(b)(4) because it exempts certain classes of commercial property from taxation while taxing railroad cars in full. Both the District Court and the Court of Appeals agreed that discriminatory property tax exemptions may be challenged under subsection (b)(4). However, the Court of Appeals reversed the lower court's finding that Oregon's tax complied with the provision, holding instead that respondents were entitled to the same exemption enjoyed by preferred property owners.Held: Section 11503 does not limit the States' discretion to exempt nonrailroad property, but not railroad property, from generally applicable ad valorem property taxes. Pp. 338-348.(a) Respondents' position that "another tax that discriminates against a rail carrier" is a residual category designed to reach any discriminatory state tax, including property taxes, not covered by subsections (b)(1)-(3) is plausible only if subsection (b)(4) is read in isolation. However, the structure of § 11503 as a whole supports the view that subsection (b)(4) does not speak to property tax exemptions. "[C]ommercial and industrial property," which serves as the comparison class for measuring property tax discrimination under subsections (b)(1)-(3), is defined in subsection (a)(4) as "property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to commercial or industrial use and subject to a property tax levy." The interplay between subsections (b)(1)-(3) and this definition is central to subsection (b)(4)'s interpretation. For example, Congress' exclusion of agricultural land from the definition demonstrates its intent to permit the States to tax railroad property at a higher rate than agricultural land, notwithstanding subsection (b)(3)'s333general prohibition of rate discrimination. To consider such a tax "another tax" under subsection (b)(4) would subvert the statutory plan by reading subsection (b)(4) to prohibit what subsection (b)(3), in conjunction with subsection (a)(4), was designed to allow. The result would contravene the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative. Pp. 338-341.(b) The phrase "subject to a property tax levy" further qualifies the subsection (a)(4) definition. When used elsewhere in § 11503, that phrase means property that is taxed; and since identical words used in different parts of the same Act are intended to have the same meaning, the phrase must carry the same meaning in subsection (a)(4), Sorenson v. Secretary of Treasury, 475 U. S. 851, 860. Thus, exempt property is not part of the comparison class. It would be illogical to conclude that Congress, having allowed States to grant property tax exemptions in subsections (b)(1)-(3), would turn around and nullify its own choice in subsection (b)(4). Pp. 341-343.(c) Other considerations reinforce the foregoing construction of the statute. Section 11503's silence on the subject of tax exemptions-in light of the explicit prohibition of tax rate and assessment ratio discrimination-reflects a determination to permit the States to leave their exemptions in place. Principles of federalism compel this view, for a statute is interpreted to pre-empt traditional state powers only if that result is the clear and manifest purpose of Congress. The statute's legislative history casts no doubt upon this interpretation. Nor does the interpretation lead to an anomalous result. Since railroads are not the only commercial entities subject to Oregon's tax, it need not be decided whether subsection (b)(4) would prohibit a tax that did single out railroad property. And since it is within Congress' sound discretion to weigh the benefit of preserving some exemptions against the benefit of protecting rail carriers from every tax scheme that favors some nonrailroad property, the result reached here is not so bizarre that Congress could not have intended it. See Demarest v. Manspeaker, 498 U. S. 184, 191. Pp. 343-348.961 F.2d 813, reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BLACKMUN, O'CONNOR, SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 348.Virginia L. Linder, Solicitor General of Oregon, argued the cause for petitioner. With her on the briefs were Theodore R. Kulongoski, Attorney General, Thomas A. Balmer,334Full Text of Opinion

1955_451

MR. JUSTICE DOUGLAS delivered the opinion of the Court.This is a suit brought in the Nebraska courts by employees of the Union Pacific Railroad Co. against that company and labor organizations representing various groups of employees of the railroad to enjoin the application and enforcement of a union shop agreement entered into between the railroad company and the labor organizations. Plaintiffs are not members of any of the defendant labor organizations and desire not to join. Under the terms of the union shop agreement all employees of the railroad, as a condition of their continued employment, must become members of the specified union within 60 days and thereafter maintain that membership. It is alleged that failure on their part to join the union will mean the loss of their employment together with seniority, retirement, pension, and other rights. Page 351 U. S. 228The employees claim that the union shop agreement violates the "right to work" provision of the Nebraska Constitution, Art. XV, § 13, which provides: [Footnote 1]"No person shall be denied employment because of membership in or affiliation with, or resignation or expulsion from a labor organization or because of refusal to join or affiliate with a labor organization; nor shall any individual or corporation or association of any kind enter into any contract, written or oral, to exclude persons from employment because of membership in or nonmembership in a labor organization."They ask for an injunction restraining the railroad company from enforcing and applying the union shop agreement.The answers deny that the Nebraska Constitution and laws control, and allege that the union shop agreement is authorized by § 2, Eleventh of the Railway Labor Act, as amended, 64 Stat. 1238, 45 U.S.C. § 152, Eleventh, which provides that, notwithstanding the law of "any State," a carrier and a labor organization may make an agreement requiring all employees within a stated time to become a member of the labor organization, provided there is no discrimination against any employee and provided Page 351 U. S. 229 that membership is not denied nor terminated"for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership. [Footnote 2] "Page 351 U. S. 230The Nebraska trial court issued an injunction. The Supreme Court of Nebraska affirmed. It held that the union shop agreement violates the First Amendment in that it deprives the employees of their freedom of association and violates the Fifth Amendment in that it requires the members to pay for many things besides the cost of collective bargaining. The Nebraska Supreme Court, therefore, held that there is no valid federal law to supersede the "right to work" provision of the Nebraska Constitution. 160 Neb. 669, 71 N.W.2d 526. The case is here by appeal. 28 U.S.C. § 1257(1) and (2). We noted probable jurisdiction. 350 U.S. 910. Page 351 U. S. 231The union shop [Footnote 3] provision of the Railway Labor Act was written into the law in 1951. Prior to that date, the Railway Labor Act prohibited union shop agreements. 48 Stat. 1186, 45 U.S.C. § 152, Fourth and Fifth; 40 Op.Atty.Gen. 254. Those provisions were enacted in 1934, when the union shop was being used by employers to establish and maintain company unions, "thus effectively depriving a substantial number of employees of their right to bargain collectively." S.Rep.No. 2262, 81st Cong., 2d Sess., p. 3. By 1950, company unions in this field had practically disappeared. Id. Between 75 and 80% of railroad employees were members of labor organizations. H.R.Rep.No.2811, 81st Cong., 2d Sess., p. 4. While nonunion members got the benefits of the collective bargaining of the unions, they bore "no share of the cost of obtaining such benefits." Id. at p. 4. As Senator Hill, who managed the bill on the floor of the Senate, said,"The question in this instance is whether those who enjoy the fruits and the benefits of the unions should make a fair contribution to the support of the unions."96 Cong.Rec., Pt. 12, p. 16279.The union shop provision of the Railway Labor Act is only permissive. Congress has not compelled nor required carriers and employees to enter into union shop agreements. The Supreme Court of Nebraska nevertheless took the view that justiciable questions under the First and Fifth Amendments were presented, since Congress, by the union shop provision of the Railway Labor Page 351 U. S. 232 Act, sought to strike down inconsistent laws in 17 States. Cf. Hudson v. Atlantic Coast Line R. Co., 242 N.C. 650, 89 S.E.2d 441; Otten v. Baltimore & O. R. Co., 205 F.2d 58. The Supreme Court of Nebraska said,"Such action on the part of Congress is a necessary part of every union shop contract entered into on the railroads as far as these 17 states are concerned, for, without it, such contracts could not be enforced therein."160 Neb. at 698, 71 N.W.2d at 547. We agree with that view. If private rights are being invaded, it is by force of an agreement made pursuant to federal law which expressly declares that state law is superseded. Cf. Smith v. Allwright, 321 U. S. 649, 321 U. S. 663. In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed. [Footnote 4] Cf. Steele v. Louisville & N. R. Co., 323 U. S. 192, 323 U. S. 198-199, 323 U. S. 204; Brotherhood of Railroad Trainmen v. Howard, 343 U. S. 768; Public Utilities Commission of District of Columbia v. Pollak, 343 U. S. 451, 343 U. S. 462. The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates, though it takes a private agreement to invoke the federal sanction.As already noted, the 1951 amendment, permitting the negotiation of union shop agreements, expressly allows those agreements notwithstanding any law "of any State." § 2, Eleventh. [Footnote 5] A union agreement made pursuant to the Railway Labor Act has, therefore, the imprimatur of the federal law upon it and, by force of the Supremacy Clause of Article VI of the Constitution, could not be made illegal nor vitiated by any provision of the laws of a State. Page 351 U. S. 233We come then to the merits.In the absence of conflicting federal legislation, there can be no doubt that it is within the police power of a State to prohibit the union or the closed shop. We so held in Lincoln Union v. Northwestern Iron & Metal Co., 335 U. S. 525, and in American Federation of Labor v. American Sash & Door Co., 335 U. S. 538, against the challenge that local "right to work" laws, including Nebraska's, violated the requirements of due process. But the power of Congress to regulate labor relations in interstate industries is likewise well established. Congress has authority to adopt all appropriate measures to "facilitate the amicable settlement of disputes which threaten the service of the necessary agencies of interstate transportation." Texas & N.O. R. Co. v. Railway Clerks, 281 U. S. 548, 281 U. S. 570. These measures include provisions that will encourage the settlement of disputes"by inducing collective bargaining with the true representative of the employees and by preventing such bargaining with any who do not represent them,"Virginian R. Co. v. Federation, 300 U. S. 515, 300 U. S. 548, and that will protect the employees against discrimination or coercion which would interfere with the free exercise of their right to self-organization and representation. Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 33. Industrial peace along the arteries of commerce is a legitimate objective, and Congress has great latitude in choosing the methods by which it is to be obtained.The choice by the Congress of the union shop as a stabilizing force seems to us to be an allowable one. Much might be said pro and con if the policy issue were before us. Powerful arguments have been made here that the long-run interests of labor would be better served by the development of democratic traditions in trade unionism without the coercive element of the union or the closed shop. Mr. Justice Brandeis, who had wide experience in labor-management relations prior to his appointment to Page 351 U. S. 234 the Court, wrote forcefully against the closed shop. He feared that the closed shop would swing the pendulum in the opposite extreme and substitute "tyranny of the employee" for "tyranny of the employer." [Footnote 6] But the question is one of policy with which the judiciary has no concern, as Mr. Justice Brandeis would have been the first to concede. Congress, acting within its constitutional powers, has the final say on policy issues. If it acts unwisely, the electorate can make a change. The task of the judiciary ends once it appears that the legislative measure adopted is relevant or appropriate to the constitutional power which Congress exercises. The ingredients of industrial peace and stabilized labor-management relations are numerous and complex. They may well vary from age to age and from industry to industry. What would be needful one decade might be anathema the next. The decision rests with the policymakers, not with the judiciary.It is said that the right to work, which the Court has frequently included in the concept of "liberty" within the meaning of the Due Process Clauses (see Truax v. Raich, 239 U. S. 33; Takahashi v. Fish & Game Commission, 334 U. S. 410), may not be denied by the Congress. The question remains, however, whether the long-range interests of workers would be better served by one type of Page 351 U. S. 235 union agreement or another. That question is germane to the exercise of power under the Commerce Clause -- a power that often has the quality of police regulations. See Cleveland v. United States, 329 U. S. 14, 329 U. S. 19. One would have to be blind to history to assert that trade unionism did not enhance and strengthen the right to work. See Webb, History of Trade Unionism; Gregory, Labor and the Law. To require, rather than to induce, the beneficiaries of trade unionism to contribute to its costs may not be the wisest course. But Congress might well believe that it would help insure the right to work in and along the arteries of interstate commerce. No more has been attempted here. The only conditions to union membership authorized by § 2, Eleventh of the Railway Labor Act are the payment of "periodic dues, initiation fees, and assessments." The assessments that may be lawfully imposed do not include "fines and penalties." The financial support required relates, therefore, to the work of the union in the realm of collective bargaining. No more precise allocation of union overhead to individual members seems to us to be necessary. The prohibition of "fines and penalties" precludes the imposition of financial burdens for disciplinary purposes. If "assessments" are in fact imposed for purposes not germane to collective bargaining, [Footnote 7] a different problem would be presented. Page 351 U. S. 236Wide-ranged problems are tendered under the First Amendment. It is argued that the union shop agreement forces men into ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought protected by the Bill of Rights. [Footnote 8] It is said that, once a man becomes a Page 351 U. S. 237 member of these unions, he is subject to vast disciplinary control, [Footnote 9] and that, by force of the federal Act, unions now can make him conform to their ideology. Page 351 U. S. 238On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who, by state law, is required to be a member of an integrated bar. It is argued that compulsory membership will be used to impair freedom of expression. But that problem is not presented by this record. Congress endeavored to safeguard against that possibility by making explicit that no conditions to membership may be imposed except as respects "periodic dues, initiation fees, and assessments." If other conditions are in fact imposed, or if the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case. For we pass narrowly on § 2, Eleventh of the Railway Labor Act. We only hold that the requirement for financial support of the collective bargaining agency by all who receive the benefits of its work is within the power of Congress under the Commerce Clause, and does not violate either the First or the Fifth Amendments. We express no opinion on the use of other conditions to secure or maintain membership in a labor organization operating under a union or closed shop agreement.Reversed

U.S. Supreme CourtRailway Employees' Dept. v. Hanson, 351 U.S. 225 (1956)Railway Employees' Department, AmericanFederation of Labor v. HansonNo. 451Argued May 2, 1956Decided May 21, 1956351 U.S. 225SyllabusClaiming that a "union shop" agreement between an interstate railroad and unions of its employees made pursuant to § 2, Eleventh, of the Railway Labor Act, which expressly authorizes such agreements notwithstanding any state law, violated the First and Fifth Amendments of the Federal Constitution and the "right to work" provision of the Nebraska Constitution, nonunion employees of the railroad sued in a Nebraska state court to enjoin enforcement of such an agreement.Held: on the record in this case, the agreement is valid and enforceable as to these employees. Pp. 351 U. S. 227-238.1. The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates, though it takes a private agreement to invoke the federal sanction. Pp. 351 U. S. 231-232.2. Since § 2, Eleventh, of the Railway Labor Act expressly permits "union shop" agreements notwithstanding any state law, an agreement made pursuant thereto has the imprimatur of the federal law upon it and, by force of the Supremacy Clause of Art. VI of the Constitution, could not be invalidated or vitiated by any state law. P. 351 U. S. 232.3. On the record in this case, the requirement for financial support of a collective bargaining agency by all who receive the benefits of its work is within the power of Congress under the Commerce Clause, and does not violate either the First or the Fifth Amendment. Pp. 351 U. S. 233-238.(a) Enactment of the provision of § 2, Eleventh, of the Railway Labor Act authorizing union shop agreements between interstate railroads and unions of their employees was a valid exercise by Congress of its powers under the Commerce Clause, and it does not violate the Due Process Clause. Pp. 351 U. S. 233-235.(b) The only conditions to union membership authorized by § 2, Eleventh, of the Railway Labor Act are the payment of "periodic dues, initiation fees, and assessments," which relate to Page 351 U. S. 226 financial support of the work of the union in the realm of collective bargaining, and this involves no violation of the First or the Fifth Amendment. Pp. 351 U. S. 235-238.(c) Judgment is reserved a to the validity or enforceability of a union or closed shop agreement if other conditions of union membership are imposed or if the exaction of dues, initiation fees, or assessments is used as a cover for forcing ideological conformity or other action in contravention of the First or the Fifth Amendment. P. 351 U. S. 238.160 Neb. 669, 71 N.W.2d 526, reversed. Page 351 U. S. 227

1967_69

MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner, a German manufacturer of automobiles, is one of the largest users of the ports on the West Coast of the United States, delivering through them more than 40,000 vehicles each year, the majority transported there by vessels chartered by the petitioner, rather than by common carrier. This case grows out of the petitioner's claim that charges imposed upon the unloading of its automobiles at Pacific Coast ports are in violation of the Shipping Act, 1916, as amended. 39 Stat. 728, 46 U.S.C. § 801 et seq. The dispute has a long and somewhat complicated history.The Pacific Maritime Association (the Association) is an employer organization of some 120 principal common carriers by water, stevedoring contractors, and marine terminal operators, representing the Pacific Coast shipping industry. The primary function of the Association is to negotiate and administer collective bargaining contracts with unions representing its members' employees, of which the International Longshoremen's and Warehousemen's Union (ILWU) is one. In late 1960, the Page 390 U. S. 264 Association and ILWU reached a milestone agreement which, it was hoped, would end a long and troubled history of labor discord on the West Coast waterfront. [Footnote 1] The ILWU agreed to the introduction of labor-saving devices and the elimination of certain restrictive work practices. In return. the Association agreed to create, over the period from 1961 to 1966, a "Mechanization and Modernization Fund" of $29,000,000 (the Mech Fund) to be used to mitigate the impact upon employees of technological unemployment. [Footnote 2] The agreement specifically reserved to the Association alone the right to determine how to raise the Mech Fund from its members, at the rate of some $5,000,000 a year.A committee of the Association investigated various possible formulas for collecting the Fund from the stevedoring contractors and terminal operators -- i.e., those Association members who were employers of workers represented by the ILWU. A majority of the committee recommended that the Mech Fund assessment be based solely on tonnage handled, and this recommendation was adopted by the Association membership. [Footnote 3] Under this Page 390 U. S. 265 formula, general cargo was assessed at 27 1/2� per "revenue ton." [Footnote 4] A revenue ton is based either on weight (2,000 lbs. = one ton) or measurement (40 cu. ft. = one ton). Whether tonnage declarations on a particular item of cargo were to be by weight or by measurement was to depend, with one exception, upon how that cargo had customarily been manifested (and reported to the Association for dues purposes) in 1959. The one exception was automobiles, for which there had been no uniform manifesting custom. [Footnote 5] The Association decided that automobiles were to be declared by measurement for Mech Fund purposes, regardless of how they were or had been manifested.Unlike shippers by common carrier, the petitioner must arrange and pay for the unloading of its own chartered vessels upon their arrival in port. For this purpose, it has, since 1954, contracted with Marine Terminals Corporation and Marine Terminals Corporation of Los Angeles (Terminals), which are members of the Association, for the performance of stevedoring and related services in unloading vehicles from the petitioner's chartered ships in West Coast ports, at a negotiated price. Prior to the Mech Fund assessment agreement, Terminals' charge to the petitioner for these unloading services was $10.45 per vehicle, of which about a dollar represented Terminals' profit. When the vehicles were assessed for the Mech Fund by measurement, the assessment came to $2.35 per vehicle -- representing, if passed on to the petitioner, Page 390 U. S. 266 an increase in unloading costs of 22.5%. [Footnote 6] If the vehicles had been assessed by weight (0.9 tons), rather than by measurement (8.7 tons), [Footnote 7] the assessment would have been 25� per vehicle -- an increase of about 2.4%, comparable to the average Mech Fund assessment of 2.2% for all other general cargo. Assessment by measurement, rather than by weight, thus resulted in an assessment rate for the petitioner's automobiles of 10 times that for other West Coast cargo -- although automobiles had less to gain than other cargo from the Mech Fund agreement. [Footnote 8] The petitioner and Terminals both protested these seeming inequities to a committee of the Association set up to handle such claims, but without success. [Footnote 9]The petitioner refused to pay any additional charge resulting from the Association's levy, and Terminals, while continuing to unload Volkswagen automobiles for the petitioner, did not pay its resulting assessment to the Association. The Association sued Terminals in a federal court in California for its failure to pay the Mech Fund assessments; Terminals admitted all the allegations of Page 390 U. S. 267 the complaint and impleaded the petitioner as a defendant. The petitioner then obtained a stay of that action to permit it to invoke the primary jurisdiction of the Federal Maritime Commission, in order to determine the following issues:"1. Whether the assessments claimed from [the petitioner] are being claimed pursuant to an agreement or understanding which is required to be filed with and approved by the Federal Maritime Commission under Section 15 of the Shipping Act, 1916, as amended, 46 U.S.C. 814 (1961), before it is lawful to take any action thereunder, which agreement has not been so filed and approved.""2. Whether the assessments claimed from [the petitioner] result in subjecting the automobile cargoes of [the petitioner] to undue or unreasonable prejudice or disadvantage in violation of Section 16 of the Shipping Act, 1916, as amended, 46 U.S.C. 815 (1961).""3. Whether the assessments claimed from [the petitioner] constitute an unjust and unreasonable practice in violation of Section 17 of the Shipping Act, 1916, as amended, 46 U.S.C. 816 (1961)."The petitioner then began the present proceedings by filing a complaint with the Commission raising the above issues. The petitioner alleged that the Association was dominated by common carriers, [Footnote 10] which had agreed upon the assessment formula in order to shift a disproportionate share of the Mech Fund assessment onto the petitioner, Page 390 U. S. 268 which did not patronize those common carriers. [Footnote 11] The Commission, after a hearing, upheld the initial decision of its examiner and dismissed the complaint, with two dissents. [Footnote 12] The Court of Appeals for the District of Columbia Circuit affirmed, [Footnote 13] and we granted certiorari to consider important questions under the Shipping Act. [Footnote 14]IThe petitioner's primary contention -- supported by the United States, a party respondent -- is that implementation of the Association's formula for levying the Mech Fund assessments was unenforceable, because the agreement among Association members imposing that formula was not filed with the Commission in accord with § 15 of the Act. That section provides that there be filed with the Commission "every agreement" among persons subject to the Act"fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing, or destroying competition; Page 390 U. S. 269 pooling or apportioning earnings, losses, or traffic; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. . . . [Footnote 15]"Until submitted to and approved by the Commission, "it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement. . . ." [Footnote 16] The Commission is directed to disapprove any agreement"that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, Page 390 U. S. 270 or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of [the Act]. [Footnote 17] "Page 390 U. S. 271An agreement filed with and approved by the Commission is immunized from challenge under the antitrust laws. [Footnote 18]The Commission held that, although the Mech Fund assessment formula was a "cooperative working agreement" clearly within the plain language of § 15, it nonetheless was not the kind of agreement required to be filed with the Commission under that section:"Although the literal language of section 15 is broad enough to encompass any 'cooperative working arrangement' entered into by persons subject to the Act, the legislative history is clear that the statute was intended by Congress to apply only to those agreements involving practices which affect that competition which in the absence of the agreement would exist between the parties when dealing with the shipping or traveling public or their representatives.""* * * *" "It is not contested that the membership of [the Association] entered into an agreement as to the manner of assessing its own membership for the collection of the 'Mech' fund. Such an agreement, however, does not fall within the confines of section 15 as, standing by itself, it has no impact upon Page 390 U. S. 272 outsiders. What must be demonstrated before a section 15 agreement may be said to exist is that there was an additional agreement by the [Association] membership to pass on all or a portion of its assessments to the carriers and shippers served by the terminal operators."9 F.M.C. at 82-83.The Court of Appeals affirmed. That court felt itself confined by our decision in Consolo v. FMC, 383 U. S. 607, to determining simply whether the Commission's ruling was supported by "substantial evidence." With "due deference to the expertise of the Commission," it concluded "(albeit with some hesitation) that there is substantial evidence in the record, considered as a whole, to support the Commission's decision." 125 U.S.App.D.C. at 290, 371 F.2d at 755.The issue in this case, however, relates not to the sufficiency of evidence, but to the construction of a statute. The construction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a "reasonable basis in law." NLRB v. Hearst Publications, 322 U. S. 111, 322 U. S. 131; Unemployment Commission v. Aragon, 329 U. S. 143, 329 U. S. 153-154. But the courts are the final authorities on issues of statutory construction, FTC v. Colgate-Palmolive Co., 380 U. S. 374, 380 U. S. 385, and"are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute."NLRB v. Brown, 380 U. S. 278, 380 U. S. 291. "The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia. . . ." American Ship Building Co. v. NLRB, 380 U. S. 300, 380 U. S. 318. Cf. FMB v. Isbrandtsen Co., 356 U. S. 481, 356 U. S. 499-500 (where this Court overturned the Commission's construction of § 14 of the Shipping Act). Page 390 U. S. 273In limiting § 15 to agreements which "affect competition," and in finding that the assessment agreement did not so "affect competition," the Commission, in this case, used that phrase in a highly artificial sense -- by requiring "an additional agreement by the [Association] membership to pass on all or a portion of its assessments. . . ." There is no question that the assessment agreement necessarily affected the cost structures of, and the charges levied by, individual Association members. Most, though not all, of the stevedoring contractors and terminal operators did pass the assessment on. The economic realities were such that many of them had no choice -- a fact of which they apprised the Association at the time the assessment arrangement was being devised. [Footnote 19] In the case of Terminals, the assessment it had to pay on Volkswagen automobiles was more than twice its profit margin.The Commission thus took an extremely narrow view of a statute that uses expansive language. In support of that view, the Commission argued in this Court that a narrow construction of § 15 should be adopted in order to minimize the number of agreements that may receive antitrust exemption. However, antitrust exemption results not when an agreement is submitted for filing, but only when the agreement is actually approved, and, in deciding whether to approve an agreement, the Commission is required under § 15 to consider antitrust Page 390 U. S. 274 implications. [Footnote 20] FMC v. Aktiebolaget Svenska Amerika Linien, ante, p. 390 U. S. 238; see also Isbrandtsen Co. v. United States, 93 U.S.App.D.C. 293, 211 F.2d 5. [Footnote 21]The Commission itself has not heretofore limited § 15 to horizontal agreements among competitors, but has applied it to other types of agreements coming within its literal terms. See, e.g., Agreements Nos. 822 and 8225-1, Between Greater Baton Rouge Port Commission and Cargill, Inc., 5 F.M.B. 648 (1959), affirmed, 287 F.2d 86, and Agreement No. T-4: Terminal Lease Agreement at Long Beach, California, 8 F.M.C. 521 (1965), applying § 15 to lease agreements. [Footnote 22] In the latter case, decided only four months before its decision in the case before us, the Commission said:"Section 15 describes in unambiguous language those agreements that must be filed; it does not speak of agreements per se violative of the Sherman Act. Page 390 U. S. 275 Since the wording of section 15 is clear, we need not refer to the legislative history; there is simply no ambiguity to resolve."8 F.M.C. at 31. To limit § 15 to agreements that "affect competition," as the Commission used that phrase in the present case, simply does not square with the structure of the statute. [Footnote 23]The legislative history offers no support for a different view. The genesis of the Shipping Act was the "Alexander Report" in 1914. [Footnote 24] FMB v. Isbrandtsen Co., 356 U. S. 481, 356 U. S. 490. While it is true that the attention of that congressional committee was focused primarily upon the practices that had cartelized much of the maritime industry, it is clear that the concerns of its inquiry were far more broadly ranging. The report summed up the testimony before the committee:"Nearly all the steamship line representatives . . . expressed themselves as not opposed to government supervision . . . and approval of all agreements or arrangements which steamship lines may have entered into with other steamship lines, with shippers, or with other carriers and transportation agencies. On the other hand, the shippers who appeared as witnesses . . . were, in the great majority of instances, favorable to a comprehensive system of government supervision . . . [and] the approval of contracts, agreements, and arrangements, and the general supervision of all conditions of water transportation which vitally affect the interests of shippers."Alexander Report, at 418. (Emphasis added.) Page 390 U. S. 276 The committee recommended, among other things:"That all carriers engaged in the foreign trade of the United States, parties to any agreements, understandings, or conference arrangements hereinafter referred to, be required to file for approval . . . a copy of all written agreements (or a complete memorandum if the understanding or agreement is oral) entered into (1) with any other steamship companies, firms, or lines engaged directly or indirectly in the American trade, or (2) with American shippers, railroads or other transportation agencies."Alexander Report, at 419-420. Nothing in the legislative history suggests that Congress, in enacting § 15 of the Act, meant to do less than follow this recommendation of the Alexander Report and subject to the scrutiny of a specialized government agency the myriad of restrictive agreements in the maritime industry. [Footnote 25]This is not to say that the Commission is without power to determine, after appropriate administrative proceedings, that some types or classes of agreements coming within the literal provisions of § 15 are of such a de minimis or routine character as not to require formal filing. Since the Commission's decision in the present case, Congress has explicitly given it such authority:"The Federal Maritime Commission, upon application or on its own motion, may by order or rule exempt for the future any class of agreements between persons subject to this chapter or any specified activity of such persons from any requirement of this chapter, or Intercoastal Shipping Act, 1933, Page 390 U. S. 277 where it finds that such exemption will not substantially impair effective regulation by the Federal Maritime Commission, be unjustly discriminatory, or be detrimental to commerce.""The Commission may attach conditions to any such exemptions and may, by order, revoke any such exemption. [Footnote 26]"46 U.S.C. § 833a (1964 ed., Supp. II).But the agreement with which we deal here -- levying $29,000,000 over five years, binding all principal carriers, stevedoring contractors, and terminal operators on the Pacific Coast, and necessarily resulting in substantially increased stevedoring and terminal charges -- was neither de minimis nor routine. We hold that this agreement was required to be filed under § 15 of the Act. Page 390 U. S. 278It is to be emphasized that the only agreement involved in this case is the one among members of the Association allocating the impact of the Mech Fund levy. We are not concerned here with the agreement creating the Association, or with the collective bargaining agreement between the Association and the ILWU. No claim has been made in this case that either of those agreements was subject to the filing requirements of § 15. Those agreements, reflecting the national labor policy of free collective bargaining by representatives of the parties' own unfettered choice, fall in an area of concern to the National Labor Relations Board, and nothing we have said in this opinion is to be understood as questioning their continuing validity. But, in negotiating with the ILWU, the Association insisted that its members were to have the exclusive right to determine how the Mech Fund was to be assessed, and a clause to that effect was included in the collective bargaining agreement. That assessment arrangement, affecting only relationships among Association members and their customers, is all that is before us in this case. Moreover, so far as the record shows, only the assessment on automobiles is now challenged, and there is no reason to suppose that the Commission will not consider expeditious approval of so much of the agreement as is not in dispute.IIThe petitioner also attacked the Association's assessment of its automobiles under § 16 and § 17 of the Shipping Act. Section 16 makes it unlawful "to subject any particular person, locality, or description of traffic to any undue or unreasonable prejudice or disadvantage," [Footnote 27] and Page 390 U. S. 279 § 17 forbids any "unjust or unreasonable" regulation or practice "relating to or connected with the receiving, handling, storing, or delivering of property." [Footnote 28] The Commission ruled that neither of these sections had been violated, and the Court of Appeals affirmed.If the agreement is now filed under § 15, the Commission will be called upon again to consider the effect of §§ 16 and 17, since an agreement that violates a specific provision of the Act must be disapproved. [Footnote 29] Accordingly, it is not inappropriate, without now passing upon the ultimate merits of the §§ 16 and 17 issues, to give brief consideration to the Commission's handling of those issues upon the present record.The Commission ruled that the petitioner had failed to demonstrate any "undue or unreasonable prejudice or disadvantage" under § 16 solely because it had not shown any unequal treatment as between its automobiles and other automobiles or cargo competitive with automobiles. In so ruling, the Commission applied the "competitive relationship" doctrine which it has developed in cases concerning rates for carriage of goods by sea. [Footnote 30] Page 390 U. S. 280 But the Commission, in cases not involving freight rates and the particularized economics that result from a vessel's finite cargo capacity, [Footnote 31] has often found § 16 violations even in the absence of a "competitive relationship." See, e.g., Practices, etc., of San Francisco Bay Area Terminals, 2 U.S.M.C. 588 (1941) and 709 (1944), and Storage Practices at Longview, Washington, 6 F.M.B. 178 (1960), involving storage charges, and New York Foreign Freight Forwarders and Brokers Assn. v. FMC, 337 F.2d 289, involving freight forwarders' fees. In a proceeding subsequent to its decision in the present case, the Commission explicitly dispensed with the competitive relationship requirement with respect to port "free time." Investigation of Free Time Practices -- Port of San Diego, 9 F.M.C. 525 (1966); cf. California v. United States, 320 U. S. 577. See also Investigation on Household Goods, North Atlantic Mediterranean Freight Conference, F.M.C. Docket No. 669 (June 30, 1967). When the agreement in the present case is filed, the Commission may consider anew whether the mere absence of a competitive relationship should foreclose further § 16 inquiry. [Footnote 32]With respect to § 17, the Commission found that the assessment upon the petitioner's automobiles was not Page 390 U. S. 281 "unreasonable," because the petitioner had received "substantial benefits" in return for the assessment, and there was no showing of a deliberate intent to impose an unfair burden upon the petitioner. This, we think, reflects far too narrow a view of § 17. It may be that a relatively small charge imposed uniformly for the benefit of an entire group can be reasonable under § 17 even though not all members of the group receive equal benefits. See Evans Cooperage Co. v. Board of Commissioners of the Port of New Orleans, 6 F.M.B. 415. [Footnote 33] But here, a relatively large charge was unequally imposed. The benefits received by the petitioner may have been substantial, but other cargo received greater benefits at one-tenth the cost. [Footnote 34] Moreover, the question of reasonableness under § 17 does not depend upon unlawful or discriminatory intent. As the Commission itself has said:"[Sections 16 and 17] proscribe and make unlawful certain conduct, without regard to intent. The offense is committed by the mere doing of the act, and the question of intent is not involved."Hellenic Lines Ltd. -- Violation of Sections 16 (First) and 17, 7 F.M.C. 673, 675-676 (1964). Page 390 U. S. 282 Cf. United States v. Illinois Central R. Co., 263 U. S. 515, 263 U. S. 523-526; ICC v. Chicago G. W. R. Co., 209 U. S. 108.The question under § 17 is not whether the petitioner has received some substantial benefit as the result of the Mech Fund assessment, but whether the correlation of that benefit to the charges imposed is reasonable. The "substantial benefits" measure of unreasonableness used by the Commission in this case is far too blunt an instrument. Nothing in the language or history of the statute supports so tortured a construction of the phrase "just and reasonable." The Commission has cited no similar construction of the phrase by any other regulatory agency or court. Indeed, in past decisions, the Commission itself has not applied any such test. See California Stevedore & Ballast Co. v. Stockton Elevators, Inc., 8 F.M.B. 97 (1964), and Practices, etc., of San Francisco Bay Area Terminals, 2 U.S.M.C. 588 (1941), affirmed, 320 U. S. 320 U.S. 577, where the Commission found violations of § 17 even though the benefits received were clearly substantial. The proper inquiry under § 17 is, in a word, whether the charge levied is reasonably related to the service rendered.The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtVolkswagenwerk AG v. FMC, 390 U.S. 261 (1968)Volkswagenwerk Aktiengesellschaft v.Federal Maritime CommissionNo. 69Argued November 13, 1967Decided March 6, 1968390 U.S. 261SyllabusThe Pacific Maritime Association (PMA), representing the Pacific Coast shipping industry employers, and the International Longshoremen's and Warehousemen's Union reached an agreement whereby the union consented to the use of labor-saving devices and the elimination of certain restrictive work practices in return for PMA's promise to create a $29,000,000 fund to mitigate the effect of technological unemployment. The agreement reserved to PMA the right to determine how to raise the fund from its members. PMA approved an assessment per "revenue ton," based either on weight (2,000 pounds) or measurement (40 cubic feet), determined by the manner in which cargo had customarily been manifested, with the exception of automobiles, which were to be declared by measurement. For petitioner's automobiles, the assessment came to $2.35 per vehicle, an increase in unloading costs of 22.5%, rather than 25 cents under an assessment by weight, or about 2.4% increase in costs, comparable to the average fund assessment of 2.2% for all other general cargo. Petitioner obtained a stay of the action brought by PMA to collect the assessment from the terminal company unloading petitioner's automobiles, to permit it to invoke the primary jurisdiction of the Federal Maritime Commission (FMC) to determine whether the assessments were claimed under an agreement required to be filed with and approved by the FMC under § 15 of the Shipping Act, 1916, and whether the assessments violated §§ 16 and 17 of that Act. The FMC dismissed petitioner's complaint, holding that the agreement did not "affect competition," and did not come within § 15 in the absence of an additional agreement by PMA to pass on all or a portion of the assessments to the carriers and shippers served by the terminal operators; that § 16 was not violated, since petitioner had not shown any unequal treatment between its cars and other automobiles or cargo competitive therewith, and that there was no violation of § 17, since the petitioner Page 390 U. S. 262 had received "substantial benefits" in return for the assessment. The Court of Appeals affirmed.Held:1. The agreement was required to be filed with the FMC under § 15 of the Act. Pp. 390 U. S. 268-278.(a) The FMC recognized that the assessment formula was a "cooperative working agreement" clearly within the plain language of § 15. P. 390 U. S. 271.(b) In holding that the agreement did not "affect competition," the FMC ignored economic realities which required most of the assessments to be passed on. P. 390 U. S. 273.(c) The FMC has not previously limited § 15 to horizontal agreements among competitors, but has applied it to other agreements within its literal terms. P. 390 U. S. 274.(d) The legislative history of this broad statute indicates that Congress intended to subject to the scrutiny of a specialized agency the myriad of restrictive maritime agreements. Pp. 390 U. S. 275-276.(e) While the FMC may determine that some de minimis or routine agreements need not be filed under § 15, this agreement, levying $29,000,000, binding the whole Pacific Coast shipping industry, and resulting in substantially increased stevedoring and terminal charges, was neither de minimis nor routine. Pp. 390 U. S. 276-277.(f) The only agreement involved here is the one among PMA members allocating the impact of the fund levy, and only the assessment on automobiles is challenged. P. 390 U. S. 278.2. When the agreement is filed, the FMC may consider anew whether the mere absence of a competitive relationship should foreclose inquiry under § 16. Pp. 390 U. S. 279-280.3. The proper inquiry under § 17 is whether the charge levied is reasonably related to the service rendered. Pp. 390 U. S. 280-282.125 U.S.App.D.C. 282, 371 F.2d 747, reversed and remanded. Page 390 U. S. 263

1996_95-1268

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In this case we consider whether the rule of Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam), that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, extends to passengers as well. We hold that it does.At about 7:30 p.m. on a June evening, Maryland state trooper David Hughes observed a passenger car driving southbound on 1-95 in Baltimore County at a speed of 64 miles per hour. The posted speed limit was 55 miles per hour, and the car had no regular license tag; there was a torn piece of paper reading "Enterprise Rent-A-Car" dangling from its rear. Hughes activated his lights and sirens, signaling the car to pull over, but it continued driving for another mile and a half until it finally did so.During the pursuit, Hughes noticed that there were three occupants in the car and that the two passengers turned to look at him several times, repeatedly ducking below sight level and then reappearing. As Hughes approached the car on foot, the driver alighted and met him halfway. The driver was trembling and appeared extremely nervous, but nonetheless produced a valid Connecticut driver's license. Hughes instructed him to return to the car and retrieve the rental documents, and he complied. During this encounter, Hughes noticed that the front-seat passenger, respondent Jerry Lee Wilson, was sweating and also appeared extremelyCharles W Burson of Tennessee, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Julio A. Brady of the U. S. Virgin Islands, Christine O. Gregoire of Washington, Darrell McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W Schmidt, Robert Wennerholm, James P. Manek, John Kaye, Richard M. Weintraub, and Bernard J. Farber; for the National Association of Police Organizations, Inc., by William J. Johnson; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.411nervous. While the driver was sitting in the driver's seat looking for the rental papers, Hughes ordered Wilson out of the car.When Wilson exited the car, a quantity of crack cocaine fell to the ground. Wilson was then arrested and charged with possession of cocaine with intent to distribute. Before trial, Wilson moved to suppress the evidence, arguing that Hughes' ordering him out of the car constituted an unreasonable seizure under the Fourth Amendment. The Circuit Court for Baltimore County agreed, and granted respondent's motion to suppress. On appeal, the Court of Special Appeals of Maryland affirmed, 106 Md. App. 24, 664 A. 2d 1 (1995), ruling that Pennsylvania v. Mimms does not apply to passengers. The Court of Appeals of Maryland denied certiorari. 340 Md. 502, 667 A. 2d 342 (1995). We granted certiorari, 518 U. S. 1003 (1996), and now reverse.In Mimms, we considered a traffic stop much like the one before us today. There, Mimms had been stopped for driving with an expired license plate, and the officer asked him to step out of his car. When Mimms did so, the officer noticed a bulge in his jacket that proved to be a .38-caliber revolver, whereupon Mimms was arrested for carrying a concealed deadly weapon. Mimms, like Wilson, urged the suppression of the evidence on the ground that the officer's ordering him out of the car was an unreasonable seizure, and the Pennsylvania Supreme Court, like the Court of Special Appeals of Maryland, agreed.We reversed, explaining that "[t]he touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security,'" 434 U. S., at 108109 (quoting Terry v. Ohio, 392 U. S. 1, 19 (1968)), and that reasonableness "depends 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers,'" 434 U. S., at 109 (quoting United States v. Brignoni-Ponce, 422 U. S. 873,412878 (1975)). On the public interest side of the balance, we noted that the State "freely concede[d]" that there had been nothing unusual or suspicious to justify ordering Mimms out of the car, but that it was the officer's "practice to order all drivers [stopped in traffic stops] out of their vehicles as a matter of course" as a "precautionary measure" to protect the officer's safety. 434 U. S., at 109-110. We thought it "too plain for argument" that this justification-officer safety-was "both legitimate and weighty." Id., at 110. In addition, we observed that the danger to the officer of standing by the driver's door and in the path of oncoming traffic might also be "appreciable." Id., at 111.On the other side of the balance, we considered the intrusion into the driver's liberty occasioned by the officer's ordering him out of the car. Noting that the driver's car was already validly stopped for a traffic infraction, we deemed the additional intrusion of asking him to step outside his car "de minimis." Ibid. Accordingly, we concluded that "once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable seizures." Id., at 111, n. 6.Respondent urges, and the lower courts agreed, that this per se rule does not apply to Wilson because he was a passenger, not the driver. Maryland, in turn, argues that we have already implicitly decided this question by our statement in Michigan v. Long, 463 U. S. 1032 (1983), that "[i]n [Mimms], we held that police may order persons out of an automobile during a stop for a traffic violation," id., at 1047-1048 (emphasis added), and by Justice Powell's statement in Rakas v. Illinois, 439 U. S. 128 (1978), that "this Court determined in [Mimms] that passengers in automobiles have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made," id., at 155, n. 4 (Powell, J., joined by Burger, C. J., concurring) (emphasis added). We agree with respondent that the former statement was dictum, and the413latter was contained in a concurrence, so that neither constitutes binding precedent.We must therefore now decide whether the rule of Mimms applies to passengers as well as to drivers.1 On the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger. Regrettably, traffic stops may be dangerous encounters. In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops. Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 71, 33 (1994). In the case of passengers, the danger of the officer's standing in the path of oncoming traffic would not be present except in the case of a passenger in the left rear seat, but the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.2On the personal liberty side of the balance, the case for the passengers is in one sense stronger than that for the driver. There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers. But as a practical1 Respondent argues that, because we have generally eschewed brightline rules in the Fourth Amendment context, see, e. g., Ohio v. Robinette, ante, p. 33, we should not here conclude that passengers may constitutionally be ordered out of lawfully stopped vehicles. But, that we typically avoid per se rules concerning searches and seizures does not mean that we have always done so; Mimms itself drew a bright line, and we believe the principles that underlay that decision apply to passengers as well.2JUSTICE STEVENS' dissenting opinion points out, post, at 416, that these statistics are not further broken down as to assaults by passengers and assaults by drivers. It is, indeed, regrettable that the empirical data on a subject such as this are sparse, but we need not ignore the data which do exist simply because further refinement would be even more helpful. JUSTICE STEVENS agrees that there is "a strong public interest in minimizing" the number of assaults on law officers, ibid., and we believe that our holding today is more likely to accomplish that result than would be the case if his views were to prevail.414matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment. It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver.We think that our opinion in Michigan v. Summers, 452 U. S. 692 (1981), offers guidance by analogy here. There the police had obtained a search warrant for contraband thought to be located in a residence, but when they arrived to execute the warrant they found Summers coming down the front steps. The question in the case depended "upon a determination whether the officers had the authority to require him to re-enter the house and to remain there while they conducted their search." Id., at 695. In holding as it did, the Court said:"Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Id., at 702-703 (footnote omitted).In summary, danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is415for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.3The judgment of the Court of Special Appeals of Maryland is reversed, and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1996SyllabusMARYLAND v. WILSONCERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLANDNo. 95-1268. Argued December 11, 1996-Decided February 19, 1997After stopping a speeding car in which respondent Wilson was a passenger, a Maryland state trooper ordered Wilson out of the car upon noticing his apparent nervousness. When Wilson exited, a quantity of cocaine fell to the ground. He was arrested and charged with possession of cocaine with intent to distribute. The Baltimore County Circuit Court granted his motion to suppress the evidence, deciding that the trooper's ordering him out of the car constituted an unreasonable seizure under the Fourth Amendment. The Maryland Court of Special Appeals affirmed, holding that the rule of Pennsylvania v. Mimms, 434 U. S. 106, that an officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, does not apply to passengers.Held: An officer making a traffic stop may order passengers to get out of the car pending completion of the stop. Statements by the Court in Michigan v. Long, 463 U. S. 1032, 1047-1048 (Mimms "held that police may order persons out of an automobile during a [traffic] stop" (emphasis added)), and by Justice Powell in Rakas v. Illinois, 439 U. S. 128, 155, n. 4 (Mimms held "that passengers ... have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made" (emphasis added)), do not constitute binding precedent, since the former statement was dictum, and the latter was contained in a concurrence. Nevertheless, the Mimms rule applies to passengers as well as to drivers. The Court therein explained that the touchstone of Fourth Amendment analysis is the reasonableness of the particular governmental invasion of a citizen's personal security, 434 U. S., at 108-109, and that reasonableness depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by officers, id., at 109. On the public interest side, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver, as in Mimms, see id., at 109-110, or a passenger, as here. Indeed, the danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. On the personal liberty side, the case for passengers is stronger than that for the driver in the sense that there is probable cause to believe that the driver has committed a minor vehicular offense, see id., at 110, but there is no such reason to stop or detain409passengers. But as a practical matter, passengers are already stopped by virtue of the stop of the vehicle, so that the additional intrusion upon them is minimal. Pp.411-415.106 Md. App. 24, 664 A. 2d 1, reversed and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which KENNEDY, J., joined, post, p. 415. KENNEDY, J., filed a dissenting opinion, post, p. 422.J. Joseph Curran, Jr., Attorney General of Maryland, argued the cause for petitioner. With him on the briefs were Gary E. Bair, Mary Ellen Barbera, and Kathryn Grill Graeff, Assistant Attorneys General.Byron L. Warnken, by appointment of the Court, 519 U. S. 804 (1996), argued the cause and filed a brief for respondent.Attorney General Reno argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, David C. Frederick, and Nina Goodman. **Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Simon B. Karas and Stuart A. Cole, Assistant Attorneys General, joined by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert Butterworth of Florida, James E. Ryan of Illinois, Tom Miller of Iowa, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Tom Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W A. Drew Edmondson of Oklahoma, Theodore Kulongoski of Oregon, Thomas Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles Condon of South Carolina, Mark W Barnett of South Dakota,410Full Text of Opinion

1970_5257

MR. JUSTICE BLACK delivered the opinion of the Court.In this appeal, the guardian (tutrix) of an illegitimate minor child attacks the constitutionality of Louisiana's laws that bar an illegitimate child from sharing equally with legitimates in the estate of their father who had publicly acknowledged the child, but who died without a will. To understand appellant's constitutional arguments and our decision, it is necessary briefly to review the facts giving rise to this dispute. On March 15, 1962, a baby girl, Rita Vincent, was born to Lou Bertha Patterson (now Lou Bertha Labine) in Calcasieu Parish, Louisiana. On May 10, 1962, Lou Bertha Patterson and Ezra Vincent, as authorized by Louisiana law, jointly executed before a notary a Louisiana State Board of Health form acknowledging that Ezra Vincent was the "natural father" of Rita Vincent. [Footnote 1] This public acknowledgment of parentage did not, under Louisiana law, give the child a legal right to share equally with legitimate children in the parent's estate, but it did give her a right to claim support from her parents or their heirs. The acknowledgment also gave the child the capacity under Louisiana law to be a limited beneficiary under her father's will in the event he left a will naming her, which he did not do here.Ezra Vincent died intestate, that is, without a will, on September 16, 1968, in Rapides Parish, Louisiana, leaving substantial property within the State, but no will to direct its distribution. Appellant, as the guardian of Rita Vincent, petitioned in state court for the appointment of an administrator for the father's estate, for Page 401 U. S. 534 a declaration that Rita Vincent is the sole heir of Ezra Vincent, and for an order directing the administrator to pay support and maintenance for the child. In the alternative, appellant sought a declaration that the child was entitled to support and maintenance of $150 per month under a Louisiana child support law. [Footnote 2]The administrator of the succession of Ezra Vincent answered the petition claiming that Vincent's relatives were entitled to the whole estate. He relied for the claim upon two articles of the Louisiana Civil Code of 1870: Art. 206, which provides:"Illegitimate children, though duly acknowledged, cannot claim the rights of legitimate children. . . ."and Art. 919, which provides:"Natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the State."The court ruled that the relatives of the father were his collateral relations, and that, under Louisiana's laws of intestate succession, took his property to the exclusion of acknowledged, but not legitimated, illegitimate children. The court, therefore, dismissed with costs the guardian mother's petition to recognize the child as an heir. The court also ruled that, in view of Social Security payments of $60 per month and Veterans Administration payments of $40 per month available for the support of the child, the guardian for the child was not entitled to support or maintenance from the succession of Ezra Vincent. [Footnote 3] Page 401 U. S. 535 The Louisiana Court of Appeal, Third Circuit, affirmed, and the Supreme Court of Louisiana denied a petition for writ of certiorari. The child's guardian appealed, and we noted probable jurisdiction. 400 U.S. 817 (1970).In this Court, appellant argues that Louisiana's statutory scheme for intestate succession that bars this illegitimate child from sharing in her father's estate constitutes an invidious discrimination against illegitimate children that cannot stand under the Due Process and Equal Protection Clauses of the Constitution. Much reliance is placed upon the Court's decisions in Levy v. Louisiana, 391 U. S. 68 (1968), and Glona v. American Guarantee & Liability Insurance Co., 391 U. S. 73 (1968). For the reasons set out below, we find appellant's reliance on those cases misplaced, and we decline to extend the rationale of those cases where it does not apply. Accordingly, we affirm the decision below.In Levy, the Court held that Louisiana could not, consistently with the Equal Protection Clause, bar an illegitimate child from recovering for the wrongful death of its mother when such recoveries by legitimate children were authorized. The cause of action alleged in Levy was in tort. It was undisputed that Louisiana had created a statutory tort [Footnote 4] and had provided for the survival of the deceased's cause of action, [Footnote 5] so that a large class of persons injured by the tort could recover damages in compensation for their injury. Under those circumstances, the Court held that the State could not totally exclude from Page 401 U. S. 536 the class of potential plaintiffs illegitimate children who were unquestionably injured by the tort that took their mother's life. Levy did not say, and cannot fairly be read to say, that a State can never treat an illegitimate child differently from legitimate offspring. [Footnote 6]The people of Louisiana, through their legislature, have carefully regulated many of the property rights incident to family life. Louisiana law prescribes certain formalities requisite to the contracting of marriage. [Footnote 7] Once marriage is contracted there, husbands have obligations to their wives. [Footnote 8] Fathers have obligations to their children. [Footnote 9] Should the children prosper while the parents fall upon hard times, children have a statutory obligation to support their parents. [Footnote 10] To further strengthen and preserve family ties, Louisiana regulates the disposition of property upon the death of a family man. The surviving spouse is entitled to an interest in the deceased spouse's estate. [Footnote 11] Legitimate children have a right of forced heirship in their father's estate, and can even retrieve property transferred by their father during his lifetime in reduction of their rightful interests. [Footnote 12] Page 401 U. S. 537Louisiana also has a complex set of rules regarding the rights of illegitimate children. Children born out of wedlock and who are never acknowledged by their parents apparently have no right to take property by intestate succession from their father's estate. In some instances, their father may not even bequeath property to them by will. [Footnote 13] Illegitimate children acknowledged by their fathers are "natural children." Natural children can take from their father by intestate succession "to the exclusion only of the State." They may be bequeathed property by their father only to the extent of either one-third or one-fourth of his estate, and then only if their father is not survived by legitimate children or their heirs. [Footnote 14] Finally, children born out of wedlock can be legitimated or adopted, in which case they may take by intestate succession or by will as any other child.These rules for intestate succession may or may not reflect the intent of particular parents. Many will think that it is unfortunate that the rules are so rigid. Others will think differently. But the choices reflected by the intestate succession statute are choices which it is within the power of the State to make. The Federal Constitution does not give this Court the power to overturn the State's choice under the guise of constitutional interpretation because the Justices of this Court believe that they can provide better rules. Of course, it may be said that the rules adopted by the Louisiana Legislature "discriminate" against illegitimates. But the rules also discriminate against collateral relations, as opposed to ascendants, and against ascendants, as opposed to descendants. Other rules determining property rights Page 401 U. S. 538 based on family status also "discriminate" in favor of wives and against "concubines." [Footnote 15] The dissent attempts to distinguish these other "discriminations" on the ground that they have a biological or social basis. There is no biological difference between a wife and a concubine, nor does the Constitution require that there be such a difference before the State may assert its power to protect the wife and her children against the claims of a concubine and her children. The social difference between a wife and a concubine is analogous to the difference between a legitimate and an illegitimate child. One set of relationships is socially sanctioned, legally recognized, and gives rise to various rights and duties. The other set of relationships is illicit, and beyond the recognition of the law. Similarly, the State does not need biological or social reasons for distinguishing between ascendants and descendants. Some of these discriminatory choices are perhaps more closely connected to our conceptions of social justice or the ways in which most dying men wish to dispose of their property than the Louisiana rules governing illegitimate children. It may be possible that some of these choices are more "rational" than the choices inherent in Louisiana's categories of illegitimates. But the power to make rules to establish, protect, and strengthen family life, as well as to regulate the disposition of property left in Louisiana by a man dying there, is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State. Absent a specific constitutional guarantee, it is for that legislature, Page 401 U. S. 539 not the life-tenured judges of this Court, to select from among possible laws. [Footnote 16] We cannot say that Louisiana's policy provides a perfect or even a desirable solution or the one we would have provided for the problem of the property rights of illegitimate children. [Footnote 17] Neither can we say that Louisiana does not have the power to make laws for distribution of property left within the State.We emphasize that this is not a case, like Levy, where the State has created an insurmountable barrier to this illegitimate child. There is not the slightest suggestion in this case that Louisiana has barred this illegitimate from inheriting from her father. Ezra Vincent could have left one-third of his property to his illegitimate daughter had he bothered to follow the simple formalities of executing a will. He could, of course, have legitimated the child by marrying her mother in which case the child could have inherited his property either by intestate succession or by will as any other legitimate child. Finally, he could have awarded his child the benefit of Louisiana's intestate succession statute on the same terms as legitimate children simply by stating in his acknowledgment of paternity his desire to legitimate the little girl. See Bergeron v. Miller, 230 So. 2d 417 (La.App. 1970).In short, we conclude that, in the circumstances presented in this case, there is nothing in the vague generalities of the Equal Protection and Due Process Clauses Page 401 U. S. 540 which empowers this Court to nullify the deliberate choices of the elected representatives of the people of Louisiana.Affirmed

U.S. Supreme CourtLabine v. Vincent, 401 U.S. 532 (1971)Labine v. VincentNo. 5257Argued January 19, 1971Decided March 29, 1971401 U.S. 532SyllabusEzra Vincent died intestate, survived by only collateral relations and an illegitimate daughter, whose guardian (appellant) sued to have her declared Vincent's sole heir. The trial court ruled that, under Louisiana law, the collateral relations took the decedent's property to the exclusion of the daughter, who had been acknowledged by her father but not legitimated. The Louisiana Court of Appeal affirmed. The State Supreme Court denied certiorari. Appellant, relying on Levy v. Louisiana, 391 U. S. 68, contends that Louisiana's intestate succession laws that bar an illegitimate child from sharing equally with legitimate children in the father's estate constitute an invidious discrimination violative of the Due Process and Equal Protection Clauses of the Constitution.Held: The Louisiana statutory intestate succession scheme is within the State's power to establish rules for the protection and strengthening of family life and for the disposition of property, and, in view of various statutory alternatives, none of which was chosen by Vincent, did not (unlike the situation in Levy) constitute an insurmountable barrier to illegitimate children. Pp. 401 U. S. 535-540.255 La. 480, 231 So. 2d 395, affirmed. See: 229 So. 2d 449.BLACK, J., delivered the opinion of the Court, in which BURGER, C.J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. HARLAN, J., filed a concurring opinion, post, p. 401 U. S. 540. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS, WHITE, and MARSHALL, JJ., joined, post, p. 401 U. S. 541. Page 401 U. S. 533

1958_378

MR. JUSTICE HARLAN delivered the opinion of the Court.Appellants have ben convicted of contempt for refusal to answer pertinent questions put to them as witnesses summoned in a state judicial Inquiry into alleged improper practices at the local bar. The sole issue before us is whether this conviction offended the Due Process Clause of the Fourteenth Amendment to the Federal Constitution by reason of the fact that the justice in charge of the Inquiry had required counsel retained by appellants to remain outside the hearing room while they were being interrogated, even though he expressed his readiness to suspend the course of questioning whenever appellants wished to consult with counsel. No claim is made that appellants were not fully represented by counsel in the contempt proceedings themselves, or that such proceedings were otherwise lacking in due process.On January 21, 1957, the Appellate Division of the Supreme Court of the State of New York, Second Department, acting pursuant to § 90 of the State Judiciary Law, 29 N.Y.Laws Ann. § 90 (McKinney 1948), and in response to a petition of the Brooklyn Bar Association charging "ambulance chasing" and related unethical Page 360 U. S. 289 practices among segments of the Kings County Bar, [Footnote 1] ordered an investigation into these alleged conditions by an Additional Special Term of the Supreme Court, Mr. Justice Arkwright presiding. [Footnote 2]Appellants, licensed private detectives and investigators, but not attorneys, appeared before the Special Term pursuant to witness subpoenas, accompanied by counsel. The presiding justice, acting upon the authority of an appellate decision made during the course of this same Inquiry, Matter of M. Anonymous v. Arkwright, 5 A.D.2d 790, 170 N.Y.S.2d 535, leave to appeal denied, 4 N.Y.2d 676, 173 N.Y.S.2d 1025, 149 N.E.2d 538, informed appellants that their counsel would not be allowed in the hearing room while they were being questioned, but that they would be free to consult with him at any time during their interrogation. Solely because of that limitation upon the participation of counsel, appellants thereafter refused to answer all manner of questions put to them. Their conviction for contempt, carrying a sentence of 30 days' imprisonment, followed. [Footnote 3] The Appellate Division affirmed, Application of Anonymous No. 6, 6 A.D.2d 719, 176 N.Y.S.2d 227, and the New York Court of Appeals, finding that Page 360 U. S. 290 "no substantial constitutional question is involved," dismissed ensuing appeals. 4 N.Y.2d 1034, 1035, 177 N.Y.S.2d 687, 152 N.E.2d 651. Appellants, proceeding under 28 U.S.C. § 1257(2), [Footnote 4] then appealed to this Court, and we postponed further consideration of jurisdiction to a hearing on the merits. 358 U.S. 891.Dealing first with the question of our jurisdiction, we think it clear that this appeal must be dismissed. It is predicated on the ground that the state courts held valid under the Federal Constitution § 90, subd. 10 of New York's Judiciary Law (see Note 6 infra), said to be the basis of the Special Term procedure here attacked. However, it appears that the federal constitutionality of § 90, subd. 10 was never "drawn in question" or passed upon in the state courts; the Appellate Division, from whose decision the Court of Appeals denied leave to appeal, simply relied on the earlier cases of Matter of M. Anonymous v. Arkwright, supra, and Matter of S. Anonymous v. Arkwright, 5 A.D.2d 792, 170 N.Y.S.2d 538, which, in turn, appear not to have involved such an adjudication. In these circumstances, we must hold that we lack jurisdiction under 28 U.S.C. § 1257(2). Nevertheless, treating the appeal as a petition for writ of certiorari, we grant the writ. 28 U.S.C. § 2103.We turn to the merits. An understanding of the nature of the proceedings before the Special Term is first necessary. In New York, the traditional powers of the courts Page 360 U. S. 291 over the admission, discipline, and removal of members of the bar is placed by law in the Appellate Division of the State Supreme Court. N.Y. Judiciary Law, § 90. When the Appellate Division is apprised of conditions calling for general inquiry it usually appoints, as here, a Justice of the Supreme Court, sitting at Special Term, to make a preliminary investigation. The duties of such a justice are purely investigatory and advisory, culminating in one or more reports to the Appellate Division upon which future action may then be based. In the words of Mr. Justice Cardozo, then Chief Judge of the New York Court of Appeals, the proceedings at Special Term thus simply constitute a"preliminary inquisition, without adversary parties, neither ending in any decree nor establishing any right . . . a quasi administrative remedy whereby the court is given information that may move it to other acts thereafter. . . ."People ex rel. Karlin v. Culkin, 248 N.Y. 465, 479, 162 N.E. 487, 492.Customarily, the proceedings at Special Term are conducted in private, for reasons which Mr. Justice Cardozo explained in the Karlin case as follows (248 N.Y. at 478-479, 162 N.E. at 492):"The argument is pressed that, in conceding to the court a power of inquisition, we put into its hands a weapon whereby the fair frame of a lawyer, however innocent of wrong, is at the mercy of the tongue of ignorance or malice. Reputation in such a calling is a plant of tender growth, and its bloom, once lost, is not easily restored. The mere summons to appear at such a hearing and make report as to one's conduct may become a slur and a reproach. Dangers are indeed here, but not without a remedy. The remedy is to make the inquisition a secret one in its preliminary stages. This has been done in the First Judicial Page 360 U. S. 292 Department, at least in many instances, by the order of the justice presiding at the hearing. It has been done in the Second Judicial Department . . . by order of the Appellate Division directing the inquiry. A preliminary inquisition . . . is not a sitting of a court within the fair intendment of section 4 of the Judiciary Law, whereby sittings of a court are required to be public. . . . The closest analogue is an inquisition by the grand jury for the discovery of crime."By analogy to grand jury proceedings, counsel are not permitted to attend the examination of witnesses called in such an investigation, cf. People ex rel. McDonald v. Keeler, 99 N.Y. 463, 485, 2 N.E. 615, 626-627, [Footnote 5] although the New York courts have held that the Special Term may, in its discretion, permit such attendance where it appears that the witness himself is a target of the inquiry. See Matter of M. Anonymous v. Arkwright, supra, 5 A.D.2d at 791, 170 N.Y.S.2d at 538.These practices have received legislative approval, evidenced by § 90, subd. 10 of the State Judiciary Law, quoted in the margin, [Footnote 6] and by the Legislature's refusal in 1958 Page 360 U. S. 293 to amend the State Civil Rights Law, 8 N.Y.Laws Ann. § 1-242 (McKinney 1948), so as to require that counsel be allowed to attend the interrogation of witnesses in proceedings of this character. [Footnote 7] Page 360 U. S. 294Thus, what we have here in the Appellate Division's order that the Inquiry be private [Footnote 8] and in the Special Term's exclusion of counsel from the hearing room is not a procedural innovation by a particular court or judge in a particular case, but an expression of established state policy. We are now asked to declare that policy unconstitutional.To do so would not only necessitate our ignoring the weighty considerations which support New York's policy, but would require us to limit state power in this area of investigation far beyond anything indicated by this Court's past "right to counsel" decisions under the Fourteenth Amendment. Although we have held that, in state criminal proceedings, which these are not, Matter of M. Anonymous v. Arkwright, supra, a defendant has an unqualified right to be represented at trial by retained counsel, Chandler v. Fretag, 348 U. S. 3, we have not extended that right to the investigation stages of such proceedings. See Cicenia v. LaGay, 357 U. S. 504; see also Crooker v. California, 357 U. S. 433. Again, while it has been decided that there is a constitutional right to counsel in a criminal contempt proceeding, growing out of a state investigation, conducted before a judge sitting as Page 360 U. S. 295 a "one-man grand jury," In re Oliver, 333 U. S. 257, [Footnote 9] we have held that a witness examined in a state investigation conducted in private is not constitutionally entitled to the assistance of counsel while being interrogated. In re Groban, 352 U. S. 330.In the Groban case, we upheld the constitutionality of an Ohio statute [Footnote 10] which, as construed by the Ohio courts, authorized the Fire Marshal to exclude from the hearing room counsel representing those summoned to testify before him in an investigation into he causes of a fire. We there said (352 U.S. at 352 U. S. 332-333):"The fact that appellants were under a legal duty to speak and that their testimony might provide a basis for criminal charges against them does not mean that they had a constitutional right to the assistance of their counsel. Appellants here are witnesses from whom information was sought as to the cause of the fire. A witness before a grand jury cannot insist, as a matter of constitutional right, on being represented by his counsel, nor can a witness before other investigatory bodies. There is no more reason to allow the presence of counsel before a Fire Marshal trying in the public interest to determine the cause of a fire. Obviously, in these situations, evidence obtained may possibly lay a witness open to criminal charges. When such charges are made in a criminal proceeding, he then may demand the presence of his counsel for his defense. Until then, his protection is the privilege against self-incrimination."(Footnotes omitted.)The Groban case is controlling here, and requires rejection of appellants' constitutional claims. As did Ohio in Groban, New York has a privilege against self-incrimination, Page 360 U. S. 296 N.Y.Const., Art. I, § 6, which was freely exercised by other witnesses in this investigation, [Footnote 11] and was fully available to these appellants. Moreover, the circumstance that this investigation was conducted by an experienced judge, rather than an administrative official, and the fact that appellants, throughout their interrogation, were freely given the right to consult counsel notwithstanding his exclusion from the hearing room, make the constitutional claim here far less tenable than that found wanting in Groban.Appellants seek to escape from Groban by arguing that they were summoned before the Special Term not as mere witnesses, but with an eye to their future prosecution. This contention rests upon an informal "off the record" conversation which appellants and their counsel had with an assistant on the Inquiry's staff some four months before appellants were actually examined. In response to counsel's inquiry as to "what was wanted of his clients in this matter," the assistant made the replies set forth in the margin. [Footnote 12] Page 360 U. S. 297We think that the role in which these appellants were summoned to the Inquiry is to be judged by the actions of the Special Term, not by the statements of a subordinate staff member, evidently motivated by nothing more than a desire to avoid a plea of self-incrimination which would have blocked the Inquiry from obtaining possibly helpful information. The record shows that the Special Term, aware of the claims as to this occurrence, which it caused to be fully explored in the presence of appellants and their counsel, repeatedly assured appellants that they were Page 360 U. S. 298 before the Inquiry solely as witnesses. [Footnote 13] That they might later be faced with criminal charges adds nothing to their present constitutional claim. In re Groban, supra, at 352 U. S. 332-333.The final order of the Court of Appeals of the State of New York must beAffirmed

U.S. Supreme CourtAnonymous Nos. 6 and 7 v. Baker, 360 U.S. 287 (1959)Anonymous Nos. 6 and 7 v. BakerNo. 378Argued March 25, 1959Decided June 15, 1959360 U.S. 287SyllabusAppellants, who are licensed private detectives and private investigators, but not attorneys, were convicted of contempt for refusal to answer pertinent questions put to them as witnesses summoned before a New York judge who, pursuant to court order, was conducting a nonadversary, nonprosecutorial, preliminary factfinding inquiry, analogous to a grand jury proceeding, into alleged unethical practices of attorneys and others acting in concert with them. Appellants did not plead the state privilege against self-incrimination, but based their refusal to testify solely on the fact that their counsel was required to remain outside the hearing room while they were being interrogated, though the judge had expressed his readiness to suspend the questioning whenever appellants wished to consult with counsel. It was customary for such proceedings to be kept secret, like grand jury proceedings, and this practice was sanctioned by New York statute and by the court order authorizing the inquiry.Held:1. Since the validity under the Federal Constitution of the state statute pertaining to such proceedings was not "drawn into question" or passed upon by the state courts in this case, this Court lacks jurisdiction of this appeal under 28 U.S.C. § 1257(2), but certiorari is granted. P. 360 U. S. 290.2. Petitioner's conviction of contempt for refusal to testify in these circumstances did not offend the Due Process Clause of the Fourteenth Amendment. In re Groban, 352 U. S. 330. Pp. 360 U. S. 290-298.(a) The requirement of the authorizing court order that the inquiry be private and the exclusion of counsel for the witnesses from the hearing room were not procedural innovations, but were in accordance with established state policy. Pp. 360 U. S. 290-294.(b) To declare such a policy unconstitutional would necessitate ignoring weighty considerations supporting it, and would require going far beyond anything indicated by this Court's past "right to counsel" decisions under the Fourteenth Amendment. P. 360 U. S. 294-296. Page 360 U. S. 288(c) Notwithstanding an informal statement made by a staff assistant, the record in this case does not warrant a conclusion that appellants were being questioned not merely as witnesses, but with an eye to their future prosecution. Pp. 360 U. S. 296-298.4 N.Y.2d 1034, 1035, 152 N.E.2d 651, affirmed.

1970_55

MR. JUSTICE BRENNAN delivered the opinion of the Court.No. 55 (hereafter Mail Box) draws into question the constitutionality of 39 U.S.C. § 4006 (now 39 U.S.C. § 3006, Postal Reorganization Act,** 84 Stat. 747), under Page 400 U. S. 412 which the Postmaster General, following administrative hearings, may halt use of the mails and of postal money orders for commerce in allegedly obscene materials. No. 58 (hereafter Book Bin) also draws into question the constitutionality of § 4006, and, in addition, the constitutionality of 39 U.S.C. § 4007 (now 39 U.S.C. § 3007), 84 Stat. 748, under which the Postmaster General may obtain a court order permitting him to detain the defendant's incoming mail pending the outcome of § 4006 proceedings against him.39 U.S.C. § 4006 provides in pertinent part:"Upon evidence satisfactory to the Postmaster General that a person is obtaining or attempting to obtain remittances of money or property of any kind through the mail for an obscene . . . matter . . . or is depositing or causing to be deposited in the United States mail information as to where, how, or from whom the same may be obtained, the Postmaster General may --""(1) direct postmasters at the office at which registered letters or other letters or mail arrive, addressed to such a person or to his representative, to return the registered letters or other letters or mail to the sender marked 'Unlawful'; and""(2) forbid the payment by a postmaster to such a person or his representative of any money order or postal note drawn to the order of either and provide for the return to the remitters of the sums named in the money orders or postal notes."Proceedings under § 4006 are conducted according to departmental regulations. A proceeding is begun by the General Counsel of the Post Office Department by written complaint and notice of hearing. 39 CFR §§ 952.5, 952.7, 952.8. The Judicial Officer of the Department holds a trial-type hearing at which a full record is transcribed. He renders an opinion which includes findings Page 400 U. S. 413 of fact and a statement of reasons. 39 CFR §§ 952.9952.25. The decision is to "be rendered with all due speed," 39 CFR § 952.24(a), and there is an administrative appeal. 39 CFR § 952.25. No § 4006 order may issue against the defendant until completion of the administrative proceeding. If, however, the Postmaster General wishes to detain the defendant's incoming mail before the termination of the § 4006 proceedings, he may apply to the United States District Court for the district in which the defendant resides, under 39 U.S.C. § 4007, which in pertinent part provides: [Footnote 1]"In preparation for or during the pendency of proceedings under [§ 4006] of this title, the United Page 400 U. S. 414 States district court in the district in which the defendant receives his mail shall, upon application therefor by the Postmaster General and upon a showing of probable cause to believe the statute is being violated, enter a temporary restraining order and preliminary injunction pursuant to rule 65 of the Federal Rules of Civil Procedure directing the detention of the defendant's incoming mail by the postmaster pending the conclusion of the statutory proceedings and any appeal therefrom. The district court may provide in the order that the detained mail be open to examination by the defendant and such mail be delivered as is clearly not connected with the alleged unlawful activity. An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings. [Footnote 2] "Page 400 U. S. 415In Mail Box, the Postmaster General began administrative proceedings under § 4006 on November 1, 1968. The administrative hearing was concluded December 5, 1968. The Judicial Officer filed his decision December 31, 1968, finding that the specified magazines were obscene, and therefore entered a § 4006 order -- 61 days after the complaint was filed. Mail Box filed a complaint in the United States District Court for the Central District of California seeking a declaratory judgment that § 4006 was unconstitutional and an injunction against enforcement of the administrative order. A three-judge court was convened, and held that 39 U.S.C. § 4006 "is unconstitutional on its face, because it fails to meet the requirements of Freedman v. Maryland (1965) 380 U. S. 51. . . ." 305 F. Supp. 634, 635 (1969). The court therefore vacated the administrative order, directed the delivery "forthwith" of all mail addressed to Mail Box, and enjoined any proceedings to enforce § 4006.In Book Bin, the Postmaster General applied to the District Court for the Northern District of Georgia for a § 4007 order pending the completion of § 4006 proceedings against Book Bin. [Footnote 3] Book Bin counterclaimed, asserting that both §§ 4006 and 4007 were unconstitutional and that their enforcement should be enjoined. A three-judge court was convened, and held both sections unconstitutional. It agreed with the three-judge court in Mail Box that the procedures of § 4006 were fatally deficient under Freedman v. Maryland, 380 U. S. 51 Page 400 U. S. 416 (1965), and also held that the finding under § 4007 merely of "probable cause" to believe material was obscene was not a constitutionally sufficient standard to support a temporary mail detention order. 306 F. Supp. 1023 (1969).We noted probable jurisdiction of the Government's appeals. 397 U.S. 959, 960 (1970). We affirm the judgment in each case.Our discussion appropriately begins with Mr. Justice Holmes' frequently quoted admonition that"The United States may give up the Post Office when it sees fit, but, while it carries it on, the use of the mails is almost as much a part of free speech as the right to use our tongues. . . ."Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U. S. 407, 255 U. S. 437 (1921) (dissenting opinion); see also Lamont v. Postmaster General, 381 U. S. 301 (1965). Since § 4006, on its face, and § 4007, as applied, are procedures designed to deny use of the mails to commercial distributors of obscene literature, those procedures violate the First Amendment unless they include built-in safeguards against curtailment of constitutionally protected expression, for Government"is not free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech."Marcus v. Search Warrant, 367 U. S. 717, 367 U. S. 731 (1961). Rather, the First Amendment requires that procedures be incorporated that"ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. . . . Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards . . . is . . . but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks. . . ."Bantam Books, Page 400 U. S. 417 Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 66 (1963). Since we have recognized that"the line between speech unconditionally guaranteed and speech which may legitimately be regulated . . . is finely drawn, . . . [t]he separation of legitimate from illegitimate speech calls for . . . sensitive tools. . . ."Speiser v. Randall, 357 U. S. 513, 357 U. S. 525 (1958).The procedure established by § 4006 and the implementing regulations omit those "sensitive tools" essential to satisfy the requirements of the First Amendment. The three-judge courts correctly held in these cases that our decision in Freedman v. Maryland, 380 U. S. 51 (1965) compels this conclusion. We there considered the constitutionality of a motion picture censorship procedure administered by a State Board of Censors. We held that, to avoid constitutional infirmity, a scheme of administrative censorship must: place the burdens of initiating judicial review and of proving that the material is unprotected expression on the censor; require "prompt judicial review" -- a final judicial determination on the merits within a specified, brief period -- to prevent the administrative decision of the censor from achieving an effect of finality; and limit to preservation of the status quo for the shortest, fixed period compatible with sound judicial resolution, any restraint imposed in advance of the final judicial determination. 380 U.S. at 380 U. S. 58-60.These safeguards are lacking in the administrative censorship scheme created by §§ 4006, 4007, and the regulations. [Footnote 4]The scheme has no statutory provision requiring governmentally initiated judicial participation in the procedure Page 400 U. S. 418 which bars the magazines from the mails, or even any provision assuring prompt judicial review. The scheme does differ from the Maryland scheme involved in Freedman in that, under the Maryland scheme, the motion picture could not be exhibited pending conclusion of the administrative hearing, whereas, under § 4006, the order to return mail or to refuse to pay money orders is not imposed until there has been an administrative determination that the magazines are obscene. This, however, does not redress the fatal flaw of the procedure in failing to require that the Postmaster General seek to obtain a prompt judicial determination of the obscenity of the material; rather, once the administrative proceedings disapprove the magazines the distributor "must assume the burden of instituting judicial proceedings and of persuading the courts that the . . . [magazines are] protected expression." 380 U.S. at 380 U. S. 59-60. The First Amendment demands that the Government must assume this burden."The teaching of our cases is 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. [Footnote 5]Moreover, once a § 4006 administrative order has been entered against the distributor, there being no provision for judicial review, the Postmaster may stamp as "Unlawful" and immediately return to the sender orders for Page 400 U. S. 419 purchase of the magazines addressed to the distributor, and prohibit the payment of postal money orders to him. Such a scheme"presents peculiar dangers to constitutionally protected speech. . . . Because the censor's business is to censor, there inheres the danger that he may well be less responsive than a court -- part of an independent branch of government -- to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor's determination may in practice be final."380 U.S. at 380 U. S. 57-58. [Footnote 6] Appellants suggest that we avoid the constitutional question raised by the failure of § 4006 to provide that the Government seek a prompt judicial determination by construing that section to deny the administrative order any effect whatever, if judicial review is sought by the distributor, until the completion of that review. Apart from the fact that this suggestion neither requires that the appellants initiate judicial proceedings, nor provides for a prompt judicial determination, it is for Congress, not this Court, to rewrite the statute.The authority of the Postmaster General under § 4007 to apply to a district court for an order directing the detention of the distributor's incoming mail pending the conclusion of the § 4006 administrative proceedings and any appeal therefrom plainly does not remedy the defects in § 4006. That section does not provide a prompt proceeding for a judicial adjudication of the challenged obscenity Page 400 U. S. 420 of the magazine. [Footnote 7] First, it is entirely discretionary with the Attorney General whether to institute a § 4007 action and, therefore, the section does not satisfy the requirement that the appellants assume the burden of seeking a judicial determination of the alleged obscenity of the magazines. Second, the district court is required to grant the relief sought by the Postmaster General upon a showing merely of "probable cause" to believe § 4006 is being violated. We agree with the three-judge court in Book Bin that to satisfy the demand of the First Amendment,"it is vital that prompt judicial review on the issue of obscenity -- rather than merely probable cause -- be assured on the Government's initiative before the severe restrictions in §§ 4006, 4007, are invoked."306 F. Supp. at 1028. Indeed, the statute expressly provides that "An action taken by a court hereunder does not affect or determine any fact at issue in the statutory proceedings." [Footnote 8] Page 400 U. S. 421Moreover, § 4007 does not, in any event, itself meet the requisites of the First Amendment. Any order issued by the district court remains in effect "pending the conclusion of the statutory proceedings and any appeal therefrom." [Footnote 9] Thus, the statute not only fails to provide that the district court should make a final judicial determination of the question of obscenity, expressly giving that authority to the Judicial Officer, but it fails to provide that"[a]ny restraint imposed in advance of a final judicial determination on the merits must . . . be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution."380 U.S. at 380 U. S. 59.The appellees here not only were not afforded "prompt judicial review," but they"can only get full judicial review on the question of obscenity -- by which the Postmaster would be actually bound -- after lengthy administrative proceedings, and then only by [their] own initiative. During the interim, the prolonged threat of an adverse Page 400 U. S. 422 administrat[ive] decision in § 4006 or the reality of a sweeping § 4007 order, will have a severe restriction on the exercise of [appellees'] First Amendment rights -- all without a final judicial determination of obscenity."306 F. Supp. at 1028.The judgments of the three-judge courts in Nos. 55 and 58 areAffirmed

U.S. Supreme CourtBlount v. Rizzi, 400 U.S. 410 (1971)Blount v. RizziNo. 55Argued November 10, 1970Decided January 14, 1971*400 U.S. 410SyllabusTitle 39 U.S.C. § 4006 permits the Postmaster General to stamp as "Unlawful" and return to the sender letters addressed to any person and to prohibit the payment of postal money orders to that person if he finds, on "evidence satisfactory to [him]," that the person is obtaining or seeking money through the mails for "an obscene . . . matter" or is using the mails to distribute information about how such items may be obtained. Under departmental regulations, following complaint and notice of hearing, a Judicial Officer holds a hearing and renders his opinion "with all due speed," from which there is an administrative appeal. Section 4007 permits district courts to order the defendant's incoming mail detained pending completion of the § 4006 proceedings, upon a showing of "probable cause" to believe that § 4006 is being violated, under the standards fixed by Fed.Rule Civ.Proc. 65. In No. 55, appellee, a retail magazine distributor against whom the Postmaster General had instituted a § 4006 proceeding, brought an action in the District Court seeking declaratory and injunctive relief. A three-judge court held the statute unconstitutional for failure to meet the requirements of Freedman v. Maryland, 380 U. S. 51, which held with respect to a scheme of administrative censorship that (1) the censor must initiate judicial review and prove that the material is unprotected expression; (2) "prompt judicial review" is mandatory; and (3) any restraint before a final judicial determination must be limited to the shortest, fixed period compatible with sound judicial resolution. In No. 58, where the Postmaster General applied for a § 4007 order, the District Court, on appellee distributor's counterclaim, held § 4006 unconstitutional under Freedman v. Maryland, supra, and that § 4007's "probable cause" standard was constitutionally insufficient to support a temporary mail detention order.Held: The administrative censorship scheme created by 39 U.S.C. §§ 4006, 4007 Page 400 U. S. 411 violates the First Amendment since it lacks adequate safeguards against undue inhibition of protected expression. Freedman v. Maryland, supra. Pp. 400 U. S. 416-422.(a) The statutory scheme does not require governmentally initiated judicial participation in the procedure barring the magazines from the mails or assuring prompt judicial review. Pp. 417-418.(b) The authority given the Postmaster General under § 4007 to apply for a court order for temporary mail detention does not cure the defects in § 4006, since the procedure is only discretionary and the requirement for prompt judicial review is not satisfied by a "probable cause" finding. Pp. 400 U. S. 419-420.(c) Section 4007 fails to provide that any restraint preceding a final judicial determination "be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution." 380 U.S. at 380 U. S. 59. Pp. 400 U. S. 421-422.No. 55, 305 F. Supp. 634; No. 58, 306 F. Supp. 1023, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, HARLAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BLACK, J., concurred in the result.

2000_00-152

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.The California Labor Code (Code or Labor Code) authorizes the State to order withholding of payments due a contractor on a public works project if a subcontractor on the project fails to comply with certain Code requirements. The Code permits the contractor, in turn, to withhold similar sums from the subcontractor. The Court of Appeals for the Ninth Circuit held that the relevant Code provisions violate the Due Process Clause of the Fourteenth Amendment because the statutory scheme does not afford the subcontractor a hearing before or after such action is taken. We granted certiorari, 531 U. S. 924 (2000), and we reverse.Petitioners are the California Division of Labor Standards Enforcement (DLSE), the California Department of Industrial Relations, and several state officials in their official capacities. Respondent G & G Fire Sprinklers, Inc. (G & G), is a fire-protection company that installs fire sprinkler systems. G & G served as a subcontractor on several California public works projects. "Public works" include construction work done under contract and paid for in whole or part by public funds. Cal. Lab. Code Ann. § 1720 (West Supp. 2001). The department, board, authority, officer, or agent awarding a contract for public work is called the "awarding body." § 1722 (West 1989). The California Labor Code requires that contractors and subcontractors on such projects pay their workers a prevailing wage that is determined by the State. §§ 1771, 1772, 1773 (West 1989 and Supp. 2001). At the time relevant here, if workers were not paid the prevailing wage, the contractor was required to pay each worker the difference between the prevailing wage and the wages paid, in addition to forfeiting a penalty to the State. § 1775192(West Supp. 2001).1 The awarding body was required to include a clause in the contract so stipulating. Ibid.The Labor Code provides that "[b]efore making payments to the contractor of money due under a contract for public work, the awarding body shall withhold and retain therefrom all wages and penalties which have been forfeited pursuant to any stipulation in a contract for public work, and the terms of this chapter." § 1727. If money is withheld from a contractor because of a subcontractor's failure to comply with the Code's provisions, "[i]t shall be lawful for [the] contractor to withhold from [the] subcontractor under him sufficient sums to cover any penalties withheld." § 1729 (West 1989).2The Labor Code permits the contractor, or his assignee, to bring suit against the awarding body "on the contract for alleged breach thereof in not making ... payment" to recover the wages or penalties withheld. §§ 1731, 1732 (West Supp. 2001). The suit must be brought within 90 days of completion of the contract and acceptance of the job. § 1730. Such a suit "is the exclusive remedy of the contrac-1 The Code also imposes restrictions on recordkeeping and working hours, and at the time relevant here, the contractor was similarly penalized if the contractor or subcontractor failed to comply with them. Cal. Lab. Code Ann. §§ 1776(a), (b), (g) (West Supp. 2001),1813 (West 1989). The awarding body was required to include a clause in the contract so stipulating. §§ 1776(h), 1813.Sections 1775, 1776, and 1813 were subsequently amended to provide that both contractors and subcontractors may be penalized for failure to comply with the Labor Code. §§ 1775(a), 1776(g), 1813 (West Supp. 2001). Amendments to § 1775 also state that either the contractor or the subcontractor may pay workers the difference between the prevailing wage and wages paid. § 1775(a).2 Amendments to the Labor Code effective July 1, 2001, impose additional requirements on contractors. See § 1727(b) (West Supp. 2001) (contractor shall withhold money from subcontractor at request of Labor Commissioner in certain circumstances); § 1775(b)(3) (contractor shall take corrective action to halt subcontractor's failure to pay prevailing wages if aware of the failure or be subject to penalties).193tor or his or her assignees." § 1732. The awarding body retains the wages and penalties "pending the outcome of the suit." § 1731.3In 1995, DLSE determined that G & G, as a subcontractor on three public works projects, had violated the Labor Code by failing to pay the prevailing wage and failing to keep and/or furnish payroll records upon request. DLSE issued notices to the awarding bodies on those projects, directing them to withhold from the contractors an amount equal to the wages and penalties forfeited due to G & G's violations. The awarding bodies withheld payment from the contractors, who in turn withheld payment from G & G. The total withheld, according to respondent, exceeded $135,000. App. 68.G & G sued petitioners in the District Court for the Central District of California. G & G sought declaratory and injunctive relief pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983, claiming that the issuance of withholding notices without a hearing constituted a deprivation of property without due process of law in violation of the Fourteenth Amendment. The District Court granted respondent's motion for summary judgment, declared §§ 1727, 1730-1733, 1775, 1776(g), and 1813 of the Labor Code unconstitutional, and enjoined the State from enforcing these provisions3 Sections 1730-1733 of the Code have been repealed, effective July 1, 2001. Section 1742 has replaced them. It provides that "[a]n affected contractor or subcontractor may obtain review of a civil wage and penalty assessment [under the Code] by transmitting a written request to the office of the Labor Commissioner." § 1742(a). The contractor or subcontractor is then entitled to a hearing before the Director of Industrial Relations, who shall appoint an impartial hearing officer. Within 45 days of the hearing, the director shall issue a written decision affirming, modifying, or dismissing the assessment. A contractor or subcontractor may obtain review of the director's decision by filing a petition for a writ of the mandate in state superior court. §§ 1742(b), (c). These provisions are not yet in effect and these procedures were not available to respondent at the time of the withholding of payments at issue here.194against respondent. App. to Pet. for Cert. A85-A87. Petitioners appealed.A divided panel of the Court of Appeals for the Ninth Circuit affirmed. G & G Fire Sprinklers, Inc. v. Bradshaw, 156 F. 3d 893, 898 (1998) (Bradshaw I). The court concluded that G & G "has a property interest in being paid in full for the construction work it has completed," id., at 901, and found that G & G was deprived of that interest "as a result of the state's action," id., at 903. It decided that because subcontractors were "afforded neither a pre- nor postdeprivation hearing when payments [were] withheld," the statutory scheme violated the Due Process Clause of the Fourteenth Amendment. Id., at 904.Following Bradshaw I, we decided American Mfrs. Mut.Ins. Co. v. Sullivan, 526 U. S. 40 (1999), where respondents also alleged a deprivation of property without due process oflaw, in violation of the Fourteenth Amendment. Sullivan involved a challenge to a private insurer's decision to withhold payment for disputed medical treatment pending review of its reasonableness and necessity, as authorized by state law. We held that the insurer's action was not "fairly attributable to the State," and that respondents therefore failed to satisfy a critical element of their § 1983 claim. Id., at 58. We also decided that because state law entitled respondents to reasonable and necessary medical treatment, respondents had no property interest in payment for medical treatment not yet deemed to meet those criteria. Id., at 61. We granted certiorari in Bradshaw I, vacated the judgment of the Court of Appeals, and remanded for reconsideration in light of Sullivan. Bradshaw v. G & G Fire Sprinklers, Inc., 526 U. S. 1061 (1999).On remand, the Court of Appeals reinstated its prior judgment and opinion, again by a divided vote. The court held that the withholding of payments was state action because it was "specifically directed by State officials ... [and] the withholding party has no discretion." G & G Fire195Sprinklers, Inc. v. Bradshaw, 204 F.3d 941, 944 (CA9 2000). In its view, its prior opinion was consistent with Sullivan because it "specifically held that G & G did not have a right to payment of the disputed funds pending the outcome of whatever kind of hearing would be afforded," and "explicitly authorized the withholding of payments pending the hearing." 204 F. 3d, at 943. The court explained that G & G's rights were violated not because it was deprived of immediate payment, but "because the California statutory scheme afforded no hearing at all when state officials directed that payments be withheld." Id., at 943-944.Where a state law such as this is challenged on due process grounds, we inquire whether the State has deprived the claimant of a protected property interest, and whether the State's procedures comport with due process. Sullivan, supra, at 59. We assume, without deciding, that the withholding of money due respondent under its contracts occurred under color of state law, and that, as the Court of Appeals concluded, respondent has a property interest of the kind we considered in Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982), in its claim for payment under its contracts. 204 F. 3d, at 943-944. Because we believe that California law affords respondent sufficient opportunity to pursue that claim in state court, we conclude that the California statutory scheme does not deprive G & G of its claim for payment without due process of law. See Logan, supra, at 433 ("[T]he Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged").The Court of Appeals relied upon several of our cases dealing with claims of deprivation of a property interest without due process to hold that G & G was entitled to a reasonably prompt hearing when payments were withheld. Bradshaw I, supra, at 903-904 (citing United States v. James Daniel Good Real Property, 510 U. S. 43 (1993); FDIC v. Mallen, 486 U. S. 230 (1988); Barry v. Barchi, 443 U. S. 55196(1979)). In Good, we held that the Government must afford the owner of a house subject to forfeiture as property used to commit or to facilitate commission of a federal drug offense notice and a hearing before seizing the property. 510 U. S., at 62. In Barchi, we held that a racetrack trainer suspended for 15 days on suspicion of horse drugging was entitled to a prompt postdeprivation administrative or judicial hearing. 443 U. S., at 63-64. And in Mallen, we held that the president of a Federal Deposit Insurance Corporation (FDIC) insured bank suspended from office by the FDIC was accorded due process by a notice and hearing procedure which would render a decision within 90 days of the suspension. 486 U. S., at 241-243. See also Sniadach v. Family Finance Corp. of Bay View, 395 U. S. 337 (1969) (holding that due process requires notice and a hearing before wages may be garnished).In each of these cases, the claimant was denied a right by virtue of which he was presently entitled either to exercise ownership dominion over real or personal property, or to pursue a gainful occupation. Unlike those claimants, respondent has not been denied any present entitlement. G & G has been deprived of payment that it contends it is owed under a contract, based on the State's determination that G & G failed to comply with the contract's terms. G & G has only a claim that it did comply with those terms and therefore that it is entitled to be paid in full. Though we assume for purposes of decision here that G & G has a property interest in its claim for payment, see supra, at 195, it is an interest, unlike the interests discussed above, that can be fully protected by an ordinary breach-of-contract suit.In Cafeteria & Restaurant Workers v. McElroy, 367 U. S.886, 895 (1961) (citations omitted), we said:"The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. '''[D]ue process," unlike some legal rules, is not a technical conception with a fixed197content unrelated to time, place and circumstances.' It is 'compounded of history, reason, the past course of decisions .... '"We hold that if California makes ordinary judicial process available to respondent for resolving its contractual dispute, that process is due process.The California Labor Code provides that "the contractor or his or her assignee" may sue the awarding body "on the contract for alleged breach thereof" for "the recovery of wages or penalties." §§ 1731, 1732 (West Supp. 2001). There is no basis here to conclude that the contractor would refuse to assign the right of suit to its subcontractor. In fact, respondent stated at oral argument that it has sued awarding bodies in state superior court pursuant to §§ 17311733 of the Labor Code to recover payments withheld on previous projects where it served as a subcontractor. See Tr. of Oral Arg. 27, 40-41, 49-50. Presumably, respondent brought suit as an assignee of the contractors on those projects, as the Code requires. § 1732 (West Supp. 2001). Thus, the Labor Code, by allowing assignment, provides a means by which a subcontractor may bring a claim for breach of contract to recover wages and penalties withheld.Respondent complains that a suit under the Labor Code is inadequate because the awarding body retains the wages and penalties "pending the outcome of the suit," § 1731, which may last several years. Tr. of Oral Arg. 51. A lawsuit of that duration, while undoubtedly something of a hardship, cannot be said to deprive respondent of its claim for payment under the contract. Lawsuits are not known for expeditiously resolving claims, and the standard practice in breach-of-contract suits is to award damages, if appropriate, only at the conclusion of the case.Even if respondent could not obtain assignment of the right to sue the awarding body under the contract, it appears that a suit for breach of contract against the contractor remains available under California common law. See 1198B. Witkin, Summary of California Law §§ 791, 797 (9th ed. 1987) (defining breach as the "unjustified or unexcused ... failure to perform a contract" and describing the remedies available under state law). To be sure, § 1732 of the Labor Code provides that suit on the contract against the awarding body is the "exclusive remedy of the contractor or his or her assignees" with respect to recovery of withheld wages and penalties. § 1732 (West Supp. 2001). But the remedy is exclusive only with respect to the contractor and his assignees, and thus by its terms not the exclusive remedy for a subcontractor who does not receive assignment. See, e. g., J & K Painting Co., Inc. v. Bradshaw, 45 Cal. App. 4th 1394,1402, 53 Cal. Rptr. 2d 496, 501 (1996) (allowing subcontractor to challenge Labor Commissioner's action by petition for a writ of the mandate).In J & K Painting, the California Court of Appeal rejected the argument that § 1732 requires a subcontractor to obtain an assignment and that failure to do so is "fatal to any other attempt to secure relief." Id., at 1401, n.7, 53 Cal. Rptr. 2d, at 501, n.7. The Labor Code does not expressly impose such a requirement, and that court declined to infer an intent to "create remedial exclusivity" in this context. Ibid. It thus appears that subcontractors like respondent may pursue their claims for payment by bringing a standard breach-of-contract suit against the contractor under California law. Our view is necessarily tentative, since the final determination of the question rests in the hands of the California courts, but respondent has not convinced us that this avenue of relief is closed to it. See id., at 1401, and n. 4, 53 Cal. Rptr. 2d, at 500, and n. 4 (noting that the contractor might assert a variety of defenses to the subcontractor's suit for breach of contract without evaluating their soundness). As the party challenging the statutory withholding scheme, respondent bears the burden of demonstrating its unconstitutionality. Cf. INS v. Chadha, 462 U. S. 919, 944 (1983) (statutes presumed constitutional). We199therefore conclude that the relevant provisions of the California Labor Code do not deprive respondent of property without due process of law. Accordingly, the judgment of the Court of Appeals is reversed.It is so ordered

OCTOBER TERM, 2000SyllabusLUJAN, LABOR COMMISSIONER OF CALIFORNIA, ET AL. V. G & G FIRE SPRINKLERS, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 00-152. Argued February 26, 200l-Decided April 17, 2001The California Labor Code (Code) authorizes the State to order withholding of payments due a contractor on a public works project if a subcontractor on the project fails to comply with certain Code requirements; permits the contractor, in turn, to withhold similar sums from the subcontractor; and permits the contractor, or his assignee, to sue the awarding body for alleged breach of the contract in not making payment to recover the wages or penalties withheld. After petitioner State Division of Labor Standards Enforcement (DLSE) determined that respondent G & G Fire Sprinklers, Inc. (G & G), as a subcontractor on three public works projects, had violated the Code, it issued notices directing the awarding bodies on those projects to withhold from the contractors an amount equal to the wages and penalties forfeited due to G & G's violations. The awarding bodies withheld payment from the contractors, who in turn withheld G & G's payment. G & G filed a 42 U. S. C. § 1983 suit against DLSE and other state petitioners in the District Court, claiming that the issuance of the notices without a hearing deprived it of property without due process in violation of the Fourteenth Amendment. The court granted G & G summary judgment, declared the relevant Code sections unconstitutional, and enjoined the State from enforcing the provisions against G & G. The Ninth Circuit affirmed. This Court granted certiorari, vacated that judgment, and remanded for reconsideration in light of its decision in American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U. S. 40, that the respondents there had no property interest in payment for disputed medical treatment pending review of the treatment's reasonableness and necessity, as authorized by state law. On remand, the Ninth Circuit reinstated its prior judgment and opinion, explaining that G & G's rights were violated not because it was deprived of immediate payment, but because the state statutory scheme afforded no hearing at all.Held: Because state law affords G & G sufficient opportunity to pursue its claim for payment under its contracts in state court, the statutory scheme does not deprive it of due process. In each of this Court's190cases relied upon by the Ninth Circuit, the claimant was denied a right by virtue of which he was presently entitled either to exercise ownership dominion over real or personal property, or to pursue a gainful occupation. See, e. g., United States v. James Daniel Good Real Property, 510 U. S. 43, 62. Unlike those claimants, G & G has not been deprived of any present entitlement. It has been deprived of payment that it contends it is owed under a contract, based on the State's determination that it failed to comply with the contract's terms. That property interest can be fully protected by an ordinary breach-of-contract suit. If California makes ordinary judicial process available to G & G for resolving its contractual dispute, that process is due process. Here, the Code, by allowing a contractor to assign the right of suit, provides a means by which a subcontractor may bring a breach-of-contract suit to recover withheld payments. That damages may not be awarded until the suit's conclusion does not deprive G & G of its claim. Even if G & G could not obtain assignment, it appears that a breach-ofcontract suit against the contractor remains available under state common law, although final determination of the question rests in the hands of the California courts. Pp. 195-199.204 F.3d 941, reversed.REHNQUIST, C. J., delivered the opinion for a unanimous Court.Thomas S. Kerrigan argued the cause and filed briefs for petitioners.Jeffrey A. Lamken 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, Mark B. Stern, Jacob M. Lewis, and Daniel L. Kaplan.Stephen A. Seideman argued the cause and filed a brief for respondent. **Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, Scott A. Kronland, and Laurence Gold; and for the Port of Oakland et al. by David L. Alexander and Christopher H. Alonzi.191Full Text of Opinion

1960_284

MR. JUSTICE CLARK delivered the opinion of the Court.We are asked to decide in this case whether it was an unfair labor practice for both an employer and a union to enter into an agreement under which the employer recognized the union as exclusive bargaining representative of certain of his employees although, in fact, only a minority of those employees had authorized the union to represent their interests. The Board found [Footnote 1] that, by extending such recognition, even though done in the good faith belief that the union had the consent of a majority of employees in the appropriate bargaining unit, the employer interfered with the organizational rights of his employees in violation of § 8(a)(1) of the National Labor Relations Act, and that such recognition also constituted unlawful support to a labor organization in violation Page 366 U. S. 733 of § 8(a)(2). [Footnote 2] In addition, the Board found that the union violated § 8(b)(1)(A) [Footnote 3] by its acceptance of exclusive bargaining authority at a time when, in fact, it did not have the support of a majority of the employees, and this in spite of its bona fide belief that it did. Accordingly, the Board ordered the unfair labor practices discontinued and directed the holding of a representation election. The Court of Appeals, by a divided vote, granted enforcement, 108 U.S.App.D.C. 68, 280 F.2d 616. We granted certiorari. 364 U.S. 811. We agree with the Board and the Court of Appeals that such extension and acceptance of recognition constitute unfair labor practices, and that the remedy provided was appropriate.In October, 1956, the petitioner union initiated an organizational campaign at Bernhard-Altmann Texas Corporation's knitwear manufacturing plant in San Antonio, Texas. No other labor organization was similarly engaged at that time. During the course of that campaign, on July 29, 1957, certain of the company's Topping Department employees went on strike in protest against a wage reduction. That dispute was in no way related to the union campaign, however, and the organizational efforts were continued during the strike. Some of the Page 366 U. S. 734 striking employees had signed authorization cards solicited by the union during its drive, and, while the strike was in progress, the union entered upon a course of negotiations with the employer. As a result of those negotiations, held in New York City where the home offices of both were located, on August 30, 1957, the employer and union signed a "memorandum of understanding." In that memorandum, the company recognized the union as exclusive bargaining representative of "all production and shipping employees." The union representative asserted that the union's comparison of the employee authorization cards in its possession with the number of eligible employees representatives of the company furnished it indicated that the union had in fact secured such cards from a majority of employees in the unit. Neither employer nor union made any effort at that time to check the cards in the union's possession against the employee roll, or otherwise, to ascertain with any degree of certainty that the union's assertion, later found by the Board to be erroneous, [Footnote 4] was founded on fact, rather than upon good faith assumption. The agreement, containing no union security provisions, called for the ending of the strike and for certain improved wages and conditions of employment. It also provided that a "formal agreement containing these terms" would "be promptly drafted . . . and signed by both parties within the next two weeks."Thereafter, on October 10, 1957, a formal collective bargaining agreement, embodying the terms of the August 30 memorandum, was signed by the parties. The bargaining unit description set out in the formal contract, Page 366 U. S. 735 although more specific, conformed to that contained in the prior memorandum. It is not disputed that, as of execution of the formal contract, the union in fact represented a clear majority of employees in the appropriate unit. [Footnote 5] In upholding the complaints filed against the employer and union by the General Counsel, the Board decided [Footnote 6] that the employer's good faith belief that the union in fact represented a majority of employees in the unit on the critical date of the memorandum of understanding was not a defense, "particularly where, as here, the Company made no effort to check the authorization cards against its payroll records." 122 N.L.R.B. 1289, 1292. Noting that the union was "actively seeking recognition at the time such recognition was granted," and that "the Union was [not] the passive recipient of an unsolicited gift bestowed by the Company," the Board found that the union's execution of the August 30 agreement was a "direct deprivation" of the nonconsenting majority employees' organizational and bargaining rights. At pp. 1292, 1293, note 9. Accordingly, the Board ordered the employer to withhold all recognition from the union and to cease giving effect to agreements entered into with the union; [Footnote 7] the union was ordered to cease acting as bargaining representative of any of the employees until such time as a Board conducted election demonstrated its majority status, and to refrain from seeking to enforce the agreements previously entered. Page 366 U. S. 736The Court of Appeals found it difficult to "conceive of a clearer restraint on the employees' right of self-organization than for their employer to enter into a collective bargaining agreement with a minority of the employees." 280 F.2d at 619. The court distinguished our decision in Labor Board v. Drivers Local Union No. 639, 362 U. S. 274, on the ground that there was involved here neither recognitional nor organizational picketing. The court held that the bona fides of the parties was irrelevant except to the extent that it "was arrived at through an adequate effort to determine the true facts of the situation." 280 F.2d at 622.At the outset, we reject as without relevance to our decision the fact that, as of the execution date of the formal agreement on October 10, petitioner represented a majority of the employees. As the Court of Appeals indicated, the recognition of the minority union on August 30, 1957, was "a fait accompli depriving the majority of the employees of their guaranteed right to choose their own representative." 280 F.2d at 621. It is, therefore, of no consequence that petitioner may have acquired, by October 10, the necessary majority if, during the interim, it was acting unlawfully. Indeed, such acquisition of majority status itself might indicate that the recognition secured by the August 30 agreement afforded petitioner a deceptive cloak of authority with which to persuasively elicit additional employee support.Nor does this case directly involve a strike. The strike which occurred was in protest against a wage reduction, and had nothing to do with petitioner's quest for recognition. Likewise, no question of picketing is presented. Lastly, the violation which the Board found was the grant by the employer of exclusive representation status to a minority union, as distinguished from an employer's bargaining with a minority union for its members only. Therefore, the exclusive representation provision is the Page 366 U. S. 737 vice in the agreement, and discussion of "collective bargaining," as distinguished from "exclusive recognition," is pointless. [Footnote 8] Moreover, the insistence that we hold the agreement valid and enforceable as to those employees who consented to it must be rejected. On the facts shown, the agreement must fail in its entirety. It was obtained under the erroneous claim of majority representation. Perhaps the employer would not have entered into it if he had known the facts. Quite apart from other conceivable situations, the unlawful genesis of this agreement precludes its partial validity.In their selection of a bargaining representative, § 9(a) of the Wagner Act guarantees employees freedom of choice and majority rule. J. I. Case Co. v. Labor Board, 321 U. S. 332, 321 U. S. 339. In short, as we said in Brooks v. Labor Board, 348 U. S. 96, 348 U. S. 103, the Act placed "a nonconsenting minority under the bargaining responsibility of an agency selected by a majority of the workers." Here, however, the reverse has been shown to be the case. Bernhard-Altmann granted exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the nonconsenting majority. There could be no clearer abridgment of § 7 of the Act, assuring employees the right "to bargain collectively through representatives of their own choosing" or "to refrain from" such activity. [Footnote 9] It follows, without need Page 366 U. S. 738 of further demonstration, that the employer activity found present here violated § 8(a)(1) of the Act, which prohibits employer interference with, and restraint of, employee exercise of § 7 rights. Section 8(a)(2) of the Act makes it an unfair labor practice for an employer to "contribute . . . support" to a labor organization. The law has long been settled that a grant of exclusive recognition to a minority union constitutes unlawful support in violation of that section, because the union so favored is given "a marked advantage over any other in securing the adherence of employees," Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261, 303 U. S. 267. In the Taft-Hartley Law, Congress added § 8(b)(1)(A) to the Wagner Act, prohibiting, as the Court of Appeals held, "unions from invading the rights of employees under § 7 in a fashion comparable to the activities of employers prohibited under § 8(a)(1)." 280 F.2d at 620. It was the intent of Congress to impose upon unions the same restrictions which the Wagner Act imposed on employers with respect to violations of employee rights. [Footnote 10]The petitioner, while taking no issue with the fact of its minority status on the critical date, maintains that both Bernhard-Altmann's and its own good faith beliefs in petitioner's majority status are a complete defense. To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of Page 366 U. S. 739 the Act -- that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives. [Footnote 11] We find nothing in the statutory language prescribing scienter as an element of the unfair labor practices are involved. The act made unlawful by § 8(a)(2) is employer support of a minority union. Here, that support is an accomplished fact. More need not be shown, for, even if mistakenly, the employees' rights have been invaded. It follows that prohibited conduct cannot be excused by a showing of good faith. [Footnote 12]This conclusion, while giving the employee only the protection assured him by the Act, places no particular hardship on the employer or the union. It merely requires that recognition be withheld until the Board-conducted election results in majority selection of a representative. The Board's order here, as we might infer from the employer's failure to resist its enforcement, would apparently result in similarly slight hardship upon it. We do not share petitioner's apprehension that holding such conduct unlawful will somehow induce a breakdown, or seriously impede the progress of collective bargaining. If an employer takes reasonable steps to verify union claims, themselves advanced only after careful estimate -- precisely what Bernhard-Altmann and petitioner failed to do here -- he can readily ascertain their validity and obviate a Board election. We fail to see any onerous burden involved in requiring responsible negotiators to be careful, by cross-checking, for example, well analyzed employer records with union listings or Page 366 U. S. 740 authorization cards. Individual and collective employee rights may not be trampled upon merely because it is inconvenient to avoid doing so. Moreover, no penalty is attached to the violation. Assuming that an employer in good faith accepts or rejects a union claim of majority status, the validity of his decision may be tested in an unfair labor practice proceeding. [Footnote 13] If he is found to have erred in extending or withholding recognition, he is subject only to a remedial order requiring him to conform his conduct to the norms set out in the Act, as was the case here. No further penalty results. We believe the Board's remedial order is the proper one in such cases. Labor Board v. District 50, U.M.W, 355 U. S. 453.Affirmed

U.S. Supreme CourtGarment Workers v. Labor Board, 366 U.S. 731 (1961)International Ladies' Garment Workers' Union, AFL-CIO v.National Labor Relations BoardNo. 284Argued April 17, 1961Decided June 5, 1961366 U.S. 731SyllabusIn the bona fide but mistaken belief that a majority of the employees in the appropriate bargaining unit had authorized petitioner union to represent their interests, the union and the employer entered into an agreement under which the employer recognized the union as the exclusive bargaining representative of certain of its employees, although, in fact, only a minority of those employees had authorized the union to represent their interests. The Nation Labor Relations Board found that, by extending such recognition, the employer interfered with the organizational rights of its employees in violation of § 8(a)(1) of the National Labor Relations Act and gave unlawful support to a labor organization in violation of § 8(a)(2), and that the union violated § 8(b)(1)(A) by its acceptance of exclusive bargaining authority. The Board ordered the unfair labor practices discontinued and directed the holding of a representation election. The Court of Appeals granted enforcement of the Board's order.Held: the Board and the Court of Appeals correctly held that such extension and acceptance of recognition constituted unfair labor practices; the remedy provided was appropriate; and the judgment is affirmed. Pp. 366 U. S. 732-740.(a) A different conclusion is not required by the fact that the union subsequently obtained authorization from a majority of the employees to represent their interests, since the earlier recognition of the minority union was a fait accompli depriving the majority of the employees of their guaranteed right to choose their own representative. P. 366 U. S. 736.(b) The agreement was void in its entirety, and it cannot be held valid and enforcible as to those employees who consented to it. Pp. 366 U. S. 736-737.(c) By granting exclusive bargaining status to a union selected by a minority of its employees, thereby impressing that union upon Page 366 U. S. 732 the nonconsenting majority, the employer violated both § 8(a)(1) and § 8(a)(2). Pp. 366 U. S. 737-738.(d) The employer's bona fide belief in the majority status of the union is no defense. Pp. 366 U. S. 738-739.(e) The remedy provided by the Board's order was proper. Pp. 366 U. S. 739-740.108 U.S.App.D.C. 68, 280 F.2d 616, affirmed.

1997_96-871

overruling Albrecht, the Court does not hold that all vertical maximum price fixing is per se lawful, but simply that it should be evaluated under the rule of reason, which can effectively identify those situations in which it amounts to anticompetitive conduct. The question whether respondents are entitled to recover damages in light of this Court's overruling of Albrecht should be reviewed by the Court of Appeals in the first instance. Pp. 20-22.93 F.3d 1358, vacated and remanded.O'CONNOR, J., delivered the opinion for a unanimous Court.John Baumgartner argued the cause for petitioner. With him on the briefs was Paul Kalin ich.Acting Assistant Attorney General Klein argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Melamed, Edward C. DuMont, Catherine G. O'Sullivan, and David Seidman.Anthony S. DiVincenzo argued the cause and filed a brief for respondents.Pamela Jones Harbour, Deputy Attorney General of New York, argued the cause for the state parties as amici curiae urging affirmance. With her on the brief were Dennis C. Vacco, Attorney General of New York, Barbara Gott Billet, Solicitor General, and Stephen D. Houck, Robert L. Hubbard, Darrell M. Joseph, and John A. Ioannou, Assistant Attorneys General, Bruce M. Botelho, Attorney General of Alaska, and Daveed A. Schwartz, Assistant Attorney General, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, and J. Jordan Abbott, Assistant Attorney General, Richard Blumenthal, Attorney General of Connecticut, M. Jane Brady, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, and Patricia A. Conners, Assistant Attorney General, Calvin E. Halloway, Sr., Attorney General of Guam, Margery S. Bronster, Attorney General of Hawaii, Alan G. Lance, Attorney6CounselGeneral of Idaho, and Brett T. DeLange, Deputy Attorney General, Jim Ryan, Attorney General of Illinois, and Barbara Preiner, Solicitor General, Thomas J. Miller, Attorney General of Iowa, and Elizabeth M. Osenbaugh, Solicitor General, Carla J. Stovall, Attorney General of Kansas, and John W Campbell, Deputy Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, and Ellen S. Cooper, Assistant Attorney General, Frank J. Kelley, Attorney General of Michigan, and Fredrick H. Hoffecker, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, and James F. Steel, Deputy Attorney General, Joseph P. Mazurek, Attorney General of Montana, Frankie Sue Del Papa, Attorney General of N evada, Steven M. Houran, Acting Attorney General of New Hampshire, and Walter L. Maroney, Senior Assistant Attorney General, Peter Verniero, Attorney General of New Jersey, and Laurel A. Price, Deputy Attorney General, Tom Udall, Attorney General of New Mexico, and Susan G. White, Assistant Attorney General, Michael F. Easley, Attorney General of North Carolina, and K. D. Sturgis, Assistant Attorney General, Heidi Heitkamp, Attorney General of North Dakota, and Laurie J. Loveland, Solicitor General, D. Michael Fisher, Attorney General of Pennsylvania, and James A. Donahue III, Acting Chief Deputy Attorney General, Jeffrey B. Pine, Attorney General of Rhode Island, Mark Barnett, Attorney General of South Dakota, John Knox Walkup, Attorney General of Tennessee, Michael E. Moore, Solicitor General, and Dennis Garvey, Interim Deputy Attorney General, Dan Morales, Attorney General of Texas, Jorge Vega, First Assistant Attorney General, and Laquita A. Hamilton, Deputy Attorney General, James S. Gilmore III, Attorney General of Virginia, and Frank Seales, Jr., Senior Assistant Attorney General, Christine O. Gregoire, Attorney General of Washington, and Jon P. Ferguson, Darrell v: McGraw, Jr., Attorney General of West Virginia, James E. Doyle, Attorney General of Wisconsin,7and Kevin J. O'Connor, Assistant Attorney General, and William U. Hill, Attorney General of Wyoming.*JUSTICE O'CONNOR delivered the opinion of the Court. Under § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, "[e]very contract, combination ... , or conspiracy, in restraint of trade" is illegal. In Albrecht v. Herald Co., 390 U. S. 145 (1968), this Court held that vertical maximum price fixing is a per se violation of that statute. In this case, we are asked to reconsider that decision in light of subsequent decisions of this Court. We conclude that Albrecht should be overruled.IRespondents, Barkat U. Khan and his corporation, entered into an agreement with petitioner, State Oil Company, to lease and operate a gas station and convenience store owned*Briefs of amici curiae urging reversal were filed for the American Automobile Manufacturers Association et al. by Stephen M. Shapiro, Roy T. Englert, Jr., Donald M. Falk, Phillip D. Brady, and Charles H. Lockwood II; for the American Petroleum Institute by Edwin M. Zimmerman, Robert A. Long, Jr., G. William Frick, Harry M. Ng, and Douglas W Morris; for the Business Roundtable by Thomas B. Leary and Robert C. Weinbaum; and for the Newspaper Association of America et al. by William T. Lifiand, Patricia Farren, David S. J. Brown, Rene P. Milam, Peter C. Gould, Andrew Merdek, William T. Garcia, Cristina L. Mendoza, and George Freeman.Briefs of amici curiae were filed for the Association of the Bar of the City of New York by Richard M. Steuer; for the Coalition for Fair Consumer Pricing by Steven B. Feirman, Barry M. Heller, H. Bret Lowell, Philip F. Zeidman, and Stanley J. Adelman; for the Minnesota Service Station and Convenience Store Association et al. by Gary E. Persian and Paul E. Slater; for the National Association of Manufacturers by Mark L. Davidson, Jan S. Amundson, and Quentin Riegel; for the National Automobile Dealers Association by Paul R. Norman; for the National Beer Wholesalers Association, Inc., by Ernest Gellhorn, Donald I. Baker, and W Todd Miller; and for the Service Station Dealers of America by Peter H. Gunst.8by State Oil. The agreement provided that respondents would obtain the station's gasoline supply from State Oil at a price equal to a suggested retail price set by State Oil, less a margin of 3.25 cents per gallon. Under the agreement, respondents could charge any amount for gasoline sold to the station's customers, but if the price charged was higher than State Oil's suggested retail price, the excess was to be rebated to State Oil. Respondents could sell gasoline for less than State Oil's suggested retail price, but any such decrease would reduce their 3.25 cents-per-gallon margin.About a year after respondents began operating the gas station, they fell behind in lease payments. State Oil then gave notice of its intent to terminate the agreement and commenced a state court proceeding to evict respondents. At State Oil's request, the state court appointed a receiver to operate the gas station. The receiver operated the station for several months without being subject to the price restraints in respondents' agreement with State Oil. According to respondents, the receiver obtained an overall profit margin in excess of 3.25 cents per gallon by lowering the price of regular-grade gasoline and raising the price of premium grades.Respondents sued State Oil in the United States District Court for the Northern District of Illinois, alleging in part that State Oil had engaged in price fixing in violation of § 1 of the Sherman Act by preventing respondents from raising or lowering retail gas prices. According to the complaint, but for the agreement with State Oil, respondents could have charged different prices based on the grades of gasoline, in the same way that the receiver had, thereby achieving increased sales and profits. State Oil responded that the agreement did not actually prevent respondents from setting gasoline prices, and that, in substance, respondents did not allege a violation of antitrust laws by their claim that State Oil's suggested retail price was not optimal.9The District Court found that the allegations in the complaint did not state a per se violation of the Sherman Act because they did not establish the sort of "manifestly anticompetitive implications or pernicious effect on competition" that would justify per se prohibition of State Oil's conduct. App. 43-44. Subsequently, in ruling on cross-motions for summary judgment, the District Court concluded that respondents had failed to demonstrate antitrust injury or harm to competition. App. to Pet. for Cert. 37a. The District Court held that respondents had not shown that a difference in gasoline pricing would have increased the station's sales; nor had they shown that State Oil had market power or that its pricing provisions affected competition in a relevant market. Id., at 37a, 40a. Accordingly, the District Court entered summary judgment for State Oil on respondents' Sherman Act claim. Id., at 40a.The Court of Appeals for the Seventh Circuit reversed. 93 F.3d 1358 (1996). The court first noted that the agreement between respondents and State Oil did indeed fix maximum gasoline prices by making it "worthless" for respondents to exceed the suggested retail prices. Id., at 1360. After reviewing legal and economic aspects of price fixing, the court concluded that State Oil's pricing scheme was a per se antitrust violation under Albrecht v. Herald Co., supra. Although the Court of Appeals characterized Albrecht as "unsound when decided" and "inconsistent with later decisions" of this Court, it felt constrained to follow that decision. 93 F. 3d, at 1363. In light of Albrecht and Atlantic Richfield Co. v. USA Petroleum Co., 495 U. S. 328 (1990) (ARCO), the court found that respondents could have suffered antitrust injury from not being able to adjust gasoline prices.We granted certiorari to consider two questions, whether State Oil's conduct constitutes a per se violation of the Sherman Act and whether respondents are entitled to recover damages based on that conduct. 519 U. S. 1107 (1997).10II AAlthough the Sherman Act, by its terms, prohibits every agreement "in restraint of trade," this Court has long recognized that Congress intended to outlaw only unreasonable restraints. See, e. g., Arizona v. Maricopa County Medical Soc., 457 U. S. 332, 342-343 (1982) (citing United States v. Joint Traffic Assn., 171 U. S. 505 (1898)). As a consequence, most antitrust claims are analyzed under a "rule of reason," according to which the finder of fact must decide whether the questioned practice imposes an unreasonable restraint on competition, taking into account a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint's history, nature, and effect. 457 U. S., at 343, and n. 13 (citing Board of Trade of Chicago v. United States, 246 U. S. 231, 238 (1918)).Some types of restraints, however, have such predictable and pernicious anticompetitive effect, and such limited potential for procompetitive benefit, that they are deemed unlawful per se. Northern Pacific R. Co. v. United States, 356 U. S. 1, 5 (1958). Per se treatment is appropriate "[o]nce experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it." Maricopa County, supra, at 344; see also Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 19, n. 33 (1979). Thus, we have expressed reluctance to adopt per se rules with regard to "restraints imposed in the context of business relationships where the economic impact of certain practices is not immediately obvious." FTC v. Indiana Federation of Dentists, 476 U. S. 447, 458-459 (1986).A review of this Court's decisions leading up to and beyond Albrecht is relevant to our assessment of the continuing validity of the per se rule established in Albrecht. Beginning11with Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911), the Court recognized the illegality of agreements under which manufacturers or suppliers set the minimum resale prices to be charged by their distributors. By 1940, the Court broadly declared all business combinations "formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce" illegal per se. United States v. Socony- Vacuum Oil Co., 310 U. S. 150, 223 (1940). Accordingly, the Court condemned an agreement between two affiliated liquor distillers to limit the maximum price charged by retailers in Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211 (1951), noting that agreements to fix maximum prices, "no less than those to fix minimum prices, cripple the freedom of traders and thereby restrain their ability to sell in accordance with their own judgment." Id., at 213.In subsequent cases, the Court's attention turned to arrangements through which suppliers imposed restrictions on dealers with respect to matters other than resale price. In White Motor Co. v. United States, 372 U. S. 253 (1963), the Court considered the validity of a manufacturer's assignment of exclusive territories to its distributors and dealers. The Court determined that too little was known about the competitive impact of such vertical limitations to warrant treating them as per se unlawful. Id., at 263. Four years later, in United States v. Arnold, Schwinn & Co., 388 U. S. 365 (1967), the Court reconsidered the status of exclusive dealer territories and held that, upon the transfer of title to goods to a distributor, a supplier's imposition of territorial restrictions on the distributor was "so obviously destructive of competition" as to constitute a per se violation of the Sherman Act. Id., at 379. In Schwinn, the Court acknowledged that some vertical restrictions, such as the conferral of territorial rights or franchises, could have procompetitive benefits by allowing smaller enterprises to compete, and that12such restrictions might avert vertical integration in the distribution process. Id., at 379-380. The Court drew the line, however, at permitting manufacturers to control product marketing once dominion over the goods had passed to dealers. Id., at 380.Albrecht, decided the following Term, involved a newspaper publisher who had granted exclusive territories to independent carriers subject to their adherence to a maximum price on resale of the newspapers to the public. Influenced by its decisions in Socony- Vacuum, Kiefer-Stewart, and Schwinn, the Court concluded that it was per se unlawful for the publisher to fix the maximum resale price of its newspapers. 390 U. S., at 152-154. The Court acknowledged that "[m]aximum and minimum price fixing may have different consequences in many situations," but nonetheless condemned maximum price fixing for "substituting the perhaps erroneous judgment of a seller for the forces of the competitive market." Id., at 152.Albrecht was animated in part by the fear that vertical maximum price fixing could allow suppliers to discriminate against certain dealers, restrict the services that dealers could afford to offer customers, or disguise minimum price fixing schemes. Id., at 152-153. The Court rejected the notion (both on the record of that case and in the abstract) that, because the newspaper publisher "granted exclusive territories, a price ceiling was necessary to protect the public from price gouging by dealers who had monopoly power in their own territories." Id., at 153.In a vigorous dissent, Justice Harlan asserted that the majority had erred in equating the effects of maximum and minimum price fixing. Id., at 156-168. Justice Harlan pointed out that, because the majority was establishing a per se rule, the proper inquiry was "not whether dictation of maximum prices is ever illegal, but whether it is always illegal." Id., at 165-166. He also faulted the majority for conclusively listing "certain unfortunate consequences that maximum13price dictation might have in other cases," even as it rejected evidence that the publisher's practice of fixing maximum prices counteracted potentially anticompetitive actions by its distributors. Id., at 165. Justice Stewart also dissented, asserting that the publisher's maximum price fixing scheme should be properly viewed as promoting competition, because it protected consumers from dealers such as Albrecht, who, as "the only person who could sell for home delivery the city's only daily morning newspaper," was "a monopolist within his own territory." Id., at 168.Nine years later, in Continental T. V:, Inc. v. GTE Sylvania Inc., 433 U. S. 36 (1977), the Court overruled Schwinn, thereby rejecting application of a per se rule in the context of vertical nonprice restrictions. The Court acknowledged the principle of stare decisis, but explained that the need for clarification in the law justified reconsideration of Schwinn:"Since its announcement, Schwinn has been the subject of continuing controversy and confusion, both in the scholarly journals and in the federal courts. The great weight of scholarly opinion has been critical of the decision, and a number of the federal courts confronted with analogous vertical restrictions have sought to limit its reach. In our view, the experience of the past 10 years should be brought to bear on this subject of considerable commercial importance." 433 U. S., at 47-49 (footnotes omitted).The Court considered the historical context of Schwinn, noting that Schwinn's per se rule against vertical nonprice restrictions came only four years after the Court had refused to endorse a similar rule in White Motor Co., and that the decision neither explained the "sudden change in position," nor referred to the accepted requirements for per se violations set forth in Northern Pacific R. Co. 433 U. S., at 5152. The Court then reviewed scholarly works supporting the economic utility of vertical nonprice restraints. See id.,14at 54-57 (citing, e. g., Posner, Antitrust Policy and the Supreme Court: An Analysis of the Restricted Distribution, Horizontal Merger and Potential Competition Decisions, 75 Colum. L. Rev. 282 (1975); Preston, Restrictive Distribution Arrangements: Economic Analysis and Public Policy Standards, 30 Law & Contemp. Prob. 506 (1965)). The Court concluded that, because "departure from the rule-of-reason standard must be based upon demonstrable economic effect rather than-as in Schwinn-upon formalistic line drawing," the appropriate course would be "to return to the rule of reason that governed vertical restrictions prior to Schwinn." GTE Sylvania, supra, at 58-59.In GTE Sylvania, the Court declined to comment on Albrecht's per se treatment of vertical maximum price restrictions, noting that the issue "involve[d] significantly different questions of analysis and policy." 433 U. S., at 51, n. 18. Subsequent decisions of the Court, however, have hinted that the analytical underpinnings of Albrecht were substantially weakened by GTE Sylvania. We noted in Maricopa County that vertical restraints are generally more defensible than horizontal restraints. See 457 U. S., at 348, n. 18. And we explained in 324 Liquor Corp. v. Duffy, 479 U. S. 335, 341-342 (1987), that decisions such as GTE Sylvania "recognize the possibility that a vertical restraint imposed by a single manufacturer or wholesaler may stimulate interbrand competition even as it reduces intrabrand competition."Most recently, in ARCO, 495 U. S. 328 (1990), although Albrecht's continuing validity was not squarely before the Court, some disfavor with that decision was signaled by our statement that we would "assume, arguendo, that Albrecht correctly held that vertical, maximum price fixing is subject to the per se rule." 495 U. S., at 335, n. 5. More significantly, we specifically acknowledged that vertical maximum price fixing "may have procompetitive interbrand effects," and pointed out that, in the wake of GTE Sylvania, "[t]he15procompetitive potential of a vertical maximum price restraint is more evident ... than it was when Albrecht was decided, because exclusive territorial arrangements and other nonprice restrictions were unlawful per se in 1968." 495 U. S., at 343, n. 13 (citing several commentators identifying procompetitive effects of vertical maximum price fixing, including, e. g., P. Areeda & H. Hovenkamp, Antitrust Law , 340.30b, p. 378, n. 24 (1988 Supp.); Blair & Harrison, Rethinking Antitrust Injury, 42 Vand. L. Rev. 1539, 1553 (1989); Easterbrook, Maximum Price Fixing, 48 U. Chi. L. Rev. 886, 887-890 (1981)) (hereinafter Easterbrook).BThus, our reconsideration of Albrecht's continuing validity is informed by several of our decisions, as well as a considerable body of scholarship discussing the effects of vertical restraints. Our analysis is also guided by our general view that the primary purpose of the antitrust laws is to protect interbrand competition. See, e. g., Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 726 (1988). "Low prices," we have explained, "benefit consumers regardless of how those prices are set, and so long as they are above predatory levels, they do not threaten competition." ARCO, supra, at 340. Our interpretation of the Sherman Act also incorporates the notion that condemnation of practices resulting in lower prices to consumers is "especially costly" because "cutting prices in order to increase business often is the very essence of competition." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 594 (1986).So informed, we find it difficult to maintain that vertically imposed maximum prices could harm consumers or competition to the extent necessary to justify their per se invalidation. As Chief Judge Posner wrote for the Court of Appeals in this case:"As for maximum resale price fixing, unless the supplier is a monopsonist he cannot squeeze his dealers' margins16below a competitive level; the attempt to do so would just drive the dealers into the arms of a competing supplier. A supplier might, however, fix a maximum resale price in order to prevent his dealers from exploiting a monopoly position .... [S]uppose that State Oil, perhaps to encourage ... dealer services ... has spaced its dealers sufficiently far apart to limit competition among them (or even given each of them an exclusive territory); and suppose further that Union 76 is a sufficiently distinctive and popular brand to give the dealers in it at least a modicum of monopoly power. Then State Oil might want to place a ceiling on the dealers' resale prices in order to prevent them from exploiting that monopoly power fully. It would do this not out of disinterested malice, but in its commercial self-interest. The higher the price at which gasoline is resold, the smaller the volume sold, and so the lower the profit to the supplier if the higher profit per gallon at the higher price is being snared by the dealer." 93 F. 3d, at 1362.See also R. Bork, The Antitrust Paradox 281-282 (1978) ("There could, of course, be no anticonsumer effect from [the type of price fixing considered in Albrecht], and one suspects that the paper has a legitimate interest in keeping subscriber prices down in order to increase circulation and maximize revenues from advertising").We recognize that the Albrecht decision presented a number of theoretical justifications for a per se rule against vertical maximum price fixing. But criticism of those premises abounds. The Albrecht decision was grounded in the fear that maximum price fixing by suppliers could interfere with dealer freedom. 390 U. S., at 152. In response, as one commentator has pointed out, "the ban on maximum resale price limitations declared in Albrecht in the name of 'dealer freedom' has actually prompted many suppliers to integrate forward into distribution, thus eliminating the very independent trader for whom Albrecht professed solicitude."178 P. Areeda, Antitrust Law' 1635, p. 395 (1989) (hereinafter Areeda). For example, integration in the newspaper industry since Albrecht has given rise to litigation between independent distributors and publishers. See P. Areeda & H. Hovenkamp, supra, , 729.7, pp. 599-614 (1996 Supp.).The Albrecht Court also expressed the concern that maximum prices may be set too low for dealers to offer consumers essential or desired services. 390 U. S., at 152-153. But such conduct, by driving away customers, would seem likely to harm manufacturers as well as dealers and consumers, making it unlikely that a supplier would set such a price as a matter of business judgment. See, e. g., Lopatka, Stephen Breyer and Modern Antitrust: A Snug Fit, 40 Antitrust Bull. 1, 60 (1995); Blair & Lang, Albrecht After ARCO: Maximum Resale Price Fixing Moves Toward the Rule of Reason, 44 Vand. L. Rev. 1007, 1034 (1991). In addition, Albrecht noted that vertical maximum price fixing could effectively channel distribution through large or specially advantaged dealers. 390 U. S., at 153. It is unclear, however, that a supplier would profit from limiting its market by excluding potential dealers. See, e. g., Easterbrook 905-908. Further, although vertical maximum price fixing might limit the viability of inefficient dealers, that consequence is not necessarily harmful to competition and consumers. See, e. g., id., at 907; Lopatka, supra, at 60.Finally, Albrecht reflected the Court's fear that maximum price fixing could be used to disguise arrangements to fix minimum prices, 390 U. S., at 153, which remain illegal per se. Although we have acknowledged the possibility that maximum pricing might mask minimum pricing, see Maricopa County, 457 U. S., at 348, we believe that such conduct-as with the other concerns articulated in Albrechtcan be appropriately recognized and punished under the rule of reason. See, e. g., Easterbrook 901-904; see also Pitofsky, In Defense of Discounters: The No-Frills Case for a Per Se18Rule Against Vertical Price Fixing, 71 Geo. L. J. 1487, 1490,Not only are the potential injuries cited in Albrecht less serious than the Court imagined, the per se rule established therein could in fact exacerbate problems related to the unrestrained exercise of market power by monopolist-dealers. Indeed, both courts and antitrust scholars have noted that Albrecht's rule may actually harm consumers and manufacturers. See, e. g., Garibe BMW; Inc. v. Bayerische Motoren Werke Aktiengesellschaft, 19 F.3d 745, 753 (CA1 1994) (Breyer, C. J.); Areeda , 1636a, at 395; G. Mathewson & R. Winter, Competition Policy and Vertical Exchange 13-14 (1985). Other commentators have also explained that Albrecht's per se rule has even more potential for deleterious effect on competition after our decision in GTE Sylvania, because, now that vertical nonprice restrictions are not unlawful per se, the likelihood of dealer monopoly power is increased. See, e. g., Easterbrook 890, n. 20; see also ARGO, 495 U. S., at 343, n. 13. We do not intend to suggest that dealers generally possess sufficient market power to exploit a monopoly situation. Such retail market power may in fact be uncommon. See, e. g., Business Electronics, 485 U. S., at 727, n. 2; GTE Sylvania, 433 U. S., at 54. Nor do we hold that a ban on vertical maximum price fixing inevitably has anticompetitive consequences in the exclusive dealer context.After reconsidering Albrecht's rationale and the substantial criticism the decision has received, however, we conclude that there is insufficient economic justification for per se invalidation of vertical maximum price fixing. That is so not only because it is difficult to accept the assumptions underlying Albrecht, but also because Albrecht has little or no relevance to ongoing enforcement of the Sherman Act. See Gopperweld Gorp. v. Independence Tube Gorp., 467 U. S. 752, 777, and n. 25 (1984). Moreover, neither the parties nor any19of the amici curiae have called our attention to any cases in which enforcement efforts have been directed solely against the conduct encompassed by Albrecht's per se rule.Respondents argue that reconsideration of Albrecht should require "persuasive, expert testimony establishing that the per se rule has distorted the market." Brief for Respondents 7. Their reasoning ignores the fact that Albrecht itself relied solely upon hypothetical effects of vertical maximum price fixing. Further, Albrecht's dire predictions have not been borne out, even though manufacturers and suppliers appear to have fashioned schemes to get around the per se rule against vertical maximum price fixing. In these circumstances, it is the retention of the rule of Albrecht, and not, as respondents would have it, the rule's elimination, that lacks adequate justification. See, e. g., GTE Sylvania, supra, at 58-59.Respondents' reliance on Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953) (per curiam), and Flood v. Kuhn, 407 U. S. 258 (1972), is similarly misplaced, because those decisions are clearly inapposite, having to do with the antitrust exemption for professional baseball, which this Court has described as "an aberration ... rest[ing] on a recognition and an acceptance of baseball's unique characteristics and needs," id., at 282. In the context of this case, we infer little meaning from the fact that Congress has not reacted legislatively to Albrecht. In any event, the history of various legislative proposals regarding price fixing seems neither clearly to support nor to denounce the per se rule of Albrecht. Respondents are of course free to seek legislative protection from gasoline suppliers of the sort embodied in the Petroleum Marketing Practices Act, 92 Stat. 322, 15 U. S. C. § 2801 et seq. For the reasons we have noted, however, the remedy for respondents' dispute with State Oil should not come in the form of a per se rule affecting the conduct of the entire marketplace.20CDespite what Chief Judge Posner aptly described as Albrecht's "infirmities, [and] its increasingly wobbly, motheaten foundations," 93 F. 3d, at 1363, there remains the question whether Albrecht deserves continuing respect under the doctrine of stare decisis. The Court of Appeals was correct in applying that principle despite disagreement with Albrecht, for it is this Court's prerogative alone to overrule one of its precedents.We approach the reconsideration of decisions of this Court with the utmost caution. Stare decisis reflects "a policy judgment that 'in most matters it is more important that the applicable rule of law be settled than that it be settled right.'" Agostini v. Felton, 521 U. S. 203, 235 (1997) (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting)). It "is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U. S. 808, 827 (1991). This Court has expressed its reluctance to overrule decisions involving statutory interpretation, see, e. g., Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977), and has acknowledged that stare decisis concerns are at their acme in cases involving property and contract rights, see, e. g., Payne, 501 U. S., at 828. Both of those concerns are arguably relevant in this case.But "[s]tare decisis is not an inexorable command." Ibid.In the area of antitrust law, there is a competing interest, well represented in this Court's decisions, in recognizing and adapting to changed circumstances and the lessons of accumulated experience. Thus, the general presumption that legislative changes should be left to Congress has less force with respect to the Sherman Act in light of the accepted view that Congress "expected the courts to give shape to the statute's broad mandate by drawing on common-law tra-21dition." National Soc. of Professional Engineers v. United States, 435 U. S. 679, 688 (1978). As we have explained, the term "restraint of trade," as used in § 1, also "invokes the common law itself, and not merely the static content that the common law had assigned to the term in 1890." Business Electronics, 485 U. S., at 732; see also GTE Sylvania, 433 U. S., at 53, n. 21; McNally v. United States, 483 U. S. 350, 372-373 (1987) (STEVENS, J., dissenting). Accordingly, this Court has reconsidered its decisions construing the Sherman Act when the theoretical underpinnings of those decisions are called into serious question. See, e. g., Copperweld Corp., supra, at 777; GTE Sylvania, supra, at 47-49; cf. Tigner v. Texas, 310 U. S. 141, 147 (1940).Although we do not "lightly assume that the economic realities underlying earlier decisions have changed, or that earlier judicial perceptions of those realities were in error," we have noted that "different sorts of agreements" may amount to restraints of trade "in varying times and circumstances," and "[i]t would make no sense to create out of the single term 'restraint of trade' a chronologically schizoid statute, in which a 'rule of reason' evolves with new circumstances and new wisdom, but a line of per se illegality remains forever fixed where it was." Business Electronics, supra, at 731732. Just as Schwinn was "the subject of continuing controversy and confusion" under the "great weight" of scholarly criticism, GTE Sylvania, supra, at 47-48, Albrecht has been widely criticized since its inception. With the views underlying Albrecht eroded by this Court's precedent, there is not much of that decision to salvage. See, e. g., Neal v. United States, 516 U. S. 284, 295 (1996); Patterson v. McLean Credit Union, 491 U. S. 164, 173 (1989); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 480-481 (1989).Although the rule of Albrecht has been in effect for some time, the inquiry we must undertake requires considering " 'the effect of the antitrust laws upon vertical distributional22restraints in the American economy today.'" GTE Sylvania, supra, at 53, n. 21 (quoting Schwinn, 388 U. S., at 392 (Stewart, J., concurring in part and dissenting in part)). As the Court noted in ARGO, 495 U. S., at 336, n. 6, there has not been another case since Albrecht in which this Court has "confronted an unadulterated vertical, maximum-price-fixing arrangement." Now that we confront Albrecht directly, we find its conceptual foundations gravely weakened.In overruling Albrecht, we of course do not hold that all vertical maximum price fixing is per se lawful. Instead, vertical maximum price fixing, like the majority of commercial arrangements subject to the antitrust laws, should be evaluated under the rule of reason. In our view, rule-of-reason analysis will effectively identify those situations in which vertical maximum price fixing amounts to anticompetitive conduct.There remains the question whether respondents are entitled to recover damages based on State Oil's conduct. Although the Court of Appeals noted that "the district judge was right to conclude that if the rule of reason is applicable, Khan loses," 93 F. 3d, at 1362, its consideration of this case was necessarily premised on Albrecht's per se rule. Under the circumstances, the matter should be reviewed by the Court of Appeals in the first instance. We therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1997SyllabusSTATE OIL CO. v. KHAN ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo.96-871. Argued October 7, 1997-Decided November 4,1997Respondents' agreement to lease and operate a gas station obligated them to buy gasoline from petitioner State Oil Company at a price equal to a suggested retail price set by State Oil, less a specified profit margin; required them to rebate any excess to State Oil if they charged customers more than the suggested price; and provided that any decrease due to sales below the suggested price would reduce their margin. After they fell behind in their lease payments and State Oil commenced eviction proceedings, respondents brought this suit in federal court, alleging in part that, by preventing them from raising or lowering retail gas prices, State Oil had violated § 1 of the Sherman Act. The District Court entered summary judgment for State Oil on this claim, but the Seventh Circuit reversed on the basis of Albrecht v. Herald Co., 390 U. S. 145,152-154, in which this Court held that vertical maximum price fixing is a per se antitrust violation. Although the Court of Appeals characterized Albrecht as "unsound when decided" and "inconsistent with later decisions," it felt constrained to follow that decision.Held: Albrecht is overruled. Pp. 10-22.(a) Although most antitrust claims are analyzed under a "rule of reason," under which the court reviews a number of relevant factors, see, e. g., Arizona v. Maricopa County Medical Soc., 457 U. S. 332,342-343, some types of restraints on trade have such predictable and pernicious anticompetitive effect, and such limited potential for procompetitive benefit, that they are deemed unlawful per se, see, e. g., Northern Pacific R. Co. v. United States, 356 U. S. 1, 5. A review of this Court's pertinent decisions is relevant in assessing the continuing validity of the Albrecht per se rule. See, e. g., Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U. S. 211, 213 (maximum resale price fixing illegal per se); United States v. Arnold, Schwinn & Co., 388 U. S. 365, 379380 (vertical nonprice restrictions illegal per se); Continental T. v., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 47-49, 58-59 (overruling Schwinn). A number of this Court's later decisions have hinted that Albrecht's analytical underpinnings were substantially weakened by GTE Sylvania-see, e. g., Maricopa County, supra, at 348, n. 18; 324 Liquor Corp. v. Duffy, 479 U. S. 335, 341-342; Atlantic Richfield Co. v. USA Petroleum Co., 495 U. S. 328, 335, n. 5, 343, n. 13-and there is a consid-4Syllabuserable body of scholarship discussing the procompetitive effects of vertical maximum price fixing. pp. 10-15.(b) Informed by the foregoing decisions and scholarship, and guided by the general view that the antitrust laws' primary purpose is to protect interbrand competition, see, e. g., Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 726, and that condemnation of practices resulting in lower consumer prices is disfavored, Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 594, this Court finds it difficult to maintain that vertically imposed maximum prices could harm consumers or competition to the extent necessary to justify their per se invalidation. Albrecht's theoretical justifications for its per se rule-that vertical maximum price fixing could interfere with dealer freedom, restrict dealers' ability to offer consumers essential or desired services, channel distribution through large or specially advantaged dealers, or disguise minimum price fixing schemes-have been abundantly criticized and can be appropriately recognized and punished under the rule of reason. Not only are they less serious than the Albrecht Court imagined, but other courts and antitrust scholars have noted that the per se rule could in fact exacerbate problems related to the unrestrained exercise of market power by monopolist-dealers. For these reasons, and because Albrecht is irrelevant to ongoing Sherman Act enforcement, see Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 777, and n. 25, and there are apparently no cases in which enforcement efforts have been directed solely against the conduct condemned in Albrecht, there is insufficient economic justification for the per se rule. Respondents' arguments in favor of the rule-that its elimination should require persuasive, expert testimony establishing that it has distorted the market, and that its retention is compelled by Toolson v. New York Yankees, Inc., 346 U. S. 356, and Flood v. Kuhn, 407 U. S. 258-are unavailing. Pp. 15-19.(c) Albrecht does not deserve continuing respect under the doctrine of stare decisis. Stare decisis is not an inexorable command, particularly in the area of antitrust law, where there is a competing interest in recognizing and adapting to changed circumstances and the lessons of accumulated experience. See, e. g., National Soc. of Professional Engineers v. United States, 435 U. S. 679, 688. Accordingly, this Court has reconsidered its decisions construing the Sherman Act where, as here, the theoretical underpinnings of those decisions are called into serious question. See, e. g., GTE Sylvania, supra. Because Albrecht has been widely criticized since its inception, and the views underlying it have been eroded by this Court's precedent, there is not much of that decision to salvage. See, e. g., Neal v. United States, 516 U. S. 284, 295. In5Full Text of Opinion

1961_47

MR. JUSTICE CLARK delivered the opinion of the Court.Pursuant to § 6(b) of the Federal Trade Commission Act, [Footnote 1] the Commission issued orders directing the petitioner and corporations acquired by it to submit various Page 368 U. S. 211 reports. Petitioner failed to furnish all of the requested information, and the United States, at the request of the Commission, brought the present suit in the District Court seeking (1) a mandatory injunction to compel compliance with all of the orders [Footnote 2] and (2) statutory forfeiture of $100 for every day petitioner was in default of those orders directed specifically to it. [Footnote 3] Page 368 U. S. 212The District Court found that some of the requests were unenforceable because of vagueness and that others had been answered either specifically or by reference to materials previously furnished. Petitioner was directed to answer the remaining items, including those calling for file copies of census reports. However, because some of the requests were too vague to be enforced, the District Court did not award the statutory forfeitures. 181 F. Supp. 862. The Court of Appeals affirmed insofar as the District Court ordered compliance, but reversed that portion of the decision refusing to award the statutory forfeitures. 285 F.2d 607. We granted a limited writ of certiorari because of a conflict in the circuits on the question of compulsory production of the copies of census reports and the general importance of certain other questions in the administration of the investigatory provisions Page 368 U. S. 213 of the Federal Trade Commission Act. 365 U. S. 857. On motion of petitioner, we also granted a stay tolling the further running and accumulation of forfeitures awaiting our decision. We now affirm the judgment of the Court of Appeals.Petitioner contends that it cannot lawfully be required to produce copies of statutory reports made by it to the Census Bureau because of their confidential nature. The remainder of the inquiries found enforceable by the District Court are not now contested by the petitioner. As to the forfeitures, petitioner advances several arguments: (1) the statutory forfeiture of § 10 is not applicable because it applies only to a failure to furnish "reports," while the inquiries directed to petitioner called for answers to specific questions; (2) no forfeitures can be imposed because the orders were only partially enforceable; and (3) it is a denial of due process to assess penalties for failure to obey orders during a time petitioner was without remedy to test their validity.IThe controversy culminating in this litigation had its inception in September, 1956. At that time, the Commission requested petitioner to furnish voluntarily information concerning certain of its corporate acquisitions to enable the Commission to determine whether there had been any violations of the antitrust laws. A year later, having failed to obtain the bulk of the requests, the Commission served a subpoena duces tecum on petitioner. It covered somewhat the same information as was previously requested but, in addition, required similar data concerning three more corporate acquisitions effected in the interim. In due time, petitioner fully complied with the subpoena, and the hearing before the Examiner was concluded. After reviewing the material, however, the Commission found that it needed additional information, and, Page 368 U. S. 214 in June, 1958, requested petitioner's counsel to furnish it. A running exchange of correspondence between petitioner's counsel and the Commission's staff followed. Counsel contended, inter alia, that no additional information was needed, and requested a statement of necessity therefor. Upon counsel's insistence, three separate levels of authority in the Commission, from the local attorney in New York City to the Director of the Bureau of Investigation in Washington, explained the need for the information, advised that the request therefor had been fully authorized, and requested petitioner to comply therewith. This discussion continued for over six months, during which time petitioner furnished only two documents of the many requested. On January 6, 1959, the Commission instigated a formal investigation of the acquisitions made by petitioner during the preceding five years. Pursuant to this investigation the Commission issued six orders requiring the filing within 30 days of "special reports" which were to contain specified information and documents. On motion of petitioner, the Commission temporarily suspended these orders while it considered petitioner's motion that they be vacated. On May 6, 1959, the motion to vacate was denied, and petitioner was directed to comply by May 28, 1959. On June 4, 1959, the Commission broadened its investigation to cover two corporate acquisitions by petitioner occurring after the instigation of the formal investigation. Accordingly three more orders requiring "special reports" were issued. Upon petitioner's failure to comply with either set of orders, notices of default were served on June 20, 1959, and July 24, 1959, respectively. This complaint was filed on September 15, 1959, three years after the inquiry was opened. The complaint sought a mandatory injunction which would compel petitioner to file with the Commission the "special reports" sought by all nine orders. However, forfeitures were claimed only for petitioner's Page 368 U. S. 215 failure to respond to orders numbered 1 and 7, which were directed specifically to petitioner. The other seven orders had been directed to corporations acquired by petitioner, rather than to it.IIAmong the items ordered enforced and with which the petitioner still refuses to comply are requests for file copies of certain reports previously made to the Census Bureau. The petitioner claims each of these to be confidential. There is a conflict between the Courts of Appeal on the point. [Footnote 4] Here, both the District Court and the Court of Appeals have held these file copies not restricted, and with this conclusion we agree.Petitioner's claim is based on §§ 8 and 9(a) of the Census Act, 13 U.S.C. §§ 8-9(a), and assurances of confidentiality by the Government. It can be noted immediately that § 8 does not in any way support petitioner's position. This section grants the Secretary of Commerce the discretion to furnish to named authorities data taken from information furnished the Census Bureau on censuses of population, agriculture and housing. Subsection (c) thereof provides that, when the Secretary furnishes such data, it shall "[i]n no case" be used by the recipient "to the detriment of the persons to whom such information relates." Not only has the Commission not been furnished any information by the Secretary, but the information involved does not relate to the particular censuses covered by the section, and so this section is clearly inapplicable here.The prohibitions of § 9(a) apply to the Secretary, and other officers and employees of the Department of Commerce. Each of them is prohibited from using the information Page 368 U. S. 216 supplied for other than statistical purposes; and, from making any publication thereof wherein the name or identity of those furnishing information is revealed; and finally, from permitting anyone outside of the employ of the Department of Commerce to "examine the individual reports" filed. [Footnote 5] The form of the report provided by the Census Bureau is marked "Confidential," and in addition states that "[i]t cannot be used for purposes of taxation, investigation or regulation." [Footnote 6] The Bureau also furnishes the reporting corporations a copy of this form, such as the one involved here. The copies are marked "Keep this copy for your files," and the Bureau is said to have advised reporting companies that they are confidential. It also appears that a Presidential Proclamation admonished reporting companies that"[t]he Census had nothing to do . . . with the enforcement of any national, state, or local law or ordinance. There need be no fear that any disclosure will be made regarding any individual person or his affairs. For the due protection of the rights and interests of the persons furnishing information, every Page 368 U. S. 217 employee of the Census Bureau is prohibited, under heavy penalty, from disclosing any information which may thus come to his knowledge. [Footnote 7]"Petitioner also relies upon an opinion of the Attorney General, 36 Op.Atty.Gen. 362 (1930).Similar contentions were considered by the Court of Appeals for the Seventh Circuit in Federal Trade Comm'n v. Dilger, 276 F.2d 739 (1960), where it was held that these"assurances of confidentiality and protection constitute a pledge of good faith on the part of the Congress, the President and the Department of Commerce. . . . The United States has given its word, and should be permitted to keep it."276 F.2d at 744. It concludes that, since the Commission cannot obtain the original, it should not be permitted "to do indirectly that which it cannot to directly." Id. at 743.The Solicitor General contends that, for the purposes of this case, petitioner has waived the point by voluntarily submitting like data to the Commission during its investigation herein. We cannot agree. Reaching the merits of the issue, he points out that the government agencies are at loggerheads on the problem, the Department of Commerce, Census Bureau and the Bureau of the Budget believe that the copies are not subject to legal process, while the Federal Trade Commission and the Antitrust Division of the Department of Justice, which filed this suit, contend to the contrary. The Solicitor General, "fully recognizing the delicate balance of opposing considerations," has concluded "on balance" that the copies are not subject to compulsive production. As has been noted, we do not agree.As we have seen, the prohibitions against disclosure contained in § 9 run only against the officials receiving such information, and do not purport to generally clothe Page 368 U. S. 218 census information with secrecy. The Solicitor General admits that, "literally construed," the restrictions of the statute go no further. But he insists that, since the purpose of the statute is to encourage the free and full submission of statistical data to the Bureau, this can be accomplished only through the creation of a confidential relationship which will extend the privilege to the petitioner and like reporting companies. We do not believe that the language of the President, supra, gives the statute the meaning claimed for it; nor can the legend on the Census Bureau forms or its advice to reporting companies extend the coverage of the Act. Cf. United States v. California, 332 U. S. 19, 332 U. S. 39-40 (1947); United States v. Stewart, 311 U. S. 60, 311 U. S. 70 (1940); United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 310 U. S. 225-227 (1940). We fully realize the importance to the public of the submission of free and full reports to the Census Bureau, but we cannot rewrite the Census Act. It does not require petitioner to keep a copy of its report, nor does it grant copies of the report not in the hands of the Census Bureau an immunity from legal process. Ours is the duty to avoid a construction that would suppress otherwise competent evidence unless the statute, strictly construed, requires such a result. That, this statute does not do. Congress did not prohibit the use of the reports per se, but merely restricted their use while in the hands of those persons receiving them, i.e., the government officials. Indeed, when Congress has intended like reports not to be subject to compulsory process, it has said so. See 45 U.S.C. § 41, [Footnote 8] 49 U.S.C. § 320(f). [Footnote 9] Moreover, although tax returns, like these Page 368 U. S. 219 census reports, are made confidential within the government bureau, Internal Revenue Code of 1954, §§ 6103 7213(a), copies in the hands of the taxpayer are held subject to discovery. [Footnote 10] Likewise, the Criminal Code, 18 U.S.C. § 1905, [Footnote 11] prohibits federal employees generally from disclosing trade secrets and other business data received in the course of their official duties, but the same information is obtainable from the reporting company's files or personnel by judicial process.This conclusion is buttressed by the fact that, though petitioner furnishes the required reports to the Census Bureau, it is not relieved from furnishing the same information to the Federal Trade Commission. This is made certain by an Act of Congress specifically providing that nothing in the Census Act"shall be deemed to revoke or Page 368 U. S. 220 impair the authority of any other Federal agency with respect to the collection or release of information."13 U.S.C. § 132. It appears, therefore, that, through the use of special reports, the Commission could require the petitioner to supply the identical information from its files. Hence, by securing the retained file copy, the Commission is merely obtaining in a form already prepared that information which it has the power to require petitioner to furnish from its records.IIIPetitioner next claims that the orders required "answers in writing to specific questions" under § 6(b), as distinguished from the "special reports" also authorized by that section, but that the forfeiture provision of § 10 penalizing the failure to file "any annual or special reports" does not include the phrase "answers in writing to specific questions" and is, therefore, inapplicable. We do not agree.The Commission contends that its orders here in fact called for information in the nature of "special reports," and it so designated each of the nine orders at the time of their issuance. Examination of the orders by no means proves the Commission to be in error, for it appears that practically all of the requests called for the furnishing of statistical or like information, details of organization and operation, specific documents, etc. As the Court of Appeals stated, "the cumulative effect of all the questions is substantially that of a request for a report." 285 F.2d at 615.While this is true, it cannot be denied that, in many instances, specific information was requested, and "answers in writing to specific questions" were contemplated. But this does not disqualify the materials from being special reports, for the statutory reference to "answers in writing to specific questions" merely elaborates the power to require special reports. Page 368 U. S. 221The source of the Commission's power, as we have noted, is § 6(b), see note 1 supra, which authorizes the Commission to order corporations to file "annual or special, or both annual and special reports or answers in writing to specific questions." Since the forfeiture provision of § 10, see note 3 supra, only refers to "any annual or special report," petitioner argues that forfeiture is inapplicable to a corporation failing to give "answers in writing to specific questions," which it contends is a separate power quite distinct from the power to order reports. But, if this is true, there would be no penalty where a corporation deliberately refused to comply with a lawful Commission order to answer specific questions, for the only penalty available against corporations is the forfeiture provision. Thus, a corporation that refused to file an annual or special report would be subject to a $100 per day forfeiture. An individual under subpoena who refused to appear and testify or supply documents would be subject to a fine of $1,000 to $5,000 and/or a jail sentence up to three years. But, under petitioner's interpretation of the Act, there would be no penalty whatsoever where a corporation deliberately failed to file answers to specific questions. The only remedy would be a mandatory injunction to force it to do so. We cannot attribute such an anomaly to Congress. Rather, we would assume that, in placing the phrase "answers in writing to specific questions" in § 6(b), Congress was merely explicating what the Commission might require a corporation to include in an annual or special report.Moreover, the legislative history of the Act does not support petitioner's theory that the phrase "answers in writing to specific questions" refers to a separate power of the Commission. Both the House and Senate bills dealing with the Federal Trade Commission (or Interstate Trade Commission, as it was called in the House) had provisions enabling the Commission to order annual and Page 368 U. S. 222 special reports, but neither mentioned answers to specific questions. The House Committee Report on the original House version of the Act stated:"The commission, under this section, (later 6(b)) may also require such special reports as it may deem advisable. By this means, if the ordinary data furnished by a corporation does not adequately disclose its organization, financial condition, business practices, or relation to other corporations, there can be obtained by a special report such additional information as the commission may deem necessary."H.R.Rep.No. 533, 63d Cong., 2d Sess. 4. The phrase "answers in writing to specific questions" first appeared in the Conference Report, but the report by the House Managers explaining the modifications of the House bill did not mention it (although it discussed some other changes in the annual and special report provisions of the House bill). H.R.Rep.No. 1142, 63d Cong., 2d Sess. Similarly, the explanation of the Conference Report by the Senate Managers in debate makes it clear that the changes made in conference were of the nature of new, clarifying phraseology (with two exceptions not relevant here). 51 Cong.Rec. 14768-14769. If the conference had intended to give the Commission a separate new power which was not included in either the House or Senate bill, surely there would be some mention of it in the reports by the managers.Finally, it should be noted that a construction of the statute which empowers the Commission to particularize its requests for annual and special reports with specific questions will tend to avoid objections of vagueness. The requests directed to petitioner which were not particularized -- items 1(h); 3(j), (k); 5(j), (k); 6(j); 7(j); 8(j); and 11 (a)-(1) of the first order; and item 5 of the seventh order -- were struck down by the District Page 368 U. S. 223 Court as unenforceable. Such general requests for reports without specificity place the reporting company in a difficult position, leading to expensive and time-consuming litigation as well as frustrating the Commission's attempt to obtain information.IVThe District Court held that, since the Commission orders were "partially defective," petitioner had a valid reason for challenging them, and therefore no forfeitures accrued. Petitioner supports this holding by asserting that many of the items included in the Commission's orders were held unenforceable by the District Court, and that, under Bowman Dairy Co. v. United States, 341 U. S. 214 (1951), forfeiture should not be imposed for noncompliance with substantially defective orders. The Court of Appeals disagreed, holding that forfeiture had occurred, and that the daily penalty began to run 30 days after the notice of default on the first set of the Commission's orders. [Footnote 12] We agree with the Court of Appeals and conclude that the single daily penalty runs until the date of our stay, February 7, 1961.Petitioner's figures relative to the percentage of defective inquiries are based on analysis of all nine orders. However, the suit for forfeiture was brought only in respect to the two orders directed to petitioner, and we will restrict our consideration to the 134 inquiries included therein. Prior to the judgment, 63 of these items remained unanswered. The trial judge struck 10 of them as unenforceable, leaving 53 which he ordered to be answered. However, whether one takes the above figures or those of the petitioner asserting that only 37% of the questions were enforced by the trial court, or the Government's claim that two-thirds of the questions were Page 368 U. S. 224 valid and unanswered at the time of the suit, this case need not go off on a mathematical formula. The record fully supports the conclusion of the Court of Appeals that this is not "a case involving single oversight or an honest mistake in a good faith attempt to comply with the Commission's order." 285 F.2d at 614. Nor, as the concurring opinion found, is it a case of "such extensive invalidity that there is no longer an intelligible requirement" for a report. 285 F.2d at 616.Petitioner asserts that even partial invalidity of the order prevents the application of the forfeiture provision, arguing that the case is controlled by the rule in Bowman Dairy Co., supra. In that case, the Court concluded that "one should not be held in contempt under a subpoena that is part good and part bad." 341 U.S. at 341 U. S. 221. But that rule cannot be considered apart from its facts. There, the defendant could not appeal from the contested order, but was able to challenge it only by disobeying and appealing the contempt conviction. It was in review of that conviction -- the defendant's first opportunity to review the validity of the order -- that this Court held that its partial invalidity barred the punishment. Here, petitioner might have delayed accrual of the forfeitures pending determination of the merits or obtained a separate judicial determination of the validity of the orders before the penalties began to accrue, as we point out infra. Rather than attempting such procedures, it defined large parts of the orders. It cannot now be heard to complain because such defiance was in error.Petitioner also contends that the trial court, after finding the orders partially invalid, should have stricken them and required the Commission to issue new ones if it wished to proceed with the inquiry. We agree with the trial court and the Court of Appeals that § 6(c) of the Administrative Procedure Act, 60 Stat. 241, 5 U.S.C. § 1005(c), authorized the procedure the court followed, Page 368 U. S. 225 i.e., ordering partial compliance. That section directs the court to sustain "any such subpoena or similar process or demand to the extent that it is found to be in accordance with law. . . ." Nor do we see any substance to the further contention that in directing partial compliance the trial judge treated those items found enforceable as subpoenas, and therefore subject solely to contempt action. The various requests were severable, and the court's order was not in substitution of the Commission's orders, but merely an enforcement of them, in accordance with § 9 of the FTCA, authorizing the court to compel obedience to lawful Commission orders. Finally, petitioner argues that the case should have been remanded to the trial court for determination of whether the forfeiture should apply. However, once the Court of Appeals held that the default was within the forfeiture provision of § 10, its penalties accrued, and there was nothing remaining open for decision that required a remand to the District Court.VPetitioner's final point is that to impose the forfeitures will deprive it of property without due process of law. This argument is based on the premise that the orders of the Commission were not judicially reviewable except at the risk of paying daily forfeitures accumulating throughout the period of noncompliance, including the period of judicial review. We need not consider this point at length, for it appears that petitioner did not try to obtain judicial review prior to the commencement of this action by the Government, nor did petitioner seek a stay once the litigation had begun. This inaction was in part based upon petitioner's reliance on Federal Trade Comm'n v. Claire Furnace Co., 274 U. S. 160 (1927). This reliance was misplaced. In that case, an injunction was sought against the Commission restraining it from enforcing certain Page 368 U. S. 226 orders issued under the same section of the Act involved here. The Commission, however, had not issued any notice of default on the orders, as was done here, nor had the orders been forwarded to the Attorney General for enforcement. This Court properly held an injunction would not lie, since the subjects of the reports could not suffer any injury or penalty at that point in the investigation. As Chief Justice Taft said,"Until the Attorney General acts, the defendants cannot suffer, and, when he does act, they can promptly answer and have full opportunity to contest the legality of any prejudicial proceeding against them."274 U.S. at 274 U. S. 174.Upon the commencement of the action by the Government, petitioner might have then sought a stay, as it did when the decision went against it in the Court of Appeals. [Footnote 13] Moreover, after the entry of the notices of default by the Commission, petitioner might have itself sought relief before the § 10 forfeitures began to accrue instead of waiting for the Attorney General to sue for their collection. As was said in United States v. Morton Salt Co., 338 U. S. 632, 338 U. S. 654 (1950), "we are not prepared to say that courts would be powerless" to act where such orders appear suspect and ruinous penalties would be sustained pending a good faith test of their validity. There, the record did not present, and the Court did not determine, "whether the Declaratory Judgments Act, the Administrative Procedure Act, or general equitable powers of the Page 368 U. S. 227 courts would afford a remedy if there were shown to be a wrong, or what the consequences would be if no chance is given for a test of reasonable objections to such an order." Similarly, as this matter comes here now, the petitioner has pursued none of these remedies, and we could not therefore say that it had "no chance" to prevent the running of the forfeiture pending a test of the validity of the orders. Cf. United States v. L. A. Tucker Truck Lines, 344 U. S. 33, 344 U. S. 37 (1952); Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300, 302 U. S. 310 (1937). We note, however, that the Declaratory Judgments Act, 28 U.S.C. § 2201, provides that,"In a case of actual controversy within its jurisdiction . . . any court . . . may declare the rights . . . of any interested party seeking such declaration. . . ."This appears sufficient to meet petitioner's needs.This Court cannot forgive statutory penalties one they legally attach, and, finding no grounds upon which we can strike them down, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtSt. Regis Paper Co. v. United States, 368 U.S. 208 (1961)St. Regis Paper Co. v. United StatesNo. 47Argued November 9, 1961Decided December 11, 1961368 U.S. 208SyllabusThis is a civil action by the United States for (1) a mandatory injunction under § 9 of the Federal Trade Commission Act requiring petitioner to comply with orders of the Commission to file special reports containing specified information and documents, and (2) statutory forfeiture of $100 for each day petitioner was in default of those orders. Petitioner had filed only part of the informatlon called for by the Commission in connection with a formal investigation to determine whether petitioner's acquisitions of stock and assets of other corporations violated the antitrust laws. Among other items, it had declined to furnish its own file copies of reports filed with the Census Bureau on the ground that they were confidential. The District Court found that some of the orders were unenforceable because of vagueness and that others had been answered. It directed petitioner to answer the remaining ones, including those calling for copies of census reports; but it did not award the statutory forfeitures, because some of the orders were too vague to be enforced. The Court of Appeals affirmed insofar as the District Court ordered compliance; but it reversed that portion of the decision refusing to award the statutory forfeitures.Held:1. The Federal Trade Commission is entitled to obtain petitioner's own file copies of reports submitted by petitioner to the Census Bureau. Pp. 368 U. S. 215-220.(a) Section 8 (a) of the Census Act, which grants the Secretary of Commerce discretion to furnish to certain authorities data taken from information furnished the Bureau on censuses of population, agriculture and housing, but provides that such data shall not be used by the recipient "to the detriment of the persons to whom such information relates," is inapplicable here, because the Commission has not been furnished any information by the Secretary and the information here involved does not relate to the particular censuses covered by that section. P. 368 U. S. 215.(b) Section 9(a) of the Census Act, which forbids the use of information contained in census reports for other than statistical Page 368 U. S. 209 purposes and forbids the improper publication or disclosure of such information, applies only to the Secretary and other officers and employees of the Department of Commerce. It does not generally prohibit the use of such information per se. Pp. 368 U. S. 215-219.(c) By voluntarily submitting like data to the Federal Trade Commission during this investigation, petitioner did not waive its claim that its file copies of reports to the Census Bureau are confidential. P. 368 U. S. 217.(d) The assurances of confidentiality by the President and the Census Bureau are not sufficient to extend the coverage of § 9(a). Pp. 368 U. S. 217-219.(e) The fact that petitioner furnished certain information to the Census Bureau does not relieve it from furnishing the same information to the Federal Trade Commission, since § 132 of the Census Act provides that nothing therein contained "shall be deemed to revoke or impair the authority of any other Federal agency with reference to the collection or release of information." Pp. 368 U. S. 219-220.2. The forfeiture imposed by § 10 of the Federal Trade Commission Act for failure to file "any annual or special report" is applicable, although the requested report is to include "answers in writing to specific questions." Pp. 368 U. S. 220-223.3. Notwithstanding the fact that the District Court held that the Commission's orders were "partially defective," and decreed only partial compliance, forfeiture occurred because petitioner failed to comply with the valid requests; and the single daily penalty under § 10 began to run 30 days after notice of default on the first set of the Commission's orders, and it runs until the date of the stay granted by this Court. Pp. 368 U. S. 223-225.(a) Partial invalidity of the Commission's orders did not prevent application of the forfeiture provision, since petitioner defied large parts of the orders instead of obtaining a separate judicial determination of the validity of the orders. P. 368 U. S. 224.(b) Section 6 (c) of the Administrative Procedure Act authorized the procedure that the District Court followed in ordering partial compliance instead of striking the entire orders and requiring the Commission to issue new ones. Pp. 368 U. S. 224-225.(c) In directing partial compliance, the District Court did not treat those items found enforceable as subpoenas, and therefore subject solely to contempt action. P. 368 U. S. 225. Page 368 U. S. 210(d) Once the Court of Appeals held that the default was within the forfeiture provision of §10, its penalties accrued, and it was not necessary to remand the case to the District Court for determination of whether the forfeiture should apply. P. 368 U. S. 225.4. The petitioner, not having sought a judicial determination of the validity of the Commission's orders or a stay once this litigation had begun, cannot now say it was denied due process because it had no opportunity to prevent the running of the forfeitures pending a judicial test of the validity of the orders. Pp. 368 U. S. 225-227.285 F.2d 607, affirmed.

1978_78-309

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Once again, we are called upon to decide whether a private remedy is implicit in a statute not expressly providing one. During this Term alone, we have been asked to undertake this task no fewer than five times in cases in which we have granted certiorari. [Footnote 1] Here we decide whether customers of securities brokerage firms that are required to file certain financial reports with regulatory authorities by § 17(a) of the Securities Exchange Act of 1934 (1934 Act), 48 Stat. 897, as amended, 15 U.S.C. § 78q(a), have an implied cause of action for damages under § 17(a) against accountants who audit such reports, based on misstatements contained in the reports. [Footnote 2] Page 442 U. S. 563IPetitioner Touche Ross & Co. is a firm of certified public accountants. Weis Securities, Inc. (Weis), a securities brokerage firm registered as a broker-dealer with the Securities and Exchange Commission (Commission) and a member of the New York Stock Exchange (Exchange), retained Touche Ross to serve as Weis' independent certified public accountant from 1969 to 1973. In this capacity, Touche Ross conducted audits of Weis' books and records and prepared for filing with the Commission the annual reports of financial condition required by § 17(a) of the 1934 Act, 15 U.S.C. § 78q(a), and the rules and regulations adopted thereunder. 17 CFR § 240.17a-5 (1972). [Footnote 3] Touche Ross also prepared for Weis Page 442 U. S. 564 responses to financial questionnaires required by the Exchange of its member firms.This case arises out of the insolvency and liquidation of Weis. In 1973, the Commission and the Exchange learned of Weis' precarious financial condition and of possible violations of the 1934 Act by Weis and its officers. In May, 1973, the Commission sought and was granted an injunction barring Weis and five of its officers from conducting business in violation of the 1934 Act. [Footnote 4] At the same time, the Securities Investor Protection Corporation (SIPC), pursuant to statutory authority, applied in the United States District Court for the Southern District of New York for a decree adjudging that Weis' customers were in need of the protection afforded by the Securities Investor Protection Act of 1970 (SIPA), 84 Stat. 1636, 15 U.S.C. § 78aaa et seq. [Footnote 5] The District Court Page 442 U. S. 565 granted the requested decree and appointed respondent Redington (Trustee) to act as trustee in the liquidation of the Weis business under SIPA.During the liquidation, Weis' cash and securities on hand appeared to be insufficient to make whole those customers who had left assets or deposits with Weis. Accordingly, pursuant to SIPA, SIPC advanced the Trustee $14 million to satisfy, up to specified statutory limits, the claims of the approximately 34,000 Weis customers and certain other creditors of Weis. Despite the advance of $14 million by SIPC, there apparently remain several million dollars of unsatisfied customer claims. [Footnote 6]In 1976, SIPC and the Trustee filed this action for damages against Touche Ross in the District Court for the Southern District of New York. The "common allegations" of the complaint, which at this stage of the case we must accept as true, aver that certain of Weis' officers conspired to conceal substantial operating losses during its 1972 fiscal year by falsifying financial reports required to be filed with regulatory authorities pursuant to § 17(a) of the 1934 Act. App. 8. SIPC and the Trustee seek to impose liability upon Touche Ross by reason of its allegedly improper audit and certification Page 442 U. S. 566 of the 1972 Weis financial statements and preparation of answers to the Exchange financial questionnaire. Id. at 15-19. The complaint alleges that, because of its improper conduct, Touche Ross breached duties that it owed SIPC, the Trustee, and others under the common law, § 17(a) and the regulations thereunder, and that Touche Ross' alleged dereliction prevented Weis' true financial condition from becoming known until it was too late to take remedial action to forestall liquidation or to lessen the adverse financial consequences of such a liquidation to the Weis customers. App. 8-9. The Trustee seeks to recover $51 million on behalf of Weis in its own right and on behalf of the customers of Weis whose property the Trustee was unable to return. SIPC claims $14 million, either as subrogee of Weis' customers whose claims it has paid under SIPA or in its own right. The federal claims are based on § 17(a) of the 1934 Act; the complaint also alleges several state common law causes of action based on accountants' negligence, breach of contract, and breach of warranty. [Footnote 7]The District Court dismissed the complaint, holding that no claim for relief was stated because no private cause of action could be implied from § 17(a). 428 F. Supp. 483 (SDNY 1977). [Footnote 8] A divided panel of the Second Circuit reversed. 592 Page 442 U. S. 567 F.2d 617 (1978). The court first found that § 17(a) imposes a duty on accountants. 592 F.2d at 621. It next concluded, based on the factors set forth in Cort v. Ash, 422 U. S. 66, 422 U. S. 78 (1975), that an accountant's breach of his § 17(a) duty gives rise to an implied private right of action for damages in favor of a broker-dealer's customers, even though it acknowledged that the "legislative history of the section is mute on the issue." 592 F.2d at 622. The court held that SIPC and the Trustee could assert this implied cause of action on behalf of the Weis customers. [Footnote 9] We granted certiorari, 439 U.S. 979 (1978), and we now reverse. Page 442 U. S. 568IIThe question of the existence of a statutory cause of action is, of course, one of statutory construction. Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 688 (1979); see National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U. S. 453, 414 U. S. 458 (1974) (hereinafter Amtrak). SIPC's argument in favor of implication of a private right of action based on tort principles, therefore, is entirely misplaced. Brief for Respondent SIPC 22-23. As we recently have emphasized,"the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person."Cannon v. University of Chicago, supra at 441 U. S. 688. Instead, our task is limited solely to determining whether Congress intended to create the private right of action asserted by SIPC and the Trustee. And as with any case involving the interpretation of a statute, our analysis must begin with the language of the statute itself. Cannon v. University of Chicago, supra at 441 U. S. 689; Teamsters v. Daniel, 439 U. S. 551, 439 U. S. 558 (1979); Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 430 U. S. 472 (1977); Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 430 U. S. 24 (1977); Ernst & Ernst v. Hochfelder, 425 U. S. 185, 425 U. S. 197 (1976).At the time pertinent to the case before us, § 17(a) read, in relevant part, as follows:"Every national securities exchange, every member thereof, . . . and every broker or dealer registered pursuant Page 442 U. S. 569 to . . . this title, shall make, keep, and preserve for such periods, such accounts, correspondence, . . . and other records, and make such reports, as the Commission by its rules and regulations may prescribe as necessary or appropriate in the public interest or for the protection of investors."15 U.S.C. § 78q(a) (1970 ed.). In terms, § 17(a) simply requires broker-dealers and others to keep such records and file such reports as the Commission may prescribe. It does not, by its terms, purport to create a private cause of action in favor of anyone. It is true that, in the past, our cases have held that, in certain circumstances, a private right of action may be implied in a statute not expressly providing one. But in those cases finding such implied private remedies, the statute in question at least prohibited certain conduct or created federal rights in favor of private parties. E.g., Cannon v. University of Chicago, supra (20 U.S.C. § 1681); Johnson v. Railway Express Agency, Inc., 421 U. S. 454 (1975) (42 U.S.C. § 1981); Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U. S. 6 (1971) (15 U.S.C. § 7j(b)); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969) (42 U.S.C. § 1982); Allen v. State Board of Elections, 393 U. S. 544 (1969) (42 U.S.C. § 1973c); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968) (42 U.S.C. § 1982); J. I. Case Co. v. Borak, 377 U. S. 426 (1964) (15 U.S.C. § 78n(a)). By contrast, § 17(a) neither confers rights on private parties nor proscribes any conduct as unlawful.The intent of § 17(a) is evident from its face. Section 17(a) is like provisions in countless other statutes that simply require certain regulated businesses to keep records and file periodic reports to enable the relevant governmental authorities to perform their regulatory functions. The reports and records provide the regulatory authorities with the necessary information to oversee compliance with and enforce the various statutes and regulations with which they are concerned. Page 442 U. S. 570 In this case, the § 17(a) reports, along with inspections and other information, enable the Commission and the Exchange to ensure compliance with the "net capital rule," the principal regulatory tool by which the Commission and the Exchange monitor the financial health of brokerage firms and protect customers from the risks involved in leaving their cash and securities with broker-dealers. [Footnote 10] The information contained in the § 17(a) reports is intended to provide the Commission, the Exchange, and other authorities with a sufficiently early warning to enable them to take appropriate action to protect investors before the financial collapse of the particular broker-dealer involved. But § 17(a) does not, by any stretch of its language, purport to confer private damages rights or, indeed, any remedy in the event the regulatory authorities are unsuccessful in achieving their objectives and the broker becomes insolvent before corrective steps can be taken. By its terms, § 17(a) is forward-looking, not retrospective; it seeks to forestall insolvency, not to provide Page 442 U. S. 571 recompense after it has occurred. In short, there is no basis in the language of § 17(a) for inferring that a civil cause of action for damages lay in favor of anyone. Cort v Ash, 422 U.S. at 422 U. S. 79.As the Court of Appeals recognized, the legislative history of the 1934 Act is entirely silent on the question whether a private right of action for damages should or should not be available under § 17(a) in the circumstances of this case. 592 F.2d at 622. SIPC and the Trustee nevertheless argue that, because Congress did not express an intent to deny a private cause of action under § 17(a), this Court should infer one. But implying a private right of action on the basis of congressional silence is a hazardous enterprise, at best. See Santa Clara Pueblo v. Martinez, 436 U. S. 49, 436 U. S. 64 (1978). And where, as here, the plain language of the provision weighs against implication of a private remedy, the fact that there is no suggestion whatsoever in the legislative history that § 17(a) may give rise to suits for damages reinforces our decision not to find such a right of action implicit within the section. See Cort v. Ash, supra, at 422 U. S. 82-84; cf. Securities Investor Protection Corp. v. Barbour, 421 U. S. 412 (1975); Amtrak, 414 U. S. 453 (1974); T.I.M.E. Inc. v. United States, 359 U. S. 464 (1959). [Footnote 11]Further justification for our decision not to imply the private remedy that SIPC and the Trustee seek to establish may be found in the statutory scheme of which § 17(a) is a part. First, § 17(a) is flanked by provisions of the 1934 Page 442 U. S. 572 Act that explicitly grant private causes of action. § 16(b), 15 U.S.C. § 78p(b); § 18(a), 15 U.S.C. § 78r(a). Section 9(e) of the 1934 Act also expressly provides a private right of action. 15 U.S.C. § 78i(e). See also § 20, 15 U.S.C. § 78t. Obviously, then, when Congress wished to provide a private damages remedy, it knew how to do so, and did so expressly. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 421 U. S. 734 (1975); see Amtrak, supra at 414 U. S. 458; T.I.M.E. Inc. v. United States, supra at 359 U. S. 471.Second, § 18(a) creates a private cause of action against persons, such as accountants, who "make or cause to be made" materially misleading statements in any reports or other documents filed with the Commission, although the cause of action is limited to persons who, in reliance on the statements, purchased or sold a security whose price was affected by the statements. [Footnote 12] 15 U.S.C. § 78r(a); see Ernst & Ernst v. Hochfelder, 425 U.S. at 425 U. S. 211 n. 31; Blue Chip Stamps v. Manor Drug Stores, supra at 421 U. S. 736. Since SIPC and the Trustee do not allege that the Weis customers purchased Page 442 U. S. 573 or sold securities in reliance on the § 17(a) reports at issue, they cannot sue Touche Ross under § 18(a). [Footnote 13] Instead, their claim is that the Weis customers did not get the enforcement action they would have received if the § 17(a) reports had been accurate. [Footnote 14] SIPC and the Trustee argue that § 18(a) cannot provide the exclusive remedy for misstatements made in § 17(a) reports because the cause of action created by § 18(a) is expressly limited to purchasers and sellers. They assert that Congress could not have intended in § 18(a) to deprive customers, such as those whom they seek to represent, of a cause of action for misstatements contained in § 17(a) reports.There is evidence to support the view that § 18(a) was intended to provide the exclusive remedy for misstatements contained in any reports filed with the Commission, including Page 442 U. S. 574 those filed pursuant to § 17(a). [Footnote 15] Certainly, SIPC and the Trustee have pointed to no evidence of a legislative intent to except § 17(a) reports from § 18(a)'s purview. Cf. Securities Investor Protection Corp., 421 U.S. at 421 U. S. 419-420; Amtrak, 414 U.S. at 414 U. S. 458. But we need not decide whether Congress expressly intended § 18(a) to provide the exclusive remedy for misstatements contained in § 17(a) reports. For where the principal express civil remedy for misstatements in reports created by Congress contemporaneously with the passage of § 17(a) is, by its terms, limited to purchasers and sellers of securities, we are extremely reluctant to imply a cause of action in § 17(a) that is significantly broader than the remedy that Congress chose to provide. Blue Chip Stamps v. Manor Drug Stores, supra at 421 U. S. 735-736; see Ernst & Ernst v. Hochfelder, supra at 425 U. S. 210; Securities Investor Protection Corp. v. Barbour, supra at 421 U. S. 421-423; Amtrak, supra at 414 U. S. 458; cf. T.I.M.E. Inc. v. United States, 359 U.S. at 359 U. S. 471. [Footnote 16] Page 442 U. S. 575SIPC and the Trustee urge, and the Court of Appeals agreed, that the analysis should not stop here. Relying on the factors set forth in Cort v. Ash, 422 U.S. at 422 U. S. 7, they assert that we also must consider whether an implied private remedy is necessary to "effectuate the purpose of the section," and whether the cause of action is one traditionally relegated to state law. SIPC and the Trustee contend that implication of a private remedy is essential to the goals of § 17(a) and that enforcement of § 17(a) is properly a matter of federal, not state, concern. Brief for Respondent Redington 30-35; Brief for Respondent SIPC 42-52. We need not reach the merits of the arguments concerning the "necessity" of implying a private remedy and the proper forum for enforcement of the rights asserted by SIPC and the Trustee, for we believe such inquiries have little relevance to the decision of this case. It is true that, in Cort v. Ash, the Court set forth four factors that it considered "relevant" in determining whether a private remedy is implicit in a statute not expressly providing one. But the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort -- the language and focus of the statute, its Page 442 U. S. 576 legislative history, and its purpose, see 422 U.S. at 422 U. S. 78 -- are ones traditionally relied upon in determining legislative intent. Here, the statute, by its terms, grants no private rights to any identifiable class, and proscribes no conduct as unlawful. And the parties, as well as the Court of Appeals, agree that the legislative history of the 1934 Act simply does not speak to the issue of private remedies under § 17(a). At least in such a case as this, the inquiry ends there: the question whether Congress, either expressly or by implication, intended to create a private right of action has been definitely answered in the negative.Finally, SIPA and the Trustee argue that our decision in J. I. Case Co. v. Borak, 377 U. S. 426 (1964), requires implication of a private cause of action under § 17(a). In Borak, the Court found in § 14(a) of the 1934 Act, 15 U.S.C. § 78n(a), an implied cause of action for damages in favor of shareholders for losses resulting from deceptive proxy solicitations in violation of § 14(a). SIPC and the Trustee emphasize language in Borak that discusses the remedial purposes of the 1934 Act and § 27 of the Act, which, inter alia, grants to federal district courts the exclusive jurisdiction of violations of the Act and suits to enforce any liability or duty created by the Act or the rules and regulations thereunder. [Footnote 17] They argue that Page 442 U. S. 577 Touche Ross has breached its duties under § 17(a) and the rules adopted thereunder, and that, in view of § 27 and of the remedial purposes of the 1934 Act, federal courts should provide a damages remedy for the breach. [Footnote 18]The reliance of SIPC and the Trustee on § 27 is misplaced. Section 27 grants jurisdiction to the federal courts and provides for venue and service of process. It creates no cause of action of its own force and effect; it imposes no liabilities. The source of plaintiffs' rights must be found, if at all, in the substantive provisions of the 1934 Act which they seek to enforce, not in the jurisdictional provision. See Securities Investor Protection Corp. v. Barbour, 421 U.S. at 421 U. S. 44. The Court in Borak found a private cause of action implicit in 14(a). See Cannon v. University of Chicago, 441 U.S. at 441 U. S. 690-693, n. 13; Piper v. Chris-Craft Industries, Inc., 430 U.S. at 430 U. S. 25; Allen v. State Board of Elections, 393 U.S. at 393 U. S. 557. We do not now question the actual holding of that case, but we decline to read the opinion so broadly that virtually every provision of the securities Acts gives rise to an implied private cause of action. E.g., Piper v. Chris-Craft Industries, Inc., supra. [Footnote 19] Page 442 U. S. 578The invocation of the "remedial purposes" of the 1934 Act is similarly unavailing. Only last Term, we emphasized that generalized references to the "remedial purposes" of the 1934 Act will not justify reading a provision "more broadly than its language and the statutory scheme reasonably permit." SEC v. Sloan, 436 U. S. 103, 436 U. S. 116 (1978); see Ernst & Ernst v. Hochfelder, 425 U.S. at 425 U. S. 200. Certainly, the mere fact that § 17(a) was designed to provide protection for brokers' customers does not require the implication of a private damages action in their behalf. Cannon v. University of Chicago, supra at 441 U. S. 688, and n. 9; Securities Investor Protection Corp. v. Barbour, supra at 421 U. S. 421. To the extent our analysis in today's decision differs from that of the Court in Borak, it suffices to say that, in a series of cases since Borak, we have adhered to a stricter standard for the implication of private causes of action, and we follow that stricter standard today. Cannon v. University of Chicago, supra at 441 U. S. 688-709. The ultimate question is one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law. Page 442 U. S. 579IIISIPC and the Trustee contend that the result we reach sanctions injustice. But even if that were the case, the argument is made in the wrong forum, for we are not at liberty to legislate. If there is to be a federal damages remedy under these circumstances, Congress must provide it. "[I]t is not for us to fill any hiatus Congress has left in this area." Wheeldin v. Wheeler, 373 U. S. 647, 373 U. S. 652 (1963). Obviously, nothing we have said prevents Congress from creating a private right of action on behalf of brokerage firm customers for losses arising from misstatements contained in § 17(a) reports. But if Congress intends those customers to have such a federal right of action, it is well aware of how it may effectuate that intent.The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtTouche Ross & Co. v. Redington, 442 U.S. 560 (1979)Touche Ross & Co. v. RedingtonNo. 78-309Argued March 26, 1979Decided June 18, 1979442 U.S. 560SyllabusPetitioner accounting firm was retained by a securities brokerage firm (Weis) registered with the Securities and Exchange Commission (SEC) and a member of the New York Stock Exchange (Exchange), and, in this capacity, audited Weis' books and records and prepared for filing with the SEC the annual reports of financial condition required by § 17(a) of the Securities Exchange Act of 1934 (1934 Act) and implementing regulations. Subsequently, because of Weis' precarious financial condition, respondent Redington was appointed as trustee in the liquidation of Weis' business pursuant to the Securities Investor Protection Act (SIPA). During the liquidation, Weis' cash and securities on hand, as well as a sum of money advanced by respondent Securities Investor Protection Corporation (SIPC) to the trustee under the SIPA, proved to be insufficient to make whole those customers who had left assets or deposits with Weis. The SIPC and the trustee then filed an action for damages against petitioner in District Court, seeking to impose liability upon petitioner by reason of its allegedly improper audit of Weis' financial statements, and alleging that, because of such improper conduct, petitioner breached duties owed to the SIPC, the trustee, and others under the common law, § 17(a), and the regulations, and that this misconduct prevented Weis' true financial condition from becoming known until it was too late to forestall liquidation or to lessen the adverse financial consequences to Weis' customers. The District Court dismissed the complaint, holding that no claim for relief was stated because no private cause of action could be implied from § 17(a). The Court of Appeals reversed, holding that § 17(a) imposes a duty on accountants, that a breach of this duty gives rise to an implied private right of action for damages in favor of a broker-dealer's customers, and that the SIPC and the trustee could assert this implied cause of action on behalf of Weis' customers.Held: There is no implied private cause of action for damages under § 17(a). Pp. 442 U. S. 568-579.(a) In terms, § 17(a) simply requires broker-dealers to keep such records and file such reports as the SEC may prescribe, and does not purport to create a private cause of action in favor of anyone. The Page 442 U. S. 561 section's intent, evident from its face, is to provide the SEC, the Exchange, and other authorities with a sufficiently early warning to enable them to take appropriate action to protect investors before a broker-dealer's financial collapse, and not by any stretch of its language does the section purport to confer private damages rights or any remedy in the event the regulatory authorities are unsuccessful in achieving their objectives and the broker-dealer becomes insolvent before corrective steps can be taken. Pp. 442 U. S. 568-571.(b) The conclusion that no private right of action is implicit in § 17(a) is reinforced by the fact that the 1934 Act's legislative history is entirely silent on whether or not such a right of action should be available. This conclusion is also supported by the statutory scheme under which other sections of the Act explicitly grant private causes of action. More particularly, a cause of action in § 17(a) should not be implied that is significantly broader than the one granted in § 18(a), which provides the principal express civil remedy for misstatements in reports, but limits it to purchasers and sellers of securities. Pp. 442 U. S. 571-574.(c) The inquiry in a case such as this ends when it is determined on the basis of the statutory language and the legislative history that Congress did not intend to create, either expressly or by implication, a private cause of action. Further inquiries as to the "necessity" of implying a private remedy and the proper forum for enforcement of the asserted rights have little relevance to the decision of the case. Pp. 442 U. S. 575-576.(d) Section 27 and the remedial purposes of the 1934 Act do not furnish a sufficient ground for holding that the federal courts should provide a damages remedy for petitioner's alleged breach of its duties under § 17(a). Section 27 merely grants jurisdiction to federal district courts over violations of the Act and suits to enforce any liability or duty thereunder, and provides for venue and service of process. It creates no cause of action of its own force and effect, and imposes no liabilities. And generalized references to the "remedial purposes" of the Act do not justify reading a provision "more broadly than its language and the statutory scheme reasonably permit." SEC v. Sloan, 436 U. S. 103, 436 U. S. 116. Pp. 442 U. S. 576-578.592 F.2d 617, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, and STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 442 U. S. 579. MARSHALL, J., filed a dissenting opinion, post, p. 442 U. S. 580. POWELL, J., took no part in the consideration or decision of the case. Page 442 U. S. 562

2000_00-157

back a loss to a year in which the member was not part of the consolidated group. Such returns are not at issue here. Pp.831-834.(c) Several objections to the single-entity approach-that it allows affiliated groups a double deduction, that the omission of PLEs from the series of items that Treas. Reg. § 1.1502-12 requires to be tallied at the consolidation level indicates that PLEs were not meant to be tallied at that level, and that the single-entity approach would permit significant tax avoidance abuses-are rejected. Pp. 834-838.208 F.3d 452, reversed and remanded.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, THOMAS, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a concurring opinion, post, p. 838. STEVENS, J., filed a dissenting opinion, post, p. 839.Eric R. Fox argued the cause for petitioner. With him on the briefs was Alan J. J. Swirski.Kent L. Jones argued the cause for the United States.With him on the brief were Acting Solicitor General Underwood, Deputy Assistant Attorney General Fallon, Deputy Solicitor General Wallace, Richard Farber, and Edward T. Perelmuter. *JUSTICE SOUTER delivered the opinion of the Court. Under § 172(b)(1)(I) of the Internal Revenue Code of 1954, a taxpayer may carry back its "product liability loss" up to 10 years in order to offset prior years' income. The issue here is the method for calculating the product liability loss of an affiliated group of corporations electing to file a consolidated federal income tax return. We hold that the group's product liability loss must be figured on a consolidated basis in the first instance, and not by aggregating product liability losses separately determined company by company.* Richard E. Zuckerman and Raymond M. Kethledge filed a brief for the National Association of Manufacturers et al. as amici curiae urging reversal.825IA "net operating loss" results from deductions in excess of gross income for a given year. 26 U. s. C. § 172(c).1 Under § 172(b)(1)(A), a taxpayer may carry its net operating loss either backward to past tax years or forward to future tax years in order to "set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year," Libson Shops, Inc. v. Koehler, 353 U. S. 382, 386 (1957).Although the normal carryback period was at the time three years, in 1978, Congress authorized a special 10year carryback for "product liability loss[es]," 26 U. S. C. § 172(b)(1)(I), since, it understood, losses of this sort tend to be particularly "large and sporadic." Joint Committee on Taxation, General Explanation of the Revenue Act of 1978, 95th Cong., 232 (Comm. Print 1979). The Code defines "product liability loss," for a given tax year, as the lesser of (1) the taxpayer's "net operating loss for such year" and (2) its allowable deductions attributable to product liability "expenses." 26 U. S. C. § 172(j)(1). In other words, a taxpayer's product liability loss (PLL) is the total of its product liability expenses (PLEs), limited to the amount of its net operating loss (NOL). By definition, then, a taxpayer with positive annual income, and thus no NOL, may have PLEs but can have no PLL.21 Unless otherwise noted, all statutory references are to the Internal Revenue Code of 1954, 26 U. S. C. § 1 et seq. (1982 ed. and Supp. V), as in effect between 1983 and 1986, the tax years here in question.2 If, for example, a company had $100 in taxable income, $50 in deductible PLEs, and $75 in additional deductions, its NOL would be $25 (i. e., $100-$50-$75= -$25); it could count only $25 of its $50 in PLEs as PLL. If the company had $100 in income, $50 in PLEs, and $125 in additional deductions, its NOL would be $75, and it could count its entire $50 in PLEs as PLL. And, finally, if the company had $100 in income, $50 in PLEs, and $40 in additional deductions, it would have positive income and, thus, no NOL and no PLL.826Instead of requiring each member company of "[a]n affiliated group of corporations" to file a separate tax return, the Code permits the group to file a single consolidated return, 26 U. S. C. § 1501, and leaves it to the Secretary of the Treasury to work out the details by promulgating regulations governing such returns, § 1502. Under Treas. Regs. §§ 1.1502-11(a) and 1.1502-21(f),3 an affiliated group's "consolidated taxable income" (CTI), or, alternatively, its "consolidated net operating loss" (CNOL), is determined by "taking into account" several items. The first is the "separate taxable income" (STI) of each group member. A member's STI (whether positive or negative) is computed as though the member were a separate corporation (i. e., by netting income and expenses), but subject to several important "modifications." Treas. Reg. § 1.1502-12. These modifications require a group member calculating its STI to disregard, among other items, its capital gains and losses, charitable-contribution deductions, and dividends-received deductions. Ibid. These excluded items are accounted for on a consolidated basis, that is, they are combined at the level of the group filing the single return, where deductions otherwise attributable to one member (say, for a charitable contribution) can offset income received by another (from a capital gain, for example). Treas. Regs. §§ 1.1502-11(a)(3) to (8); 1.1502-21(f)(2) to (6). A consolidated group's CTI or CNOL, therefore, is the sum of each member's STI, plus or minus a handful of items considered on a consolidated basis.IIPetitioner United Dominion's predecessor in interest, AMCA International Corporation, was the parent of an affiliated group of corporations that properly elected to file3 Unless otherwise noted, Treasury Regulation references are to the regulations in effect between 1983 and 1986, 26 CFR § 1.1502-11 et seq. (1982-1986).827consolidated tax returns for the years 1983 through 1986. In each of these years, AMCA reported CNOL (the lowest being $85 million and the highest, $140 million) that exceeded the aggregate of its 26 individual members' PLEs ($3.5 million to $6.5 million). This case focuses on the PLEs of five of AMCA's member companies, which, together, generated roughly $205,000 in PLEs in 1983, $1.6 million in 1984, $1.3 million in 1985, and $250,000 in 1986. No one disputes these amounts or their characterization as PLEs. See 208 F.3d 452, 453 (CA4 2000) ("The parties agree" with respect to the amount of "the product liability expenses incurred by the five group members in the relevant years"). Rather, the sole question here is whether the AMCA affiliated group may include these amounts on its consolidated return, in determining its PLL for 10-year carryback. The question arises because of the further undisputed fact that in each of the relevant tax years, each of the five companies in question (with minor exceptions not relevant here), reported a positive STI.AMCA answered this question by following what commentators have called a "single-entity" approach 4 to calculating its "consolidated" PLL. For each tax year, AMCA (1) calculated its CNOL pursuant to Treas. Reg. § 1.150211 (a), and (2) aggregated its individual members' PLEs. Because, as noted above, for each tax year AMCA's CNOL was greater than the sum of its members' PLEs, AMCA treated the full amount of the PLEs as consolidated PLL eligible for 10-year carryback. In AMCA's view, the fact that several member companies throwing off large PLEs also, when considered separately, generated positive taxable income was of no significance.From the Government's perspective, however, the fact that the several affiliated members with PLEs also gen-4 Axelrod & Blank, The Supreme Court, Consolidated Returns, and 10Year Carrybacks, 90 Tax Notes, No. 10, p. 1383 (Mar. 5,2001) (hereinafter Axelrod & Blank).828erated positive separate taxable income is of critical significance. According to the Government's methodology, which we will call the "separate-member" approach,5 PLEs incurred by an affiliate with positive separate taxable income cannot contribute to a PLL eligible for 10-year carryback. Whereas AMCA compares the group's total income (or loss) and total PLEs in an effort to determine the group's total PLL, the Government compares each affiliate's STI and PLEs in order to determine whether each affiliate suffers a PLL, and only then combines any PLLs of the individual affiliates to determine a consolidated PLL amount.In 1986 and 1987, AMCA petitioned the Internal Revenue Service for refunds of taxes based on its PLL calculations. The IRS first ruled in AMCA's favor but was reversed by the Joint Committee on Internal Revenue Taxation of the United States Congress, which controls refunds exceeding a certain threshold, 26 U. S. C. § 6405(a). AMCA then filed this refund action in the United States District Court for the Western District of North Carolina. The District Court agreed with AMCA that an affiliated group's PLL is determined on a single-entity basis, and held that, so long as the group's consolidated return reflects CNOL in excess of the group's aggregate PLEs, the total of those expenses (including those incurred by members with positive separate taxable income) is a PLL that "may be carried back the full ten years." No. 3:95-CV-341-MU (June 19, 1998), App. to Pet. for Cert. 39a. The United States Court of Appeals for the Fourth Circuit reversed, and held that "determining 'product liability loss' separately for each group member is correct and consistent with [Treasury] regulations." 208 F. 3d, at 458.Because the Fourth Circuit's separate-member approach to calculating PLL conflicted with the Sixth Circuit's adoption of the single-entity approach in Intermet Corp. v. Com-5 Ibid.829missioner, 209 F.3d 901 (2000), we granted certiorari, 531 U. S. 1009 (2000).6 We now reverse.IIIThe case for the single-entity approach to calculating an affiliated group's PLL is straightforward. Section 172(j)(1) defines a taxpayer's "product liability loss" for a given tax year as the lesser of its "net operating loss for such year" and its product liability "expenses." In order to apply this definition, the taxpayer first determines whether it has taxable income or NOL, and in making that calculation it subtracts PLEs. If the result is NOL, the taxpayer then makes a simple comparison between the NOL figure and the total PLEs. The PLE total becomes the PLL to the extent it does not exceed NOL. That is, until NOL has been determined, there is no PLL.The first step in applying the definition and methodology of PLL to a taxpayer filing a consolidated return thus requires the calculation of NOL. As United Dominion correctly points out, the Code and regulations governing affiliated groups of corporations filing consolidated returns provide only one definition of NOL: "consolidated" NOL, see Treas. Reg. § 1.1502-21(f). There is no definition of separate NOL for a member of an affiliated group. Indeed, the fact that Treasury Regulations do provide a measure of separate NOL in a different context, for an affiliated corporation as to any year in which it filed a separate return, infra, at 832834, underscores the absence of such a measure for an affili-6Intermet involved "specified liability losses" (SLLs), not PLLs. The difference, however, does not matter. The PLL was a statutory predecessor to the SLL, and PLLs were folded into the SLL provision in § 11811(b)(1) of the Omnibus Budget Reconciliation Act of 1990, 104 Stat. 1388-532. Thus, "[i]n all relevant respects, the provisions on [PLLs] and SLLs are the same." Leatherman, Current Developments for Consolidated Groups, 486 PLI/Tax 389, 393, n. 5 (2000) (hereinafter Leatherman, Current Developments).830ated corporation filing as a group member. Given this apparently exclusive definition of NOL as CNOL in the instance of affiliated entities with a consolidated return (and for reasons developed below, infra, at 834-838) we think it is fair to say, as United Dominion says, that the concept of separate NOL "simply does not exist." Brief for Petitioner 15.7 The exclusiveness of NOL at the consolidated level as CNOL is important here for the following reasons. The Code's authorization of consolidated group treatment contains no indication that for a consolidated group the essential relationship between NOL and PLL will differ from their relationship for a conventional corporate taxpayer. Nor does any Treasury Regulation purport to change the relationship in the consolidated context. If, then, the relationship is to remain essentially the same, the key to understanding it lies in the regulations' definition of net operating loss exclusively at the consolidated level. Working back from that, PLEs should be considered first in calculating CNOL, and they are: because any PLE of an affiliate affects the calculation of its STI, that same PLE necessarily affects the CTI or CNOL in exactly the same way, dollar for dollar. And because, by definition, there is no NOL measure for a consolidated return group or any affiliate except CNOL, PLEs cannot be compared with any NOL to produce PLL until CNOL has been calculated. Then, and only then in the case of the consolidated filer, can total PLEs be compared7 In addition to Treas. Reg. § 1.1502-79(a)(3), discussed infra, at 832-834, two other provisions, 26 U. S. C. § 1503(f)(2) and the current version (though not the version applicable between 1983 and 1986) of Treas. Reg. § 1502-21(b) (2000), refer to separate group members' NOLs. The parties here have not emphasized those provisions, and with good reason. Not only are they inapplicable to the question before us (either substantively, temporally, or both), but, as one commentator has observed, their references to separate NOLs "ste[m] more from careless drafting than meaningful design." Leatherman, Are Separate Liability Losses Separate for Consolidated Groups?, 52 Tax. Law. 663, 705 (1999) (hereinafter Leatherman, Separate Liability Losses).831with a net operating loss. In sum, comparable treatment of PLL in the instances of the usual corporate taxpayer and group filing a consolidated return can be achieved only if the comparison of PLEs with a limiting loss amount occurs at the consolidated level after CNOL has been determined. This approach resting on comparable treatment has a further virtue entitled to some weight in case of doubt: it is (relatively) easy to understand and to apply.The case for the separate-member approach, advanced (in one variant) by the Government and adopted (on a different rationale) by the Court of Appeals, is not so easily made. In the analysis of comparable treatment just set out, of course, there is no NOL below the consolidated level and hence nothing for comparison with PLEs to produce PLL at any stage before the CNOL calculation. At the least, then, a proponent of the separate-member approach must identify some figure in the consolidated return scheme that could have a plausible analogy to NOL at the level of the affiliated corporations. See A. Dubroff, J. Blanchard, J. Broadbent, & K. Duvall, Federal Income Taxation of Corporations Filing Consolidated Returns § 41.04[06], p. 41-75 (2d ed. 2000) (hereinafter Dubroff) ("Even if separate entity treatment was appropriate, it is unclear how a member with [PLEs] would compute its separate NOU'). The Government and the Court of Appeals have suggested different substitute measures. N either one works.The Government has argued that an individual group member's STI, as determined under Treas. Reg. § 1.1502-12, is analogous to a "separate" NOL, so that an affiliate's STI may be compared with its PLEs in order to determine any separate PLL. An individual member's PLL would be the amount of its separate PLEs up to the amount of its negative STI; a member having positive STI could have no PLL.The Government claims that an STI -based comparison places the group member closest to the position it would have occupied if it had filed a separate return. But that832is simply not so. We have seen already that the calculation of a group member's STI by definition excludes several items that an individual taxpayer would normally account for in computing income or loss, but which an affiliated group may tally only at the consolidated level, such as capital gains and losses, charitable-contribution deductions, and dividends-received deductions. Treas. Regs. §§ 1.1502-12(j) to (n). Owing to these exclusions, an affiliate's STI will tend to be inflated by eliminating deductions it would have taken if it had filed separately, or deflated by eliminating an income item like capital gain.When pushed, the Government concedes that STI is "not necessarily equivalent to the income or [NOL] figure that the corporation would have computed if it had filed a separate return." Brief for United States 21, n.14. But, the Government claims, "[t]here has never been a taxpayer with [PLEs] who had a positive [STI] but a negative separate [NOL]." Tr. of Oral Arg. 27. In other words, the Government says that the deductions excluded from STI have never once made a difference and, therefore, that STI is, in fact, a decent enough proxy for a group member's "separate" NOL. But whether or not the excluded items have made a difference in the past, or make a difference here, they certainly could make a difference and, given the potential importance of some of the deductions involved (a large charitable contribution, for example), it is not hard to see how the difference could favor the Government.The Court of Appeals was therefore right to reject the Government's reliance on STI as a functional surrogate for an affiliate's "separate" NOL. 208 F. 3d, at 459-460. But what the Court of Appeals used in place of STI fares no better. The court relied on Treas. Reg. § 1.1502-79, which contains a definition of "separate net operating loss" that the court believed to be "analogous to an individual's 'net operating loss' on a separate return." 208 F. 3d, at 460. Section 1.1502-79(a)(3) provides that, "[f]or purposes of this833subparagraph," the "separate net operating loss of a member of the group shall be determined under § 1.1502-12 ... , adjusted for the ... items taken into account in the computation of" the CNOL. As the Court of Appeals said, the directive of § 1.1502-79(a)(3) (unlike the definition of STI) "takes into account, for example, [a] member's charitable contributions" and other consolidated deductions. 208 F. 3d, at 460-461.But this sounds too good. It is true that, insofar as § 1.1502-79(a)(3) accounts for gains and losses that STI does not, it gets closer to a commonsense notion of a group member's "separate" NOL than STI does. But the fact that § 1.1502-79(a)(3) improves on STI simply by undoing what § 1.1502-12 requires in defining STI is suspicious, and the suspicion turns out to be justified. Section 1.1502-79(a)(3) unbakes the cake for only one reason, and that reason has no application here. The definition on which the Court of Appeals relied applies, by its terms, only "for purposes of" § 1.1502-79(a)(3), and context makes clear that the purpose is to provide a way to allocate CNOL to an affiliate member that seeks to carry back a loss to a "separate return year," that is, to a year in which the member was not part of the consolidated group. See Treas. Reg. § 1.1502-79 (titled "Separate return years"); § 1.1502-79(a) (titled "Carryover and carryback of [CNOL] to separate return years"); § 1.1502-79(a)(1) ("[i]f a [CNOL] can be carried ... to a separate return year ... "). No separate return years are at issue before us; all NOL carrybacks relevant here apply to years in which the five corporations were affiliated in the group. The Court of Appeals thus applied concepts addressing separate return years to a determination for a consolidated return year, without any statutory or regulatory basis for doing so. Cf. 49 Fed. Reg. 30530 (1984) ("[A]lthough the consolidated net operating loss is apportioned to individual members for purposes of carry backs to separate return years [under § 1.1502-79(a)], the apportioned amounts are not834separate NOLs of each member"). Hence, while § 1.1502-79 might not distort an affiliate's separate NOL in the same way that STI does, the facial inapplicability of that regulation only underscores the exclusive concern of § 1.1502-11(a) with consolidated NOL.In sum, neither method for computing PLL on a separatemember basis squares with the notion of comparability as applied to consolidated return regulations. On the contrary, by expressly and exclusively defining NOL as CNOL, the regulations support the position that group members' PLEs should be aggregated and the affiliated group's PLL determined on a consolidated, single-entity basis.IVSeveral objections have been raised to a single-entity approach to calculating PLL that we have not considered yet. First, the Government insists that a single-entity rule allows affiliated groups a "double deduction." The Government argues that because PLEs are not included among the specific items (charitable-contribution deductions, etc.) for which consolidated, single-entity treatment is required under Treas. Reg. § 1.1502-12, PLEs are "consumed" or "used up" in computing members' STIs, which, pursuant to Treas. Regs. §§ 1.1502-11(a) and 1.1502-21(f), are then used to calculate the group's CTI or CNOL. According to the Government, to permit the use of PLEs first to reduce an individual member's STI and then to contribute to an aggregate PLL for carryback purposes would be tantamount to a double deduction.The double-deduction argument may have superficial appeal, but any appeal it has rests on a fundamental misconception of the function of STI in computing an affiliated group's tax liability. Calculation of a group member's STI is not in and of itself the basis for any tax event, and there is no separate tax saving when STI is calculated; that occurs only when deductions on the consolidated return equal in-835come and (if they exceed income and produce a CNOL) are carried back against prior income. STI is merely an accounting construct devised as an interim step in computing a group's CTI or CNOL; it "has no other purpose." Intermet, 209 F. 3d, at 906 ("A member's STI is simply a step along the way to calculating the group's taxable income or CNOL"). The fact that a group member's PLEs reduce its STI, which in turn either reduces the group's CTI or contributes to its CNOL "dollar for dollar," ibid., is of no other moment.8 If there were anything wrong in what United Dominion proposes to do, it would be wrong in relation to CNOL and its use for any carryback. Yet, as noted above, no one here disputes that the group members had PLEs in the total amount claimed or that the AMCA group is entitled to carry back the full amount of its CNOL to offset income in prior years. The only question is what portion, if any, of AMCA's CNOL is PLL and, as such, eligible for 10-year, as opposed to 3-year, carryback treatment. There is no more of a double deduction with a 10-year carryback than one for three years.A second objection was the reason that the Court of Appeals rejected the single-entity approach. That court attached dispositive significance to the fact that, while the Treasury Regulation we have discussed, § 1.1502-12, specifically provides that several items (capital gains and losses, charitable-contribution deductions, etc.) shall be accounted for on a consolidated basis, it does not similarly provide for accounting for PLEs on a consolidated basis: "The regulations provide for blending the group members' [NOLs],8 It makes no difference whatsoever whether the affiliate's PLEs are (1) first netted against each member's income and then aggregated or (2) first aggregated and then netted against the group's combined income: under either method, AMCA's CNOL is the same. See Axelrod & Blank 1394 (noting that this conclusion follows from "the associative principle of arithmetic (which holds that the groupings of items in the case of addition and subtraction have no effect on the result)").836and they explicitly define [CNOL] without an accompanying reference to consolidated [PLEs]. This omission ... makes clear that blending those expenses is not permitted .... " 208 F. 3d, at 458.We think the omission of PLEs from the series of items that § 1.1502-12 requires to be tallied at the consolidated level has no such clear lesson, however. The logic that invests the omission with significance is familiar: the mention of some implies the exclusion of others not mentioned. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 168 (1993) ("Expressio unius est exclusio alterius"). But here, as always, the soundness of that premise is a function of timing: if there was a good reason to consider the treatment of consolidated PLL at the time the regulation was drawn, then omitting PLL from the list of items for consolidated treatment may well have meant something. But if there was no reason to consider PLL then, its omission would mean nothing at all. And in fact there was no reason. When the consolidated return regulations were first promulgated in 1966, there was no carryback provision pegged to PLEs or PLLs; those notions did not become separate carryback items until 1978, when the 10-year rule was devised. See Revenue Act of 1978, § 371, 92 Stat. 2859; see also Leatherman, Current Developments 393, n. 5. Omission of PLEs or PLLs from the series set out for consolidated treatment in the 1966 regulation therefore meant absolutely nothing in 1966. The issue, then, is the significance, not of omission, but of failure to include later: has the significance of the earlier regulation changed solely because the Treasury has never amended it, even though PLL is now a separate carryback? We think that is unlikely. The Treasury's relaxed approach to amending its regulations to track Code changes is well documented. See e. g., Dubroff 41-72, n. 193; Axelrod & Blank 1391; Leatherman, Separate Liability Losses 708-709. The absence of any amendment to § 1.1502-12 that might have added PLEs837or PLLs to the list of items for mandatory single-entity treatment therefore is more likely a reflection of the Treasury's inattention than any affirmative intention on its part to say anything at all.Last, the Government warns that "[t]he rule that petitioner advocates would permit significant tax avoidance abuses." Brief for United States 40. Specifically:"Under petitioner's approach, a corporation that is currently unprofitable but that had substantial income in prior years could (i) acquire a profitable corporation with product liability expense deductions in the year of acquisition, (ii) file a consolidated return and (iii) thereby create an otherwise nonexistent 'product liability loss' for the new affiliated group that would allow the acquiring corporation to claim refunds of the tax it paid in prior years." Ibid.The Government suggests, for example, that "a manufacturing company (with prior profits and current losses) that has no product liability exposure could purchase a tobacco company (with both prior and current profits) that has significant product liability expenses" and that "[t]he combined entity could ... assert a ten-year carryback of 'product liability losses' even though the tobacco company has always made a profit and never incurred a 'loss' of any type." Id., at 40-41, n. 27.There are several answers. First, on the score of tax avoidance, the separate-member approach is no better (and is perhaps worse) than the single-entity treatment; both entail some risk of tax-motivated behavior. See Leatherman, Separate Liability Losses 681 (Under the separate-member approach, "[d]espite sound non-tax business reasons, a group may be disinclined to form a new member or transfer assets between members, because it may worry that it would lose the benefit of a ten-year carryback," and "may be encouraged to transfer assets between members to increase its consoli-838THOMAS, J., concurringdated [PLL], even when those transfers would otherwise be ill-advised"). Second, the Government may, as always, address tax-motivated behavior under Internal Revenue Code § 269, which gives the Secretary ample authority to "disallow [any] deduction, credit, or other allowance" that results from a transaction "the principal purpose [of] which ... is evasion or avoidance of Federal income tax." 26 U. S. C. § 269(a). And finally, if the Government were to conclude that § 269 provided too little protection and that it simply could not live with the single-entity approach, the Treasury could exercise the authority provided by the Code, 26 U. S. C. § 1502, and amend the consolidated return regulations.***Thus, it is true, as the Government has argued, that "[t]he Internal Revenue Code vests ample authority in the Treasury to adopt consolidated return regulations to effect a binding resolution of the question presented in this case." Brief for United States 19-20. To the extent that the Government has exercised that authority, its actions point to the single-entity approach as the better answer. To the extent the Government disagrees, it may amend its regulations to provide for a different one.The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2000SyllabusUNITED DOMINION INDUSTRIES, INC. v.UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 00-157. Argued March 26, 200l-Decided June 4, 2001Under the Internal Revenue Code of 1954, a "net operating loss" (NOL) results from deductions in excess of gross income for a given year. 26 U. S. C. § 172(c). A taxpayer may carry its NOL either backward or forward to other tax years in order to set off its lean years against its lush years. § 172(b)(I)(A). The carryback period for "product liability loss[es]" is 10 years. § 172(b)(I)(I). Because a product liability loss (PLL) is the total of a taxpayer's product liability expenses (PLEs) up to the amount of its NOL, § 172(j)(1), a taxpayer with a positive annual income, and thus no NOL, may have PLEs but can have no PLL. An affiliated group of corporations may file a single consolidated return. § 1501. Treasury Regulations provide that such a group's "consolidated taxable income" (CTI), or, alternatively, its "consolidated net operating loss" (CNOL), is determined by taking into account several items, the first of which is the "separate taxable income" (STI) of each group member. In calculating STI, the member must disregard items such as capital gains and losses, which are considered, and factored into CTI or CNOL, on a consolidated basis. Petitioner's predecessor in interest, AMCA International Corporation, was the parent of an affiliated group filing consolidated returns for the years 1983 through 1986. In each year, AMCA reported CNOL exceeding the aggregate of its 26 individual members' PLEs. Five group members with PLEs reported positive STIs. Nonetheless, AMCA included those PLEs in determining its PLL for lO-year carryback under a "single-entity" approach in which it compared the group's CNOL and total PLEs to determine the group's total PLL. In contrast, the Government's "separate-member" approach compares each affiliate's STI and PLEs in order to determine whether each affiliate suffers a PLL, and only then combines any PLLs of the individual affiliates to determine a consolidated PLL. Under this approach, PLEs incurred by an affiliate with positive STI cannot contribute to a PLL. In 1986 and 1987, AMCA petitioned the Internal Revenue Service for refunds based on its PLL calculations. The IRS ruled in AMCA's favor, but was reversed by a joint congressional committee that controls refunds exceeding a certain thresh-823old. AMCA then filed this refund action. The District Court applied AMCA's single-entity approach, concluding that so long as the affiliated group's consolidated return reflects CNOL in excess of the group's aggregate PLEs, the total of those expenses is a PLL that may be carried back. In reversing, the Fourth Circuit applied the separatemember approach.Held: An affiliated group's PLL must be figured on a consolidated, singleentity basis, not by aggregating PLLs separately determined company by company. Pp. 829-838.(a) The single-entity approach to calculating an affiliated group's PLL is straightforward. The first step in applying § 172(j)'s definition of PLL requires a taxpayer filing a consolidated return to calculate an NOL. The Code and regulations governing affiliated groups of corporations filing consolidated returns provide only one definition of NOL: "consolidated" NOL. The absence of a separate NOL for a group member in this context is underscored by the fact that the regulations provide a measure of separate NOL in a different context, for any year in which an affiliated corporation files a separate return. The exclusive definition of NOL as CNOL at the consolidated level is important. Neither the Code nor the regulations indicate that the essential relationship between NOL and PLL for a consolidated group differs from their relationship for a conventional corporate taxpayer. Comparable treatment of PLL for the group and the conventional taxpayer can be achieved only if PLEs are compared with the loss amount at the consolidated level after CNOL has been determined, for CNOL is the only NOL measure for the group. An approach based on comparable treatment is also (relatively) easy to understand and to apply. Pp.829-831.(b) The case for the separate-member approach is not so easily made. Because there is no NOL below the consolidated level, there is nothing for comparison with PLEs to produce a PLL at any stage before the CNOL calculation. Thus, a separate-member proponent must identify some figure in the consolidated return scheme with a plausible analogy to NOL at the affiliated corporations level. An individual member's STI is not analogous, for it excludes several items that an individual taxpayer would normally count in computing income or loss, but which an affiliated group may tally only at the consolidated level. The "separate net operating loss," Treas. Reg. § 1.1502-79(a)(3), used by the Fourth Circuit fares no better. Although that figure accounts for some gains or losses that STI does not, § 1.1502-79(a)(3)'s purpose is to allocate CNOL to an affiliate member seeking to carry824Full Text of Opinion

1985_84-1839

JUSTICE BLACKMUN delivered the opinion of the Court.This case primarily concerns Rule 15(c) of the Federal Rules of Civil Procedure and its application to a less-than-precise denomination of a defendant in complaints filed in federal court near the expiration of the period of limitations. Because of an apparent conflict among the Courts of Appeals, [Footnote 1] we granted certiorari. 474 U.S. 814 (1985).IThe three petitioners instituted this diversity litigation on May 9, 1983, by filing their respective complaints in the United States District Court for the District of New Jersey. Each complaint alleged that the plaintiff was libeled in a cover story entitled "The Charges Against Reagan's Labor Secretary," which appeared in the May 31, 1982, issue of Fortune magazine. The caption of each complaint named Page 477 U. S. 23 "Fortune," without embellishment, as the defendant. See App. 8a. In its paragraph 2, each complaint described Fortune as "a foreign corporation having its principal offices at Time and Life Building, Sixth Avenue and 50th Street, New York, New York 10020." Id. at 9a. "Fortune," however, is only a trademark and the name of an internal division of Time, Incorporated (Time), a New York corporation. [Footnote 2]On May 20, petitioners' counsel mailed the complaints to Time's registered agent in New Jersey. They were received on May 23. The agent refused service because Time was not named as a defendant.On July 18, 1983, each petitioner amended his complaint to name as the captioned defendant "Fortune, also known as Time, Incorporated," and, in the body of the complaint, to refer to "Fortune, also known as Time, Incorporated," as a New York corporation with a specified registered New Jersey agent. See id. at 25a, 26a. The amended complaints were served on Time by certified mail on July 21.Time moved to dismiss the amended complaints. The District Court granted those motions. Id. at 96a, 98a, 100a. It ruled that the complaints, as amended, adequately named Time as a defendant, and therefore were not to be dismissed "for failure of capacity of defendant to be sued." Supp. App. to Pet. for Cert. 18a. Under New Jersey law, however, see N.J.Stat.Ann. 2A:14-3 (West 1952), a libel action must be commenced within one year of the publication of the alleged libel. [Footnote 3] Supp.App. to Pet. for Cert. 18a. State law also provides that the "date upon which a substantial distribution occurs triggers the statute of limitations for any and all actions arising out of that publication,'" id. at 19a, quoting MacDonald v. Time, Inc., Civil No. 81-479 (DNJ Aug. 25, Page 477 U. S. 24 1981). Supp.App. to Pet. for Cert. 19a. [Footnote 4] The court found it unnecessary, for purposes of the motion, to determine the precise date the statute of limitations had begun to run.Although Time acknowledged that the original filings were within the limitations period, it took the position that it could not be named as a party after the period had expired. Time contended that a party must be substituted within the limitations period in order for the amendment to relate back to the original filing date pursuant to Rule 15(c). [Footnote 5]The District Court concluded that the amendments to the complaints did not relate back to the filing of the original complaints because it had not been shown that Time received notice of the institution of the suits within the period provided by law for commencing an action against it. Supp.App. to Pet. for Cert. 23a. It therefore, "with great reluctance," granted the motion to dismiss, noting that any dismissal of a claim based upon the statute of limitations "by its very nature is arbitrary." Id. at 24a. The court also ruled that the "equities of this situation" did not demand that relief Page 477 U. S. 25 be afforded to petitioners. Ibid. The identity of the publisher of Fortune was readily ascertainable from the magazine itself. It rejected petitioners' contention that Time deliberately misled them to believe that Fortune was a separate corporation. It observed that petitioners created the risk by filing their suits close to the end of the limitations period. Id. at 25a.Petitioners moved for reconsideration. By letter opinion filed January 12, 1984, the court adhered to its prior ruling. App. to Brief in Opposition 1a.On appeal to the United States Court of Appeals for the Third Circuit, the three actions were consolidated. That court affirmed the orders of the District Court. 750 F.2d 15 (1984). It ruled that the New Jersey statute of limitations ran "on May 19, 1983, at the latest," for a "substantial distribution" of the issue of May 31, 1982, had "occurred on May 19, 1982, at the latest." Id. at 16. It regarded the language of Rule 15(c) as "clear and unequivocal." 750 F.2d at 18. It also said:"While we are sympathetic to plaintiffs' arguments, we agree with the defendant that it is not this court's role to amend procedural rules in accordance with our own policy preferences."Ibid. It further held that the period within which the defendant to be brought in must receive notice under Rule 15(c) does not include the time available for service of process.IIIt is clear, from what has been noted above, that the three complaints as originally drawn were filed within the limitations period; that service was attempted only after that period had expired; and that the amendment of the complaints, and the service of the complaints as so amended, also necessarily took place after the expiration of the limitations period. The District Court and the Court of Appeals so found, and we have no reason to disagree. The parties themselves do not dispute these facts. Instead, their dispute centers on Page 477 U. S. 26 whether Time was sufficiently named as the defendant in the original complaints so that the service that was attempted after the 1-year period but within the time allowed for service was effective, and on whether, in any event, the amendment of the complaints related back to the original filing and accomplished the same result.Petitioners argue that Rule 15(c)'s present form came into being by amendment in 1966 for the express purpose of allowing relation back of a change in the name or identity of a defendant when, although the limitations period for filing had run, the period allowed by Rule 4 for timely service had not yet expired. Brief for Petitioners 5. The Rule was effected, it is said, to ameliorate literal and rigid application of limitations periods to both claim and party amendments. It is urged that the Rules of Civil Procedure should be applied and construed to yield just determinations, that is, determinations on the merits, and that a procedural "double standard" that bars relation back for late notice to a new defendant when a like notice to the original defendant would be timely is unacceptable. Petitioners further argue that the original party named here and the party sought to be substituted had such commonality of interest that notice to one was in fact notice to the other. Therefore, it is said, where the intended defendant was misdesignated in form only, and knew or reasonably should have known that it was the true target and received the same notice it would have received had the form been flawless, "relation back should be a foregone conclusion." Brief for Petitioners 6.Respondent, of course, takes issue with this approach. It claims that the language of Rule 15(c) is clear, and that proper notice of the institution of these actions was not received by it within the period of limitations. It asserts that the equities do not support petitioners' position, and that the interpretation of Rule 15(c) urged by petitioners in effect would be an impermissible rewriting of the Rule by this Court. Page 477 U. S. 27IIIAs amended, Rule 1 of the Federal Rules of Civil Procedure states: "These rules . . . shall be construed to secure the just, speedy, and inexpensive determination of every action." Rule 8(f) says: "All pleadings shall be so construed as to do substantial justice." And Justice Black reminded us, more than 30 years ago, in connection with an order adopting revised Rules of this Court, that the"principal function of procedural rules should be to serve as useful guides to help, not hinder, persons who have a legal right to bring their problems before the courts."346 U.S. 945, 946 (1954).This Court, too, in the early days of the federal civil procedure rules, when Rule 15(c), see n 5, supra, consisted only of what is now its first sentence, announced that the spirit and inclination of the rules favored decisions on the merits, and rejected an approach that pleading is a game of skill in which one misstep may be decisive. Conley v. Gibson, 355 U. S. 41, 355 U. S. 48 (1957). It also said that decisions on the merits are not to be avoided on the basis of "mere technicalities." Foman v. Davis, 371 U. S. 178, 371 U. S. 181 (1962).Despite these worthy goals and loftily stated purposes, we conclude that the judgments of the Court of Appeals in the present cases were correct.AThe defendant named in the caption of each of the original complaints was "Fortune," and Fortune was described in the body of the complaint as "a foreign corporation" having principal offices in the Time and Life Building in New York City. It also was alleged that Fortune was engaged in the publication of a magazine of that name. Attached to the complaint were a copy of the magazine's cover for its issue of May 31, 1982, an artist's depiction of an alleged payoff, and the text of parts of the article about which petitioners complained. The focus, as pleaded, was on Fortune. Page 477 U. S. 28We cannot understand why, in litigation of this asserted magnitude, Time was not named specifically as the defendant in the caption and in the body of each complaint. This was not a situation where the ascertainment of the defendant's identity was difficult for the plaintiffs. An examination of the magazine's masthead clearly would have revealed the corporate entity responsible for the publication. [Footnote 6]Petitioners nonetheless rely on Fortune's status as a division of Time to argue that institution of an action purportedly against the former constituted notice of the action to the latter, as a related entity. Some Courts of Appeals have recognized an "identity-of-interest" exception under which an amendment that substitutes a party in a complaint after the limitations period has expired will relate back to the date of the filing of the original complaint. [Footnote 7] The Court of Appeals in this case rejected that approach. The object of the exception is to avoid the application of the statute of limitations when no prejudice would result to the party sought to be added. Page 477 U. S. 29Even if we were to adopt the identity-of-interest exception, and even if Fortune properly could be named as a defendant, we would be compelled to reject petitioners' contention that the facts of this case fall within the exception. Timely filing of a complaint, and notice within the limitations period to the party named in the complaint, permit imputation of notice to a subsequently named and sufficiently related party. In this case, however, neither Fortune nor Time received notice of the filing until after the period of limitations had run. Thus, there was no proper notice to Fortune that could be imputed to Time. See Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 102-103 (CA1 1979); Norton v. International Harvester Co., 627 F.2d 18, 20-21 (CA7 1980).BThe complaints as they were amended, of course, meet the identification standard. While the statement, "Fortune, also known as Time, Incorporated, was and is a corporation of the state of New York," is not a model of accuracy, it does focus on Time, and sufficiently describes Time as the targeted defendant. The next question, then, is whether the amendment, made in July, 1983, related back to the filing on May 9, a date concededly within the period of the applicable New Jersey statute of limitations.Central to the resolution of this issue is the language of Rule 15(x). See n 5, supra. Relation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. We are not concerned here with the first Page 477 U. S. 30 factor, but we are concerned with the satisfaction of the remaining three.The first intimation that Time had of the institution and maintenance of the three suits took place after May 19, 1983, the date the Court of Appeals said the statute ran "at the latest." 750 F.2d at 16. Only on May 20 did petitioners' counsel mail the complaints to Time's registered agent in New Jersey. Only on May 23 were those complaints received by the registered agent, and then refused. Only on July 19 did each petitioner amend his complaint. And only on July 21 were the amended complaints served on Time.It seems to us inevitably to follow that notice to Time and the necessary knowledge did not come into being "within the period provided by law for commencing the action against" Time, as is so clearly required by Rule 15(c). That occurred only after the expiration of the applicable 1-year period. This is fatal, then, to petitioners' litigation.We do not have before us a choice between a "liberal" approach toward Rule 15(c), on the one hand, and a "technical" interpretation of the Rule, on the other hand. The choice, instead, is between recognizing or ignoring what the Rule provides in plain language. We accept the Rule as meaning what it says.We are not inclined, either, to temper the plain meaning of the language by engrafting upon it an extension of the limitations period equal to the asserted reasonable time, inferred from Rule 4, for the service of a timely filed complaint. Rule 4 deals only with process. Rule 3 concerns the "commencement" of a civil action. Under Rule 15(c), the emphasis is upon "the period provided by law for commencing the action against" the defendant. An action is commenced by the filing of a complaint and, so far as Time is concerned, no complaint against it was filed on or prior to May 19, 1983.Any possible doubt about this should have been dispelled 20 years ago by the Advisory Committee's 1966 Note about Rule 15(c). The Note specifically states that the Rule's Page 477 U. S. 31 phrase "within the period provided by law for commencing the action" means "within the applicable limitations period":"An amendment changing the party against whom a claim is asserted relates back if the amendment satisfies the usual condition of Rule 15(c) of 'arising out of the conduct . . . set forth . . . in the original pleading,' and if, within the applicable limitations period, the party brought in by amendment, first, received such notice of the institution of the action -- the notice need not be formal -- that he would not be prejudiced in defending the action, and, second, knew or should have known that the action would have been brought against him initially had there not been a mistake concerning the identity of the proper party."(Emphasis supplied.) Advisory Committee's Notes on Fed.Rule Civ.Proc. 15, 28 U.S.C.App. p. 551; 39 F.R.D. 83.Although the Advisory Committee's comments do not foreclose judicial consideration of the Rule's validity and meaning, the construction given by the Committee is "of weight." Mississippi Publishing Corp. v. Murphree, 326 U. S. 438, 326 U. S. 444 (1946).The commentators have accepted the literal meaning of the significant phrase in Rule 15(c), and have agreed with the Advisory Committee's Note. See 3 J. Moore, Federal Practice § 15.15[4.-2], p. 15-225 (2d ed.1985) ("the Rule demands a showing that, within the period of limitations, the new party . . ."); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1498, p. 250 (Supp.1986) ("in order for an amendment adding a party to relate back under Rule 15(c), the party to be added must have received notice of the action before the statute of limitations has run").The linchpin is notice, and notice within the limitations period. Of course, there is an element of arbitrariness here, but that is a characteristic of any limitations period. And it is an arbitrariness imposed by the legislature, and not by the judicial process. See Note: Federal Rule of Civil Procedure Page 477 U. S. 32 15(c): Relation Back of Amendments, 57 Minn.L.Rev. 83, 85, n. 8 (1972). [Footnote 8]The judgments of the Court of Appeals are affirmed.It is so ordered

U.S. Supreme CourtSchiavone v. Fortune, 477 U.S. 21 (1986)Schiavone v. FortuneNo. 84-1839Argued February 26, 1986Decided June 18, 1986477 U.S. 21SyllabusPetitioners instituted diversity libel actions on May 9, 1983, by filing their respective complaints in the Federal District Court for the District of New Jersey. Each complaint alleged that the plaintiff was libeled in a story that appeared in the May 31, 1982, issue of Fortune magazine, and described Fortune as "a foreign corporation having its principal offices at Time and Life Building" in New York City. On May 20, the complaints were mailed to Time's registered agent in New Jersey, who received them on May 23 but refused service because Time was not named as a defendant. On July 19, 1983, each petitioner amended his complaint to name as the captioned defendant, and to refer in the body of the complaint to, "Fortune, also known as Time, Incorporated." The amended complaints were served on Time by certified mail on July 21. The District Court dismissed the complaints under the New Jersey statute of limitations, which requires a libel action to be commenced within one year of the publication of the alleged libel. The court held that, although the amended complaints adequately named Time as a defendant, the amendments did not relate back, under Federal Rule of Civil Procedure 15(c), to the filing of the original complaints because it had not been shown that Time received notice of the institution of the actions within the period provided by New Jersey law. On consolidated appeals, the Court of Appeals affirmed.Held: The actions were properly dismissed. Pp. 477 U. S. 27-32.(a) Even if this Court adopted the "identity-of-interest" exception under which an amendment that substitutes a related party in a complaint after the limitations period has expired will relate back to the date the original complaint was filed, the facts of this case do not fall within that exception. Neither Fortune nor Time received notice of the filing until after the limitations period had run, and thus there was not proper notice to Fortune that could be imputed to Time. Pp. 477 U. S. 27-29.(b) The July, 1983, amendments to the complaints did not relate back to the May 9 filing. Under Rule 15(c), relation back is dependent upon four factors, all of which must be satisfied. Notice to Time and the necessary knowledge did not come into being "within the period provided by law for commencing an action against" Time as required by Rule 15(c). Page 477 U. S. 22 That occurred only after expiration of the applicable 1-year period. Pp. 477 U. S. 29-32.750 F.2d 15, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BURGER, C.J., and WHITE, J., joined, post, p. 477 U. S. 32.

1991_90-747

which KENNEDY, J., joined, post, p. 179. THOMAS, J., took no part in the consideration or decision of the case.Kent L. Jones argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Leonard Schaitman, and Bruce G. Forrest.Michael Dean Ray, pro se, argued the cause for respondents. With him on the brief were Neil Dwight Kolner and Eric J. Sinrod. *JUSTICE STEVENS delivered the opinion of the Court.In response to a Freedom of Information Act (FOIA) request, the Department of State produced 25 documents containing information about Haitian nationals who had attempted to immigrate illegally to the United States and were involuntarily returned to Haiti. Names of individual Haitians had been deleted from 17 of the documents. The question presented is whether these deletions were authorized by FOIA Exemption 6, which provides that FOIA disclosure requirements do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U. S. C. § 552(b)(6).IHaiti is a densely populated nation located about 500 nautical miles southeast of Florida on the western third of the Caribbean Island of Hispaniola. Prior to 1981, its history of severe economic depression and dictatorial government*Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Debra A. Valentine, David L. Sobel, John A. Powell, Lucas Guttentag, and Gary M. Stern; for the American Newspaper Publishers Association et al. by Robert C. Bernius, Rene P. Milam, Barbara Wartelle Wall, Jane E. Kirtley, Richard M. Schmidt, Bruce W Sanford, James E. Grossberg, and George Freeman; and for the Lawyers Committee for Human Rights et al. by David C. Vladeck and Alan B. Morrison.167motivated large numbers of its citizens to emigrate to Florida without obtaining the permission of either the Haitian Government or the Government of the United States. A small number of those undocumented aliens were eligible for asylum as political refugees,l but almost all of them were subject to deportation if identified and apprehended.In response to this burgeoning "illegal migration by sea of large numbers of undocumented aliens" from Haiti and other countries, President Reagan ordered the Coast Guard and the Secretary of State to intercept vessels carrying undocumented aliens and, except for passengers who qualified for refugee status, to return them to their point of origin. See Presidential Proclamation No. 4865, 3 CFR 50 (1981 Comp.); Exec. Order No. 12324, 3 CFR 180 (1981 Comp.). The President also directed the Secretary of State to enter into "cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea." Ibid. Following this directive, the Secretary of State obtained an assurance from the Haitian Government that interdicted Haitians would "not be subject to1 Article 1.2 of the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U. N. T. S. 268, to which the United States acceded in 1968, 19 U. S. T. 6223, 6261, T. I. A. S. No. 6577, defines a "refugee" as a person absent from his or her country due to a "wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." The Protocol obligates the United States to comply with the substantive requirements of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U. N. T. S. 150. 19 U. S. T., at 6225. Article 33.1 of the Convention, 19 U. S. T., at 6267, states: "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." See generally INS v. Stevie, 467 U. S. 407, 416-418 (1984). Article 34, 19 U. S. T., at 6267, provides that "Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees .... " See generally INS v. Cardoza-Fonseca, 480 U. S. 421, 436-441 (1987).168prosecution for illegal departure." See Agreement on Migrants-Interdiction, Sept. 23, 1981, United States-Haiti, 33 U. S. T. 3559, 3560, T. 1. A. S. No. 10241. In order to monitor compliance with that assurance, State Department personnel conducted confidential interviews with a "representative sample" of unsuccessful emigrants about six months after their involuntary return. All but one or two of the emigrants reported that they had not been harassed or prosecuted since their return to Haiti.Respondents in this case are a Florida lawyer who represents undocumented Haitian nationals seeking political asylum in the United States and three of his clients. In immigration proceedings, respondents are attempting to prove that Haitians who immigrated illegally will face a wellfounded fear of persecution if they return to their homeland and therefore are refugees entitled to asylum in this country. Relying in part on the evidence in the reports of the interviews with former passengers on vessels interdicted by the Coast Guard, the Government has taken the position in those proceedings that respondents' fear of persecution is not well founded.In order to test the accuracy of the Government's assertion that undocumented Haitian nationals have not been persecuted upon their return to Haiti, respondents made a series of FOIA requests to three Government agencies for copies of reports of the interviews by State Department personnel with persons who had been involuntarily returned to Haiti. Insofar as relevant to the question before us, the net result of these requests was the production by the State Department of 25 documents, containing approximately 96 pages, which describe a number of interviews with specific returnees and summarize the information that had been obtained during successive periods.2 Thus, for example, a summary2 Respondents also sought disclosure of an alleged list of 600 Haitians who had been returned to Haiti and had not been mistreated after their arrival. The District Court found, however, that the "record fails to dis-169prepared in March 1985 reported that since the followup program had begun 31/2 years earlier, United States embassy officials in Haiti had interviewed 812 returnees, 22.83 percent of the total migrant interdictee population.3 During that time, the report continued, "only two interdictees have mentioned a threat or mistreatment by the authorities. In one case the claim was unverifiable as there were no witnesses present, in the second case higher authorities intervened to prevent mistreatment by a rural policeman."4 In 17 of the documents, the information related to individual interviews, but the names and other identifying information had been redacted before the documents were delivered to respondents.5 The only issue for us to decide is whether that redaction was lawful.close that any documents have been improperly withheld o[r] that they, indeed, exist," Ray v. United States Department of Justice, 725 F. Supp. 502, 504 (SD Fla. 1989), and the Eleventh Circuit affirmed this finding, Ray v. United States Department of Justice, 908 F.2d 1549, 1559-1560 (1990). We have no reason to question this finding and, therefore, we are concerned only with the 25 documents containing summaries of interviews with illegal Haitian immigrants who were involuntarily returned to Haiti.3 Plaintiffs' Notice of Filing Defendant State Department's Edited Documents 12.4 The May 1985 report, the last report in the record, states that as of that date, embassy officials had interviewed 1,052 of the returnees, 23.28 percent of the total migrant returnee population. Id., at 96. The report concluded that the interviews provide "further evidence" that Haiti "is keeping its commitment under the 1981 Migrant Interdiction Agreement not to prosecute or harass returned migrants for their illegal departure," but noted that "the embassy will continue its follow-up program with the goal of reaching a 25-percent interview rate of returned migrants." Ibid.5 For example, one memorandum relates the following:" __ is an unemployed 21-year-old living with his mother and five younger siblings in a one-room shack in Delmas. His older brother, who is employed and living in Port-au-Prince, had paid the $100 fare for __ to travel on the S/V Sainte Marie, interdicted enroute to Miami on 6/13/83." __ explained that he had wanted to live in Miami, although he has no family there. He never went to school and has no marketable skills. __ says that he is thinking of another attempt to reach the170The District Court found that any invasion of privacy from the "mere act of disclosure of names and addresses would be de minimis and little more than speculation" and was clearly outweighed by the public interest in the "safe relocation of returned Haitians." Ray v. United States Department of Justice, 725 F. Supp. 502, 505 (SD Fla. 1989). It therefore ordered the Department to produce the redacted information.The Court of Appeals affirmed. Ray v. United States Department of Justice, 908 F.2d 1549 (CAll 1990). For two reasons, however, it disagreed with the District Court's "de minimis" characterization of the privacy interest at stake. First, it noted that respondents wanted the redacted information in order to enable them to contact the interviewees directly and to question them about their treatment by the Haitian Government. Id., at 1554. Second, the Court recognized that "the returnees were promised confidentiality before they talked with U. S. government officials." Ibid. Thus, the Court of Appeals began its balancing process "by acknowledging that there are significant privacy interests at stake." Ibid. It nevertheless concluded that those interests were outweighed by the public interest in learning whether the Government is "adequately monitoring Haiti's compliance with its obligation not to persecute returnees" and "is honest to the public" when its officials express the opinion that Haiti is adhering to that obligation. Id., at 1555. The court recognized that the redacted information would not, in and of itself, tell respondents anything aboutStates. He cannot find a job here and said that he would like to travel. The twelve days spent on board the S/V Sainte Marie were difficult, he admitted, but he is willing to take another chance. __ emphatically said that he had had no problems from Haitian officials since his return. He has been assisted twice by the Red Cross with food and money grants totalling $50." Attachment 2 to Declaration of John Eaves, Acting Deputy Director of the Office of Mandatory Review of the Classification and Declassification Center of the Department of State 5.171Haiti's treatment of the returnees or this Government's honesty, but it concluded that the indirect benefit of giving respondents the means to locate the Haitian returnees and to cross-examine them provided a public value that required disclosure. Id., at 1555-1556.We granted certiorari to review the Court of Appeals' construction of Exemption 6, 499 U. S. 904 (1991), and now reverse.IIIt is appropriate to preface our evaluation of the narrow question that we must decide with an identification of certain matters that have been resolved in earlier stages of the litigation.After the District Court's initial decision, the State Department filed additional affidavits in support of a claim that the redacted information was protected from disclosure by Exemption 1, the exemption for classified documents, and also by Exemption 7(C), the exemption for law enforcement records which, if released, "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 6 The District Court ruled that the Government had waived those claims by not raising them until after its Exemption 6 claim had been denied, 725 F. Supp., at 505, and the Court of Appeals held that that ruling was not an abuse of discretion,6 The relevant portions of Exemptions 1, 6, and 7 read as follows:"(b) [The ForA disclosure] section does not apply to matters that are"(I)(A) specifically authorized under criteria established by an Execu-tive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;"(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;"(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy .... " 5 U. S. C. § 552.172908 F. 2d, at 1557. We denied the Government's certiorari petition insofar as it sought review of that question, but mention it here because the Government's burden in establishing the requisite invasion of privacy to support an Exemption 6 claim is heavier than the standard applicable to Exemption 7(C). See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 756 (1989). To prevail in this case under Exemption 6, the Government must establish that the invasion of the interviewees' privacy would be "clearly unwarranted."In attempting to meet its burden, the Government relies, in part, on the fact that the interviews with the Haitian returnees were conducted pursuant to assurances of confidentiality. In this Court, respondents have suggested that the texts of some of the reported interviews do not expressly mention such assurances. Neither the District Court nor the Court of Appeals, however, questioned the fact that promises of confidentiality had actually been made; on the contrary, after finding that such assurances had been made, both courts concluded as a matter of law that they did not outweigh the public interest in disclosure.7 Insofar as the promises of confidentiality are relevant, we of course accept the factual predicate for the Court of Appeals decision.That court's conclusion rested, in part, on what it described as the public interest in learning "whether our government is honest to the public about Haiti's treatment of returnees." 908 F. 2d, at 1555. The Court of Appeals did not, however, suggest that there was any evidence in the7 Thus, the Court of Appeals explained:"We are also mindful, as the government points out, that the returnees were promised confidentiality before they talked with U. S. government officials. That, of course, is a factor that adds weight to the privacy interests at stake here, but it is not a factor that compels us to prohibit disclosure in this case." 908 F. 2d, at 1554; see also 725 F. Supp., at 505 ("The promise of confidentiality by the State Dept. is only one factor to be considered and, in this case, is not determinative of the outcome").173State Department records that was inconsistent with any public statement made by Government officials, or that there was any other factual basis for questioning the honesty of its officials. Thus, as with the assurances of confidentiality, we have no occasion to question the Government's version of the relevant facts.We note, finally, that respondents have never questioned the Government's position that the documents at issue consist of "personnel and medical files and similar files" within the meaning of Exemption 6.8 Because the 17 reports from which identifying information was deleted unquestionably apply to the particular individuals who had been returned and interviewed, they are "similar files" within the meaning of the exemption. See Department of State v. Washington Post Co., 456 U. S. 595, 602 (1982). The only question, therefore, is whether the disclosure of the unredacted interview reports "would constitute a clearly unwarranted invasion of that person's privacy."IIIThe Freedom of Information Act was enacted to facilitate public access to Government documents. John Doe Agency v. John Doe Corp., 493 U. S. 146, 151 (1989). The statute was designed" 'to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Department of Air Force v. Rose, 425 U. S. 352, 361 (1976). Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents. Ibid.; Department of Justice v. Reporters Comm., 489 U. S., at 755. That burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document. See 5 U. S. C. § 552(a)(4)(B).8 See n. 6, supra.174The redaction procedure is, however, expressly authorized by FOIA.9 Congress thus recognized that the policy of informing the public about the operation of its Government can be adequately served in some cases without unnecessarily compromising individual interests in privacy.lo Accordingly,9 As we noted in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 755, n. 7 (1989):"Congress employed ... language [similar to that contained in Exemption 6] earlier in the statute to authorize an agency to delete identifying details that might otherwise offend an individual's privacy:"'To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction.' § 552(a)(2)."In addition, Congress mandated that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt .... " 5 U. S. C. § 552(b).10 See S. Rep. No. 813, 89th Cong., 1st Sess., 7 (1965) ("The authority to delete identifying details after written justification is necessary in order to be able to balance the public's right to know with the private citizen's right to be secure in his personal affairs which have no bearing or effect on the general public. For example, it may be pertinent to know that unseasonably harsh weather has caused an increase in public relief costs; but it is not necessary that the identity of any person so affected be made public"); H. R. Rep. No. 1497, 89th Cong., 2d Sess., 8 (1966) ("The public has a need to know, for example, the details of an agency opinion or statement of policy on an income tax matter, but there is no need to identify the individuals involved in a tax matter if the identification has no bearing or effect on the general public"). These examples guided our analysis in Department of Justice v. Reporters Comm., supra, in which we held that criminal identification records, or "rap sheets," were law enforcement records which, if released, "could reasonably be expected to constitute an unwarranted invasion of personal privacy" and therefore were exempt from disclosure under Exemption 7. We explained that:"Both public relief and income tax assessments-like law enforcementare proper subjects of public concern. But just as the identity of the individuals given public relief or involved in tax matters is irrelevant to the public's understanding of the Government's operation, so too is the identity of individuals who are the subjects of rap sheets irrelevant to the public's understanding of the system of law enforcement. For rap sheets175in the leading case interpreting Exemption 6, we held that the statute required disclosure of summaries of Air Force Academy disciplinary proceedings "with personal references or other identifying information deleted." Rose, 425 U. S., at 380. The question in this case is whether petitioner has discharged its burden of demonstrating that the disclosure of the contents of the interviews with the Haitian returnees adequately served the statutory purpose and that the release of the information identifying the particular interviewees would constitute a clearly unwarranted invasion of their privacy.As we held in Rose, the text of the exemption requires the Court to balance "the individual's right of privacy" against the basic policy of opening "agency action to the light of public scrutiny," id., at 372. The District Court and the Court of Appeals properly began their analysis by considering the significance of the privacy interest at stake. We are persuaded, however, that several factors, when considered together, make the privacy interest more substantial than the Court of Appeals recognized.First, the Court of Appeals appeared to assume that respondents sought only the names and addresses of the interviewees. But respondents sought-and the District Court ordered that the Government disclose-the unredacted interview summaries. As the Government points out, many of these summaries contain personal details about particular interviewees.ll Thus, if the summaries are released without the names redacted, highly personal information regarding marital and employment status, children, living conditions, and attempts to enter the United States would be linkedreveal only the dry, chronological, personal history of individuals who have had brushes with the law, and tell us nothing about matters of substantive law enforcement policy that are properly the subject of public concern." Id., at 766, n. 18.H See n. 5, supra.176publicly with particular, named individuals. Although disclosure of such personal information constitutes only a de minimis invasion of privacy when the identities of the interviewees are unknown, the invasion of privacy becomes significant when the personal information is linked to particular interviewees. Cf. id., at 380-381.In addition, disclosure of the unredacted interview summaries would publicly identify the interviewees as people who cooperated with a State Department investigation of the Haitian Government's compliance with its promise to the United States Government not to prosecute the returnees. The Court of Appeals failed to acknowledge the significance of this fact.12 As the State Department explains, disclosure of the interviewees' identities could subject them or their families to "embarrassment in their social and community relationships." App. 43. More importantly, this group of interviewees occupies a special status: They left their homeland in violation of Haitian law and are protected from prosecution by their government's assurance to the State Department. Although the Department's monitoring program indicates that that assurance has been fulfilled, it nevertheless remains true that the State Department considered the danger of mistreatment sufficiently real to necessitate that monitoring program. How significant the danger of mistreatment may now be is, of course, impossible to measure,12We emphasize, however, that we are not implying that disclosure of a list of names and other identifying information is inherently and always a significant threat to the privacy of the individuals on the list. Instead, we agree with the Court of Appeals for the District of Columbia Circuit that whether disclosure of a list of names is a "'significant or a de minimis threat depends upon the characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to ensue.''' National Assn. of Retired Federal Employees v. Horner, 279 U. S. App. D. C. 27, 31,879 F.2d 873, 877 (1989), cert. denied, 494 U. S. 1078 (1990). As discussed infra, disclosure of the interviewees' names would be a significant invasion of their privacy because it would subject them to possible embarrassment and retaliatory action.177but the privacy interest in protecting these individuals from any retaliatory action that might result from a renewed interest in their aborted attempts to emigrate must be given great weight. Indeed, the very purpose of respondents' FOIA request is to attempt to prove that such a danger is present today.We are also persuaded that the Court of Appeals gave insufficient weight to the fact that the interviews had been conducted pursuant to an assurance of confidentiality. We agree that such a promise does not necessarily prohibit disclosure, but it has a special significance in this case. Not only is it apparent that an interviewee who had been given such an assurance might have been willing to discuss private matters that he or she would not otherwise expose to the public-and therefore would regard a subsequent interview by a third party armed with that information as a special affront to his or her privacy-but, as discussed above, it is also true that the risk of mistreatment gives this group of interviewees an additional interest in assuring that their anonymity is maintained.Finally, we cannot overlook the fact that respondents plan to make direct contact with the individual Haitian returnees identified in the reports. As the Court of Appeals properly recognized, the intent to interview the returnees magnifies the importance of maintaining the confidentiality of their identities.IVAlthough the interest in protecting the privacy of the redacted information is substantial, we must still consider the importance of the public interest in its disclosure. For unless the invasion of privacy is "clearly unwarranted," the public interest in disclosure must prevail. As we have repeatedly recognized, FOIA's "basic policy of 'full agency disclosure unless information is exempted under clearly delineated statutory language,' ... focuses on the citizens' right to be informed about 'what their government is up to.' Official178information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose." Department of Justice v. Reporters Comm., 489 U. S., at 773 (quoting Department of Air Force v. Rose, 425 U. S., at 360-361) (internal citations omitted). Thus, the Court of Appeals properly recognized that the public interest in knowing whether the State Department has adequately monitored Haiti's compliance with its promise not to prosecute returnees is cognizable under FOIA. We are persuaded, however, that this public interest has been adequately served by disclosure of the redacted interview summaries and that disclosure of the unredacted documents would therefore constitute a clearly unwarranted invasion of the interviewees' privacy.The unredacted portions of the documents that have already been released to respondents inform the reader about the State Department's performance of its duty to monitor Haitian compliance with the promise not to prosecute the returnees. The documents reveal how many returnees were interviewed, when the interviews took place, the contents of individual interviews, and details about the status of the interviewees. The addition of the redacted identifying information would not shed any additional light on the Government's conduct of its obligation.The asserted public interest on which respondents rely stems not from the disclosure of the redacted information itself, but rather from the hope that respondents, or others, may be able to use that information to obtain additional information outside the Government files. The Government argues that such "derivative use" of requested documents is entirely beyond the purpose of the statute and that we should adopt a categorical rule entirely excluding the interest in such use from the process of balancing the public interest in disclosure against the interest in privacy. There is no need to adopt such a rigid rule to decide this case, however,179because there is nothing in the record to suggest that a second series of interviews with the already-interviewed returnees would produce any relevant information that is not set forth in the documents that have already been produced. Mere speculation about hypothetical public benefits cannot outweigh a demonstrably significant invasion of privacy. Accordingly, we need not address the question whether a "derivative use" theory would ever justify release of information about private individuals.We are also unmoved by respondents' asserted interest in ascertaining the veracity of the interview reports. There is not a scintilla of evidence, either in the documents themselves or elsewhere in the record, that tends to impugn the integrity of the reports. We generally accord Government records and official conduct a presumption of legitimacy. If a totally unsupported suggestion that the interest in finding out whether Government agents have been telling the truth justified disclosure of private materials, Government agencies would have no defense against requests for production of private information. What sort of evidence of official misconduct might be sufficient to identify a genuine public interest in disclosure is a matter that we need not address in this case. On the record before us, we are satisfied that the proposed invasion of the serious privacy interest of the Haitian returnees is "clearly unwarranted."The judgment of the Court of Appeals isReversed

OCTOBER TERM, 1991SyllabusUNITED STATES DEPARTMENT OF STATE v.RAY ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 90-747. Argued October 9, 1991-Decided December 16, 1991In 1981, the Secretary of State obtained an assurance from the Haitian Government that it would not subject to prosecution for illegal departure undocumented Haitians interdicted by the United States and returned to Haiti. Personnel of petitioner State Department monitored Haiti's compliance with the assurance by conducting interviews with a "representative sample" of unsuccessful emigrants, most of whom reported no harassment or prosecution after their return. During immigration proceedings, respondents, undocumented Haitian nationals and their attorney, sought to prove that the nationals were entitled to political asylum in the United States because Haitians who immigrate illegally face a well-founded fear of persecution upon returning home. To disprove the Government's assertion that returnees have not been persecuted, respondents made Freedom of Information Act (FOIA) requests for copies of petitioner's interview reports and received, inter alia, 17 documents from which the names and other identifying information had been redacted. The District Court ordered petitioner to produce the redacted material, finding that the deletions were not authorized by FOIA Exemption 6, which exempts from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The Court of Appeals affirmed. It found that the returnees' significant privacy interests-stemming from respondents' intent to use the redacted information to contact and question the returnees and from the Federal Government's promise to maintain their confidentiality-were outweighed by the public interest in learning whether the Government is adequately monitoring Haiti's compliance with its obligation and is honest when its officials opine that Haiti is adhering to its assurance. The court also concluded that the indirect benefit of giving respondents the means to locate and question returnees provided a public value requiring disclosure.Held: Disclosure of the unredacted interview reports would constitute a clearly unwarranted invasion of the returnees' privacy. Pp. 171-182.165(a) In order to determine whether petitioner has met its burden of justifying the redaction, the individual's right of privacy must be balanced against the ForA's basic policy of opening agency action to the light of public scrutiny. Department of Air Force v. Rose, 425 U. S. 352, 372. Pp.173-175.(b) The privacy interest at stake in this case is more substantial than the Court of Appeals recognized. The invasion of privacy from summaries containing personal details about particular returnees, while de minimis when the returnees' identities are unknown, is significant when the information is linked to particular individuals. In addition, disclosure would publicly identify the returnees, possibly subjecting them or their families to embarrassment in their social and community relationships or to retaliatory action that might result from a renewed interest in their aborted attempt to emigrate. The lower court also gave insufficient weight to the fact that the interviews were conducted pursuant to an assurance of confidentiality, since the returnees might otherwise have been unwilling to discuss private matters and since the risk of mistreatment gives this group an additional interest in assuring that their anonymity is maintained. Finally, respondents' intent to interview the returnees magnifies the importance of maintaining the confidentiality of their identities. pp. 175-177.(c) The public interest in knowing whether petitioner has adequately monitored Haiti's compliance with the assurance has been adequately served by disclosure of the redacted interview summaries, which reveal how many returnees were interviewed, when the interviews took place, the interviews' contents, and details about the returnees' status. The addition of the redacted information would shed no further light on petitioner's conduct of its obligation. Pp. 177-178.(d) The question whether the "derivative use" of requested documents-here, the hope that the information can be used to obtain additional information outside the Government files-would ever justify release of information about private individuals need not be addressed, since there is nothing in the record to suggest that a second set of interviews would produce any additional relevant information. Nor is there a scintilla of evidence that tends to impugn the integrity of the interview reports, and, therefore, they should be accorded a presumption of legitimacy. Pp.178-179.908 F.2d 1549, reversed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, O'CONNOR, and SOUTER, JJ., joined, and in all but Part III of which SCALIA and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in166Full Text of Opinion

1962_38

MR. JUSTICE STEWART delivered the opinion of the Court.The appellants are a Los Angeles labor union, one of its business agents, and four self-employed independent contractors, so-called "grease peddlers," who were members of the union. They appeal from a judgment entered against them by a Federal District Court in a civil action brought by the United States to terminate violations of § 1 of the Sherman Act. [Footnote 1] The judgment was entered upon findings based upon a detailed stipulation of facts in which the appellants admitted all the allegations of the complaint and agreed to the ultimate conclusion that they Page 371 U. S. 96 had unlawfully combined and conspired in unreasonable restraint of foreign trade and commerce in yellow grease. In the stipulation, the appellants also agreed to the issuance of a broad injunction against them. The District Court's decree enjoined in specific detail the practices found to be unlawful, and in addition ordered the union to terminate the union membership of all self-employed grease peddlers. 196 F. Supp. 12. The appellants attack the judgment here upon the single ground that the District Court was in error in ordering termination of the union membership of these independent businessmen. [Footnote 2] Consideration of this claim requires a somewhat detailed review of the nature of the illegal conspiracy in which the appellants in this case were concededly engaged.During the period between 1954 and 1959, there were in Los Angeles County eight firms engaged as processors in the production of yellow grease, an inedible grease produced by removing moisture and solid impurities from so-called restaurant grease -- waste grease resulting from the preparation of food in restaurants, hotels and institutions. A substantial part of the yellow grease so produced was sold to overseas purchasers and to purchasers in California for prompt shipment overseas.The processors procured restaurant grease in two separate ways. They made direct purchases, usually from large restaurants, hotels and other institutions, and in these transactions the processors picked up the restaurant grease from the sellers through employees who were members of the union. Restaurant grease from other sources was usually purchased by the processors from grease peddlers, independent entrepreneurs whose earnings as middlemen consisted of the difference between the price at which they bought the restaurant grease from various sources and the price at which they sold it to the processors, Page 371 U. S. 97 less the cost of operating and maintaining their trucks. There were some 35 to 45 grease peddlers in the Los Angeles area.In 1954, most of the grease peddlers became members of the appellant union at the instigation of the appellant business agent, for the purpose of increasing the margin between the prices they paid for grease and the prices at which they sold it to the processors. To accomplish this purpose, fixed purchase and sale prices were agreed upon and enforced by union agents through the exercise or threatened exercise of union economic power in the form of strikes and boycotts against processors who indicated any inclination to deal with grease peddlers who were not union members. The union's business agent allocated accounts and territories for both purchases and sales among the various grease peddlers, who agreed to refrain from buying from or soliciting the customers of other peddlers, and violations of this agreement could result in a grease peddler's suspension from the union, in which event he was, of course, prohibited from carrying on his business.From 1954 to 1959, this basic plan of price fixing and allocation of business was effectively carried out by elimination of the few peddlers who had not joined the union, and by coercion upon the processors through threats of "union trouble" if they did not comply.Within the union, the grease peddlers were treated as a separate group, distinct from the some 2,400 employee members. The meetings of the grease peddlers were always held apart from regular union meetings, and, from 1955 on, the grease peddlers were members of a special "subdivision" of the union-Local 626-B. The affairs of this separate subdivision were administered not by regular union officers, but by the appellant business agent, who had originated the scheme, together with a committee of grease peddlers to assist in "policing, enforcing Page 371 U. S. 98 and carrying out the program to suppress and eliminate competition."There was no showing of any actual or potential wage or job competition, or of any other economic interrelationship, between the grease peddlers and the other members of the union. It was stipulated that no processors had ever substituted peddlers for employee-drivers in acquiring restaurant grease, or had ever threatened to do so. The stipulation made clear that the peddlers and the processors had essentially different sources of supply and different classes of customers. Based on these stipulated facts, the District Court affirmatively found that "there is no competition between [the employee and peddler] groups, because each is engaged in a different line of work. . . ."Pointing out that"the stipulated facts clearly show that, before the grease peddlers joined the defendant Union, there was no suppression of competition among them, and that only the support of the Union and the powerful weapons at its command enabled the peddlers and the Union together to destroy free competition in the purchase and sale of waste grease,"the District Court concluded that"a decree terminating the membership of the grease peddlers in defendant Union appears to be the most effective, if not the only, means of preventing a recurrence of defendants' unlawful activities."The court further concluded that nothing in the Clayton Act or the Norris-LaGuardia Act prevented the issuance of a decree divesting the grease peddlers of union membership in the circumstances of this case. We agree with these basic conclusions.It is beyond question that a court of equity has power in appropriate circumstances to order the dissolution of an association of businessmen when the association and its members have conspired among themselves or with others to violate the antitrust laws. Hartford-Empire Co. v. Page 371 U. S. 99 United States, 323 U. S. 386, 323 U. S. 428. And the circumstances stipulated and found in the present case provided ample support, we think, for a decree of dissolution as a matter of the discreet exercise of equitable power.It is also beyond question that nothing in the anti-injunction provisions of the Norris-LaGuardia Act, [Footnote 3] Page 371 U. S. 100 nor in the labor exemption provisions of the Clayton Act, [Footnote 4] insulates a combination in illegal restraint of trade between businessmen and a labor union from the sanctions of the antitrust laws. Allen Bradley Co. v. Local Page 371 U. S. 101 Union No. 3, 325 U. S. 797. Indeed, the appellants have conceded the propriety of the order in the present case which broadly enjoins the illegal practices in which they were engaged.The narrow question which emerges in this case, therefore, is whether businessmen who combine in an association which would otherwise be properly subject to dissolution under the antitrust laws can immunize themselves from that sanction by the simple expedient of calling themselves "Local 626-B" of a labor union. [Footnote 5] We think there is nothing in the Norris-LaGuardia Act nor in the Clayton Act, nor in the federal policy which these statutes reflect, to prevent a court from dissolving the ties which bound them to the appellant union, in the circumstances of the present case. Page 371 U. S. 102The provisions of the Norris-LaGuardia Act place severe limitations upon the issuance of an injunction by a federal court in "any case involving or growing out of any labor dispute," and the statute specifically forbids a District Court in such a case to prohibit anyone from "[b]ecoming or remaining a member of any labor organization." But, as the District Court correctly found, the present case was not one "involving or growing out of any labor dispute," but one involving an illegal combination between businessmen and a union to restrain bound these businessmen together, and commerce. In such a case, as Allen Bradley Co. clearly held, neither the Norris-LaGuardia Act nor the labor exemption provisions of the Clayton Act are applicable.This Court's decision in Columbia River Packers Assn. v. Hinton, 315 U. S. 143, is very much in point. That was a private antitrust suit brought by a processor of fish to enjoin an allegedly illegal combination of fishermen who had joined together in the Pacific Coast Fisherman's Union to regulate the terms under which fish would be sold. The organization was "affiliated with the C.I.O." 315 U.S. at 315 U. S. 144. The defendants claimed that an injunction against them would violate the Norris-LaGuardia Act. The Court held that the controversy was not a "labor dispute" within the meaning of the Norris-LaGuardia Act, pointing out that that statute was "not intended to have application to disputes over the sale of commodities." 315 U.S. at 315 U. S. 145. Here, as in Columbia River Assn., the grease peddlers were sellers of commodities, who became "members" of the union only for the purpose of bringing upon power to bear in the successful enforcement of the illegal combination in restraint of the traffic in yellow grease. [Footnote 6] Page 371 U. S. 103 The District Court was not in error in ordering the complete termination of that illegal combination.What has been said is not remotely to suggest that a labor organization might not often have a legitimate interest in soliciting self-employed entrepreneurs as members. Cf. Milk Wagon Drivers' Union v. Lake Valley Farm Products, 311 U. S. 91; Bakery Drivers Local v. Wohl, 315 U. S. 769; Local 24 v. Oliver, 358 U. S. 283. And both the Norris-LaGuardia Act and the Clayton Act ensure that the antitrust laws cannot be used as a vehicle to stifle legitimate labor union activities. But here, the court found upon stipulated facts that there was no job or wage competition or economic interrelationship of any kind between the grease peddlers and other members of the appellant union. If that situation should change in the future, the District Court will have ample power to amend its decree. [Footnote 7]Affirmed

U.S. Supreme CourtMeat Drivers v. United States, 371 U.S. 94 (1962)Los Angeles Meat & Provision Drivers Union v. United StatesNo. 38Argued October 10, 1962Decided November 19, 1962371 U.S. 94SyllabusThe Government brought this civil action against appellants, a labor union, one of its business agents and four self-employed independent contractors, so-called grease peddlers, who were members of the union, to terminate violations of § 1 of the Sherman Act. Judgment was entered upon findings based upon a detailed stipulation of facts in which appellants admitted all the allegations of the complaint and agreed to the ultimate conclusion that they had unlawfully combined and conspired in unreasonable restraint of foreign trade and commerce in yellow grease. The District Court found that only the support of the union and the powerful weapons at its command had enabled the peddlers and the union to destroy free competition in the purchase and sale of waste grease, and that termination of membership of the grease peddlers in the union appeared to be the most effective, if not the only, means of preventing a recurrence of appellants' unlawful activities. It not only enjoined the practices found to be unlawful, but also ordered the union to expel from membership all self-employed grease peddlers.Held: The judgment is sustained. Pp. 371 U. S. 95-103.(a) A court of equity has power to order the dissolution of an association of businessmen when the association and its members have conspired among themselves or with others to violate the antitrust laws, and the circumstances found in this case provide ample support for a decree of dissolution. Pp. 371 U. S. 98-99.(b) Nothing in the anti-injunction provisions of the Norris-LaGuardia Act nor in the labor exemption provisions of the Clayton Act insulates a combination in illegal restraint of trade between businessmen and a labor union from the sanctions of the antitrust laws. Pp. 371 U.S. 99-101.(c) Businessmen who combine in an association which otherwise would be properly subject to dissolution under the antitrust laws cannot immunize themselves from that sanction by the simple expedient of calling themselves a labor union. P. 371 U. S. 101. Page 371 U. S. 95(d) There is nothing in the Norris-LaGuardia Act nor in the Clayton Act nor in the federal policy which these statutes reflect to prevent a court from dissolving the ties which bound these businessmen together and which bound them to the appellant union in the circumstances of this case. Pp. 371 U. S. 101-103.(e) The decree does not violate appellants' freedom of association guaranteed by the First Amendment. P. 101, n 5.(f) Though the decree directed the union to expel from membership "all grease peddlers" and to refuse membership in the future to "any grease peddler," it was not void as to grease peddlers who were not joined as defendants, since the order ran only against the union. P. 101, n 5.196 F. Supp. 12 affirmed.

1989_89-453

Justice BRENNAN delivered the opinion of the Court.The issue in these cases, consolidated for decision today, is whether certain minority preference policies of the Federal Communications Commission violate the equal protection component of the Fifth Amendment. The policies in question are (1) a program awarding an enhancement for minority ownership in comparative proceedings for new licenses, and (2) the minority "distress sale" program, which permits a limited category of existing radio and television broadcast stations to be transferred only to minority-controlled firms. We hold that these policies do not violate equal protection principles.IAThe policies before us today can best be understood by reference to the history of federal efforts to promote minority Page 497 U. S. 553 participation in the broadcasting industry. [Footnote 1] In the Communications Act of 1934, 48 Stat. 1064, as amended, Congress assigned to the Federal Communications Commission (FCC or Commission) exclusive authority to grant licenses, based on "public convenience, interest, or necessity," to persons wishing to construct and operate radio and television broadcast stations in the United States. See 47 U.S.C. §§ 151, 301, 303, 307, 309 (1982 ed.). Although for the past two decades minorities have constituted at least one-fifth of the United States population, during this time relatively few members of minority groups have held broadcast licenses. In 1971, minorities owned only 10 of the approximately 7,500 radio stations in the country, and none of the more than 1,000 television stations, see TV 9, Inc. v. FCC, 161 U.S.App.D.C. 349, 357, n. 28, 495 F.2d 929, 937, n. 28 (1973), cert. denied, 419 U.S. 986 (1974); see also 1 U.S. Commission on Civil Rights, Federal Civil Rights Enforcement Effort -- 1974, p. 49 (Nov.1974); in 1978, minorities owned less than 1 percent of the Nation's radio and television stations, see FCC Minority Ownership Task Force, Report on Minority Ownership in Broadcasting 1 (1978) (hereinafter Task Force Report); and in 1986, they owned just 2.1 percent of the more than 11,000 radio and television stations in the United States. See National Association of Broadcasters, Minority Broadcasting Facts 6 (Sept.1986). Moreover, these statistics fail to reflect the fact that, as late entrants who often have been able to obtain only the less valuable stations, many minority Page 497 U. S. 554 broadcasters serve geographically limited markets with relatively small audiences. [Footnote 2]The Commission has recognized that the viewing and listening public suffers when minorities are underrepresented among owners of television and radio stations:"Acute underrepresentation of minorities among the owners of broadcast properties is troublesome because it is the licensee who is ultimately responsible for identifying and serving the needs and interests of his or her audience. Unless minorities are encouraged to enter the mainstream of the commercial broadcasting business, a substantial portion of our citizenry will remain underserved, and the larger, non-minority audience will be deprived of the views of minorities."Task Force Report at 1. The Commission has therefore worked to encourage minority participation in the broadcast industry. The FCC began by formulating rules to prohibit licensees from discriminating against minorities in employment. [Footnote 3] The FCC explained that"broadcasting is an important mass media form which, because it makes use of the airwaves belonging to the public, must obtain a Federal license under a public interest standard and must operate in the public interest in order to obtain periodic renewals of that license."Nondiscrimination Employment Practices of Broadcast Licensees, 13 F.C.C.2d 766, 769 (1968). Regulations dealing with employment practices were justified as necessary to enable the FCC to satisfy Page 497 U. S. 555 its obligation under the Communications Act to promote diversity of programming. See NAACP v. FCC, 425 U. S. 662, 425 U. S. 670, n. 7 (1976). The United States Department of Justice, for example, contended that equal employment opportunity in the broadcast industry could "contribute significantly toward reducing and ending discrimination in other industries'" because of the "`enormous impact which television and radio have upon American life.'" Nondiscrimination Employment Practices, 13 F.C.C.2d at 771 (citation omitted).Initially, the FCC did not consider minority status as a factor in licensing decisions, maintaining as a matter of Commission policy that no preference to minority ownership was warranted where the record in a particular case did not give assurances that the owner's race likely would affect the content of the station's broadcast service to the public. See Mid-Florida Television Corp., 33 F.C.C.2d 1, 17-18 (Rev.Bd.), review denied, 37 F.C.C.2d 559 (1972), rev'd, TV 9, Inc. v. FCC, supra. The Court of Appeals for the District of Columbia Circuit, however, rejected the Commission's position that an "assurance of superior community service attributable to . . . Black ownership and participation" was required before a preference could be awarded. TV 9, Inc., supra, 161 U.S.App.D.C. at 358, 495 F.2d at 938. "Reasonable expectation," the court held, "not advance demonstration, is a basis for merit to be accorded relevant factors." Ibid. See also Garrett v. FCC, 168 U.S.App.D.C. 266, 273, 513 F.2d 1056, 1063 (1975).In April, 1977, the FCC conducted a conference on minority ownership policies, at which participants testified that minority preferences were justified as a means of increasing diversity of broadcast viewpoint. See Task Force Report, at 4-6. Building on the results of the conference, the recommendations of the Task Force, the decisions of the Court of Appeals for the District of Columbia Circuit, and a petition proposing Page 497 U. S. 556 several minority ownership policies filed with the Commission in January, 1978, by the Office of Telecommunications Policy (then part of the Executive Office of the President) and the Department of Commerce, [Footnote 4] the FCC adopted in May, 1978, its Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979. After recounting its past efforts to expand broadcast diversity, the FCC concluded:"[W]e are compelled to observe that the views of racial minorities continue to be inadequately represented in the broadcast media. This situation is detrimental not only to the minority audience, but to all of the viewing and listening public. Adequate representation of minority viewpoints in programming serves not only the needs and interests of the minority community but also enriches and educates the non-minority audience. It enhances the diversified programming which is a key objective not only of the Communications Act of 1934 but also of the First Amendment."Id. at 980-981 (footnotes omitted). Describing its actions as only "first steps," id. at 984, the FCC outlined two elements of a minority ownership policy.First, the Commission pledged to consider minority ownership as one factor in comparative proceedings for new licenses. When the Commission compares mutually exclusive applications for new radio or television broadcast stations, [Footnote 5] it Page 497 U. S. 557 looks principally at six factors: diversification of control of mass media communications, full-time participation in station operation by owners (commonly referred to as the "integration" of ownership and management), proposed program service, past broadcast record, efficient use of the frequency, and the character of the applicants. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-399 (1965); West Michigan Broadcasting Co. v. FCC, 236 U.S.App.D.C. 335, 338-339, 735 F.2d 601, 604-607 (1984), cert. denied, 470 U.S. 1027 (1985). In the Policy Statement on Minority Ownership, the FCC announced that minority ownership and participation in management would be considered in a comparative hearing as a "plus" to be weighed together with all other relevant factors. See WPIX, Inc., 68 F.C.C.2d 381, 411-412 (1978). The "plus" is awarded only to the extent that a minority owner actively participates in the day-to-day management of the station.Second, the FCC outlined a plan to increase minority opportunities to receive reassigned and transferred licenses through the so-called "distress sale" policy. See 68 F.C.C.2d at 983. As a general rule, a licensee whose qualifications to hold a broadcast license come into question may not assign or transfer that license until the FCC has resolved its doubts in a noncomparative hearing. The distress sale policy is an exception to that practice, allowing a broadcaster whose license has been designated for a revocation hearing, or whose renewal application has been designated for hearing, to assign the license to an FCC-approved minority enterprise. See ibid; Commission Policy Regarding the Advancement of Minority Ownership in Broadcasting, 92 F.C.C.2d 849, 851 (1982). The assignee must meet the FCC's basic qualifications, and the minority ownership must exceed 50 percent or be controlling. [Footnote 6] The buyer must purchase the license before Page 497 U. S. 558 the start of the revocation or renewal hearing, and the price must not exceed 75 percent of fair market value. These two Commission minority ownership policies are at issue today. [Footnote 7]B1In No. 89-453, petitioner Metro Broadcasting, Inc. (Metro) challenges the Commission's policy awarding preferences to minority owners in comparative licensing proceedings. Several applicants, including Metro and Rainbow Broadcasting (Rainbow), were involved in a comparative proceeding to select among three mutually exclusive proposals to construct and operate a new UHF television station in the Orlando, Florida, metropolitan area. After an evidentiary hearing, an Administrative Law Judge (ALJ) granted Metro's application. Metro Broadcasting, Inc., 96 F.C.C.2d 1073 (1983). The ALJ disqualified Rainbow from consideration because of "misrepresentations" in its application. Id. at 1087. On review of the ALJ's decision, however, the Commission's Review Board disagreed with the ALJ's finding regarding Rainbow's candor and concluded that Rainbow was qualified. Metro Broadcasting, Inc., 99 F.C.C.2d 688 (Rev.Bd. 1984). The Board proceeded to consider Rainbow's comparative showing, and found it superior to Metro's. In so doing, the Review Board awarded Rainbow a substantial enhancement Page 497 U. S. 559 on the ground that it was 90 percent Hispanic-owned, whereas Metro had only one minority partner who owned 19.8 percent of the enterprise. The Review Board found that Rainbow's minority credit outweighed Metro's local residence and civic participation advantage. Id. at 704. The Commission denied review of the Board's decision largely without discussion, stating merely that it "agree[d] with the Board's resolution of this case." No. 85558 (Oct. 18, 1985), p. 2; App. to Pet. for Cert. in No. 89-453, p. 61a.Metro sought review of the Commission's order in the United States Court of Appeals for the District of Columbia Circuit, but the appeal's disposition was delayed; at the Commission's request, the court granted a remand of the record for further consideration in light of a separate ongoing inquiry at the Commission regarding the validity of its minority and female ownership policies, including the minority enhancement credit. See Notice of Inquiry on Racial, Ethnic or Gender Classifications, 1 F.C.C.Rcd 1315 (1986) (Docket 86-484). [Footnote 8] The Commission determined that the outcome in the licensing proceeding between Rainbow and Metro might depend on whatever the Commission concluded Page 497 U. S. 560 in its general evaluation of minority ownership policies, and accordingly it held the licensing proceeding in abeyance pending further developments in the Docket 86-484 review. See Metro Broadcasting, Inc., 2 F.C.C.Rcd 1474, 1475 (1987).Prior to the Commission's completion of its Docket 86-484 inquiry, however, Congress enacted and the President signed into law the FCC appropriations legislation for fiscal year 1988. The measure prohibited the Commission from spending any appropriated funds to examine or change its minority ownership policies. [Footnote 9] Complying with this directive, the Commission closed its Docket 86-484 inquiry. See Reexamination of Racial, Ethnic or Gender Classifications, Order, 3 F.C.C.Rcd 766 (1988). The FCC also reaffirmed its grant of the license in this case to Rainbow Broadcasting. See Metro Broadcasting, Inc., 3 F.C.C.Rcd 866 (1988).The case returned to the Court of Appeals, and a divided panel affirmed the Commission's order awarding the license to Rainbow. The court concluded that its decision was controlled by prior circuit precedent, and noted that the Commission's action was supported by"'highly relevant congressional action that showed clear recognition of the extreme underrepresentation of minorities and their perspectives in Page 497 U. S. 561 the broadcast mass media.'"Winter Park Communications, Inc. v. FCC, 277 U.S.App.D.C. 134, 140, 873 F.2d 347, 353 (1989), quoting West Michigan, 236 U.S.App.D.C. at 347, 735 F.2d at 613. After petitions for rehearing and suggestions for rehearing en banc were denied, we granted certiorari. 493 U.S. 1017 (1990).2The dispute in No. 89-700 emerged from a series of attempts by Faith Center, Inc., the licensee of a Hartford, Connecticut television station, to execute a minority distress sale. In December, 1980, the FCC designated for a hearing Faith Center's application for renewal of its license. See Faith Center, Inc., FCC 80-680 (Dec. 21, 1980). In February, 1981, Faith Center filed with the FCC a petition for special relief, seeking permission to transfer its license under the distress sale policy. The Commission granted the request, see Faith Center, Inc., 88 F.C.C.2d 788 (1981), but the proposed sale was not completed, apparently due to the purchaser's inability to obtain adequate financing. In September, 1983, the Commission granted a second request by Faith Center to pursue a distress sale to another minority-controlled buyer. The FCC rejected objections to the distress sale raised by Alan Shurberg, who at that time was acting in his individual capacity. [Footnote 10] See Faith Center, Inc., 54 Radio Reg.2d (P & F) 1286, 1287-1288 (1983); Faith Center, Inc., 55 Radio Reg.2d (P & F) 41, 44-46 (Mass Media Bur.1984). This second distress sale also was not consummated, apparently because of similar financial difficulties on the buyer's part.In December, 1983, respondent Shurberg Broadcasting of Hartford, Inc. (Shurberg) applied to the Commission for a permit to build a television station in Hartford. The application was mutually exclusive with Faith Center's renewal Page 497 U. S. 562 application, then still pending. In June, 1984, Faith Center again sought the FCC's approval for a distress sale, requesting permission to sell the station to Astroline Communications Company, Limited Partnership (Astroline), a minority applicant. Shurberg opposed the sale to Astroline on a number of grounds, including that the FCC's distress sale program violated Shurberg's right to equal protection. Shurberg therefore urged the Commission to deny the distress sale request and to schedule a comparative hearing to examine the application Shurberg had tendered alongside Faith Center's renewal request. In December, 1984, the FCC approved Faith Center's petition for permission to assign its broadcast license to Astroline pursuant to the distress sale policy. See Faith Center, Inc., 99 F.C.C.2d 1164 (1984). The FCC rejected Shurberg's equal protection challenge to the policy as "without merit." Id. at 1171.Shurberg appealed the Commission's order to the United States Court of Appeals for the District of Columbia Circuit, but disposition of the appeal was delayed pending completion of the Commission's Docket 86-484 inquiry into the minority ownership policies. See supra, at 497 U. S. 559. After Congress enacted and the President signed into law the appropriations legislation prohibiting the FCC from continuing the Docket 86-484 proceeding, see supra at 497 U. S. 560, the Commission reaffirmed its order granting Faith Center's request to assign its Hartford license to Astroline pursuant to the minority distress sale policy. See Faith Center, Inc., 3 F.C.C.Rcd 868 (1988).A divided Court of Appeals invalidated the Commission's minority distress sale policy. Shurberg Broadcasting of Hartford, Inc. v. FCC, 278 U.S.App.D.C. 24, 876 F.2d 902 (1989). In a per curiam opinion, the panel majority held that the policy"unconstitutionally deprives Alan Shurberg and Shurberg Broadcasting of their equal protection rights under the Fifth Amendment because the program is not narrowly taylored to remedy past discrimination or to promote Page 497 U. S. 563 programming diversity"and that"the program unduly burdens Shurberg, an innocent nonminority, and is not reasonably related to the interests it seeks to vindicate."Id. at 24-25, 876 F.2d at 902-903. Petitions for rehearing and suggestions for rehearing en banc were denied, and we granted certiorari. 493 U.S. 1018 (1990).IIIt is of overriding significance in these cases that the FCC's minority ownership programs have been specifically approved -- indeed, mandated -- by Congress. In Fullilove v. Klutznick, 448 U. S. 448 (1980), Chief Justice Burger, writing for himself and two other Justices, observed that, although "[a] program that employs racial or ethnic criteria . . . calls for close examination," when a program employing a benign racial classification is adopted by an administrative agency at the explicit direction of Congress, we are"bound to approach our task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to 'provide for the . . . general Welfare of the United States' and 'to enforce, by appropriate legislation,' the equal protection guarantees of the Fourteenth Amendment."Id. at 448 U. S. 472; see also id. at 448 U. S. 491; id. at 448 U. S. 510, and 448 U. S. 515-516, n. 14 (Powell, J., concurring); id. at 448 U. S. 517-520 (MARSHALL, J., concurring in judgment). We explained that deference was appropriate in light of Congress' institutional competence as the national legislature, see id. at 448 U. S. 490 (opinion of Burger, C.J.); id. at 498 (Powell, J., concurring), as well as Congress' powers under the Commerce Clause, see id. at 448 U. S. 475-476 (opinion of Burger, C.J.); id. at 448 U. S. 499 (Powell, J., concurring), the Spending Clause, see id. at 448 U. S. 473-475, 448 U. S. 478 (opinion of Burger, C.J.), and the Civil War Amendments see id. at 448 U. S. 476-478 (opinion of Burger, C.J.); id. at 448 U. S. 500, 448 U. S. 508-509 (Powell, J., concurring). [Footnote 11] Page 497 U. S. 564A majority of the Court in Fullilove did not apply strict scrutiny to the race-based classification at issue. Three Members inquired "whether the objectives of th[e] legislation are within the power of Congress" and "whether the limited use of racial and ethnic criteria . . . is a constitutionally permissible means for achieving the congressional objectives." Id. at 448 U. S. 473 (opinion of Burger, C.J.) (emphasis in original). Three other Members would have upheld benign racial classifications that "serve important governmental objectives and are substantially related to achievement of those objectives." Id. at 448 U. S. 519 (MARSHALL, J., concurring in judgment). We apply that standard today. We hold that benign race-conscious measures mandated by Congress [Footnote 12] -- even if those Page 497 U. S. 565 measures are not "remedial" in the sense of being designed to compensate victims of past governmental or societal discrimination -- are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.Our decision last Term in Richmond v. J.A. Croson Co., 488 U. S. 469 (1989), concerning a minority set-aside program adopted by a municipality, does not prescribe the level of scrutiny to be applied to a benign racial classification employed by Congress. As Justice KENNEDY noted, the question of congressional action was not before the Court, id. at 488 U. S. 518 (opinion concurring in part and concurring in judgment), and so Croson cannot be read to undermine our decision in Fullilove. In fact, much of the language and reasoning in Croson reaffirmed the lesson of Fullilove that race-conscious classifications adopted by Congress to address racial and ethnic discrimination are subject to a different standard than such classifications prescribed by state and local governments. For example, Justice O'CONNOR, joined by two other Members of this Court, noted that "Congress may identify and redress the effects of society-wide discrimination," 488 U.S. at 488 U. S. 490, and that Congress "need not make specific findings of discrimination to engage in race-conscious relief." Id. at 488 U. S. 489. [Footnote 13] Echoing Fullilove's emphasis on Congress Page 497 U. S. 566 as a national legislature that stands above factional politics, Justice SCALIA argued that, as a matter of "social reality and governmental theory," the Federal Government is unlikely to be captured by minority racial or ethnic groups and used as an instrument of discrimination. 488 U.S. at 488 U. S. 522 (opinion concurring in judgment). Justice SCALIA explained that "[t]he struggle for racial justice has historically been a struggle by the national society against oppression in the individual States," because of the "heightened danger of oppression from political factions in small, rather than large, political units." Id. at 488 U. S. 522, 488 U. S. 523. [Footnote 14]We hold that the FCC minority ownership policies pass muster under the test we announce today. First, we find that they serve the important governmental objective of broadcast diversity. Second, we conclude that they are substantially related to the achievement of that objective.ACongress found that"the effects of past inequities stemming from racial and ethnic discrimination have resulted in a severe underrepresentation of minorities in the media of mass communications."H.R. Conf.Rep. No. 97-765, p. 43 (1982), U.S. Code Cong. & Admin.News 1982, 2237, 2261, 2287. Congress and the Commission do not justify the minority ownership policies strictly as remedies for victims of this discrimination, however. Rather, Congress and the FCC have selected the minority ownership policies primarily to promote programming diversity, and they urge that such diversity is an important governmental objective that can serve as a constitutional basis for the preference policies. We agree.We have long recognized that"[b]ecause of the scarcity of [electromagnetic] frequencies, the Government is permitted to put restraints on licensees in favor of others whose views Page 497 U. S. 567 should be expressed on this unique medium."Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 390 (1969). The Government's role in distributing the limited number of broadcast licenses is not merely that of a "traffic officer," National Broadcasting Co. v. United States, 319 U. S. 190, 319 U. S. 215 (1943); rather, it is axiomatic that broadcasting may be regulated in light of the rights of the viewing and listening audience, and that "the wildest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public." Associated Press v. United States, 326 U. S. 1, 326 U. S. 20 (1945). Safeguarding the public's right to receive a diversity of views and information over the airwaves is therefore an integral component of the FCC's mission. We have observed that "the "public interest" standard necessarily invites reference to First Amendment principles,'" FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775, 436 U. S. 795 (1978), quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 122 (1973), and that the Communications Act has designated broadcasters as "fiduciaries for the public." FCC v. League of Women Voters of California, 468 U. S. 364, 468 U. S. 377 (1984)."[T]he people as a whole retain their interest in free speech by radio [and other forms of broadcast] and their collective right to have the medium function consistently with the ends and purposes of the First Amendment,"and "[i]t is the right of the viewers and listeners, not the right of broadcasters, which is paramount." Red Lion, supra, 395 U.S. at 395 U. S. 390."Congress may . . . seek to assure that the public receives through this medium a balanced presentation of information on issues of public importance that otherwise might not be addressed if control of the medium were left entirely in the hands of those who own and operate broadcasting stations."League of Women Voters, supra, 468 U.S. at 486 U. S. 377.Against this background, we conclude that the interest in enhancing broadcast diversity is, at the very least, an important governmental objective, and is therefore a sufficient Page 497 U. S. 568 basis for the Commission's minority ownership policies. Just as a "diverse student body" contributing to a "robust exchange of ideas'" is a "constitutionally permissible goal" on which a race-conscious university admissions program may be predicated, University of California Regents v. Bakke, 438 U. S. 265, 438 U. S. 311-313 (1978) (opinion of Powell, J.), the diversity of views and information on the airwaves serves important First Amendment values. Cf. Wygant v. Jackson Board of Education, 476 U. S. 267, 476 U. S. 314-315 (1986) (STEVENS, J., dissenting). [Footnote 15] The benefits of such diversity are not limited to the members of minority groups who gain access to the broadcasting industry by virtue of the ownership policies; rather, the benefits redound to all members of the viewing and listening audience. As Congress found, "the American public will benefit by having access to a wider diversity of information sources." H.R.Conf.Rep. No. 97-765, p. 45 (1982), U.S.Code Cong. & Admin.News 1982, 2289; see also Minority Ownership of Broadcast Stations: Hearing before the Subcommittee on Communications of the Senate Committee on Commerce, Science, and Transportation, 101st Cong., 1st Sess., 66 (1989) (testimony of Roderick Porter, Deputy Chief, Mass Media Bureau of the FCC) ("[T]he FCC's minority policies are based on our conclusion that the entire broadcast audience, regardless of its racial composition, will benefit"). Page 497 U. S. 569BWe also find that the minority ownership policies are substantially related to the achievement of the Government's interest. One component of this inquiry concerns the relationship between expanded minority ownership and greater broadcast diversity; both the FCC and Congress have determined that such a relationship exists. Although we do not "defer' to the judgment of the Congress and the Commission on a constitutional question," and would not "hesitate to invoke the Constitution should we determine that the Commission has not fulfilled its task with appropriate sensitivity" to equal protection principles, Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. at 412 U. S. 103, we must pay close attention to the expertise of the Commission and the factfinding of Congress when analyzing the nexus between minority ownership and programming diversity. With respect to this "complex" empirical question, ibid., we are required to give "great weight to the decisions of Congress and the experience of the Commission." Id. at 412 U. S. 102.1The FCC has determined that increased minority participation in broadcasting promotes programming diversity. As the Commission observed in its 1978 Statement of Policy on Minority Ownership of Broadcasting Facilities,"ownership of broadcasting facilities by minorities is [a] significant way of fostering the inclusion of minority views in the area of programming"and"[f]ull minority participation in the ownership and management of broadcast facilities results in a more diverse selection of programming."68 F.C.C.2d at 981. Four years later, the FCC explained that it had taken "steps to enhance the ownership and participation of minorities in the media" in order to"increas[e] the diversity in the control of the media, and thus diversity in the selection of available programming, benefitting the public and serving the principle of the First Amendment."Minority Ownership in Broadcasting, Page 497 U. S. 570 92 F.C.C.2d at 849-850. See also Radio Jonesboro, Inc., 100 F.C.C.2d 941, 945, n. 9 (1985) ("[T]here is a critical underrepresentation of minorities in broadcast ownership, and full minority participation in the ownership and management of broadcast facilities is essential to realize the fundamental goals of programming diversity and diversification of ownership'") (citation omitted). The FCC's conclusion that there is an empirical nexus between minority ownership and broadcasting diversity is a product of its expertise, and we accord its judgment deference.Furthermore, the FCC's reasoning with respect to the minority ownership policies is consistent with longstanding practice under the Communications Act. From its inception, public regulation of broadcasting has been premised on the assumption that diversification of ownership will broaden the range of programming available to the broadcast audience. [Footnote 16] Thus,"it is upon ownership that public policy places Page 497 U. S. 571 primary reliance with respect to diversification of content, and that historically has proved to be significantly influential with respect to editorial comment and the presentation of news."TV 9, Inc., 161 U.S.App.D.C. at 358, 495 F.2d at 938. The Commission has never relied on the market alone to ensure that the needs of the audience are met. Indeed, one of the FCC's elementary regulatory assumptions is that broadcast content is not purely market-driven; if it were, there would be little need for consideration in licensing decisions of such factors as integration of ownership and management, local residence, and civic participation. In this vein, the FCC has compared minority preferences to local residence and other integration credits:"[B]oth local residence and minority ownership are fundamental considerations in our licensing scheme. Both policies complement our concern with diversification of control of broadcast ownership. Moreover, similar assumptions underlie both policies. We award enhancement credit for local residence because . . . [i]t is expected that [an] increased knowledge of the community of license will be reflected in a station's programming. Likewise, credit for minority ownership and participation is awarded in a comparative proceeding [because] 'minority ownership is likely to increase diversity of content, especially of opinion and viewpoint.'"Radio Jonesboro, Inc., supra, at 945 (footnotes omitted). Page 497 U. S. 5722Congress also has made clear its view that the minority ownership policies advance the goal of diverse programming. In recent years, Congress has specifically required the Commission, through appropriations legislation, to maintain the minority ownership policies without alteration. See n 9, supra. We would be remiss, however, if we ignored the long history of congressional support for those policies prior to the passage of the appropriations acts because, for the past two decades, Congress has consistently recognized the barriers encountered by minorities in entering the broadcast industry and has expressed emphatic support for the Commission's attempts to promote programming diversity by increasing minority ownership. Limiting our analysis to the immediate legislative history of the appropriations acts in question "would erect an artificial barrier to [a] full understanding of the legislative process." Fullilove v. Klutznick, 448 U.S. at 448 U. S. 502 (Powell, J., concurring). The"special attribute [of Congress] as a legislative body lies in its broader mission to investigate and consider all facts and opinions that may be relevant to the resolution of an issue. One appropriate source is the information and expertise that Congress acquires in the consideration and enactment of earlier legislation. After Congress has legislated repeatedly in an area of national concern, its Members gain experience that may reduce the need for fresh hearings or prolonged debate when Congress again considers action in that area."Id. at 448 U. S. 502-503; see also id. at 448 U. S. 478 (opinion of Burger, C.J.) ("Congress, of course, may legislate without compiling the kind of record' appropriate with respect to judicial or administrative proceedings").Congress's experience began in 1969, when it considered a bill that would have eliminated the comparative hearing in license renewal proceedings, in order to avoid "the filing of a Page 497 U. S. 573 multiplicity of competing applications, often from groups unknown" and to restore order and predictability to the renewal process to "give the current license holder the benefit of the doubt warranted by his previous investment and experience." 115 Cong.Rec. 14813 (1969) (letter of Sen. Scott). Congress heard testimony that, because the most valuable broadcast licenses were assigned many years ago, comparative hearings at the renewal stage afford an important opportunity for excluded groups, particularly minorities, to gain entry into the industry. [Footnote 17] Opponents warned that the bill would "exclude minority groups from station ownership in important markets" by "fr[eezing]" the distribution of existing licenses. [Footnote 18] Congress rejected the bill.Congress confronted the issue again in 1973 and 1974, when congressional committees held extensive hearings on proposals to extend the broadcast license period from three to five years and to modify the comparative hearing process for license renewals. Witnesses reiterated that renewals provided a valuable opportunity for minorities to obtain a foothold in the industry. [Footnote 19] The proposals were never enacted, and the renewal process was left intact. Page 497 U. S. 574During 1978, both the FCC and the Office of Telecommunications Policy presented their views to Congress as it considered a bill to deregulate the broadcast industry. The proposed Communications Act of 1978 would have, among other things, replaced comparative hearings with a lottery and created a fund for minorities who sought to purchase stations. As described by Representative Markey, the measure was intended to increase"the opportunities for blacks and women and other minorities in this country to get into the communications systems in this country so that their point of view and their interests can be represented."The Communications Act of 1978: Hearings on H.R. 13015 before the Subcommittee on Communications of the House Committee on Interstate and Foreign Commerce, 95th Cong., 2d Sess., vol. 5, pt. 1, p. 59 (1978). The bill's sponsor, Representative Van Deerlin, stated,"It was the hope, and with some reason the expectation of the framers of the bill, that the most effective way to reach the inadequacies of the broadcast industry in employment and programming would be by doing something at the top, that is, increasing minority ownership and management and control in broadcast stations."Id. vol. 3, at 698.The Executive Branch objected to the lottery proposal on the ground that it would harm minorities by eliminating the credit granted under the comparative hearing scheme as developed by the FCC. See id. at 50. Although it acknowledged that a lottery could be structured to alleviate that concern by attributing a weight to minority ownership, see id. at 85, the Executive Branch explained that it preferred to Page 497 U. S. 575 grant credit for minority ownership during comparative hearings as a more finely tuned way of achieving the Communication Act's goal of broadcast diversity. See ibid. (contending that a lottery would not take into account the individual needs of particular communities).Although no lottery legislation was enacted that year, Congress continued to explore the idea, [Footnote 20] and when, in 1981, it ultimately authorized a lottery procedure, Congress established a concomitant system of minority preferences. See Omnibus Budget Reconciliation Act of 1981, Pub.L. 9735, 95 Stat. 357, 736-737. The Act provided that, where more than one application for an initial license or construction permit was received, the Commission could grant the license or permit to a qualified applicant "through the use of a system of random selection," 47 U.S.C. § 309(i)(1) (1982 ed.), so long as the FCC adopted rules to ensure "significant preferences" in the lottery process to groups underrepresented in the ownership of telecommunications facilities. § 309(i)(3)(A). The accompanying Conference Report announced Congress's "firm intention" to award a lottery preference to minorities and other historically underrepresented groups, so that "the objective of increasing the number of media outlets owned by such persons or groups [would] be met." H.R.Conf.Rep. No. 97208, 897 (1981), U.S.Code Cong. & Admin. News 1981, 396, 1010, 1259. After the FCC complained of the difficulty of defining "underrepresented" groups and raised other problems concerning the statute, [Footnote 21] Congress enacted a second lottery statute reaffirming its intention in unmistakable terms. Section 115 of the Communications Amendments Page 497 U. S. 576 Act of 1982, Pub.L. 97-259, 96 Stat. 1094 (amending 47 U.S.C. § 309(i) (1982 ed.)), directs that, in any random selection lottery conducted by the FCC, a preference is to be granted to every applicant whose receipt of a license would increase the diversification of mass media ownership and that,"[t]o further diversify the ownership of the media of mass communications, an additional significant preference [is to be given] to any applicant controlled by a member or members of a minority group."47 U.S.C. § 309(i)(3)(A) (1982 ed.). Observing that the nexus between ownership and programming "has been repeatedly recognized by both the Commission and the courts," Congress explained that it sought "to promote the diversification of media ownership and consequent diversification of programming content," a principle that "is grounded in the First Amendment." H.R.Conf.Rep. No. 97-765, p. 40 (1982), U.S.Code Cong. & Admin.News 1982, 2284. With this new mandate from Congress, the Commission adopted rules to govern the use of a lottery system to award licenses for low power television stations. [Footnote 22]The minority ownership issue returned to the Congress in October, 1986, [Footnote 23] when a House subcommittee held a hearing to examine the Commission's inquiry into the validity of its minority ownership policies. The subcommittee chair expressed his view that"[t]he most important message of this Page 497 U. S. 577 hearing today is that the Commission must not dismantle these longstanding diversity policies, which Congress has repeatedly endorsed, until such time as Congress or the courts direct otherwise."Minority-Owned Broadcast Stations: Hearing on H.R. 5373 before the Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, 99th Cong., 2d Sess., 13 (1986) (Rep. Wirth). After the Commission issued an order holding in abeyance, pending completion of the inquiry, actions on licenses and distress sales in which a minority preference would be dispositive, [Footnote 24] a number of bills proposing codification of the minority ownership policies were introduced in Congress. [Footnote 25] Members of Congress questioned representatives of the FCC during hearings over a span of six months in 1987 with respect to the FCC appropriation for fiscal year 1988, [Footnote 26] legislation to reauthorize the Commission for fiscal years 1988 and 1989, [Footnote 27] and legislation to codify the Commission's minority ownership policies. [Footnote 28] Page 497 U. S. 578Ultimately, Congress chose to employ its appropriations power to keep the FCC's minority ownership policies in place for fiscal year 1988. [Footnote 29] See supra at 497 U. S. 560. The report of the originating Committee on Appropriations explained:"The Congress has expressed its support for such policies in the past, and has found that promoting diversity of ownership of broadcast properties satisfies important public policy goals. Diversity of ownership results in diversity of programming and improved service to minority and women audiences."S.Rep. No. 100-182, p. 76 (1987). The Committee recognized the continuity of congressional action in the field of minority ownership policies, noting that,"[i]n approving a lottery system for the selection of certain broadcast licensees, Congress explicitly approved the use of preferences to promote minority and women ownership."Id. at 76-77.Congress has twice extended the prohibition on the use of appropriated funds to modify or repeal minority ownership policies, [Footnote 30] and has continued to focus upon the issue. For example, in the debate on the fiscal year 1989 legislation, Senator Hollings, chair of both the authorizing committee and the appropriations subcommittee for the FCC, presented to the Senate a summary of a June, 1988, report prepared by the Congressional Research Service (CRS), entitled Minority Page 497 U. S. 579 Broadcast Station Ownership and Broadcast Programming: Is There a Nexus? The study, Senator Hollings reported, "clearly demonstrates that minority ownership of broadcast stations does increase the diversity of viewpoints presented over the airwaves." 134 Cong. Rec. S10021 (July 27, 1988).As revealed by the historical evolution of current federal policy, both Congress and the Commission have concluded that the minority ownership programs are critical means of promoting broadcast diversity. We must give great weight to their joint determinationCThe judgment that there is a link between expanded minority ownership and broadcast diversity does not rest on impermissible stereotyping. Congressional policy does not assume that, in every case, minority ownership and management will lead to more minority-oriented programming or to the expression of a discrete "minority viewpoint" on the airwaves. Neither does it pretend that all programming that appeals to minority audiences can be labeled "minority programming," or that programming that might be described as "minority" does not appeal to nonminorities. Rather, both Congress and the FCC maintain simply that expanded minority ownership of broadcast outlets will, in the aggregate, result in greater broadcast diversity. A broadcasting industry with representative minority participation will produce more variation and diversity than will one whose ownership is drawn from a single racially and ethnically homogeneous group. The predictive judgment about the overall result of minority entry into broadcasting is not a rigid assumption about how minority owners will behave in every case, but rather is akin to Justice Powell's conclusion in Bakke that greater admission of minorities would contribute, on average, "to the robust exchange of ideas.'" 438 U.S. at 438 U. S. 313. To be sure, there is no iron-clad guarantee that each minority owner will contribute to diversity. But neither was there an Page 497 U. S. 580 assurance in Bakke that minority students would interact with nonminority students or that the particular minority students admitted would have typical or distinct "minority" viewpoints. See id. at 438 U. S. 312 (opinion of Powell, J.) (noting only that educational excellence is "widely believed to be promoted by a diverse student body") (emphasis added); id. at 438 U. S. 313, n. 48 ("In the nature of things, it is hard to know how, and when, and even if, this informal "learning through diversity" actually occurs"') (citation omitted).Although all station owners are guided to some extent by market demand in their programming decisions, Congress and the Commission have determined that there may be important differences between the broadcasting practices of minority owners and those of their nonminority counterparts. This judgment -- and the conclusion that there is a nexus between minority ownership and broadcasting diversity -- is corroborated by a host of empirical evidence. [Footnote 31] Evidence Page 497 U. S. 581 suggests that an owner's minority status influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities. "[M]inority ownership does appear to have specific impact on the presentation of minority images in local news," [Footnote 32] inasmuch as minority-owned stations tend to devote more news time to topics of minority interest and to avoid racial and ethnic stereotypes in portraying minorities. [Footnote 33] In addition, studies show that a minority owner is more likely to employ minorities in managerial and other important roles Page 497 U. S. 582 where they can have an impact on station policies. [Footnote 34] If the FCC's equal employment policies "ensure that . . . licensees' programming fairly reflects the tastes and viewpoints of minority groups," NAACP v. FPC, 425 U.S. at 425 U. S. 670, n. 7, it is difficult to deny that minority-owned stations that follow such employment policies on their own will also contribute to diversity. While we are under no illusion that members of a particular minority group share some cohesive, collective viewpoint, we believe it a legitimate inference for Congress and the Commission to draw that, as more minorities gain ownership and policymaking roles in the media, varying perspectives will be more fairly represented on the airwaves. The policies are thus a product of "analysis'" rather than Page 497 U. S. 583 a "`stereotyped reaction'" based on "`[h]abit.'" Fullilove, 448 U.S. at 448 U. S. 534, n. 4 (STEVENS, J., dissenting) (citation omitted).Our cases demonstrate that the reasoning employed by the Commission and Congress is permissible. We have recognized, for example, that the fair cross-section requirement of the Sixth Amendment forbids the exclusion of groups on the basis of such characteristics as race and gender from a jury venire because,"[w]ithout that requirement, the State could draw up jury lists in such manner as to produce a pool of prospective jurors disproportionately ill-disposed towards one or all classes of defendants, and thus more likely to yield petit juries with similar disposition."Holland v. Illinois, 493 U. S. 474, 493 U. S. 480-481 (1990). It is a small step from this logic to the conclusion that including minorities in the electromagnetic spectrum will be more likely to produce a "fair cross section" of diverse content. Cf. Duren v. Missouri, 439 U. S. 357, 439 U. S. 358-359, 439 U. S. 363-364 (1979); Taylor v. Louisiana, 419 U. S. 522, 419 U. S. 531-533 (1975). [Footnote 35] In addition, many of our voting rights cases operate on the assumption that minorities have particular viewpoints and interests worthy of protection. We have held, for example, that, in safeguarding the "effective exercise of the electoral franchise'" by racial minorities, United Jewish Organizations v. Carey, 430 U. S. 144, 430 U. S. 159 (1977) (plurality opinion), quoting Beer v. United States, 425 U. S. 130, 425 U. S. 141 (1976), "[t]he permissible use of racial criteria is not confined to eliminating Page 497 U. S. 584 the effects of past discriminatory districting or apportionment." 430 U.S. at 430 U. S. 161. Rather, a State subject to § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c, may "deliberately creat[e] or preserv[e] black majorities in particular districts in order to ensure that its reapportionment plan complies with § 5"; "neither the Fourteenth nor the Fifteenth Amendment mandates any per se rule against using racial factors in districting and apportionment." 430 U.S. at 430 U. S. 161.DWe find that the minority ownership policies are in other relevant respects substantially related to the goal of promoting broadcast diversity. First, the Commission adopted and Congress endorsed minority ownership preferences only after long study and painstaking consideration of all available alternatives. See Fullilove, 448 U.S. at 448 U. S. 463-467 (opinion of Burger, C.J.); id. at 448 U. S. 511 (Powell, J., concurring). For many years, the FCC attempted to encourage diversity of programming content without consideration of the race of station owners. [Footnote 36] When it first addressed the issue, in a 1946 Page 497 U. S. 585 report entitled Public Service Responsibility of Broadcast Licensees (Blue Book), the Commission stated that, although licensees bore primary responsibility for program service,"[i]n issuing and in renewing the licenses of broadcast stations, the Commission [would] give particular consideration to four program service factors relevant to the public interest."Id. at 55. [Footnote 37] In 1960, the Commission altered course somewhat, announcing that"the principal ingredient of the licensee's obligation to operate his station in the public interest is the diligent, positive and continuing effort . . . to discover and fulfill the tastes, needs, and desires of his community or service area for broadcast service."Network Programming Inquiry, Report and Statement of Policy, 25 Fed.Reg. 7295 (1960). Licensees were advised that they could meet this obligation in two ways: by canvassing members of the listening public who could receive the station's signal and by meeting with "leaders in community life . . . and others who bespeak the interests which make up the community." Id. at 7296.By the late 1960's, it had become obvious that these efforts had failed to produce sufficient diversity in programming. The Kerner Commission, for example, warned that the various elements of the media Page 497 U. S. 586"have not communicated to whites a feeling for the difficulties and frustrations of being a Negro in the United States. They have not shown understanding or appreciation of -- and thus have not communicated -- a sense of Negro culture, thought, or history. . . . The world that television and newspapers offer to their black audience is almost totally white. . . ."Report of the National Advisory Commission on Civil Disorders 210 (1968). In response, the Commission promulgated equal employment opportunity regulations, see supra at 497 U. S. 554-555, and formal "ascertainment" rules requiring a broadcaster as a condition of license "to ascertain the problems, needs and interests of the residents of his community of license and other areas he undertakes to serve," and to specify "what broadcast matter he proposes to meet those problems, needs and interests." Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 F.C.C.2d 650, 682 (1971). [Footnote 38] The Commission Page 497 U. S. 587 explained that, although it recognized there was "no single answer for all stations," it expected each licensee to devote a "significant proportion'" of a station's programming to community concerns. Id. at 686 (citation omitted). [Footnote 39] The Commission expressly included "minority and ethnic groups" as segments of the community that licensees were expected to consult. See, e.g., Ascertainment of Community Problems by Broadcast Applicants, 57 F.C.C.2d 418, 419, 442 (1976); Ascertainment of Community Problems by Noncommercial Educational Broadcast Applicants, 54 F.C.C.2d 766, 767, 775, 776 (1975). The FCC held that a broadcaster's failure to ascertain and serve the needs of sizable minority groups in its service area was, in itself, a failure of licensee responsibility, regardless of any intent to discriminate, and was a sufficient ground for the nonrenewal of a license. See, e.g., Chapman Radio and Television Co., 24 F.C.C.2d 282, 286 (1970). The Commission observed that"[t]he problems of minorities must be taken into consideration by broadcasters in planning their program schedules to meet the needs and interests of the communities they are licensed to serve."Time-Life Broadcast, Inc., 33 F.C.C.2d 1081, 1093 (1972); see also Mahoning Valley Broadcasting Corp., 39 F.C.C.2d 52, 58 (1972); WKBN Broadcasting Corp., 30 F.C.C.2d 958, 970 (1971). Pursuant to this policy, for example, the Commission refused to renew licenses for eight educational stations in Alabama and denied an application for a construction permit for a ninth, all on the ground that the licensee"did not take the trouble to inform itself of the needs and interests of a minority group consisting of 30 percent of the population of the State of Alabama"and that such a failure was"fundamentally irreconcilable with the obligations which the Communications Act places upon those who receive authorizations to use the airwaves."Alabama Educational Television Comm'n, 50 F.C.C.2d 461, 472, 473 (1975), citing Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969). The Commission's ascertainment policy was not static; in order to facilitate application of the ascertainment requirement, the Commission devised a community leader checklist consisting Page 497 U. S. 588 of 19 groups and institutions commonly found in local communities, see 57 F.C.C.2d at 418-419, and it continued to consider improvements to the ascertainment system. See, e.g., Amendment of Primers on Ascertainment of Community Problems by Commercial Broadcast Renewal Applicants and Noncommercial Educational Broadcast Applicants, Permittees and Licensees, 47 Radio Reg.2d (P & F) 189 (1980).By 1978, however, the Commission had determined that even these efforts at influencing broadcast content were not effective means of generating adequate programming diversity. The FCC noted that,"[w]hile the broadcasting industry has, on the whole, responded positively to its ascertainment obligations, and has made significant strides in its employment practices, we are compelled to observe that the views of racial minorities continue to be inadequately represented in the broadcast media."Minority Ownership Statement, 68 F.C.C.2d at 980 (footnotes omitted). As support, the Commission cited a report by the United States Commission on Civil Rights, which found that minorities"are underrepresented on network dramatic television programs and on the network news. When they do appear, they are frequently seen in token or stereotyped roles."Window Dressing on the Set 3 (Aug.1977). The Commission concluded that,"despite the importance of our equal employment opportunity rules and ascertainment policies in assuring diversity of programming, it appears that additional measures are necessary and appropriate. In this regard, the Commission believes that ownership of broadcast facilities by minorities is another significant way of fostering the inclusion of minority views in the area of programming."68 F.C.C.2d at 981; see also Commission Policy Regarding Advancement of Minority Ownership in Broadcasting, 92 F.C.C.2d 849, 850 (1982) ("[I]t became apparent that, in order to broaden minority voices and spheres of influence over the airwaves, additional Page 497 U. S. 589 measures were necessary" beyond the equal employment and ascertainment rules). [Footnote 40]In short, the Commission established minority ownership preferences only after long experience demonstrated that race-neutral means could not produce adequate broadcasting diversity. [Footnote 41] The FCC did not act precipitately in devising the programs we uphold today; to the contrary, the Commission undertook thorough evaluations of its policies three times -- in 1960, 1971, and 1978 -- before adopting the minority ownership programs. [Footnote 42] In endorsing the minority ownership Page 497 U. S. 590 preferences, Congress agreed with the Commission's assessment that race-neutral alternatives had failed to achieve the necessary programming diversity. [Footnote 43] Page 497 U. S. 591Moreover, the considered nature of the Commission's judgment in selecting the particular minority ownership policies at issue today is illustrated by the fact that the Commission Page 497 U. S. 592 has rejected other types of minority preferences. For example, the Commission has studied, but refused to implement, the more expansive alternative of setting aside certain frequencies for minority broadcasters. See Nighttime Operations on Clear Channels, 3 F.C.C.Rcd 3597, 3599-3600 (1988); Deletion of AM Acceptance Criteria, 102 F.C.C.2d 548, 555-658 (1985); Clear Channel Broadcasting, 78 F.C.C.2d 1345, reconsideration denied, 83 F.C.C.2d 216, 218-219 (1980), aff'd sub nom. Loyola University v. FCC, 216 U.S.App.D.C. 403, 670 F.2d 1222 (1982). In addition, in a ruling released the day after it adopted the comparative hearing credit and the distress sale preference, the FCC declined to adopt a plan to require 45-day advance public notice before a station could be sold, which had been advocated on the ground that it would ensure minorities a chance to bid on stations that might otherwise be sold to industry insiders without ever coming on the market. See 43 Fed.Reg. 24560 (1978). [Footnote 44] Soon afterward, the Commission rejected Page 497 U. S. 593 other minority ownership proposals advanced by the Office of Telecommunications Policy and the Department of Commerce that sought to revise the FCC's time brokerage, multiple ownership, and other policies. [Footnote 45]The minority ownership policies, furthermore, are aimed directly at the barriers that minorities face in entering the broadcasting industry. The Commission's Task Force identified as key factors hampering the growth of minority ownership a lack of adequate financing, paucity of information regarding license availability, and broadcast inexperience. See Task Force Report, at 8-29; Advisory Committee on Alternative Financing for Minority Opportunities in Telecommunications, Final Report, Strategies for Advancing Minority Ownership Opportunities 25-30 (May 1982). The Commission assigned a preference to minority status in the comparative licensing proceeding, reasoning that such an enhancement might help to compensate for a dearth of broadcasting experience. Most license acquisitions, however, are by necessity purchases of existing stations, because only a limited number of new stations are available, and those are often in less desirable markets or on less profitable portions Page 497 U. S. 594 of spectrum, such as the UHF band. [Footnote 46] Congress and the FCC therefore found a need for the minority distress sale policy, which helps to overcome the problem of inadequate access to capital by lowering the sale price and the problem of lack of information by providing existing licensees with an incentive to seek out minority buyers. The Commission's choice of minority ownership policies thus addressed the very factors it had isolated as being responsible for minority underrepresentation in the broadcast industry.The minority ownership policies are "appropriately limited in extent and duration, and subject to reassessment and reevaluation by the Congress prior to any extension or reenactment." Fullilove, 448 U.S. at 448 U. S. 489 (opinion of Burger, C.J.) (footnote omitted). Although it has underscored emphatically its support for the minority ownership policies, Congress has manifested that support through a series of appropriations acts of finite duration, thereby ensuring future reevaluations of the need for the minority ownership program as the number of minority broadcasters increases. In addition, Congress has continued to hold hearings on the subject of minority ownership. [Footnote 47] The FCC has noted with Page 497 U. S. 595 respect to the minority preferences contained in the lottery statute, 47 U.S.C. § 309(i)(3)(A) (1982 ed.), that Congress instructed the Commission to"report annually on the effect of the preference system and whether it is serving the purposes intended. Congress will be able to further tailor the program based on that information, and may eliminate the preferences when appropriate."Amendment of Commission's Rules to Allow Selection from Among Certain Competing Applications Using Random Selection or Lotteries Instead of Comparative Hearings, 93 F.C.C.2d 952, 974 (1983). Furthermore, there is provision for administrative and judicial review of all Commission decisions, which guarantees both that the minority ownership policies are applied correctly in individual cases, [Footnote 48] and that there will be frequent Page 497 U. S. 596 opportunities to revisit the merits of those policies. Congress and the Commission have adopted a policy of minority ownership not as an end in itself, but rather as a means of achieving greater programming diversity. Such a goal carries its own natural limit, for there will be no need for further minority preferences once sufficient diversity has been achieved. The FCC's plan, like the Harvard admissions program discussed in Bakke, contains the seed of its own termination. Cf. Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U. S. 616, 480 U. S. 640 (1987) (agency's "express commitment to attain' a balanced workforce" ensures that plan will be of limited duration).Finally, we do not believe that the minority ownership policies at issue impose impermissible burdens on nonminorities. [Footnote 49] Although the nonminority challengers in these cases concede that they have not suffered the loss of an already-awarded broadcast license, they claim that they have been handicapped in their ability to obtain one in the first instance. But just as we have determined that,"[a]s part of this Nation's dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy,"Wygant, 476 U.S. at 476 U. S. 280-281 (opinion of Powell, J.), we similarly find that a congressionally mandated, benign Page 497 U. S. 597 race-conscious program that is substantially related to the achievement of an important governmental interest is consistent with equal protection principles so long as it does not impose undue burdens on nonminorities. Cf. Fullilove, 448 U.S. at 448 U. S. 484 (opinion of Burger, C.J.) ("It is not a constitutional defect in this program that it may disappoint the expectations of nonminority firms. 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") (citation omitted); id. at 448 U. S. 521 (MARSHALL, J., concurring in judgment).In the context of broadcasting licenses, the burden on nonminorities is slight. The FCC's responsibility is to grant licenses in the "public interest, convenience, or necessity," 47 U.S.C. §§ 307, 309 (1982 ed.), and the limited number of frequencies on the electromagnetic spectrum means that "[n]o one has a First Amendment right to a license." Red Lion, 395 U.S. at 395 U. S. 389. Applicants have no settled expectation that their applications will he granted without consideration of public interest factors such as minority ownership. Award of a preference in a comparative hearing or transfer of a station in a distress sale thus contravenes "no legitimate firmly rooted expectation[s]" of competing applicants. Johnson, supra, 480 U.S. at 480 U. S. 638.Respondent Shurberg insists that, because the minority distress sale policy operates to exclude nonminority firms completely from consideration in the transfer of certain stations, it is a greater burden than the comparative hearing preference for minorities, which is simply a "plus" factor considered together with other characteristics of the applicants. [Footnote 50] Cf. Bakke, 438 U.S. at 438 U. S. 317-318; Johnson, supra Page 497 U. S. 598 at 480 U. S. 638. We disagree that the distress sale policy imposes an undue burden on nonminorities. By its terms, the policy may be invoked at the Commission's discretion only with respect to a small fraction of broadcast licenses -- those designated for revocation or renewal hearings to examine basic qualification issues -- and only when the licensee chooses to sell out at a distress price rather than to go through with the Page 497 U. S. 599 hearing. The distress sale policy is not a quota or fixed quantity set-aside. Indeed, the nonminority firm exercises control over whether a distress sale will ever occur at all, because the policy operates only where the qualifications of an existing licensee to continue broadcasting have been designated for hearing and no other applications for the station in question have been filed with the Commission at the time of the designation. See Clarification of Distress Sale Policy, 44 Radio Reg.2d (P & F) 479 (1978). Thus, a nonminority can prevent the distress sale procedures from ever being invoked by filing a competing application in a timely manner. [Footnote 51]In practice, distress sales have represented a tiny fraction -- less than four tenths of one percent -- of all broadcast sales since 1979. See Brief for Federal Communications Commission in No. 89-700, p. 44. There have been only 38 distress sales since the policy was commenced in 1978. See A. Barrett, Federal Communications Commission, Minority Employment and Ownership in the Communications Market: What's Ahead in the 90's?, p. 7 (Address to the Bay Area Black Page 497 U. S. 600 Media Conference, San Francisco, April 21, 1990). This means that, on average, only about .20 percent of renewal applications filed each year have resulted in distress sales since the policy was commenced in 1978. See 54 FCC Ann. Rep. 33 (1988). [Footnote 52] Nonminority firms are free to compete for the vast remainder of license opportunities available in a market that contains over 11,000 broadcast properties. Nonminorities can apply for a new station, buy an existing station, file a competing application against a renewal application of an existing station, or seek financial participation in enterprises that qualify for distress sale treatment. See Task Force Report, at 9-10. The burden on nonminority firms is at least as "relatively light" as that created by the program at issue in Fullilove, which set aside for minorities 10 percent of federal funds granted for local public works projects. 448 U.S. at 448 U. S. 484 (opinion of Burger, C.J.); see also id. at 448 U. S. 485, n. 72.IIIThe Commission's minority ownership policies bear the imprimatur of longstanding congressional support and direction, and are substantially related to the achievement of the important governmental objective of broadcast diversity. The judgment in Page 497 U. S. 601 No. 89-453 is affirmed, the judgment in No. 89-700 is reversed, and the cases are remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtMetro Broadcasting v. FCC, 497 U.S. 547 (1990)Metro Broadcasting, Inc. v.Federal Communications CommissionNos. 89-453, 89-700Argued March 28, 1990Decided June 27, 1990497 U.S. 547SyllabusThese cases consider the constitutionality of two minority preference policies adopted by the Federal Communications Commission (FCC). First, the FCC awards an enhancement for minority ownership and participation in management, which is weighed together with all other relevant factors in comparing mutually exclusive applications for licenses for new radio or television broadcast stations. Second, the FCC's so-called "distress sale" policy allows a radio or television broadcaster whose qualifications to hold a license have come into question to transfer that license before the FCC resolves the matter in a noncomparative hearing, but only if the transferee is a minority enterprise that meets certain requirements. The FCC adopted these policies in an attempt to satisfy its obligation under the Communications Act of 1934 to promote diversification of programming, taking the position that its past efforts to encourage minority participation in the broadcast industry had not resulted in sufficient broadcast diversity, and that this situation was detrimental not only to the minority audience but to all of the viewing and listening public. Metro Broadcasting, Inc., the petitioner in No. 89-453, sought review in the Court of Appeals of an FCC order awarding a new television license to Rainbow Broadcasting in a comparative proceeding, which action was based on the ruling that the substantial enhancement granted Rainbow because of its minority ownership outweighed factors favoring Metro. The court remanded the appeal for further consideration in light of the FCC's separate, ongoing Docket 86-484 inquiry into the validity of its minority ownership policies. Prior to completion of that inquiry, however, Congress enacted the FCC appropriations legislation for fiscal year 1988, which prohibited the FCC from spending any appropriated funds to examine or change its minority policies. Thus, the FCC closed its Docket 86-484 inquiry and reaffirmed its grant of the license to Rainbow, and the Court of Appeals affirmed. Shurberg Broadcasting of Hartford, Inc., one of the respondents in No. 89-700, Page 497 U. S. 548 sought review in the Court of Appeals of an FCC order approving Faith Center, Inc.'s distress sale of its television license to Astroline Communications Company Limited Partnership, a minority enterprise. Disposition of the appeal was delayed pending resolution of the Docket 86484 inquiry by the FCC, which, upon closing that inquiry as discussed supra, reaffirmed its order allowing the distress sale to Astroline. The court then invalidated the distress sale policy, ruling that it deprived Shurberg, a nonminority applicant for a license in the relevant market, of its right to equal protection under the Fifth Amendment.Held: The FCC policies do not violate equal protection, since they bear the imprimatur of longstanding congressional support and direction and are substantially related to the achievement of the important governmental objective of broadcast diversity. Pp. 497 U. S. 563-601.(a) It is of overriding significance in these cases that the minority ownership programs have been specifically approved -- indeed mandated -- by Congress. In light of that fact, this Court owes appropriate deference to Congress' judgment, see Fullilove v. Klutznick, 448 U. S. 448, 448 U. S. 472-478, 448 U. S. 490, 448 U. S. 491 (opinion of Burger, C.J.); id. at 448 U. S. 500-510, 448 U. S. 515-516, n. 14 (Powell, J., concurring); id. at 448 U. S. 517-520 (MARSHALL, J., concurring in judgment), and need not apply strict scrutiny analysis, see id. at 448 U. S. 474 (opinion of Burger, C.J.); id. at 448 U. S. 519 (MARSHALL, J., concurring in judgment). Benign race-conscious measures mandated by Congress -- even if those measures are not "remedial" in the sense of being designed to compensate victims of past governmental or societal discrimination -- are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives. Richmond v. J.A. Croson Co., 488 U. S. 469, distinguished and reconciled. Pp. 497 U. S. 563-566.(b) The minority ownership policies serve an important governmental objective. Congress and the FCC do not justify the policies strictly as remedies for victims of demonstrable discrimination in the communications media, but rather have selected them primarily to promote broadcast diversity. This Court has long recognized as axiomatic that broadcasting may be regulated in light of the rights of the viewing and listening audience, and that the widest possible dissemination of information from diverse and antagonistic sources is essential to the public welfare. Associated Press v. United States, 326 U. S. 1, 326 U. S. 20. Safeguarding the public's right to receive a diversity of views and information over the airwaves is therefore an integral component of the FCC's mission, serves important First Amendment values, and is, at the very least, an important governmental objective that is a sufficient basis for the policies in question. Pp. 497 U. S. 566-568. Page 497 U. S. 549(c) The minority ownership policies are substantially related to the achievement of the Government's interest in broadcast diversity. First, the FCC's conclusion that there is an empirical nexus between minority ownership and greater diversity, which is consistent with its longstanding view that ownership is a prime determinant of the range of programming available, is a product of its expertise and is entitled to deference. Second, by means of the recent appropriations legislation and by virtue of a long history of support for minority participation in the broadcasting industry, Congress has also made clear its view that the minority ownership policies advance the goal of diverse programming. Great weight must be given to the joint determination of the FCC and Congress. Pp. 497 U. S. 569-579.(d) The judgment that there is a link between expanded minority ownership and broadcast diversity does not rest on impermissible stereotyping. Neither Congress nor the FCC assumes that, in every case, minority ownership and management will lead to more minority-oriented programming or to the expression of a discrete "minority viewpoint" on the airwaves. Nor do they pretend that all programming that appeals to minorities can be labeled "minority" or that programming that might be so described does not appeal to nonminorities. Rather, they maintain simply that expanded minority ownership of broadcast outlets will, in the aggregate, result in greater broadcast diversity. This judgment is corroborated by a host of empirical evidence suggesting that an owner's minority status influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities, and has a special impact on the way in which images of minorities are presented. In addition, studies show that a minority owner is more likely to employ minorities in managerial and other important roles where they can have an impact on station policies. The FCC's policies are thus a product of analysis, rather than a stereotyped reaction based on habit. Cf. Fullilove, supra, 448 U.S. at 448 U. S. 604, n. 4. The type of reasoning employed by the FCC and Congress is not novel, but is utilized in many areas of the law, including the selection of jury venires on the basis of a fair cross section and the reapportionment of electoral districts to preserve minority voting strength. Pp. 497 U. S. 579-584.(e) The minority ownership policies are in other relevant respects substantially related to the goal of promoting broadcast diversity. The FCC adopted and Congress endorsed minority ownership preferences only after long study, painstaking consideration of all available alternatives, and the emergence of evidence demonstrating that race-neutral means had not produced adequate broadcasting diversity. Moreover, the FCC did not act precipitately in devising the policies, having undertaken Page 497 U. S. 550 thorough evaluations in 1960, 1971, and 1978 before adopting them. Furthermore, the considered nature of the FCC's judgment in selecting these particular policies is illustrated by the fact that it has rejected other more expansive types of minority preferences -- e.g., set-asides of certain frequencies for minority broadcasters. In addition, the minority ownership policies are aimed directly at the barriers that minorities face in entering the broadcasting industry. Thus, the FCC assigned a preference to minority status in the comparative licensing proceeding in order to compensate for a dearth of minority broadcasting experience. Similarly, the distress sale policy addresses the problem of inadequate access to capital by effectively lowering the sale price of existing stations and the problem of lack of information regarding license availability by providing existing licensees with an incentive to seek out minority buyers. The policies are also appropriately limited in extent and duration and subject to reassessment and reevaluation before renewal, since Congress has manifested its support for them through a series of appropriations acts of finite duration, and has continued to hold hearings on the subject of minority ownership. Provisions for administrative and judicial review also guarantee that the policies are applied correctly in individual cases and that there will be frequent opportunities to revisit their merits. Finally, the policies impose only slight burdens on nonminorities. Award of a preference contravenes no legitimate, firmly rooted expectation of competing applicants, since the limited number of frequencies available means that no one has First Amendment right to a license, and the granting of licenses requires consideration of public interest factors. Nor does the distress sale policy impose an undue burden on nonminorities, since it may be invoked only with respect to a small fraction of broadcast licenses, only when the licensee chooses to sell out at a low price rather than risk a hearing, and only when no competing application has been filed. It is not a quota or fixed quantity set-aside, and nonminorities are free to compete for the vast remainder of other available license opportunities. Pp. 497 U. S. 584-600.No. 89-453, 277 U.S.App.D.C. 134, 873 F.2d 347 (CADC 1989), affirmed and remanded; No. 89-700, 278 U.S.App.D.C. 24, 876 F.2d 902 (CADC 1989), reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 497 U. S. 601. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined, post, p. 497 U. S. 602. KENNEDY, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 497 U. S. 631. Page 497 U. S. 552

1985_85-225

JUSTICE STEVENS delivered the opinion of the Court.The question presented in this case is whether Congress, in either § 1395ff or § 1395ii of Title 42 of the United States Code, barred judicial review of regulations promulgated under Part B of the Medicare program.Respondents, who include an association of family physicians and several individual doctors, filed suit to challenge the validity of 42 CFR § 405.504(b) (1985), which authorizes the payment of benefits in different amounts for similar physicians' services. The District Court held that the regulation contravened several provisions of the statute governing the Medicare program:"There is no basis to justify the segregation of allopathic family physicians from all other types of physicians. Such segregation is not rationally related to any legitimate purpose of the Medicare statute. To lump MDs who are family physicians, but who have chosen not Page 476 U. S. 669 to become board certified family physicians for whatever motive, with chiropractors, dentists, and podiatrists for the purpose of determining Medicare reimbursement defies all reason."Michigan Academy of Family Physicians v. Blue Cross and Blue Shield of Michigan, 502 F. Supp. 751, 755 (ED Mich.1980). Because it ruled in favor of respondents on statutory grounds, the District Court did not reach their constitutional claims. See id. at 756. The Court of Appeals agreed with the District Court that the Secretary's regulation was "obvious[ly] inconsisten[t] with the plain language of the Medicare statute," and held that "this regulation is irrational and is invalid." Michigan Academy of Family Physicians v. Blue Cross and Blue Shield of Michigan, 728 F.2d 326, 332 (CA6 1984). Like the District Court, it too declined to reach respondents' constitutional claims. See id. at 332, n. 5.The Secretary of Health and Human Services has not sought review of the decision on the merits invalidating the regulation. Instead, he renews the contention, rejected by both the District Court and the Court of Appeals, that Congress has forbidden judicial review of all questions affecting the amount of benefits payable under Part B of the Medicare program. Because the question is important and has divided the Courts of Appeals, [Footnote 1] we granted the petition for a writ of certiorari. [Footnote 2] We now affirm. Page 476 U. S. 670IWe begin with the strong presumption that Congress intends judicial review of administrative action. From the beginning,"our cases [have established] that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress."Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 140 (1967) (citing cases). See generally L. Jaffe, Judicial Control of Administrative Action 339-353 (1965). In Marbury v. Madison, 1 Cranch 137, 5 U. S. 163 (1803), a case itself involving review of executive action, Chief Justice Marshall insisted that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws." Later, in the lesser known but nonetheless important case of United States v. Nourse, 9 Pet. 8, 34 U. S. 28-29 (1835), the Chief Justice noted the traditional observance of this right and laid the foundation for the modern presumption of judicial review:"It would excite some surprise if, in a government of laws and of principle, furnished with a department whose appropriate duty it is to decide questions of right, not only between individuals, but between the government and individuals; a ministerial officer might, at his discretion, issue this powerful process . . . leaving to the debtor no remedy, no appeal to the laws of his country, if he should believe the claim to be unjust. But this anomaly does not exist; this imputation cannot be cast on the legislature of the United States."Committees of both Houses of Congress have endorsed this view. In undertaking the comprehensive rethinking of the place of administrative agencies in a regime of separate and Page 476 U. S. 671 divided powers that culminated in the passage of the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, 701-706, the Senate Committee on the Judiciary remarked:"Very rarely do statutes withhold judicial review. It has never been the policy of Congress to prevent the administration of its own statutes from being judicially confined to the scope of authority granted or to the objectives specified. Its policy could not be otherwise, for in such a case, statutes would in effect be blank checks drawn to the credit of some administrative officer or board."S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945). Accord, H.R.Rep. No.1980, 79th Cong., 2d Sess., 41 (1946). The Committee on the Judiciary of the House of Representatives agreed that Congress ordinarily intends that there be judicial review, and emphasized the clarity with which a contrary intent must be expressed:"The statutes of Congress are not merely advisory when they relate to administrative agencies, any more than in other cases. To preclude judicial review under this bill, a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review."Ibid. Taking up the language in the House Committee Report, Justice Harlan reaffirmed the Court's holding in Rusk v. Cort, 369 U. S. 367, 369 U. S. 379-380 (1962), that"only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review."Abbott Laboratories v. Gardner, 387 U.S. at 387 U. S. 141 (citations omitted). This standard has been invoked time and again when Page 476 U. S. 672 considering whether the Secretary has discharged "the heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review of his decision," Dunlop v. Bachowski, 421 U. S. 560, 421 U. S. 567 (1975). [Footnote 3]Subject to constitutional constraints, Congress can, of course, make exceptions to the historic practice whereby Page 476 U. S. 673 courts review agency action. The presumption of judicial review is, after all, a presumption, and "like all presumptions used in interpreting statutes, may be overcome by," inter alia, "specific language or specific legislative history that is a reliable indicator of congressional intent," or a specific congressional intent to preclude judicial review that is "fairly discernible' in the detail of the legislative scheme." Block v. Community Nutrition Institute, 467 U. S. 340, 467 U. S. 349, 467 U. S. 351 (1984). [Footnote 4]In this case, the Government asserts that two statutory provisions remove the Secretary's regulation from review under the grant of general federal question jurisdiction found in 28 U.S.C. § 1331. First, the Government contends that 42 U.S.C. § 1395ff(b) (1982 ed., Supp. II), which authorizes "Appeal by individuals," impliedly forecloses administrative or judicial review of any action taken under Part B of the Medicare program by failing to authorize such review while simultaneously authorizing administrative and judicial review of "any determination . . . as to . . . the amount of benefits under part A," § 1395ff(b)(1)(C). Second, the Government asserts that 42 U.S.C. § 1395ii (1982 ed., Supp. II), which makes applicable 42 U.S.C. § 405(h) (1982 ed., Supp. II), of the Social Security Act to the Medicare program, expressly precludes all administrative or judicial review not otherwise provided in that statute. We find neither argument persuasive. Page 476 U. S. 674IISection 1395ff on its face is an explicit authorization of judicial review, not a bar. [Footnote 5] As a general matter,"'[t]he mere fact that some acts are made reviewable should not suffice to support an implication of exclusion as to others. The right to review is too important to be excluded on such slender and indeterminate evidence of legislative intent.'"Abbott Laboratories v. Gardner, 387 U.S. at 141 (quoting L. Jaffe, Judicial Control of Administrative Action 357 (1965)). See Barlow v. Collins, 397 U. S. 159, 397 U. S. 166 (1970); Stark v. Wickard, 321 U. S. 288, 321 U. S. 309 (1944).In the Medicare program, however, the situation is somewhat more complex. Under Part B of that program, which is at issue here, the Secretary contracts with private health insurance carriers to provide benefits for which individuals voluntarily remit premiums. This optional coverage, which is federally subsidized, supplements the mandatory institutional Page 476 U. S. 675 health benefits (such as coverage for hospital expenses) provided by Part A. Subject to an amount-in-controversy requirement, individuals aggrieved by delayed or insufficient payment with respect to benefits payable under Part B are afforded an "opportunity for a fair hearing by the carrier," 42 U.S.C. § 1395u(b)(3)(C) (emphasis added); in comparison, and subject to a like amount-in-controversy requirement, a similarly aggrieved individual under Part A is entitled "to a hearing thereon by the Secretary . . . and to judicial review," 42 U.S.C. §§ 1395ff(b)(1)(C), (b)(2) (1982 ed. and Supp. II). "In the context of the statute's precisely drawn provisions," we held in United States v. Erika, Inc., 456 U. S. 201, 456 U. S. 208 (1982), that the failure"to authorize further review for determinations of the amount of Part B awards . . . provides persuasive evidence that Congress deliberately intended to foreclose further review of such claims."Not limiting our consideration to the statutory text, we investigated the legislative history which "confirm[ed] this view," ibid., and disclosed a purpose to "avoid overloading the courts'" with "`trivial matters,'" a consequence which would "`unduly ta[x]'" the federal court system with "`little real value'" to be derived by participants in the program, id. at 456 U. S. 210, n. 13 (quoting 118 Cong.Rec. 33992 (1972) (remarks of Sen. Bennett)).Respondents' federal court challenge to the validity of the Secretary's regulation is not foreclosed by § 1395ff as we construed that provision in Erika. The reticulated statutory scheme, which carefully details the forum and limits of review of "any determination . . . of . . . the amount of benefits under part A," 42 U.S.C. § 1395ff(b)(1)(C) (1982 ed., Supp. II), and of the "amount of . . . payment" of benefits under Part B, 42 U.S.C. § 1395u(b)(3)(C), simply does not speak to challenges mounted against the method by which such amounts are to be determined, rather than the determinations themselves. As the Secretary has made clear, "the legality, constitutional or otherwise, of any provision of Page 476 U. S. 676 the Act or regulations relevant to the Medicare Program" is not considered in a "fair hearing" held by a carrier to resolve a grievance related to a determination of the amount of a Part B award. [Footnote 6] As a result, an attack on the validity of a regulation is not the kind of administrative action that we described in Erika as an "amount determination" which decides "the amount of the Medicare payment to be made on a particular claim" and with respect to which the Act impliedly denies judicial review. 456 U.S. at 456 U. S. 208.That Congress did not preclude review of the method by which Part B awards are computed (as opposed to the computation) is borne out by the very legislative history we found persuasive in Erika. The Senate Committee Report on the original 1965 legislation reveals an intention to preclude "judicial review of a determination concerning the amount of benefits under part B where claims will probably Page 476 U. S. 677 be for substantially smaller amounts than under part A." S.Rep. No. 404, 89th Cong., 1st Sess., 54-55 (1965) (emphasis added). The Report makes plain that "carriers, not the Secretary, would review beneficiary complaints regarding the amount of benefits." Ibid. (emphasis added). Accord, H.R.Rep. No. 213, 89th Cong., 1st Sess., 47 (1965) ("Under the supplementary plan [Part B], carriers, not the Secretary, would review beneficiary complaints regarding the amount of benefits" (emphasis added)). The legislative history of the pertinent 1972 amendment likewise reveals that judicial review was precluded only as to controversies regarding determinations of amounts of benefits. The Conference Report on the 1972 amendment explains that"there is no authorization for an appeal to the Secretary or for judicial review on matters solely involving amounts of benefits under Part B."H.R.Conf.Rep. No. 92-1605, p. 61 (1972) (emphasis added). Senator Bennett's introductory explanation to the amendment confirms that preclusion of judicial review of Part B awards -- designed "to avoid overloading the courts with quite minor matters" -- embraced only "decisions on a claim for payment for a given service." 118 Cong.Rec. 33992 (1972). The Senator feared that,"[i]f judicial review is made available where any claim is denied, as some court decisions have held, the resources of the Federal court system would be unduly taxed and little real value would be derived by the enrollees. The proposed amendment would merely clarify the original intent of the law and prevent the overloading of the courts with trivial matters because the intent is considered unclear."Ibid. As we found in Erika, 456 U.S. at 456 U. S. 206, Congress has precluded judicial review only "of adverse hearing officer determinations of the amount of Part B payments." [Footnote 7] Page 476 U. S. 678Careful analysis of the governing statutory provisions and their legislative history thus reveals that Congress intended to bar judicial review only of determinations of the amount of benefits to be awarded under Part B. Congress delegated this task to carriers who would finally determine such matters in conformity with the regulations and instructions of the Secretary. We conclude, therefore, that those matters which Congress did not leave to be determined in a "fair hearing" conducted by the carrier -- including challenges to the validity of the Secretary's instructions and regulations -- are not impliedly insulated from judicial review by 42 U.S.C. § 1395ff (1982 ed. and Supp. II).IIIIn light of Congress' express provision for carrier review of millions of what it characterized as "trivial" claims, it is implausible to think it intended that there be no forum to adjudicate statutory and constitutional challenges to regulations promulgated by the Secretary. The Government nevertheless maintains that this is precisely what Congress intended to accomplish in 42 U.S.C. § 1395ii (1982 ed., Supp. II). That section states that 42 U.S.C. § 405(h) (1982 ed., Supp. II), along with a string citation of 10 other provisions of Title II of the Social Security Act, "shall also apply with respect to this subchapter to the same extent as they are applicable with respect to subchapter II of this chapter." Section 405(h), in turn, reads in full as follows:"(h) Finality of Secretary's decision "Page 476 U. S. 679"The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter."The Government contends that the third sentence of § 406(h) by its terms prevents any resort to the grant of general federal question jurisdiction contained in 28 U.S.C. § 1331. [Footnote 8] It finds support for this construction in Weinberger v. Salfi, 422 U. S. 749, 422 U. S. 756-762 (1975), and Heckler v. Ringer, 466 U. S. 602, 466 U. S. 614-616, 466 U. S. 620-626 (1984). Respondents counter that the dispositions in these two cases are consistent with the view that Congress' purpose was to make clear that whatever specific procedures it provided for judicial review of final action by the Secretary were exclusive, and could not be circumvented by resort to the general jurisdiction of the federal courts. [Footnote 9] Cf. Weinberger v. Salfi, 422 U.S. at 422 U. S. 764-765; Heckler v. Ringer, 466 U.S. at 466 U. S. 621-622. Page 476 U. S. 680Whichever may be the better reading of Salfi and Ringer, we need not pass on the meaning of § 405(h) in the abstract to resolve this case. Section 405(h) does not apply on its own terms to Part B of the Medicare program, but is instead incorporated mutatis mutandis by § 1395ii. The legislative history of both the statute establishing the Medicare program and the 1972 amendments thereto provides specific evidence of Congress' intent to foreclose review only of "amount determinations" -- i.e., those "quite minor matters," 118 Cong.Rec. 33992 (1972) (remarks of Sen. Bennett), remitted finally and exclusively to adjudication by private insurance carriers in a "fair hearing." [Footnote 10] By the same token, matters which Congress did not delegate to private carriers, such as challenges to the validity of the Secretary's instructions and regulations, are cognizable in courts of law. In the face of this persuasive evidence of legislative intent, we will not indulge the Government's assumption that Congress contemplated review by carriers of "trivial" monetary claims, ibid., but intended no review at all of substantial statutory and constitutional challenges to the Secretary's administration of Part B of the Medicare program. [Footnote 11] This is an extreme position, and one Page 476 U. S. 681 we would be most reluctant to adopt without "a showing of clear and convincing evidence,'" Abbott Laboratories v. Gardner, 387 U.S. at 387 U. S. 141, to overcome the "strong presumption that Congress did not mean to prohibit all judicial review" of executive action, Dunlop v. Bachowski, 421 U.S. at 421 U. S. 567. We ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command. That presumption has not been surmounted here. [Footnote 12] Page 476 U. S. 682The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtBowen v. Academy of Family Physicians, 476 U.S. 667 (1986)Bowen v. Michigan Academy of Family PhysiciansNo. 85-225Argued January 22, 1986Decided June 9, 1986476 U.S. 667SyllabusRespondents, who include an association of family physicians and several individual doctors, filed suit in Federal District Court to challenge the validity of a regulation that was promulgated under Part B of the Medicare program and that authorizes the payment of benefits in different amounts for similar physicians' services. Holding that the regulation contravened several statutory provisions governing the Medicare program, the court rejected the Secretary of Health and Human Services' contention (the question presented in this Court) that Congress has forbidden judicial review of all questions affecting the amount of benefits payable under Part B of the Medicare program. The Court of Appeals agreed.Held: In neither 42 U.S.C. § 1395ff (1982 ed. and Supp. II) nor § 1395ii (1982 ed., Supp. II), has Congress barred judicial review of regulations promulgated under Part B of the Medicare program. Pp. 476 U. S. 670-682.(a) There is a strong presumption that Congress intends judicial review of administrative action. Only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review. Pp. 476 U. S. 670-673.(b) The provisions of § 1395ff(b) that authorize administrative and judicial review of determinations as to the amount of benefits under Part A of the Medicare program do not impliedly foreclose judicial review of Part B regulations. The reticulated statutory scheme, which details the forum and limits of review of determinations of the amounts of benefits payable under Parts A and B, simply does not speak to challenges as to the method by which such amounts are to be determined, rather than the determinations themselves. That Congress did not preclude review of the method by which Part B awards are computed (as opposed to the computation) is supported by the legislative history. United States v. Erika, Inc., 456 U. S. 201, explained. Pp. 476 U. S. 674-678.(c) Nor does § 1395ii, which states that 42 U.S.C. § 405(h) (1982 ed., Supp. II), along with other provisions of the Social Security Act, shall be applicable to the Medicare program, preclude judicial review here. Regardless of the abstract meaning of § 405(h), which prohibits certain actions Page 476 U. S. 668 against the Government or its officers, that section does not apply on its own terms to Part B, but is instead incorporated mutatis mutandis by § 1395ii. The legislative history of the Medicare program provides specific evidence of Congress' intent to foreclose review only of "amount determinations," not of substantial statutory and constitutional challenges to the Secretary's administration of Part B. Pp. 476 U. S. 678-681.757 F.2d 91, affirmed.STEVENS, J., delivered the opinion of the Court, in which all other Members joined except REHNQUIST, J., who took no part in the consideration or decision of the case.

1995_94-805

Syllabusunconstitutional racial gerrymandering is inescapably corroborated by the evidence. Pp. 973-976.3. Districts 18, 29, and 30 are not narrowly tailored to serve a compelling state interest. pp. 976-983.(a) Creation of the three districts was not justified by a compelling state interest in complying with the "results" test of VRA § 2(b). It may be assumed without deciding that such compliance can be a compelling state interest. See, e. g., Shaw v. Hunt, ante, at 915 (Shaw II). States attempting to comply with § 2 retain discretion to apply traditional districting principles and are entitled to a limited degree of leeway. But a district drawn in order to satisfy § 2 must not subordinate traditional districting principles to race substantially more than is reasonably necessary. The districts at issue fail this test, since all three are bizarrely shaped and far from compact, and those characteristics are predominantly attributable to gerrymandering that was racially motivated and/or achieved by the use of race as a proxy. Appellants Lawson et al. misinterpret Miller, supra, at 913, when they argue that bizarre shaping and noncompactness go only to motive and are irrelevant to the narrow tailoring inquiry. Also unavailing is the United States' contention that insofar as bizarreness and noncompactness are necessary to achieve the State's compelling interest in compliance with § 2 while simultaneously achieving other legitimate redistricting goals, the narrow tailoring requirement is satisfied. The bizarre shaping and noncompactness of the districts in question were predominantly attributable to racial, not political, manipulation, while the Government's argument addresses the case of an otherwise compact majority-minority district that is misshapen by predominantly nonracial, political manipulation. Pp. 976-981.(b) The district lines at issue are not justified by a compelling state interest in ameliorating the effects of racially polarized voting attributable to Texas' long history of discrimination against minorities in electoral processes. Among the conditions that must be satisfied to render an interest in remedying discrimination compelling is the requirement that the discrimination be specific and "identified." Shaw II, ante, at 910. Here, the only current problem that appellants cite as in need of remediation is alleged vote dilution as a consequence of racial bloc voting, the same concern that underlies their VRA § 2 compliance defense. Once the correct standard is applied, the fact that these districts are not narrowly tailored to comply with § 2 forecloses this line of defense. Pp. 981-982.(c) Creation of District 18 (only) was not justified by a compelling state interest in complying with VRA § 5, which seeks to prevent voting-procedure changes leading to a retrogression in the position of955racial minorities with respect to their effective exercise of the electoral franchise. See, e. g., Miller, 515 U. S., at 926. The problem with appellants' contention that this "nonretrogression" principle applies because Harris County previously contained a congressional district in which Mrican-American voters always succeeded in selecting MricanAmerican representatives is that it seeks to justify not maintenance, but substantial augmentation, of the Mrican-American population percentage, which has grown from 40.8% in the previous district to 50.9% in District 18. Nonretrogression is not a license for the State to do whatever it deems necessary to ensure continued electoral success; it merely mandates that the minority's opportunity to elect representatives of its choice not be diminished, directly or indirectly, by the State's actions. District 18 is not narrowly tailored to the avoidance of § 5 liability. See Shaw v. Reno, 509 U. S. 630, 655. Pp. 982-983.4. Various of the dissents' arguments, none of which address the specifics of this suit, and which have been rebutted in other decisions, must be rejected. Pp. 983-986.JUSTICE THOMAS, joined by JUSTICE SCALIA, concluded that application of strict scrutiny in this suit was never a close question, since this Court's decisions have effectively resolved that the intentional creation of majority-minority districts, by itself, is sufficient to invoke such scrutiny. See, e. g., Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 227 (strict scrutiny applies to all government classifications based on race); Miller v. Johnson, 515 U. S. 900, 918-919 (Georgia's concession that it intentionally created majority-minority districts was sufficient to show that race was a predominant, motivating factor in its redistricting). De Witt v. Wilson, 515 U. S. 1170, distinguished. Application of strict scrutiny is required here because Texas has readily admitted that it intentionally created majority-minority districts and that those districts would not have existed but for its affirmative use of racial demographics. Assuming that the State has asserted a compelling state interest, its redistricting attempts were not narrowly tailored to achieve that interest. Pp.999-1003.O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and KENNEDY, J., joined. O'CONNOR, J., also filed a separate concurring opinion, post, p. 990. KENNEDY, J., filed a concurring opinion, post, p. 996. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined, post, p. 999. STEVENS, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 1003. SOUTER, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 1045.956Opinion of O'CONNOR, J.Javier Aguilar, Special Assistant Attorney General of Texas, argued the cause for appellants in No. 94-805. With him on the briefs were Dan Morales, Attorney General, Jorge Vega, First Assistant Attorney General, Richard E. Gray II I, and Roger Moore.Deputy Solicitor General Bender argued the cause for the United States in No. 94-988. With him on the briefs were Solicitor General Days, Assistant Attorney General Patrick, Irving L. Gornstein, and Steven H. Rosenbaum.Penda D. Hair argued the cause and filed briefs for appellants in No. 94-806. With her on the briefs were Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, Antonia Hernandez, Anthony E. Chavez, Carmen Rumbaut, and Lawrence Boz.Daniel E. Troy argued the cause for appellees in all cases.With him on the brief were Paul Loy Hurd, Bert W Rein, and Michael E. Toner.tJUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and JUSTICE KENNEDY join.This is the latest in a series of appeals involving racial gerrymandering challenges to state redistricting efforts in the wake of the 1990 census. See Shaw v. Hunt, ante, p. 899 (Shaw II); United States v. Hays, 515 U. S. 737 (1995); Miller v. Johnson, 515 U. S. 900 (1995); Shaw v. Reno, 509 U. S. 630 (1993) (Shaw I). That census revealed a population in-tPaul M. Smith, Donald B. Verrilli, Jr., and J. Gerald Hebert filed a brief for the Democratic National Committee et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the Pacific Legal Foundation by Anthony T. Caso and Deborah J. La Fetra; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.Briefs of amicus curiae were filed for the Institute for Justice by William H. Mellor III, Clint Bolick, and Scott G. Bullock; and for A. J. Pate by William C. Owens, Jr.957crease, largely in urban minority populations, that entitled Texas to three additional congressional seats. In response, and with a view to complying with the Voting Rights Act of 1965 (VRA), 79 Stat. 437, as amended, 42 U. S. C. § 1973 et seq., the Texas Legislature promulgated a redistricting plan that, among other things, created District 30, a new majority-African-American district in Dallas County; created District 29, a new majority-Hispanic district in and around Houston in Harris County; and reconfigured District 18, which is adjacent to District 29, to make it a majorityAfrican-American district. The Department of Justice precleared that plan under VRA § 5 in 1991, and it was used in the 1992 congressional elections.The plaintiffs, six Texas voters, challenged the plan, alleging that 24 of Texas' 30 congressional districts constitute racial gerrymanders in violation of the Fourteenth Amendment. The three-judge United States District Court for the Southern District of Texas held Districts 18, 29, and 30 unconstitutional. Vera v. Richards, 861 F. Supp. 1304 (1994). The Governor of Texas, private intervenors, and the United States (as intervenor) now appeal. We noted probable jurisdiction. 515 U. S. 1172 (1995). Finding that, under this Court's decisions in Shaw I and Miller, the district lines at issue are subject to strict scrutiny, and that they are not narrowly tailored to serve a compelling state interest, we affirm.IAs a preliminary matter, the State and private appellants contest the plaintiffs' standing to challenge these districts. Plaintiff Chen resides in Texas congressional District 25, and has not alleged any specific facts showing that he personally has been subjected to any racial classification. Under our decision in Hays, he lacks standing. See Hays, supra, at 744-745. But plaintiffs Blum and Powers are residents of District 18, plaintiffs Thomas and Vera are residents of District 29, and plaintiff Orcutt is a resident of District 30. We958Opinion of O'CONNOR, J.stated in Hays that "[w]here a plaintiff resides in a racially gerrymandered district, ... the plaintiff has been denied equal treatment because of the legislature's reliance on racial criteria, and therefore has standing to challenge the legislature's action." Ibid.; accord, Miller, supra, at 910-911. Under this rule, these plaintiffs have standing to challenge Districts 18, 29, and 30.IIWe must now determine whether those districts are subject to strict scrutiny. Our precedents have used a variety of formulations to describe the threshold for the application of strict scrutiny. Strict scrutiny applies where "redistricting legislation ... is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles," Shaw I, supra, at 642, or where "race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines," Miller, 515 U. S., at 913, and "the legislature subordinated traditional race-neutral districting principles ... to racial considerations," id., at 916. See also id., at 928 (O'CONNOR, J., concurring) (strict scrutiny only applies where "the State has relied on race in substantial disregard of customary and traditional districting practices").Strict scrutiny does not apply merely because redistricting is performed with consciousness of race. See Shaw I, supra, at 646. Nor does it apply to all cases of intentional creation of majority-minority districts. See De Witt v. Wilson, 856 F. Supp. 1409 (ED Cal. 1994) (strict scrutiny did not apply to an intentionally created compact majority-minority district), summarily aff'd, 515 U. S. 1170 (1995); cf. Shaw I, supra, at 649 (reserving this question). Electoral district lines are "facially race neutral," so a more searching inquiry is necessary before strict scrutiny can be found applicable in redistricting cases than in cases of "classifications based explicitly on race." See Adarand Constructors, Inc. v. Pena, 515 U. S.959200,213 (1995); cf. post, at 999-1000, 1002-1003 (THOMAS, J., concurring in judgment) (assimilating our redistricting cases to Adarand). For strict scrutiny to apply, the plaintiffs must prove that other, legitimate districting principles were "subordinated" to race. Miller, 515 U. S., at 916. By that, we mean that race must be "the predominant factor motivating the legislature's [redistricting] decision." Ibid. (emphasis added). We thus differ from JUSTICE THOMAS, who would apparently hold that it suffices that racial considerations be a motivation for the drawing of a majority-minority district. See post, at 1002.The present suit is a mixed motive suit. The appellants concede that one of Texas' goals in creating the three districts at issue was to produce majority-minority districts, but they also cite evidence that other goals, particularly incumbency protection (including protection of "functional incumbents," i. e., sitting members of the Texas Legislature who had declared an intention to run for open congressional seats), also played a role in the drawing of the district lines. The record does not reflect a history of" 'purely race-based'" districting revisions. Cf. Miller, supra, at 918 (emphasis added). A careful review is, therefore, necessary to determine whether these districts are subject to strict scrutiny. But review of the District Court's findings of primary fact and the record convinces us that the District Court's determination that race was the "predominant factor" in the drawing of each of the districts must be sustained.We begin with general findings and evidence regarding the redistricting plan's respect for traditional districting principles, the legislators' expressed motivations, and the methods used in the redistricting process. The District Court began its analysis by rejecting the factual basis for appellants' claim that Texas' challenged "districts cannot be unconstitutionally bizarre in shape because Texas does not have and never has used traditional redistricting principles such as natural geographical boundaries, contiguity, compactness,960Opinion of O'CONNOR, J.and conformity to political subdivisions." 861 F. Supp., at 1333. The court instead found that "generally, Texas has not intentionally disregarded traditional districting criteria," and that only one pre-1991 congressional district in Texas was comparable in its irregularity and noncompactness to the three challenged districts. Id., at 1334. The court also noted that "compactness as measured by an 'eyeball' approach was much less important," id., at 1313, n. 9, in the 1991 plan, App. 144, than in its predecessor, the 1980 Texas congressional districting plan, id., at 138, and that districts were especially irregular in shape in the Dallas and Harris County areas where the challenged districts are located, see 861 F. Supp., at 1313, n. 9.These findings comport with the conclusions of an instructive study that attempted to determine the relative compactness of districts nationwide in objective, numerical terms. That study gave Texas' 1980 districting plan a roughly average score for the compactness and regularity of its district shapes, but ranked its 1991 plan among the worst in the Nation. See Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 571573, table 6 (1993). The same study ranked Districts 18, 29, and 30 among the 28 least regular congressional districts nationwide. See id., at 565, table 3. Our own review gives us no reason to disagree with the District Court that the districts at issue "have no integrity in terms of traditional, neutral redistricting criteria," 861 F. Supp., at 1339.The District Court also found substantial direct evidence of the legislature's racial motivations. The State's submission to the Department of Justice for preclearance under VRA § 5 reports a consensus within the legislature that the three new congressional districts"'should be configured in such a way as to allow members of racial, ethnic, and language minorities to elect Congressional representatives. Accordingly, the three961new districts include a predominantly black district drawn in the Dallas County area [District 30] and predominantly Hispanic districts in the Harris County area [District 29] and in the South Texas region. In addition to creating the three new minority districts, the proposed Congressional redistricting plan increases the black voting strength of the current District 18 (Harris County) by increasing the population to assure that the black community may continue to elect a candidate of its choice.'" Id., at 1315 (quoting Narrative of Voting Rights Act Considerations in Affected Districts, reprinted in App. 104-105).The appellants also conceded in this litigation that the three districts at issue "were created for the purpose of enhancing the opportunity of minority voters to elect minority representatives to Congress." 861 F. Supp., at 1337. And testimony of individual state officials confirmed that the decision to create the districts now challenged as majority-minority districts was made at the outset of the process and never seriously questioned.The means that Texas used to make its redistricting decisions provides further evidence of the importance of race. The primary tool used in drawing district lines was a computer program called "REDAPPL." REDAPPL permitted redistricters to manipulate district lines on computer maps, on which racial and other socioeconomic data were superimposed. At each change in configuration of the district lines being drafted, REDAPPL displayed updated racial composition statistics for the district as drawn. REDAPPL contained racial data at the block-by-block level, whereas other data, such as party registration and past voting statistics, were only available at the level of voter tabulation districts (which approximate election precincts). The availability and use of block-by-block racial data was unprecedented; before the 1990 census, data were not broken down beyond the census tract level. See App. 123. By providing uniquely962Opinion of O'CONNOR, J.detailed racial data, REDAPPL enabled districters to make more intricate refinements on the basis of race than on the basis of other demographic information. The District Court found that the districters availed themselves fully of that opportunity:"In numerous instances, the correlation between race and district boundaries is nearly perfect .... The borders of Districts 18, 29, and 30 change from block to block, from one side of the street to the other, and traverse streets, bodies of water, and commercially developed areas in seemingly arbitrary fashion until one realizes that those corridors connect minority populations." 861 F. Supp., at 1336.These findings-that the State substantially neglected traditional districting criteria such as compactness, that it was committed from the outset to creating majority-minority districts, and that it manipulated district lines to exploit unprecedentedly detailed racial data-together weigh in favor of the application of strict scrutiny. We do not hold that any one of these factors is independently sufficient to require strict scrutiny. The Constitution does not mandate regularity of district shape, see Shaw I, 509 U. S., at 647, and the neglect of traditional districting criteria is merely necessary, not sufficient. For strict scrutiny to apply, traditional districting criteria must be subordinated to race. Miller, 515 U. S., at 916. Nor, as we have emphasized, is the decision to create a majority-minority district objectionable in and of itself. The direct evidence of that decision is not, as JusTICE STEVENS suggests, post, at 1024, "the real key" to our decision; it is merely one of several essential ingredients. Nor do we "condemn state legislation merely because it was based on accurate information." Post, at 1031, n. 28. The use of sophisticated technology and detailed information in the drawing of majority-minority districts is no more objectionable than it is in the drawing of majority-majority dis-963tricts. But, as the District Court explained, the direct evidence of racial considerations, coupled with the fact that the computer program used was significantly more sophisticated with respect to race than with respect to other demographic data, provides substantial evidence that it was race that led to the neglect of traditional districting criteria here. We must therefore consider what role other factors played in order to determine whether race predominated.Several factors other than race were at work in the drawing of the districts. Traditional districting criteria were not entirely neglected: Districts 18 and 29 maintain the integrity of county lines; each of the three districts takes its character from a principal city and the surrounding urban area; and none of the districts is as widely dispersed as the North Carolina district held unconstitutional in Shaw II, ante, p. 899. (These characteristics are, however, unremarkable in the context of large, densely populated urban counties.) More significantly, the District Court found that incumbency protection influenced the redistricting plan to an unprecedented extent:"[A]s enacted in Texas in 1991, many incumbent protection boundaries sabotaged traditional redistricting principles as they routinely divided counties, cities, neighborhoods, and regions. For the sake of maintaining or winning seats in the House of Representatives, Congressmen or would-be Congressmen shed hostile groups and potential opponents by fencing them out of their districts. The Legislature obligingly carved out districts of apparent supporters of incumbents, as suggested by the incumbents, and then added appendages to connect their residences to those districts. The final result seems not one in which the people select their representatives, but in which the representatives have selected the people." 861 F. Supp., at 1334 (citations and footnotes omitted).964Opinion of O'CONNOR, J.See also id., at 1317-1318 (describing specific evidence of incumbency protection efforts statewide). This finding receives inferential support from the fact that all but one of Texas' 27 incumbents won in the 1992 elections. See id., at 1318. And the appellants point to evidence that in many cases, race correlates strongly with manifestations of community of interest (for example, shared broadcast and print media, public transport infrastructure, and institutions such as schools and churches) and with the political data that are vital to incumbency protection efforts, raising the possibility that correlations between racial demographics and district lines may be explicable in terms of nonracial motivations. For example, a finding by a district court that district lines were drawn in part on the basis of evidence (other than racial data) of where communities of interest existed might weaken a plaintiff's claim that race predominated in the drawing of district lines. Cf. post, at 1049 (SOUTER, J., dissenting) (recognizing the legitimate role of communities of interest in our system of representative democracy).Strict scrutiny would not be appropriate if race-neutral, traditional districting considerations predominated over racial ones. We have not subjected political gerrymandering to strict scrutiny. See Davis v. Bandemer, 478 U. S. 109, 132 (1986) (White, J., plurality opinion) ("[U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole"); id., at 147 (O'CONNOR, J., concurring in judgment) ("[P]urely political gerrymandering claims" are not justiciable). And we have recognized incumbency protection, at least in the limited form of "avoiding contests between incumbent[s]," as a legitimate state goal. See Karcher v. Daggett, 462 U. S. 725, 740 (1983); White v. Weiser, 412 U. S. 783, 797 (1973); Burns v. Richardson, 384 U. S. 73, 89, n. 16 (1966); cf. Gaffney v. Cummings, 412 U. S. 735, 751-754, and 752, n. 18 (1973) (State may draw irregular district lines in order965to allocate seats proportionately to major political parties). Because it is clear that race was not the only factor that motivated the legislature to draw irregular district lines, we must scrutinize each challenged district to determine whether the District Court's conclusion that race predominated over legitimate districting considerations, including incumbency, can be sustained.AThe population of District 30 is 50% African-American and 17.1 % Hispanic. Fifty percent of the district's population is located in a compact, albeit irregularly shaped, core in south Dallas, which is 69% African-American. But the remainder of the district consists of narrow and bizarrely shaped tentacles-the State identifies seven "segments"-extending primarily to the north and west. See App. 335; see also M. Barone & G. Ujifusa, Almanac of American Politics 1996, p. 1277 (1995) (describing the district). Over 98% of the district's population is within Dallas County, see App. 118, but it crosses two county lines at its western and northern extremities. Its western excursion into Tarrant County grabs a small community that is 61.9% African-American, id., at 331; its northern excursion into Collin County occupies a hook-like shape mapping exactly onto the only area in the southern half of that county with a combined AfricanAmerican and Hispanic percentage population in excess of 50%, id., at 153. The District Court's description of the district as a whole bears repeating:"The district sprawls throughout Dallas County, deliberately excludes the wealthy white neighborhoods of Highland Park and University Park and extends fingers into Collin County, which include the outermost suburbs of Dallas. In Collin County, the district picks up a small African-American neighborhood. The district extends into Tarrant County only to pick up a small border area with a high African-American concentration. It966Opinion of O'CONNOR, J.also reaches out to claim Hamilton Park, an affluent African-American neighborhood surrounded by whites. Part of the district runs along Trinity River bottom, using it to connect dispersed minority population. Numerous [voter tabulation districts] were split in order to achieve the population mix required for the district." ... It is at least 25 miles wide and 30 miles long." 861 F. Supp., at 1337-1338.See also Appendix A to this opinion (outline of District 30).Appellants do not deny that District 30 shows substantial disregard for the traditional districting principles of compactness and regularity, or that the redistricters pursued unwaveringly the objective of creating a majority-AfricanAmerican district. But they argue that its bizarre shape is explained by efforts to unite communities of interest in a single district and, especially, to protect incumbents.Appellants highlight the facts that the district has a consistently urban character and has common media sources throughout, and that its tentacles include several major transportation lines into the city of Dallas. These factors, which implicate traditional districting principles, do correlate to some extent with the district's layout. But we see no basis in the record for displacing the District Court's conclusion that race predominated over them, particularly in light of the court's findings that the State's supporting data were not "available to the Legislature in any organized fashion before District 30 was created," 861 F. Supp., at 1338, and that they do not "differentiate the district from surrounding areas," ibid., with the same degree of correlation to district lines that racial data exhibit, see App. 150. In reaching that conclusion, we do not, as JUSTICE STEVENS fears, require States engaged in redistricting to compile "a comprehensive administrative record," post, at 1026 (STEVENS, J., dissenting), and we do not dismiss facts not explicitly mentioned in the redistricting plan's legislative history as "irrelevant,"967ibid. If, as may commonly happen, traditional districting principles are substantially followed without much conscious thought, they cannot be said to have been "subordinated to race." In considering whether race was the "predominant factor motivating the legislatur[e]," it is, however, evidentially significant that at the time of the redistricting, the State had compiled detailed racial data for use in redistricting, but made no apparent attempt to compile, and did not refer specifically to, equivalent data regarding communities of interest.Appellants present a more substantial case for their claim that incumbency protection rivaled race in determining the district's shape. Representative Johnson was the principal architect of District 30, which was designed in part to create a safe Democratic seat for her. At an early stage in the redistricting process, Johnson submitted to the state legislature a plan for Dallas County with a relatively compact 44% African-American district that did not violate the integrity of any voter tabulation district or county lines. See App. 139; 861 F. Supp., at 1338. The District Court found that "[w]hile minority voters did not object" to it, id., at 1330, "[t]hat plan drew much opposition from incumbents and was quickly abandoned," id., at 1321, n. 22. "[F]ive other congressmen would have been thrown into districts other than the ones they currently represent." Id., at 1330-1331. Appellants also point to testimony from Johnson and others to the effect that the incumbents of the adjacent Democratic Districts 5 and 24 exerted strong and partly successful efforts to retain predominantly African-American Democratic voters in their districts. (There was evidence that 97% of African-American voters in and around the city of Dallas vote Democrat.) See generally id., at 1321-1322.In some circumstances, incumbency protection might explain as well as, or better than, race a State's decision to depart from other traditional districting principles, such as compactness, in the drawing of bizarre district lines. And968Opinion of O'CONNOR, J.the fact that, "[a]s it happens, ... many of the voters being fought over [by the neighboring Democratic incumbents] were African-American," id., at 1338, would not, in and of itself, convert a political gerrymander into a racial gerrymander, no matter how conscious redistricters were of the correlation between race and party affiliation. See Shaw I, 509 U. S., at 646. If district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify, just as racial disproportions in the level of prosecutions for a particular crime may be unobjectionable if they merely reflect racial disproportions in the commission of that crime, cf. post, at 1032, n. 30 (STEVENS, J., dissenting) (discussing United States v. Armstrong, ante, at 456.If the State's goal is otherwise constitutional political gerrymandering, it is free to use the kind of political data on which JUSTICE STEVENS focuses-precinct general election voting patterns, post, at 1030, precinct primary voting patterns, post, at 1017, and legislators' experience, post, at 1026-to achieve that goal regardless of its awareness of its racial implications and regardless of the fact that it does so in the context of a majority-minority district. To the extent that the District Court suggested the contrary, it erred. But to the extent that race is used as a proxy for political characteristics, a racial stereotype requiring strict scrutiny is in operation. Cf. Powers v. Ohio, 499 U. S. 400, 410 (1991) ("Race cannot be a proxy for determining juror bias or competence"). We cannot agree with the dissenters, see post, at 1031 (STEVENS, J., dissenting); post, at 1051-1052, n. 5 (SouTER, J., dissenting); see also Shaw II, ante, at 924-925, n. 4 (STEVENS, J., dissenting), that racial stereotyping that we have scrutinized closely in the context of jury service can pass without justification in the context of voting. If the promise of the Reconstruction Amendments, that our Nation is to be free of state-sponsored discrimination, is to be upheld, we cannot pick and choose between the basic forms of969political participation in our efforts to eliminate unjustified racial stereotyping by government actors.Here, the District Court had ample bases on which to conclude both that racially motivated gerrymandering had a qualitatively greater influence on the drawing of district lines than politically motivated gerrymandering, and that political gerrymandering was accomplished in large part by the use of race as a proxy. The State's own VRA § 5 submission explains the drawing of District 30, and the rejection of Johnson's more compact plan, in exclusively racial terms:"Throughout the course of the Congressional redistricting process, the lines of the proposed District 30 were constantly reconfigured in an attempt to maximize the voting strength for this black community in Dallas County ... While the legislature was in agreement that a safe black district should be drawn in the Dallas County area, the real dispute involved the composition, configuration and quality of that district. The community insisted that [a] 'safe' black district be drawn that had a total black population of at least 50% ...." ... Although some [alternative] proposals showed a more compact configuration, none of them reached the threshold 50% total black population which the community felt was necessary to assure its ability to elect its own Congressional representative without having to form coalitions with other minority groups ...." ... The goal was to not only create a district that would maximize the opportunity for the black community to elect a Congressional candidate of its choice in 1992, but also one that included some of the major black growth areas which will assure continued electoral and economic opportunities over the next decades." App. 106-107.As the District Court noted, testimony of state officials in earlier litigation (in which District 30 was challenged as a political gerrymander) contradicted part of their testimony970Opinion of O'CONNOR, J.here, and affirmed that "race was the primary consideration in the construction of District 30." 861 F. Supp., at 1338; see also id., at 1319-1321. And Johnson explained in a letter to the Department of Justice written at the end of the redistricting process that incumbency protection had been achieved by using race as a proxy:" 'Throughout the course of the Congressional redistricting process, the lines were continuously reconfigured to assist in protecting the Democratic incumbents in the Dallas/Fort Worth metroplex area by spreading the Black population to increase the Democratic party index in those areas.'" Id., at 1322 (quoting Plaintiff Exh. 6E6).This is not to say that the direct evidence of the districters' intent showed race to be the sole factor considered. As J usTICE STEVENS notes, post, at 1024-1025, nn. 23-24, state officials' claims have changed as their interests have changed. In the prior political gerrymandering suit and to the Department of Justice, they asserted that race predominated. In this suit, their testimony was that political considerations predominated. These inconsistent statements must be viewed in light of their adversarial context. But such questions of credibility are matters for the District Court, and we simply differ from the dissenters in our reading of the record when they find insupportable the District Court's reliance on the State's own statements indicating the importance of race, see post, at 1024-1025, nn. 23-24, 1033, n. 31 (opinion of STEVENS, J.).Finally, and most significantly, the objective evidence provided by the district plans and demographic maps suggests strongly the predominance of race. Given that the districting software used by the State provided only racial data at the block-by-block level, the fact that District 30, unlike Johnson's original proposal, splits voter tabulation districts and even individual streets in many places, see App. 150; 861971F. Supp., at 1339, suggests that racial criteria predominated over other districting criteria in determining the district's boundaries. And, despite the strong correlation between race and political affiliation, the maps reveal that political considerations were subordinated to racial classification in the drawing of many of the most extreme and bizarre district lines. For example, the northernmost hook of the district, where it ventures into Collin County, is tailored perfectly to maximize minority population, see App. 153 (all whole and parts of 1992 voter tabulation districts within District 30's Collin County hook have a combined African-American and Hispanic population in excess of 50%, with an average African-American population of 19.8%, id., at 331, while the combined African-American and Hispanic population in all surrounding voter tabulation districts, and the other parts of split districts, in Collin County is less than 25%), whereas it is far from the shape that would be necessary to maximize the Democratic vote in that area, see id., at 196 (showing a Republican majority, based on 1990 voting patterns in seven of the eight 1990 voter tabulation districts wholly or partly included in District 30 in Collin County). **In the application of our precedents to District 30, our disagreement with JUSTICE STEVENS' dissent, post, at 1014-1031, is largely factual. In reviewing the District Court's findings of primary fact, we cannot ignore the reality that the District Court heard several days of testimony and argument and became significantly more familiar with the factual details of this suit than this Court can be. We therefore believe that the dissent errs in second-guessing the District Court's assessment of the witnesses' testimony, see post, at 1025, n. 24, and in dismissing as mere "fine tuning," post, at 1030, the practice of using race as a proxy that the District Court found, based on ample evidence, to be pervasive, see Vera v. Richards, 861For the same reason, we decline to debate the dissent on every factual nuance on which it diverges from the District Court's, and our, view. But two of its specific claims about District 30 merit a response. First, the dissent asserts that "[a] comparison of the 1992 precinct results with a depiction of the proportion of black population in each census block reveals that Democratic-leaning precincts cover a far greater area [of District 30]972Opinion of O'CONNOR, J.The combination of these factors compels us to agree with the District Court that "the contours of Congressional District 30 are unexplainable in terms other than race." 861 F. Supp., at 1339. It is true that District 30 does not evince a consistent, single-minded effort to "segregate" voters on the basis of race, post, at 1023 (STEVENS, J., dissenting), and does not represent "apartheid," post, at 1054, 1074 (SOUTER, J., dissenting). But the fact that racial data were used in complex ways, and for multiple objectives, does not mean that race did not predominate over other considerations. The record discloses intensive and pervasive use of race boththan majority-black census blocks." Post, at 1030 (emphasis added). While that may be true, the dissent's reliance on 1992 election results is misplaced. Those results were not before the legislature when it drew the district lines in 1991, and may well reflect the popularity and campaign success of Representative Johnson more than the party political predispositions of the district's residents. (The same error infects the dissent's discussion of the Collin County hook, post, at 1020-1021, n. 19 (relying on 1992 election results).) And looking at totals, rather than at the difference between areas just inside and just outside the district lines, is misleading: Race may predominate in the drawing of district lines because those lines are finely drawn to maximize the minority composition of the district, notwithstanding that in an overwhelmingly Democratic area, the total of Democrats in the district far exceeds its total minority population.Second, the dissent suggests that strict scrutiny should not apply because District 30's compact core has a higher African-American population percentage than its wayward tentacles. Post, at 1021-1023. In doing so, it again ignores the necessity of determining whether race predominated in the redistricters' actions in light of what they had to work with. Once various adjacent majority-minority populations had been carved away from it by the use of race as a proxy to enhance the electoral chances of neighboring incumbents, the core of District 30 was substantially too small to form an entire district. The principal question faced by the redistricters was, therefore, what territory to add to the core out of the remainder of the Dallas area, which remainder has an average African-American population substantially below the 21% county average. In answering that question, as the District Court explained and the maps bear witness, the redistricters created bizarre, far-reaching tentacles that intricately and consistently maximize the available remaining African-American population.973as a proxy to protect the political fortunes of adjacent incumbents, and for its own sake in maximizing the minority population of District 30 regardless of traditional districting principles. District 30's combination of a bizarre, noncompact shape and overwhelming evidence that that shape was essentially dictated by racial considerations of one form or another is exceptional; Texas Congressional District 6, for example, which JUSTICE STEVENS discusses in detail, post, at 10191020, has only the former characteristic. That combination of characteristics leads us to conclude that District 30 is subject to strict scrutiny.BIn Harris County, centered on the city of Houston, Districts 18 and 29 interlock "like a jigsaw puzzle ... in which it might be impossible to get the pieces apart." Barone & Ujifusa, Almanac of American Politics 1996, at 1307-1308; see also Appendixes Band C to this opinion (outlines of Districts 18, 29). As the District Court noted: "[T]hese districts are so finely 'crafted' that one cannot visualize their exact boundaries without looking at a map at least three feet square." 861 F. Supp., at 1323. According to the leading statistical study of relative district compactness and regularity, they are two of the three least regular districts in the country. See Pildes & Niemi, 92 Mich. L. Rev., at 565.District 18's population is 51% African-American and 15% Hispanic. App. 110. It "has some of the most irregular boundaries of any congressional district in the country[,] ... boundaries that squiggle north toward Intercontinental Airport and northwest out radial highways, then spurt south on one side toward the port and on the other toward the Astrodome." Barone & Ujifusa, supra, at 1307. Its "many narrow corridors, wings, or fingers ... reach out to enclose black voters, while excluding nearby Hispanic residents." Pildes & Niemi, supra, at 556.District 29 has a 61% Hispanic and 10% African-American population. App. 110. It resembles974Opinion of O'CONNOR, J."'a sacred Mayan bird, with its body running eastward along the Ship Channel from downtown Houston until the tail terminates in Baytown. Spindly legs reach south to Hobby Airport, while the plumed head rises northward almost to Intercontinental. In the western extremity of the district, an open beak appears to be searching for worms in Spring Branch. Here and there, ruffled feathers jut out at odd angles.'" Barone & Ujifusa, supra, at 1335.Not only are the shapes of the districts bizarre; they also exhibit utter disregard of city limits, local election precincts, and voter tabulation district lines. See, e. g., 861 F. Supp., at 1340 (60% of District 18 and District 29 residents live in split precincts). This caused a severe disruption of traditional forms of political activity. Campaigners seeking to visit their constituents "had to carry a map to identify the district lines, because so often the borders would move from block to block"; voters "did not know the candidates running for office" because they did not know which district they lived in. Ibid. In light of Texas' requirement that voting be arranged by precinct, with each precinct representing a community that shares local, state, and federal representatives, it also created administrative headaches for local election officials:"The effect of splitting dozens of [voter tabulation districts] to create Districts 18 and 29 was an electoral nightmare. Harris County estimated that it must increase its number of precincts from 672 to 1,225 to accommodate the new Congressional boundaries. Polling places, ballot forms, and the number of election employees are correspondingly multiplied. Voters were thrust into new and unfamiliar precinct alignments, a few with populations as low as 20 voters." Id., at 1325.See also App. 119-127 (letter from local official setting forth administrative problems and conflict with local districting975traditions); id., at 147 (map showing splitting of city limits); id., at 128, Plaintiffs' Exh. 6El, Attachment A (map illustrating splitting of voting precincts).As with District 30, appellants adduced evidence that incumbency protection played a role in determining the bizarre district lines. The District Court found that one constraint on the shape of District 29 was the rival ambitions of its two "functional incumbents," who distorted its boundaries in an effort to include larger areas of their existing state legislative constituencies. 861 F. Supp., at 1340. But the District Court's findings amply demonstrate that such influences were overwhelmed in the determination of the districts' bizarre shapes by the State's efforts to maximize racial divisions. The State's VRA § 5 submission explains that the bizarre configuration of Districts 18 and 29 "result[s] in the maximization of minority voting strength" in Harris County, App. 110, corroborating the District Court's finding that "[i]n the earliest stages of the Congressional redistricting process, state Democratic and Republican leaders rallied behind the idea of creating a new Hispanic safe seat in Harris County while preserving the safe African-American seat in District 18." 861 F. Supp., at 1324. State officials testified that "it was particularly necessary to split [voter tabulation districts] in order to capture pockets of Hispanic residents" for District 29, and that a 61 % Hispanic population in that districtnot a mere majority-was insisted upon. Id., at 1340-1341. The record evidence of the racial demographics and voting patterns of Harris County residents belies any suggestion that party politics could explain the dividing lines between the two districts: The district lines correlate almost perfectly with race, see App. 151-152, while both districts are similarly solidly Democratic, see id., at 194. And, even more than in District 30, the intricacy of the lines drawn, separating Hispanic voters from African-American voters on a block-byblock basis, betrays the critical impact of the block-by-block racial data available on the REDAPPL program. The Dis-976Opinion of O'CONNOR, J.trict Court's conclusion is, therefore, inescapable: "Because Districts 18 and 29 are formed in utter disregard for traditional redistricting criteria and because their shapes are ultimately unexplainable on grounds other than the racial quotas established for those districts, they are the product of [presumptively] unconstitutional racial gerrymandering." 861 F. Supp., at 1341.IIIHaving concluded that strict scrutiny applies, we must determine whether the racial classifications embodied in any of the three districts are narrowly tailored to further a compelling state interest. Appellants point to three compelling interests: the interest in avoiding liability under the "results" test of VRA § 2(b), the interest in remedying past and present racial discrimination, and the "nonretrogression" principle of VRA § 5 (for District 18 only). We consider them in turn.ASection 2(a) of the VRA prohibits the imposition of any electoral practice or procedure that "results in a denial or abridgement of the right of any citizen ... to vote on account of race or color." In 1982, Congress amended the VRA by changing the language of § 2(a) and adding § 2(b), which provides a "results" test for violation of § 2(a). A violation exists if,"based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U. S. C. § 1973(b).977Appellants contend that creation of each of the three majority-minority districts at issue was justified by Texas' compelling state interest in complying with this results test.As we have done in each of our previous cases in which this argument has been raised as a defense to charges of racial gerrymandering, we assume without deciding that compliance with the results test, as interpreted by our precedents, see, e. g., Growe v. Emison, 507 U. S. 25, 37-42 (1993), can be a compelling state interest. See Shaw II, ante, at 915; Miller, 515 U. S., at 920-921. We also reaffirm that the "narrow tailoring" requirement of strict scrutiny allows the States a limited degree of leeway in furthering such interests. If the State has a "strong basis in evidence," Shaw I, 509 U. S., at 656 (internal quotation marks omitted), for concluding that creation of a majority-minority district is reasonably necessary to comply with § 2, and the districting that is based on race "substantially addresses the § 2 violation," Shaw II, ante, at 918, it satisfies strict scrutiny. We thus reject, as impossibly stringent, the District Court's view of the narrow tailoring requirement, that "a district must have the least possible amount of irregularity in shape, making allowances for traditional districting criteria." 861 F. Supp., at 1343. Cf. Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 291 (1986) (O'CONNOR, J., concurring in part and concurring in judgment) (state actors should not be "trapped between the competing hazards of liability" by the imposition of unattainable requirements under the rubric of strict scrutiny).A § 2 district that is reasonably compact and regular, taking into account traditional districting principles such as maintaining communities of interest and traditional boundaries, may pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs' experts in endless "beauty contests." The dissenters misread us when they make the leap from our disagreement about the facts of this978Opinion of O'CONNOR, J.suit to the conclusion that we are creating a "stalemate" by requiring the States to "get things just right," post, at 1063 (SOUTER, J., dissenting), or to draw "the precise compact district that a court would impose in a successful § 2 challenge," post, at 1035 (STEVENS, J., dissenting); see also Shaw II, ante, at 949 (STEVENS, J., dissenting). Rather, we adhere to our longstanding recognition of the importance in our federal system of each State's sovereign interest in implementing its redistricting plan. See Voinovich v. Quilter, 507 U. S. 146, 156 (1993) ("[I]t is the domain of the States, and not the federal courts, to conduct apportionment in the first place"); Miller, supra, at 915 ("It is well settled that reapportionment is primarily the duty and responsibility of the State") (internal quotation marks omitted). Under our cases, the States retain a flexibility that federal courts enforcing § 2 lack, both insofar as they may avoid strict scrutiny altogether by respecting their own traditional districting principles, and insofar as deference is due to their reasonable fears of, and to their reasonable efforts to avoid, § 2 liability. And nothing that we say today should be read as limiting "a State's discretion to apply traditional districting principles," post, at 1046 (SOUTER, J., dissenting), in majority-minority, as in other, districts. The constitutional problem arises only from the subordination of those principles to race.Strict scrutiny remains, nonetheless, strict. The State must have a "strong basis in evidence" for finding that the threshold conditions for § 2 liability are present:"first, 'that [the minority group] is sufficiently large and geographically compact to constitute a majority in a single member district'; second, 'that it is politically cohesive'; and third, 'that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate.'" Growe, supra, at 40 (emphasis added) (quoting Thornburg v. Gingles, 478 U. S. 30, 50-51 (1986)).979And, as we have noted above, the district drawn in order to satisfy § 2 must not subordinate traditional districting principles to race substantially more than is "reasonably necessary" to avoid § 2 liability. Districts 18, 29, and 30 fail to meet these requirements.We assume, without deciding, that the State had a "strong basis in evidence" for finding the second and third threshold conditions for § 2 liability to be present. We have, however, already found that all three districts are bizarrely shaped and far from compact, and that those characteristics are predominantly attributable to gerrymandering that was racially motivated and/or achieved by the use of race as a proxy. See Part II, supra. District 30, for example, reaches out to grab small and apparently isolated minority communities which, based on the evidence presented, could not possibly form part of a compact majority-minority district, and does so in order to make up for minority populations closer to its core that it shed in a further suspect use of race as a proxy to further neighboring incumbents' interests. See supra, at 965-966, 969-973.These characteristics defeat any claim that the districts are narrowly tailored to serve the State's interest in avoiding liability under § 2, because § 2 does not require a State to create, on predominantly racial lines, a district that is not "reasonably compact." See Johnson v. De Grandy, 512 U. S. 997, 1008 (1994). If, because of the dispersion of the minority population, a reasonably compact majority-minority district cannot be created, § 2 does not require a majorityminority district; if a reasonably compact district can be created, nothing in § 2 requires the race-based creation of a district that is far from compact.Appellants argue that bizarre shaping and noncompactness do not raise narrow tailoring concerns. Appellants Lawson et al. claim that under Shaw I and Miller, "[s]hape is relevant only as evidence of an improper motive."980Opinion of O'CONNOR, J.Brief for Appellants Lawson et al. 56. They rely on our statement in Miller:"Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines." 515 U. S., at 913.The United States takes a more moderate position, accepting that in the context of narrow tailoring, "consideration must be given to the extent to which the districts drawn by a State substantially depart from its customary redistricting practices," Brief for United States 36, but asserting that insofar as bizarreness and noncompactness are necessary to achieve the State's compelling interest in compliance with § 2 "while simultaneously achieving other legitimate redistricting goals," id., at 37, such as incumbency protection, the narrowly tailoring requirement is satisfied. Similarly, JUSTICE STEVENS' dissent argues that "noncompact districts should ... be a permissible method of avoiding violations of [§ 2]." Post, at 1034.These arguments cannot save the districts before us. The Lawson appellants misinterpret Miller: District shape is not irrelevant to the narrow tailoring inquiry. Our discussion in Miller served only to emphasize that the ultimate constitutional values at stake involve the harms caused by the use of unjustified racial classifications, and that bizarreness is not necessary to trigger strict scrutiny. See Miller, 515 U. S., at 912-913. Significant deviations from traditional districting principles, such as the bizarre shape and noncompactness demonstrated by the districts here, cause constitutional harm insofar as they convey the message that political identity is, or should be, predominantly racial. For example, the bizarre shaping of Districts 18 and 29, cutting across pre-981existing precinct lines and other natural or traditional divisions, is not merely evidentially significant; it is part of the constitutional problem insofar as it disrupts nonracial bases of political identity and thus intensifies the emphasis on race.Nor is the United States' argument availing here. In determining that strict scrutiny applies here, we agreed with the District Court that in fact the bizarre shaping and noncompactness of these districts were predominantly attributable to racial, not political, manipulation. The United States' argument, and that of the dissent, post, at 1033-1035 (STEVENS, J., dissenting), address the case of an otherwise compact majority-minority district that is misshapen by predominantly nonracial, political manipulation. See also post, at 1068 (SOUTER, J., dissenting) (raising "the possibility that a State could create a majority-minority district that does not coincide with the Gingles shape so long as racial data are not overused"). We disagree with the factual premise of JUSTICE STEVENS' dissent, that these districts were drawn using "racial considerations only in a way reasonably designed" to avoid a § 2 violation, post, at 1035. The districts before us exhibit a level of racial manipulation that exceeds what § 2 could justify.BThe United States and the State next contend that the district lines at issue are justified by the State's compelling interest in "ameliorating the effects of racially polarized voting attributable to past and present racial discrimination." Brief for United States 32; Brief for Appellants Bush et al. 24-25. In support of that contention, they cite Texas' long history of discrimination against minorities in electoral processes, stretching from the Reconstruction to modern times, including violations of the Constitution and of the VRA. See, e. g., Williams v. Dallas, 734 F. Supp. 1317 (ND Tex. 1990); White v. Regester, 412 U. S. 755 (1973); Terry v. Adams, 345 U. S. 461 (1953); Smith v. Allwright, 321 U. S. 649 (1944); Nixon v. Condon, 286 U. S. 73 (1932); Nixon v.982Opinion of O'CONNOR, J.Herndon, 273 U. S. 536 (1927); see also 861 F. Supp., at 1317 (because of its history of official discrimination, Texas became a covered jurisdiction under VRA § 5 in 1975, and the Department of Justice has since "frequently interposed objections against the State and its subdivisions"). Appellants attempt to link that history to evidence that in recent elections in majority-minority districts, "Anglos usually bloc voted against" Hispanic and African-American candidates. Ibid.A State's interest in remedying discrimination is compelling when two conditions are satisfied. First, the discrimination that the State seeks to remedy must be specific, "identified discrimination"; second, the State "must have had a 'strong basis in evidence' to conclude that remedial action was necessary, 'before it embarks on an affirmative action program.''' Shaw II, ante, at 910 (citations omitted). Here, the only current problem that appellants cite as in need of remediation is alleged vote dilution as a consequence of racial bloc voting, the same concern that underlies their VRA § 2 compliance defense, which we have assumed to be valid for purposes of this opinion. We have indicated that such problems will not justify race-based districting unless "the State employes] sound districting principles, and ... the affected racial group's residential patterns afford the opportunity of creating districts in which they will be in the majority." Shaw I, 509 U. S., at 657 (internal quotation marks omitted). Once that standard is applied, our agreement with the District Court's finding that these districts are not narrowly tailored to comply with § 2 forecloses this line of defense.CThe final contention offered by the State and private appellants is that creation of District 18 (only) was justified by a compelling state interest in complying with VRA § 5. We have made clear that § 5 has a limited substantive goal: "'to insure that no voting-procedure changes would be made that983would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.'" Miller, 515 U. S., at 926 (quoting Beer v. United States, 425 U. S. 130, 141 (1976)). Appellants contend that this "nonretrogression" principle is implicated because Harris County had, for two decades, contained a congressional district in which African-American voters had succeeded in selecting representatives of their choice, all of whom were African-Americans.The problem with the State's argument is that it seeks to justify not maintenance, but substantial augmentation, of the African-American population percentage in District 18. At the previous redistricting, in 1980, District 18's population was 40.8% African-American. Plaintiffs' Exh. 13B, p. 55. As a result of Hispanic population increases and AfricanAmerican emigration from the district, its population had reached 35.1% African-American and 42.2% Hispanic at the time of the 1990 census. The State has shown no basis for concluding that the increase to a 50.9% African-American population in 1991 was necessary to ensure nonretrogression. Nonretrogression is not a license for the State to do whatever it deems necessary to ensure continued electoral success; it merely mandates that the minority's opportunity to elect representatives of its choice not be diminished, directly or indirectly, by the State's actions. We anticipated this problem in Shaw I, 509 U. S., at 655: "A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression." Applying that principle, it is clear that District 18 is not narrowly tailored to the avoidance of § 5 liability.IVThe dissents make several further arguments against today's decision, none of which address the specifics of this case. We have responded to these points previously. JusTICE SOUTER, for example, reiterates his contention from984Opinion of O'CONNOR, J.Shaw I that because districts created with a view to satisfying § 2 do not involve "racial subjugation," post, at 1055, and may in a sense be "'benign[lyJ''' motivated, Shaw I, 509 U. S., at 685 (SOUTER, J., dissenting), strict scrutiny should not apply to them. We rejected that argument in Shaw I, and we reject it now. As we explained then, see id., at 653, we subject racial classifications to strict scrutiny precisely because that scrutiny is necessary to determine whether they are benign-as JUSTICE STEVENS' hypothetical of a targeted outreach program to protect victims of sickle cell anemia, see post, at 1032, would, no doubt, be-or whether they misuse race and foster harmful and divisive stereotypes without a compelling justification. We see no need to revisit our prior debates.Both dissents contend that the recognition of the Shaw I cause of action threatens public respect for, and the independence of, the Federal Judiciary by inserting the courts deep into the districting process. We believe that the dissents both exaggerate the dangers involved, and fail to recognize the implications of their suggested retreat from Shaw 1.As to the dangers of judicial entanglement, JUSTICE STEVENS' dissent makes much of cases stemming from state districting plans originally drawn up before Shaw I, in which problems have arisen from the uncertainty in the law prior to and during its gradual clarification in Shaw I, Miller, and today's cases. See post, at 1037-1038 (STEVENS, J., dissenting). We are aware of the difficulties faced by the States, and by the district courts, in confronting new constitutional precedents, and we also know that the nature of the expressive harms with which we are dealing, and the complexity of the districting process, are such that bright-line rules are not available. But we believe that today's decisions, which both illustrate the defects that offend the principles of Shaw I and reemphasize the importance of the States' discretion in the redistricting process, see supra, at 978-979, will serve985to clarify the States' responsibilities. The States have traditionally guarded their sovereign districting prerogatives jealously, and we are confident that they can fulfill that requirement, leaving the courts to their customary and appropriate backstop role.This Court has now rendered decisions after plenary consideration in five cases applying the Shaw I doctrine (Shaw I, Miller, Hays, Shaw II, and this suit). The dissenters would have us abandon those precedents, suggesting that fundamental concerns relating to the judicial role are at stake. See post, at 1035, 1038, 1041 (STEVENS, J., dissenting); post, at 1047, and n. 2, 1052, 1064, 1074, 1076-1077 (SouTER, J., dissenting); Shaw II, ante, at 919-920, 922-923, and n. 3, 929 (STEVENS, J., dissenting); but see ante, at 932-933 (noting that the judicial task of distinguishing race-based from non-race-based action in Shaw I cases is far from unique). While we agree that those concerns are implicated here, we believe they point the other way. Our legitimacy requires, above all, that we adhere to stare decisis, especially in such sensitive political contexts as the present, where partisan controversy abounds. Legislators and district courts nationwide have modified their practices-or, rather, reembraced the traditional districting practices that were almost universally followed before the 1990 census-in response to Shaw 1. Those practices and our precedents, which acknowledge voters as more than mere racial statistics, play an important role in defining the political identity of the American voter. Our Fourteenth Amendment jurisprudence evinces a commitment to eliminate unnecessary and excessive governmental use and reinforcement of racial stereotypes. See, e. g., Georgia v. McCollum, 505 U. S. 42, 59 (1992) ("[T]he exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereotypes held by the party"); Edmonson v. Leesville Concrete Co., 500 U. S. 614, 630-631 (1991) ("If our society is to continue to progress as a multiracial democracy, it must recog-986Opinion of O'CONNOR, J.nize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury"); Powers, 499 U. S., at 410 ("We may not accept as a defense to racial discrimination the very stereotype the law condemns"); Holland v. Illinois, 493 U. S. 474, 484, n. 2 (1990) ("[A] prosecutor's 'assumption that a black juror may be presumed to be partial simply because he is black' ... violates the Equal Protection Clause"); Batson v. Kentucky, 476 U. S. 79, 104 (1986) ("[T]he Equal Protection Clause prohibits a State from taking any action based on crude, inaccurate racial stereotypes"). We decline to retreat from that commitment today.***The judgment of the District Court isAffirmed

OCTOBER TERM, 1995SyllabusBUSH, GOVERNOR OF TEXAS, ET AL. v. VERA ET AL.APPEAL FROM THE DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXASNo. 94-805. Argued December 5, 1995-Decided June 13, 1996*Because the 1990 census revealed a population increase entitling Texas to three additional congressional seats, and in an attempt to comply with the Voting Rights Act of 1965 (VRA), the Texas Legislature promulgated a redistricting plan that, among other things, created District 30 as a new majority-African-American district in Dallas County and District 29 as a new majority-Hispanic district in Harris County, and reconfigured District 18, which is adjacent to District 29, as a majorityAfrican-American district. After the Department of Justice precleared the plan under VRA § 5, the plaintiffs, six Texas voters, filed this challenge alleging that 24 of the State's 30 congressional districts constitute racial gerrymanders in violation of the Fourteenth Amendment. The three-judge District Court held Districts 18, 29, and 30 unconstitutional. The Governor of Texas, private intervenors, and the United States (as intervenor) appeal.Held: The judgment is affirmed. 861 F. Supp. 1304, affirmed.JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded:1. Plaintiff Chen, who resides in District 25 and has not alleged any specific facts showing that he personally has been subjected to any racial classification, lacks standing under United States v. Hays, 515 U. S. 737, 744-745. But plaintiffs Blum and Powers, who reside in District 18, plaintiffs Thomas and Vera, who reside in District 29, and plaintiff Orcutt, who resides in District 30, have standing to challenge Districts 18,29, and 30. See, e. g., ibid. pp. 957-958.2. Districts 18, 29, and 30 are subject to strict scrutiny under this Court's precedents. Pp. 958-976.(a) Strict scrutiny applies where race was "the predominant factor" motivating the drawing of district lines, see, e. g., Miller v. Johnson, 515 U. S. 900, 916 (emphasis added), and traditional, raceneutral districting principles were subordinated to race, see ibid. This is a mixed motive suit, and a careful review is therefore necessary to*Together with No. 94-806, Lawson et al. v. Vera et al., and No. 94-988, United States v. Vera et al., also on appeal from the same court.953determine whether the districts at issue are subject to such scrutiny. Findings that Texas substantially neglected traditional districting criteria such as compactness, that it was committed from the outset to creating majority-minority districts, and that it manipulated district lines to exploit unprecedentedly detailed racial data, taken together, weigh in favor of the application of strict scrutiny. However, because factors other than race, particularly incumbency protection, clearly influenced the legislature, each of the challenged districts must be scrutinized to determine whether the District Court's conclusion that race predominated can be sustained. Pp. 958-965.(b) District 30 is subject to strict scrutiny. Appellants do not deny that the district shows substantial disregard for the traditional districting principles of compactness and regularity, or that the redistricters pursued unwaveringly the objective of creating a majority-AfricanAmerican district. Their argument that the district's bizarre shape is explained by efforts to unite communities of interest, as manifested by the district's consistently urban character and its shared media sources and major transportation lines to Dallas, must be rejected. The record contains no basis for displacing the District Court's conclusion that race predominated over the latter factors, particularly in light of the court's findings that the State's supporting data were largely unavailable to the legislature before the district was created and that the factors do not differentiate the district from surrounding areas with the same degree of correlation to district lines that racial data exhibit. Appellants' more substantial claim that incumbency protection rivaled race in determining the district's shape is also unavailing. The evidence amply supports the District Court's conclusions that racially motivated gerrymandering had a qualitatively greater influence on the drawing of district lines than politically motivated gerrymandering, which is not subject to strict scrutiny, see Davis v. Bandemer, 478 U. S. 109, 132 (White, J., plurality opinion); and that political gerrymandering was accomplished in large part by the use of race as a proxy for political characteristics, which is subject to such scrutiny, cf. Powers v. Ohio, 499 U. S. 400, 410. Pp. 965-973.(c) Interlocking Districts 18 and 29 are also subject to strict scrutiny. Those districts' shapes are bizarre, and their utter disregard of city limits, local election precincts, and voter tabulation district lines has caused a severe disruption of traditional forms of political activity and created administrative headaches for local election officials. Although appellants adduced evidence that incumbency protection played a role in determining the bizarre district lines, the District Court's conclusion that the districts' shapes are unexplainable on grounds other than race and, as such, are the product of presumptively954Full Text of Opinion

1978_78-275

MR. JUSTICE BRENNAN delivered the opinion of the Court.Section 14(b) of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 607, as set forth in 29 U.S.C. § 633(b), provides in pertinent part:"In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, . . . [i]f any requirement for the commencement of such proceedings is imposed by a State 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 by registered mail to the appropriate State authority."This case presents three questions under that section. First, whether § 14(b) requires an aggrieved person to resort to appropriate state remedies before bringing suit under § 7(c) of the ADEA, 29 U.S.C. § 626(c). Second, if so, whether the state proceedings must be commenced within time limits specified by state law in order to preserve the federal right of action. Third, if so, whether any circumstances may excuse the failure to commence timely state proceedings.We hold that § 14(b) mandates that a grievant not bring suit in federal court under § 7(c) of the ADEA until he has first resorted to appropriate state administrative proceedings. We also hold, however, that the grievant is not required by § 14(b) to commence the state proceedings within time limits specified by state law. In light of these holdings, it is not Page 441 U. S. 754 necessary to address the question of the circumstances, if any, in which failure to comply with § 14(b) may be excused.IRespondent Joseph Evans was employed by petitioner Oscar Mayer & Co. for 23 years until his involuntary retirement in January, 1976. On March 10, 1976, respondent filed with the United States Department of Labor a notice of intent to sue the company under the ADEA. Respondent charged that he had been forced to retire because of his age in violation of the Act. At approximately this time, respondent inquired of the Department whether he was obliged to file a state complaint in order to preserve his federal rights. The Department informed respondent that the ADEA contained no such requirement. Relying on this official advice, respondent refrained from resorting to state proceedings. On March 7, 1977, after federal conciliation efforts had failed, respondent brought suit against petitioner company and company officials in the United States District Court for the Southern District of Iowa.Petitioners moved to dismiss the complaint on the grounds that the Iowa State Civil Rights Commission was empowered to remedy age discrimination in employment, and that § 14(b) required resort to this state remedy prior to the commencement of the federal suit. The District Court denied the motion, and the Court of Appeals for the Eighth Circuit affirmed. [Footnote 1] 580 F.2d 298 (1978). We granted certiorari, 439 U.S. 925 (1978). We reverse.IIPetitioners argue that § 14(b) mandates that in States with agencies empowered to remedy age discrimination in employment (deferral States) a grievant may not bring suit Page 441 U. S. 755 under the ADEA unless he has first commenced a proceeding with the appropriate state agency. Respondent, on the other hand, argues that the grievant has the option of whether to resort to state proceedings, and that § 14(b) requires only that grievants choosing to resort to state remedies wait 60 days before bringing suit in federal court. The question of construction is close, but we conclude that petitioners are correct.Section 14(b) of the ADEA was patterned after and is virtually in haec verba with § 706(c) of Title VII of the Civil Rights Act of 1964 (formerly § 706(b)), 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U.S.C. § 2000e-5(c). [Footnote 2] The relevant portion of § 706(c) reads as follows:"In the case of an alleged unlawful employment practice occurring in a State, . . . which has a . . . law prohibiting the unlawful employment practice alleged and establishing or authorizing a State . . . authority to grant or seek relief from such practice . . no charge may be filed . . . by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State . . . law, unless such proceedings have been earlier terminated. . . ."Congress intended through § 706(c) to screen from the federal courts those problems of civil rights that could be settled to the satisfaction of the grievant in "a voluntary and localized manner." See 110 Cong.Rec. 12725 (1964) (remarks of Sen. Humphrey). The section is intended to give state agencies a limited opportunity to resolve problems of employment discrimination, and thereby to make unnecessary resort to federal relief by victims of the discrimination. See Voutsis v. Union Carbide Corp., 452 F.2d 889 (CA2 1971). Page 441 U. S. 756 Because state agencies cannot even attempt to resolve discrimination complaints not brought to their attention, the section has been interpreted to require individuals in deferral States to resort to appropriate state proceedings before bringing suit under Title VII. See Love v. Pullman Co., 404 U. S. 522 (1972); Olson v. Rembrandt Printing Co., 511 F.2d 1228 (CA8 1975). [Footnote 3]Since the ADEA and Title VII share a common purpose, the elimination of discrimination in the workplace, since the language of § 14(b) is almost in haec verba with § 706(c), and since the legislative history of § 14(b) indicates that its source was § 706(c), we may properly conclude that Congress intended that the construction of § 14(b) should follow that of § 706(c). See Northcross v. Memphis Board of Education, 412 U. S. 427, 412 U. S. 428 (1973). We therefore conclude that § 14(b), like § 706(c), is intended to screen from the federal courts those discrimination complaints that might be settled to the satisfaction of the grievant in state proceedings. We further conclude that prior resort to appropriate state proceedings is required under § 14(b), just as under § 706(c).The contrary arguments advanced by respondent in support of construing § 14(b) as merely optional are not persuasive. Respondent notes first that, under Title VII, persons aggrieved must file with a state antidiscrimination agency before filing with the Equal Employment Opportunity Commission (EEOC). See 42 U.S.C. § 2000e-5(c). Under the ADEA, by contrast, grievants may file with state and federal agencies simultaneously. See 29 U.S.C. §§ 626(d) and 633(b). [Footnote 4] From this respondent concludes that the ADEA pays less deference to state agencies, and that, as a consequence, ADEA claimants have the option to ignore state remedies. Page 441 U. S. 757We disagree. The ADEA permits concurrent, rather than sequential, state and federal administrative jurisdiction in order to expedite the processing of age discrimination claims. The premise for this difference is that the delay inherent in sequential jurisdiction is particularly prejudicial to the rights of "older citizens to whom, by definition, relatively few productive years are left." 113 Cong.Rec. 7076 (197) (remarks of Sen. Javits).The purpose of expeditious disposition would not be frustrated were ADEA claimants required to pursue state and federal administrative remedies simultaneously. Indeed, simultaneous state and federal conciliation efforts may well facilitate rapid settlements. There is no reason to conclude, therefore, that the possibility of concurrent state and federal cognizance supports the construction of § 14(b) that ADEA grievants may ignore state remedies altogether.Respondent notes a second difference between the ADEA and Title VII. Section 14(a) of the ADEA, 29 U.S.C. § 633(a), for which Title VII has no counterpart, provides that, upon commencement of an action under ADEA, all state proceedings are superseded. From this, respondent concludes that it would be an exercise in futility to require aggrieved persons to file state complaints, since those persons may, after only 60 days, abort their involuntary state proceeding by filing a federal suit.We find no merit in the argument. Unless § 14(b) is to be stripped of all meaning, state agencies must be given at least some opportunity to solve problems of discrimination. While 60 days provides a limited time for the state agency to act, that was a decision for Congress to make, and Congress apparently thought it sufficient. As Senator Dirksen told the Senate during the debates on § 14(b)'s predecessor, § 706(c) of Title VII:"[A]t the local level . . . many cases are disposed of in a matter of days, and certainly not more than a few weeks. Page 441 U. S. 758 In the case of California, FEPC cases are disposed of in an average of about 5 days. In my own State, it is approximately 14 days."110 Cong.Rec. 13087 (1964).Respondent argues finally that a Committee Report that accompanied 1978 ADEA amendments supports his construction of § 14(b). [Footnote 5] This Committee Report suggested that resort to state remedies should be optional under § 14(b). See S.Rep. No. 95-493, pp. 6-7 (1978), adopted in Joint Explanatory Statement of the Committee of Conference, H.R.Conf.Rep. No 9950, pp. 7, 12 (1978).We are not persuaded. Senate Report No. 95-493 was written 11 years after the ADEA was passed in 1967, and such "[l]egislative observations . . . are in no sense part of the legislative history." United Airlines, Inc. v. McMann, 434 U. S. 192, 434 U. S. 200 n. 7 (1977). "It is the intent of the Congress that enacted [the section] . . . that controls." Teamsters v. United States, 431 U. S. 324, 431 U. S. 354 n. 39 (1977). Whatever evidence is provided by the 1978 Committee Report of the intent of Congress in 1967, it is plainly insufficient to overcome the clear and convincing evidence that Congress intended § 14(b) to have the same meaning as § 706(c). We therefore hold that, under § 14(b) of the ADEA, as under § 706(c) of Title VII, resort to administrative remedies in deferral States by individual claimants is mandatory, not optional. [Footnote 6]IIIWe consider now the consequences of respondent's failure to file a complaint with the Iowa State Civil Rights Commission. Petitioners argue that, since Iowa's 120-day age discrimination Page 441 U. S. 759 statute of limitations has run, see Iowa Code §§ 601A.14(1), (15) (1975), it is now too late for respondent to remedy his procedural omission, and that respondent's federal action is therefore jurisdictionally barred. Respondent pleads that, since his failure to file was due to incorrect advice by the Department of Labor, his tardiness should be excused.Both arguments miss the mark. Neither questions of jurisdiction nor questions of excuse arise unless Congress mandated that resort to state proceedings must be within time limits specified by the State. We do not construe § 14(b) to make that requirement. Section 14(b) requires only that the grievant commence state proceedings. Nothing whatever in the section requires the respondent here to commence those proceedings within the 120 days allotted by Iowa law in order to preserve a right of action under § 7(c).We start with the language of the section. Section 14(b) provides, in relevant part, that"no suit may be brought . . . before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated."29 U.S.C. § 633(b) (emphasis added). By its terms, then, the section requires only that state proceedings be commenced 60 days before federal litigation is instituted; besides commencement, no other obligation is placed upon the ADEA grievant. In particular, there is no requirement that, in order to commence state proceedings and thereby preserve federal rights, the grievant must file with the State within whatever time limits are specified by state law. Rather, use of the word "commenced" strongly implies the opposite -- that state limitations periods are irrelevant -- since, by way of analogy, under the Federal Rules of Civil Procedure, even a time-barred action may be "commenced" by the filing of a complaint. See Fed.Rule Civ.Proc. 3; Malotti v. Ford Motor Co., 418 F. Supp. 430, 434 (ED Mich.1976). Page 441 U. S. 760This implication is made express by the last sentence of § 14(b), which specifically provides:"If any requirement for the commencement of such proceedings is imposed by a State 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 by registered mail to the appropriate State authority."29 U.S.C. § 633(b). State limitations periods are, of course, requirements "other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based." Therefore, even if a State were to make timeliness a precondition for commencement, rather than follow the more typical pattern of making untimeliness an affirmative defense, a state proceeding will be deemed commenced for purposes of § 14(b) as soon as the complaint is filed.This has been the prevailing interpretation of § 14(b). See Nickel v. Shatterproof Class Corp., 424 F. Supp. 884 (ED Mich.1976); Magalotti v. Ford Motor Co., supra. [Footnote 7] It is also the prevailing interpretation of § 14(b)'s counterpart, § 706(c) of Title VII, which contains an identical definition of commencement. See Davis v. Valley Distributing Co., 522 F.2d 827, 831-833 (CA9 1975), cert. denied, 429 Page 441 U. S. 761 U.S. 1090 (1977); Olson v. Rembrandt Printing Co., 511 F.2d at 1232; Pinckney v. County of Northampton, 433 F. Supp. 373, 376 n. 1 (ED Pa.1976); McAdams v. Thermal Industries, Inc., 428 F. Supp. 156, 161 (WD la.1977); De Gideo v. Sperry-Univac Co., 415 F. Supp. 227, 229 (ED Pa.1976); see also White v. Dallas Independent School Dist., 581 F.2d 556, 562 n. 10 (CA5 1978) (en banc) (filing with EEOC tolls state limitations period for federal purposes); Ferguson v. Kroger Co., 545 F.2d 1034 (CA6 1976) (EEOC's negligent failure to refer charge to state agency within state limitations period does not foreclose federal claim). But see Richardson v. Miller, 446 F.2d 1247 (CA3 1971).It is also the EEOC's interpretation of § 706(c), see Case No. KC7-5-315, CCH EEOC Decisions (1973) � 6024 (1969), and, as such, is "entitled to great deference." Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 434 (1971).This construction of the statute is fully consistent with the ADEA's remedial purposes, and is particularly appropriate "in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." Love v. Pullman Co., 404 U.S. at 404 U. S. 527.It is also consistent with the purposes of § 14(b). Section 14(b) does not stipulate an exhaustion requirement. The section is intended only to give state agencies a limited opportunity to settle the grievances of ADEA claimants in a voluntary and localized manner, so that the grievants thereafter have no need or desire for independent federal relief. Individuals should not be penalized if States decline, for whatever reason, to take advantage of these opportunities. See Pacific Maritime Assn. v. Quinn, 465 F.2d 108 (CA9 1972). Congress did not intend to foreclose federal relief simply because state relief was also foreclosed. See Voutsis v. Union Carbide Corp., 452 F.2d at 893. [Footnote 8] Page 441 U. S. 762The structure of the ADEA reinforces the conclusion that state procedural defaults cannot foreclose federal relief and that state limitations periods cannot govern the efficacy of the federal remedy. The ADEA's limitations periods are set forth in explicit terms in 29 U.S.C. §§ 626(d) [Footnote 9] and (e), [Footnote 10] not § 14(b), 29 U.S.C. § 633(b). Sections 626(d) and (e) adequately Page 441 U. S. 763 protect defendants against stale claims. We will not attribute to Congress an intent through § 14(b) to add to these explicit requirements by implication and to incorporate by reference into the ADEA the various state age discrimination statutes of limitations. Cf. Occidental Life Ins. Co. v. EEOC, 432 U. S. 355, 432 U. S. 371 (1977). Congress could not have intended to consign federal lawsuits to the "vagaries of diverse state limitations statutes," ibid., particularly since, in many States, including Iowa, the limitations periods are considerably shorter than the 180-day period allowed grievants in nondeferral States by 29 U.S.C. § 626(d)(1). See De Gideo v. Sperry-Univac Co., supra, at 231 n. 9.That Congress regarded incorporation as inconsistent with the federal scheme is made clear by the legislative history of § 706(c)'s definition of commencement -- the same definition later used in § 14(b). Proponents of Title VII were concerned that localities hostile to civil rights might enact sham discrimination ordinances for the purpose of frustrating the vindication of federal rights. See 2 B. Schwartz, Statutory History of the United States: Civil Rights 1330 (1970). The statutory definition of commencement as requiring the filing of a state complaint and nothing more was intended to meet this concern, while at the same time avoiding burdensome case-by-case inquiry into the reasonableness of various state procedural requirements. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). As Senator Humphrey explained to the Senate:"[T]o avoid the possible imposition of onerous State requirements for initiating a proceeding, subsection (b) provides that, to comply with the requirement of prior resort to the State agency, an individual need merely send a written statement of the facts to the State agency by registered mail."2 Schwartz, supra, at 1352.The strongest argument against this construction of the statute is that it would permit grievants to avoid state intervention Page 441 U. S. 764 by waiting until the state statute of limitations has expired and then filing federal suit, thus frustrating the intent of Congress that federal litigation be used as a last resort.No reason suggests itself, however, why an employee would wish to forgo an available state remedy. Prior resort to the state remedy would not impair the availability of the federal remedy, for the two are supplementary, not mutually exclusive. A complainant would save no time by bypassing the state remedy, since the federal court must, in any event, defer to the State for 60 days, and is required to defer no longer. See Davis v. Valley Distributing Co., 522 F.2d 827 (CA9 1975); Nickel v. Shatterproof Glass Corp., 424 F. Supp. 884 (ED Mich.1976). [Footnote 11]We therefore hold that respondent may yet comply with the requirements of § 14(b) by simply filing a signed complaint with the Iowa State Civil Rights Commission. That Commission must be given an opportunity to entertain respondent's grievance before his federal litigation can continue. Meanwhile, the federal suit should be held in abeyance. If, as respondent fears, his state complaint is subsequently dismissed as untimely, respondent may then return to federal Page 441 U. S. 765 court. [Footnote 12] But until that happens, or until 60 days have passed without a settlement, respondent must pursue his state remedy. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court with instructions to enter an order directing the District Court to hold respondent's suit in abeyance until respondent has complied with the mandate of § 14(b). [Footnote 13]It is so ordered

U.S. Supreme CourtOscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)Oscar Mayer & Co. v. EvansNo. 78-275Argued February 28, 1979Decided May 21, 1979441 U.S. 750SyllabusSection 14(b) of the Age Discrimination in Employment Act of 1967 (ADEA) provides that in the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and authorizing a state authority to grant and seek relief from such discriminatory practice, no suit may be brought under § 7(c) of the ADEA before the expiration of 60 days after proceedings have been commenced under the state law, unless such proceedings have been earlier terminated. Section 14(b) also provides that, if any requirement for the commencement of such proceedings is imposed by a state authority other than a requirement of a 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 § 14(b) at the time such statement is sent by registered mail to the appropriate state authority. Respondent, who had been involuntarily retired after 23 years of employment by petitioner company, filed with the United States Department of Labor a notice of intent to sue the company under the ADEA, charging that he had been forced to retire because of his age in violation of the Act. Upon respondent's inquiry, the Department informed him that the ADEA contained no requirement that he file a state complaint in order to preserve his federal rights. After federal conciliation efforts failed, respondent brought suit against petitioner company and company officials in Federal District Court, which denied petitioners' motion to dismiss the complaint on the grounds that the Iowa State Civil Rights Commission was empowered to remedy age discrimination in employment, and that § 14(b) required resort to this state remedy prior to the commencement of the federal suit. The Court of Appeals affirmed.Held:1. Under § 14(b), resort to administrative remedies by claimants in States with agencies empowered to remedy age discrimination in employment (deferral States) is mandatory, not optional, and federal suit may not be brought under the ADEA unless the claimant has first commenced a proceeding with the appropriate state agency. Pp. 441 U. S. 754-758.(a) Since the ADEA and Title VII of the Civil Rights Act of 1964 Page 441 U. S. 751 share the common purpose of the elimination of discrimination in the workplace, since the language of § 14(b) is almost in haec verba with § 706(c) of Title VII, which has been interpreted to require individuals in deferral States to resort to appropriate state proceedings before bringing suit under Title VII, and since the legislative history of § 14(b) indicates that its source was § 706(c), it may be properly concluded that Congress intended that the construction of § 14(b) should follow that of § 706(c). Pp. 441 U. S. 755-756.(b) Claimants do not have the option to ignore state remedies merely because under the ADEA, unlike Title VII, they may file with state and federal agencies simultaneously. The ADEA permits concurrent, rather than sequential, state and federal administrative jurisdiction in order to expedite the processing and settling of age discrimination claims, and thus the possibility of concurrent state and federal cognizance does not support the construction of § 14(b) that ADEA grievants may ignore state remedies altogether. A Committee Report accompanying 1978 ADEA amendments which suggested that resort to state remedies should be optional under § 14(b) is insufficient to overcome the clear and convincing evidence that Congress, in 1967, intended § 14(b) to have the same meaning as § 706(c). Pp. 441 U. S. 756-758.2. However, a grievant is not required by § 14(b) to commence state proceedings within time limits specified by state law. Pp. 441 U. S. 758-764.(a) By its terms, § 14(b) requires only that state proceedings be "commenced" 60 days before federal litigation is instituted, and use of the word "commenced" strongly implies that state limitations periods are irrelevant. This implication is made express by the provision in § 14(b) that, if a state authority imposes requirements "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 purposes of 14(b) at the time such statement is sent by registered mail to the appropriate state authority. State limitations periods are requirements other than that specified in § 14(b) and, thus, even if a State were to make timeliness a precondition for commencement, a state proceeding will be deemed commenced for purposes of § 14(b) as soon as the complaint is filed. Pp. 441 U. S. 759-760.(b) This construction of the statute is consistent both with the ADEA's remedial purposes and with the purposes of § 14(b), which does not stipulate an exhaustion requirement, but is intended only to give state agencies a limited opportunity to settle the grievances of ADEA claimants in a voluntary and localized manner so that the grievants thereafter have no need or desire for independent federal relief. Page 441 U. S. 752 The ADEA's structure -- setting forth limitations periods in explicit terms in §§ 7(d) and(e), not § 14(b) -- reinforces the conclusion that state procedural defaults cannot foreclose federal relief, and that state limitations periods cannot govern the efficacy of the federal remedy. Pp. 441 U. S. 761-764.3. Even though Iowa's 120-day statute of limitations has run, respondent may yet comply with the requirements of § 14(b) by simply filing a signed complaint with the Iowa State Civil Rights Commission. That Commission must be given an opportunity to entertain respondent's grievance before his federal litigation can continue. Meanwhile the federal suit should be held in abeyance, rather than be dismissed with leave to refile, because respondent has already filed a timely federal complaint, and to require a second filing would serve no purpose other than the creation of an additional procedural technicality. If respondent's state complaint is subsequently dismissed as untimely, he may then return to federal court; but until that happens, or until 60 days have passed without a settlement, respondent must pursue his state remedy. Pp. 441 U. S. 764-765.580 F.2d 298, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined, and in all but Part III of which BURGER, C.J., and POWELL, REHNQUIST, and STEVENS, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 441 U. S. 765. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. 441 U. S. 767. Page 441 U. S. 753

1992_92-166

JUSTICE SOUTER delivered the opinion of the Court. Keene Corporation has been sued by thousands of plaintiffs alleging injury from exposure to asbestos fibers and dust released from products made by Keene and by a company it acquired. In trying to recoup some of the money it was paying to litigate and settle the cases, Keene filed two complaints against the United States in the Court of Federal Claims.1 When it filed each complaint, however, Keene had a similar claim pending against the Government in another court. We hold that 28 U. S. C. § 1500 consequently precludes Court of Federal Claims jurisdiction over Keene's actions and affirm the dismissal of its complaints.IThrough its subsidiary Keene Building Products Corporation, Keene manufactured and sold thermal insulation and acoustical products containing asbestos, as did a company it acquired in 1968, Baldwin-Ehret-Hill, Inc. In the mid-of the United States by Herbert L. Fenster, Ray M. Aragon, and Robin S. Conrad; for the Cheyenne-Arapaho Tribes of Oklahoma et al. by Richard Dauphinais, Yvonne T. Knight, Patrice Kunesh, and Scott B. McElroy; for Defenders of Property Rights by Nancie G. Marzulla; for Dico, Inc., by Charles F. Lettow; for the Pacific Legal Foundation et al. by Ronald A. Zumbrun, James S. Burling, and R. S. Radford; for Whitney Benefits, Inc., et al. by George W Miller, Walter A. Smith, Jr., and Jonathan L. Abram; and for the National Association of Home Builders by Albert J. Beveridge III and Virginia S. Albrecht.Don S. Willner and Thomas M. Buchanan filed a brief for C. Robert Suess et al. as amici curiae.1 Keene actually filed its complaints in the old Court of Claims. Soon thereafter, Congress transferred the trial functions of the Court of Claims to a newly created "United States Claims Court." Federal Courts Improvement Act of 1982, § 133, 96 Stat. 39-41. The Claims Court has just been renamed the "United States Court of Federal Claims." See Court of Federal Claims Technical and Procedural Improvements Act of 1992, § 902, 106 Stat. 4516. To avoid confusion, we will refer to the trial court in this case by its latest name.2031970's, plaintiffs began suing Keene in tort, alleging injury or death from exposure to asbestos fibers. In a typical case filed against Keene and other defendants in the District Court for the Western District of Pennsylvania, Miller v. Johns-Manville Products Corp., No. 78-1283E, the plaintiff alleged, on behalf of the estate of one Dzon, that the decedent had died of lung cancer caused by asbestos fibers and dust inhaled during employment in 1943 and 1944. In June 1979, Keene filed a third-party complaint against the United States, alleging that any asbestos products to which Dzon was exposed had been supplied to the Government in accordance with specifications set out in Government contracts, and seeking indemnification or contribution from the Government for any damages Keene might have to pay the plaintiff. This third-party action ended, however, in May 1980, when the District Court granted Keene's motion for voluntary dismissal of its complaint.In the meantime, in December 1979, with the Miller thirdparty action still pending, Keene filed the first of its two complaints in issue here, seeking damages from the United States in the Court of Federal Claims "for any amounts which have been, or which may be recovered from Keene by the claimants, by settlement or judgment." Keene Corp. v. United States, No. 579-79C (Keene I), App. to Pet. for Cert. H15. The "claimants" are defined as the plaintiffs in the more than 2,500 lawsuits filed against Keene "by persons alleging personal injury or death from inhalation of asbestos fibers contained in thermal insulation products" manufactured or sold by Keene or its subsidiaries. Id., at H3. Keene alleges conformance with Government specifications in the inclusion of asbestos within the thermal insulation products Keene supplied to Government shipyards and other projects funded or controlled by the Government, and Keene further claims that the Government even sold it some of the asbestos fiber used in its products. Keene's theory of recovery is breach by the United States of implied warran-204ties in contracts between the Government and Keene, a theory only the Court of Federal Claims may entertain, given the amount of damages requested, under the Tucker Act, 28 U. S. C. § 1491(a)(1).Keene's next move against the Government came the following month when it filed a 23-count complaint in the District Court for the Southern District of New York. Keene Corp. v. United States, No.80-CIV-0401(GLG). The pleadings tracked, almost verbatim, the lengthy factual allegations of Keene I, but the action was recast in terms of various tort theories, again seeking damages for any amounts paid by Keene to asbestos claimants. Keene also added a takings claim for the Government's allegedly improper recoupment, under the Federal Employees' Compensation Act (FECA), 5 U. S. C. § 8132, of money paid by Keene to claimants covered by the Act. For this, Keene sought restitution of "the amounts of money which have been, or which may be, recouped by [the United States] from claimants from judgments and settlements paid by Keene," App. 37, as well as an injunction against the Government's collection of FECA refunds thereafter. This suit suffered dismissal in September 1981, on the basis of sovereign immunity, which the court held unaffected by any waiver found in the Federal Tort Claims Act, the Suits in Admiralty Act, and the Public Vessels Act. The Court of Appeals affirmed, Keene Corp. v. United States, 700 F.2d 836 (CA2 1983), and we denied certiorari, 464 U. S. 864 (1983).Only five days before the Southern District's dismissal of that omnibus action, Keene returned to the Court of Federal Claims with the second of the complaints in issue here. Keene Corp. v. United States, No. 585-81C (Keene II). Although this one, too, repeats many of the factual allegations of Keene I, it adopts one of the theories raised in the Southern District case, seeking payment for "the amounts of money that [the United States] has recouped" under FECA from asbestos claimants paid by Keene. App. to Pet. for205Cert. F10-F11. Again, the recoupments are said to be takings of Keene's property without due process and just compensation, contrary to the Fifth Amendment. See 28 U. S. C. § 1491(a)(1) (covering, inter alia, certain claims "founded ... upon the Constitution").After the Court of Federal Claims raised the present jurisdictional issue sua sponte in similar actions brought by Johns-Manville, the Government invoked 28 U. S. C. § 1500 in moving to dismiss both Keene I and Keene II, as well as like actions by five other asbestos product manufacturers. With trial imminent in the Johns-Manville cases, the Court of Federal Claims initially granted the motion to dismiss only as to them. Keene Corp. v. United States, 12 Cl. Ct. 197 (1987). That decision was affirmed on appeal, JohnsManville Corp. v. United States, 855 F.2d 1556 (CA Fed. 1988) (per curiam), cert. denied, 489 U. S. 1066 (1989), and the Court of Federal Claims then entered dismissals in Keene I and Keene II, among other cases, finding that when Keene had filed both Keene I and Keene II, it had the same claims pending in other courts. 17 Cl. Ct. 146 (1989). While a panel of the Court of Appeals for the Federal Circuit reversed on the ground that § 1500 was inapplicable because no other claim had been pending elsewhere when the Court of Federal Claims entertained and acted upon the Government's motion to dismiss, UNR Industries, Inc. v. United States, 911 F.2d 654 (1990), the Court of Appeals, en bane, subsequently vacated the panel opinion, 926 F.2d 1109 (1990), and affirmed the trial court's dismissals, 962 F.2d 1013 (1992). We granted certiorari. 506 U. S. 939 (1992).IIThe authority cited for dismissing Keene's complaints for want of jurisdiction was 28 U. S. C. § 1500 (1988 ed., Supp. IV):"The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which206the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States."2The lineage of this text runs back more than a century to the aftermath of the Civil War, when residents of the Confederacy who had involuntarily parted with property (usually cotton) during the war sued the United States for compensation in the Court of Claims, under the Abandoned Property Collection Act, ch. 120, 12 Stat. 820 (1863). When these cotton claimants had difficulty meeting the statutory condition that they must have given no aid or comfort to participants in the rebellion, see § 3 of the Act, they resorted to separate suits in other courts seeking compensation not from the Government as such but from federal officials, and not under the statutory cause of action but on tort theories such as conversion. See Schwartz, Section 1500 of the Judicial Code and Duplicate Suits Against the Government and Its Agents, 55 Geo. L. J. 573, 574-580 (1967). It was these duplicative lawsuits that induced Congress to prohibit anyone from filing or prosecuting in the Court of Claims "any claim ... for or in respect to which he ... shall have commenced and has pending" an action in any other court against an officer or agent of the United States. Act of June 25, 1868, ch. 71, § 8, 15 Stat. 77. The statute has long outlived the cotton claimants, having been incorporated2 When Keene filed its complaints, § 1500 referred to the "Court of Claims" rather than the "United States Court of Federal Claims." See 28 U. S. C. § 1500 (1976 ed.). Section 1500 has since been amended twice, first to substitute "United States Claims Court" for "Court of Claims," Federal Courts Improvement Act of 1982, § 133(e)(1), 96 Stat. 40, and then to substitute "Court of Federal Claims" for "Claims Court," Court of Federal Claims Technical and Procedural Improvements Act of 1992, § 902(a), 106 Stat. 4516. See also n. 1, supra.207with minor changes into § 1067 of the Revised Statutes of 1878; then reenacted without further change as § 154 of the Judicial Code of 1911, Act of Mar. 3, 1911, ch. 231, § 154, 36 Stat. 1138, 28 U. S. C. § 260 (1940 ed.); and finally adopted in its present form by the Act of June 25, 1948, ch. 646, 62 Stat. 942, 28 U. S. C. § 1500.Keene argues it was error for the courts below to apply the statute by focusing on facts as of the time Keene filed its complaints (instead of the time of the trial court's ruling on the motion to dismiss) and to ignore differences said to exist between the Court of Federal Claims actions and those filed in the District Courts. Neither assignment of error will stand.ACongress has the constitutional authority to define the jurisdiction of the lower federal courts, see Finley v. United States, 490 U. S. 545, 548 (1989), and, once the lines are drawn, "limits upon federal jurisdiction ... must be neither disregarded nor evaded," Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365, 374 (1978). In § 1500, Congress has employed its power to provide that the Court of Federal Claims "shall not have jurisdiction" over a claim, "for or in respect to which" the plaintiff "has [a suit or process] pending" in any other court. In applying the jurisdictional bar here by looking to the facts existing when Keene filed each of its complaints, the Court of Federal Claims followed the longstanding principle that "the jurisdiction of the Court depends upon the state of things at the time of the action brought." Mollan v. Torrance, 9 Wheat. 537, 539 (1824) (Marshall, C. J.); see Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 69 (1987) (opinion of SCALIA, J.); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 289-290 (1938); Minneapolis & St. Louis R. Co. v. Peoria & P. U. R. Co., 270 U. S. 580, 586 (1926).While acknowledging what it calls this "general rule" that subject-matter jurisdiction turns on the facts upon filing,208Keene would have us dispense with the rule here. Brief for Petitioner 33. Assuming that we could,3 however, Keene gives us nothing to convince us that we should. Keene argues that if § 1500 spoke of "jurisdiction to render judgment" instead of "jurisdiction" pure and simple, the phrase would "all but preclude" application of the time-of-filing rule. Id., at 34. But, without deciding whether such a change of terms would carry such significance, we have only to say that § 1500 speaks of "jurisdiction," without more, whereas some nearby sections of Title 28 use the longer phrase. This fact only underscores our duty to refrain from reading a phrase into the statute when Congress has left it out. "'[W]here Congress includes particular language in one section of a statute but omits it in another ... , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" Russello v. United States, 464 U. S. 16, 23 (1983) (citation omitted).Keene's next appeal, to statutory history, is no more availing. The immediate predecessor of § 1500, § 154 of the Judicial Code of 1911, provided that "[n]o person shall file or prosecute in the Court of Claims ... any claim for or in respect to which he ... has pending in any other court any suit or process ... " Act of Mar. 3, 1911, ch. 231, § 154, 36 Stat. 1138. With this express prohibition against filing claims for which another suit was pending, there could, of course, have been no doubt that at least a time-of-filing rule applied. See Shapiro v. United States, 168 F.2d 625, 626 (CA3 1948) (§ 154 "forbids the filing" of a Little Tucker Act3 On this score, Keene cites Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826 (1989), for the proposition that the Court can rely on practical considerations to create exceptions to the time-of-filing rule. Brief for Petitioner 35-36. We need not decide whether Keene's reading is accurate, for Keene has not shown that we should, even if we could. We do note, however, that Newman-Green reiterated the principle that "[t]he existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed." 490 U. S., at 830.209claim when a related suit is pending); British American Tobacco Co. v. United States, 89 Ct. Cl. 438, 439 (1939) (per curiam) (dismissing a claim under § 154 where, "[a]t the time the petition was filed in this court, the plaintiff ... had pending in the District Court ... a suit based upon the same claim"), cert. denied, 310 U. S. 627 (1940); New Jersey Worsted Mills v. United States, 80 Ct. Cl. 640, 641, 9 F. Supp. 605, 606 (1935) (per curiam) ("[W]e think it clear that the plaintiff was not permitted even to file its claim in this court"). Although Keene urges us to see significance in the deletion of the "file or prosecute" language in favor of the current reference to "jurisdiction" in the comprehensive revision of the Judicial Code completed in 1948, we do not presume that the revision worked a change in the underlying substantive law "unless an intent to make such [a] chang[e] is clearly expressed." Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227 (1957) (footnote omitted); see Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 831, n. 4 (1989); Finley v. United States, supra, at 554; Tidewater Oil Co. v. United States, 409 U. S. 151, 162 (1972). On the point in issue here, there is no such clear expression in the shift from specific language to the general, and the Reviser's Note to § 1500 indicates nothing more than a change "in phraseology," see H. R. Rep. No. 308, 80th Cong., 1st Sess., A140 (1947); cf. Newman-Green, supra, at 831. Since Keene, indeed, comes up with nothing to the contrary, we read the statute as continuing to bar jurisdiction over the claim of a plaintiff who, upon filing, has an action pending in any other court "for or in respect to" the same claim.44 We do not decide whether the statute also continues to bar a plaintiff from prosecuting a claim in the Court of Federal Claims while he has pending a later-filed suit in another court "for or in respect to" the same claim. Cf. Tecon Engineers, Inc. v. United States, 170 Ct. Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U. S. 976 (1966). As the dissenting judge noted below, this case does not raise that issue. UNR Industries,210BThe statutory notion of comparable claims is more elusive.By precluding jurisdiction over the claim of a plaintiff with a suit pending in another court "for or in respect to" the same claim, § 1500 requires a comparison between the claims raised in the Court of Federal Claims and in the other lawsuit. The exact nature of the things to be compared is not illuminated, however, by the awkward formulation of § 1500. Nor does it advance the ball very far to recognize from the statute's later reference to "the cause of action alleged in such suit or process," that the term "claim" is used here synonymously with "cause of action," see Black's Law Dictionary 247 (6th ed. 1990) (defining "claim" as "cause of action"), since, as both parties admit, "cause of action," like "claim," can carry a variety of meanings. See Brief for Petitioner 18; Brief for United States 15; see also JohnsManville Corp., 855 F. 2d, at 1560.Fortunately, though, we can turn to earlier readings of the word "claim" as it appears in this statute. The phrase "any claim ... for or in respect to which" has remained unchanged since the statute was first adopted in 1868, see Act of June 25, 1868, ch. 71, § 8, 15 Stat. 77, and prior encounters with § 154 of the Judicial Code of 1911, the immediate predecessor to § 1500, shed some light on the issue. Corona Coal Co. v. United States, 263 U. S. 537 (1924), was an action brought against the United States in the Court of Claims, seeking compensation for coal requisitioned by the Government. Before bringing its appeal to this Court, the plaintiff sued the President's agent in Federal District Court, "the causes of action therein set forth being the same as that set forth in the [Court of Claims] case." Id., at 539. After noting that the causes of action "arose out of" the same factual setting, we applied § 154 and dismissed theInc. v. United States, 962 F.2d 1013, 1030, n. 5 (CA Fed. 1992) (Plager, J., dissenting).211appeal. Id., at 539-540. Later that year, we had the case of a plaintiff seeking a writ of mandamus to stop the Court of Claims from reinstating a suit it had dismissed earlier, without prejudice, on the plaintiff's own motion. Ex parte Skinner & Eddy Corp., 265 U. S. 86 (1924). Skinner & Eddy had sued the United States in the Court of Claims for nearly $17.5 million; "[t]he largest item of the claim was for anticipated profits on 25 vessels" covered by an order, later canceled, by the United States Emergency Fleet Corporation. Id., at 91. After the Court of Claims had granted its motion to dismiss, Skinner & Eddy sued the Emergency Fleet Corporation in state court "on substantially the same causes of action as those sued for in the Court of Claims." Id., at 92. There was no question that the factual predicate of each action was the same, except for the omission from the state court action of any demand for anticipated profits, thus limiting the damages sought to $9.1 million. We issued the writ of mandamus, holding that § 154 prevented the Court of Claims from exercising jurisdiction over the claims it had dismissed earlier, given the intervening state court suit.5A few years later, the Court of Claims settled a key question only foreshadowed by Skinner & Eddy: whether § 154 applied when the Court of Claims action and the "other" suit proceeded under different legal theories. In British American Tobacco Co. v. United States, 89 Ct. Cl. 438 (1939) (per curiam), after the plaintiff had surrendered his gold bullion to the Government (in compliance with executive orders and regulations that took this country off the gold5We have had one other encounter with this statute, in Matson Navigation Co. v. United States, 284 U. S. 352 (1932), where we relied on the plain words of § 154 to hold that the statute did not apply where the Court of Claims plaintiff had brought suit in another court against the United States, rather than against an agent of the United States, for the same claim. When Congress reenacted the statute in 1948, it added the phrase "against the United States" to close this loophole. See Act of June 25, 1948, ch. 646, 62 Stat. 942; Johns-Manville Corp. v. United States, 855 F. 2d 1556, 1566-1567, and n. 15 (CA Fed. 1988).212standard), he sued in the Court of Claims on allegations that he had been underpaid by more than $4.3 million. Earlier the same day, the plaintiff had filed a suit in Federal District Court "for the recovery of the same amount for the same gold bullion surrendered." Id., at 439. The Court of Claims observed that "[t]he only distinction between the two suits instituted in the District Court and in this court is that the action in the District Court was made to sound in tort and the action in this court was alleged on contract." Id., at 440. Because the two actions were based on the same operative facts, the court dismissed the Court of Claims action for lack of jurisdiction, finding it to be "clear that the word 'claim,' as used in section 154, ... has no reference to the legal theory upon which a claimant seeks to enforce his demand." Ibid.These precedents demonstrate that under the immediate predecessor of § 1500, the comparison of the two cases for purposes of possible dismissal would turn on whether the plaintiff's other suit was based on substantially the same operative facts as the Court of Claims action, at least if there was some overlap in the relief requested.6 See Skinner & Eddy, supra; Corona Coal, supra. That the two actions were based on different legal theories did not matter. See British American Tobacco, supra. Since Keene has given us no reason to doubt that these cases represented settled law when Congress reenacted the "claim for or in respect to which" language in 1948, see 62 Stat. 942, we apply the presumption that Congress was aware of these earlier judicial interpretations and, in effect, adopted them. Lorillard v. Pons, 434 U. S. 575, 580 (1978); cf. United States v. Powell, 379 U. S. 48, 55, n. 13 (1964) (presumption does6 Because the issue is not presented on the facts of this case, we need not decide whether two actions based on the same operative facts, but seeking completely different relief, would implicate § 1500. Cf. Casman v. United States, 135 Ct. Cl. 647 (1956); Boston Five Cents Savings Bank, FSB v. United States, 864 F.2d 137 (CA Fed. 1988).213not apply when there is no "settled judicial construction" at the time of reenactment). The decision in British American Tobacco strikes us, moreover, as a sensible reading of the statute, for it honors Congress's decision to limit Court of Federal Claims jurisdiction not only as to claims "for ... which" the plaintiff has sued in another court, but as to those "in respect to which" he has sued elsewhere as well. While the latter language does not set the limits of claim identity with any precision, it does make it clear that Congress did not intend the statute to be rendered useless by a narrow concept of identity providing a correspondingly liberal opportunity to maintain two suits arising from the same factual foundation.Keene nonetheless argues, for the first time in its merits brief,7 that "[a] claim brought outside the [Court of Federal Claims] is 'for or in respect to' a claim in the [Court of Federal Claims only] when claim-splitting law would treat them as the same-i. e., require them to be joined in a single suit-if the two claims were both brought against the United States." Brief for Petitioner 20. Under this theory, § 1500 would not apply to a Court of Federal Claims plaintiff unless his suit pending in the other court rested on a legal theory that could have been pleaded (as Keene's could not have been) in the Court of Federal Claims. But this reinterpretation of § 1500 is bound to fail, not because novelty is always fatal in the construction of an old statute, but because the novel proposition in Keene's suggested reading would have rendered the statute useless, in all or nearly all instances, to effect the very object it was originally en-7 Keene argued in its petition for certiorari that the claim it raised in its third-party action in Miller was not based on the same facts as its complaint in Keene I. Keene did not press this argument after we granted the writ, and, in any event, we see no reason to disturb the rulings to the contrary by both courts below. See 962 F. 2d, at 1024 ("[W]e have no quarrel with the [Court of Federal Claims] determination that the underlying facts in Miller and Keene I are the same").214acted to accomplish. Keene fails to explain how the original statute would have applied to the cotton claimants, whose tort actions brought in other courts were beyond the jurisdiction of the Court of Claims, just as tort cases are outside the jurisdiction of the Court of Federal Claims today.8 Keene's theory was squarely rejected in British American Tobacco,9 and it must be rejected again this time.8 It is not that Keene has not tried to meet the objection. Keene assumes, contrary to the plain text, that the statute here is not jurisdictional, arguing instead that it was meant to supplement the formalistic 19th-century concept of res judicata. According to Keene, res judicata would not have barred a cotton claimant from instigating an action against a federal officer who had acted for the Government, even though the claimant had lost an otherwise identical action against the Government itself (and vice versa), the difference between the named defendants being significant at that time. On the assumption that the statute eliminated nonidentity of parties defendant as a barrier to the application of res judicata, Keene then argues that causes of action were treated as identical in those days if the same evidence was used to prove multiple claims. On this view of the law, Keene concludes, multiple cotton claims would have been treated as the same, and the statute would have barred the Court of Claims suit, just as Congress intended. Reply Brief for Petitioner 7. Even on its own terms, however, this argument fails, for the Court of Claims in 1868 had no jurisdiction to try a tort action for conversion, however similar it might have been for res judicata purposes to the statutory action within that court's jurisdiction. Accordingly, under Keene's claim-splitting theory, the conversion action would not have been treated as identical with the statutory action; each would have survived, leaving the statute useless to solve the problem Congress was addressing.9Keene claims that its view represents "well-established law," citing Allied Materials & Equipment Co. v. United States, 210 Ct. Cl. 714 (1976) (per curiam), and Casman v. United States, supra. Brief for Petitioner 15. In Casman, however, the plaintiff was seeking completely different relief in the Court of Claims and the District Court, and later cases have read Casman as limited to that situation. See Johns-Manville Corp., 855 F. 2d, at 1566-1567; Boston Five Cents Savings Bank, FSB v. United States, 864 F. 2d, at 139. Although it is not clear whether the plaintiff in Allied Materials was seeking completely different relief in the District Court, the Court of Claims simply applied Casman without much explanation. Neither Casman nor Allied Materials discussed, much less purported to overrule, British American Tobacco Co. v. United States, 89 Ct. Cl. 438 (1939), a case that undoubtedly is well established. See, e. g.,215IIIFinally, Keene takes the tack that if we adopt the Court of Appeals's construction of § 1500, we will be announcing "a new rule of law" that ought to be applied only prospectively under the test set out in Chevron Oil Co. v. Huson, 404 U. S. 97 (1971). Brief for Petitioner 42-43. Even assuming that this call for "pure prospectivity," see James B. Beam Distilling Co. v. Georgia, 501 U. S. 529, 544 (1991) (opinion of SOUTER, J.), might fairly fall within the questions presented,lO there is no need to address it because, as the Government points out, Keene's claims were dismissed under well-settled law.The Court of Appeals, to be sure, announced that it was overruling five cases: Tecon Engineers, Inc. v. United States, 170 Ct. Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U. S. 976 (1966); Casman v. United States, 135 Ct. Cl. 647 (1956); Boston Five Cents Savings Bank, FSB v. United States, 864 F. 2d 137 (CA Fed. 1988); Brown v. United States, 175 Ct. Cl. 343, 358 F.2d 1002 (1966) (per curiam); and Hossein v. United States, 218 Ct. Cl. 727 (1978) (per curiam). And while Keene contends that nothing less than these repudiations of precedent would have sufficed to dismiss its suits, we read the five cases as supporting neither Keene's position that the Court of Federal Claims had jurisdiction over its cases nor its plea for pure prospectivity of the overruling decision.Johns-Manville Corp., supra, at 1562-1563; Los Angeles Shipbuilding & Drydock Corp. v. United States, 138 Ct. Cl. 648, 652, 152 F. Supp. 236, 238 (1957); Hill v. United States, 8 Cl. Ct. 382, 386-388 (1985). Accordingly, Keene's appeal to "well-established law" is misplaced.10 The questions on which we granted certiorari contain no direct mention of prospectivity, see Pet. for Cert. i, although Keene did argue in its petition that Tecon Engineers should be overruled only prospectively, see Pet. for Cert. 13, and the Court of Appeals did consider, and reject, the argument that its ruling should only be prospectively applied, see 962 F. 2d, at 1025.216In applying § 1500 to the facts of this case, we find it unnecessary to consider, much less repudiate, the "judicially created exceptions" to § 1500 found in Tecon Engineers, Casman, and Boston Five. See 962 F. 2d, at 1021. Tecon Engineers held that a later filed action in another court does not oust the Court of Federal Claims of jurisdiction over an earlier filed complaint; our decision turns on Keene's earlier filed District Court actions, and even Keene now concedes it to be "unnecessary for the Court to address the Tecon question" in ruling on the dismissal of Keene's claims. Reply Brief for Petitioner 14, n. 14; see n. 4, supra. The Casman court recognized an exception (followed in Boston Five) for plaintiffs who seek distinctly different types of relief in the two courts; here, Keene had sought monetary relief in each of the cases pending when it filed the complaints seeking monetary relief in Keene I and Keene II. See n. 6, supra. In Brown, the Court of Claims reinstated a claim after the plaintiff's District Court action for the same claim had been dismissed, on the grounds that the other suit was "no longer 'pending'" and had itself been dismissed because jurisdiction lay exclusively in the Court of Claims. 175 Ct. Cl., at 348, 358 F. 2d, at 1004. Brown's narrow reasoning, that § 1500 does not apply after dismissal of an earlier filed District Court suit brought in derogation of the Court of Federal Claims's exclusive jurisdiction, was echoed in Hossein, a per curiam order citing neither Brown, nor any other case, on this pointY See also Boston Five, supra, at 139-140 (following Hossein). Since Keene's District Court actions were not, and could not have been, dis-11 We note that both the Brown and Hossein courts failed to consider the possibility that the District Court, in such a situation, could transfer the case to the Court of Federal Claims under a statute first adopted in 1960. See Act of Sept. 13, 1960, § 1, 74 Stat. 912 (codified at 28 U. S. C. § 1406(c) (1964 ed.)); Act of Apr. 2, 1982, § 301(a), 96 Stat. 55 (codified at 28 U. S. C. § 1631).217missed on the ground of falling within the exclusive jurisdiction of the Court of Federal Claims, Keene gets no support from Brown and Hossein.12 Thus, there is no "new principle of law" at work in ruling against Keene, see Chevron Oil, supra, at 106, and no need to plunge into retroactivity analysis.13IVWe have said nothing until now about Keene's several policy arguments, and now can only answer that Keene addresses the wrong forum. I t may well be, as Keene argues, that § 1500 operates in some circumstances to deprive plaintiffs of an opportunity to assert rights that Congress has generally made available to them "under the complex legal and jurisdictional schemes that govern claims against the Government." Brief for Petitioner 15. The trial judge in this case was not the first to call this statute anachronistic, see 12 Cl. Ct., at 205; A. C. Seeman, Inc. v. United States, 5 Cl. Ct. 386, 389 (1984), and there is a good argument that, even when first enacted, the statute did not actually perform the preclusion function emphasized by its sponsor, see Schwartz, 55 Geo. L. J., at 579. But the "proper theater" for such arguments, as we told another disappointed claimant many years ago, "is the halls of Congress, for that branch of the government has limited the jurisdiction of the Court of Claims." 14 Smoot's Case, 15 Wall. 36, 45 (1873). We enjoy no "liberty to add an exception ... to remove12 Brown and Hossein do not survive our ruling today, for they ignored the time-of-filing rule discussed in Part II -A, supra.13 Keene also asks the Court to "make clear that, if Keene refiles the same claims, equitable tolling would be available to eliminate any limitations bar." Brief for Petitioner 45. But any response to this request would be an advisory opinion.14 A recent attempt to repeal § 1500 failed in Congress. See S. 2521, 102d Cong., 2d Sess., § W(c) (1992); 138 Congo Rec. S4830-84832 (Apr. 2, 1992).218apparent hardship," Corona Coal, 263 U. S., at 540, and therefore enforce the statute.The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1992SyllabusKEENE CORP. v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUITNo. 92-166. Argued March 23, 1993-Decided May 24, 1993Petitioner Keene Corporation has been sued by thousands of plaintiffs alleging injury from exposure to asbestos fibers and dust released from Keene products. Claiming that it was following Government specifications in including asbestos within products supplied to Government projects, and that it actually bought asbestos fiber from the Government, Keene filed two complaints against the United States in the Court of Federal Claims to recoup some of the money it was paying to litigate and settle the asbestos suits. At the time it filed each of the complaints, Keene had a similar claim pending in another court; the other actions were dismissed before the Court of Federal Claims ordered the dismissals at issue here. The Court of Federal Claims dismissed both cases on the authority of 28 U. S. C. § 1500, which prohibits it from exercising jurisdiction over a claim "for or in respect to which" the plaintiff "has [a suit or process] pending" in any other court, finding that Keene had the same claims pending in other courts when it filed the cases. The Court of Appeals affirmed.Held: Section 1500 precludes Court of Federal Claims jurisdiction over Keene's actions. Pp. 205-218.(a) In applying the jurisdictional bar here by looking to the facts existing when Keene filed each of its complaints, the Court of Federal Claims followed the longstanding principle that a court's jurisdiction depends upon the state of things at the time the action is brought. Mollan v. Torrance, 9 Wheat. 537, 539. Keene gives no convincing reason for dispensing with this rule in favor of one that would look to the facts at the time of the Court of Federal Claims' ruling on a motion to dismiss. Although some of the provisions surrounding § 1500 use the phrase "jurisdiction to render judgment," § 1500 speaks of "jurisdiction," without more; this fact only underscores the Court's duty to refrain from reading into the statute a phrase that Congress has left out. Keene's appeal to statutory history is no more availing, since Congress expressed no clear intent that a shift in the provision's language from "file or prosecute" to "jurisdiction" indicated a change in the substantive law. Pp.205-209.(b) For the purposes of a possible dismissal under § 1500, claims must be compared to determine whether the plaintiff has a suit pending in201another court "for or in respect to" the claim raised in the Court of Federal Claims. That comparison turns on whether the plaintiff's other suit is based on substantially the same operative facts as the Court of Federal Claims action, at least if there is some overlap in the relief requested, see Ex parte Skinner & Eddy Corp., 265 U. S. 86; Corona Coal Co. v. United States, 263 U. S. 537, not on whether the actions are based on different legal theories, see British American Tobacco Co. v. United States, 89 Ct. Cl. 438 (per curiam). Since this interpretation of § 1500's immediate predecessor represented settled law when Congress reenacted the "for or in respect to" language in 1948, the presumption that Congress was aware of the earlier judicial interpretations and, in effect, adopted them is applied here. Thus, the Court rejects Keene's theory that § 1500 does not apply here because the other pending suits rested on legal theories that could not have been pleaded in the Court of Federal Claims. Pp. 210-214.(c) There is no need to address the question whether the Court of Appeals's construction of § 1500 is "a new rule of law" that ought to be applied only prospectively under the test set out in Chevron Oil Co. v. Huson, 404 U. S. 97, because Keene's claims were dismissed under wellsettled law. Finally, Keene's policy arguments should be addressed to Congress. Pp.215-218.962 F.2d 1013, affirmed.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 218.Richard D. Taranto argued the cause for petitioner. With him on the briefs were Joel 1. Klein, John H. Kazanjian, Irene C. Warshauer, Stuart E. Rickerson, and John G. O'Brien.Deputy Solicitor General Wallace argued the cause for the United States. On the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, Robert A. Long, Jr., and Barbara C. Biddle. **Briefs of amici curiae urging reversal were filed for the State of Alaska by Charles E. Cole, Attorney General, and Ronald G. Birch; for the State of Hawaii by Robert A. Marks, Attorney General, and Steven S. Michaels, Deputy Attorney General; for the Chamber of Commerce202Full Text of Opinion

1988_87-963

JUSTICE MARSHALL delivered the opinion of the Court.Section 170 of the Internal Revenue Code of 1954 (Code), 26 U.S.C. § 170, permits a taxpayer to deduct from gross income the amount of a "charitable contribution." The Code defines that term as a "contribution or gift" to certain eligible donees, including entities organized and operated exclusively for religious purposes. [Footnote 1] We granted certiorari to determine Page 490 U. S. 684 whether taxpayers may deduct as charitable contributions payments made to branch churches of the Church of Scientology (Church) in order to receive services known as "auditing" and "training." We hold that such payments are not deductible.IScientology was founded in the 1950's by L. Ron Hubbard. It is propagated today by a "mother church" in California and by numerous branch churches around the world. The mother church instructs laity, trains and ordains ministers, and creates new congregations. Branch churches, known as "franchises" or "missions," provide Scientology services at the local level, under the supervision of the mother church. Church of Scientology of California v. Commissioner, 823 F.2d 1310, 1313 (CA9 1987), cert. denied, 486 U. S. 1015 (1988).Scientologists believe that an immortal spiritual being exists in every person. A person becomes aware of this spiritual dimension through a process known as "auditing." [Footnote 2] Auditing involves a one-to-one encounter between a participant (known as a "preclear") and a Church official (known as Page 490 U. S. 685 an "auditor"). An electronic device, the E-meter, helps the auditor identify the preclear's areas of spiritual difficulty by measuring skin responses during a question and answer session. Although auditing sessions are conducted one on one, the content of each session is not individually tailored. The preclear gains spiritual awareness by progressing through sequential levels of auditing, provided in short blocks of time known as "intensives." 83 T.C. 575, 577 (1984), aff'd, 822 F.2d 844 (CA9 1987).The Church also offers members doctrinal courses known as "training." Participants in these sessions study the tenets of Scientology and seek to attain the qualifications necessary to serve as auditors. Training courses, like auditing sessions, are provided in sequential levels. Scientologists are taught that spiritual gains result from participation in such courses. 83 T.C. at 577.The Church charges a "fixed donation," also known as a "price" or a "fixed contribution," for participants to gain access to auditing and training sessions. These charges are set forth in schedules, and prices vary with a session's length and level of sophistication. In 1972, for example, the general rates for auditing ranged from $625 for a 12 1/2-hour auditing intensive, the shortest available, to $4,250 for a 100-hour intensive, the longest available. Specialized types of auditing required higher fixed donations: a 12 1/2-hour "Integrity Processing" auditing intensive cost $750; a 12 1/2-hour "Expanded Dianetics" auditing intensive cost $950. This system of mandatory fixed charges is based on a central tenet of Scientology known as the "doctrine of exchange," according to which any time a person receives something, he must pay something back. Id. at 577-578. In so doing, a Scientologist maintains "inflow" and "outflow," and avoids spiritual decline. 819 F.2d 1212, 1222 (CA1 1987).The proceeds generated from auditing and training sessions are the Church's primary source of income. The Church promotes these sessions not only through newspaper, Page 490 U. S. 686 magazine, and radio advertisements, but also through free lectures, free personality tests, and leaflets. The Church also encourages, and indeed rewards with a 5% discount, advance payment for these sessions. 822 F.2d at 847. The Church often refunds unused portions of prepaid auditing or training fees, less an administrative charge.Petitioners in these consolidated cases each made payments to a branch church for auditing or training sessions. They sought to deduct these payments on their federal income tax returns as charitable contributions under § 170. Respondent Commissioner, the head of the Internal Revenue Service (IRS), disallowed these deductions, finding that the payments were not charitable contributions within the meaning of § 170. [Footnote 3]Petitioners sought review of these determinations in the Tax Court. That court consolidated for trial the cases of the three petitioners in No. 87-1616: Katherine Jean Graham, Richard M. Hermann, and David Forbes Maynard. The petitioner in No. 87-963, Robert L. Hernandez, agreed to be bound by the findings in the consolidated Graham trial, reserving his right to a separate appeal. Before trial, the Commissioner stipulated that the branch churches of Scientology are religious organizations entitled to receive tax-deductible charitable contributions under the relevant sections of the Code. This stipulation isolated as the sole statutory issue whether payments for auditing or training sessions constitute "contribution[s] or gift[s]" under § 170. [Footnote 4] Page 490 U. S. 687The Tax Court held a 3-day bench trial during which the taxpayers and others testified and submitted documentary exhibits describing the terms under which the Church promotes and provides auditing and training sessions. Based on this record, the court upheld the Commissioner's decision. 83 T.C. 575 (1984). It observed first that the term "charitable contribution" in § 170 is synonymous with the word "gift," which case law had defined "as a voluntary transfer of property by the owner to another without consideration therefor." Id. at 580, quoting DeJong v. Commissioner, 36 T.C. 896, 899 (1961) (emphasis in original), aff'd, 309 F.2d 373 (CA9 1962). It then determined that petitioners had received consideration for their payments, namely, "the benefit of various religious services provided by the Church of Scientology." 83 T.C. at 580. The Tax Court also rejected the taxpayers' constitutional challenges based on the Establishment and Free Exercise Clauses of the First Amendment.The Courts of Appeals for the First Circuit in petitioner Hernandez's case, and for the Ninth Circuit in Graham, Hermann, and Maynard's case, affirmed. The First Circuit rejected Hernandez's argument that, under § 170, the IRS' ordinary inquiry into whether the taxpayer received consideration for his payment should not apply to "the return of a commensurate religious benefit, as opposed to an economic or financial benefit." 819 F.2d at 1217 (emphasis in original). Page 490 U. S. 688 The court found"no indication that Congress intended to distinguish the religious benefits sought by Hernandez from the medical, educational, scientific, literary, or other benefits that could likewise provide the quid for the quo of a nondeductible payment to a charitable organization."Ibid. The court also rejected Hernandez's argument that it was impracticable to put a value on the services he had purchased, noting that the Church itself had "established and advertised monetary prices" for auditing and training sessions, and that Hernandez had not claimed that these prices misstated the cost of providing these sessions. Id. at 1218.Hernandez's constitutional claims also failed. Because § 170 created no denominational preference on its face, Hernandez had shown no Establishment Clause violation. Id. at 1218-1221. As for the Free Exercise Clause challenge, the court determined that denying the deduction did not prevent Hernandez from paying for auditing and training sessions, and thereby observing Scientology's doctrine of exchange. Moreover, granting a tax exemption would compromise the integrity and fairness of the tax system. Id. at 1221-1225.The Ninth Circuit also found that the taxpayers had received a "measurable, specific return . . . as a quid pro quo for the donation" they had made to the branch churches. 822 F.2d at 848. The court reached this result by focusing on "the external features" of the auditing and training transactions, an analytic technique which "serves as an expedient for any more intrusive inquiry into the motives of the payor." Ibid. Whether a particular exchange generated secular or religious benefits to the taxpayer was irrelevant, for under § 170, "[i]t is the structure of the transaction, and not the type of benefit received, that controls." Id. at 849.The Ninth Circuit also rejected the taxpayers' constitutional arguments. The tax deduction provision did not violate the Establishment Clause, because § 170 is "neutral in its design," and reflects no intent "to visit a disability on a particular Page 490 U. S. 689 religion." Id. at 853. Furthermore, that the taxpayers would"have less money to pay to the Church, or that the Church [would] receive less money, [did] not rise to the level of a burden on appellants' ability to exercise their religious beliefs."Id. at 851. Indeed, because the taxpayers could still make charitable donations to the branch church, they were "not put to the choice of abandoning the doctrine of exchange or losing the government benefit, for they may have both." Ibid. Finally, the court noted that the compelling governmental interest in "the maintenance of a sound and uniform tax system" counseled against granting a free exercise exemption. Id. at 852-853.We granted certiorari, 485 U.S. 1005 (1988); 486 U.S. 1022 (1988), to resolve a Circuit conflict concerning the validity of charitable deductions for auditing and training payments. [Footnote 5] We now affirm.IIFor over 70 years, federal taxpayers have been allowed to deduct the amount of contributions or gifts to charitable, religious, and other eleemosynary institutions. See 2 B. Bittker, Federal Taxation of Income, Estates and Gifts � 35.1.1 (1981) (tracing history of charitable deduction). Section 170, the present provision, was enacted in 1954; it requires a taxpayer claiming the deduction to satisfy a number of conditions. [Footnote 6] The Commissioner's stipulation in this case, however, Page 490 U. S. 690 has narrowed the statutory inquiry to one such condition: whether petitioners' payments for auditing and training sessions are "contribution[s] or gift[s]" within the meaning of § 170.The legislative history of the "contribution or gift" limitation, though sparse, reveals that Congress intended to differentiate between unrequited payments to qualified recipients and payments made to such recipients in return for goods or services. Only the former were deemed deductible. The House and Senate Reports on the 1954 tax bill, for example, both define "gifts" as payments "made with no expectation of a financial return commensurate with the amount of the gift." S.Rep. No. 1622, 83d Cong., 2d Sess., 196 (1954); H.R.Rep. No. 1337, 83d Cong., 2d Sess., A44 (1954). Using payments to hospitals as an example, both Reports state that the gift characterization should not apply to"a payment by an individual to a hospital in consideration of a binding obligation to provide medical treatment for the individual's employees. It would apply only if there were no expectation of any quid pro quo from the hospital."S.Rep. No. 1622, supra, at 196 (emphasis added); H.Rep. No. 1337, supra, at A44 (emphasis added). [Footnote 7]In ascertaining whether a given payment was made with "the expectation of any quid pro quo," S.Rep. No. 1622, supra, at 196; H.Rep. No. 1337, supra, at A44, the IRS has customarily examined the external features of the transaction in question. This practice has the advantage of obviating Page 490 U. S. 691 the need for the IRS to conduct imprecise inquiries into the motivations of individual taxpayers. The lower courts have generally embraced this structural analysis. See, e.g., Singer Co. v. United States, 449 F.2d 413, 422-423 (Ct.Cl.1971) (applying this approach and collecting cases), cited in United States v. American Bar Endowment, 477 U. S. 105, 477 U. S. 117 (1986); see also 2 B. Bittker, supra, at � 35.1.3 (collecting cases). We likewise focused on external features in United States v. American Bar Endowment, supra, to resolve the taxpayers' claims that they were entitled to partial deductions for premiums paid to a charitable organization for insurance coverage; the taxpayers contended that they had paid unusually high premiums in an effort to make a contribution along with their purchase of insurance. We upheld the Commissioner's disallowance of the partial deductions because the taxpayers had failed to demonstrate, at a minimum, the existence of comparable insurance policies with prices lower than those of the policy they had each purchased. In so doing, we stressed that "[t]he sine qua non of a charitable contribution is a transfer of money or property without adequate consideration." Id. at 477 U. S. 118 (emphasis added in part). [Footnote 8] In light of this understanding of § 170, it is readily apparent that petitioners' payments to the Church do not qualify as "contribution[s] or gift[s]." As the Tax Court found, these payments were part of a quintessential quid pro quo exchange: in return for their money, petitioners received an identifiable benefit, namely, auditing and training sessions. The Church established fixed price schedules for auditing and training sessions in each branch church; it calibrated particular prices to auditing or training sessions of particular lengths and levels of sophistication; it returned a refund if auditing and training services went unperformed; it distributed "account Page 490 U. S. 692 cards" on which persons who had paid money to the Church could monitor what prepaid services they had not yet claimed; and it categorically barred provision of auditing or training sessions for free. [Footnote 9] Each of these practices reveals the inherently reciprocal nature of the exchange.Petitioners do not argue that such a structural analysis is inappropriate under § 170, or that the external features of the auditing and training transactions do not strongly suggest a quid pro quo exchange. Indeed, the petitioners in the consolidated Graham case conceded at trial that they expected to receive specific amounts of auditing and training in return for their payments. 822 F.2d at 850. Petitioners argue instead that they are entitled to deductions because a quid pro quo analysis is inappropriate under § 170 when the benefit a taxpayer receives is purely religious in nature. Along the same lines, petitioners claim that payments made for the right to participate in a religious service should be automatically deductible under § 170.We cannot accept this statutory argument for several reasons. First, it finds no support in the language of § 170. Whether or not Congress could, consistent with the Establishment Clause, provide for the automatic deductibility of a payment made to a church that either generates religious benefits or guarantees access to a religious service, that is a choice Congress has thus far declined to make. Instead, Congress has specified that a payment to an organization operated exclusively for religious (or other eleemosynary) purposes Page 490 U. S. 693 is deductible only if such a payment is a "contribution or gift." 26 U.S.C. § 170(c). The Code makes no special preference for payments made in the expectation of gaining religious benefits or access to a religious service. Foley v. Commissioner, 844 F.2d 94, 98 (CA2 1988) (Newman, J., dissenting), cert. pending, No. 88-102. The House and Senate Reports on § 170, and the other legislative history of that provision, offer no indication that Congress' failure to enact such a preference was an oversight.Second, petitioners' deductibility proposal would expand the charitable contribution deduction far beyond what Congress has provided. Numerous forms of payments to eligible donees plausibly could be categorized as providing a religious benefit or as securing access to a religious service. For example, some taxpayers might regard their tuition payments to parochial schools as generating a religious benefit or as securing access to a religious service; such payments, however, have long been held not to be charitable contributions under § 170. Foley, supra, at 98, citing Winters v. Commissioner, 468 F.2d 778 (CA2 1972); see id. at 781 (noting Congress' refusal to enact legislation permitting taxpayers to deduct parochial school tuition payments). Taxpayers might make similar claims about payments for church-sponsored counseling sessions or for medical care at church-affiliated hospitals that otherwise might not be deductible. Given that, under the First Amendment, the IRS can reject otherwise valid claims of religious benefit only on the ground that a taxpayers' alleged beliefs are not sincerely held, but not on the ground that such beliefs are inherently irreligious, see United States v. Ballard, 322 U. S. 78 (1944), the resulting tax deductions would likely expand the charitable contribution provision far beyond its present size. We are loath to effect this result in the absence of supportive congressional intent. Cf. United States v. Lee, 455 U. S. 252, 455 U. S. 259-261 (1982). Page 490 U. S. 694Finally, the deduction petitioners seek might raise problems of entanglement between church and state. If framed as a deduction for those payments generating benefits of a religious nature for the payor, petitioners' proposal would inexorably force the IRS and reviewing courts to differentiate "religious" benefits from "secular" ones. If framed as a deduction for those payments made in connection with a religious service, petitioners' proposal would force the IRS and the judiciary into differentiating "religious" services from "secular" ones. We need pass no judgment now on the constitutionality of such hypothetical inquiries, but we do note that "pervasive monitoring" for "the subtle or overt presence of religious matter" is a central danger against which we have held the Establishment Clause guards. Aguilar v. Felton, 473 U. S. 402, 473 U. S. 413 (1985); see also Widmar v. Vincent, 454 U. S. 263, 454 U. S. 272, n. 11 (1981) ("[T]he University would risk greater entanglement' by attempting to enforce its exclusion of `religious worship' and `religious speech'" than by opening its forum to religious as well as nonreligious speakers); cf. Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 450 U. S. 716 (1981).Accordingly, we conclude that petitioners' payments to the Church for auditing and training sessions are not "contribution[s] or gift[s]" within the meaning of that statutory expression. [Footnote 10]IIIWe turn now to petitioners' constitutional claims based on the Establishment Clause and the Free Exercise Clause of the First Amendment. Page 490 U. S. 695APetitioners argue that denying their requested deduction violates the Establishment Clause in two respects. First, § 170 is said to create an unconstitutional denominational preference by according disproportionately harsh tax status to those religions that raise funds by imposing fixed costs for participation in certain religious practices. Second, § 170 allegedly threatens governmental entanglement with religion because it requires the IRS to entangle itself with religion by engaging in "supervision of religious beliefs and practices" and "valuation of religious services." Brief for Petitioners 44.Our decision in Larson v. Valente, 456 U. S. 228 (1982), supplies the analytic framework for evaluating petitioners' contentions. Larson teaches that, when it is claimed that a denominational preference exists, the initial inquiry is whether the law facially differentiates among religions. If no such facial preference exists, we proceed to apply the customary three-pronged Establishment Clause inquiry derived from Lemon v. Kurtzman, 403 U. S. 602 (1971). [Footnote 11]Thus analyzed, § 170 easily passes constitutional muster. The line which § 170 draws between deductible and nondeductible payments to statutorily qualified organizations does not differentiate among sects. Unlike the Minnesota statute at issue in Larson, which facially exempted from state registration and reporting requirements only those religious organizations that derived more than half their funds from members, § 170 makes no "explicit and deliberate distinctions between different religious organizations," 456 Page 490 U. S. 696 U.S. at 456 U. S. 246-247, n. 23, applying instead to all religious entities.Section 170 also comports with the Lemon test. First, there is no allegation that § 170 was born of animus to religion in general or Scientology in particular. Cf. Larson, 456 U.S. at 456 U. S. 254-255 (history of Minnesota restriction reveals hostility to "Moonies" and intent to "get at . . . people that are running around airports"). The provision is neutral both in design and purpose.Second, the primary effect of § 170 -- encouraging gifts to charitable entities, including but not limited to religious organizations -- is neither to advance nor inhibit religion. It is not alleged here that § 170 involves "[d]irect government action endorsing religion or a particular religious practice." Wallace v. Jaffree, 472 U. S. 38, 472 U. S. 69 (1985) (O'CONNOR, J., concurring in judgment). It may be that a consequence of the quid pro quo orientation of the "contribution or gift" requirement is to impose a disparate burden on those charitable and religious groups that rely on sales of commodities or services as a means of fundraising, relative to those groups that raise funds primarily by soliciting unilateral donations. But a statute primarily having a secular effect does not violate the Establishment Clause merely because it "happens to coincide or harmonize with the tenets of some or all religions." McGowan v. Maryland, 366 U. S. 420, 366 U. S. 442 (1961); see also Bob Jones University v. United States, 461 U. S. 574, 461 U. S. 604, n. 30 (1983).Third, § 170 threatens no excessive entanglement between church and state. To be sure, ascertaining whether a payment to a religious institution is part of a quid pro quo transaction may require the IRS to ascertain from the institution the prices of its services and commodities, the regularity with which payments for such services and commodities are waived, and other pertinent information about the transaction. But routine regulatory interaction which involves no inquiries into religious doctrine, See Presbyterian Church in Page 490 U. S. 697 U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 393 U. S. 451 (1969), no delegation of state power to a religious body, see Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982), and no "detailed monitoring and close administrative contact" between secular and religious bodies, see Aguilar, 473 U.S. at 473 U. S. 414, does not of itself violate the nonentanglement command. See Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 471 U. S. 305-306 (1985) (stating that nonentanglement principle "does not exempt religious organizations from such secular governmental activity as fire inspections and building and zoning regulations" or the recordkeeping requirements of the Fair Labor Standards Act) (citation omitted). As we have observed supra at 490 U. S. 694, it is petitioners' interpretation of § 170, requiring the Government to distinguish between "secular" and "religious" benefits or services, which may be "fraught with the sort of entanglement that the Constitution forbids." Lemon, 403 U.S. at 403 U. S. 620.Nor does the application of § 170 to religious practices require the Government to place a monetary value on particular religious benefits. As an initial matter, petitioners' claim here raises no need for valuation, for they have alleged only that their payments are fully exempt from a quid pro quo analysis -- not that some portion of these payments is deductible because it exceeds the value of the acquired service. Cf. American Bar Endowment, 477 U.S. at 477 U. S. 117 (describing "dual character" payments) (citing, inter alia, Rev.Rul. 68-432, 1968-2 Cum.Bull. 104, 105); see n 10, supra. In any event, the need to ascertain what portion of a payment was a purchase and what portion was a contribution does not ineluctably create entanglement problems by forcing the Government to place a monetary value on a religious benefit. In cases where the economic value of a good or service is elusive -- where, for example, no comparable good or service is sold in the marketplace -- the IRS has eschewed benefit-focused valuation. Instead, it has often employed as an alternative Page 490 U. S. 698 method of valuation an inquiry into the cost (if any) to the donee of providing the good or service. See, e.g., Oppewal v. Commissioner, 468 F.2d 1000, 1002 (CA1 1972) (cost of providing a "religiously-oriented" education); Winters v. Commissioner, 468 F.2d 778 (CA2 1972) (same); DeJong v. Commissioner, 309 F.2d 373 (CA9 1962) (same). This valuation method, while requiring qualified religious institutions to disclose relevant information about church costs to the IRS, involves administrative inquiries that, as a general matter,"bear no resemblance to the kind of government surveillance the Court has previously held to pose an intolerable risk of government entanglement with religion."Tony and Susan Alamo Foundation, supra, at 471 U. S. 305; cf. Lemon, supra, at 403 U. S. 621-622 (school aid statute authorizing government inspection of parochial school records created impermissible "intimate and continuing relationship between church and state" because it required State "to determine which expenditures are religious and which are secular"). [Footnote 12]BPetitioners also contend that disallowance of their § 170 deductions violates their right to the free exercise of religion by "plac[ing] a heavy burden on the central practice of Scientology." Brief for Petitioners 47. The precise nature of this claimed burden is unclear, but it appears to operate in two ways. First, the deduction disallowance is said to deter adherents from engaging in auditing and training sessions. Second, the deduction disallowance is said to interfere with observance of the doctrine of exchange, which mandates equality of an adherent's "outflow" and "inflow." Page 490 U. S. 699The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden. Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 480 U. S. 141-142 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. at 450 U. S. 717-719; Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 220-221 (1972). It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds. Thomas, supra, at 450 U. S. 716. We do, however, have doubts whether the alleged burden imposed by the deduction disallowance on the Scientologists' practices is a substantial one. Neither the payment nor the receipt of taxes is forbidden by the Scientology faith generally, and Scientology does not proscribe the payment of taxes in connection with auditing or training sessions specifically. Cf. United States v. Lee, 455 U. S. 252, 455 U. S. 257 (1982). Any burden imposed on auditing or training therefore derives solely from the fact that, as a result of the deduction denial, adherents have less money available to gain access to such sessions. This burden is no different from that imposed by any public tax or fee; indeed, the burden imposed by the denial of the "contribution or gift" deduction would seem to pale by comparison to the overall federal income tax burden on an adherent. Likewise, it is unclear why the doctrine of exchange would be violated by a deduction disallowance so long as an adherent is free to equalize "outflow" with "inflow" by paying for as many auditing and training sessions as he wishes. See 822 F.2d at 850-853 (questioning substantiality of burden on Scientologists); 819 F.2d at 1222-1225 (same).In any event, we need not decide whether the burden of disallowing the § 170 deduction is a substantial one, for our decision in Lee establishes that even a substantial burden would be justified by the "broad public interest in maintaining a sound tax system," free of "myriad exceptions flowing Page 490 U. S. 700 from a wide variety of religious beliefs." 455 U.S. at 455 U. S. 260. In Lee, we rejected an Amish taxpayer's claim that the Free Exercise Clause commanded his exemption from Social Security tax obligations, noting that "[t]he tax system could not function if denominations were allowed to challenge the tax system" on the ground that it operated "in a manner that violates their religious belief." Ibid. That these cases involve federal income taxes, not the Social Security system, is of no consequence. Ibid. The fact that Congress has already crafted some deductions and exemptions in the Code also is of no consequence, for the guiding principle is that a tax "must be uniformly applicable to all, except as Congress provides explicitly otherwise." Id. at 455 U. S. 261 (emphasis added). Indeed, in one respect, the Government's interest in avoiding an exemption is more powerful here than in Lee; the claimed exemption in Lee stemmed from a specific doctrinal obligation not to pay taxes, whereas petitioners' claimed exemption stems from the contention that an incrementally larger tax burden interferes with their religious activities. This argument knows no limitation. We accordingly hold that petitioners' free exercise challenge is without merit.IVWe turn, finally, to petitioners' assertion that disallowing their claimed deduction is at odds with the IRS' longstanding practice of permitting taxpayers to deduct payments made to other religious institutions in connection with certain religious practices. Through the appellate stages of this litigation, this claim was framed essentially as one of selective prosecution. The Courts of Appeals for the First and Ninth Circuits summarily rejected this claim, finding no evidence of the intentional governmental discrimination necessary to support such a claim. 822 F.2d at 853 (no showing of "the type of hostility to a target of law enforcement that would support a claim of selective enforcement"); 819 F.2d at 1223 (no "discriminatory intent" proved). Page 490 U. S. 701In their arguments to this Court, petitioners have shifted emphasis. They now make two closely related claims. First, the IRS has accorded payments for auditing and training disparately harsh treatment compared to payments to other churches and synagogues for their religious services: recognition of a comparable deduction for auditing and training payments is necessary to cure this administrative inconsistency. Second, Congress, in modifying § 170 over the years, has impliedly acquiesced in the deductibility of payments to these other faiths; because payments for auditing and training are indistinguishable from these other payments, they fall within the principle acquiesced in by Congress that payments for religious services are deductible under § 170.Although the Commissioner demurred at oral argument as to whether the IRS, in fact, permits taxpayers to deduct payments made to purchase services from other churches and synagogues, Tr. of Oral Arg. 30-31, the Commissioner's periodic revenue rulings have stated the IRS' position rather clearly. A 1971 ruling, still in effect, states:"Pew rents, building fund assessments, and periodic dues paid to a church . . . are all methods of making contributions to the church, and such payments are deductible as charitable contributions within the limitations set out in section 170 of the Code."Rev.Rul. 70-47, 1970-1 Cum.Bull. 49 (superseding A.R.M. 2, Cum.Bull. 150 (1919)). We also assume for purposes of argument that the IRS also allows taxpayers to deduct "specified payments for attendance at High Holy Day services, for tithes, for torah readings and for memorial plaques." Foley v. Commissioner, 844 F.2d at 94, 96.The development of the present litigation, however, makes it impossible for us to resolve petitioners' claim that they have received unjustifiably harsh treatment compared to adherents of other religions. The relevant inquiry in determining whether a payment is a "contribution or gift" under § 170 is, as we have noted, not whether the payment secures religious Page 490 U. S. 702 benefits or access to religious services, but whether the transaction in which the payment is involved is structured as a quid pro quo exchange. To make such a determination in this case, the Tax Court heard testimony and received documentary proof as to the terms and structure of the auditing and training transactions; from this evidence it made factual findings upon which it based its conclusion of nondeductibility, a conclusion we have held consonant with § 170 and with the First Amendment.Perhaps because the theory of administrative inconsistency emerged only on appeal, petitioners did not endeavor at trial to adduce from the IRS or other sources any specific evidence about other religious faiths' transactions. The IRS' revenue rulings, which merely state the agency's conclusions as to deductibility, and which have apparently never been reviewed by the Tax Court or any other judicial body, also provide no specific facts about the nature of these other faiths' transactions. In the absence of such facts, we simply have no way (other than the wholly illegitimate one of relying on our personal experiences and observations) to appraise accurately whether the IRS' revenue rulings have correctly applied a quid pro quo analysis Page 490 U. S. 703 with respect to any or all of the religious practices in question. We do not know, for example, whether payments for other faiths' services are truly obligatory, or whether any or all of these services are generally provided whether or not the encouraged "mandatory" payment is made.The IRS' application of the "contribution or gift" standard may be right or wrong with respect to these other faiths, or it may be right with respect to some religious practices and wrong with respect to others. It may also be that some of these payments are appropriately classified as partially deductible "dual payments." With respect to those religions where the structure of transactions involving religious services is established not centrally, but by individual congregations, the proper point of reference for a quid pro quo analysis might be the individual congregation, not the religion as a whole. Only upon a proper factual record could we make these determinations. Absent such a record, we must reject petitioners' administrative consistency argument. [Footnote 13]Petitioners' congressional acquiescence claim fails for similar reasons. Even if one assumes that Congress has acquiesced in the IRS' ruling with respect to "[p]ew rents, building fund assessments, and periodic dues," Rev.Rul. 70-47, 1970-1 Cum.Bull. 49, the fact is that the IRS' 1971 ruling articulates no broad principle of deductibility, but instead merely identifies as deductible three discrete types of payments. Having before us no information about the nature or structure of these three payments, we have no way of discerning any possible unifying principle, let alone whether such a principle would embrace payments for auditing and training sessions.VFor the reasons stated herein, the judgments of the Courts of Appeals are herebyAffirmed

U.S. Supreme CourtHernandez v. Commissioner, 490 U.S. 680 (1989)Hernandez v. Commissioner of Internal RevenueNo. 87-963Argued November 28, 1988Decided June 5, 1989*490 U.S. 680SyllabusThe Church of Scientology (Church) provides "auditing" sessions designed to increase members' spiritual awareness and training courses at which participants study the tenets of the faith and seek to attain the qualifications necessary to conduct auditing sessions. Pursuant to a central tenet known as the "doctrine of exchange," the Church has set forth schedules of mandatory fixed prices for auditing and training sessions which vary according to a session's length and level of sophistication, and which are paid to branch churches. Under § 170 of the Internal Revenue Code of 1954, petitioners each sought to deduct such payments on their federal income tax returns as a "charitable contribution," which is defined as a "contribution or gift" to eligible donees. After respondent Commissioner of Internal Revenue (Commissioner or IRS) disallowed these deductions on the ground that the payments were not "charitable contributions," petitioners sought review in the Tax Court. That court upheld the Commissioner's decisions and rejected petitioners' constitutional challenges based on the Establishment and Free Exercise Clauses of the First Amendment. The Courts of Appeals affirmed on petitioners' separate appeals.Held: Payments made to the Church's branch churches for auditing and training services are not deductible charitable contributions under § 170. Pp. 490 U. S. 689-703.(a) Petitioners' payments are not "contribution[s] or gift[s]" within the meaning of § 170. The legislative history of the "contribution or gift" limitation reveals that Congress intended to differentiate between unrequited payments to qualified recipients, which are deductible, and payments made to such recipients with some expectation of a quid pro quo in terms of goods or services, which are not deductible. To ascertain whether a given payment was made with such an expectation, the external features of the transaction in question must be examined. Here, external features strongly suggest a quid pro quo exchange of petitioners' Page 490 U. S. 681 money for auditing and training sessions, since the Church established fixed prices for such sessions in each branch church; calibrated particular prices to sessions of particular lengths and sophistication levels; returned a refund if services went unperformed; distributed "account cards" for monitoring prepaid, but as-yet-unclaimed, services; and categorically barred the provision of free sessions. Petitioners' argument that a quid pro quo analysis is inappropriate when a payment to a church either generates purely religious benefits or guarantees access to a religious service is unpersuasive, since, by its terms, § 170 makes no special preference for such payments, and its legislative history offers no indication that this omission was an oversight. Moreover, petitioners' deductibility proposal would expand the charitable contribution deduction far beyond what Congress has provided to include numerous forms of payments that otherwise are not, or might not be, deductible. Furthermore, the proposal might raise problems of entanglement between church and state, since the IRS and reviewing courts would be forced to differentiate "religious" benefits or services from "secular" ones. Pp. 490 U. S. 689-694.(b) Disallowance of petitioners' § 170 deductions does not violate the Establishment Clause. Petitioners' argument that § 170 creates an unconstitutional denominational preference by according disproportionately harsh tax status to those religions that raise funds by imposing fixed costs for participation in certain religious practices is unpersuasive. Section 170 passes constitutional muster, since it does not facially differentiate among religious sects, but applies to all religious entities, and since it satisfies the requisite three-pronged inquiry under the Clause. First, the section is neutral both in design and purpose, there being no allegation that it was born of animus to religion in general or to Scientology in particular. Second, its primary effect -- encouraging gifts to charitable entities, including but not limited to religious organizations -- does not advance religion, there being no allegation that it involves direct governmental action endorsing religion or a particular religious practice. Its primary secular effect is not rendered unconstitutional merely because it happens to harmonize with the tenets of religions that raise funds by soliciting unilateral donations. Third, the section threatens no excessive entanglement between church and state. Although the IRS must ascertain the prices of a religious institution's services, the regularity with which such payments are waived, and other pertinent information about the transaction, this is merely routine regulatory interaction that does not involve the type of inquiries into religious doctrine, delegation of state power, or detailed monitoring and close administrative contact that would violate the nonentanglement command. Nor does the application of § 170 require the Government to place a monetary Page 490 U. S. 682 value on particular religious benefits. Petitioners' claim to the contrary raises no need for valuation, since they have alleged only that their payments are fully exempt from a quid pro quo analysis -- not that some portion of those payments is deductible because it exceeds the value of the acquired service. In any event, the need to ascertain what portion of a payment was a purchase and what portion was a contribution does not ineluctably create entanglement problems, since the IRS has eschewed benefit-focused valuation in cases where the economic value of a good or service is elusive, and has instead employed a valuation method which inquires into the cost (if any) to the donee of providing the good or service. This method involves merely administrative inquiries that, as a general matter, bear no resemblance to the kind of governmental surveillance that poses an intolerable risk of entanglement. Pp. 490 U. S. 695-698.(c) Disallowance of petitioners' § 170 deductions does not violate the Free Exercise Clause. Although it is doubtful that, as petitioners allege, the disallowance imposes a substantial burden on the central practice of Scientology by deterring adherents from engaging in auditing and training sessions and by interfering with their observance of the doctrine of exchange, United States v. Lee, 455 U. S. 252, 455 U. S. 260, establishes that even a substantial burden is justified by the broad public interest in maintaining a sound tax system, free of myriad exceptions flowing from a wide variety of religious beliefs. That this case involves federal income taxes, rather than the Social Security taxes considered in Lee, is of no consequence. Also of no consequence is the fact that the Code already contains some deductions and exemptions, since the guiding principle is that a tax must be uniformly applicable to all, except as Congress provides explicitly otherwise. Id. at 455 U. S. 261. Indeed, the Government's interest in avoiding an exemption is more powerful here than in Lee, in the sense that the claimed exemption there stemmed from a specific doctrinal obligation not to pay taxes, whereas there is no limitation to petitioners' argument that they are entitled to an exemption because an incrementally larger tax burden interferes with their religious activities. Pp. 490 U. S. 698-700.(d) Petitioners' assertion that disallowing their claimed deductions conflicts with the IRS' longstanding practice of permitting taxpayers to deduct payments to other religious institutions in connection with certain religious practices must be rejected in the absence of any specific evidence about the nature or structure of such other transactions. In the absence of those facts, this Court cannot appraise accurately whether IRS revenue rulings allowing deductions for particular religious payments correctly applied a quid pro quo analysis to the practices in question, and cannot discern whether those rulings contain any unifying Page 490 U. S. 683 principle that would embrace auditing and training session payments. Pp. 490 U. S. 700-703.819 F.2d 1212 and 822 F.2d 844, affirmed.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 490 U. S. 704. BRENNAN and KENNEDY, JJ., took no part in the consideration or decision of the cases.

1999_98-1161

nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity. Although Pap's contends that the ordinance is related to the suppression of expression because its preamble suggests that its actual purpose is to prohibit erotic dancing of the type performed at Kandyland, that is not how the Pennsylvania Supreme Court interpreted that language. Rather, the Pennsylvania Supreme Court construed the preamble to mean that one purpose of the ordinance was to combat negative secondary effects. That is, the ordinance is aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland, and not at suppressing the erotic message conveyed by this type of nude dancing. See 391 U. S., at 382; see also Boos v. Barry, 485 U. S. 312, 321. The Pennsylvania Supreme Court's ultimate conclusion that the ordinance was nevertheless content based relied on Justice White's position in dissent in Barnes that a ban of this type necessarily has the purpose of suppressing the erotic message of the dance. That view was rejected by a majority of the Court in Barnes, and is here rejected again. Pap's argument that the ordinance is "aimed" at suppressing expression through a ban on nude dancing is really an argument that Erie also had an illicit motive in enacting the ordinance. However, this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive. O'Brien, supra, at 382-383. Even if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is therefore de minimis. If States are to be able to regulate secondary effects, then such de minimis intrusions on expression cannot be sufficient to render the ordinance content based. See, e. g., Clark v. Community for Creative Non-Violence, 468 U. S. 288, 299. Thus, Erie's ordinance is valid if it satisfies the O'Brien test. Pp. 289-296.2. Erie's ordinance satisfies O'Brien's four-factor test. First, the ordinance is within Erie's constitutional power to enact because the city's efforts to protect public health and safety are clearly within its police powers. Second, the ordinance furthers the important government interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing. In terms of demonstrating that such secondary effects pose a threat, the city need not conduct new studies or produce evidence independent of that already generated by other cities, so long as the evidence relied on is reasonably believed to be relevant to the problem addressed. Renton v. Playtime Theatres, Inc., 475 U. S. 41, 51-52. Erie could reasonably280Syllabusrely on the evidentiary foundation set forth in Renton and Young v. American Mini Theatres, Inc., 427 U. S. 50, to the effect that secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood. See Renton, supra, at 51-52. In fact, Erie expressly relied on Barnes and its discussion of secondary effects, including its reference to Renton and American Mini Theatres. The evidentiary standard described in Renton controls here, and Erie meets that standard. In any event, the ordinance's preamble also relies on the city council's express findings that "certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare .... " The council members, familiar with commercial downtown Erie, are the individuals who would likely have had firsthand knowledge of what took place at, and around, nude dancing establishments there, and can make particularized, expert judgments about the resulting harmful secondary effects. Cf., e. g., FCC v. National Citizens Comm. for Broadcasting, 436 U. S. 775. The fact that this sort of leeway is appropriate in this case, which involves a content-neutral restriction that regulates conduct, says nothing whatsoever about its appropriateness in a case involving actual regulation of First Amendment expression. Also, although requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects, O'Brien requires only that the regulation further the interest in combating such effects. The ordinance also satisfies O'Brien's third factor, that the government interest is unrelated to the suppression of free expression, as discussed supra. The fourth O'Brien factor-that the restriction is no greater than is essential to the furtherance of the government interest-is satisfied as well. The ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The pasties and G-string requirement is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer's erotic message. See, e. g., Barnes, 501 U. S., at 572. Pp. 296-302.JUSTICE SCALIA, joined by JUSTICE THOMAS, agreed that the Pennsylvania Supreme Court's decision must be reversed, but disagreed with the mode of analysis that should be applied. Erie self-consciously modeled its ordinance on the public nudity statute upheld in Barnes v. Glen Theatre, Inc., 501 U. S. 560, calculating (one would have supposed reasonably) that the Pennsylvania courts would consider themselves bound by this Court's judgment on a question of federal constitutional law. That statute was constitutional not because it survived some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it was not subject to First Amendment scrutiny at all. Id., at 572 (SCALIA, J., concurring in281judgment). Erie's ordinance, too, by its terms prohibits not merely nude dancing, but the act-irrespective of whether it is engaged in for expressive purposes-of going nude in public. The facts that the preamble explains the ordinance's purpose, in part, as limiting a recent increase in nude live entertainment, that city councilmembers in supporting the ordinance commented to that effect, and that the ordinance includes in the definition of nudity the exposure of devices simulating that condition, neither make the law any less general in its reach nor demonstrate that what the municipal authorities really find objectionable is expression rather than public nakedness. That the city made no effort to enforce the ordinance against a production of Equus involving nudity that was being staged in Erie at the time the ordinance became effective does not render the ordinance discriminatory on its face. The assertion of the city's counsel in the trial court that the ordinance would not cover theatrical productions to the extent their expressive activity rose to a higher level of protected expression simply meant that the ordinance would not be enforceable against such productions if the Constitution forbade it. That limitation does not cause the ordinance to be not generally applicable, in the relevant sense of being targeted against expressive conduct. Moreover, even if it could be concluded that Erie specifically singled out the activity of nude dancing, the ordinance still would not violate the First Amendment unless it could be proved (as on this record it could not) that it was the communicative character of nude dancing that prompted the ban. See id., at 577. There is no need to identify "secondary effects" associated with nude dancing that Erie could properly seek to eliminate. The traditional power of government to foster good morals, and the acceptability of the traditional judgment that nude public dancing itself is immoral, have not been repealed by the First Amendment. Pp. 307-310.O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which REHNQUIST, C. J., and KENNEDY, SOUTER, and BREYER, JJ., joined, and an opinion with respect to Parts III and IV, in which REHNQUIST, C. J., and KENNEDY and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 302. SOUTER, J., filed an opinion concurring in part and dissenting in part, post, p. 310. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p. 317.Gregory A. Karle argued the cause for petitioners. With him on the briefs were Gerald J. Villella and Valerie J. Sprenkle.282John H. Weston argued the cause for respondent. With him on the briefs were G. Randall Garrou, Philip B. Friedman, and Cathy Crosson. *JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Parts III and IV; in which THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER join.The city of Erie, Pennsylvania, enacted an ordinance banning public nudity. Respondent Pap's A. M. (hereinafter*Briefs of amici curiae urging reversal were filed for Brevard County, Florida, by Scott L. Knox; for the American Liberties Institute et al. by Frederick H. Nelson, Lonnie N. Groot, and Anthony A. Garganese; for Erie County Citizen's Coalition Against Violent Pornography by Keith O. Barrows; for Morality in Media, Inc., et al. by Paul J. M cGeady, Bruce A. Taylor, and Janet M. LaRue; and for the National Family Legal Foundation by Len L. Munsil.Briefs of amici curiae urging affirmance were filed for the American Association for Nude Recreation by Robert T. Page; for the American Civil Liberties Union et al. by Steven R. Shapiro, Witold J. Walczak, Bruce J. Ennis, Jr., and Paul M. Smith; for Deja Vu Consulting, Inc., et al. by Bradley J. Shafer; for Feminists for Free Expression by Mary D. Dorman; for the First Amendment Lawyers Association by Randall D. B. Tigue, Steven H. Swander, and Richard L. Wilson; for the Thomas Jefferson Center for Protection of Free Expression et al. by J. Joshua Wheeler; and for Bill Conte, on behalf of The Dante Project: Inferno et al. by Jack R. Burns.Briefs of amici curiae were filed for the State of Kansas et al. by Carla J. Stovall, Attorney General of Kansas, Stephen R. McAllister, State Solicitor, Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, and Elise Porter, Assistant Solicitor, and by the Attorneys General for their respective States as follows: Alan G. Lance of Idaho, Richard P. Ieyoub of Louisiana, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Paul G. Summers of Tennessee, John Cornyn of Texas, Jan Graham of Utah, and Mark L. Earley of Virginia; and for Orange County, Florida, by Joel D. Prinsell.283Pap's), which operated a nude dancing establishment in Erie, challenged the constitutionality of the ordinance and sought a permanent injunction against its enforcement. The Pennsylvania Supreme Court, although noting that this Court in Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991), had upheld an Indiana ordinance that was "strikingly similar" to Erie's, found that the public nudity sections of the ordinance violated respondent's right to freedom of expression under the United States Constitution. 553 Pa. 348, 356, 719 A. 2d 273, 277 (1998). This case raises the question whether the Pennsylvania Supreme Court properly evaluated the ordinance's constitutionality under the First Amendment. We hold that Erie's ordinance is a content-neutral regulation that satisfies the four-part test of United States v. O'Brien, 391 U. S. 367 (1968). Accordingly, we reverse the decision of the Pennsylvania Supreme Court and remand for the consideration of any remaining issues.IOn September 28, 1994, the city council for the city of Erie, Pennsylvania, enacted Ordinance 75-1994, a public indecency ordinance that makes it a summary offense to knowingly or intentionally appear in public in a "state of nudity."**Ordinance 75-1994, codified as Article 711 of the Codified Ordinancesof the city of Erie, provides in relevant part:"1. A person who knowingly or intentionally, in a public place: "a. engages in sexual intercourse"b. engages in deviate sexual intercourse as defined by the Pennsylvania Crimes Code"c. appears in a state of nudity, or"d. fondles the genitals of himself, herself or another person commits Public Indecency, a Summary Offense."2. "Nudity" means the showing of the human male or female genital [sic], pubic area or buttocks with less than a fully opaque covering; the showing of the female breast with less than a fully opaque covering of any part of the nipple; the exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft,284Respondent Pap's, a Pennsylvania corporation, operated an establishment in Erie known as "Kandyland" that featured totally nude erotic dancing performed by women. To comply with the ordinance, these dancers must wear, at a minimum, "pasties" and a "G-string." On October 14, 1994, two days after the ordinance went into effect, Pap's filed a complaint against the city of Erie, the mayor of the city, and members of the city council, seeking declaratory relief and a permanent injunction against the enforcement of the ordinance.The Court of Common Pleas of Erie County granted the permanent injunction and struck down the ordinance as unconstitutional. Civ. No. 60059-1994 (Jan. 18, 1995), Pet. for Cert. 40a. On cross appeals, the Commonwealth Court reversed the trial court's order. 674 A. 2d 338 (1996).The Pennsylvania Supreme Court granted review and reversed, concluding that the public nudity provisions of the ordinance violated respondent's rights to freedom of expression as protected by the First and Fourteenth Amendments. 553 Pa. 348, 719 A. 2d 273 (1998). The Pennsylvania court first inquired whether nude dancing constitutes expressive conduct that is within the protection of the First Amendment. The court noted that the act of being nude, in and ofperineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola."3. "Public Place" includes all outdoor places owned by or open to the general public, and all buildings and enclosed places owned by or open to the general public, including such places of entertainment, taverns, restaurants, clubs, theaters, dance halls, banquet halls, party rooms or halls limited to specific members, restricted to adults or to patrons invited to attend, whether or not an admission charge is levied."4. The prohibition set forth in subsection l(c) shall not apply to: "a. Any child under ten (10) years of age; or"b. Any individual exposing a breast in the process of breastfeeding an infant under two (2) years of age."285itself, is not entitled to First Amendment protection because it conveys no message. Id., at 354, 719 A. 2d, at 276. Nude dancing, however, is expressive conduct that is entitled to some quantum of protection under the First Amendment, a view that the Pennsylvania Supreme Court noted was endorsed by eight Members of this Court in Barnes. 553 Pa., at 354, 719 A. 2d, at 276.The Pennsylvania court next inquired whether the government interest in enacting the ordinance was content neutral, explaining that regulations that are unrelated to the suppression of expression are not subject to strict scrutiny but to the less stringent standard of United States v. O'Brien, supra, at 377. To answer the question whether the ordinance is content based, the court turned to our decision in Barnes. 553 Pa., at 355-356, 719 A. 2d, at 277. Although the Pennsylvania court noted that the Indiana statute at issue in Barnes "is strikingly similar to the Ordinance we are examining," it concluded that "[u]nfortunately for our purposes, the Barnes Court splintered and produced four separate, non-harmonious opinions." 553 Pa., at 356, 719 A. 2d, at 277. After canvassing these separate opinions, the Pennsylvania court concluded that, although it is permissible to find precedential effect in a fragmented decision, to do so a majority of the Court must have been in agreement on the concept that is deemed to be the holding. See Marks v. United States, 430 U. S. 188 (1977). The Pennsylvania court noted that "aside from the agreement by a majority of the Barnes Court that nude dancing is entitled to some First Amendment protection, we can find no point on which a majority of the Barnes Court agreed." 553 Pa., at 358, 719 A. 2d, at 278. Accordingly, the court concluded that "no clear precedent arises out of Barnes on the issue of whether the [Erie] ordinance ... passes muster under the First Amendment." Ibid.Having determined that there was no United States Supreme Court precedent on point, the Pennsylvania court286conducted an independent examination of the ordinance to ascertain whether it was related to the suppression of expression. The court concluded that although one of the purposes of the ordinance was to combat negative secondary effects, "[i]nextricably bound up with this stated purpose is an unmentioned purpose ... to impact negatively on the erotic message of the dance." Id., at 359, 719 A. 2d, at 279. As such, the court determined the ordinance was content based and subject to strict scrutiny. The ordinance failed the narrow tailoring requirement of strict scrutiny because the court found that imposing criminal and civil sanctions on those who commit sex crimes would be a far narrower means of combating secondary effects than the requirement that dancers wear pasties and G-strings. Id., at 361-362, 719 A. 2d, at 280.Concluding that the ordinance unconstitutionally burdened respondent's expressive conduct, the Pennsylvania court then determined that, under Pennsylvania law, the public nudity provisions of the ordinance could be severed rather than striking the ordinance in its entirety. Accordingly, the court severed §§ l(c) and 2 from the ordinance and reversed the order of the Commonwealth Court. Id., at 363-364, 719 A. 2d, at 281. Because the court determined that the public nudity provisions of the ordinance violated Pap's right to freedom of expression under the United States Constitution, it did not address the constitutionality of the ordinance under the Pennsylvania Constitution or the claim that the ordinance is unconstitutionally overbroad. Ibid.In a separate concurrence, two justices of the Pennsylvania court noted that, because this Court upheld a virtually identical statute in Barnes, the ordinance should have been upheld under the United States Constitution. 553 Pa., at 364, 719 A. 2d, at 281. They reached the same result as the majority, however, because they would have held that the public nudity sections of the ordinance violate the Pennsylvania Constitution. Id., at 370, 719 A. 2d, at 284.287The city of Erie petitioned for a writ of certiorari, which we granted. 526 U. S. 1111 (1999). Shortly thereafter, Pap's filed a motion to dismiss the case as moot, noting that Kandyland was no longer operating as a nude dancing club, and Pap's was not operating a nude dancing club at any other location. Respondent's Motion to Dismiss as Moot 1. We denied the motion. 527 U. S. 1034 (1999).IIAs a preliminary matter, we must address the justiciability question. "'[A] case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" County of Los Angeles v. Davis, 440 U. S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U. S. 486, 496 (1969)). The underlying concern is that, when the challenged conduct ceases such that" 'there is no reasonable expectation that the wrong will be repeated,'" United States v. W T. Grant Co., 345 U. S. 629, 633 (1953), then it becomes impossible for the court to grant" 'any effectual relief whatever' to [the] prevailing party," Church of Scientology of Cal. v. United States, 506 U. S. 9, 12 (1992) (quoting Mills v. Green, 159 U. S. 651, 653 (1895)). In that case, any opinion as to the legality of the challenged action would be advisory.Here, Pap's submitted an affidavit stating that it had "ceased to operate a nude dancing establishment in Erie." Status Report Re Potential Issue of Mootness 1 (Sept. 8, 1999). Pap's asserts that the case is therefore moot because "[t]he outcome of this case will have no effect upon Respondent." Respondent's Motion to Dismiss as Moot 1. Simply closing Kandyland is not sufficient to render this case moot, however. Pap's is still incorporated under Pennsylvania law, and it could again decide to operate a nude dancing establishment in Erie. See Petitioner's Brief in Opposition to Motion to Dismiss 3. JUSTICE SCALIA differs with our assessment as to the likelihood that Pap's may resume its nude dancing288operation. Several Members of this Court can attest, however, that the "advanced age" of Pap's owner (72) does not make it "absolutely clear" that a life of quiet retirement is his only reasonable expectation. Cf. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167 (2000). Moreover, our appraisal of Pap's affidavit is influenced by Pap's failure, despite its obligation to the Court, to mention a word about the potential mootness issue in its brief in opposition to the petition for writ of certiorari, which was filed in April 1999, even though, as JUSTICE SCALIA points out, Kandyland was closed and that property sold in 1998. See Board of License Comm'rs of Tiverton v. Pastore, 469 U. S. 238, 240 (1985) (per curiam). Pap's only raised the issue after this Court granted certiorari.In any event, this is not a run of the mill voluntary cessation case. Here it is the plaintiff who, having prevailed below, now seeks to have the case declared moot. And it is the city of Erie that seeks to invoke the federal judicial power to obtain this Court's review of the Pennsylvania Supreme Court decision. Cf. ASARCO Inc. v. Kadish, 490 U. S. 605, 617-618 (1989). The city has an ongoing injury because it is barred from enforcing the public nudity provisions of its ordinance. If the challenged ordinance is found constitutional, then Erie can enforce it, and the availability of such relief is sufficient to prevent the case from being moot. See Church of Scientology of Cal. v. United States, supra, at 13. And Pap's still has a concrete stake in the outcome of this case because, to the extent Pap's has an interest in resuming operations, it has an interest in preserving the judgment of the Pennsylvania Supreme Court. Our interest in preventing litigants from attempting to manipulate the Court's jurisdiction to insulate a favorable decision from review further counsels against a finding of mootness here. See United States v. W T. Grant Co., supra, at 632; cf. Arizonans for Official English v. Arizona, 520 U. S. 43,28974 (1997). Although the issue is close, we conclude that the case is not moot, and we turn to the merits.IIIBeing "in a state of nudity" is not an inherently expressive condition. As we explained in Barnes, however, nude dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of the First Amendment's protection. See Barnes v. Glen Theatre, Inc., 501 U. S., at 565-566 (plurality opinion); Schad v. Mount Ephraim, 452 U. S. 61, 66 (1981).To determine what level of scrutiny applies to the ordinance at issue here, we must decide "whether the State's regulation is related to the suppression of expression." Texas v. Johnson, 491 U. S. 397, 403 (1989); see also United States v. O'Brien, 391 U. S., at 377. If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the "less stringent" standard from O'Brien for evaluating restrictions on symbolic speech. Texas v. Johnson, supra, at 403; United States v. O'Brien, supra, at 377. If the government interest is related to the content of the expression, however, then the regulation falls outside the scope of the O'Brien test and must be justified under a more demanding standard. Texas v. Johnson, supra, at 403.In Barnes, we analyzed an almost identical statute, holding that Indiana's public nudity ban did not violate the First Amendment, although no five Members of the Court agreed on a single rationale for that conclusion. We now clarify that government restrictions on public nudity such as the ordinance at issue here should be evaluated under the framework set forth in O'Brien for content-neutral restrictions on symbolic speech.The city of Erie argues that the ordinance is a contentneutral restriction that is reviewable under O'Brien because the ordinance bans conduct, not speech; specifically, public290Opinion of O'CONNOR, J.nudity. Respondent counters that the ordinance targets nude dancing and, as such, is aimed specifically at suppressing expression, making the ordinance a content-based restriction that must be subjected to strict scrutiny.The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. 553 Pa., at 354, 719 A. 2d, at 277. By its terms, the ordinance regulates conduct alone. It does not target nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity. And like the statute in Barnes, the Erie ordinance replaces and updates provisions of an "Indecency and Immorality" ordinance that has been on the books since 1866, predating the prevalence of nude dancing establishments such as Kandyland. Pet. for Cert. 7a; see Barnes v. Glen Theatre, Inc., supra, at 568.Respondent and JUSTICE STEVENS contend nonetheless that the ordinance is related to the suppression of expression because language in the ordinance's preamble suggests that its actual purpose is to prohibit erotic dancing of the type performed at Kandyland. Post, at 318 (dissenting opinion). That is not how the Pennsylvania Supreme Court interpreted that language, however. In the preamble to the ordinance, the city council stated that it was adopting the regulation"'for the purpose of limiting a recent increase in nude live entertainment within the City, which activity adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects.'" 553 Pa., at 359, 719 A. 2d, at 279.The Pennsylvania Supreme Court construed this language to mean that one purpose of the ordinance was "to combat negative secondary effects." Ibid.291As JUSTICE SOUTER noted in Barnes, "on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression." 501 U. S., at 585 (opinion concurring in judgment). In that sense, this case is similar to O'Brien. O'Brien burned his draft registration card as a public statement of his antiwar views, and he was convicted under a statute making it a crime to knowingly mutilate or destroy such a card. This Court rejected his claim that the statute violated his First Amendment rights, reasoning that the law punished him for the "noncommunicative impact of his conduct, and for nothing else." 391 U. S., at 382. In other words, the Government regulation prohibiting the destruction of draft cards was aimed at maintaining the integrity of the Selective Service System and not at suppressing the message of draft resistance that O'Brien sought to convey by burning his draft card. So too here, the ordinance prohibiting public nudity is aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland and not at suppressing the erotic message conveyed by this type of nude dancing. Put another way, the ordinance does not attempt to regulate the primary effects of the expression, i. e., the effect on the audience of watching nude erotic dancing, but rather the secondary effects, such as the impacts on public health, safety, and welfare, which we have previously recognized are "caused by the presence of even one such" establishment. Renton v. Playtime Theatres, Inc., 475 U. S. 41, 47-48, 50 (1986); see also Boos v. Barry, 485 U. S. 312, 321 (1988).Although the Pennsylvania Supreme Court acknowledged that one goal of the ordinance was to combat the negative secondary effects associated with nude dancing establishments, the court concluded that the ordinance was nevertheless content based, relying on Justice White's position in dissent in Barnes for the proposition that a ban of this type necessarily has the purpose of suppressing the erotic mes-292Opinion of O'CONNOR, J.sage of the dance. Because the Pennsylvania court agreed with Justice White's approach, it concluded that the ordinance must have another, "unmentioned" purpose related to the suppression of expression. 553 Pa., at 359, 719 A. 2d, at 279. That is, the Pennsylvania court adopted the dissent's view in Barnes that" '[s]ince the State permits the dancers to perform if they wear pas ties and G-strings but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition." 553 Pa., at 359, 719 A. 2d, at 279 (quoting Barnes, supra, at 592 (White, J., dissenting)). A majority of the Court rejected that view in Barnes, and we do so again here.Respondent's argument that the ordinance is "aimed" at suppressing expression through a ban on nude dancing-an argument that respondent supports by pointing to statements by the city attorney that the public nudity ban was not intended to apply to "legitimate" theater productionsis really an argument that the city council also had an illicit motive in enacting the ordinance. As we have said before, however, this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive. O'Brien, supra, at 382-383; Renton v. Playtime Theatres, Inc., supra, at 47-48 (that the "predominate" purpose of the statute was to control secondary effects was "more than adequate to establish" that the city's interest was unrelated to the suppression of expression). In light of the Pennsylvania court's determination that one purpose of the ordinance is to combat harmful secondary effects, the ban on public nudity here is no different from the ban on burning draft registration cards in O'Brien, where the Government sought to prevent the means of the expression and not the expression of antiwar sentiment itself.JUSTICE STEVENS argues that the ordinance enacts a complete ban on expression. We respectfully disagree with that characterization. The public nudity ban certainly has293the effect of limiting one particular means of expressing the kind of erotic message being disseminated at Kandyland. But simply to define what is being banned as the "message" is to assume the conclusion. We did not analyze the regulation in O'Brien as having enacted a total ban on expression. Instead, the Court recognized that the regulation against destroying one's draft card was justified by the Government's interest in preventing the harmful "secondary effects" of that conduct (disruption to the Selective Service System), even though that regulation may have some incidental effect on the expressive element of the conduct. Because this justification was unrelated to the suppression of O'Brien's antiwar message, the regulation was content neutral. Although there may be cases in which banning the means of expression so interferes with the message that it essentially bans the message, that is not the case here.Even if we had not already rejected the view that a ban on public nudity is necessarily related to the suppression of the erotic message of nude dancing, we would do so now because the premise of such a view is flawed. The State's interest in preventing harmful secondary effects is not related to the suppression of expression. In trying to control the secondary effects of nude dancing, the ordinance seeks to deter crime and the other deleterious effects caused by the presence of such an establishment in the neighborhood. See Renton, supra, at 50-51. In Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984), we held that a National Park Service regulation prohibiting camping in certain parks did not violate the First Amendment when applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in Washington, D. C., in connection with a demonstration intended to call attention to the plight of the homeless. Assuming, arguendo, that sleeping can be expressive conduct, the Court concluded that the Government interest in conserving park property was unrelated to the demonstrators' message about homelessness. Id., at 299.294Opinion of O'CONNOR, J.So, while the demonstrators were allowed to erect "symbolic tent cities," they were not allowed to sleep overnight in those tents. Even though the regulation may have directly limited the expressive element involved in actually sleeping in the park, the regulation was nonetheless content neutral.Similarly, even if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis. And as JUSTICE STEVENS eloquently stated for the plurality in Young v. American Mini Theatres, Inc., 427 U. S. 50, 70 (1976), "even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate," and "few of us would march our sons and daughters off to war to preserve the citizen's right to see" specified anatomical areas exhibited at establishments like Kandyland. If States are to be able to regulate secondary effects, then de minimis intrusions on expression such as those at issue here cannot be sufficient to render the ordinance content based. See Clark v. Community for Creative Non- Violence, supra, at 299; Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (even if regulation has an incidental effect on some speakers or messages but not others, the regulation is content neutral if it can be justified without reference to the content of the expression).This case is, in fact, similar to O'Brien, Community for Creative Non-Violence, and Ward. The justification for the government regulation in each case prevents harmful "secondary" effects that are unrelated to the suppression of expression. See, e. g., Ward v. Rock Against Racism, supra, at 791-792 (noting that "[t]he principal justification for the295sound-amplification guideline is the city's desire to control noise levels at bands hell events, in order to retain the character of the [adjacent] Sheep Meadow and its more sedate activities," and citing Renton for the proposition that "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others"). While the doctrinal theories behind "incidental burdens" and "secondary effects" are, of course, not identical, there is nothing objectionable about a city passing a general ordinance to ban public nudity (even though such a ban may place incidental burdens on some protected speech) and at the same time recognizing that one specific occurrence of public nuditynude erotic dancing-is particularly problematic because it produces harmful secondary effects.JUSTICE STEVENS claims that today we "[f]or the first time" extend Renton's secondary effects doctrine to justify restrictions other than the location of a commercial enterprise. Post, at 317 (dissenting opinion). Our reliance on Renton to justify other restrictions is not new, however. In Ward, the Court relied on Renton to evaluate restrictions on sound amplification at an outdoor bands hell, rejecting the dissent's contention that Renton was inapplicable. See Ward v. Rock Against Racism, supra, at 804, n. 1 (Marshall, J., dissenting) ("Today, for the first time, a majority of the Court applies Renton analysis to a category of speech far afield from that decision's original limited focus"). Moreover, Erie's ordinance does not effect a "total ban" on protected expression. Post, at 319.In Renton, the regulation explicitly treated "adult" movie theaters differently from other theaters, and defined "adult" theaters solely by reference to the content of their movies. 475 U. S., at 44. We nonetheless treated the zoning regulation as content neutral because the ordinance was aimed at the secondary effects of adult theaters, a justification unrelated to the content of the adult movies themselves. Id., at296Opinion of O'CONNOR, J.48. Here, Erie's ordinance is on its face a content-neutral restriction on conduct. Even if the city thought that nude dancing at clubs like Kandyland constituted a particularly problematic instance of public nudity, the regulation is still properly evaluated as a content-neutral restriction because the interest in combating the secondary effects associated with those clubs is unrelated to the suppression of the erotic message conveyed by nude dancing.We conclude that Erie's asserted interest in combating the negative secondary effects associated with adult entertainment establishments like Kandyland is unrelated to the suppression of the erotic message conveyed by nude dancing. The ordinance prohibiting public nudity is therefore valid if it satisfies the four-factor test from O'Brien for evaluating restrictions on symbolic speech.IVApplying that standard here, we conclude that Erie's ordinance is justified under O'Brien. The first factor of the O'Brien test is whether the government regulation is within the constitutional power of the government to enact. Here, Erie's efforts to protect public health and safety are clearly within the city's police powers. The second factor is whether the regulation furthers an important or substantial government interest. The asserted interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing are undeniably important. And in terms of demonstrating that such secondary effects pose a threat, the city need not "conduct new studies or produce evidence independent of that already generated by other cities" to demonstrate the problem of secondary effects, "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Renton v. Playtime Theatres, Inc., supra, at 51-52. Because the nude dancing at Kandyland is of the same character as the adult entertain-297ment at issue in Renton, Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), and California v. LaRue, 409 U. S. 109 (1972), it was reasonable for Erie to conclude that such nude dancing was likely to produce the same secondary effects. And Erie could reasonably rely on the evidentiary foundation set forth in Renton and American Mini Theatres to the effect that secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood. See Renton v. Playtime Theatres, Inc., supra, at 51-52 (indicating that reliance on a judicial opinion that describes the evidentiary basis is sufficient). In fact, Erie expressly relied on Barnes and its discussion of secondary effects, including its reference to Renton and American Mini Theatres. Even in cases addressing regulations that strike closer to the core of First Amendment values, we have accepted a state or local government's reasonable belief that the experience of other jurisdictions is relevant to the problem it is addressing. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 393, n. 6 (2000). Regardless of whether JUSTICE SOUTER now wishes to disavow his opinion in Barnes on this point, see post, at 316-317 (opinion concurring in part and dissenting in part), the evidentiary standard described in Renton controls here, and Erie meets that standard.In any event, Erie also relied on its own findings. The preamble to the ordinance states that "the Council of the City of Erie has, at various times over more than a century, expressed its findings that certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal activity." Pet. for Cert. 6a (emphasis added). The city council members, familiar with commercial downtown Erie, are the individuals who would likely have had firsthand knowledge of what took place at and around nude dancing establish-298Opinion of O'CONNOR, J.ments in Erie, and can make particularized, expert judgments about the resulting harmful secondary effects. Analogizing to the administrative agency context, it is well established that, as long as a party has an opportunity to respond, an administrative agency may take official notice of such "legislative facts" within its special knowledge, and is not confined to the evidence in the record in reaching its expert judgment. See FCC v. National Citizens Comm. for Broadcasting, 436 U. S. 775 (1978); Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945); 2 K. Davis & R. Pierce, Administrative Law Treatise § 10.6 (3d ed. 1994). Here, Kandyland has had ample opportunity to contest the council's findings about secondary effects-before the council itself, throughout the state proceedings, and before this Court. Yet to this day, Kandyland has never challenged the city council's findings or cast any specific doubt on the validity of those findings. Instead, it has simply asserted that the council's evidentiary proof was lacking. In the absence of any reason to doubt it, the city's expert judgment should be credited. And the study relied on by amicus curiae does not cast any legitimate doubt on the Erie city council's judgment about Erie. See Brief for First Amendment Lawyers Association as Amicus Curiae 16-23.Finally, it is worth repeating that Erie's ordinance is on its face a content-neutral restriction that regulates conduct, not First Amendment expression. And the government should have sufficient leeway to justify such a law based on secondary effects. On this point, O'Brien is especially instructive. The Court there did not require evidence that the integrity of the Selective Service System would be jeopardized by the knowing destruction or mutilation of draft cards. It simply reviewed the Government's various administrative interests in issuing the cards, and then concluded that "Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction and assuring their continuing availability by punishing people299who knowingly and willfully destroy or mutilate them." 391 U. S., at 378-380. There was no study documenting instances of draft card mutilation or the actual effect of such mutilation on the Government's asserted efficiency interests. But the Court permitted Congress to take official notice, as it were, that draft card destruction would jeopardize the system. The fact that this sort of leeway is appropriate in a case involving conduct says nothing whatsoever about its appropriateness in a case involving actual regulation of First Amendment expression. As we have said, so long as the regulation is unrelated to the suppression of expression, "[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word." Texas v. Johnson, 491 U. S., at 406. See, e. g., United States v. O'Brien, supra, at 377; United States v. Albertini, 472 U. S. 675, 689 (1985) (finding sufficient the Government's assertion that those who had previously been barred from entering the military installation pose a threat to the security of that installation); Clark v. Community for Creative Non-Violence, 468 U. S., at 299 (finding sufficient the Government's assertion that camping overnight in the park poses a threat to park property).JUSTICE SOUTER, however, would require Erie to develop a specific evidentiary record supporting its ordinance. Post, at 317 (opinion concurring in part and dissenting in part). JUSTICE SOUTER agrees that Erie's interest in combating the negative secondary effects associated with nude dancing establishments is a legitimate government interest unrelated to the suppression of expression, and he agrees that the ordinance should therefore be evaluated under O'Brien. O'Brien, of course, required no evidentiary showing at all that the threatened harm was real. But that case is different, JUSTICE SOUTER contends, because in O'Brien "there could be no doubt" that a regulation prohibiting the destruction of draft cards would alleviate the harmful secondary ef-300Opinion of O'CONNOR, J.fects flowing from the destruction of those cards. Post, at 311, n. 1.But whether the harm is evident to our "intuition," ibid., is not the proper inquiry. If it were, we would simply say there is no doubt that a regulation prohibiting public nudity would alleviate the harmful secondary effects associated with nude dancing. In any event, JUSTICE SOUTER conflates two distinct concepts under O'Brien: whether there is a substantial government interest and whether the regulation furthers that interest. As to the government interest, i. e., whether the threatened harm is real, the city council relied on this Court's opinions detailing the harmful secondary effects caused by establishments like Kandyland, as well as on its own experiences in Erie. JUSTICE SOUTER attempts to denigrate the city council's conclusion that the threatened harm was real, arguing that we cannot accept Erie's findings because the subject of nude dancing is "fraught with some emotionalism," post, at 314. Yet surely the subject of drafting our citizens into the military is "fraught" with more emotionalism than the subject of regulating nude dancing. Ibid. JUSTICE SOUTER next hypothesizes that the reason we cannot accept Erie's conclusion is that, since the question whether these secondary effects occur is "amenable to empirical treatment," we should ignore Erie's actual experience and instead require such an empirical analysis. Post, at 314-315, n. 3 (referring to a "scientifically sound" study offered by an amicus curiae to show that nude dancing establishments do not cause secondary effects). In Nixon, however, we flatly rejected that idea. 528 U. S., at 394 (noting that the "invocation of academic studies said to indicate" that the threatened harms are not real is insufficient to cast doubt on the experience of the local government).As to the second point-whether the regulation furthers the government interest-it is evident that, since crime and other public health and safety problems are caused by the presence of nude dancing establishments like Kandyland, a301ban on such nude dancing would further Erie's interest in preventing such secondary effects. To be sure, requiring dancers to wear pas ties and G-strings may not greatly reduce these secondary effects, but O'Brien requires only that the regulation further the interest in combating such effects. Even though the dissent questions the wisdom of Erie's chosen remedy, post, at 323 (opinion of STEVENS, J.), the" 'city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems,'" Renton v. Playtime Theatres, Inc., 475 U. S., at 52 (quoting American Mini Theatres, 427 U. S., at 71 (plurality opinion)). It also may be true that a pasties and G-string requirement would not be as effective as, for example, a requirement that the dancers be fully clothed, but the city must balance its efforts to address the problem with the requirement that the restriction be no greater than necessary to further the city's interest.The ordinance also satisfies O'Brien's third factor, that the government interest is unrelated to the suppression of free expression, as discussed supra, at 289-296. The fourth and final O'Brien factor-that the restriction is no greater than is essential to the furtherance of the government interestis satisfied as well. The ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The requirement that dancers wear pasties and G-strings is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer's erotic message. See Barnes v. Glen Theatre, Inc., 501 U. S., at 572 (plurality opinion of REHNQUIST, C. J., joined by O'CONNOR and KENNEDY, JJ.); id., at 587 (SOUTER, J., concurring in judgment). JUSTICE SOUTER points out that zoning is an alternative means of addressing this problem. It is far from clear, however, that zoning imposes less of a burden on expression than the minimal requirement implemented here. In any event, since this is a content-neutral restriction, least restrictive302SCALIA, J., concurring in judgmentmeans analysis is not required. See Ward, 491 U. S., at 798799, n. 6.We hold, therefore, that Erie's ordinance is a contentneutral regulation that is valid under O'Brien. Accordingly, the judgment of the Pennsylvania Supreme Court is reversed, and the case is remanded for further proceedings.It is so ordered

OCTOBER TERM, 1999SyllabusCITY OF ERIE ET AL. v. PAP'S A. M., TDBA "KANDYLAND"CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIANo.98-1161. Argued November 10, 1999-Decided March 29, 2000Erie, Pennsylvania, enacted an ordinance making it a summary offense to knowingly or intentionally appear in public in a "state of nudity." Respondent Pap's A. M. (hereinafter Pap's), a Pennsylvania corporation, operated "Kandyland," an Erie establishment featuring totally nude erotic dancing by women. To comply with the ordinance, these dancers had to wear, at a minimum, "pasties" and a "G-string." Pap's filed suit against Erie and city officials, seeking declaratory relief and a permanent injunction against the ordinance's enforcement. The Court of Common Pleas struck down the ordinance as unconstitutional, but the Commonwealth Court reversed. The Pennsylvania Supreme Court in turn reversed, finding that the ordinance's public nudity sections violated Pap's right to freedom of expression as protected by the First and Fourteenth Amendments. The Pennsylvania court held that nude dancing is expressive conduct entitled to some quantum of protection under the First Amendment, a view that the court noted was endorsed by eight Members of this Court in Barnes v. Glen Theatre, Inc., 501 U. S. 560. The Pennsylvania court explained that, although one stated purpose of the ordinance was to combat negative secondary effects, there was also an unmentioned purpose to "impact negatively on the erotic message of the dance." Accordingly, the Pennsylvania court concluded that the ordinance was related to the suppression of expression. Because the ordinance was not content neutral, it was subject to strict scrutiny. The court held that the ordinance failed the narrow tailoring requirement of strict scrutiny. After this Court granted certiorari, Pap's filed a motion to dismiss the case as moot, noting that Kandyland no longer operated as a nude dancing club, and that Pap's did not operate such a club at any other location. This Court denied the motion.Held: The judgment is reversed, and the case is remanded. 553 Pa. 348, 719 A. 2d 273, reversed and remanded.JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I and II, concluding that the case is not moot. A case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. County of Los Angeles v. Davis, 440 U. S. 625, 631. Simply closing Kandyland is not sufficient to moot the case because Pap's is still incorporated under Pennsylvania278Syllabuslaw, and could again decide to operate a nude dancing establishment in Erie. Moreover, Pap's failed, despite its obligation to the Court, to mention the potential mootness issue in its brief in opposition, which was filed after Kandyland was closed and the property sold. See Board of License Comm'rs of Tiverton v. Pastore, 469 U. S. 238, 240. In any event, this is not a run of the mill voluntary cessation case. Here it is the plaintiff who, having prevailed below, seeks to have the case declared moot. And it is the defendant city that seeks to invoke the federal judicial power to obtain this Court's review of the decision. Cf. ASARCO Inc. v. Kadish, 490 U. S. 605, 617-618. The city has an ongoing injury because it is barred from enforcing the ordinance's public nudity provisions. If the ordinance is found constitutional, then Erie can enforce it, and the availability of such relief is sufficient to prevent the case from being moot. See Church of Scientology of Cal. v. United States, 506 U. S. 9, 13. And Pap's still has a concrete stake in the case's outcome because, to the extent it has an interest in resuming operations, it has an interest in preserving the judgment below. This Court's interest in preventing litigants from attempting to manipulate its jurisdiction to insulate a favorable decision from review further counsels against a finding of mootness. See, e. g., United States v. W T. Grant Co., 345 U. S. 629, 632. Pp. 287-289.JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER, concluded in Parts III and IV that:1. Government restrictions on public nudity such as Erie's ordinance should be evaluated under the framework set forth in United States v. O'Brien, 391 U. S. 367, for content-neutral restrictions on symbolic speech. Although being "in a state of nudity" is not an inherently expressive condition, nude dancing of the type at issue here is expressive conduct that falls within the outer ambit of the First Amendment's protection. See, e. g., Barnes, supra, at 565-566 (plurality opinion). What level of scrutiny applies is determined by whether the ordinance is related to the suppression of expression. E. g., Texas v. Johnson, 491 U. S. 397,403. If the governmental purpose in enacting the ordinance is unrelated to such suppression, the ordinance need only satisfy the "less stringent," intermediate O'Brien standard. E. g., Johnson, supra, at 403. If the governmental interest is related to the expression's content, however, the ordinance falls outside O'Brien and must be justified under the more demanding, strict scrutiny standard. Johnson, supra, at 403. An almost identical public nudity ban was held not to violate the First Amendment in Barnes, although no five Members of the Court agreed on a single rationale for that conclusion. The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. By its terms, it regulates conduct alone. It does not target279Full Text of Opinion

1980_79-1944

JUSTICE REHNQUIST delivered the opinion of the Court.The question presented in this case is the appropriate measure of damages in a suit brought under § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act. [Footnote 1]Petitioner, for several decades a Chrysler-Plymouth dealer in Birmingham, Ala., went out of business in 1974. It subsequently brought suit against respondent in the United States District Court for the Northern District of Alabama, alleging that, from January, 1970, to May, 1974, respondent's various "sales incentive" programs violated § 2(a). Under one type of program, respondent assigned to each participating dealer a sales objective and paid to the dealer a bonus on each car sold in excess of that objective. Under another type of program, respondent required each dealer to purchase from it a certain quota of automobiles before it would pay a bonus on the sale of automobiles sold at retail. The amount of the Page 451 U. S. 560 bonus depended on the number of retail sales (or wholesale purchases) made in excess of the dealer's objective, and could amount to several hundred dollars. Respondent set petitioner's objectives higher than those of its competitors, requiring it to sell (or purchase) more automobiles to obtain a bonus than its competitors. To the extent petitioner failed to meet those objectives, and to the extent its competitors met their lower objectives, petitioner received fewer bonuses. The net effect of all this, according to petitioner, was that it paid more money for its automobiles than did its competitors. It contended that the amount of the price discrimination -- the amount of the price difference multiplied by the number of petitioner's purchases -- was $81,248. It also claimed that the going-concern value of the business as of May, 1974, ranged between $50,000 and $170,000.Respondent maintained that the sales incentive programs were nondiscriminatory, and that they did not injure petitioner or adversely affect competition. The District Court denied respondent's motion for a directed verdict. The jury returned a verdict against respondent and awarded petitioner $111,247.48 in damages, which the District Court trebled.The Court of Appeals for the Fifth Circuit reversed with instructions to dismiss the complaint. 607 F.2d 1133 (1979). It found that, in order to recover treble damages under § 4 of the Clayton Act, a plaintiff must prove (1) a violation of the antitrust laws, (2) cognizable injury attributable to the violation, and (3) at least the approximate amount of damage. It found it unnecessary to consider whether petitioner proved that respondent's incentive programs violated § 2(a) because, in its view, petitioner had "failed to introduce substantial evidence of injury attributable to the programs, much less substantial evidence of the amount of such injury." Id. at 1135. Rejecting petitioner's theory of "automatic damages," under which mere proof of discrimination establishes the fact and amount of injury, the court held that injury must be proved by more than mere "[c]onclusory statements Page 451 U. S. 561 by the plaintiff, without evidentiary support." Id. at 1136-1137. The court concluded that the District Court erred in refusing respondent's motion for a directed verdict and in denying its motion for judgment notwithstanding the verdict. We granted certiorari, 449 U.S. 819 (1980), to review the decision of the Court of Appeals.IPetitioner first contends, that once it has proved a price discrimination in violation of § 2(a), it is entitled at a minimum to so-called "automatic damages" in the amount of the price discrimination. Petitioner concedes that, in order to recover damages, it must establish cognizable injury attributable to an antitrust violation and some approximation of damage. Brief for Petitioner 9. It insists, however, that the jury should be permitted to infer the requisite injury and damage from a showing of a substantial price discrimination. Petitioner notes that this Court has consistently permitted such injury to be inferred in injunctive actions brought to enforce § 2(a), e.g., FTC v. Morton Salt Co., 334 U. S. 37 (1948), and argues that private suits for damages under § 4 should be treated no differently. We disagree. [Footnote 2]By its terms, § 2(a) is a prophylactic statute which is violated merely upon a showing that "the effect of such discrimination may be substantially to lessen competition." Page 451 U. S. 562 (Emphasis supplied.) As our cases have recognized, the statute does not "require that the discriminations must, in fact, have harmed competition." Corn Products Refining Co. v. FTC, 324 U. S. 726, 324 U. S. 742 (1945); FTC v. Morton Salt Co., supra, at 334 U. S. 46 ("the statute does not require the Commission to find that injury has actually resulted"). Section 4 of the Clayton Act, in contrast, is essentially a remedial statute. 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. . . ." (Emphasis supplied.) To recover treble damages, then, a plaintiff must make some showing of actual injury attributable to something the antitrust laws were designed to prevent. Perkins v. Standard Oil Co., 395 U. S. 642, 395 U. S. 648 (1969) (plaintiff "must, of course, be able to show a causal connection between the price discrimination in violation of the Act and the injury suffered"). It must prove more than a violation of § 2(a), since such proof establishes only that injury may result.Our decision here is virtually governed by our reasoning in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477 (1977). There we rejected the contention that the mere violation of § 7 of the Clayton Act, which prohibits mergers which may substantially lessen competition, gives rise to a damages claim under § 4. We explained that,"to recover damages [under § 4], respondents must prove more than that the petitioner violated § 7, since such proof establishes only that injury may result."Id. at 429 U. S. 486. Likewise in this case, proof of a violation does not mean that a disfavored purchaser has been actually "injured" within the meaning of § 4.The legislative history buttresses this view. Both the Patman bill, H.R. 8442, § 2(d), 74th Cong., 1st Sess. (1935), as introduced in the House, and the Robinson bill, S. 3154, § 2(d), 74th Cong., 2d Sess. (1935), as introduced in the Senate, provided that a plaintiff's damages for a violation of § 2(a) shall be presumed to be the amount of the price discrimination. The provision, however, encountered such Page 451 U. S. 563 strong opposition in both Houses that the House Committee eliminated it from its bill, H.R.Rep. No. 2287, 74th Cong.,2d Sess., 16 (1936), and the Senate Committee modified the provision to authorize presumptive damages in the amount of the discrimination only when plaintiff shows the "fact of damage." S.Rep. No. 1502, 74th Cong., 2d Sess., 8 (1936). The Conference Committee eliminated even that compromise, and § 2(a) was passed in its present form. Congress thus has rejected the very concept which petitioner seeks to have the Court judicially legislate. Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 419 U. S. 199-201 (1974). [Footnote 3]IIPetitioner next contends that, even though it may not be entitled to "automatic damages" upon a showing of a violation of § 2(a), it produced enough evidence of actual injury to survive a motion for a directed verdict. That evidence consisted primarily of the testimony of petitioner's owner, Mr. Payne, and an expert witness, a professor of economics. Payne testified that the price discrimination was one of the causes of the dealership's going out of business. In support of that contention, he testified that his salesmen told him that the dealership lost sales to its competitors, and that its market share of retail Chrysler-Plymouth sales in the Birmingham area was 24% in 1970, 27 in 1971, 23% in 1972, and 25% in 1973. Payne contended that it was proper to infer that the 4% drop in 1972 was a result of the incentive programs. Page 451 U. S. 564 He also testified that the discrimination caused him to "force" business so that he could meet his assigned quotas. That is, his desire to make a sale induced him to "overallow" on trade-ins, thus reducing his profits on his used car operation. App. 51-52. Payne adduced evidence showing that his average gross profit on used car sales was below that of his competitors, though that same evidence revealed that his average gross profit on new sales was higher. Id. at 269.Neither Payne nor petitioner's expert witness offered documentary evidence as to the effect of the discrimination on retail prices. Although Payne asserted that his salesmen and customers told him that the dealership was being undersold, id. at 35-37, 92, 95, he admitted he did not know if his competitors did in fact pass on their lower costs to their customers. Id. at 44, 57. Petitioner's expert witness took a somewhat different position. He believed that the discrimination would ultimately cause retail prices to be held at an artificially high level, since petitioner's competitors would not reduce their retail prices as much as they would have done if petitioner received an equal bonus from respondent. Id. at 103, 135. He also testified that petitioner was harmed by the discrimination even if the favored purchasers did not lower their retail prices, since petitioner, in that case, would make less money per car. [Footnote 4] Id. at 139. Page 451 U. S. 565Even construed most favorably to petitioner, the evidence of injury is weak. Petitioner nevertheless asks us to consider the sufficiency of its evidence in light of our traditional rule excusing antitrust plaintiffs from an unduly rigorous standard of proving antitrust injury. In Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 395 U. S. 123-124 (1969), for example, the Court discussed at some length the fixing of damages in a case involving market exclusion. We accepted the proposition that damages could be awarded on the basis of plaintiff's estimate of sales it could have made absent the violation:"[D]amage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts. The Court has repeatedly held that, in the absence of more precise proof, the factfinder may""conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, Page 451 U. S. 566 that defendants' wrongful acts had caused damage to the plaintiffs.""Bigelow v. RKO Pictures, Inc., supra, at 327 U. S. 264. See also Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 273 U. S. 377-379 (1927); Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 282 U. S. 561-566 (1931)."Ibid.In Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251 (1946), relied on in Zenith, film distributors had conspired to deny the plaintiff theater access to first-run films. The jury awarded damages based on a comparison of plaintiff's actual profits with the contemporaneous profits of a competing theater with access to first-run films. Plaintiff had also adduced evidence comparing his actual profits during the conspiracy with his profits when he had been able to obtain first-runs. The lower court thought the evidence too imprecise to support the award, but we reversed because the evidence was sufficient to support a "just and reasonable inference" of damage. We explained:"[A]ny other rule would enable the wrongdoer to profit by his wrongdoing at the expense of his victim. It would be an inducement to make wrongdoing so effective and complete in every case as to preclude any recovery by rendering the measure of damages uncertain. Failure to apply it would mean that the more grievous the wrong done, the less likelihood there would be of a recovery."327 U.S. at 327 U. S. 264-265.Our willingness to accept a degree of uncertainty in these cases rests, in part, on the difficulty of ascertaining business damages as compared, for example, to damages resulting from a personal injury or from condemnation of a parcel of land. The vagaries of the marketplace usually deny us sure knowledge of what plaintiff's situation would have been in the absence of the defendant's antitrust violation. But our willingness also rests on the principle articulated in cases such as Bigelow, that it does not "come with very good grace'" for Page 451 U. S. 567 the wrongdoer to insist upon specific and certain proof of the injury which it has itself inflicted. Hetzel v. Baltimore & Ohio R. Co., 169 U. S. 26, 169 U. S. 39 (1898) (quoting United States Trust Co. v. O'Brien, 143 N.Y. 284, 289, 38 N.E. 266, 267 (1894)). Accord, Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 282 U. S. 563 (1931) ("Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts"); Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 273 U. S. 379 (1927).Applying the foregoing principles to this case is not without difficulty. In the first place, it is a close question whether petitioner's evidence would be sufficient to support a jury award even under our relaxed damages rules. In those cases where we have found sufficient evidence to permit a jury to infer antitrust injury and approximate the amount of damages, the evidence was more substantial than the evidence presented here. In Zenith, for example, plaintiff compared its sales in Canada, where it was subject to a violation, with its sales in the United States, where it was not. And in Bigelow, plaintiff adduced evidence not only comparing its profits with a competitor not subject to the violation, but also comparing its profits during the time of the violation with the period immediately preceding the violation. [Footnote 5] Page 451 U. S. 568But a more fundamental difficulty confronts us in this case. The cases relied upon by petitioner all depend in greater or lesser part on the inequity of a wrongdoer's defeating the recovery of damages against him by insisting upon a rigorous standard of proof. In this case, however, we cannot say with assurance that respondent is a "wrongdoer." Because the court below bypassed the issue of liability and went directly to the issue of damages, we simply do not have the benefit of its views as to whether respondent, in fact, violated § 2(a). Absent such a finding, we decline to apply to this case the lenient damages rules of our previous cases. Had the court below found a violation, we could more confidently consider the adequacy of petitioner's evidence.Accordingly, we think the proper course is to remand the case so that the Court of Appeals may pass upon respondent's contention that the evidence adduced at trial was insufficient to support a finding of violation of the Robinson-Patman Act. We do not ordinarily address for the first time in this Court an issue which the Court of Appeals has not addressed, and we think this would be a poor case in which to depart from that practice. If the court determines on remand that respondent did violate the Act, the court should then consider the sufficiency of petitioner's evidence of injury in light of the cases discussed above. We, of course, intimate no views as to how that issue should be decided. We emphasize that, even if there has been a violation of the Robinson-Patman Act, petitioner is not excused from its burden of proving antitrust injury and damages. It is simply that, once a violation has been established, that burden is to some extent lightened. Page 451 U. S. 569For the foregoing reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtJ. Truett Payne Co., Inc. v. Chrysler Motors Corp., 451 U.S. 557 (1981)J. Truett Payne Co., Inc. v. Chrysler Motors Corp.No. 79-1944Argued January 21, 1981Decided May 18, 1981451 U.S. 557SyllabusPetitioner, a former automobile dealer, brought suit against respondent automobile manufacturer in Federal District Court, alleging that respondent's "sales incentive" programs over a certain period violated the price discrimination prohibition of § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act. Under its programs, respondent paid a bonus to its dealers if they exceeded their quotas -- set by respondent for each dealer -- of cars to be sold at retail or purchased from respondent. Petitioner alleged that respondent set petitioner's quotas higher than those of its competitors; that to the extent it failed to meet its quotas, and to the extent its competitors met their lower quotas, petitioner received fewer bonuses; and that the net effect was that it paid more for its automobiles than did its competitors. Petitioner contended that the amount of the price discrimination -- the amount of the price difference multiplied by the number of petitioner's purchases -- was $81,248, and that, when petitioner went out of business, the going concern value of the business ranged between $50,000 and $170,000. Respondent maintained that the sales incentive programs were nondiscriminatory, and that they did not injure petitioner or adversely affect competition. The jury returned a verdict awarding petitioner $111,247.48 in damages, which the District Court trebled. The Court of Appeals reversed, holding that it was unnecessary to consider whether a violation of § 2(a) had been proved, since petitioner had failed to introduce substantial evidence of injury attributable to the programs, much less substantial evidence of the amount of such injury, as was required in order to recover treble damages under § 4 of the Clayton Act.Held:1. Petitioner's contention that, once it has proved a price discrimination in violation of § 2(a), it is entitled at a minimum to so-called "automatic damages" in the amount of the price discrimination is without merit. Section 2(a), a prophylactic statute which is violated merely upon a showing that "the effect of such discrimination may be substantially to lessen competition," does not require, for purposes of Page 451 U. S. 558 injunctive actions, that the discrimination must in fact have harmed competition. Corn Products Co. v. FTC, 324 U. S. 726; FTC v. Morton Salt Co.. 334 U. S. 37. However under § 4 of the Clayton Act, which is essentially a remedial statute providing treble damages to any person "who shall be injured in his business or property by reason of anything forbidden in the antitrust laws," a plaintiff must make some showing of actual injury attributable to something the antitrust laws were designed to prevent. Thus, it must prove more than a violation of § 2(a), since such proof establishes only that injury may result. Cf. Brunswick Corp. v. Pueblo Bowl-0-Mat, Inc., 429 U. S. 477. Pp. 451 U. S. 561-563.2. The rule excusing antitrust plaintiffs from an unduly rigorous standard of proving antitrust injury, see, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, will not be applied here to determine whether petitioner, though not entitled to "automatic damages," has produced enough evidence of actual injury to sustain recovery. While it is a close question whether petitioner's evidence would be sufficient to support a jury award even under such rule, a more fundamental difficulty is that the cases relied upon by petitioner all depend, in greater or lesser part, on the inequity of a wrongdoer's defeating the recovery of damages against him by insisting upon a rigorous standard of proof. In this case, it cannot be said with assurance that respondent is a "wrongdoer," since the Court of Appeals went directly to the issue of damages after bypassing the question whether respondent, in fact, violated § 2(a). The proper course is to remand the case so that the Court of Appeals may pass upon respondent's contention that the evidence was insufficient to support a finding of such violation. If the court determines that respondent did violate the Act, it should then consider the sufficiency of petitioner's evidence of injury. Pp. 451 U. S. 563-568.607 F.2d 1133, vacated and remanded.REHNQUIST, .J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and STEVENS, JJ., joined. POWELL, J., filed an opinion dissenting in part, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 451 U. S. 569. Page 451 U. S. 559

1978_78-349

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in this case to resolve important questions concerning the restrictions the Speech or Debate Clause [Footnote 1] places on the admissibility of evidence at a trial on charges that a former Member of the House had, while a Member, accepted money in return for promising to introduce and introducing private bills. [Footnote 2]IRespondent Helstoski is a former Member of the United States House of Representatives from New Jersey. In 1974, while Helstoski was a Member of the House, the Department of Justice began investigating reported political corruption, including allegations that aliens had paid money for the introduction of private bills which would suspend the application of the immigration laws so as to allow them to remain in this country.The investigation was carried on before nine grand juries. The grand juries were called according to the regular practice in the District of New Jersey, which was to have a different grand jury sitting on each of six days during the week; on two days, there was a second grand jury. When the United States Attorney was ready to present evidence, he presented it to whichever grand jury was sitting that day. There was therefore no assurance that any grand jury which voted an indictment would see and hear all of the witnesses or see all of the documentary evidence. It was contemplated that the grand jury that was asked to return an indictment would review Page 442 U. S. 480 transcripts of relevant testimony presented to other grand juries.Helstoski appeared voluntarily before grand juries on 10 occasions between April, 1974, and May, 1976. Each time he appeared, he was told that he had certain constitutional rights. Different terms were used by different attorneys for the United States, but the following exchange, which occurred at Helstoski's first appearance before a grand jury, fairly represents the several exchanges:"Q. You were told at that time [at the office of the United States Attorney earlier] -- and just to repeat them today -- before we begin, you were told that you did not have to give any testimony to the Grand Jury or make any statements to any officer of the United States. You understand that, do you not?""A. I come with full and unlimited cooperation.""Q. I understand that. . . .""* * * *" "Q. And that you also know that anything that you may say to any agent of the United States or to this Grand Jury may later be used in a court of law against you; you understand that as well?""[Affirmative response given.]""A. Whatever is in my possession, in my files, in its original form, will be turned over. Those files which I have -- some of them are very, very old. I've been in Congress since 1965. We mentioned this.""* * * *" "Q. The Grand Jury wants from you simply the records that are in your possession, whether it be in your office in East Rutherford, New Jersey, Washington, D. C., your home, wherever they may be, the Grand Jury would like you to present those documents. Of course, you understand Page 442 U. S. 481 that, if you wish not to present those documents, you do not have to, and that anything you do present may also, as I have told you about your personal testimony, may be used against you later in a court of law?""A. I understand that. Whatever I have will be turned over to you with full cooperation of [sic] this Grand Jury and with yourself, sir.""* * * *" "A. I understand that. I promise full cooperation with your office, with the FBI, this Grand Jury.""Q. The Grand Jury is appreciative of that fact. They also want to make certain that, when you are giving this cooperation, that you understand, as with anyone else that might be called before a United States Grand Jury, exactly what their constitutional rights are. And that is why I have gone through this step by step carefully, so there will be no question and there will be no doubt in anybody's mind.""A. As I indicated, I come with no request for immunity, and you can be assured there won't be any plea of the Fifth Amendment under any circumstances."Helstoski testified as to his practices in introducing private immigration bills, and he produced his files on numerous private bills. Included in the files were correspondence with a former legislative aide and with individuals for whom bills were introduced. He also provided copies of 169 bills introduced on behalf of various aliens.Beginning with his fourth appearance before a grand jury, in October, 1975, Helstoski objected to the burden imposed by the requests for information. The requests, he claimed, violated his own right of privacy and that of his constituents. In that appearance, he also stated that there were "some serious Constitutional questions" raised by the failure of the United States Attorney to return tax records which Helstoski had voluntarily delivered. He did not, however, assert a privilege Page 442 U. S. 482 against producing documents until the seventh appearance, on December 12, 1975. Then he declined to answer questions, complaining that the United States Attorney had stated to the District Court that the grand jury had concluded that Helstoski had misapplied campaign funds. He asserted a general invocation of rights under the Constitution and specifically listed the Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments.At the next, and eighth, appearance on December 29, 1975, he repeated his objections to the conduct of the United States Attorney. After answering questions about campaign financing, personal loans, and other topics, he declined to answer questions about the receipt of a sum of money. That action was based upon his privilege under the Fifth Amendment "and on further grounds that to answer that question would violate my rights under the Constitution."Because the grand jury considered that Helstoski's invocation of constitutional privileges was too general to be acceptable, it adjourned and reconvened before the District Judge to seek a ruling on Helstoski's claim of privilege "under the Constitution." After questioning Helstoski, the judge stated that the privilege against compulsory self-incrimination was the only privilege available to Helstoski. The judge assisted Helstoski in wording a statement invoking the privilege that was satisfactory to the grand jury. Thereafter, Helstoski invoked his Fifth Amendment privilege in refusing to answer further questions, including a series of questions about private immigration bills.Not until his ninth, and penultimate, appearance before a grand jury did Helstoski assert any privilege under the Speech or Debate Clause. On May 7,1976, Helstoski asked if he was a target of the investigation. The prosecutor declined to answer the question, stating "it would be inappropriate for this Grand Jury or indeed for me to say that you are a target." Helstoski then invoked his privilege against compulsory self-incrimination, Page 442 U. S. 483 and declined to answer further questions or to produce documents. [Footnote 3] He also declined to produce a copy of an insert from the Congressional Record, saying"I consulted with my attorneys, and, based on the statement that was made on the floor, I don't have any right to be questioned at any other time or place as reference to statements made on the floor of Congress."Although that was the first instance which can even remotely be characterized as reliance upon the Speech or Debate Clause, Helstoski earlier had indicated an awareness of another aspect of the constitutional privileges afforded Congressmen. [Footnote 4] During his fourth appearance before a grand jury, in October, 1975, Helstoski complained that he had been served with a subpoena directing him to appear before a grand jury on a day that Congress was in session. [Footnote 5] Page 442 U. S. 484At his 10th, and final, appearance before a grand jury, Helstoski invoked his Fifth Amendment privilege. But he also referred repeatedly to "other constitutional privileges which prevail." Nevertheless, he continued to promise to produce campaign and personal financial records as requested by the grand jury and directed by the District Judge.IIIn June, 1976, a grand jury returned a multiple-count indictment charging Helstoski and others with various criminal acts. Helstoski moved to dismiss the indictment, contending that the grand jury process had been abused and that the indictment violated the Speech or Debate Clause.The District Judge denied the motion after examining a transcript of the evidence presented to the indicting grand jury. He held that the Speech or Debate Clause did not require dismissal. He also ruled that the Government would not be allowed to offer evidence of the actual performance of any legislative acts. That ruling prompted the Government to file a motion requesting that the judge pass on the admissibility of 23 categories of evidence. The Government urged that a ruling was necessary to avoid the possibility of a mistrial. Helstoski opposed the motion, arguing that the witnesses would not testify as the Government indicated in its proffer.The District Judge declined to rule separately on each of the categories. Instead, he ordered:"The United States may not, during the presentation of its case-in-chief at the trial of [this] Indictment, introduce evidence of the performance of a past legislative Page 442 U. S. 485 act on the part of the defendant, Henry Helstoski, derived from any source and for any purpose."(Emphasis added.)The Government filed a timely appeal from the evidentiary ruling, relying upon 18 U.S.C. § 3731:"An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence . . . not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.""The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.""* * * *" "The provisions of this section shall be liberally construed to effectuate its purposes."The Court of Appeals affirmed the District Court's evidentiary ruling. 576 F.2d 511 (CA3 1978). It first concluded that an appeal was proper under § 3731, relying primarily upon its earlier decision in United States v. Beck, 483 F.2d 203 (1973), cert. denied, 414 U.S. 1132 (1974), and upon the language in the section mandating that it be "liberally construed."Turning to the merits of the Government's appeal, the Court of Appeals rejected both of the Government's arguments: (a) that legislative acts could be introduced to show motive; and (b) that legislative acts could be introduced because Helstoski had waived his privilege by testifying before the grand juries. The court relied upon language in United States v. Brewster, 408 U. S. 501, 408 U. S. 527 (1972), prohibiting the introduction of evidence as to how a Congressman acted on, voted on, or resolved Page 442 U. S. 486 a legislative issue. The court reasoned that to permit evidence of such acts under the guise of showing motive would negate the protection afforded by the Speech or Debate Clause.In holding Helstoski had not waived the protection of the Speech or Debate Clause, the Court of Appeals did not decide whether the protection could be waived. Rather, it assumed that a Member of Congress could waive the privilege, but held that any waiver must be "express and for the specific purpose for which the evidence of legislative acts is sought to be used against the member." 576 F.2d, at 523-524. Any lesser standard, the court reasoned, would frustrate the purpose of the Clause. Having found on the record before it that no waiver was shown, it affirmed the District Court order under which the Government is precluded from introducing evidence of past legislative acts in any form.In seeking review of the judgment of the Court of Appeals, the Government contends that the Speech or Debate Clause does not bar the introduction of all evidence referring to legislative acts. It concedes that, absent a waiver, it may not introduce the bills themselves. But the Government argues that the Clause does not prohibit it from introducing evidence of discussions and correspondence which describe and refer to legislative acts if the discussions and correspondence did not occur during the legislative process. The Government contends that it seeks to introduce such evidence to show Helstoski's motive for taking money, not to show his motive for introducing the bills. Alternatively, the Government contends that Helstoski waived his protection under the Speech or Debate Clause when he voluntarily presented evidence to the grand juries. Volunteered evidence, the Government argues, is admissible at trial regardless of its content.Finally, the Government argues, by enacting 18 U.S.C. § 201, Congress has shared its authority with the Executive and the Judiciary by express delegation authorizing the indictment Page 442 U. S. 487 and trial of Members who violate that section -- in short, an institutional decision to waive the privilege of the Clause.IIIThe Court's holdings in United States v. Johnson, 383 U. S. 169 (1966), and United States v. Brewster, supra, leave no doubt that evidence of a legislative act of a Member may not be introduced by the Government in a prosecution under § 201. [Footnote 6] In Johnson, there had been extensive questioning of both Johnson, a former Congressman, and others about a speech which Johnson had delivered in the House of Representatives and the motive for the speech. The Court's conclusion was unequivocal:"We see no escape from the conclusion that such an intensive judicial inquiry, made in the course of a prosecution by the Executive Branch under a general conspiracy statute, violates the express language of the Constitution and the policies which underlie it."383 U.S. at 383 U. S. 177.In Brewster, we explained the holding of Johnson in this way:"Johnson thus stands as a unanimous holding that a Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely Page 442 U. S. 488 on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties, and into the motivation for those acts."408 U.S. at 408 U. S. 512.The Government, however, argues that exclusion of references to past legislative acts will make prosecutions more difficult, because such references are essential to show the motive for taking money. In addition, the Government argues that the exclusion of references to past acts is not logically consistent. In its view, if jurors are told of promises to perform legislative acts, they will infer that the acts were performed, thereby calling the acts themselves into question.We do not accept the Government's arguments; without doubt, the exclusion of such evidence will make prosecutions more difficult. Indeed, the Speech or Debate Clause was designed to preclude prosecution of Members for legislative acts. [Footnote 7] Page 442 U. S. 489 The Clause protects "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts." Id. at 408 U. S. 525. It "precludes any showing of how [a legislator] acted, voted, or decided." Id. at 408 U. S. 527. Promises by a Member to perform an act in the future are not legislative acts. Brewster makes clear that the "compact" may be shown without impinging on the legislative function. Id. at 408 U. S. 526.We therefore agree with the Court of Appeals that references to past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause. We implied as much in Brewster when we explained:"To make a prima facie case under [the] indictment, the Government need not show any act of [Brewster] subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illicit compact, that is a criminal act."Ibid. (Emphasis altered.) A similar inference is appropriate from Johnson, where we held that the Clause was violated by questions about motive addressed to others than Johnson himself. That holding would have been unnecessary if the Clause did not afford protection beyond legislative acts themselves.MR. JUSTICE STEVENS misconstrues our holdings on the Speech or Debate Clause in urging: "The admissibility line should be based on the purpose of the offer, rather than the specificity of the reference." Post at 442 U. S. 496. The Speech or Debate Clause does not refer to the prosecutor's purpose in offering evidence. The Clause does not simply state, "No proof of a legislative act shall be offered"; the prohibition of the Clause is far broader. It provides that Members "shall not be questioned in any other Place." Indeed, as MR. JUSTICE STEVENS recognizes, the admission of evidence of legislative acts"may reveal [to the jury] some information about the performance of legislative acts and the legislator's motivation Page 442 U. S. 490 in conducting official duties."Post at 442 U. S. 496. Revealing information as to a legislative act -- speaking or debating -- to a jury would subject a Member to being "questioned" in a place other than the House or Senate, thereby violating the explicit prohibition of the Speech or Debate Clause.As to what restrictions the Clause places on the admission of evidence, our concern is not with the "specificity" of the reference. Instead, our concern is whether there is mention of a legislative act. To effectuate the intent of the Clause, the Court has construed it to protect other "legislative acts" such as utterances in committee hearings and reports. E.g., Doe v. McMillan, 412 U. S. 306 (1973). But it is clear from the language of the Clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not "speech or debate." Likewise, a promise to introduce a bill is not a legislative act. Thus, in light of the strictures of Johnson and Brewster, the District Court order prohibiting the introduction of evidence "of the performance of a past legislative act" was redundant.The Government argues that the prohibition of the introduction of evidence should not apply in this case, because the protections of the Clause have been waived. The Government suggests two sources of waiver: (a) Helstoski's conduct and utterances, and (b) the enactment of 18 U.S.C. § 201 by Congress. The Government argues that Helstoski waived the protection of the Clause by testifying before the grand juries and voluntarily producing documentary evidence of legislative acts. The Government contends that Helstoski's conduct is sufficient to meet whatever standard is required for a waiver of that protection. We cannot agree.Like the District Court and the Court of Appeals, we perceive no reason to decide whether an individual Member may waive the Speech or Debate Clause's protection against being prosecuted for a legislative act. Assuming that is possible, Page 442 U. S. 491 we hold that waiver can be found only after explicit and unequivocal renunciation of the protection. The ordinary rules for determining the appropriate standard of waiver do not apply in this setting. See generally Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938) ("intentional relinquishment or abandonment of a known right or privilege"); Garner v. United States, 424 U. S. 648, 424 U. S. 654 n. 9, 424 U. S. 657 (1976).The Speech or Debate Clause was designed neither to assure fair trials nor to avoid coercion. Rather, its purpose was to preserve the constitutional structure of separate, coequal, and independent branches of government. The English and American history of the privilege suggests that any lesser standard would risk intrusion by the Executive and the Judiciary into the sphere of protected legislative activities. The importance of the principle was recognized as early as 1808 in Coffin v. Coffin, 4 Mass. 1, 27, where the court said that the purpose of the principle was to secure to every member "exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office." (Emphasis added.)This Court has reiterated the central importance of the Clause for preventing intrusion by Executive and Judiciary into the legislative sphere."[I]t is apparent from the history of the clause that the privilege was not born primarily of a desire to avoid private suits . . . , but rather to prevent intimidation by the executive and accountability before a possibly hostile judiciary.""* * * *" "There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech Page 442 U. S. 492 or Debate Clause."United States v. Johnson, 383 U.S. at 383 U. S. 180-181, 383 U. S. 182.We reaffirmed that principle in Gravel v. United States, 408 U. S. 606, 408 U. S. 618 (1972), when we noted that the "fundamental purpose" of the Clause was to free "the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator."On the record before us, Helstoski's words and conduct cannot be seen as an explicit and unequivocal waiver of his immunity from prosecution for legislative acts -- assuming such a waiver can be made. The exchanges between Helstoski and the various United States Attorneys indeed indicate a willingness to waive the protection of the Fifth Amendment; but the Speech or Debate Clause provides a separate, and distinct, protection which calls for at least as clear and unambiguous an expression of waiver. No such showing appears on this record.The Government also argues that there has been a sort of institutional waiver by Congress in enacting § 201. According to the Government, § 201 represents a collective decision to enlist the aid of the Executive Branch and the courts in the exercise of Congress' powers under Art. I, § 5, to discipline its Members. This Court has twice declined to decide whether a Congressman could, consistent with the Clause, be prosecuted for a legislative act as such, provided the prosecution were "founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members." Johnson, supra, at 383 U. S. 185. United States v. Brewster, 408 U.S. at 408 U. S. 529, n. 18. We see no occasion to resolve that important question. We hold only that § 201 does not amount to a congressional waiver of the protection of the Clause for individual Members.We recognize that an argument can be made from precedent and history that Congress, as a body, should not be free to strip individual Members of the protection guaranteed by the Page 442 U. S. 493 Clause from being "questioned" by the Executive in the courts. The controversy over the Alien and Sedition Acts reminds us how one political party in control of both the Legislative and the Executive Branches sought to use the courts to destroy political opponents.The Supreme Judicial Court of Massachusetts noted in Coffin that"the privilege secured . . . is not so much the privilege of the house, as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the house."4 Mass., at 27 (emphasis added). In a similar vein in Brewster, we stated:"The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators."408 U.S. at 408 U. S. 507 (emphasis added). See also id. at 408 U. S. 524. We perceive no reason to undertake, in this case, consideration of the Clause in terms of separating the Members' rights from the rights of the body.Assuming, arguendo, that the Congress could constitutionally waive the protection of the Clause for individual Members, such waiver could be shown only by an explicit and unequivocal expression. There is no evidence of such a waiver in the language or the legislative history of § 201 or any of its predecessors. [Footnote 8] Page 442 U. S. 494We conclude that there was neither individual nor institutional waiver, and that the evidentiary barriers erected by the Speech or Debate Clause must stand. Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtUnited States v. Helstoski, 442 U.S. 477 (1979)United States v. HelstoskiNo. 78-349Argued March 27, 1979Decided June 18,1979442 U.S. 477SyllabusDuring an investigation by several federal grand juries of reported political corruption, including allegations that aliens had paid money for the introduction of private bills in Congress to suspend the application of the immigration laws to allow the aliens to remain in the United States, respondent, then a Member of the House of Representatives, appeared voluntarily before the grand juries on 10 occasions. He testified as to his practices in introducing private immigration bills, voluntarily produced his files on numerous private bills, and provided copies of many such bills introduced on behalf of various aliens. Initially, respondent made no claim of privilege under the Fifth Amendment, but eventually invoked that privilege, as well as alluding to his privilege under the Speech or Debate Clause. Subsequently, respondent was indicted on charges of accepting money in return for being influenced in the performance of official acts, in violation of 18 U.S.C. § 201. He moved in District Court to dismiss the indictment on the ground, inter alia, that it violated the Speech or Debate Clause. The District Court denied the motion, holding that the Clause did not require dismissal, but that the Government was precluded from introducing evidence of past legislative acts in any form. The Court of Appeals affirmed this evidentiary ruling, holding, contrary to the Government's arguments, that legislative acts could not be introduced to show motive, since otherwise the protection of the Speech or Debate Clause would be negated, and that respondent had not waived the protection of that Clause by testifying before the grand juries.Held: Under the Speech or Debate Clause, evidence of a legislative act of a Member of Congress may not be introduced by the Government in a prosecution under 18 U.S.C. § 201. United States v. Brewster, 408 U. S. 501; United States v. Johnson, 383 U. S. 169. Pp. 442 U. S. 487-494.(a) While the exclusion of evidence of past legislative acts undoubtedly will make prosecutions more difficult, nevertheless, the Speech or Debate Clause was designed to preclude prosecution of Members for legislative acts. References to legislative acts of a Member cannot be admitted without undermining the values protected by that Clause. Pp. 442 U. S. 488-489. Page 442 U. S. 478(b) As to what restrictions the Clause places on the admission of evidence, the concern is with whether there is evidence of a legislative act; the protection of the Clause extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes is not "speech or debate" within the meaning of the Clause, nor is a promise to introduce a bill at some future date a legislative act. Pp. 442 U. S. 489-490.(c) Respondent did not waive the protection of the Clause by testifying before the grand juries and voluntarily producing documentary evidence of legislative acts. Assuming, without deciding, that a Member of Congress may waive the Clause's protection against being prosecuted for a legislative act, such waiver could be found only after explicit and unequivocal renunciation of the protection. On this record, respondent's words and conduct did not constitute such a waiver; his exchanges with the attorneys for the United States indicated, at most, a willingness to waive the protection of the Fifth Amendment. Pp. 442 U. S. 490-492.(d) Nor does 18 U.S.C. § 201 amount to a congressional waiver of the protection of the Speech or Debate Clause. Assuming, arguendo, that Congress could constitutionally waive the protection of the Clause for individual Members, such waiver could be shown only by an explicit and unequivocal legislative expression, and there is no evidence of such a waiver. Pp. 442 U. S. 492-493.576 F.2d 511, affirmed.BURGER, C. J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which STEWART, J., joined, post, p. 442 U. S. 494. BRENNAN, J., filed a dissenting opinion, post, p. 442 U. S. 498. POWELL, J., took no part in the consideration or decision of the case. Page 442 U. S. 479

1960_203

MR. JUSTICE BLACK delivered the opinion of the Court.The appellant Eli Lilly and Company, an Indiana corporation dealing in pharmaceutical products, brought this action in a New Jersey state court to enjoin the Page 366 U. S. 277 appellee Sav-On-Drugs, Inc., a New Jersey corporation, from selling Lilly's products in New Jersey at prices lower than those fixed in minimum retail price contracts into which Lilly had entered with a number of New Jersey drug retailers. Sav-On had itself signed no such contract but, under the New Jersey Fair Trade Act, prices so established become obligatory upon nonsigning retailers who have notice that the manufacturer has made these contracts with other retailers. [Footnote 1] Sav-On moved to dismiss this complaint under a New Jersey statute that denies a foreign corporation transacting business in the State the right to bring any action in New Jersey upon any contract made there unless and until it files with the New Jersey Secretary of State a copy of its charter, together with a limited amount of information about its operations, [Footnote 2] and obtains from him a certificate authorizing it to do business in the State. [Footnote 3]Lilly opposed the motion to dismiss, urging that its business in New Jersey was entirely in interstate commerce and arguing, upon that ground, that the attempt to require it to file the necessary information and obtain a certificate for its New Jersey business was forbidden by the Commerce Clause of the Federal Constitution. Both parties offered evidence to the Court in the nature of affidavits as to the extent and kind of business done by Lilly with New Jersey companies and people. On this Page 366 U. S. 278 evidence, the trial court made findings of fact and granted Sav-On's motion to dismiss, stating as its ground that"the conclusion is inescapable that the plaintiff [Lilly] was in fact doing business in this State at the time of the acts complained of, and was required to, but did not, comply with the provisions of the Corporation Act. [Footnote 4]"On appeal to the Supreme Court of New Jersey, this constitutional attack was renewed, and the State Attorney General was permitted to intervene as a party defendant to defend the validity of the statute. The State Supreme Court then affirmed the judgment upholding the statute, relying entirely upon the opinion of the trial court. [Footnote 5] We noted probable jurisdiction to consider Lilly's contention that the constitutional question was improperly decided by the state courts. [Footnote 6]The record shows that the New Jersey trade in Lilly's pharmaceutical products is carried on through both interstate and intrastate channels. Lilly manufactures these products and sells them in interstate commerce to certain selected New Jersey wholesalers. These wholesalers then sell the products in intrastate commerce to New Jersey hospitals, physicians and retail drug stores, and these retail stores, in turn, sell them, again in intrastate commerce, to the general public. It is well established that New Jersey cannot require Lilly to get a certificate of authority to do business in the State if its participation in this trade is limited to its wholly interstate sales to New Jersey wholesalers. [Footnote 7] Under the authority of the so-called "drummer" cases, such as Robbins v. Shelby Page 366 U. S. 279 County Taxing District, [Footnote 8] Lilly is free to send salesmen into New Jersey to promote this interstate trade without interference from regulations imposed by the State. On the other hand, it is equally well settled that, if Lilly is engaged in intrastate as well as interstate aspects of the New Jersey drug business, the State can require it to get a certificate of authority to do business. [Footnote 9] In such a situation, Lilly could not escape state regulation merely because it is also engaged in interstate commerce. We must then look to the record to determine whether Lilly is engaged in intrastate commerce in New Jersey.The findings of the trial court, based as they are upon uncontroverted evidence presented to it, show clearly that Lilly is conducting an intrastate as well as an interstate business in New Jersey:"The facts are these: Plaintiff maintains an office at 60 Park Place, Newark, New Jersey. Its name is on the door and on the tenant registry in the lobby of the building. (The September 1959 issue of the Newark Telephone Directory lists the plaintiff, both in the regular section and in the classified section under 'Pharmaceutical Products,' as having an office at 60 Park Place, Newark.) The lessor of the space is plaintiff's employee, Leonard L. Audino, who is district manager in charge of its marketing division for the district known as Newark. Plaintiff is not a party to the lease, but it reimburses Audino 'for all expenses incidental to the maintenance and operation of said office.' There is a secretary in the office, Page 366 U. S. 280 who is paid directly by the plaintiff on a salary basis. There are 18 'detailmen' under the supervision of Audino. These detailmen are paid on a salary basis by the plaintiff, but receive no commissions. Many, if not all of them, reside in the State of New Jersey. Whether plaintiff pays unemployment or other taxes to the State of New Jersey is not stated. It is the function of the detailmen to visit retail pharmacists, physicians and hospitals in order to acquaint them with the products of the plaintiff with a view to encouraging the use of these products. Plaintiff contends that their work is 'promotional and informational only.' On an occasion, these detailmen, 'as a service to the retailer,' may receive an order for plaintiff's products for transmittal to a wholesaler. They examine the stocks and inventory of retailers and make recommendations to them relating to the supplying and merchandising of plaintiff's products. They also make available to retail druggists, free of charge, advertising and promotional material. When defendant opened its store in Carteret, plaintiff offered to provide, and did provide, announcements for mailing to the medical profession, without cost to defendant. The same thing occurred when defendant opened its Plainfield store. [Footnote 10]"We agree with the trial court that "[t]o hold under the facts above recited that plaintiff [Lilly] is not doing business in New Jersey is to completely ignore reality." [Footnote 11] Eighteen "detailmen," working out of a big office in Newark, New Jersey, with Lilly's name on the door and in the lobby of the building, and with Lilly's district manager and secretary in charge, have been regularly engaged Page 366 U. S. 281 in work for Lilly which relates directly to the intrastate aspects of the sale of Lilly's products. These eighteen "detailmen" have been traveling throughout the State of New Jersey promoting the sales of Lilly's products not to the wholesalers, Lilly's interstate customers, but to the physicians, hospitals and retailers who buy to use products in intrastate commerce from the wholesalers. To this end, they have provided these hospitals, physicians and retailers with up-to-date knowledge of Lilly's products and with free advertising and promotional material designed to encourage the general public to make more intrastate purchases of Lilly's products. And they sometimes even directly participate in the intrastate sales themselves by transmitting orders from the hospitals, physicians and drugstores they service to the New Jersey wholesalers.This Court had a somewhat similar problem before it in Cheney Brothers Co. v. Massachusetts. [Footnote 12] In that case, the Northwestern Consolidated Milling Company of Minnesota had been conducting business in Massachusetts in a manner quite similar to that being used by Lilly in New Jersey -- a number of wholesalers were buying Northwestern's flour in interstate commerce and selling it to retail stores in Massachusetts in intrastate commerce. Northwestern had in Massachusetts, in addition to any force of drummers it may have had to promote its interstate sales to the wholesalers, a group of salesmen who traveled the State promoting the sale of flour by Massachusetts wholesalers to Massachusetts retailers. These salesmen also solicited orders from the retail dealers and turned them over to the nearest Massachusetts wholesaler. Despite this substantial connection with the intrastate business in Massachusetts, Northwestern contended that its business was wholly in interstate commerce -- a Page 366 U. S. 282 contention that this Court disposed of summarily in the following words: "Of course, this is a domestic business -- inducing one local merchant to buy a particular class of goods from another." [Footnote 13]Lilly attempts to distinguish the holding in the Cheney case on the ground that, here, its detailmen are not engaged in a systematic solicitation of orders from the retailers. It is true that the record in the Cheney case shows a more regular solicitation of orders than does the record here. But that difference is not enough to distinguish the cases. For the record shows that Lilly here, no less than Northwestern there, engages in a "domestic business -- inducing," as the Court said of Northwestern, "one local merchant to buy a particular class of goods from another." The fact that the business of "inducing" intrastate sales, as engaged in by Lilly, is primarily a promotional and service business which does not include a systematic solicitation of orders goes only to the nature of the intrastate business Lilly is carrying on, not to the question of whether it is carrying on an intrastate business.Lilly also contends that, even if it is engaged in intrastate commerce in New Jersey, and can, by virtue of that fact, be required to get a license to do business in that State, New Jersey cannot properly deny it access to the courts in this case, because the suit is one arising out of the interstate aspects of its business. In this regard, Lilly relies upon such cases as International Textbook Co. v. Pigg, [Footnote 14] holding that a State cannot condition the right of a foreign corporation to sue upon a contract for the interstate sale of goods. We do not think that those cases are applicable here, however, for the present suit is not of that kind. Here, Lilly is suing upon a contract entirely Page 366 U. S. 283 separable from any particular interstate sale and the power of the State is consequently not limited by cases involving such contracts.What we have said would be enough to dispose of this case were it not for the contention that the question whether Lilly is engaged in intrastate commerce in New Jersey is not properly before us. This contention is based upon Lilly's interpretation of the decision of the New Jersey court as resting upon the assumption that Lilly has been engaged in interstate commerce only. We cannot accept that contention, because, in the first place, it rests upon a completely erroneous interpretation of the New Jersey court's opinion. That court was called upon to decide whether appellant was "transacting business" in New Jersey within the meaning of the statute which requires the registration of foreign corporations. In deciding that question, the court relied upon the facts set out in the affidavits with regard to the various local activities of Lilly as summarized in the findings quoted above. The only reasonable inference from these findings is that the trial court interpreted the phrase "transacting business" in the New Jersey statute to mean transacting local intrastate business, and concluded from the facts it found that Lilly was transacting such business. This conclusion is reinforced by a subsequent New Jersey opinion that distinguishes the decision in this case on precisely that ground. [Footnote 15]But even if the opinion of the court below should, as is urged, be interpreted as resting upon the mistaken belief that appellant could be required to register, even though it transacted no business whatever in New Jersey except interstate business, we think it would still be necessary to affirm the decision of that court on the record presently before us. That record clearly shows that Lilly Page 366 U. S. 284 was, as a matter of fact, engaged in local intrastate business in New Jersey through the employees it kept there to induce retailers, physicians and hospitals to buy Lilly's products from New Jersey wholesalers in intrastate commerce. So, even if the state court had rested its conclusions on an improper ground, this Court could not, in view of the undisputed facts establishing its validity declare a solemn act of the State of New Jersey unconstitutional. The record clearly supports the judgment of the New Jersey Supreme Court, and that judgment must therefore be, and is,Affirmed

U.S. Supreme CourtEli Lilly & Co. v. Sav-on-Drugs, Inc., 366 U.S. 276 (1961)Eli Lilly & Co. v. Sav-on-Drugs, Inc.No. 203Argued March 20-21, 1961Decided May 22, 1961366 U.S. 276SyllabusAppellant, an Indiana corporation, maintains an office in New Jersey on premises leased in the name of its district manager and occupied by him and a secretary, with appellant's name on the door and in the lobby and with the telephone listed in appellant's name. Appellant also has 18 other salaried employees traveling throughout the State and promoting the sale of its pharmaceutical products not to wholesalers, who buy them interstate, but to hospitals, physicians and retail drugstores, who buy them intrastate from wholesalers and sell them intrastate to consumers.Held: on the record in this case, appellant is doing business intrastate in New Jersey, and a state statute requiring it to obtain a certificate of authority to do business there, as a condition precedent to maintaining in a state court a suit not based on a particular interstate sale, does not violate the Commerce Clause of the Federal Constitution. Pp. 366 U. S. 276-284.31 N.J. 591, 158 A.2d 528, affirmed.

1985_84-1903

JUSTICE REHNQUIST delivered the opinion of the Court.In this case, we address the facial constitutionality of a Puerto Rico statute and regulations restricting advertising of casino gambling aimed at the residents of Puerto Rico. Appellant Posadas de Puerto Rico Associates, doing business in Puerto Rico as Condado Holiday Inn Hotel and Sands Casino, filed suit against appellee Tourism Company of Puerto Rico in the Superior Court of Puerto Rico, San Juan Section. Appellant Page 478 U. S. 331 sought a declaratory judgment that the statute and regulations, both facially and as applied by the Tourism Company, impermissibly suppressed commercial speech in violation of the First Amendment and the equal protection and due process guarantees of the United States Constitution. [Footnote 1] The Superior Court held that the advertising restrictions had been unconstitutionally applied to appellant's past conduct. But the court adopted a narrowing construction of the statute and regulations, and held that, based on such a construction, both were facially constitutional. The Supreme Court of Puerto Rico dismissed an appeal on the ground that it "d[id] not present a substantial constitutional question." We postponed consideration of the question of jurisdiction until the hearing on the merits. 474 U.S. 917 (1985). We now hold that we have jurisdiction to hear the appeal, and we affirm the decision of the Supreme Court of Puerto Rico with respect to the facial constitutionality of the advertising restrictions.In 1948, the Puerto Rico Legislature legalized certain forms of casino gambling. The Games of Chance Act of 1948, Act No. 221 of May 15, 1948 (Act), authorized the playing of roulette, dice, and card games in licensed "gambling rooms." § 2, codified, as amended, at P.R.Laws Ann., Tit. 15, § 71 (1972). Bingo and slot machines were later added to the list of authorized games of chance under the Act. See Act of June 7, 1948, No. 21, § 1 (bingo); Act of July 30, 1974, No. 2, pt. 2, § 2 (slot machines). The legislature's intent was set forth in the Act's Statement of Motives: Page 478 U. S. 332"The purpose of this Act is to contribute to the development of tourism by means of the authorization of certain games of chance which are customary in the recreation places of the great tourist centers of the world, and by the establishment of regulations for and the strict surveillance of said games by the government, in order to ensure for tourists the best possible safeguards, while at the same time opening for the Treasurer of Puerto Rico an additional source of income."Games of Chance Act of 1948, Act No. 221 of May 15, 1948, § 1. The Act also provided that "[n]o gambling room shall be permitted to advertise or otherwise offer their facilities to the public of Puerto Rico." § 8, codified, as amended, at P.R.Laws Ann., Tit. 15, § 77 (1972).The Act authorized the Economic Development Administration of Puerto Rico to issue and enforce regulations implementing the various provisions of the Act. See § 7(a), codified, as amended, at P R. Laws Ann., Tit. 15, § 76a (1972). Appellee Tourism Company of Puerto Rico, a public corporation, assumed the regulatory powers of the Economic Development Administration under the Act in 1970. See Act of June 18, 1970, No. 10, § 17, codified at P.R.Laws Ann., Tit. 23, § 671p (Supp.1983). The two regulations at issue in this case were originally issued in 1957 for the purpose of implementing the advertising restrictions contained in § 8 of the Act. Regulation 76-218 basically reiterates the language of § 8. See 15 R. & R.P.R. § 76-218 (1972). Regulation 76a-1(7), as amended in 1971, provides in pertinent part:"No concessionaire, nor his agent or employee is authorized to advertise the gambling parlors to the public in Puerto Rico. The advertising of our games of chance is hereby authorized through newspapers, magazines, radio, television and other publicity media outside Puerto Rico subject to the prior editing and approval by Page 478 U. S. 333 the Tourism Development Company of the advertisement to be submitted in draft to the Company."15 R. & R.P.R. § 76a-1(7) (1972).In 1975, appellant Posadas de Puerto Rico Associates, a partnership organized under the laws of Texas, obtained a franchise to operate a gambling casino and began doing business under the name Condado Holiday Inn Hotel and Sands Casino. [Footnote 2] In 1978, appellant was twice fined by the Tourism Company for violating the advertising restrictions in the Act and implementing regulations. Appellant protested the fines in a series of letters to the Tourism Company. On February 16, 1979, the Tourism Company issued to all casino franchise holders a memorandum setting forth the following interpretation of the advertising restrictions:"This prohibition includes the use of the word 'casino' in matchbooks, lighters, envelopes, inter-office and/or external correspondence, invoices, napkins, brochures, menus, elevators, glasses, plates, lobbies, banners, flyers, paper holders, pencils, telephone books, directories, bulletin boards or in any hotel dependency or object which may be accessible to the public in Puerto Rico."App. 7a. Pursuant to this administrative interpretation, the Tourism Company assessed additional fines against appellant. The Tourism Company ordered appellant to pay the outstanding total of $1,500 in fines by March 18, 1979, or its gambling franchise would not be renewed. Appellant continued to protest the fines, but ultimately paid them without seeking judicial review of the decision of the Tourism Company. In July, 1981, appellant was again fined for violating the advertising restrictions. Faced with another threatened nonrenewal Page 478 U. S. 334 of its gambling franchise, appellant paid the $500 fine under protest. [Footnote 3]Appellant then filed a declaratory judgment action against the Tourism Company in the Superior Court of Puerto Rico, San Juan Section, seeking a declaration that the Act and implementing regulations, both facially and as applied by the Tourism Company, violated appellant's commercial speech rights under the United States Constitution. The Puerto Rico Secretary of Justice appeared for the purpose of defending the constitutionality of the statute and regulations. After a trial, the Superior Court held that"[t]he administrative interpretation and application has [sic] been capricious, arbitrary, erroneous and unreasonable, and has [sic] produced absurd results which are contrary to law."App. to Juris. Statement 29b. The court therefore determined that it must "override the regulatory deficiency to save the constitutionality of the statute." The court reviewed the history of casino gambling in Puerto Rico and concluded:". . . We assume that the legislator was worried about the participation of the residents of Puerto Rico on what on that date constituted an experiment. . . . Therefore, he prohibited the gaming rooms from announcing themselves or offering themselves to the public -- which we reasonably infer are the bona fide residents of Puerto Rico. . . . [W]hat the legislator foresaw and prohibited was the invitation to play at the casinos through publicity campaigns or advertising in Puerto Rico addressed to the resident of Puerto Rico. He wanted to protect him."Id. at 32b. Based on this view of the legislature's intent, the court issued a narrowing construction of the statute, declaring that"the Page 478 U. S. 335 only advertisement prohibited by the law originally is that which is contracted with an advertising agency, for consideration, to attract the resident to bet at the dice, card, roulette and bingo tables."Id. at 33b-34b. The court also issued the following narrowing construction of Regulation 76a-1(7):". . . Advertisements of the casinos in Puerto Rico are prohibited in the local publicity media addressed to inviting the residents of Puerto Rico to visit the casinos.""* * * *""We hereby allow, within the jurisdiction of Puerto Rico, advertising by the casinos addressed to tourists, provided they do not invite the residents of Puerto Rico to visit the casino, even though said announcements may incidentally reach the hands of a resident. Within the ads of casinos allowed by this regulation figure, for illustrative purposes only, advertising distributed or placed in landed airplanes or cruise ships in jurisdictional waters and in restricted areas to travelers only in the international airport and the docks where tourist cruise ships arrive, since the principal objective of said announcements is to make the tourist in transit through Puerto Rico aware of the availability of the games of chance as a tourist amenity; the ads of casinos in magazines for distribution primarily in Puerto Rico to the tourist, including the official guide of the Tourism Company 'Que Pasa in Puerto Rico' and any other tourist facility guide in Puerto Rico, even though said magazines may be available to the residents and in movies, television, radio, newspapers and trade magazines which may be published, taped, or filmed in the exterior for tourism promotion in the exterior even though they may be exposed or incidentally circulated in Puerto Rico. For example: an advertisement in the New York Times, an advertisement in CBS which reaches us through Cable TV, whose main objective is to reach the potential tourist. "Page 478 U. S. 336"We hereby authorize advertising in the mass communication media of the country, where the trade name of the hotel is used, even though it may contain a reference to the casino, provided that the word casino is never used alone nor specified. Among the announcements allowed, by way of illustration, are the use of the trade name with which the hotel is identified for the promotion of special vacation packages and activities at the hotel, in invitations, 'billboards,' bulletins and programs or activities sponsored by the hotel. The use of the trade name, including the reference to the casino, is also allowed in the hotel's facade, provided the word 'casino' does not exceed in proportion the size of the rest of the name, and the utilization of lights and colors will be allowed if the rest of the laws regarding this application are complied with; and in the menus, napkins, glasses, tableware, glassware and other items used within the hotel, as well as in calling cards, envelopes and letterheads of the hotel and any other use which constitutes a means of identification.""The direct promotion of the casinos within the premises of the hotels is allowed. In-house guests and clients may receive any type of information and promotion regarding the location of the casino, its schedule and the procedure of the games as well as magazines, souvenirs, stirrers, matchboxes, cards, dice, chips, T-shirts, hats, photographs, postcards and similar items used by the tourism centers of the world.""Since a clausus enumeration of this regulation is unforeseeable, any other situation or incident relating to the legal restriction must be measured in light of the public policy of promoting tourism. If the object of the advertisement is the tourist, it passes legal scrutiny."Id. at 38b-40b. The court entered judgment declaring that appellant's constitutional rights had been violated by the Tourism Company's past application of the advertising restrictions, but that Page 478 U. S. 337 the restrictions were not facially unconstitutional, and could be sustained, as "modified by the guidelines issued by this Court on this date." [Footnote 4] Id. at 42b.The Supreme Court of Puerto Rico dismissed appellant's appeal of the Superior Court's decision on the ground that it "d[id] not present a substantial constitutional question." Id. at 1a. See P.R.Laws Ann., Tit. 4, § 37(a) (1978). Treating appellant's submission as a petition for a writ of review, see §§ 37(b), (g), the Supreme Court denied the petition. One judge dissented.We hold that we have jurisdiction to review the decision of the Supreme Court of Puerto Rico. A federal statute, 28 U.S.C. § 1258(2), specifically authorizes an appeal to this Court from a decision of the Supreme Court of Puerto Rico"where is drawn in question the validity of a statute of the Commonwealth of Puerto Rico on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity."A careful review of the record in this case reveals that appellant's federal constitutional claims were adequately raised at every stage of the proceedings below. In a letter to the Tourism Company on February 24, 1982, prior to filing suit, appellant warned that, absent a reinterpretation of the advertising restrictions by the Tourism Company, "we have no choice but to challenge in Court the constitutionality and or validity of the advertising prohibition of the Act and Regulations." App. to Juris. Statement 6h. In its complaint, appellant claimed that the advertising restrictions"violat[ed] the constitutional rights of petitioner protected by the First Amendment Page 478 U. S. 338 to the Constitution of the United States . . . [,] the constitutional guarantee of equal protection of the laws protected by the Constitution of the United States . . . [and] the constitutional guarantee of due process of law. . . ."Id. at 4i. And, in the bill of appeal to the Supreme Court of Puerto Rico, appellant claimed that the advertising restrictions violated "the First Amendment of the United States Constitution," id. at 5c, along with "due process of law guaranteed by the Constitution" and "the equal protection of the laws," id. at 6c.Under Puerto Rico law, appellant had the right to appeal the Superior Court's decision to the Supreme Court of Puerto Rico on the ground that that case "involv[ed] or decid[ed] a substantial constitutional question under the Constitution of the United States." P.R.Laws Ann. Tit. 4, § 37(a) (1978). The Supreme Court's dismissal of appellant's appeal for want of "a substantial constitutional question" therefore constituted a decision on the merits in favor of the validity of the challenged statute and regulations. See Tumey v. Ohio, 273 U. S. 510, 273 U. S. 515 (1927). In such a situation, we have jurisdiction to review the decision of the Supreme Court pursuant to 28 U.S.C. § 1258(2).The Tourism Company argues, however, that appellant's notice of appeal was not timely filed with the Clerk of the Supreme Court of Puerto Rico, [Footnote 5] in violation of Rule 53.1 of the Puerto Rico Rules of Civil Procedure. According to the Tourism Company, this flaw is fatal to appellant's right to seek review in this Court. We do not agree. The requirement under Rule 53.1 that a notice of appeal be timely filed with the clerk of the reviewing court has been held by the Page 478 U. S. 339 Supreme Court of Puerto Rico to be nonjurisdictional. See Morales v. Mendez Mas, 109 P.R.R. 1136 (1980). In this case, the Supreme Court did not dismiss appellant's appeal on timeliness grounds, so we can only assume that the court waived the timeliness requirement, as it had the power to do. Appellant's late filing of the notice of appeal does not affect our jurisdiction.Before turning to the merits of appellant's First Amendment claim, we must address an additional preliminary matter. Although we have not heretofore squarely addressed the issue in the context of a case originating in Puerto Rico, we think it obvious that, in reviewing the facial constitutionality of the challenged statute and regulations, we must abide by the narrowing constructions announced by the Superior Court and approved sub silentio by the Supreme Court of Puerto Rico. This would certainly be the rule in a case originating in one of the 50 States. See New York v. Ferber, 458 U. S. 747, 458 U. S. 769, n. 24 (1982); Kingsley International Pictures Corp. v. Regents, 360 U. S. 684, 360 U. S. 688 (1959). And we believe that Puerto Rico's status as a Commonwealth dictates application of the same rule. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 416 U. S. 672-673 (1974) (noting with approval decisions of lower federal courts holding that Puerto Rico is to be deemed "sovereign over matters not ruled by the Constitution"); Wackenhut Corp. v. Aponte, 266 F. Supp. 401, 405 (PR 1966) (Puerto Rico "should have the primary opportunity through its courts to determine the intended scope of its own legislation"), aff'd, 386 U. S. 268 (1967). [Footnote 6] Page 478 U. S. 340Because this case involves the restriction of pure commercial speech which does "no more than propose a commercial transaction," Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 762 (1976), [Footnote 7] our First Amendment analysis is guided by the general principles identified in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557 (1980). See Zauderer v. Office of Disciplinary Counsel, 471 U. S. 626, 471 U. S. 637-638 (1985). Under Central Hudson, commercial speech receives a limited form of First Amendment protection so long as it concerns a lawful activity and is not Page 478 U. S. 341 misleading or fraudulent. Once it is determined that the First Amendment applies to the particular kind of commercial speech at issue, then the speech may be restricted only if the government's interest in doing so is substantial, the restrictions directly advance the government's asserted interest, and the restrictions are no more extensive than necessary to serve that interest. 447 U.S. at 447 U. S. 566.The particular kind of commercial speech at issue here, namely, advertising of casino gambling aimed at the residents of Puerto Rico, concerns a lawful activity, and is not misleading or fraudulent, at least in the abstract. We must therefore proceed to the three remaining steps of the Central Hudson analysis in order to determine whether Puerto Rico's advertising restrictions run afoul of the First Amendment. The first of these three steps involves an assessment of the strength of the government's interest in restricting the speech. The interest at stake in this case, as determined by the Superior Court, is the reduction of demand for casino gambling by the residents of Puerto Rico. Appellant acknowledged the existence of this interest in its February 24, 1982, letter to the Tourism Company. See App. to Juris. Statement 2h ("The legislators wanted the tourists to flock to the casinos to gamble, but not our own people"). The Tourism Company's brief before this Court explains the legislature's belief that"[e]xcessive casino gambling among local residents . . . would produce serious harmful effects on the health, safety and welfare of the Puerto Rican citizens, such as the disruption of moral and cultural patterns, the increase in local crime, the fostering of prostitution, the development of corruption, and the infiltration of organized crime."Brief for Appellees 37. These are some of the very same concerns, of course, that have motivated the vast majority of the 50 States to prohibit casino gambling. We have no difficulty in concluding that the Puerto Rico Legislature's interest in the health, safety, and welfare of its citizens constitutes a "substantial" governmental interest. Cf. Renton v. Playtime Theatres, Inc., 475 U. S. 41, 475 U. S. 54 (1986) (city has substantial interest in "preserving the quality of life in the community at large").The last two steps of the Central Hudson analysis basically involve a consideration of the "fit" between the legislature's ends and the means chosen to accomplish those ends. Step three asks the question whether the challenged restrictions on commercial speech "directly advance" the government's asserted interest. In the instant case, the answer to this question is clearly "yes." The Puerto Rico Legislature obviously Page 478 U. S. 342 believed, when it enacted the advertising restrictions at issue here, that advertising of casino gambling aimed at the residents of Puerto Rico would serve to increase the demand for the product advertised. We think the legislature's belief is a reasonable one, and the fact that appellant has chosen to litigate this case all the way to this Court indicates that appellant shares the legislature's view. See Central Hudson, supra, at 447 U. S. 569 ("There is an immediate connection between advertising and demand for electricity. Central Hudson would not contest the advertising ban unless it believed that promotion would increase its sales"); cf. Metromedia, Inc.. v. San Diego, 453 U. S. 490, 453 U. S. 509 (1981) (plurality opinion of WHITE, J.) (finding third prong of Central Hudson test satisfied where legislative judgment "not manifestly unreasonable").Appellant argues, however, that the challenged advertising restrictions are under-inclusive, because other kinds of gambling, such as horse racing, cockfighting, and the lottery, may be advertised to the residents of Puerto Rico. Appellant's argument is misplaced for two reasons. First, whether other kinds of gambling are advertised in Puerto Rico or not, the restrictions on advertising of casino gambling "directly advance" the legislature's interest in reducing demand for games of chance. See id. at 453 U. S. 511 (plurality opinion of WHITE, J.) ("[W]hether on-site advertising is permitted or not, the prohibition of off-site advertising is directly related to the stated objectives of traffic safety and esthetics. This is not altered by the fact that the ordinance is under-inclusive because it permits on-site advertising"). Second, the legislature's interest, as previously identified, is not necessarily to reduce demand for all games of chance, but to reduce demand for casino gambling. According to the Superior Court, horse racing, cockfighting, "picas," or small games of chance at fiestas, and the lottery "have been traditionally part of the Puerto Rican's roots," so that"the legislator could have been more flexible than in authorizing more sophisticated games Page 478 U. S. 343 which are not so widely sponsored by the people."App. to Juris. Statement 35b. In other words, the legislature felt that, for Puerto Ricans, the risks associated with casino gambling were significantly greater than those associated with the more traditional kinds of gambling in Puerto Rico. [Footnote 8] In our view, the legislature's separate classification of casino gambling, for purposes of the advertising ban, satisfies the third step of the Central Hudson analysis.We also think it clear beyond peradventure that the challenged statute and regulations satisfy the fourth and last step of the Central Hudson analysis, namely, whether the restrictions on commercial speech are no more extensive than necessary to serve the government's interest. The narrowing constructions of the advertising restrictions announced by the Superior Court ensure that the restrictions will not affect advertising of casino gambling aimed at tourists, but will apply only to such advertising when aimed at the residents of Puerto Rico. See also n 7, infra; cf. Oklahoma Telecasters Page 478 U. S. 344 Assn. v. Crisp, 699 F.2d 490, 501 (CA10 1983), rev'd on other grounds sub nom. Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691 (1984). Appellant contends, however, that the First Amendment requires the Puerto Rico Legislature to reduce demand for casino gambling among the residents of Puerto Rico not by suppressing commercial speech that might encourage such gambling, but by promulgating additional speech designed to discourage it. We reject this contention. We think it is up to the legislature to decide whether or not such a "counterspeech" policy would be as effective in reducing the demand for casino gambling as a restriction on advertising. The legislature could conclude, as it apparently did here, that residents of Puerto Rico are already aware of the risks of casino gambling, yet would nevertheless be induced by widespread advertising to engage in such potentially harmful conduct. Cf. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582, 585 (DC 1971) (three-judge court) ("Congress had convincing evidence that the Labeling Act of 1965 had not materially reduced the incidence of smoking"), summarily aff'd sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1972); Dunagin v. City of Oxford, Miss., 718 F.2d 738, 751 (CA5 1983) (en banc) ("We do not believe that a less restrictive time, place and manner restriction, such as a disclaimer warning of the dangers of alcohol, would be effective. The state's concern is not that the public is unaware of the dangers of alcohol. . . . The concern, instead, is that advertising will unduly promote alcohol consumption, despite known dangers"), cert. denied, 467 U.S. 1259 (1984).In short, we conclude that the statute and regulations at issue in this case, as construed by the Superior Court, pass muster under each prong of the Central Hudson test. We therefore hold that the Supreme Court of Puerto Rico properly rejected appellant's First Amendment claim. [Footnote 9] Page 478 U. S. 345Appellant argues, however, that the challenged advertising restrictions are constitutionally defective under our decisions in Carey v. Population Services International, 431 U. S. 678 (1977), and Bigelow v. Virginia, 421 U. S. 809 (1975). In Carey, this Court struck down a ban on any "advertisement or display" of contraceptives, 431 U.S. at 431 U. S. 700-702, and in Bigelow, we reversed a criminal conviction based on the advertisement of an abortion clinic. We think appellant's argument ignores a crucial distinction between the Carey and Bigelow decisions and the instant case. In Carey and Bigelow, the underlying conduct that was the subject of the advertising restrictions was constitutionally protected, and could not have been prohibited by the State. Here, on the other hand, the Puerto Rico Legislature surely could have prohibited casino gambling by the residents of Puerto Rico altogether. In our view, the greater power to Page 478 U. S. 346 completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling, and Carey and Bigelow are hence inapposite.Appellant also makes the related argument that, having chosen to legalize casino gambling for residents of Puerto Rico, the legislature is prohibited by the First Amendment from using restrictions on advertising to accomplish its goal of reducing demand for such gambling. We disagree. In our view, appellant has the argument backwards. As we noted in the preceding paragraph, it is precisely because the government could have enacted a wholesale prohibition of the underlying conduct that it is permissible for the government to take the less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising. It would surely be a Pyrrhic victory for casino owners such as appellant to gain recognition of a First Amendment right to advertise their casinos to the residents of Puerto Rico, only to thereby force the legislature into banning casino gambling by residents altogether. It would just as surely be a strange constitutional doctrine which would concede to the legislature the authority to totally ban a product or activity, but deny to the legislature the authority to forbid the stimulation of demand for the product or activity through advertising on behalf of those who would profit from such increased demand. Legislative regulation of products or activities deemed harmful, such as cigarettes, alcoholic beverages, and prostitution, has varied from outright prohibition on the one hand, see, e.g., Cal.Penal Code Ann. § 647(b) (West Supp.1986) (prohibiting soliciting or engaging in act of prostitution), to legalization of the product or activity with restrictions on stimulation of its demand on the other hand, see, e.g., Nev.Rev.Stat. §§ 244.345(1), (8) (1986) (authorizing licensing of houses of prostitution except in counties with more than 250,000 population), §§ 201.430, 201.440 (prohibiting advertising of houses of prostitution "[i]n any public theater, on the public streets of any city or town, or on any public highway," Page 478 U. S. 347 or "in [a] place of business"). [Footnote 10] To rule out the latter, intermediate kind of response would require more than we find in the First Amendment.Appellant's final argument in opposition to the advertising restrictions is that they are unconstitutionally vague. In particular, appellant argues that the statutory language, "to advertise or otherwise offer their facilities," and "the public of Puerto Rico," are not sufficiently defined to satisfy the requirements of due process. Appellant also claims that the term "anunciarse," which appears in the controlling Spanish version of the statute, is actually broader than the English term "to advertise," and could be construed to mean simply "to make known." Even assuming that appellant's argument has merit with respect to the bare statutory language, however, we have already noted that we are bound by the Superior Court's narrowing construction of the statute. Viewed in light of that construction, and particularly with the interpretive assistance of the implementing regulations as Page 478 U. S. 348 modified by the Superior Court, we do not find the statute unconstitutionally vague.For the foregoing reasons, the decision of the Supreme Court of Puerto Rico that, as construed by the Superior Court, § 8 of the Games of Chance Act of 1948 and the implementing regulations do not facially violate the First Amendment or the due process or equal protection guarantees of the Constitution, is affirmed. [Footnote 11]It is so ordered

U.S. Supreme CourtPosadas de P.R. Assocs. v. Tourism Co., 478 U.S. 328 (1986)Posadas de Puerto Rico Associates, dba Condado Holiday Inn v.Tourism Company of Puerto RicoNo. 84-1903Argued April 28, 1986Decided July 1, 1986478 U.S. 328SyllabusPuerto Rico's Games of Chance Act of 1948 (Act) legalizes certain forms of casino gambling in licensed places in order to promote the development of tourism, but also provides that "[n]o gambling room shall be permitted to advertise or otherwise offer their facilities to the public of Puerto Rico." Implementing regulations prohibit the advertising of gambling parlors to the public in Puerto Rico, but permit restricted advertising through publicity media outside Puerto Rico. Appellant, a partnership franchised to operate a casino in Puerto Rico, was fined by appellee public corporation, which is authorized to administer the Act, for violating the advertising restrictions in the Act and the regulations. Appellant then filed suit against appellee in the Puerto Rico Superior Court, seeking a declaratory judgment that the Act and regulations, both facially and as applied by appellee, impermissibly suppressed commercial speech in violation of the First Amendment and the equal protection and due process guarantees of the Federal Constitution. The court held that the advertising restrictions had been unconstitutionally applied to appellant's past conduct, but the court then adopted a narrowing construction of the Act and regulations, declaring that they prohibited local advertising addressed to inviting residents of Puerto Rico to visit casinos, but not certain local advertising addressed to tourists, even though it might incidentally reach the attention of residents. The court then held that, based on its construction of the laws, the statute and regulations were facially constitutional. The Puerto Rico Supreme Court dismissed appellant's appeal on the ground that it "d[id] not present a substantial constitutional question."Held:1. This Court has jurisdiction to review the Puerto Rico Supreme Court's decision pursuant to 28 U.S.C. § 1258(2), which authorizes an appeal to this Court from a decision of the Puerto Rico Supreme Court that is in favor of the validity of a Puerto Rico statute challenged as being repugnant to the Federal Constitution. Appellant's federal constitutional claims were adequately raised at every stage of the proceedings below, and under Puerto Rico law appellant had the right to appeal the Superior Court's decision to the Puerto Rico Supreme Court on the Page 478 U. S. 329 ground that the case involved or decided a substantial constitutional question under the Federal Constitution. Thus, the Puerto Rico Supreme Court's dismissal of the appeal for want of a substantial constitutional question constituted a decision on the merits in favor of the validity of the challenged statute and regulations. This Court's jurisdiction is not affected by appellant's late filing, under Puerto Rico's Rules of Civil Procedure, of its notice of appeal to the Puerto Rico Supreme Court, since that court has held the filing requirement to be nonjurisdictional, and its failure to dismiss on timeliness grounds must be viewed as a waiver of the requirement. Pp. 478 U. S. 337-339.2. In reviewing the facial constitutionality of the Act and regulations, this Court must abide by the narrowing constructions announced by the Superior Court and approved sub silentio by the Puerto Rico Supreme Court. This would be the rule in a case originating in one of the 50 States, and Puerto Rico's status as a Commonwealth dictates application of the same rule. P. 478 U. S. 339.3. The Act and regulations, as construed by the Superior Court, do not facially violate the First Amendment. The advertising restrictions Page 478 U. S. 330 pass muster under the four-pronged test of Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557. First, the particular kind of commercial speech at issue concerns a lawful activity, and is not misleading or fraudulent, at least in the abstract, and thus is entitled to a limited form of First Amendment protection. Second, Puerto Rico's interest in restricting advertising to reduce the demand for casino gambling by Puerto Rico's residents, and thus protect their health, safety, and welfare, constitutes a "substantial" governmental interest. Third, the restrictions on commercial speech "directly advance" the government's asserted interest, and are not under-inclusive simply because other kinds of gambling may be advertised to Puerto Rico residents. And fourth, the restrictions are no more extensive than necessary to serve the government's interest since, as construed by the Superior Court, they do not affect advertising aimed at tourists, but apply only to advertising aimed at Puerto Rico residents. Carey v. Population Services International, 431 U. S. 678, and Bigelow v. Virginia, 421 U. S. 809, distinguished. There is no merit to appellant's argument that, having chosen to legalize casino gambling for Puerto Rico residents, the legislature is prohibited by the First Amendment from using restrictions on advertising to accomplish its goal of reducing demand for such gambling. Pp. 478 U. S. 340-347.4. The Puerto Rico Supreme Court properly concluded that, as construed by the Superior Court, the Act and regulations do not facially violate the due process or equal protection guarantees of the Constitution. Even assuming that appellant's argument that the advertising restrictions are unconstitutionally vague, in violation of due process requirements, has merit with respect to the bare statutory language, nevertheless this Court is bound by the Superior Court's narrowing construction of the statute. Viewed in that light, and particularly with the interpretive assistance of the regulations as modified by the Superior Court, the statute is not unconstitutionally vague. Pp. 478 U. S. 347-348.Affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., post, p. 478 U. S. 348, and STEVENS, J., post, p. 478 U. S. 359, filed dissenting opinions, in which MARSHALL and BLACKMUN, JJ., joined.

1984_83-1545

JUSTICE STEVENS delivered the opinion of the Court.The petitioner, Western Air Lines, Inc., requires that its flight engineers retire at age 60. Although the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. Page 472 U. S. 403 §§ 621-634, generally prohibits mandatory retirement before age 70, the Act provides an exception "where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business." [Footnote 1] A jury concluded that Western's mandatory retirement rule did not qualify as a BFOQ, even though it purportedly was adopted for safety reasons. The question here is whether the jury was properly instructed on the elements of the BFOQ defense. [Footnote 2]IIn its commercial airline operations, Western operates a variety of aircraft, including the Boeing 727 and the McDonnell-Douglas DC-10. These aircraft require three crew members in the cockpit: a captain, a first officer, and a flight engineer."The 'captain' is the pilot, and controls the aircraft. He is responsible for all phases of its operation. The 'first officer' is the copilot, and assists the captain. The 'flight engineer' usually monitors a side-facing instrument panel. He does not operate the flight controls unless the captain and the first officer become incapacitated."Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 469 U. S. 114 (1985). Page 472 U. S. 404A regulation of the Federal Aviation Administration (FAA) prohibits any person from serving as a pilot or first officer on a commercial flight "if that person has reached his 60th birthday." 14 CFR § 121.383(c) (1985). The FAA has justified the retention of mandatory retirement for pilots on the theory that "incapacitating medical events" and "adverse psychological, emotional, and physical changes" occur as a consequence of aging."The inability to detect or predict with precision an individual's risk of sudden or subtle incapacitation, in the face of known age-related risks, counsels against relaxation of the rule."49 Fed.Reg. 14695 (1984). See also 24 Fed.Reg. 9776 (1959).At the same time, the FAA has refused to establish a mandatory retirement age for flight engineers."While a flight engineer has important duties which contribute to the safe operation of the airplane, he or she may not assume the responsibilities of the pilot in command."49 Fed.Reg. at 14694. Moreover, available statistics establish that flight engineers have rarely been a contributing cause or factor in commercial aircraft "accidents" or "incidents." Ibid.In 1978, respondents Criswell and Starley were captains operating DC-10s for Western. Both men celebrated their 60th birthdays in July, 1978. Under the collective bargaining agreement in effect between Western and the union, cockpit crew members could obtain open positions by bidding in order of seniority. [Footnote 3] In order to avoid mandatory retirement Page 472 U. S. 405 under the FAA's under-age-60 rule for pilots, Criswell and Starley applied for reassignment as flight engineers. Western denied both requests, ostensibly on the ground that both employees were members of the company's retirement plan, which required all crew members to retire at age 60. [Footnote 4] For the same reason, respondent Ron, a career flight engineer, was also retired in 1978 after his 60th birthday.Mandatory retirement provisions similar to those contained in Western's pension plan had previously been upheld under the ADEA. United Air Lines, Inc. v. McMann, 434 U. S. 192 (1977). As originally enacted in 1967, the Act provided an exception to its general proscription of age discrimination for any actions undertaken"to observe the terms of a . . . bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this Act. [Footnote 5]"In April, 1978, however, Congress amended the statute to prohibit employee benefit plans from requiring the involuntary retirement of any employee because of age. [Footnote 6]Criswell, Starley, and Ron brought this action against Western contending that the under-age-60 qualification for Page 472 U. S. 406 the position of flight engineer violated the ADEA. In the District Court, Western defended, in part, on the theory that the age-60 rule is a BFOQ "reasonably necessary" to the safe operation of the airline. [Footnote 7] All parties submitted evidence concerning the nature of the flight engineer's tasks, the physiological and psychological traits required to perform them, and the availability of those traits among persons over age 60.As the District Court summarized, the evidence at trial established that the flight engineer's "normal duties are less critical to the safety of flight than those of a pilot." 514 F. Supp. 384, 390 (CD Cal.1981). The flight engineer, however, does have critical functions in emergency situations and, of course, might cause considerable disruption in the event of his own medical emergency.The actual capabilities of persons over age 60, and the ability to detect disease or a precipitous decline in their faculties, were the subject of conflicting medical testimony. Western's expert witness, a former FAA Deputy Federal Air Surgeon, [Footnote 8] was especially concerned about the possibility of a "cardiovascular event" such as a heart attack. He testified that,"with advancing age, the likelihood of onset of disease increases, and that, in persons over age 60, it could not be predicted whether and when such diseases would occur."Id. at 389.The plaintiffs' experts, on the other hand, testified that physiological deterioration is caused by disease, not aging, and that"it was feasible to determine on the basis of individual medical examinations whether flight deck crew members, including those over age 60, were physically qualified to continue Page 472 U. S. 407 to fly."Ibid. These conclusions were corroborated by the nonmedical evidence:"The record also reveals that both the FAA and the airlines have been able to deal with the health problems of pilots on an individualized basis. Pilots who have been grounded because of alcoholism or cardiovascular disease have been recertified by the FAA and allowed to resume flying. Pilots who were unable to pass the necessary examination to maintain their FAA first class medical certificates, but who continued to qualify for second class medical certificates were allowed to 'downgrade' from pilot to [flight engineer]. There is nothing in the record to indicate that these flight deck crew members are physically better able to perform their duties than flight engineers over age 60 who have not experienced such events or that they are less likely to become incapacitated."Id. at 390. Moreover, several large commercial airlines have flight engineers over age 60 "flying the line" without any reduction in their safety record. Ibid.The jury was instructed that the "BFOQ defense is available only if it is reasonably necessary to the normal operation or essence of defendant's business." Tr. 2626. The jury was informed that "the essence of Western's business is the safe transportation of their passengers." Ibid. The jury was also instructed:"One method by which defendant Western may establish a BFOQ in this case is to prove:""(1) That in 1978, when these plaintiffs were retired, it was highly impractical for Western to deal with each second officer over age 60 on an individualized basis to determine his particular ability to perform his job safely; and""(2) That some second officers over age 60 possess traits of a physiological, psychological or other nature Page 472 U. S. 408 which preclude safe and efficient job performance that cannot be ascertained by means other than knowing their age.""In evaluating the practicability to defendant Western of dealing with second officers over age 60 on an individualized basis, with respect to the medical testimony, you should consider the state of the medical art as it existed in July, 1978."Id. at 2627. The jury rendered a verdict for the plaintiffs, and awarded damages. After trial, the District Court granted equitable relief, explaining in a written opinion why it found no merit in Western's BFOQ defense to the mandatory retirement rule. 514 F. Supp. at 389-391. [Footnote 9]On appeal, Western made various arguments attacking the verdict and judgment below, but the Court of Appeals affirmed in all respects. 709 F.2d 544 (CA9 1983). In particular, the Court of Appeals rejected Western's contention that the instruction on the BFOQ defense was insufficiently deferential to the airline's legitimate concern for the safety of its passengers. Id. at 549-551. We granted certiorari to consider the merits of this question. 469 U.S. 815 (1984). [Footnote 10] Page 472 U. S. 409IIThroughout the legislative history of the ADEA, one empirical fact is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual. "The basic research in the field of aging has established that there is a wide range of individual physical ability regardless of age." [Footnote 11] As a result, many older American workers perform at levels equal or superior to their younger colleagues.In 1965, the Secretary of Labor reported to Congress that, despite these well-established medical facts, there"is persistent and widespread use of age limits in hiring that in a great many cases can be attributed only to arbitrary discrimination against older workers on the basis of age and regardless of ability. [Footnote 12]"Two years later, the President recommended that Congress enact legislation to abolish arbitrary age limits on Page 472 U. S. 410 hiring. Such limits, the President declared, have a devastating effect on the dignity of the individual, and result in a staggering loss of human resources vital to the national economy. [Footnote 13]After further study, [Footnote 14] Congress responded with the enactment of the ADEA. The preamble declares that the purpose of the ADEA is "to promote employment of older persons based on their ability rather than age [and] to prohibit arbitrary age discrimination in employment." 81 Stat. 602, 29 U.S.C. § 621(b). Section 4(a)(1) makes it"unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."81 Stat. 603, 29 U.S.C. § 623(a)(1). This proscription presently applies to all persons between the ages of 40 and 70. 29 U.S.C. § 631(a).The legislative history of the 1978 Amendments to the ADEA makes quite clear that the policies and substantive provisions of the Act apply with especial force in the case of mandatory retirement provisions. The House Committee on Education and Labor reported:"Increasingly, it is being recognized that mandatory retirement based solely upon age is arbitrary, and that chronological age alone is a poor indicator of ability to perform a job. Mandatory retirement does not take Page 472 U. S. 411 into consideration actual differing abilities and capacities. Such forced retirement can cause hardships for older persons through loss of roles and loss of income. Those older persons who wish to be re-employed have a much more difficult time finding a new job than younger persons.""Society, as a whole, suffers from mandatory retirement as well. As a result of mandatory retirement, skills and experience are lost from the workforce, resulting in reduced GNP. Such practices also add a burden to Government income maintenance programs such as social security. [Footnote 15]"In the 1978 Amendments, Congress narrowed an exception to the ADEA which had previously authorized involuntary retirement under limited circumstances. See supra, at 472 U. S. 405.In both 1967 and 1978, however, Congress recognized that classifications based on age, like classifications based on religion, sex, or national origin, may sometimes serve as a necessary proxy for neutral employment qualifications essential to the employer's business. The diverse employment situations in various industries, however, forced Congress to adopt a "case-by-case basis . . . as the underlying rule in the administration of the legislation." H.R.Rep. No. 805, 90th Cong., 1st Sess., 7 (1967), Legislative History 80. [Footnote 16] Congress offered only general guidance on when an age classification Page 472 U. S. 412 might be permissible by borrowing a concept and statutory language from Title VII of the Civil Rights Act of 1964 [Footnote 17] and providing that such a classification is lawful "where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. § 623(f)(1).Shortly after the passage of the Act, the Secretary of Labor, who was at that time charged with its enforcement, adopted regulations declaring that the BFOQ exception to the ADEA has only "limited scope and application," and "must be construed narrowly." 33 Fed.Reg. 9172 (1968), 29 CFR § 860.102(b) (1984). The Equal Employment Opportunity Commission (EEOC) adopted the same narrow construction of the BFOQ exception after it was assigned authority for enforcing the statute. 46 Fed.Reg. 47727 (1981), 29 CFR § 1625.6 (1984). The restrictive language of the statute and the consistent interpretation of the administrative agencies charged with enforcing the statute convince us that, like its Title VII counterpart, the BFOQ exception "was in fact meant to be an extremely narrow exception to the general prohibition" of age discrimination contained in the ADEA. Dothard v. Rawlinson, 433 U. S. 321, 433 U. S. 334 (1977).IIIIn Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (1976), the Court of Appeals for the Fifth Circuit was called upon to evaluate the merits of a BFOQ defense to a claim of age discrimination. Tamiami Trail Tours, Inc., had a policy of refusing to hire persons over age 40 as intercity bus drivers. At trial, the bus company introduced testimony supporting its theory that the hiring policy was a BFOQ-based Page 472 U. S. 413 upon safety considerations -- the need to employ persons who have a low risk of accidents. In evaluating this contention, the Court of Appeals drew on its Title VII precedents, and concluded that two inquiries were relevant.First, the court recognized that some job qualifications may be so peripheral to the central mission of the employer's business that no age discrimination can be "reasonably necessary to the normal operation of the particular business." [Footnote 18] 29 U.S.C. § 623(f)(1). The bus company justified the age qualification for hiring its drivers on safety considerations, but the court concluded that this claim was to be evaluated under an objective standard:"[T]he job qualifications which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business -- here, the safe transportation of bus passengers from one point to another. The greater the safety factor, measured by the likelihood of harm and the probable severity of that harm in case of an accident, the more stringent may be the job qualifications designed to insure safe driving."531 F.2d at 236. This inquiry "adjusts to the safety factor" by ensuring that the employer's restrictive job qualifications are "reasonably necessary" to further the overriding interest in public safety. Ibid. In Tamiami, the court noted that no one had seriously Page 472 U. S. 414 challenged the bus company's safety justification for hiring drivers with a low risk of having accidents.Second, the court recognized that the ADEA requires that age qualifications be something more than "convenient" or "reasonable"; they must be "reasonably necessary . . . to the particular business," and this is only so when the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first inquiry. [Footnote 19] This showing could be made in two ways. The employer could establish that it"'had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all [persons over the age qualifications] would be unable to perform safely and efficiently the duties of the job involved.' [Footnote 20]"In Tamiami, the employer did not seek to justify its hiring qualification under this standard.Alternatively, the employer could establish that age was a legitimate proxy for the safety-related job qualifications by proving that it is "impossible or highly impractical'" to deal with the older employees on an individualized basis. [Footnote 21]"One method by which the employer can carry this burden is to establish that some members of the discriminated-against class possess a trait precluding safe and efficient job performance Page 472 U. S. 415 that cannot be ascertained by means other than knowledge of the applicant's membership in the class."Id. at 235. In Tamiami, the medical evidence on this point was conflicting, but the District Court had found that individual examinations could not determine which individuals over the age of 40 would be unable to operate the buses safely. The Court of Appeals found that this finding of fact was not "clearly erroneous," and affirmed the District Court's judgment for the bus company on the BFOQ defense. Id. at 238.Congress, in considering the 1978 Amendments, implicitly endorsed the two-part inquiry identified by the Fifth Circuit in the Tamiami case. The Senate Committee Report expressed concern that the amendment prohibiting mandatory retirement in accordance with pension plans might imply that mandatory retirement could not be a BFOQ:"For example, in certain types of particularly arduous law enforcement activity, there may be a factual basis for believing that substantially all employees above a specified age would be unable to continue to perform safely and efficiently the duties of their particular jobs, and it may be impossible or impractical to determine through medical examinations, periodic reviews of current job performance and other objective tests the employees' capacity or ability to continue to perform the jobs safely and efficiently.""Accordingly, the committee adopted an amendment to make it clear that where these two conditions are satisfied and where such a bona fide occupational qualification has therefore been established, an employer may lawfully require mandatory retirement at that specified age."S.Rep. No. 95-493, pp. 10-11 (1977), Legislative History 443-444. The amendment was adopted by the Senate, but deleted by the Conference Committee because it "neither added to nor Page 472 U. S. 416 worked any change upon present law." [Footnote 22] 77 H.R.Conf.Rep. No. 95-950, p. 7 (1978), Legislative History 518.Every Court of Appeals that has confronted a BFOQ defense based on safety considerations has analyzed the problem consistently with the Tamiami standard. [Footnote 23] An EEOC regulation embraces the same criteria. [Footnote 24] Considering the narrow language of the BFOQ exception, the parallel treatment of such questions under Title VII, and the uniform application of the standard by the federal courts, the EEOC, and Congress, we conclude that this two-part inquiry properly Page 472 U. S. 417 identifies the relevant considerations for resolving a BFOQ defense to an age-based qualification purportedly justified by considerations of safety.IVIn the trial court, Western preserved an objection to any instruction in the Tamiami mold, claiming that"any instruction pertaining to the statutory phrase 'reasonably necessary to the normal operation of [defendant's] business' . . . is irrelevant to and confusing for the deliberations of the jury. [Footnote 25]"Western proposed an instruction that would have allowed it to succeed on the BFOQ defense by proving that,"in 1978, when these plaintiffs were retired, there existed a rational basis in fact for defendant to believe that use of [flight engineers] over age 60 on its DC-10 airliners would increase the likelihood of risk to its passengers. [Footnote 26]"The proposed instruction went on to note that the jury might rely on the FAA's age 60 rule for pilots to establish a BFOQ under this standard "without considering any other evidence." [Footnote 27] It also noted that the medical evidence submitted by the parties might provide a "rational basis in fact."On appeal, Western defended its proposed instruction, and the Court of Appeals soundly rejected it. 709 F.2d at 549-551. In this Court, Western slightly changes its course. Page 472 U. S. 418 The airline now acknowledges that the Tamiami standard identifies the relevant general inquiries that must be made in evaluating the BFOQ defense. However, Western claims that, in several respects, the instructions given below were insufficiently protective of public safety. Western urges that we interpret or modify the Tamiami standard to weigh these concerns in the balance.Reasonably Necessary Job QualificationsWestern relied on two different kinds of job qualifications to justify its mandatory retirement policy. First, it argued that flight engineers should have a low risk of incapacitation or psychological and physiological deterioration. At this vague level of analysis, respondents have not seriously disputed -- nor could they -- that the qualification of good health for a vital crew member is reasonably necessary to the essence of the airline's operations. Instead, they have argued that age is not a necessary proxy for that qualification.On a more specific level, Western argues that flight engineers must meet the same stringent qualifications as pilots, and that it was therefore quite logical to extend to flight engineers the FAA's age 60 retirement rule for pilots. Although the FAA's rule for pilots, adopted for safety reasons, is relevant evidence in the airline's BFOQ defense, it is not to be accorded conclusive weight. Johnson v. Mayor and City Council of Baltimore, ante at 472 U. S. 370-371. The extent to which the rule is probative varies with the weight of the evidence supporting its safety rationale and "the congruity between the . . . occupations at issue." Ante at 472 U. S. 371. In this case, the evidence clearly established that the FAA, Western, and other airlines all recognized that the qualifications for a flight engineer were less rigorous than those required for a pilot. [Footnote 28] Page 472 U. S. 419In the absence of persuasive evidence supporting its position, Western nevertheless argues that the jury should have been instructed to defer to "Western's selection of job qualifications for the position of [flight engineer] that are reasonable in light of the safety risks." Brief for Petitioner 30. This proposal is plainly at odds with Congress' decision, in adopting the ADEA, to subject such management decisions to a test of objective justification in a court of law. The BFOQ standard adopted in the statute is one of "reasonable necessity," not reasonableness.In adopting that standard, Congress did not ignore the public interest in safety. That interest is adequately reflected in instructions that track the language of the statute. When an employer establishes that a job qualification has been carefully formulated to respond to documented concerns for public safety, it will not be overly burdensome to persuade a trier of fact that the qualification is "reasonably necessary" to safe operation of the business. The uncertainty implicit in the concept of managing safety risks always makes it "reasonably necessary" to err on the side of caution in a close case. [Footnote 29] The employer cannot be expected to establish the risk of an airline accident "to a certainty, for certainty would require running the risk until a tragic accident would Page 472 U. S. 420 prove that the judgment was sound." Usery v. Tamiami Trail Tours, Inc., 531 F.2d at 238. When the employer's argument has a credible basis in the record, it is difficult to believe that a jury of laypersons -- many of whom no doubt have flown or could expect to fly on commercial air carriers -- would not defer in a close case to the airline's judgment. Since the instructions in this case would not have prevented the airline from raising this contention to the jury in closing argument, we are satisfied that the verdict is a consequence of a defect in Western's proof, rather than a defect in the trial court's instructions. [Footnote 30]Western's Statutory Safety ObligationThe instructions defined the essence of Western's business as "the safe transportation of their passengers." Tr. 2626. Western complains that this instruction was defective because it failed to inform the jury that an airline must conduct its operations "with the highest possible degree of safety." [Footnote 31]Jury instructions, of course, "may not be judged in artificial isolation," but must be judged in the "context of the overall charge" and the circumstances of the case. See Cupp v. Naughten, 414 U. S. 141, 414 U. S. 147 (1973). In this case, the instructions characterized safe transportation as the "essence" Page 472 U. S. 421 of Western's business and specifically referred to the importance of "safe and efficient job performance" by flight engineers. Tr. 2627. Moreover, in closing argument, counsel pointed out that, because "safety is the essence of Western's business," the airline strives for "the highest degree possible of safety." [Footnote 32] Viewing the record as a whole, we are satisfied that the jury's attention was adequately focused on the importance of safety to the operation of Western's business. Cf. United States v. Park, 421 U. S. 658, 421 U. S. 674 (1975).Age as a Proxy for Job QualificationsWestern contended below that the ADEA only requires that the employer establish "a rational basis in fact" for believing that identification of those persons lacking suitable qualifications cannot occur on an individualized basis. [Footnote 33] This "rational basis in fact" standard would have been tantamount to an instruction to return a verdict in the defendant's favor. Because that standard conveys a meaning that is significantly different from that conveyed by the statutory phrase "reasonably necessary," it was correctly rejected by the trial court. [Footnote 34] Page 472 U. S. 422Western argues that a "rational basis" standard should be adopted because medical disputes can never be proved "to a certainty" and because juries should not be permitted "to resolve bona fide conflicts among medical experts respecting the adequacy of individualized testing." Reply Brief for Petitioner 9, n. 10. The jury, however, need not be convinced beyond all doubt that medical testing is impossible, but only that the proposition is true "on a preponderance of the evidence." Moreover, Western's attack on the wisdom of assigning the resolution of complex questions to 12 laypersons is inconsistent with the structure of the ADEA. Congress expressly decided that problems involving age discrimination in employment should be resolved on a "case-by-case basis" by proof to a jury. [Footnote 35]The "rational basis" standard is also inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA. [Footnote 36] Under the Act, employers are to evaluate employees between the ages of 40 and 70 on their merits, and not their age. In the BFOQ defense, Congress provided a limited exception to this general principle, but required that employers validate any discrimination as "reasonably necessary to the normal operation of the particular business." It might well be "rational" to require mandatory retirement at any age less than 70, but that result would not comply with Congress' direction that employers must justify the rationale for the age chosen. Unless an employer can establish a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position, the age selected for mandatory retirement less than 70 must be an age at which it Page 472 U. S. 423 is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job.Western argues that its lenient standard is necessary because"where qualified experts disagree as to whether persons over a certain age can be dealt with on an individual basis, an employer must be allowed to resolve that controversy in a conservative manner."Reply Brief for Petitioner 8-9. This argument incorrectly assumes that all expert opinion is entitled to equal weight, and virtually ignores the function of the trier of fact in evaluating conflicting testimony. In this case, the jury may well have attached little weight to the testimony of Western's expert witness. See supra at 472 U. S. 406, and n. 8. A rule that would require the jury to defer to the judgment of any expert witness testifying for the employer, no matter how unpersuasive, would allow some employers to give free reign to the stereotype of older workers that Congress decried in the legislative history of the ADEA.When an employee covered by the Act is able to point to reputable businesses in the same industry that choose to eschew reliance on mandatory retirement earlier than age 70, when the employer itself relies on individualized testing in similar circumstances, and when the administrative agency with primary responsibility for maintaining airline safety has determined that individualized testing is not impractical for the relevant position, the employer's attempt to justify its decision on the basis of the contrary opinion of experts -- solicited for the purposes of litigation -- is hardly convincing on any objective standard short of complete deference. Even in cases involving public safety, the ADEA plainly does not permit the trier of fact to give complete deference to the employer's decision.The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtWestern Air Lines v. Criswell, 472 U.S. 400 (1985)Western Air Lines v. CriswellNo. 83-1545Argued January 14, 1985Decided June 17, 1985472 U.S. 400SyllabusThe Age Discrimination in Employment Act of 1967 (ADEA) generally prohibits mandatory retirement before age 70, but § 4(f)(1) of the Act provides an exception "where age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business." Petitioner airline company requires that its flight engineers, who are members of the cockpit crews of petitioners' aircraft but do not operate flight controls unless both the pilot and the copilot become incapacitated, retire at age 60. A Federal Aviation Administration regulation prohibits any person from serving as a pilot or copilot after reaching his 60th birthday. Certain of the respondents, who include flight engineers forced to retire at age 60 and pilots who, upon reaching 60, were denied reassignment as flight engineers, brought suit in Federal District Court against petitioner, contending that the age 60 retirement requirement for flight engineers violated the ADEA. Petitioner defended, in part, on the theory that the requirement is a BFOQ "reasonably necessary" to the safe operation of the airline. The physiological and psychological capabilities of persons over age 60, and the ability to detect disease or a precipitous decline in such capabilities on the basis of individual medical examinations, were the subject of conflicting expert testimony presented by the parties. The jury instructions included statements that the "BFOQ defense is available only if it is reasonably necessary to the normal operation or essence of [petitioner's] business"; "the essence of [petitioner's] business is the safe transportation of [its] passengers"; and petitioner could establish a BFOQ by proving both that"it was highly impractical for [petitioner] to deal with each [flight engineer] over age 60 on an individualized basis to determine his particular ability to perform his job safely"and that some flight engineers"over age 60 possess traits of a physiological, psychological or other nature which preclude safe and efficient job performance that cannot be ascertained by means other than knowing their age."The District Court entered judgment based on the jury's verdict for the plaintiffs, and the Court of Appeals affirmed, rejecting petitioner's contention that the BFOQ instruction was insufficiently deferential to petitioner's legitimate concern for the safety of its passengers. Page 472 U. S. 401Held:1. The ADEA's restrictive language, its legislative history, and the consistent interpretation of the administrative agencies charged with enforcing the statute establish that the BFOQ exception was meant to be an extremely narrow exception to the general prohibition of age discrimination contained in the ADEA. Pp. 472 U. S. 409-412.2. The relevant considerations for resolving a BFOQ defense to an age-based qualification purportedly justified by safety interests are whether the job qualification is "reasonably necessary" to the overriding interest in public safety, and whether the employer is compelled to rely on age as a proxy for the safety-related job qualification validated in the first inquiry. The latter showing may be made by the employer's establishing either (a) that it had reasonable cause to believe that all or substantially all persons over the age qualification would be unable to perform safely the duties of the job, or (b) that it is highly impractical to deal with the older employees on an individualized basis. Pp. 472 U. S. 412-417.3. The jury here was properly instructed on the elements of the BFOQ defense under the above standard, and the instructions were sufficiently protective of public safety. Pp. 472 U. S. 417-423.(a) Petitioner's contention that the jury should have been instructed to defer to petitioner's selection of job qualifications for flight engineers "that are reasonable in light of the safety risks" is at odds with Congress' decision, in adopting the ADEA, to subject such decisions to a test of objective justification in a court of law. The BFOQ standard adopted in the statute is one of "reasonable necessity," not reasonableness. The public interest in safety is adequately reflected in instructions that track the statute's language. Pp. 472 U. S. 418-420.(b) The instructions were not defective for failing to inform the jury that an airline must conduct its operations "with the highest possible degree of safety." Viewing the record as a whole, the jury's attention was adequately focused on the importance of safety to the operation of petitioner's business. Pp. 472 U. S. 420-421.(c) There is no merit to petitioner's contention that the jury should have been instructed under the standard that the ADEA only requires that the employer establish "a rational basis in fact" for believing that identification of those persons lacking suitable qualifications cannot be made on an individualized basis. Such standard conveys a meaning that is significantly different from that conveyed by the statutory phrase "reasonably necessary," and is inconsistent with the preference for individual evaluation expressed in the language and legislative history of the ADEA. Nor can such standard be justified on the ground that an employer must be allowed to resolve the controversy in a conservative Page 472 U. S. 402 manner when qualified experts disagree as to whether persons over a certain age can be dealt with on an individual basis. Such argument incorrectly assumes that all expert opinion is entitled to equal weight, and virtually ignores the function of the trier of fact in evaluating conflicting testimony. Pp. 472 U. S. 421-423.709 F.2d 544, affirmed.STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the decision of the case.

1962_6

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.Petitioners were convicted of criminal trespass for refusing to leave a privately owned and operated amusement park in the State of Maryland at the command of an employee of the amusement park acting under color of his authority as a deputy sheriff. For the reasons set forth hereinafter, we hold that these convictions are violative of the Fourteenth Amendment, and must be set aside.The Glen Echo Amusement Park is located in Montgomery County, Maryland, near Washington, D.C. Though the park, through its advertisements, sought the patronage of the general public, it was (until recently) the park's policy to exclude Negroes who wished to patronize its facilities. No signs at the park apprised persons of this policy or otherwise indicated that all comers were not welcome. No tickets of admission were required. In protest against the park's policy of segregation, Page 378 U. S. 132 a number of whites and Negroes picketed the park on June 30, 1960. The petitioners, five young Negroes, were participating in the protest. Hopeful that the management might change its policy, they entered the park, and encountering no resistance from the park employees, boarded the carousel. They possessed transferrable tickets, previously purchased by others, entitling the holder to ride on the carousel.At that time, the park employed one Collins as a special policeman by arrangement with the National Detective Agency. Although Collins was formally retained and paid by the agency and wore its uniform, he was subject to the control and direction of the park management. Apparently at the request of the park, Collins had been deputized as a sheriff of Montgomery County. [Footnote 1] He wore, on the outside of his uniform, a deputy sheriff's badge.When Collins saw the petitioners sitting on the carousel waiting for the ride to begin, he reported their presence to the park manager. The manager told Collins that petitioners were to be arrested for trespassing if they would not leave the park. Collins then went up to the petitioners and told them that it was the park's policy "not to have colored people on the rides, or in the park." He ordered petitioners to leave within five minutes. They declined to do so, pointing out that they had tickets for the carousel. There was no evidence that any of the Page 378 U. S. 133 petitioners were disorderly. At the end of the five-minute period, Collins, as he testified, "went to each defendant and told them that the time was up, and that they were under arrest for trespassing." Collins transported the petitioners to the Montgomery County police station. There, he filled out a form titled "Application for Warrant by Police Officer." The application stated:"Francis J. Collins, being first duly sworn, on oath doth depose and say: That he is a member of the Montgomery deputy sheriff Department and as such, on the 30th day of June, 1960, at about the hour of 8:45 P.M. he did observe the defendant William L. Griffin in Glen Echo Park which is private property[.] [O]n order of Kebar Inc. owners of Glen Echo Park the def[endant] was asked to leave the park and after giving him reasonable time to comply the def[endant] refused to leave [and] he was placed under arrest for trespassing. . . .""Whereas, Francis J. Collins doth further depose and say that he, as a member of the Montgomery County Police Department believes that _________ is violating Sec. 577 Article 27 of the Annotated Code of Maryland.""Francis J. Collins"Md.Ann.Code, 1957 (Cum.Supp.1961), Art. 27, § 577, is a criminal trespass statute. [Footnote 2] On the same day, a Maryland Page 378 U. S. 134 Justice of the Peace issued a warrant which charged that petitioner Griffin"[d]id enter upon and pass over the land and premises of Glen Echo Park . . . after having been told by the Deputy Sheriff for Glen Echo Park, to leave the Property, and after giving him a reasonable time to comply, he did not leave . . . contrary to the . . . [Maryland criminal trespass statute] and against the peace, government and dignity of the State."The warrant recited that the complaint had been made by "Collins, Deputy Sheriff." An amended warrant was later filed. It stated that the complaint had been made by "Collins, Deputy Sheriff," but charged Griffin with unlawfully entering the park after having been told not to do so by "an Agent" of the corporation which operated the park. Presumably identical documents were filed with respect to the other petitioners.Petitioners were tried and convicted of criminal trespass in the Circuit Court of Montgomery County. Each was sentenced to pay a fine of $100. The Maryland Court of Appeals affirmed the convictions. 225 Md. 422, 171 A.2d 717. That court, rejecting the petitioners' constitutional claims, reasoned as follows:"[T]he appellants in this case . . . were arrested for criminal trespass committed in the presence of a special deputy sheriff of Montgomery County (who was also the agent of the park operator) after they had been duly notified to leave but refused to do so. It follows -- since the offense for which these appellants were arrested was a misdemeanor committed in the presence of the park officer who had a right to arrest them, either in his private capacity as an agent or employee of the operator of the park or in his limited capacity as a special deputy sheriff in the amusement park . . . -- the arrest of these appellants for a criminal trespass in this manner was no more than if a regular police officer had been called upon Page 378 U. S. 135 to make the arrest for a crime committed in his presence. . . . [T]he arrest and conviction of these appellants for a criminal trespass as a result of the enforcement by the operator of the park of its lawful policy of segregation, did not constitute such action as may fairly be said to be that of the State."225 Md. at 431, 171 A.2d at 721. We granted certiorari, 370 U.S. 935, and set the case for reargument. 373 U.S. 920.Collins -- in ordering the petitioners to leave the park and in arresting and instituting prosecutions against them -- purported to exercise the authority of a deputy sheriff. He wore a sheriff's badge, and consistently identified himself as a deputy sheriff, rather than as an employee of the park. Though an amended warrant was filed stating that petitioners had committed an offense because they entered the park after an "agent" of the park told them not to do so, this change has little, if any, bearing on the character of the authority which Collins initially purported to exercise. If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity, or that the particular action which he took was not authorized by state law. See, e.g., Screws v. United States, 325 U. S. 91. Thus, it is clear that Collins' action was state action. See Williams v. United States, 341 U. S. 97; see also Labor Board v. Jones & Laughlin Steel Corp., 331 U. S. 416, 331 U. S. 429. The only question remaining in this case is whether Collins' action denied petitioners the equal protection of the laws secured to them by the Fourteenth Amendment. If it did, these convictions are invalid.It cannot be disputed that, if the State of Maryland had operated the amusement park on behalf of the owner thereof, and had enforced the owner's policy of racial segregation Page 378 U. S. 136 against petitioners, petitioners would have been deprived of the equal protection of the laws. Pennsylvania v. Board of Trusts, 353 U. S. 230; cf. Burton v. Wilmington Parking Authority, 365 U. S. 715. In the Board of Trusts case, we were confronted with the following situation. Stephen Girard, by will, had left a fund in trust to establish a college. He had provided in his will, in effect, that only "poor white male orphans" were to be admitted. The fund was administered by the Board of Directors of City Trusts of the City of Philadelphia, as trustee. In accord with the provisions of the will, it denied admission to two Negro applicants who were otherwise qualified. We held:"The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment. Brown v. Board of Education, 347 U. S. 483."353 U.S. at 353 U. S. 231.The Board of Trusts case must be taken to establish that, to the extent that the State undertakes an obligation to enforce a private policy of racial segregation, the State is charged with racial discrimination, and violates the Fourteenth Amendment.It is argued that the State may nevertheless constitutionally enforce an owner's desire to exclude particular persons from his premises even if the owner's desire is, in turn, motivated by a discriminatory purpose. The State, it is said, is not really enforcing a policy of segregation, since the owner's ultimate purpose is immaterial to the State. In this case, it cannot be said that Collins was simply enforcing the park management's desire to exclude designated individuals from the premises. The president Page 378 U. S. 137 of the corporation which owned and managed the park testified that he had instructed Collins to enforce the park's policy of racial segregation. Collins was told to exclude Negroes from the park and escort them from the park if they entered. He was instructed to arrest Negroes for trespassing if they did not leave the park when he ordered them to do so. In short, Collins, as stated by the Maryland Court of Appeals, was "then under contract to protect and enforce . . . [the] racial segregation policy of the operator of the amusement park. . . ." 225 Md. at 430, 171 A.2d at 720. Pursuant to this obligation, Collins ordered petitioners to leave and arrested them, as he testified, because they were Negroes. This was state action forbidden by the Fourteenth Amendment.Reversed

U.S. Supreme CourtGriffin v. Maryland, 378 U.S. 130 (1964)Griffin v. MarylandNo. 6Argued November 5, 7, 1962Restored to the calendar for reargument May 20, 1963Reargued October 14-15, 1963Decided June 22, 1964.378 U.S. 130SyllabusPetitioners, who are Negroes, entered a privately owned amusement park which then had a policy of excluding Negroes. They were ordered to leave by a park employee who was instructed to enforce the racial policy and who was acting under his authority as a deputy sheriff. They refused to leave, and were arrested by the deputy sheriff and taken to the police station, where he filed charges of criminal trespass and secured warrants. Petitioners were tried and convicted of criminal trespass in a state court.Held:1. The action of an individual who, as a deputy sheriff possessing state authority, purports to act pursuant to that authority, is state action. It is immaterial that he could have taken the same action in a purely private capacity, or that his action was not authorized by state law. Screws v. United States, 325 U. S. 91, followed. P. 378 U. S. 135.2. When a State undertakes to enforce a private policy of racial segregation, it violates the Equal Protection Clause of the Fourteenth Amendment. Pennsylvania v. Board of Trusts, 353 U. S. 230, followed. Pp. 378 U. S. 135-137.225 Md. 422, 171 A.2d 717, reversed. Page 378 U. S. 131

1963_449

MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, MR. JUSTICE WHITE, and MR. JUSTICE GOLDBERG join.Under a Kansas statute authorizing the seizure of allegedly obscene books before an adversary determination Page 378 U. S. 207 of their obscenity and, after that determination, their destruction by burning or otherwise, [Footnote 1] the Attorney General of Kansas obtained an order from the District Court of Geary County directing the sheriff of the county to seize and impound, pending hearing, copies of certain Page 378 U. S. 208 paperback novels at the place of business of P-K News Service, Junction City, Kansas. After hearing, the court entered a second order directing the sheriff to destroy the 1,715 copies of 31 novels which had been seized. The Kansas Supreme Court held that the procedures met constitutional requirements, and affirmed the District Court's order. 191 Kan. 13, 379 P.2d 254. Probable jurisdiction was noted, 375 U.S. 919. We conclude that the procedures followed in issuing the warrant for the seizure of the books, and authorizing their impounding pending hearing, were constitutionally insufficient because they did not adequately safeguard against the suppression of nonobscene books. For this reason, we think the judgment must be reversed. Therefore, we do not reach, and intimate no view upon, the appellants' contention that the Kansas courts erred in holding that the novels are obscene.Section 4 of the Kansas statute requires the filing of a verified information stating only that, "upon information and belief . . . , there is [an] . . . obscene book . . . located within his county." The State Attorney General went further, however, and filed an information identifying by title 59 novels, and stating that "each of said books [has] been published as This is an original Nightstand Book.'" He also filed with the information copies of seven novels published under that caption, six of which were named by title in the information; particular passages in the seven novels were marked with penciled notations or slips of paper. Although also not expressly required by the statute, the district judge, on application of the Attorney General, conducted a 45-minute ex parte inquiry during which he "scrutinized" the seven books; at the conclusion of this examination, he stated for the record that they "appear to be obscene literature as defined" under the Kansas statute"and give this Court reasonable grounds to believe that any paper-backed Page 378 U. S. 209 publication carrying the following: 'This is an original Night Stand book' would fall w thin the same category. . . ."He issued a warrant which authorized the sheriff to seize only the particular novels identified by title in the information. When the warrant was executed on the date it was issued, only 31 of the titles were found on P-K's premises. All copies of such titles, however, 1,715 books in all, were seized and impounded. At the hearing held 10 days later pursuant to a notice included in the warrant, P-K made a motion to quash the information and the warrant on the ground, among others, that the procedure preceding the seizure was constitutionally deficient. The claim was that, by failing first to afford P-K a hearing on the question whether the books were obscene, the procedure "operates as a prior restraint on the circulation and dissemination of books," in violation of the constitutional restrictions against abridgment of freedom of speech and press. The motion was denied, and, following a final hearing held about seven weeks after the seizure (the hearing date was continued on motion of P-K), the court held that all 31 novels were obscene and ordered the sheriff to stand ready to destroy the 1,715 copies on further order.The steps taken beyond the express requirements of the statute were thought by the Attorney General to be necessary under our decision in Marcus v. Search Warrant, 367 U. S. 717, decided a few weeks before the information was filed. Marcus involved a proceeding under a strikingly similar Missouri search and seizure statute and implementing rule of court. See 367 U. S. 719 at notes 2 3 In Marcus, the warrant gave the police virtually unlimited authority to seize any publications which they considered to be obscene, and was issued on a verified complaint lacking any specific description of the publications to be seized, and without prior submission of any publications whatever to the judge issuing the warrant. Page 378 U. S. 210 We reversed a judgment directing the destruction of the copies of 100 publications held to be obscene, holding that, even assuming that they were obscene, the procedures leading to their condemnation were constitutionally deficient for lack of safeguards to prevent suppression of nonobscene publications protected by the Constitution.It is our view that, since the warrant here authorized the sheriff to seize all copies of the specified titles, and since P-K was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued, the procedure was likewise constitutionally deficient. [Footnote 2] This is the teaching of Kingsley Books, Inc. v. Brown, 354 U. S. 436. See Marcus at pp. 367 U. S. 734-738. The New York injunctive procedure there sustained does not afford ex parte relief, but postpones all injunctive relief until "both sides have had an opportunity to be heard." Tenney v. Liberty News Distributors, 13 A.D.2d 770, 215 N.Y.S.2d 663, 664. In Marcus, we explicitly said that Kingsley Books"does not support the proposition that the State may impose the extensive restraints imposed here on the distribution of these publications prior to an adversary proceeding on the issue of obscenity, irrespective of whether or not the material is legally obscene."367 U.S. at 367 U. S. 735-736. A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books. State regulation of obscenity must"conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line."Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 66; the Constitution requires a procedure "designed to focus searchingly on the question of obscenity," Marcus, p. 367 U. S. 732. We therefore Page 378 U. S. 211 conclude that in not first affording P-K an adversary hearing, the procedure leading to the seizure order was constitutionally deficient. What we said of the Missouri procedure, id. at 367 U. S. 736-737, also fits the Kansas procedure employed to remove these books from circulation:". . . there is no doubt that an effective restraint -- indeed, the most effective restraint possible -- was imposed prior to hearing on the circulation of the publications in this case, because all copies on which the [sheriff] could lay [his] hands were physically removed . . . from the premises of the wholesale distributor. An opportunity . . . to circulate the [books] . . . and then raise the claim of nonobscenity by way of defense to a prosecution for doing so was never afforded these appellants, because the copies they possessed were taken away. Their ability to circulate their publications was left to the chance of securing other copies, themselves subject to mass seizure under other such warrants. The public's opportunity to obtain the publications was thus determined by the distributor's readiness and ability to outwit the police by obtaining and selling other copies before they, in turn, could be seized. In addition to its unseemliness, we do not believe that this kind of enforced competition affords a reasonable likelihood that nonobscene publications, entitled to constitutional protection, will reach the public. A distributor may have every reason to believe that a publication is constitutionally protected and will be so held after judicial hearing, but his belief is unavailing as against the contrary [ex parte] judgment [pursuant to which the sheriff] . . . seizes it from him."It is no answer to say that obscene books are contraband, and that, consequently, the standards governing searches and seizures of allegedly obscene books should Page 378 U. S. 212 not differ from those applied with respect to narcotics, gambling paraphernalia and other contraband. We rejected that proposition in Marcus. We said, 367 U.S. at 367 U. S. 730-731:"The Missouri Supreme Court's assimilation of obscene literature to gambling paraphernalia or other contraband for purposes of search and seizure does not, therefore, answer the appellants' constitutional claim, but merely restates the issue whether obscenity may be treated in the same way. The authority to the police officers under the warrants issued in this case broadly to seize 'obscene . . . publications' poses problems not raised by the warrants to seize 'gambling implements' and 'all intoxicating liquors' involved in the cases cited by the Missouri Supreme Court. 334 S.W.2d at 125. For the use of these warrants implicates questions whether the procedures leading to their issuance and surrounding their execution were adequate to avoid suppression of constitutionally protected publications."" . . . [T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. . . . The separation of legitimate from illegitimate speech calls for . . . sensitive tools. . . .""Speiser v. Randall, 357 U. S. 513, 357 U. S. 525. It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved without regard to the possible consequences for constitutionally protected speech."See also Smith v. California, 361 U. S. 147, 361 U. S. 152-153.Nor is the order under review saved because, after all 1,715 copies were seized and removed from circulation, P-K News Service was afforded a full hearing on the Page 378 U. S. 213 question of the obscenity of the novels. For if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgment of the right of the public in a free society to unobstructed circulation of onobscene books. Bantam Books v. Sullivan, supra; Roth v. United States, 354 U. S. 476; Marcus v. Search Warrant, supra; Smith v. California, supra. Here, as in Marcus, "[s]ince a violation of the Fourteenth Amendment infected the proceedings, in order to vindicate appellants' constitutional rights," 367 U.S. at 367 U. S. 738, the judgment resting on a finding of obscenity must be reversed.Reversed

U.S. Supreme CourtQuantity of Books v. Kansas, 378 U.S. 205 (1964)A Quantity of Books v. KansasNo. 449Argued April 1-2, 1964Decided June 22, 1964378 U.S. 205SyllabusA state statute defined obscenity, proscribed distribution of obscene materials, and authorized their seizure before, and their destruction after, an adversary determination of their obscenity. Though the statute required the filing of a verified information by the county attorney or attorney general stating only that there "is [an] . . . obscene book . . . located within his county," the information filed by the attorney general went further and identified by title 59 allegedly obscene novels which were stated to have been published under a certain caption; copies of seven novels published under that caption were filed with the information; and an ex parte inquiry was held by the district judge during which he "scrutinized" the seven books, concluding that they appeared obscene, and afforded grounds to believe that any paper-backed novels published under the same caption were obscene. His warrant authorized seizure at the place of business of appellants' "News Service" of the novels identified by title in the Information. Thirty-one of the titles were found on appellants' premises when the warrant was executed, and all 1,715 copies of them were seized. At a hearing ten days after seizure, the court denied appellants' claim that, by failing to afford a pre-seizure hearing on the question whether the books were obscene, the statutory procedure operated as an unconstitutional prior restraint. Following a final hearing held about seven weeks after seizure, the court held the 31 novels obscene and ruled that the seized copies should be destroyed on further order. The State Supreme Court affirmed the lower court's order.Held: the judgment of the State Supreme Court is reversed. Pp. 378 U. S. 206-215.191 Kan. 13, 379 P.2d 254, reversed.MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE, MR. JUSTICE WHITE, and MR. JUSTICE GOLDBERG, without reaching the question whether the novels were obscene, concluded that the procedure followed in issuing and executing the warrant of seizure prior to a hearing on the issue of obscenity was unconstitutional under the First Amendment, made applicable to the States by the Fourteenth Amendment, because (a) it authorized the sheriff to seize all copies of the specified titles and (b) it did not afford a hearing before the Page 378 U. S. 206 warrant issued on the obscenity of even the seven novels filed with the Information. Pp. 378 U. S. 208-213.MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that it is not necessary to consider the procedural questions, since the state statute is unconstitutional under the First Amendment, made applicable to the States by the Fourteenth Amendment. Pp. 378 U. S. 213-214.MR. JUSTICE STEWART concluded that the state statute could not constitutionally suppress the books, because they were not "hard core pornography." Pp. 378 U. S. 214-215.

1978_77-742

MR. JUSTICE MARSHALL delivered the opinion of the Court.At issue in this appeal is whether Illinois may exclude from its Aid to Families with Dependent Children-Foster Care program children who reside with relatives.The Aid to Families with Dependent Children-Foster Care program (AFDC-FC) authorizes federal financial subsidies Page 440 U. S. 127 for the care and support of children removed from their homes and made wards of the State pursuant to a judicial determination that the children's homes were not conducive to their welfare. §§ 408(a)(1), (2) of the Social Security Act of 135 (Act), as amended, 42 U.S.C. §§ 608(a)(1), (2). [Footnote 1] To Page 440 U. S. 128 qualify for Foster Care assistance, these children must be placed in a "foster family home or child care institution." § 408(a)(3), 42 U.S.C. § 608(a)(3). [Footnote 2] The basic AFDC program, already in existence when the Foster Care program was enacted in 1961, provides aid to eligible children who live with a parent or with a relative specified in § 406(a) of the Act. [Footnote 3] In administering these programs, Illinois distinguishes Page 440 U. S. 129 between related and unrelated foster parents. Children placed in unrelated foster homes may participate in the AFDC-FC program. But those who are placed in the homes of relatives listed in § 406(a), and who are entitled to basic AFDC benefits, cannot receive AFDC-FC assistance because the State defines the term "foster family home" as a facility for children unrelated to the operator. [Footnote 4] Foster children living with relatives may participate only in Illinois' basic AFDC program, which provides lower monthly payments than the Foster Care program. [Footnote 5] The specific question presented here is whether Illinois has correctly interpreted the federal standards for AFDC-FC eligibility set forth in § 408(a) of the Act to exclude children who, because of placement with related, rather than unrelated, foster parents qualify for assistance under the basic AFDC program.IAppellees are four foster children, their older sister (Linda Youakim), and her husband (Marcel Youakim). In 1969, Illinois removed the children from their mother's home and made them wards of the State following a judicial determination Page 440 U. S. 130 of neglect. The Department of Children and Family Services (Department), which became responsible for the children, [Footnote 6] placed them in unrelated foster care facilities until 1972. During this period, they each received full AFDC-FC benefits of $105 a month. In 1972, the Department decided to place two of the children with the Youakims, who were under no legal obligation to accept or support them. [Footnote 7] The Department investigated the Youakim home and approved it as meeting the licensing standards established for unrelated foster family homes, as required by state law. [Footnote 8] Despite this approval, the State refused to make Foster Care payments on behalf of the children because they were related to Linda Youakim.The exclusion of foster children living with related caretakers from Illinois' AFDC-FC program reflects the State's view that the home of a relative covered under basic AFDC is not a "foster family home" within the meaning of § 408(a)(3), the federal AFDC-FC eligibility provision at issue here. Interpreting that provision, Illinois defines a "foster family home" as"a facility for child care in residences of families who receive no more than 8 children unrelated to them . . . for the purpose of providing family care and training for Page 440 U. S. 131 the children on a full-time basis. . . ."Ill.Ann.Stat., ch. 23, § 2212.17 (Supp. 1978) (emphasis added). [Footnote 9] Homes that do not meet the definition may not be licensed, [Footnote 10] and, under state law, only licensed facilities are entitled to Foster Care payments. [Footnote 11]Although Illinois refused to make Foster Care payments, it did provide each child basic AFDC benefits of approximately $63 a month, substantially less than the applicable $105 AFDC-FC rate. [Footnote 12] The Youakims, however, believed that these payments were insufficient to provide proper support, and declined to accept the other two children. These children remain in unrelated foster care facilities and continue to receive AFDC-FC benefits.In 1973, the Youakims and the four foster children brought a class action under 42 U.S.C. § 1983 for themselves and persons similarly situated, challenging Illinois' distinction between related and unrelated foster parents as violative of the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court certified the class, but granted Page 440 U. S. 132 summary judgment for the state officials on the constitutional claim. 374 F. Supp. 1204 (ND Ill.1974).While the direct appeal from the summary judgment was pending in this Court, the Department of Health, Education, and Welfare (HEW) issued a formal interpretation of the scope of the federal AFDC-FC program, providing in pertinent part:"When a child has been removed from his home by judicial determination and is placed in foster care under the various conditions specified in Section 408 of the Social Security Act and 45 CFR 233.110, the foster care rate of payment prevails regardless of whether or not the foster home is operated by a relative."HEW Program Instruction APA-PI-75-9 (Oct. 25, 1974). In light of this administrative interpretation, we vacated the judgment and directed the District Court to consider whether the Illinois foster care scheme is inconsistent with the Social Security Act, and therefore invalid under the Supremacy Clause, U.S.Const., Art. VI, cl. 2. Youakim v. Miller, 425 U. S. 231 (1976) (per curiam).On remand, the District Court granted summary judgment for appellees, holding that the State's denial of AFDC-FC benefits and services to otherwise eligible foster children who live with relatives conflicts with §§ 401 and 408 of the Social Security Act. 431 F. Supp. 40, 45 (ND Ill.1976). [Footnote 13] It found that, under the "plain words" of § 408, dependent children adjudged to be wards of the State, removed from their homes, and placed in approved foster homes are entitled to AFDC-FC benefits, regardless of whether their foster parent is a relative. 431 F. Supp. at 44-45. In so ruling, the court relied on HEW's interpretive ruling and on the national policy embodied Page 440 U. S. 133 in § 401 of the Act to "encourag[e] the care of dependent children in their own homes or in the homes of relatives." 431 F. Supp. at 44. Since the State had approved the Youakim home as meeting the licensing standards for unrelated foster homes, the District Court concluded that the requirements of § 408 had been satisfied. 431 F. Supp. at 43-44.The Court of Appeals unanimously affirmed the judgment of the District Court. 562 F.2d 483 (CA7 1977). [Footnote 14] It held that the statutory definition of "foster family home" in the last sentence of § 408 does not exclude relatives' homes, and found no "implied legislative intent" to create such an exclusion. 562 F.2d at 487; see id. at 486, n. 4. Accordingly, the Court of Appeals concluded that any home approved as meeting the State's licensing standards is a "foster family home" within the meaning of § 408. 562 F.2d at 486, 490.We noted probable jurisdiction, 434 U.S. 1060 (1978), and now affirm.IIA participating State may not deny assistance to persons who meet eligibility standards defined in the Social Security Act unless Congress clearly has indicated that the standards Page 440 U. S. 134 are permissive. See, e.g., Burns v. Alcala, 420 U. S. 575, 420 U. S. 580 (1975); Carleson v. Remillard, 406 U. S. 598 (1972); Townsend v. Swank, 404 U. S. 282, 404 U. S. 286 (1971); King v. Smith, 392 U. S. 309 (1968). Congress has specified that programs, like AFDC-FC, which employ the term "dependent child" to define eligibility must be available for "all eligible individuals." § 402(a)(10), 42 U.S.C. § 602(a)(10); see Quern v. Mandley, 436 U. S. 725, 436 U. S. 740-743, and n. 18 (1978). Section 408(e) reinforces this general rule by requiring States to provide Foster Care benefits to "any" child who satisfies the federal eligibility criteria of § 408(a). Thus, if foster care in related homes is encompassed within § 408, Illinois may not deny AFDC-FC benefits when it places an eligible child in the care of a relative.In arguing that related foster care does not fall within § 408's definition of "foster family home," appellants submit that Congress enacted the Foster Care program solely for the benefit of children not otherwise eligible for categorical assistance. We disagree. The purpose of the AFDC-FC program was not simply to duplicate the AFDC program for a different class of beneficiaries. As the language and legislative history of § 408 demonstrate, the Foster Care program was designed to meet the particular needs of all eligible neglected children, whether they are placed with related or unrelated foster parents.ASection 408(a), in defining "dependent child," establishes four conditions of AFDC-FC eligibility. First, the child must have been removed from the home of a parent or other relative specified in § 406(a), the basic AFDC eligibility provision, "as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child." § 408(a)(1), 42 U.S.C. § 608(a)(1). Second, the State must remain responsible for the placement and care of the child. § 408(a)(2), 42 U.S.C. § 608(a)(2). Third, the Page 440 U. S. 135 child must be placed in "a foster family home or child care institution." § 408(a)(3), 42 U.S.C. § 608(a)(3). Fourth, the child must have been eligible for categorical assistance under the State's plan prior to initiation of the removal proceedings. § 408(a)(4), 42 U.S.C. § 608(a)(4).The dispute in this case centers on the meaning of "foster family home" as used in the third eligibility requirement, § 408(a)(3) of the Act. The statute itself defines this phrase in sweeping language:"[T]he term 'foster family home' means a foster family home for children which is licensed by the State in which it is situated or has been approved, by the agency of such State responsible for licensing homes of this type, as meeting the standards established for such licensing."§ 408, 42 U.S.C. § 608 (last sentence). Congress manifestly did not limit the term to encompass only the homes of nonrelated caretakers. Rather, any home that a State approves as meeting its licensing standards falls within the ambit of this definitional provision. That Congress intended no distinction between related and unrelated foster homes is further demonstrated by the AFDC-FC definition of "aid to families with dependent children," which includes foster care for eligible children who live "in the foster family home of any individual." § 408(b)(1), 42 U.S.C. § 608(b)(1) (emphasis added). Far from excluding related caretakers, the statute uses the broadest possible language when it refers to the homes of foster parents.Appellants concede that these provisions do not explicitly bar from the Foster Care program children living with related foster parents. Juris.Statement 11; Brief for Appellants 22; Reply Brief for Appellants 5; 562 F.2d at 486, and n. 4. Nevertheless, they infer from two isolated passages of § 408 a congressional intent to except relatives' homes from the definition of "foster family home." Page 440 U. S. 136Appellants first rely on the definition of dependent children in §§ 408(a)(1) and (3). These provisions state in relevant part:"(a) the term 'dependent child' shall, notwithstanding section [406(a) -- the basic AFDC eligibility provision], also include a child (1) who would meet the requirements of such section [406(a)] except for his removal . . . from the home of a relative (specified in such section [406(a)]) as a result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child . . . [and] (3) who has been placed in a foster family home."(Emphasis added.) Appellants construe the "notwithstanding" language of § 408(a)(1) in conjunction with § 408(a)(3) as creating a class of AFDC-FC beneficiaries distinct from the dependent children covered under basic AFDC. In their view, "notwithstanding § 406(a)" means that the Foster Care definition of "dependent child" both suspends the basic AFDC requirement that the child reside with a parent or close relative, and precludes a foster child who meets that requirement from participating in the AFDC-FC program. Under appellants' construction, §§ 408(a)(1) and (3) would read: For the purpose of Foster Care aid, a "dependent child" shall only include a child who would meet the requirements of § 406(a) except that he has been both removed from the home of a parent or relative specified in § 406(a) and placed in a nonrelative's home.The difficulty with this strained interpretation is that § 408(a)(1) does not use the word "only." It states that a dependent child shall "also" include a child removed from the home of a parent or relative. Thus, there is no basis for construing language that unquestionably expands the scope of the term "dependent child" as implicitly contracting the definition to exclude a child who meets the eligibility criteria of § 406(a). Because § 408(a)(1) does not have the preclusive meaning Page 440 U. S. 137 urged by appellants, it cannot implicitly modify the phrase "foster family home" in § 408(a)(3) to denote solely unrelated homes. We think it clear that neither § 408(a)(1) nor § 408(a)(3) embodies a congressional intent to constrict the broad statutory definition of "foster family home."Appellants next maintain that interpreting AFDC-FC to encompass foster care by relatives would render meaningless another provision of the program. Section 408(f)(1) of the Act obligates States to ensure that"services are provided which are designed to improve the conditions in the home from which [the foster child] was removed or to otherwise make possible his being placed in the home of a relative specified in section [406(a)]."42 U.S.C. § 608(f)(1) (emphasis added). According to appellants, if related homes were "foster family homes," it would be unnecessary to require States to make the home of a relative suitable for placement when the foster child already lives in a relative's home.By ignoring the critical word "or," appellants misconstrue the import of this provision. To be sure, § 408(f) expresses a preference for the return of children to their original home or their transfer to the care of a relative. Congress, however, expressed this preference in the alternative. When a child is placed in related foster care, the State obviously can satisfy § 408(f)(1) by working toward his ultimate return to the home from which he was removed, in this case the mother's home. Thus, § 408(f)(1) is fully consonant with including in the AFDC-FC program foster children placed with relatives.Had Congress intended to exclude related foster parents from the definition of "foster family home," it presumably would have done so explicitly, just as it restricted the definition of "child-care institution." [Footnote 15] Instead, the statute plainly Page 440 U. S. 138 states that a foster family home is the home of any individual licensed or approved by the State as meeting its licensing requirements, and we are unpersuaded that the provisions on which appellants rely implicitly limit that expansive definition.BThe legislative history and structure of the Act fortify our conclusion that the language of § 408 should be given its full scope. The Foster Care program was enacted in the aftermath of HEW's declaration that States could no longer discontinue basic AFDC assistance due to unsuitable home conditions "while the child continues to reside in the home." State Letter No. 452, Bureau of Public Assistance, Social Security Administration, Department of Health, Education, and Welfare (Jan. 17, 1961) (hereinafter Flemming Ruling). In directing States "either to improve the home conditions" or "make arrangements for the child elsewhere," ibid., the Ruling prompted Congress to encourage state protection of neglected children. [Footnote 16] Accordingly, Congress designed a program carefully tailored to the needs of children whose "home environments . . . are clearly contrary to the[ir] best interests," [Footnote 17] and it offered the States financial subsidies to implement the plan. Neither the legislative history nor the structure of the Act indicates that Congress intended to differentiate among neglected children based on their relationship to their Page 440 U. S. 139 foster parents. Indeed, such a distinction would conflict in several respects with the overriding goal of providing the best available care for all dependent children removed from their homes because they were neglected. See S.Rep. No. 165, p. 6; 107 Cong.Rec. 6388 (1961) (remarks of Sen. Byrd).Although a fundamental purpose of the Foster Care program was to facilitate removal of children from their homes, Congress also took steps to "safeguard" intact family units from unnecessary upheaval. See S.Rep. No. 165, p. 7; 107 Cong.Rec. 6388 (1961) (remarks of Sen. Byrd). [Footnote 18] To ensure that children would be removed only from homes demonstrably inimical to their welfare, Congress required participating States to obtain "a judicial determination . . . that continuation in the home was contrary to the welfare of the child." S.Rep. No. 165, p. 7; see 108 Cong.Rec. 12693 (1962) (remarks of Sen. Eugene McCarthy); § 408(a)(1). Protecting the integrity of established family units by mandating judicial approval of a State's decision to remove a child obviously is a goal that embraces all neglected children, regardless of who the ultimate caretaker may be. Yet, under appellants' construction of § 408, the State would have no obligation to justify its removal of a dependent child if he were placed with relatives, since the child could not be eligible for Foster Care benefits. But the same child, placed in unrelated facilities, would be entitled under the Foster Care program to a judicial Page 440 U. S. 140 determination of neglect. The rights of allegedly abused children and their guardians would thus depend on the happenstance of where they are placed, which is normally' determined after a court has found removal necessary. We are reluctant to attribute such an anomalous intent to Congress, particularly in the absence of any indication that it meant to protect from unnecessary removal only those dependent children placed with strangers.Congress was also concerned with assuring that States place neglected children in substitute homes determined appropriate for foster care. See S.Rep. No. 165, pp. 6-7. To deter indiscriminate foster placements, Congress required that States establish licensing standards for every foster home, § 408 (definition of "foster family home"), and supervise the placement of foster children. § 408(a)(2); see 45 CFR §§ 220.19(a), 233.110(a)(2)(i) (1977). The legislative materials at no point suggest that Congress intended to subject some foster homes, but not others, to minimum standards of quality, as could result if § 408 excluded relatives' homes from the definition of "foster family home." Indeed, in authorizing an approval procedure as an alternative to actual licensing of "foster family homes," [Footnote 19] Congress evinced its understanding that children placed in related foster homes are entitled to Foster Care benefits. At the time the AFDC-FC program was enacted in 1961, many States exempted relatives' homes from the licensing requirements imposed on all other types of settings in which foster children could be placed. [Footnote 20] It is Page 440 U. S. 141 therefore likely that Congress, by including an approval procedure, meant to encompass foster homes not subject to State licensing requirements, in particular, related foster homes.The specific services offered by the AFDC-FC program further indicate that Congress did not intend to distinguish between related and unrelated foster caretakers. Congress attached considerable significance to the unique needs and special problems of abused children who are removed from their homes by court order, distinguishing them as a class from other dependent children:"The conditions which make it necessary to remove [neglected] children from unsuitable homes often result in needs for special psychiatric and medical care of the children. . . .""* * * *" "These are the most underprivileged children, and often have special problems. . . ."108 Cong.Rec. 12692-12693 (1962) (remarks of Sen. Eugene McCarthy). Section 408 embodies Congress' recognition of the peculiar status of neglected children in requiring that States continually supervise the care of these children, § 408(a)(2), develop a plan tailored to the needs of each foster child "to assure that he receives proper care," § 408(f)(1), and periodically review both the necessity of retaining the child in foster care and the appropriateness of the care being provided. See ibid.; 45 CFR §§ 220.19(b), (c), 233.110(a)(2)(ii) (1977). Additionally, the States must work to improve the conditions in the foster child's original home or to transfer him to a relative when feasible, § 408(f)(1); see supra at 440 U. S. 137. This procedure comports with Congress' preference for care of dependent children by relatives, a policy underlying the categorical assistance program since its inception in Page 440 U. S. 142 1935. See S.Rep. No. 628, 74th Cong., 1st Sess., 117 (1935); H.R.Rep. No 615, 74th Cong., 1st Sess., 10-12 (1935); Burns v. Alcala, 420 U.S. at 420 U. S. 581-582; § 401, as amended, 42 U.S.C. § 601, supra at 440 U. S. 132-133. We do not believe that Congress, when it extended assistance to foster children, meant to depart from this fundamental principle. [Footnote 21] Congress envisioned a remedial environment to correct the enduring effects of past neglect and abuse. There is nothing to indicate that it intended to discriminate between potential beneficiaries, equally in need of the program, on the basis of their relationship to their foster parents.That Congress had no such intent is also evidenced by the 1967 amendments to the Act, which increased the federal matching Page 440 U. S. 143 payments for AFDC-FC to exceed the federal share of basic AFDC payments. [Footnote 22] The increase reflects Congress' recognition that state-supervised care and programs designed to meet the special needs of neglected children cost more than basic AFDC care. [Footnote 23] The legislative history of the amendment reveals no basis for distinguishing between related and unrelated foster homes. [Footnote 24] Rather, it discloses a generalized concern for the plight of all dependent children who should be sheltered from their current home environments but are forced to remain in such homes because of the States' inability to finance substitute care. S.Rep. No. 744, pp. 163-165; H.R.Rep. No. 544, pp. 100-101. Significantly, the Committee Reports suggest that increasing federal matching payments would encourage relatives "not legally responsible for support" to undertake the care of foster children "in order to obtain the best possible environment for the child." S.Rep. No. 744, p. 164; H.R.Rep. No. 544, p. 101. The amendments are therefore described, without qualification, as providing "more favorable Federal matching . . . for foster care for children removed from an unsuitable home by court order." S.Rep. No. 744, p. 4; H.R.Rep. No. 544, p. 4.COur interpretation of the statute and its legislative history is buttressed by HEW Program Instruction APA-PI-79, Page 440 U. S. 144 which requires States to provide AFDC-FC benefits "regardless of whether the . . . foster family home in which a child is placed is operated by a relative." In reaching this conclusion, the Department of Health, Education, and Welfare reasoned:"A non-legally liable relative has no financial responsibility towards the child placed with him and the income and resources of such a relative are not factors in determining entitlement to a foster care payment. It must be noted, too, that the 1967 amendments to the Social Security Act liberalized Federal financial participation in the cost of foster care, recognizing foster family care is more costly than care in the child's own home."HEW Program Instruction APA-PI-75-9.We noted in vacating the original three-judge District Court decision in this case that"[t]he interpretation of a statute by an agency charged with its enforcement is a substantial factor to be considered in construing the statute."Youakim v. Miller, 425 U.S. at 425 U. S. 235-236, citing New York Dept. of Social Services v. Dublino, 413 U. S. 405, 413 U. S. 421 (1973); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 121 (1973); Investment Co. Institute v. Camp, 401 U. S. 617, 401 U. S. 626-627 (1971). Administrative interpretations are especially persuasive where, as here, the agency participated in developing the provision. Adams v. United States, 319 U. S. 312, 319 U. S. 314-315 (1943); United States v. American Trucking Assns., 310 U. S. 534, 310 U. S. 549 (1940). HEW's Program Instruction is fully supported by the statute, its legislative history, and the common sense observation that all dependent foster children are similarly in need of the protections and monetary benefits afforded by the AFDC-FC program. [Footnote 25] Page 440 U. S. 145IIIWe think it clear that Congress designed the AFDC-FC program to include foster children placed with relatives. The overriding purpose of § 408 was to assure that the most appropriate substitute care be given to those dependent children so mistreated that a court has ordered them removed from their homes. The need for additional AFDC-FC resources -- both monetary and service related -- to provide a proper remedial environment for such foster children arises from the status of the child as a subject of prior neglect, not from the status of the foster parent. [Footnote 26] Appellants attribute to Congress an intent to differentiate among children who are equally neglected and abused, based on a living arrangement bearing no relationship to the special needs that the AFDC-FC program was created to meet. Absent clear support in the statutory language or legislative history, we decline to make such an unreasonable attribution. Page 440 U. S. 146Accordingly, we hold that the AFDC-FC program encompasses foster children who, pursuant to a judicial determination of neglect, have been placed in related homes that meet a State's licensing requirements for foster homes.The judgment below isAffirmed

U.S. Supreme CourtMiller v. Youakim, 440 U.S. 125 (1979)Miller v. YouakimNo. 77-742Argued October 30, 1978Decided February 22, 1979440 U.S. 125SyllabusIn administering its Aid to Families with Dependent Children-Foster Care program (AFDC-FC), Illinois distinguishes between children who reside with relatives and those who do not. Children placed in unrelated foster homes qualify for the AFDC-FC program, which provides greater monthly payments than the basic AFDC program. But children who are placed in relatives' homes may participate only in the basic AFDC program, because the State defines the term "foster family home" as a facility for children unrelated to the operator. Section 408(a) of the Social Security Act establishes certain conditions of AFDC-FC eligibility, among which is the requirement that the child be placed in "a foster family home." This term is defined in § 408 as "a foster family home for children which is licensed by the State in which it is situated or has been approved . . . as meeting the standards established for such licensing." The Department of Health, Education, and Welfare (HEW) has interpreted the federal statute to require that States provide AFDC-FC benefits "regardless of whether the . . . foster family home in which a child is placed is operated by a relative." Appellees are four foster children who were removed from their mother's home following a judicial determination of neglect, and their older sister and her husband. Two of these children were placed by the State in the home of their sister and her husband, which was approved as meeting the licensing standards for unrelated foster family homes. Illinois nevertheless refused to make AFDC-FC payments on behalf of the children because they were related to their foster parents. Appellees then brought this action challenging the validity of Illinois' distinction between related and unrelated foster parents. The Court of Appeals, affirming the District Court's judgment for appellees, struck down the Illinois statute.Held: The AFDC-FC program encompasses foster children who, pursuant to a judicial determination of neglect, have been placed in related homes that meet a State's licensing requirements for Page 440 U. S. 126 unrelated foster homes. Accordingly, Illinois may not exclude from its AFDC-FC program children who reside with relatives. Pp. 440 U. S. 133-146.(a) Both the language and Legislative history of § 408 show that the AFDC-FC program was designed to meet the particular needs of all eligible neglected children, whether they are placed with related or unrelated foster parents. Distinguishing among equally neglected children based on their relationship to their foster parents would conflict with Congress' overriding goal of providing the best available care for all dependent children removed from their homes pursuant to a judicial determination of neglect. Pp. 440 U. S. 134-143.(b) Interpretations by HEW, the agency charged with administering the AFDC-FC program, are entitled to considerable deference. Pp. 440 U. S. 143-144.562 F.2d 483, affirmed.MARSHALL, J., delivered the opinion of the Court, in which all other Members joined except STEVENS, J., who took no part in the consideration or decision of the case.

1980_79-5949

JUSTICE STEWART delivered the opinion of the Court.These cases, consolidated for argument and decision in the Court of Appeals and in this Court, present the question whether a state criminal trial court is constitutionally compelled to conduct a hearing outside the presence of the jury whenever a defendant contends that a witness' identification of him was arrived at improperly.IAJohn Watkins, the petitioner in No. 79-5949, was convicted in a Kentucky court of attempting to rob a Louisville liquor store. On the night of January 11, 1975, four men entered the store, one of whom asked for a pack of cigarettes. Walter Smith, an employee of the store, turned around to get the cigarettes, and one of the men said "[t]his is a hold-up." Donald Goeing, a part owner of the store, had been stocking a soft-drink cooler, and when he heard those words, he turned towards the robbers. The man who had spoken thereupon fired two shots at him, one striking him in his arm, the other in the region of his heart. The four men then fled.That night, Smith and Goeing described the gunman to the police. Two days later, the police in the presence of Smith conducted lineup consisting of three men, one of whom was Page 449 U. S. 343 Watkins. Smith identified Watkins as the gunman. That same day, the police took Watkins to Goeing's hospital bed, and Goeing identified Watkins as the man who had shot him. Watkins was then charged with first-degree robbery and first-degree assault.At the subsequent trial of Watkins, the prosecution called Smith and Goeing as witnesses. They both identified Watkins as Goeing's assailant, but were not asked by the prosecution about the lineup or the showup. Watkins' counsel, however, cross-examined both men at some length about both the lineup and showup. The prosecution then called a police officer. He testified that he had taken Watkins to be identified at the hospital because, "at that time, there was some question as to whether or not Mr. Goeing was going to survive the incident." Watkins' counsel cross-examined the officer about both the showup and the lineup and, through him, introduced pictures of the lineup. For the defense, Watkins' counsel called two witnesses who said that they had been in a pool hall with Watkins at the time of the robbery and another witness who said he had been in the liquor store at the time of the robbery and had not seen Watkins. Finally, Watkins himself testified to his innocence.On appeal, as he had at trial, counsel for Watkins argued that the trial court had a constitutional obligation to conduct a hearing outside the presence of the jury to determine whether the identification evidence was admissible. The Supreme Court of Kentucky rejected that argument. Relying on its decision in Ray v. Commonwealth, 550 S.W.2d 482, 483 (1977), the court said"'[a]lthough we are of the opinion that the holding of such a hearing prior to the introduction of this testimony would have been the preferred course to follow, we are not persuaded the failure to have done so requires reversal of appellant's conviction.'"Watkins v. Commonwealth, 565 S.W.2d 630, 631 (1978). The court found that the identification procedures "fail[ed] to Page 449 U. S. 344 raise any impermissible suggestiveness," and that Watkins "was in no way prejudiced." Ibid.Watkins then unsuccessfully sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky. That court held that, "although pretrial suppression hearings are preferable, the failure to hold them does not require the reversal of a conviction." [Footnote 1] The court also found that admission of neither the lineup nor the showup evidence at the state trial had violated constitutional standards.The Court of Appeals for the Sixth Circuit affirmed the District Court's judgment and, like the District Court, ruled that a hearing on the admissibility of identification evidence need not be held outside the presence of the jury. Turning to the evidence itself, the court cited Stovall v. Denno, 388 U. S. 293, as authority for holding that, "[g]iven the seriousness of the wounds to Donald Goeing, a showup was necessary in this case." Summitt v. Bordenkircher, 608 F.2d 247, 252. The federal appellate court also held that the lineup evidence had been constitutionally admissible at the state trial.BJames Summitt, the petitioner in No. 79-5951, was convicted in a Kentucky court of rape. Late on the night of July 20, 1974, the prosecutrix was forced into a car occupied by two men, driven to an isolated location, raped by one of the men, and then returned to her own car. The next day, she reported the crime to the police, described the rapist, and looked through 12 volumes of photographs from police files, without identifying the man who had raped her. Two days later she was taken to another police station, where she examined more pictures. A police officer testified at the subsequent trial of Summitt that,"after a short time, she pointed to the defendant's picture and said: 'This is the man that raped me. Page 449 U. S. 345 There's no doubt about it, this is Jimbo, the man that raped me.'"In addition to the officer, the prosecutrix and her stepfather as witnesses for the prosecution described the prosecutrix's examination of the police photographs, and the prosecutrix testified that Summitt was the man who had raped her. There was extensive cross-examination.The Supreme Court of Kentucky found"no error in the trial court's refusal to conduct a suppression hearing and no semblance of impermissible suggestiveness in the identification procedure."Summitt v. Commonwealth, 550 S.W.2d 548, 550 (1977). Summitt then sought a writ of habeas corpus in the United States District Court for the Western District of Kentucky, but that court found no constitutional error. The Court of Appeals, as in the consolidated Watkins case, affirmed the judgment of the District Court, 608 F.2d 247.We granted certiorari to consider the constitutional claim asserted by both petitioners throughout their state and federal court proceedings. Sub nom. Watkins v. Bordenkircher and Summitt v. Bordenkircher, 445 U.S. 926.IIThe issue before us is not, of course, whether a trial court acts prudently in holding a hearing out of the presence of the jury to determine the admissibility of identification evidence. The prudence of such a hearing has been emphasized by many decisions in the Courts of Appeals, most of which have in various ways admonished trial courts to use that procedure. [Footnote 2] The Page 449 U. S. 346 issue here, rather, is whether such a hearing is required by the Due Process Clause of the Fourteenth Amendment.In urging an affirmative answer, the petitioners first cite cases holding that a defendant has a right to the presence of his counsel at a post-indictment lineup, e.g., United States v. Wade, 388 U. S. 218, and that an identification procedure, in the absence of a lineup, may be so defective as to deprive a defendant of due process of law, e.g., Stovall v. Denno, 388 U. S. 293. The petitioners then analogize their cases to Jackson v. Denno, 378 U. S. 368, in which this Court enunciated a defendant's right "to have a fair hearing and a reliable determination on the issue of voluntariness," id. at 378 U. S. 377, and in which the Court declared unconstitutional a New York procedure which gave the jury what was in practice unreviewable discretion to decide whether a confession was or was not voluntary.The petitioners contend that Jackson v. Denno established a per se due process right to a hearing outside the presence of the jury whenever a question of the voluntariness of a confession is raised. If such a hearing is required where the voluntariness of a confession is at issue, it follows, the petitioners argue, that a similar hearing must also be required where the propriety of identification procedures has been questioned.Even if it be assumed that Jackson v. Denno did establish the per se rule asserted, [Footnote 3] the petitioners' argument must fail, Page 449 U. S. 347 because Jackson v. Denno is not analogous to the cases now before us. The Court in Jackson did reject the usual presumption that a jury can be relied upon to determine issues according to the trial judge's instructions, but the Court did so because of the peculiar problems the issue of the voluntariness of a confession presents. The Court pointed out that, while an involuntary confession is inadmissible in part because such a confession is likely to be unreliable, it is also inadmissible even if it is true, because of the"strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will."Id. at 378 U. S. 385, quoting Blackburn v. Alabama, 361 U. S. 199, 361 U. S. 206-207. The Court concluded in Jackson that a jury"may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession. . . . Objective consideration of the conflicting evidence concerning the circumstances of the confession becomes difficult and the [jury's] implicit findings become suspect."Id. at 378 U. S. 382.Where identification evidence is at issue, however, no such special considerations justify a departure from the presumption that juries will follow instructions. It is the reliability of identification evidence that primarily determines its admissibility, Manson v. Brathwaite, 432 U. S. 98, 432 U. S. 113-114; United States ex rel. Kirby v. Sturges, 510 F.2d 39-7, 402404 (CA7 1975) (Stevens, J.). And the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform. Indeed, as the cases before us demonstrate, the only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence. Thus the Page 449 U. S. 348 Court's opinion in Manson v. Brathwaite approvingly quoted Judge Leventhal's statement that,""[w]hile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart -- the integrity' -- of the adversary process."" "'Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification -- including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.'"432 U.S. at 432 U. S. 114, n. 14, quoting Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (concurring opinion) (footnote omitted).The petitioners argue, however, that cross-examination is inadequate in cases such as these. They assert that the presence of the jury deterred their lawyers from cross-examining the witnesses vigorously and fully as to the possible improprieties of the pretrial identifications in these cases. The petitioners point to no specific instances in the trial when their counsel were thus deterred, and the record reveals that the cross-examination on the identity issues was, if not always effective, both active and extended. Nonetheless, the petitioners rely on a passage from United States v. Wade, supra, which referred to"the predicament in which Wade's counsel found himself -- realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness' courtroom identification by bringing out and dwelling upon his prior identification."388 U.S. at 388 U. S. 240-241.The petitioners, however, attribute undue significance to this passage. The "predicament" described in Wade was no Page 449 U. S. 349 more than part of the Court's demonstration that, if identification stemming from an improperly conducted lineup was to be excluded, a courtroom identification based on such a lineup logically had to be excluded as well.A "predicament," if one chooses to call it that, is always presented when a lawyer decides on cross-examination to ask a question that may produce an answer unfavorable to his client. Yet, under our adversary system of justice, cross-examination has always been considered a most effective way to ascertain truth. [Footnote 4] We decline in these cases to hold that the Due Process Clause of the Fourteenth Amendment inevitably requires the abandonment of the time-honored process of cross-examination as the device best suited to determine the trustworthiness of testimonial evidence.A judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable. In some circumstances, not presented here, such a determination may be constitutionally necessary. But it does not follow that the Constitution requires a per se rule compelling such a procedure in every case.Accordingly, the judgments areAffirmed

U.S. Supreme CourtWatkins v. Sowders, 449 U.S. 341 (1980)Watkins v. SowdersNo. 79-5949Argued November 10, 1980Decided January 13, 1981*449 U.S. 341SyllabusHeld: A state criminal court is not required by the Due Process Clause of the Fourteenth Amendment to conduct a hearing out of the jury's presence whenever a defendant contends that a witness' identification of him was arrived at improperly. Pp. 449 U. S. 345-349.(a) Where identification evidence is at issue, no such special considerations as exist where the issue of the voluntariness of a confession is presented -- an involuntary confession being inadmissible both because it is likely to be unreliable and because of society's aversion to forced confessions, even if true, Jackson v. Denno, 378 U. S. 368 -- justify a departure from the presumption that juries will follow the trial court's instructions. It is the reliability of identification evidence that primarily determines its admissibility, and the proper evaluation of evidence under the trial judge's instructions is the very task our system must assume juries can perform. Pp. 449 U. S. 346-348.(b) There is no merit to the contention that vigorous and full cross-examination in the presence of the jury of witnesses as to the possible improprieties of pretrial identifications is inconsistent with due process of law. While a "predicament" is always presented when a lawyer decides on cross-examination to ask a question that may produce an answer unfavorable to his client, the Due Process Clause does not inevitably require the abandonment of the time-honored process of cross-examination as the device best suited to determine the trustworthiness of testimonial evidence. Pp. 449 U. S. 348-349.(c) While a judicial determination outside the jury's presence as to the admissibility of identification evidence may often be advisable and, in some circumstances, not presented in these cases, may be constitutionally necessary, it does not follow that the Constitution requires a per se rule compelling such a procedure in every case. P. 449 U. S. 349.608 F.2d 247, affirmed.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. Page 449 U. S. 342

1973_73-157

STEWART, J., filed a separate statement; post, p. 416 U. S. 690. DOUGLAS, J., filed an opinion dissenting in part, in which STEWART, J., joined in part, post, p. 416 U. S. 691.MR. JUSTICE BRENNAN delivered the opinion of the Court.The question presented is whether the Constitution is violated by application to appellee, the lessor of a yacht, of Puerto Rican statutes providing for seizure and forfeiture of vessels used for unlawful purposes when (1) the yacht was seized without prior notice or hearing after allegedly being used by a lessee for an unlawful purpose, and (2) the appellee was neither involved in nor aware of the act of the lessee which resulted in the forfeiture. Page 416 U. S. 665In March, 1971, appellee, Pearson Yacht Leasing Co., leased a pleasure yacht to two Puerto Rican residents. Puerto Rican authorities discovered marihuana on board the yacht in early May, 1972, and charged one of the lessees with violation of the Controlled Substances Act of Puerto Rico, P.R.Laws Ann., Tit. 24 § 2101 et seq. (Supp. 1973). On July 11, 1972, the Superintendent of Police seized the yacht pursuant to P.R.Laws Ann., Tit. 24 §§ 2512(a)(4), (b) (Supp. 1973), [Footnote 1] and Tit. 34 § 1722 (1971), [Footnote 2] which provide that vessels used to Page 416 U. S. 666 transport, or to facilitate the transportation of, controlled substances, including marihuana, are subject to seizure and forfeiture to the Commonwealth Page 416 U. S. 667 of Puerto Rico. The vessel was seized without prior notice to appellee or either lessee, and without a prior adversary hearing. The lessees, who had registered the yacht with the Ports Authority of the Commonwealth, were thereafter given notice within 10 days of the Page 416 U. S. 668 seizure as required by § 1722(a). [Footnote 3] But when a challenge to the seizure was not made within 15 days after service of the notice, the yacht was forfeited for official use of the Government of Puerto Rico pursuant to § 1722(C). [Footnote 4] Appellee shortly thereafter first learned of the seizure and forfeiture when attempting to repossess the yacht from the lessees because of their apparent failure to pay rent. It is conceded that appellee was "in no way . . . involved in the criminal enterprise carried on by [the] lessee," and "had no knowledge that its property was being used in connection with or in violation of [Puerto Rican Law]."On November 6, 1972, appellee filed this suit, seeking a declaration that application of P.R.Laws Ann., Tit. 24, §§ 2512(a)(4), (b), and Tit. 34, § 1722, had (1) unconstitutionally denied it due process of law insofar as the statutes authorized appellants, the Superintendent of Police and the Chief of the Office of Transportation of the Commonwealth, to seize the yacht without notice or a prior adversary hearing, and (2) unconstitutionally deprived appellee of its property without just compensation. [Footnote 5] Injunctive relief was also sought. Page 416 U. S. 669A three-judge District Court, [Footnote 6] relying principally upon Fuentes v. Shevin, 407 U. S. 67 (1972), held that the failure of the statutes to provide for pre-seizure notice and hearing rendered them constitutionally defective. 363 F. Supp. 1337, 1342-1343 (PR 1973). Viewing United States v. United States Coin & Currency, 401 U. S. 715 (1971), as having effectively overruled our prior decisions that the property owner's innocence has no constitutional significance for purposes of forfeiture, the District Court further declared that the Puerto Rican statutes, insofar as applied to forfeit appellee's interest in the yacht, unconstitutionally deprived it of property without just compensation. 363 F. Supp. at 1341-1342. Appellants were accordingly enjoined from enforcing the statutes"insofar as they deny the owner or person in charge of property an opportunity for a hearing due to the lack of notice, before the seizure and forfeiture of its property and insofar as a penalty is imposed upon innocent parties."Id. at 1343-1344. We noted probable jurisdiction. 414 U. S. 16 (1973). We reverse.IAlthough the parties consented to the convening of the three-judge court, and hence do not challenge our jurisdiction Page 416 U. S. 670 to decide this direct appeal, we nevertheless may not entertain the appeal under 28 U.S.C. § 1253 [Footnote 7] unless statutes of Puerto Rico are "State statute[s]" for purposes of the Three-Judge Court Act, 28 U.'s.C. § 2281. [Footnote 8] We therefore turn first to that question.In Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368 (1949), this Court held that enactments of the Territory of Hawaii were not "State statute[s]" for purposes of Judicial Code § 266, the predecessor to 28 U.S.C. § 2281, reasoning:"While, of course, great respect is to be paid to the enactments of a territorial legislature by all courts as it is to the adjudications of territorial courts, the predominant reason for the enactment of Judicial Code § 266 does not exist as respects territories. This reason was a congressional purpose to avoid unnecessary interference with the laws of a sovereign state. In our dual system of government, the position of the state as sovereign over matters not ruled by the Constitution requires a deference to state Page 416 U. S. 671 legislative action beyond that required for the laws of a territory. A territory is subject to congressional regulation."336 U.S. at 336 U. S. 377-378 (footnotes omitted) (emphasis added). Similar reasoning -- that the purpose of insulating a sovereign State's laws from interference by a single judge would not be furthered by broadly interpreting the word "State" -- led the Court of Appeals for the First Circuit, some 55 years ago, to hold § 266 inapplicable to the laws of the Territory of Puerto Rico. Benedicto v. West India & Panama Tel. Co., 256 F. 417 (1919).Congress, however, created the Commonwealth of Puerto Rico after Benedicto was decided. Following the Spanish-American War, Puerto Rico was ceded to this country in the Treaty of Paris, 30 Stat. 1754 (1898). A brief interlude of military control was followed by congressional enactment of a series of Organic Acts for the government of the island. Initially, these enactments established a local governmental structure with high officials appointed by the President. These Acts also retained veto power in the President and Congress over local legislation. By 1950, however, pressures for greater autonomy led to congressional enactment of Pub.L. 600, 64 Stat. 319, which offered the people of Puerto Rico a compact whereby they might establish a government under their own constitution. Puerto Rico accepted the compact, and on July 3, 1952, Congress approved, with minor amendments, a constitution adopted by the Puerto Rican populace, 66 Stat. 327; see note accompanying 48 U.S.C. § 731d. Pursuant to that constitution, the Commonwealth now"elects its Governor and legislature; appoints its judges, all cabinet officials, and lesser officials in the executive branch; sets its own educational policies; determines its own budget; and amends its own civil and criminal code."Leibowitz, The Applicability of Federal Page 416 U. S. 672 Law to the Commonwealth of Puerto Rico, 56 Geo.L.J. 219, 221 (1967); see 28 Dept. of State Bull. 584589 (1953); Americana of Puerto Rico, Inc. v. Kaplus, 368 F.2d 431 (CA3 1966); Magruder, The Commonwealth Status of Puerto Rico, 15 U.Pitt.L.Rev. 1 (1953).These significant changes in Puerto Rico's governmental structure formed the backdrop to Judge Magruder's observations in Mora v. Mejias, 206 F.2d 377 (CA1 1953):"[I]t may be that the Commonwealth of Puerto Rico -- 'El Estado Libre Asociado de Puerto Rico' in the Spanish version -- organized as a body politic by the people of Puerto Rico under their own constitution, pursuant to the terms of the compact offered to them in Pub.L. 600, and by them accepted, is a State within the meaning of 28 U.S.C. § 2281. The preamble to this constitution refers to the Commonwealth . . . which, 'in the exercise of our natural rights, we [the people of Puerto Rico] now create within our union with the United States of America.' Puerto Rico has thus not become a State in the federal Union like the 48 States, but it would seem to have become a State within a common and accepted meaning of the word. Cf. 74 U. S. White, 1868, 7 Wall. 700, 74 U. S. 721. . . . It is a political entity created by the act and with the consent of the people of Puerto Rico and joined in union with the United States of America under the terms of the compact.""A serious argument could therefore be made that the Commonwealth of Puerto Rico is a State within the intendment and policy of 28 U.S.C. § 2281. . . . If the constitution of the Commonwealth of Puerto Rico is really a 'constitution' -- as the Congress says it is, 66 Stat. 327 -- and not just another Organic Page 416 U. S. 673 Act approved and enacted by the Congress, then the question is whether the Commonwealth of Puerto Rico is to be deemed 'sovereign over matters not ruled by the Constitution' of the United States, and thus a 'state' within the policy of 28 U.S.C. § 2281, which enactment, in prescribing a three-judge federal district court, expresses 'a deference to state legislative action beyond that required for the laws of a territory' [Stainback v. Mo Hock Ke Lok Po, 336 U.S. at 336 U. S. 378] whose local affairs are subject to congressional regulation."206 F.2d at 387-388 (footnote omitted).Lower federal courts since 1953 have adopted this analysis and concluded that Puerto Rico is to be deemed "sovereign over matters not ruled by the Constitution," and thus a State within the policy of the Three-Judge Court Act. See Mora v. Mejias, 115 F. Supp. 610 (PR 1953); [Footnote 9] Marin v. University of Puerto Rico, 346 F.Supp. Page 416 U. S. 674 470, 481 (PR 1972); Suarez v. Administrador del Deporte Hipico de Puerto Rico, 354 F. Supp. 320 (PR 1972). And in Wackenhut Corp. v. Aponte, 386 U. S. 268 (1967), we summarily affirmed the decision of a three-judge court for the District of Puerto Rico that had ordered abstention and said:"[A]pplication of the doctrine of abstention is particularly appropriate in a case . . . involv[ing] the construction and validity of a statute of the Commonwealth of Puerto Rico. For a due regard for the status of that Commonwealth under its compact with the Congress of the United States dictates, we believe, that it should have the primary opportunity through its courts to determine the intended scope of its own legislation and to pass upon the validity of that legislation under its own constitution, as well as under the Constitution of the United States."266 F. Supp. 401, 405 (1966). Although the question of Puerto Rico's status under 28 U.S.C. § 2281 was raised in neither the Jurisdictional Statement nor the Motion to Affirm in Wackenhut, and we do not normally feel ourselves bound by a sub silentio exercise of jurisdiction, see Hagans v. Lavine, 415 U. S. 528, 415 U. S. 533-535, n. 5 (1974); United States v. More, 3 Cranch 159, 7 U. S. 172 (1805), this Court has noted that, in three-judge court cases, "where . . . the responsibility [is] on the courts to see that the three-judge rule [is] followed," unexplained action may take on added significance. Stainback v. Mo Hock Ke Lok Po, 336 U.S. at 336 U. S. 379-380. This is particularly so, when as in Wackenhut, the opinion supporting the judgment over which we exercised appellate jurisdiction had expressed the view that abstention was appropriate for reasons of comity, an oft-repeated justification for the abstention doctrine, see, e.g., 312 U. S. Pullman Co., 312 U.S. Page 416 U. S. 675 496, 312 U. S. 500 (1941), [Footnote 10] as well as the principal underpinning of the Three-Judge Court Act. See Steffel v. Thompson, 415 U. S. 452, 415 U. S. 465-466 (1974).While still of the view that § 2281 is not "a measure of broad social policy to be construed with great liberality," Phillips v. United States, 312 U. S. 246, 312 U. S. 251 (1941), we believe that the established federal judicial practice of treating enactments of the Commonwealth of Puerto Rico as "State statute[s]" for purposes of the Three-Judge Court Act, serves and does not expand, the purposes of § 2281. We therefore hold that a three-judge court was properly convened under that statute, [Footnote 11] and that direct Page 416 U. S. 676 appeal to this Court was proper under 28 U.S.C. § 1253. Accordingly, we now turn to the merits.IIAppellants challenge the District Court's holding that the appellee was denied due process of law by the omission Page 416 U. S. 677 from § 2512(b), as it incorporates § 1722, of provisions for pre-seizure notice and hearing. They argue that seizure for purposes of forfeiture is one of those "extraordinary situations' that justify postponing notice and opportunity for a hearing." Fuentes v. Shevin, 407 U.S. at 407 U. S. 90; see Sniadach v. Family Finance Corp., 395 U. S. 337, 395 U. S. 339; Boddie v. Connecticut, 401 U. S. 371, 401 U. S. 378-379 (1971). We agree. [Footnote 12] Page 416 U. S. 678In holding that lack of pre-seizure notice and hearing denied due process, the District Court relied primarily upon our decision in Fuentes v. Shevin, supra. Fuentes involved the validity of Florida and Pennsylvania replevin statutes permitting creditors to seize goods allegedly wrongfully detained. A writ of replevin could be obtained under the Florida statute upon the creditor's bare assertion to a court clerk that he was entitled to the property, and under the Pennsylvania statute, upon filing an affidavit fixing the value of the property, without alleging legal entitlement to the property. Fuentes held that the statutory procedures deprived debtors of their property without due process by failing to provide for hearings "at a meaningful time.'" 407 U.S. at 407 U. S. 80.Fuentes reaffirmed, however, that, in limited circumstances, immediate seizure of a property interest, without an opportunity for prior hearing, is constitutionally permissible. Such circumstances are those in which"the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance."Id. at 407 U. S. 91. Page 416 U. S. 679 Thus, for example, due process is not denied when postponement of notice and hearing is necessary to protect the public from contaminated food, North American Storage Co. v. Chicago, 211 U. S. 306 (1908); from a bank failure, Coffin Bros. & Co. v. Bennett, 277 U. S. 29 (1928); or from misbranded drugs, Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); or to aid the collection of taxes, Phillips v. Commissioner, 283 U. S. 589 (1931); or the war effort, United States v. Pfitsch, 256 U. S. 547 (1921).The considerations that justified postponement of notice and hearing in those cases are present here. First, seizure under the Puerto Rican statutes serves significant governmental purposes: seizure permits Puerto Rico to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings, [Footnote 13] thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions. Second, pre-seizure notice and hearing might frustrate the interests served by the statutes, since the property seized -- as here, a yacht -- will often be of a sort that could be removed to another jurisdiction, destroyed, or concealed if advance warning of confiscation were given. And finally, unlike the situation in Fuentes, seizure is not initiated by self-interested private parties; rather, Commonwealth officials determine whether seizure is appropriate under the provisions of the Puerto Rican statutes. [Footnote 14] In these circumstances, we hold that this case Page 416 U. S. 680 presents an "extraordinary" situation in which postponement of notice and hearing until after seizure did not deny due process. [Footnote 15]IIIAppellants next argue that the District Court erred in holding that the forfeiture statutes unconstitutionally authorized the taking for government use of innocent parties' property without just compensation. They urge that a long line of prior decisions of this Court establish the principle that statutory forfeiture schemes are not rendered unconstitutional because of their applicability to the property interests of innocents, and further that United States v. United States Coin 7 Currency, 401 U. S. 715 (1971), did not -- contrary to the opinion of the District Court -- overrule those prior precedents sub silentio. We agree. The historical background of forfeiture statutes in this country and this Court's prior decisions sustaining their constitutionality lead to that conclusion.At common law, the value of an inanimate object directly or indirectly causing the accidental death of a Page 416 U. S. 681 King's subject was forfeited to the Crown as a deodand. [Footnote 16] The origins of the deodand are traceable to Biblical [Footnote 17] and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required. See O. Holmes, The Common Law, c. 1 (1881). The value of the instrument was forfeited to the King in the belief that the King would provide the money for Masses to be said for the good of the dead man's soul, or insure that the deodand was put to charitable uses. 1 W. Blackstone, Commentaries *300. [Footnote 18] When application of the deodand to religious or eleemosynary purposes ceased, and the deodand became a source of Crown revenue, the institution was justified as a penalty for carelessness. [Footnote 19] Page 416 U. S. 682Forfeiture also resulted at common law from conviction for felonies and treason. The convicted felon forfeited his chattels to the Crown, and his lands escheated to his lord; the convicted traitor forfeited all of his property, real and personal, to the Crown. See 3 W. Holdsworth, History of English Law 68-71 (3d ed.1927); 1 F. Pollock & F. Maitland, History of English Law 351 (2d ed.1909). The basis for these forfeitures was that a breach of the criminal law was an offense to the King's peace, which was felt to justify denial of the right to own property. See 1 W. Blackstone, Commentaries *299. [Footnote 20]In addition, English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws -- likely a product of the confluence and merger of the deodand tradition and the belief that the right to own property could be denied the wrongdoer. Statutory forfeitures were most often enforced under the in rem procedure utilized in the Court of Exchequer to forfeit the property of felons. See 3 W. Blackstone, Commentaries *261-262; C.J. Hendry Co. v. Moore, 318 U. S. 133, 318 U. S. 137-138 (1943).Deodands did not become part of the common law tradition of this country. See Parker-Harris Co. v. Tate, 135 Tenn. 509, 188 S.W. 54 (1916). Nor has forfeiture Page 416 U. S. 683 of estates as a consequence of federal criminal conviction been permitted, see 18 U.S.C. § 3563; Rev.Stat. § 5326 (1874); 1 Stat. 117 (1790). Forfeiture of estates resulting from a conviction for treason has been constitutionally proscribed by Art. III, § 3, though forfeitures of estates for the lifetime of a traitor have been sanctioned, see Wallach v. Van Riswick, 92 U. S. 202 (1876). But"[l]ong before the adoption of the Constitution, the common law courts in the Colonies -- and later in the states during the period of Confederation -- were exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes,"C.J. Hendry Co. v. Moore, supra, at 318 U. S. 139, which provided for the forfeiture of commodities and vessels used in violations of customs and revenue laws. See id. at 318 U. S. 145-148; Boyd v. United States, 116 U. S. 616, 116 U. S. 623 (1886). And almost immediately after adoption of the Constitution, ships and cargoes involved in customs offenses were made subject to forfeiture under federal law, [Footnote 21] as were vessels used to deliver slaves to foreign countries, [Footnote 22] and, somewhat later, those used to deliver slaves to this country. [Footnote 23] The enactment of forfeiture statutes has not abated; contemporary federal and state forfeiture statutes reach virtually any type of property that might be used in the conduct of a criminal enterprise.Despite this proliferation of forfeiture enactments, the innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense. Thus, Mr. Justice Story observed in The Palmyra, 12 Wheat. 1 (1827), that a conviction for piracy was not a prerequisite Page 416 U. S. 684 to a proceeding to forfeit a ship allegedly engaged in piratical aggression in violation of a federal statute:"It is well known, that, at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture did not, strictly speaking, attach in rem, but it was a part, or at least a consequence, of the judgment of conviction. . . . [T]he [Crown's right to the goods and chattels] attached only by the conviction of the offender. . . . But this doctrine never was applied to seizures and forfeitures, created by statute, in rem, cognizable on the revenue side of the Exchequer. The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing, and this, whether the offence be malum prohibitum or malum in se. . . . [T]he practice has been, and so this Court understand the law to be, that the proceeding in rem stands independent of, and wholly unaffected by, any criminal proceeding in personam."Id. at 25 U. S. 14-15. This rationale was relied upon to sustain the statutory forfeiture of a vessel found to have been engaged in piratical conduct where the innocence of the owner was "fully established." United States v. Brig Malek Adhel, 2 How. 210, 43 U. S. 238 (1844). The vessel was "treated as the offender," without regard to the owner's conduct, "as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party." Id. at 43 U. S. 233. [Footnote 24] Page 416 U. S. 685Dobbins's Distillery v. United States, 96 U. S. 395 (1878), is an illustration of how severely this principle has been applied. That case involved a lessee's violations of the revenue laws which led to the seizure of real and personal property used in connection with a distillery. The lessor's assertions of innocence were rejected as a defense to a federal statutory forfeiture of his entire property, for the offense"attached primarily to the distillery, and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner beyond what necessarily arises from the fact that he leased the property to the distiller and suffered it to be occupied and used by the lessee as a distillery."Id. at 96 U. S. 401; see United States v. Stowell, 133 U. S. 1, 133 U. S. 13-14 (1890).Decisions reaching the same conclusion have continued into this century. In Goldsmith-Grant Co. v. United States, 254 U. S. 505 (1921), it was held that the federal tax fraud forfeiture statute did not deprive an innocent owner of his property in violation of the Fifth Amendment. There, the claimant was a conditional vendor of a taxicab that had been used in the removal and concealment of distilled spirits upon which the federal tax was unpaid. Although recognizing that arguments against the application of the statute to cover an innocent owner were not without force, the Court rejected them, saying:"In breaches of revenue provisions, some forms of property are facilities, and therefore it may be said that Congress interposes the care and responsibility Page 416 U. S. 686 of their owners in aid of the prohibitions of the law and its punitive provisions, by ascribing to the property a certain personality, a power of complicity and guilt in the wrong. In such case, there is some analogy to the law of deodand, by which a personal chattel that was the immediate cause of the death of any reasonable creature was forfeited. To the superstitious reason to which the rule was ascribed, Blackstone adds 'that such misfortunes are, in part ,owing to the negligence of the owner, and therefore he is properly punished by such forfeiture.' . . .""But whether the reason for [the forfeiture] be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced."Id. at 254 U. S. 510-511. See also United States v. One Ford Coupe Automobile, 272 U. S. 321 (1926) (Brandeis, J.); General Motors Acceptance Corp. v. United States, 286 U. S. 49 (1932) (Cardozo, J.). In Van Oster v. Kansas, 272 U. S. 465 (1926), the Court upheld, against a Fourteenth Amendment attack, a forfeiture under state law of an innocent owner's interest in an automobile that he had entrusted to an alleged wrongdoer. Judicial inquiry into the guilt or innocence of the owner could be dispensed with, the Court held, because state lawmakers, in the exercise of the police power, were free to determine that certain uses of property were undesirable and then establish "a secondary defense against a forbidden use. . . ." Id. at 275 U. S. 467.Plainly, the Puerto Rican forfeiture statutes further the punitive and deterrent purposes that have been found sufficient to uphold, against constitutional challenge, the application of other forfeiture statutes to the property of innocents. [Footnote 25] Forfeiture of conveyances that have been Page 416 U. S. 687 used -- and may be used again -- in violation of the narcotics laws fosters the purposes served by the underlying criminal statutes, both by preventing further illicit use of the conveyance and by imposing an economic penalty, thereby rendering illegal behavior unprofitable. See, e.g., H.R.Rep. No. 1054, 76th Cong., 1st Sess. (1939); S.Rep. No. 926, 76th Cong., 1st Sess. (1939); H.R.Rep. No. 2751, 81st Cong., 2d Sess. (1950); S.Rep. No. 1755, 81st Cong., 2d Sess. (1950). [Footnote 26] To the extent that Page 416 U. S. 688 such forfeiture provisions are applied to lessors, bailors, or secured creditors who are innocent of any wrongdoing, confiscation may have the desirable effect of inducing them to exercise greater care in transferring possession of their property. Cf. United States v. One Ford Coach, 307 U. S. 219, 307 U. S. 238-241 (1939) (DOUGLAS, J., dissenting). Against the legitimate governmental interests served by the Puerto Rican statute and the long line of this Court's decisions which squarely collide with appellee's assertion of a constitutional violation, the District Court opposed our decision in United States v. United States Coin & Currency, 401 U. S. 715 (1971). This reliance was misplaced. In Coin & Currency, the Government claimed that the privilege against self-incrimination could not be asserted in a forfeiture proceeding under 26 U.S.C. § 7302 by one in possession of money seized from him when used in an illegal bookmaking operation. In the Government's view, the proceeding was not "criminal" because the forfeiture was authorized without regard to the guilt or innocence of the owner of the money. The Court's answer was that § 7302, read in conjunction with 19 U.S.C. § 1618, manifested a clear intention "to impose a penalty only upon those who [were] significantly involved in a criminal enterprise," 401 U.S. at 401 U. S. 721-722, and, in that circumstance, the privilege could be asserted in the forfeiture proceeding by the person from whom the money was taken. Thus, Coin & Currency did not overrule prior decisions that sustained application to innocents of forfeiture statutes, like the Puerto Rican statutes, not limited in application to persons "significantly involved in a criminal enterprise." This is not to say, however, that the "broad sweep" Page 416 U. S. 689 of forfeiture statutes remarked in Coin & Currency could not, in other circumstances, give rise to serious constitutional questions. Mr. Chief Justice Marshall intimated as much over a century and a half ago in observing that"a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed."Peisch v. Ware, 4 Cranch 347, 8 U. S. 363 (1808). It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. See, id. at 8 U. S. 364; Goldsmth-Grant Co. v. United States, 254 U.S. at 254 U. S. 512; United States v. One Ford Coupe Automobile, 272 U.S. at 272 U. S. 333; Van Oster v. Kansas, 272 U.S. at 272 U. S. 467. Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property; [Footnote 27] for, in that circumstance, it Page 416 U. S. 690 would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive. Cf. Armstrong v. United States, 364 U. S. 40, 364 U. S. 49 (1960).But in this case, appellee voluntarily entrusted the lessees with possession of the yacht, and no allegation has been made or proof offered that the company did all that it reasonably could to avoid having its property put to an unlawful use. Cf. Goldblatt v. Town of Hempstead, 369 U. S. 590, 369 U. S. 596 (1962). The judgment of the District Court isReversed

U.S. Supreme CourtCalero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974)Calero-Toledo v. Pearson Yacht Leasing Co.No. 73-157Argued January 7, 1974Decided May 15, 1974416 U.S. 663SyllabusA pleasure yacht, which appellee had leased to Puerto Rican residents, was seized, pursuant to Puerto Rican statutes providing for forfeiture of vessels used for unlawful purposes, without prior notice to appellee or the lessees and without a prior adversary hearing, after authorities had discovered marihuana aboard her. Appellee was neither involved in nor aware of a lessee's wrongful use of the yacht. Appellee then brought suit challenging the constitutionality of the statutory scheme. A three-judge District Court, relying principally on Fuentes v. Shevin, 407 U. S. 67, held that the statutes' failure to provide for pre-seizure notice and hearing rendered them unconstitutional, and that, as applied to forfeit appellee's interest in the yacht, they unconstitutionally deprived an innocent party of property without just compensation.Held:1. The statutes of Puerto Rico are "State statute[s]" for purposes of the Three-Judge Court Act, and hence a three-judge court was properly convened under that Act, and direct appeal to this Court was proper under 28 U.S.C. § 1253. Pp. 416 U. S. 669-676.2. This case presents an "extraordinary" situation in which postponement of notice and hearing until after seizure did not deny due process, since (1) seizure under the statutes serves significant governmental purposes by permitting Puerto Rico to assert in rem jurisdiction over the property in forfeiture proceedings, thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions; (2) pre-seizure notice and hearing might frustrate the interests served by the statutes, the property seized often being of the sort, as here, that could be removed from the jurisdiction, destroyed, or concealed, if advance notice were given; and (3), unlike the situation in Fuentes v. Shevin, supra, seizure is not initiated by self-interested private parties, but by government officials. Pp. 416 U. S. 676-680. Page 416 U. S. 6643. Statutory forfeiture schemes are not rendered unconstitutional because of their applicability to the property interests of innocents, and here the Puerto Rican statutes, which further punitive and deterrent purposes, were validly applied to appellee's yacht. Pp. 416 U. S. 680-690.363 F. Supp. 1337, reversed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Parts I and II of which STEWART, J., joined. WHITE, J., filed a concurring opinion, in which POWELL, J., joined, post, p. 416 U. S. 691. STEWART, J., filed a separate statement; post, p. 416 U. S. 690. DOUGLAS, J., filed an opinion dissenting in part, in which STEWART, J., joined in part, post, p. 416 U. S. 691.

1981_80-965

JUSTICE STEVENS delivered the opinion of the Court.In 1971, the Indiana Legislature enacted a statute providing that a severed mineral interest that is not used for a period of 20 years automatically lapses and reverts to the current surface owner of the property, unless the mineral owner files a statement of claim in the local county recorder's office. [Footnote 1] The Indiana Supreme Court rejected a challenge to the constitutionality of the statute. ___ Ind. ___, 406 N.E.2d 625 (1980). We noted probable jurisdiction, 450 U.S. 993, and now affirm.As the Indiana Supreme Court explained, the Mineral Lapse Act "puts an end to interests in coal, oil, gas or other minerals which have not been used for twenty years." [Footnote 2] The statute provides that the unused interest shall be "extinguished," and that its "ownership shall revert to the then owner of the interest out of which it was carved." [Footnote 3] The statute, which became effective on September 2, 1971, contained a 2-year grace period in which owners of mineral interests Page 454 U. S. 519 that were then unused and subject to lapse could preserve those interests by filing a claim in the recorder's office. [Footnote 4]The "use" of a mineral interest [Footnote 5] that is sufficient to preclude its extinction includes the actual or attempted production of minerals, the payment of rents or royalties, and any payment of taxes; [Footnote 6] a mineral owner may also protect his interest by filing a statement of claim with the local recorder of deeds. [Footnote 7] The statute contains one exception to this general Page 454 U. S. 520 rule: if an owner of 10 or more interests in the same county files a statement of claim that inadvertently omits some of those interests, the omitted interests may be preserved by a supplemental filing made within 60 days of receiving actual notice of the lapse. [Footnote 8]The statute does not require that any specific notice be given to a mineral owner prior to a statutory lapse of a mineral estate. The Act does set forth a procedure, however, by which a surface owner who has succeeded to the ownership of a mineral estate pursuant to the statute may give notice that the mineral interest has lapsed. [Footnote 9] Page 454 U. S. 521Two cases are consolidated in this appeal. The facts in each are stipulated. In No. 80-965, appellants include 11 parties who claim ownership of fractional mineral interests severed in 1942 and in 1944 from a 132-acre tract of land in Gibson County, Ind.; a 12th appellant is the lessee of oil and gas leases executed in 1976 and 1977 by the other appellants. The appellee is the surface owner of the 132-acre tract from which the appellants' mineral interests were carved. The parties stipulated that the appellants had not used the mineral interests for 20 years, and had not filed a statement of claim within 2 years of the effective date of the statute. Thus, under the terms of the Dormant Mineral Interests Act, the mineral interests automatically lapsed on September 2, 1973, when the 2-year grace period expired. On April 28, 1977, appellee gave notice that the mineral interests had lapsed. [Footnote 10] Appellants responded by filing statements of claim in the Office of the Recorder of Gibson County. Thereafter, appellee filed this action, seeking a declaratory judgment that the rights of the mineral interest owners had lapsed and were extinguished by reason of the Dormant Mineral Interests Act.In No. 80-1018, the severed mineral estate was created on March 1, 1954. On that date, appellants Pond and Bobe conveyed land to appellees by a warranty deed that contained a reservation of the mineral estate. On June 17, 1976, Pond and Bobe executed a coal mining lease with appellant Consolidated Coal Co. The parties stipulated that, for a 20-year Page 454 U. S. 522 period following the creation of the mineral estate, appellants did not use the interest or file a statement of claim in the Recorder's Office. Thus, on March 1, 1974, a date more than two years after the effective date of the Dormant Mineral Interests Act, a statutory lapse occurred. On March 4, 1977, appellees gave notice of the lapse, both by letter to the appellants and by publication in the Princeton Daily Clarion. The parties jointly filed the instant lawsuit on January 12, 1978, to resolve their conflicting claims to the mineral rights.In each case it is agreed that, if the statute is valid, appellants' mineral interests have lapsed because of their failure to produce minerals, pay taxes, or file a statement of claim within the statutory period. In neither case does the agreed statement of facts indicate whether any of the appellants was aware of the enactment of the Mineral Lapse Act, or of its possible effect on his mineral interests, at any time after the enactment of the statute and before the appellees published notice of the lapse of the mineral estates.At all stages of the proceedings, appellants challenged the constitutionality of the Dormant Mineral Interests Act. Appellants claimed that the lack of prior notice of the lapse of their mineral rights deprived them of property without due process of law, that the statute effected a taking of private property for public use without just compensation, and that the exception contained in the Act for owners of 10 or more mineral interests denied them the equal protection of the law; appellants based these arguments on the Fourteenth Amendment of the United States Constitution. [Footnote 11] Appellants also Page 454 U. S. 523 contended that the statute constituted an impairment of contracts in violation of Art. I, § 10, of the Constitution. [Footnote 12] The state trial court held that the statute deprived appellants of property without due process of law, and effected a taking of property without just compensation. [Footnote 13]On appeal, the Indiana Supreme Court reversed. The court first explained the purpose of the Mineral Lapse Act:"The Act reflects the legislative belief that the existence of a mineral interest about which there has been no display of activity or interest by the owners thereof for a period of twenty years or more is mischievous and contrary to the economic interests and welfare of the public. The existence of such stale and abandoned interests creates uncertainties in titles and constitutes an impediment to the development of the mineral interests that may be present and to the development of the surface rights as well. The Act removes this impediment by returning the severed mineral estate to the surface rights owner. There is a decided public interest to be served when this occurs. The extinguishment of such an interest makes the entire productive potential of the property again available for human use."___ Ind. at ___, 406 N.E.2d at 627. The court rejected the argument that a lapse of a vested mineral interest could not occur without affording the mineral owner prior notice and an opportunity to be heard. The court noted that,"[p]rior to any extinguishment, the owner of an interest will have had notice by reason of the enactment itself of the conditions which would give rise to an extinguishment and, at a minimum, a two-year opportunity to prevent those conditions from occurring by filing a statement of Page 454 U. S. 524 claim. [Footnote 14]"The Indiana Supreme Court also rejected the argument that the statute effected a taking without just compensation. The court reasoned that, like statutes of limitations, the Mineral Lapse Act was a permissible exercise of the police power of the State. [Footnote 15] Finally, the court rejected the argument that the statute violated the Equal Protection Clause of the Fourteenth Amendment by providing a special exception for owners of 10 or more interests who, through inadvertence, failed to preserve all such interests. The court again noted that the purpose of the statute was to encourage Page 454 U. S. 525 the development of mineral interests, and held that it was rational for the Indiana Legislature to provide special protection for owners of 10 or more mineral interests, since those owners are more likely to be able to engage in the actual production of mineral resources. [Footnote 16]IAppellants raise several specific challenges to the constitutionality of the Mineral Lapse Act. Before addressing these arguments, however, it is appropriate to consider whether the State has the power to provide that property rights of this character shall be extinguished if their owners do not take the affirmative action required by the State. [Footnote 17]In Board of Regents v. Roth, 408 U. S. 564, 408 U. S. 577, the Court stated:"Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."The State of Indiana has defined a severed mineral estate as a "vested property interest," entitled to "the same protection Page 454 U. S. 526 as are fee simple titles." [Footnote 18] Through its Dormant Mineral Interests Act, however, the State has declared that this property interest is of less than absolute duration; retention is conditioned on the performance of at least one of the actions required by the Act. We have no doubt that, just as a State may create a property interest that is entitled to constitutional protection, the State has the power to condition the permanent retention of that property right on the performance of reasonable conditions that indicate a present intention to retain the interest.From an early time, this Court has recognized that States have the power to permit unused or abandoned interests in property to revert to another after the passage of time. In Hawkins v. Barney's Lessee, 5 Pet. 457, the Court upheld a Kentucky statute that prevented a landowner from recovering property on which the defendant had resided for more than seven years under a claim of right. The Court stated:"Such laws have frequently passed in review before this Court, and occasions have occurred in which they have been particularly noticed as laws not to be impeached on the ground of violating private right. "What right has anyone to complain, when a reasonable time has been given him, if he has not been vigilant in asserting his rights?Id. at 30 U. S. 466. [Footnote 19] Page 454 U. S. 527 Similarly, in Wilson v. Iseminger, 185 U. S. 55, the Court upheld a Pennsylvania statute that provided for the extinguishment of a reserved interest in ground rent if the owner collected no rent and made no demand for payment for a period of 21 years. [Footnote 20] Though the effect of the Pennsylvania statute was to extinguish a fee simple estate of permanent duration, the Court held that the legislation was valid. [Footnote 21] Page 454 U. S. 528In these early cases, the Court often emphasized that the statutory "extinguishment" properly could be viewed as the withdrawal of a remedy, rather than the destruction of a right. [Footnote 22] We have subsequently made clear, however, that, when the practical consequences of extinguishing a right are identical to the consequences of eliminating a remedy, the constitutional analysis is the same. El Paso v. Simmons, 379 U. S. 497, 379 U. S. 506-507. The extinguishment of the property owners' "remedy" in Hawkins and Iseminger placed them in precisely the same position as that held by the mineral owners in the instant cases after their interests had lapsed.The Indiana statute is similar in operation to a typical recording statute. Such statutes provide that a valid transfer of property may be defeated by a subsequent purported transfer if the earlier transfer is not properly recorded. In Jackson v. Lamphire, 3 Pet. 280, the Court upheld such a statute, even as retroactively applied to a deed that need not have been recorded at the time delivered. The Court stated:"It is within the undoubted power of state legislatures to pass recording acts, by which the elder grantee shall be postponed to a younger if the prior deed is not recorded within the limited time; and the power is the same whether the deed is dated before or after the passage of the recording act. Though the effect of such a law is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law impairing the obligation of contracts; such too is the power to pass acts of limitations, and their effect. Reasons of sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned. The time Page 454 U. S. 529 and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment."Id. at 28 U. S. 290.These decisions clearly establish that the State of Indiana has the power to enact the kind of legislation at issue. In each case, the Court upheld the power of the State to condition the retention of a property right upon the performance of an act within a limited period of time. In each instance, as a result of the failure of the property owner to perform the statutory condition, an interest in fee was deemed as a matter of law to be abandoned and to lapse.It is also clear that the State has not exercised this power in an arbitrary manner. The Indiana statute provides that a severed mineral interest shall not terminate if its owner takes any one of three steps to establish his continuing interest in the property. If the owner engages in actual production, or collects rents or royalties from another person who does or proposes to do so, his interest is protected. If the owner pays taxes, no matter how small, the interest is secure. If the owner files a written statement of claim in the county recorder's office, the interest remains viable. Only if none of these actions is taken for a period of 20 years does a mineral interest lapse and revert to the surface owner.Each of the actions required by the State to avoid an abandonment of a mineral estate furthers a legitimate state goal. Certainly the State may encourage owners of mineral interests to develop the potential of those interests; similarly, the fiscal interest in collecting property taxes is manifest. The requirement that a mineral owner file a public statement of claim furthers both of these goals by facilitating the identification and location of mineral owners, from whom developers may acquire operating rights and from whom the county may collect taxes. The State surely has the power to condition Page 454 U. S. 530 the ownership of property on compliance with conditions that impose such a slight burden on the owner, while providing such clear benefits to the State. [Footnote 23]IITwo of appellants' arguments may be answered quickly. Appellants contend that the Mineral Lapse Act takes private property without just compensation in violation of the Fourteenth Amendment; they also argue that the statute constitutes an impermissible impairment of contracts in violation of the Contract Clause. The authorities already discussed mandate rejection of each of these arguments.In ruling that private property may be deemed to be abandoned and to lapse upon the failure of its owner to take reasonable actions imposed by law, this Court has never required the State to compensate the owner for the consequences of his own neglect. We have concluded that the State may treat a mineral interest that has not been used for 20 years and for which no statement of claim has been filed as abandoned; it follows that, after abandonment, the former owner retains no interest for which he may claim compensation. It is the owner's failure to make any use of the property -- and not the action of the State -- that causes the lapse of the property right; there is no "taking" that requires compensation. The requirement that an owner of a property interest that has not been used for 20 years must come forward and file a current statement of claim is not itself a "taking." Page 454 U. S. 531Nor does the Mineral Lapse Act unconstitutionally impair the obligation of contracts. In the specific cases under review, the mineral owners did not execute the coal and oil leases in question until after the statutory lapse of their mineral rights. The statute cannot be said to impair a contract that did not exist at the time of its enactment. Appellants' right to enter such an agreement of course has been impaired by the statute; this right, however, is a property right, and not a contract right. In any event, a mineral owner may safeguard any contractual obligations or rights by filing a statement of claim in the county recorder's office. Such a minimal "burden" on contractual obligations is not beyond the scope of permissible state action. [Footnote 24]IIIAppellants' primary attack on the Dormant Mineral Interests Act is that it extinguished their property rights without adequate notice. In advancing this argument, appellants actually assert two quite different claims. First, appellants argue that the State of Indiana did not adequately notify them of the legal requirements of the new statute. Second, appellants argue that a mineral interest may not be extinguished unless the surface owner gives the mineral owner advance notice that the 20-year period of nonuse is about to expire. When these two arguments are considered separately, it is clear that neither has merit.AThe first question raised is simply how a legislature must go about advising its citizens of actions that must be taken to avoid a valid rule of law that a mineral interest that has not been used for 20 years will be deemed to be abandoned. The answer to this question is no different from that posed for any Page 454 U. S. 532 legislative enactment affecting substantial rights. Generally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply. In this case, the 2-year grace period included in the Indiana statute forecloses any argument that the statute is invalid because mineral owners may not have had an opportunity to become familiar with its terms. It is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property. [Footnote 25]It is also settled that the question whether a statutory grace period provides an adequate opportunity for citizens to become familiar with a new law is a matter on which the Court shows the greatest deference to the judgment of state legislatures. See Jackson v. Lamphire, 3 Pet. at 28 U. S. 290; Wilson v. Iseminger, 185 U.S. at 185 U. S. 62-63. A legislative body is in a far better position than a court to form a correct judgment concerning the number of persons affected by a change in the law, the means by which information concerning the law is disseminated in the community, and the likelihood that innocent persons may be harmed by the failure to receive adequate notice. [Footnote 26]In short, both the Indiana Legislature and the Indiana Supreme Court have concluded that a 2-year period was sufficient Page 454 U. S. 533 to allow property owners in the State to familiarize themselves with the terms of the statute and to take any action deemed appropriate to protect existing interests. On the basis of the records in these two proceedings, we cannot conclude that the statute was so unprecedented and so unlikely to come to the attention of citizens reasonably attentive to the enactment of laws affecting their rights that this 20-year period was constitutionally inadequate. We refuse to displace hastily the judgment of the legislature and to conclude that a legitimate exercise of state legislative power is invalid because citizens might not have been aware of the requirements of the law. [Footnote 27]BWe have concluded that appellants may be presumed to have had knowledge of the terms of the Dormant Mineral Interests Act. Specifically, they are presumed to have known that an unused mineral interest would lapse unless they filed a statement of claim. The question then presented is whether, given that knowledge, appellants had a constitutional right to be advised -- presumably by the surface owner -- that their 20-year period of nonuse was about to expire.In answering this question, it is essential to recognize the difference between the self-executing feature of the statute and a subsequent judicial determination that a particular lapse did, in fact, occur. As noted by appellants, no specific notice need be given of an impending lapse. If there has Page 454 U. S. 534 been a statutory use of the interest during the preceding 20-year period, however, by definition, there is no lapse -- whether or not the surface owner, or any other party, is aware of that use. Thus, no mineral estate that has been protected by any of the means set forth in the statute may be lost through lack of notice. It is undisputed that, before judgment could be entered in a quiet title action that would determine conclusively that a mineral interest has reverted to the surface owner, the full procedural protections of the Due Process Clause -- including notice reasonably calculated to reach all interested parties and a prior opportunity to be heard -- must be provided.Appellants place primary reliance on our decision in Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306. In that case, the Court considered the constitutional sufficiency of notice given to the beneficiaries of a common trust fund of a judicial settlement of accounts by the trustee of the fund. The Court held that the notice by publication authorized by the relevant New York statute was not sufficient, since it was not reasonably calculated to apprise the beneficiaries of the pendency of the judicial proceeding. Justice Jackson, writing for the Court, stated:"Many controversies have raged about the cryptic and abstract words of the Due Process Clause, but there can be no doubt that, at a minimum, they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case."Id. at 339 U. S. 313. Specifically, the Court held that"[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice 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 notice in Mullane was deficient"not because in fact it fail[ed] to reach everyone, Page 454 U. S. 535 but because, under the circumstances, it [was] not reasonably calculated to reach those who could easily be informed by other means at hand."Id. at 339 U. S. 319.The reasoning in Mullane is applicable to a judicial proceeding brought to determine whether a lapse of a mineral estate did or did not occur, but not to the self-executing feature of the Mineral Lapse Act. The due process standards of Mullane apply to an "adjudication" that is "to be accorded finality." The Court in Mullane itself distinguished the situation in which a State enacted a general rule of law governing the abandonment of property. [Footnote 28] It has long been established that "laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly," Grayned v. City of Rockford, 408 U.S. Page 454 U. S. 536 104, 408 U. S. 108, but it has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights.As emphasized above, appellants do not challenge the sufficiency of the notice that must be given prior to an adjudication purporting to determine that a mineral interest has not been used for 20 years. Appellants simply claim that the absence of specific notice prior to the lapse of a mineral right renders ineffective the self-executing feature of the Indiana statute. That claim has no greater force than a claim that a self-executing statute of limitations is unconstitutional. The Due Process Clause does not require a defendant to notify a potential plaintiff that a statute of limitations is about to run, although it certainly would preclude him from obtaining a declaratory judgment that his adversary's claim is barred without giving notice of that proceeding.Appellants also rely on a series of cases that have required specific notice and an opportunity to be heard before a driver's license is suspended for failure to post security after an accident, [Footnote 29] before property is seized pursuant to a prejudgment replevin order, [Footnote 30] or before service is terminated by a Page 454 U. S. 537 public utility for failure to tender payment of amounts due. [Footnote 31] In each of those cases, however, the property interest was taken only after a specific determination that the deprivation was proper. [Footnote 32] In the instant case, the State of Indiana has enacted a rule of law uniformly affecting all citizens that establishes the circumstances in which a property interest will lapse through the inaction of its owner. None of the cases cited by appellants suggests that an individual must be given advance notice before such a rule of law may operate. [Footnote 33] Page 454 U. S. 538We have held that the State may impose on an owner of a mineral interest the burden of using that interest or filing a current statement of claim. We think it follows inexorably that the State may impose on him the lesser burden of keeping informed of the use or nonuse of his own property. We discern no procedural defect in this statute. [Footnote 34]IVThe Indiana statute allows a mineral owner to retain an interest, notwithstanding a failure to file a statement of claim within the statutory period, if he satisfies four specific conditions: (1) he must own at least 10 mineral interests in the county; (2) he must have made a diligent effort to preserve all his interests and have succeeded in preserving some; (3) his failure to preserve the interest in question must have been Page 454 U. S. 539 through "inadvertence"; and (4) he must file a statement of claim within 60 days after receiving notice that the mineral interest has lapsed. [Footnote 35] Appellants contend that this special exception violates the Equal Protection Clause of the Fourteenth Amendment.There is nothing in the records to tell us how often, if ever, this statutory exception has been invoked. Nor do the records indicate the number of persons who own 10 or more interests in any one county in Indiana. Since mineral interests may be bought and sold like other property, and often have little value, the composition of the class benefited by this exception is subject to constant change. Unlike those classes that are defined by personal characteristics, anyone who purchases 10 fractional mineral interests in the same county, of whatever value, can join this favored class.Although appellants do not suggest that they are financially unable to join the special class, or that its existence has any adverse impact on their own rights -- or, indeed, that excision of the exception from the Act would provide them with any benefit whatsoever -- they nevertheless argue that it is basically unfair to treat owners of multiple interests more favorably than they are treated. The Indiana Supreme Court has explained, however, that the State has an interest in encouraging the assembly of multiple interests in a single ownership, because such owners are more likely to be able to engage in the actual production of mineral resources. [Footnote 36] This Page 454 U. S. 540 state interest is unquestionably legitimate. Thus, a statutory provision that encourages multiple ownership -- by giving that kind of ownership additional protection against forfeiture after it has been assembled -- is related to the central purpose of the statute. Since the exception furthers a legitimate statutory purpose, and has no adverse impact on persons, like the appellants, who own fewer mineral interests, the exception does not violate the Equal Protection Clause of the Fourteenth Amendment.The judgment of the Supreme Court of Indiana is affirmed. It is so ordered

U.S. Supreme CourtTexaco, Inc. v. Short, 454 U.S. 516 (1982)Texaco, Inc. v. ShortNo. 80-965Argued October 6, 1981Decided January 12, 1982*454 U.S. 516SyllabusThe Indiana Dormant Mineral Interests Act, more commonly known as the Mineral Lapse Act, provides that a severed mineral interest that is not used for a period of 20 years automatically lapses and reverts to the current surface owner of the property, unless the mineral owner prior to the end of the 20-year period or within a 2-year grace period after the effective date of the Act (September 2, 1971) files a statement of claim in the local county recorder's office. The "use" of a mineral interest sufficient to preclude its extinction includes actual or attempted production of the minerals, payment of rents or royalties, and payment of taxes. The statute contains one exception to the general rule: if an owner of 10 or more mineral interests in the same county files a statement of claim that inadvertently omits some of those interests, the omitted interests may be preserved by a supplemental filing made within 60 days of receiving notice of the lapse. Appellants, whose unused mineral interests had lapsed upon expiration of the grace period under the Act, challenged the constitutionality of the Act in actions brought in Indiana state court. They claimed that, under the Fourteenth Amendment, the lack of prior notice of the lapse deprived them of property without due process of law, the statute effected a taking of property for public use without just compensation, and the exception for owners of 10 or more mineral interests denied them the equal protection of the law. They also contended that the statute constitutes an impairment of contracts in violation of the Contract Clause. The trial court declared the statute unconstitutional, but the Indiana Supreme Court reversed.Held:1. The State has the power to enact the kind of statute in issue, and, in this instance, has not exercised this power in an arbitrary manner. Each of the actions required to avoid an abandonment of a mineral interest furthers the legitimate state goals of encouraging mineral interest owners to develop such interests and of collecting property taxes. Pp. 454 U. S. 525-530.2. The Act does not take property without just compensation in violation of the Fourteenth Amendment. Since the State may treat as abandoned a mineral interest that has not been used for 20 years and for which no statement of claim has been filed, it follows that, after abandonment, Page 454 U. S. 517 the former owner retains no interest for which he may claim compensation. It is the owner's failure to make any use of the property -- and not the State's action -- that causes the lapse of the property right; there is no "taking" that requires compensation. P. 454 U. S. 530.3. Nor does the Act unconstitutionally impair the obligation of contracts. Since appellant mineral owners did not execute any coal and oil leases until after the statutory lapse of their mineral rights, the statute cannot be said to impair a contract that did not exist at the time of its enactment. While appellants' right to enter such an agreement has been impaired, this right is a property, not a contract, right. P. 454 U. S. 531.4. The Act did not extinguish appellants' property without adequate notice in violation of their due process rights. Pp. 454 U. S. 531-538.(a) The 2-year grace period provided by the statute forecloses any argument that the statute is invalid because mineral owners may not have had an opportunity to become familiar with its terms. Property owners are charged with knowledge of relevant statutory provisions affecting the control or disposition of their property. Moreover, the greatest deference must be accorded to the judgment of state legislatures as to whether a statutory grace period provides an adequate opportunity for citizens to become familiar with a new law. Here, both the Indiana Legislature and the Indiana Supreme Court have concluded that the 2-year grace period was sufficient to allow property owners to familiarize themselves with the statute and to take appropriate action to protect existing interests. Pp. 454 U. S. 531-533.(b) Given appellants' presumed knowledge that their unused mineral interests would lapse unless they filed a statement of claim, appellants had no constitutional right to be advised that the 20-year period of nonuse was about to expire. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, distinguished. Since the State may impose on a mineral interest owner the burden of using that interest or filing a statement of claim, it follows that the State may impose on him the lesser burden of keeping informed of the use or nonuse of his own property. Pp. 454 U. S. 533-538.5. Since the statutory exception for owners of 10 or more mineral interests furthers the legitimate statutory purpose of encouraging multiple ownership as being more conducive to the actual production of mineral resources, and has no adverse impact on persons like appellants who own fewer mineral interests, the exception does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 454 U. S. 538-540.___ Ind. ___, 406 N.E.2d 625, affirmed.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL, and POWELL, JJ., joined,post, p. 454 U. S. 540. Page 454 U. S. 518

1980_79-870

JUSTICE REHNQUIST delivered the opinion of the Court.The United States District Court for the Southern District of Indiana held unconstitutional a section of the Railroad Retirement Act of 1974, 88 Stat. 1305, as amended, 45 U.S.C. § 231 et seq., and the United States Railroad Retirement Board has appealed to this Court pursuant to 28 U.S.C. § 1252. We noted probable jurisdiction. 444 U.S. 1069 (1980).The 1974 Act fundamentally restructured the railroad retirement system. The Act's predecessor statute, adopted in 1937, provided a system of retirement and disability benefits for persons who pursued careers in the railroad industry. Under that statute, a person who worked for both railroad and nonrailroad employers and who qualified for railroad retirement benefits and social security benefits, 42 U.S.C. § 401 et seq., received retirement benefits under both systems and an accompanying "windfall" benefit. [Footnote 1] The legislative Page 449 U. S. 169 history of the 1974 Act shows that the payment of windfall benefits threatened the railroad retirement system with bankruptcy by the year 1981. [Footnote 2] Congress therefore determined to place the system on a "sound financial basis" by eliminating future accruals of those benefits. [Footnote 3] Congress also enacted Page 449 U. S. 170 various transitional provisions, including a grandfather provision, § 231b(h), [Footnote 4] which expressly preserved windfall benefits for some classes of employees. Page 449 U. S. 171In restructuring the Railroad Retirement Act in 1974, Congress divided employees into various groups. First, those employees who lacked the requisite 10 years of railroad employment to qualify for railroad retirement benefits as of January 1, 1975, the changeover date, would have their retirement benefits computed under the new system and would not receive any windfall benefit. Second, those individuals already retired and already receiving dual benefits as of the changeover date would have their benefits. computed under the old system, and would continue to receive a windfall benefit. [Footnote 5] Third, those employees who had qualified for both railroad and social security benefits as of the changeover date, but who had not yet retired as of that date (and thus were Page 449 U. S. 172 not yet receiving dual benefits), were entitled to windfall benefits if they had (1) performed some railroad service in 1974 or (2) had a "current connection" with the railroad industry as of December 31, 1974, [Footnote 6] or (3) completed 25 years of railroad service as of December 31, 1974. 45 U.S.C. § 231b(h)(1). Fourth, those employees who had qualified for railroad benefits as of the changeover date, but lacked a current connection with the railroad industry in 1974 and lacked 25 years of railroad employment, could obtain a lesser amount of windfall benefit if they had qualified for social security benefits as of the year (prior to 1975) they left railroad employment. 45 U.S.C. § 231b(h)(2). [Footnote 7]Thus, an individual who, as of the changeover date, was unretired and had 10 years of railroad employment and sufficient nonrailroad employment to qualify for social security benefits is eligible for the full windfall amount if he worked for the railroad in 1974 or had a current connection with the railroad as of December 31, 1974, or his later retirement date. But an unretired individual with 24 years of railroad service and sufficient nonrailroad service to qualify for social security benefits is not eligible for a full windfall amount unless he worked for the railroad in 1974, or had a current connection with the railroad as of December 31, 1974, or his later retirement date. And an employee with 10 years of railroad employment who qualified for social security benefits only after Page 449 U. S. 173 leaving the railroad industry will not receive a reduced windfall benefit, while an employee who qualified for social security benefits prior to leaving the railroad industry would receive a reduced benefit. It was with these complicated comparisons that Congress wrestled in 1974.Appellee and others filed this class action in the United States District Court for the Southern District of Indiana, seeking a declaratory judgment that 45 U.S.C. § 231b(h) is unconstitutional under the Due Process Clause of the Fifth Amendment because it irrationally distinguishes between classes of annuitants. [Footnote 8] The District Court eventually certified a class of all persons eligible to retire between January 1, 1975, and January 31, 1977, who were permanently insured under the Social Security Act as of December 31, 1974, but who were not eligible to receive any "windfall component" because they had left the railroad industry before 1974, had no "current connection" with it at the end of 1974, and had less than 25 years of railroad service. [Footnote 9] Appellee contended below that it was irrational for Congress to have drawn a distinction between employees who had more than 10 years but less than 25 years of railroad employment simply on the basis of whether they had a "current connection" with the Page 449 U. S. 174 railroad industry as of the changeover date or as of the date of retirement.The District Court agreed with appellee that a differentiation based solely on whether an employee was "active" in the railroad business as of 1974 was not "rationally related" to the congressional purposes of insuring the solvency of the railroad retirement system and protecting vested benefits. We disagree, and reverse.The initial issue presented by this case is the appropriate standard of judicial review to be applied when social and economic legislation enacted by Congress is challenged as being violative of the Fifth Amendment to the United States Constitution. There is no claim here that Congress has taken property in violation of the Fifth Amendment, since railroad benefits, like social security benefits, are not contractual, and may be altered or even eliminated at any time. Hisquierdo v. Hisquierdo, 439 U. S. 572, 439 U. S. 575 (1979); Flemming v. Nestor, 363 U. S. 603, 363 U. S. 608-611 (1960). And because the distinctions drawn in § 231b(h) do not burden fundamental constitutional rights or create "suspect" classifications, such as race or national origin, we may put cases involving judicial review of such claims to one side. San Antonio Independent School District v. Rodriguez, 411 U. S. 1 (1973); Vance v. Bradley, 440 U. S. 93 (1979).Despite the narrowness of the issue, this Court, in earlier cases, has not been altogether consistent in its pronouncements in this area. In Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 220 U. S. 78-79 (1911), the Court said that,"[w]hen the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time that the law was enacted must be assumed."On the other hand, only nine years later in F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 253 U. S. 415 (1920), the Court said that, for a classification to be valid under the Equal Protection Clause of the Fourteenth Page 449 U. S. 175 Amendment, it "must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. . . ."In more recent years, however, the Court, in cases involving social and economic benefits, has consistently refused to invalidate on equal protection grounds legislation which it simply deemed unwise or unartfully drawn.Thus, in Dandridge v. Williams, 397 U. S. 471 (1970), the Court rejected a claim that Maryland welfare legislation violated the Equal Protection Clause of the Fourteenth Amendment. It said:"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because, in practice, it results in some inequality."Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 220 U. S. 78."The problems of government are practical ones, and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific.'""Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 228 U. S. 68-70. . . ."". . . [The rational basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy."Id. at 307 U. S. 485-486. Of like tenor are Vance v. Bradley, supra at 440 U. S. 97, and New Orleans v. Dukes, 427 U. S. 297, 427 U. S. 303 (1976). Earlier, in Flemming v. Nestor, supra at 363 U. S. 611, the Court upheld the constitutionality of a social security eligibility provision, saying:"[I]t is not within our authority to determine whether the Congressional judgment expressed in that Section is sound or equitable, or whether it comports well or ill with Page 449 U. S. 176 purposes of the Act. . . . The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom."And in a case not dissimilar from the present one, in that the State was forced to make a choice which would undoubtedly seem inequitable to some members of a class, we said:"Applying the traditional standard of review under [the Equal Protection Clause], we cannot say that Texas' decision to provide somewhat lower welfare benefits for [Aid to Families with Dependent Children] recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may have concluded that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are, of course, possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them. Whether or not one agrees with this state determination, there is nothing in the Constitution that forbids it."Jefferson v. Hackney, 406 U. S. 535, 406 U. S. 549 (1972).Applying those principles to this case, the plain language of § 231b(h) marks the beginning and end of our inquiry. [Footnote 10] Page 449 U. S. 177 There, Congress determined that some of those who in the past received full windfall benefits would not continue to do so. Because Congress could have eliminated windfall benefits for all classes of employees, it is not constitutionally impermissible for Congress to have drawn lines between groups of employees for the purpose of phasing out those benefits. New Orleans v. Dukes, supra, at 427 U. S. 305.The only remaining question is whether Congress achieved its purpose in a patently arbitrary or irrational way. The classification here is not arbitrary, says appellant, because it is an attempt to protect the relative equities of employees and to provide benefits to career railroad employees. Congress fully protected, for example, the expectations of those employees who had already retired and those unretired employees who had 25 years of railroad employment. Conversely, Congress denied all windfall benefits to those employees who lacked 10 years of railroad employment. Congress additionally provided windfall benefits, in lesser amount, to those employees with 10 years' railroad employment who had qualified for social security benefits at the time they had left railroad employment, Page 449 U. S. 178 regardless of a current connection with the industry in 1974 or on their retirement date.Thus, the only eligible former railroad employees denied full windfall benefits are those, like appellee, who had no statutory entitlement to dual benefits at the time they left the railroad industry, but thereafter became eligible for dual benefits when they subsequently qualified for social security benefits. Congress could properly conclude that persons who had actually acquired statutory entitlement to windfall benefits while still employed in the railroad industry had a greater equitable claim to those benefits than the members of appellee's class who were no longer in railroad employment when they became eligible for dual benefits. Furthermore, the "current connection" test is not a patently arbitrary means for determining which employees are "career railroaders," particularly since the test has been used by Congress elsewhere as an eligibility requirement for retirement benefits. [Footnote 11] Congress could assume that those who had a current connection with the railroad industry when the Act was passed in 1974, or who returned to the industry before their retirement, were more likely than those who had left the industry prior to 1974, and who never returned, to be among the class of persons who pursue careers in the railroad industry, the class for whom the Railroad Retirement Act was designed. Hisquierdo v. Hisquierdo, 439 U.S. at 439 U. S. 573. Page 449 U. S. 179Where, as here, there are plausible reasons for Congress' action, our inquiry is at an end. It is, of course, "constitutionally irrelevant whether this reasoning in fact underlay the legislative decision," Flemming v. Nestor, 363 U.S. at 363 U. S. 612, because this Court has never insisted that a legislative body articulate its reasons for enacting a statute. This is particularly true where the legislature must necessarily engage in a process of line-drawing. The"task of classifying persons for . . . benefits . . . inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line,"Mathews v. Diaz, 426 U. S. 67, 426 U. S. 83-84 (1976), and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.Finally, we disagree with the District Court's conclusion that Congress was unaware of what it accomplished, or that it was misled by the groups that appeared before it. If this test were applied literally to every member of any legislature that ever voted on a law, there would be very few laws which would survive it. The language of the statute is clear, and we have historically assumed that Congress intended what it enacted. To be sure, appellee lost a political battle in which he had a strong interest, but this is neither the first nor the last time that such a result will occur in the legislative forum. What we have said is enough to dispose of the claims that Congress not only failed to accept appellee's argument as to restructuring in toto, but that such failure denied him equal protection of the laws guaranteed by the Fifth Amendment. [Footnote 12] Page 449 U. S. 180For the foregoing reasons, the judgment of the District Court isReversed

U.S. Supreme CourtUnited States. R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980)United States. Railroad Retirement Board v. FritzNo. 79-870Argued October 6, 1980Decided December 9, 1980449 U.S. 166SyllabusThe Railroad Retirement Act of 1974 (1974 Act) fundamentally restructured the railroad retirement system under the predecessor 1937 Act, which had included provisions whereby a person who worked for both railroad and nonrailroad employers and who qualified for both railroad retirement and social security benefits received benefits under both systems and an accompanying "windfall" benefit. Although providing that employees who lacked the requisite 10 years of railroad employment to qualify for railroad retirement benefits as of the January 1, 1975, changeover date would not receive any windfall benefits, the 1974 Act preserved windfall benefits for individuals who had retired and were receiving dual benefits as of the changeover date. A provision of the 1974 Act, 45 U.S.C. $ 231b(h)(1), also preserved windfall benefits for employees who had qualified for dual benefits as of the changeover date, but who had not yet retired, if they had (1) performed some railroad service in 1974 or (2) had a "current connection" with the railroad industry as of December 31, 1974, or their later retirement date, or (3) completed 25 years of railroad service as of December 31, 1974. The 1974 Act further provided, 45 U.S.C. $ 231b(h)(2), that employees who had qualified for railroad benefits as of the changeover date, but lacked a current connection with the railroad industry in 1974 and 25 years of railroad employment, could obtain a lesser amount of windfall benefits if they had qualified for social security benefits as of the year (prior to 1975) they left railroad employment. Appellee and others filed a class action in Federal District Court for a declaratory judgment that $ 231b(h) is unconstitutional under the Due Process Clause of the Fifth Amendment, contending that it was irrational for Congress to distinguish between employees who had more than 10 years but less than 25 years of railroad employment simply on the basis of whether they had a "current connection" with the railroad industry as of the changeover date or as of the date of retirement. The District Court certified a plaintiff class of all persons eligible to retire between January 1, 1975, and January 31, 1977, who were permanently insured under the Social Security Act as of December 31, 1974, but who were not eligible to receive any windfall benefits because they had left the Page 449 U. S. 167 railroad industry before 1974, had no "current connection" with it at the end of 1974, and had less than 25 years of railroad service. The court held that the differentiation based solely on whether an employee was "active" in the railroad business as of 1974 was not "rationally related" to the congressional purposes of insuring the solvency of the railroad retirement system and protecting vested benefits.Held: The challenged provisions of the 1974 Act do not deny the plaintiff class equal protection of the laws guaranteed by the Fifth Amendment. Pp. 449 U. S. 174-179.(a) When social and economic legislation enacted by Congress is challenged on equal protection grounds as being violative of the Fifth Amendment, the rational basis standard is the appropriate standard of judicial review. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification is not made with mathematical nicety or because, in practice, it results in some inequality. This Court will not invalidate on equal protection grounds legislation that it simply deems unwise or unartfully drawn. Cf., e.g., Dandridge v. Williams, 397 U. S. 471; Jefferson v. Hackney, 406 U. S. 535. Pp. 449 U. S. 174-176.(b) Under such principles, $ 231b(h) does not violate the Fifth Amendment. Because Congress could have eliminated windfall benefits for all classes of employees, it is not constitutionally impermissible for Congress to have drawn lines between groups of employees for the purpose of phasing out those benefits. Congress did not achieve its purpose in a patently arbitrary or irrational way, since it could properly conclude that persons who had actually acquired statutory entitlement to windfall benefits while still employed in the railroad industry had a greater equitable claim to those benefits than the members of the plaintiff class who were no longer in railroad employment when they became eligible for dual benefits. Furthermore, the "current connection" test is not a patently arbitrary means for determining which employees are "career railroaders," the class for whom the 1974 Act was designed. Pp. 449 U. S. 176-178.(c) Nor is there merit to the District Court's conclusion that Congress was unaware of what it accomplished or that it was misled by the groups that appeared before it. The language of the statute is clear, and it has been historically assumed that Congress intended what it enacted. P. 449 U. S. 179.Reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. Page 449 U. S. 168 STEVENS, J., filed an opinion concurring in the judgment, post, p. 449 U. S. 180. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 449 U. S. 182.

1986_85-920

JUSTICE BLACKMUN delivered the opinion of the Court.In INS v. Chadha, 462 U. S. 919 (1983), this Court held unconstitutional the congressional veto provision in § 244 (c)(2) of the Immigration and Nationality Act, 66 Stat. 216, as amended, 8 U.S.C. § 1254(c)(2), and found it severable from the remainder of that Act. Petitioners, 14 commercial airlines, in the present case contend that provisions protecting employees in the Airline Deregulation Act of 1978 (Act), 92 Stat. 1705 (codified at various sections of Title 49 U.S.C.App.), are ineffective because § 43(f)(3) of the Act, 92 Stat. 1752, 49 U.S.C.App. § 1552(f)(3), similarly subjects to a legislative veto implementing regulations issued by the Department of Labor (DOL). We granted certiorari, 475 U.S. 1044 (1986), to consider whether that legislative veto provision is severable from the remainder of the Act.IAfter 40 years of extensive regulation of the commercial airline industry by the Civil Aeronautics Board (CAB), Congress in 1978 decided to make"a major change and fundamental redirection as to the manner of regulation of interstate and overseas air transportation, so as to place primary emphasis on competition."S.Rep. No. 95-631, p. 52 (1978). Congress abandoned the industry-wide fare structure gradually, § 37(a), 49 U.S.C.App. § 1482(d); altered the procedures by which airlines could enter new markets, §§ 7 and 8, 49 U.S.C.App. §§ 1371(c) and (d); and phased out the regulatory power of the CAB, eliminating the agency altogether in 1984, § 40(a), 49 U.S.C.App. §§ 1551(a)(1)(A) and (a)(3).Congress sought to ensure that the benefits to the public flowing from this deregulation would not be "paid for" by airline employees who had relied on the heavily regulated nature of the industry in deciding to accept and to retain positions with commercial air carriers. In order to assist employees dislocated as a result of deregulation, Congress enacted an Employee Protection Program (EPP) as § 43 of Page 480 U. S. 681 the Act, 49 U.S.C.App. § 1552. The EPP provides for benefits, in the event of workforce reductions, to "protected employees," who are defined as employees who had been employed by a certified carrier for at least four years as of October 24, 1978, the date the Act became effective. §§ 43(d) and (h)(1).The first part of the EPP establishes a monthly compensation program. If an airline is forced to make severe workforce reductions or to enter bankruptcy as a result of deregulation, furloughed or terminated eligible "protected employees" are entitled to federally provided monthly assistance payments. §§ 43(a), (c), (e). [Footnote 1] The Secretary of Labor is directed to promulgate guidelines to be used in determining the amount of the monthly assistance payments. § 43(b)(1). The assistance, however, is expressly made "subject to such amounts as are provided in appropriation Acts." § 43(a)(1). No funds have ever been appropriated, and the assistance program has never become operative. It is not at issue here, except insofar as it is relevant to the intent of Congress in providing a legislative veto.The second portion of the EPP imposes on airlines certified under the prior regulatory system a "duty to hire" protected employees. If a protected employee is "furloughed or otherwise terminated," other than for cause, within 10 years of the enactment date of the statute, that employee has a "first right of hire, regardless of age, in his occupational specialty" with any carrier, covered by the section, who is "hiring additional employees." A hiring airline is permitted, however, Page 480 U. S. 682 first to recall any of its own previously furloughed employees. § 43(d)(1). The Act also places on the Secretary the responsibility to assist protected employees in finding other employment, and empowers the Secretary to require air carriers to file information necessary to provide this assistance. § 43(d)(2).The Secretary "may issue, amend, and repeal such rules and regulations as may be necessary for the administration of [the EPP]." § 43(f)(1). The Act provides that the rule containing the guidelines for monthly assistance payments and"any other rules or regulations which the Secretary deems necessary to carry out this section shall be promulgated within six months after October 24, 1978."§ 43(f)(2). Congress also included a "report and wait" provision, specifying that no final rule or regulation may be issued until 30 legislative days after it has been submitted to the Senate Committee on Commerce, Science, and Transportation and the House Committee on Public Works and Transportation. § 43(f)(3). Finally, the EPP contains the legislative veto provision which gave rise to this litigation. It declares that any final rule issued pursuant to § 43 shall be submitted to Congress, and shall become effective after 60 legislative days unless, during that 60-day period, either House of Congress adopts a resolution disapproving the rule. § 43(f)(3). [Footnote 2]IIPetitioners are certified carriers subject to the duty-to-hire provisions of the Act and to the regulations promulgated by the Secretary. [Footnote 3] They challenged the EPP in the United Page 480 U. S. 683 States District Court for the District of Columbia, contending that the legislative veto provision in § 43 is unconstitutional under Chadha, and that the entire program must be invalidated because the veto provision is nonseverable from the rest of the EPP. Respondent employee unions intervened on behalf of the Secretary. The District Court granted summary judgment for petitioners, striking down the entire EPP, but leaving the remainder of the Act intact. Alaska Airlines, Inc. v. Donovan, 694 F. Supp. 92 (1984). It held the legislative veto provision unconstitutional, and ruled that it could not be severed from the EPP. Respondents appealed the finding of nonseverability. The United States Court of Appeals for the District of Columbia Circuit reversed, holding that the legislative veto clause is severable from the remainder of the EPP program. [Footnote 4] Alaska Airlines, Inc. v. Donovan, 247 U.S.App.D.C. 132, 766 F.2d 1550 (1985). We agree, and affirm the judgment of the Court of Appeals. [Footnote 5] Page 480 U. S. 684III"[A] court should refrain from invalidating more of the statute than is necessary. . . .""[W]henever 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."Regan v. Time, Inc., 468 U. S. 641, 468 U. S. 652 (1984) (plurality opinion), quoting El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87, 215 U. S. 96 (1909). The standard for determining the severability of an unconstitutional provision is well established:"'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, 424 U.S. 1, 424 U. S. 108 (1976) (per curiam), quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U. S. 210, 286 U. S. 234 (1932). Accord, Regan v. Time, Inc., 468 U.S. at 468 U. S. 653; INS v. Chadha, 462 U.S. at 462 U. S. 931-932; United States v. Jackson, 390 U. S. 570, 390 U. S. 585 (1968).Congress could not have intended a constitutionally flawed provision to be severed from the remainder of the statute if the balance of the legislation is incapable of functioning independently. See, e.g., Hill v. Wallace, 259 U. S. 44, 259 U. S. 70-72 (1922) (Future Trading Act held nonseverable because valid and invalid provisions so intertwined that the Court would have to rewrite the law to allow it to stand). This is not a concern, however, when the invalid provision is a legislative veto, which, by its very nature, is separate from the operation Page 480 U. S. 685 of the substantive provisions of a statute. Indeed, when Congress enacted legislative veto provisions, it contemplated that activity under the legislation would take place so long as Congress refrained from exercising that power. [Footnote 6] The independent operation of a statute in the absence of a legislative veto provision thus could be said to indicate little about the intent of Congress regarding severability of the veto.The more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress. In considering this question in the context of a legislative veto, it is necessary to recognize that the absence of the veto necessarily alters the balance of powers between the Legislative and Executive Branches of the Federal Government. Thus, it is not only appropriate to evaluate the importance of the veto in the original legislative bargain, but also to consider the nature of the delegated authority that Congress made subject to a veto. Some delegations of power to the Executive or to an independent agency may have been so controversial or so broad that Congress would have been unwilling to make the delegation without a strong oversight mechanism. The final test, for legislative vetos, as well as for other provisions, is the traditional one: the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted. [Footnote 7] Page 480 U. S. 686The inquiry is eased when Congress has explicitly provided for severance by including a severability clause in the statute. This Court has held that the inclusion of such a clause creates a presumption that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision. See INS v. Chadha, 462 U.S. at 462 U. S. 932; Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. at 286 U. S. 235. In such a case, unless there is strong evidence that Congress intended otherwise, the objectionable provision can be excised from the remainder of the statute. In the absence of a severability clause, however, Congress' silence is just that -- silence -- and does not raise a presumption against severability. See Tilton v. Richardson, 403 U. S. 672, 403 U. S. 684 (1971) (plurality opinion); United States v. Jackson, 390 U.S. at 390 U. S. 585, n. 27.In this case, the parties disagree as to whether there is a severability clause applicable to the EPP. [Footnote 8] We need not resolve Page 480 U. S. 687 this question, for there is no need to resort to a presumption in order to find the legislative veto provision severable in this case. There is abundant indication of a clear congressional intent of severability both in the language and structure of the Act and in its legislative history.IVACongress' intent that the EPP's first-hire provisions should survive in the absence of the legislative veto provision is suggested strongly by the affirmative duty the statute places directly on air carriers. The first-hire portion of the EPP establishes in detail an obligation to hire protected employees that scarcely needs the adoption of regulations by the Secretary, and thus leaves little of substance to be subject to a veto. Section 43(d), 49 U.S.C.App. § 1552(d), designates the recipients of this "first right of hire," namely, employees defined by the Act as "protected," who are furloughed or terminated, other than for cause, during the first 10 years of deregulation. It also specifies the class of carriers that are obligated, and the extent of the obligation. Carriers previously regulated by the CAB have a duty to hire protected employees before they hire any other person, although they may first recall their own employees. The preference is limited to an individual's occupational specialty, and applies without regard to age. The language of these provisions is sufficiently unambiguous to notify carriers of their responsibilities and sufficiently detailed to require little further action on the part of the Secretary. [Footnote 9]Congress did direct the Secretary to take certain actions with regard to the EPP's first-hire provisions: he is to establish Page 480 U. S. 688 and periodically to publish a list of available jobs, to "make every effort" to assist protected employees in finding employment, and to encourage negotiations in rehiring and seniority. He also may require air carriers to file data necessary to fulfill these duties. §§ 43(d)(2) and (3). These obligations on the part of the Secretary are obviously designed merely to facilitate the obligation to hire imposed upon certain carriers, and their ancillary nature is further evidence that Congress delegated only limited substantive discretion to the Secretary. With this subsidiary role allotted to the Secretary, the veto provision could affect only the relatively insignificant actions he might take in connection with the duty-to-hire program. [Footnote 10] There is thus little reason to believe that Congress contemplated the possibility of vetoing any of these actions, and one can infer that Congress would have been satisfied with the duty-to-hire provisions even without preserving the opportunity to veto the DOL's regulations.Moreover, Congress did not link specifically the operation of the first-hire provisions to the issuance of regulations. While the Secretary is explicitly directed to promulgate, by rule, guidelines for the assistance payments authorized by Page 480 U. S. 689 the EPP, § 43(b)(1), [Footnote 11] there is no similar command with regard to the duty-to-hire provisions. The Act simply provides that the Secretary "may" issue such regulations as are necessary to the administration of the program. § 43(f)(1). A duty to hire that is not dependent upon the issuance of regulations is unlikely to be dependent upon an opportunity for Congress to veto those regulations.The regulations eventually promulgated by the DOL, 29 CFR § 220.01 et seq. (1986), support the conclusion that Congress itself elaborated most of the details necessary for the first-hire program. The regulations reiterate the statutory requirements, and provide a limited administrative appeal for ascertaining eligibility in the event of a dispute, § 220.26, but are otherwise silent as to a mechanism for enforcing the right of hire. The primary focus is on mechanical details -- notices to be sent, information to be published, and procedures to be followed. See, e.g., §§ 220.23, 220.25, and 220.27. Most importantly, in the regulations themselves, the DOL acknowledges the duty to hire imposed directly by the Act, for the regulations are made effective subject to the proviso that "nothing in these regulations shall preclude the exercise of statutory rights and duties between October 24, 1978 [the enactment date of the Act], and the effective date of these regulations." § 220.01(g).Not only do the first-hire provisions stand on their own, independent of any need for extensive regulations, but, should Congress object to the regulations issued, it retains a mechanism for the expression of its disapproval that reduces any disruption of congressional oversight caused by severance of the veto provision. The EPP's "report and wait" provision in the statute requires the Secretary to forward regulations to the Transportation Committees of both Chambers of Page 480 U. S. 690 Congress and to wait 30 days before issuing them as final regulations. § 43(f)(3). This interval gives Congress an opportunity to review the regulations and either to attempt to influence the agency's decision or to enact legislation preventing the regulations from taking effect. [Footnote 12]In arguing that the legislative veto is nonseverable, petitioners place great significance on the fact that the EPP is the only section of the Act to delegate authority to the DOL, and only rules issued pursuant to that section are subject to the veto. We find this emphasis misplaced. The EPP is the only aspect of the Act concerned with labor protection, and thus naturally is the only provision to involve the DOL. The fact that this is the only veto in the Act is unremarkable, given the nature of the rest of the statute. Although it did not remove completely the need for regulation, [Footnote 13] the Act is Page 480 U. S. 691 primarily a "deregulatory" statute, [Footnote 14] and, aside from the EPP, did not create any new programs requiring congressional oversight. Moreover, the absence of a veto clause in other provisions of the Act indicates nothing about whether Congress regarded the clause as essential to the duty-to-hire provisions of § 43.BThe legislative history of the EPP supports the conclusion that Congress would have enacted the duty-to-hire provisions even without a legislative veto provision by revealing that Congress regarded labor protection as an important feature of the Act, while it paid scant attention to the legislative veto provision. The bill passed by the Senate contained protections for employees that later became the heart of the labor provisions in the final Act -- monetary compensation for lost wages and relocation expenses, and a hiring preference within the industry. The sponsors of the primary deregulation bill, S. 689, introduced during the first session of the 95th Congress were optimistic that deregulation would lead to an increase in the number of jobs, [Footnote 15] and that bill did not contain employee protections. But in response to union testimony Page 480 U. S. 692 that the existing protections were inadequate [Footnote 16] and the support for labor-protection provisions expressed by administration witnesses, [Footnote 17] the compensation program and first-hire provisions were added as § 22 of S. 2493, the bill introduced in the second session. With the inclusion of the labor provisions, the bill was viewed as "strik[ing] the proper balance between the legitimate demands of industry, consumers, labor, and management." 124 Cong.Rec. 10654 (1978) (remarks of Sen. Percy).The Senate Committee Report expressed its reasons for providing protection for individual airline employees as follows:"[A]n individual employee will be able to do little to adjust to the new structure. Many airline employees have Page 480 U. S. 693 given most of their working lives to the air transportation industry, and have too much invested to leave it now. In many cases, a job shift, even within the industry, would be costly because of lost seniority. Older employees looking for a new job might encounter difficulties because of their age. Since employees will not be ab[l]e to adjust in the sense their employers can, the Committee believes that a reasonable program of transition assistance should be provided."". . . Because it is the public who will benefit from the regulatory reform provided for in this bill, the public should be willing to assume reasonably close to the full cost of such reform, including the cost of transition for any dislocated employees. The Committee believes that the Congress, on behalf of the American people, must insure that the benefits to the public which result from its decision to alter substantially the regulation of air transportation are not paid for by a minority -- the airline employees and their families who have relied on the present system."S.Rep. No. 95-631, p. 114 (1978).In contrast to this extensive discussion of employee protection, the Committee paid scant attention to legislative oversight. When it did show concern with retaining control over the form the program would take, it was in the context of the compensation program, not the duty to hire:"Eligible employees who lost their jobs would be entitled to monthly assistance payments for a maximum of 3 years or until they were reemployed, whichever occurred first. The amount of such payment would be equal to a percentage of former wages, as determined by regulations promulgated by the Department of Labor. These regulations will be subject to congressional review. Page 480 U. S. 694 The committee considered setting statutory percentage figures and maximum dollar amounts, but concluded that the Secretary of Labor, after consultation with the Secretary of Transportation, will be in a better position to determine the appropriate amounts. The committee intends that the percentages chosen will result in compensation payments that are less than the employees' after-tax income in order to preserve maximum incentives for employees to secure comparable work."Id. at 116-117 (emphasis added). [Footnote 18]In introducing S. 2493 on the floor, Senator Cannon discussed the EPP, but did not mention the legislative veto power or make note of any need for congressional oversight. 124 Cong.Rec. 10647-10649 (1978). The summary of the bill printed in the record similarly omitted any indication that the legislation contained a veto. Id. at 10649. The employment provisions were discussed extensively during the floor debate on airline deregulation, and support for the duty-to-hire requirement was repeatedly voiced. [Footnote 19] Several amendments Page 480 U. S. 695 modifying the monthly assistance program, both to restrict and to liberalize payments, were offered, [Footnote 20] but there was no attempt to alter the duty-to-hire program. The most dramatic endorsement of the EPP as a whole came in response to an amendment offered by Senator Hatch that would have eliminated the EPP completely. The Senate resoundingly rejected the amendment by the lopsided vote of 85-7. Id. at 10679, 10682. In contrast to this emphasis on the substantive aspects of the EPP, neither supporters nor opponents of the bill ever mentioned the legislative veto provision on the floor of the Senate.The House bill, H. R. 12611, which lacked a legislative veto provision, contained even more encompassing protections for displaced employees. In its § 32, it provided protections for airline workers identical to those in the rail industry, and stipulated that no new authority granted by the Act could be exercised by a carrier unless the Secretary certified that employees would be protected. [Footnote 21] The House adopted this bill without apparent controversy over the labor provisions and, despite the broad delegation of power to the Secretary, without any mention of congressional oversight. 124 Cong.Rec. 30661-30708 (1978). Page 480 U. S. 696The bill that emerged from the Conference Committee contained a version of the EPP "basically the same as the Senate bill." H.R.Conf.Rep. No. 95-1779, p. 105 (1978) (listing the differences). The debate on the final bill again illustrates the relative unimportance of the legislative veto provision in this legislation. The only discussion of the EPP reflected wholesale approval of the program, with many Members stressing their support for the provisions, [Footnote 22] or regrets that the EPP provisions were not even stronger. [Footnote 23] One comment alone -- in fact, the only such comment made during the entire deliberation on the Act -- concerned the legislative veto. [Footnote 24] This was an endorsement of the provision by Representative Levitas, which is best understood as an expression of his general support for legislative veto provisions, rather than a judgment that oversight was particularly important to the EPP. [Footnote 25] Page 480 U. S. 697VThe language and structure of the EPP and its legislative history provide an uncontradicted view of congressional intent with regard to severance of the legislative veto provisions from the duty-to-hire program. This evidence leads to the conclusion that any concerns about the operation of the EPP related principally to the financial assistance program. Even this concern was minimal. The emphasis during deliberations on the Act was placed overwhelmingly on the substantive provisions of the statute, with scant attention paid to any need for congressional oversight. In the almost total absence of any contrary refrain, we cannot conclude that Congress would have failed to enact the Airline Deregulation Act, including the EPP's first-hire program, if the legislative veto had not been included. Accordingly, we affirm the judgment of the Court of Appeals.It is so ordered

U.S. Supreme CourtAlaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987)Alaska Airlines, Inc. v. BrockNo. 85-920Argued December 1, 1986Decided March 25, 1987480 U.S. 678SyllabusTo assist airline employees dislocated as a result of the deregulation of commercial air carriers pursuant to the Airline Deregulation Act of 1978 (Act), Congress enacted an Employee Protection Program (EPP) as § 43 of the Act. The EPP imposes on covered airlines the "duty to hire" dislocated protected employees, who have a "first right of hire" in their occupational specialties with any covered airline that is hiring additional employees. Section 43 authorizes the Secretary of Labor to issue regulations for the administration of the EPP, but § 43(f)(3) contains a legislative veto provision stating that any final regulation shall become effective after 60 legislative days following its submission to Congress, unless, during that period, either House of Congress adopts a resolution disapproving it. Petitioners, airlines subject to the Act's duty-to-hire provisions, filed suit in Federal District Court, which granted summary judgment for them, holding § 43(f)(3)'s legislative veto provision unconstitutional under INS v. Chadha, 462 U. S. 919, and striking down the entire EPP on the ground that the veto provision was nonseverable. On appeal from the finding of nonseverability, the Court of Appeals reversed.Held: Section 43(f)(3)'s legislative veto provision is severable from the remainder of the EPP program. Pp. 480 U. S. 684-697.(a) The standard for determining the severability of an unconstitutional provision in a federal statute is that, unless it is evident that Congress 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. The relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with Congress' intent. In considering this question in the context of a legislative veto, it must be recognized that the absence of the veto necessarily alters the balance of powers between the Legislative and Executive Branches of the Federal Government. Thus, it is not only appropriate to evaluate the importance of the veto in the original legislative bargain, but also to consider the nature of the delegated authority that Congress made subject to a veto. Pp. 480 U. S. 684-687. Page 480 U. S. 679(b) Severability of the legislative veto provision here is supported by the Act's language and structure. Congress' intent that the EPP's first-hire provisions should survive in the absence of the legislative veto provision is suggested strongly by the detailed affirmative duty the statute places directly on air carriers. The first-hire provisions scarcely need the adoption of regulations by the Secretary, and thus leave little of substance to be subject to a veto. The ancillary nature of the Secretary's obligations to implement the first-hire provisions is further evidence that Congress delegated only limited substantive discretion to the Secretary. Pp. 480 U. S. 678-691.(c) The legislative history of the EPP supports the conclusion that Congress would have enacted the duty-to-hire provisions even without a legislative veto provision by revealing that Congress regarded labor protection as an important feature of the Act, while it paid scant attention to the legislative veto provision. The emphasis during deliberations on the Act was placed overwhelmingly on the substantive provisions of the statute. Pp. 480 U. S. 691-696.247 U.S.App.D.C. 132, 766 F.2d 1550, affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court. Page 480 U. S. 680

1972_71-485

MR. JUSTICE DOUGLAS delivered the opinion of the Court.Respondents filed in the Patent Office an application for an invention which was described as being related "to the processing of data by program and more particularly to the programmed conversion of numerical information" in general purpose digital computers. They claimed a method for converting binary-coded decimal (BCD) numerals into pure binary numerals. The claims were not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use. They purported to cover any use of the claimed method in a general purpose digital computer of any type. Claims 8 and 13 [Footnote 1] were rejected by the Patent Office but sustained by the Court of Customs and Patent Appeals, C.C.P.A. (Pat.) , 441 F.2d 682. The case is here on a petition for a writ of certiorari. 405 U.S. 915.The question is whether the method described and claimed is a "process" within the meaning of the Patent Act. [Footnote 2] Page 409 U. S. 65A digital computer, as distinguished from an analog computer, operates on data expressed in digits, solving a problem by doing arithmetic as a person would do it by head and hand. [Footnote 3] Some of the digits are stored as components of the computer. Others are introduced into the computer in a form which it is designed to recognize. The computer operates then upon both new and previously stored data. The general purpose computer is designed to perform operations under many different programs.The representation of numbers may be in the form of a time series of electrical impulses, magnetized spots on the surface of tapes, drums, or discs, charged spots on cathode-ray tube screens, the presence or absence of punched holes on paper cards, or other devices. The method or program is a sequence of coded instructions for a digital computer.The patent sought is on a method of programming a general purpose digital computer to convert signals from binary-coded decimal form into pure binary form. A procedure for solving a given type of mathematical problem is known as an "algorithm." The procedures set forth in the present claims are of that kind; that is to say, they are a generalized formulation for programs to solve mathematical problems of converting one form of numerical representation to another. From the generic formulation, programs may be developed as specific applications. Page 409 U. S. 66The decimal system uses as digits the 10 symbols 0, 1, 2, 3, 4, 5, 6, 7, 8, and 9. The value represented by any digit depends, as it does in any positional system of notation, both on its individual value and on its relative position in the numeral. Decimal numerals are written by placing digits in the appropriate positions or columns of the numerical sequence, i.e., "unit" (10^0), "tens" (10^1), "hundreds" (10^2), "thousands" (10^3), etc. Accordingly, the numeral 1492 signifies (1 x 10^3)+(4 x 10^2)+(9 x 10^1)+(2 x 10^0).The pure binary system of positional notation uses two symbols as digits -- 0 and 1, placed in a numerical sequence with values based on consecutively ascending powers of 2. In pure binary notation, what would be the tens position is the twos position; what would be hundreds position is the fours position; what would be the thousands position is the eights. Any decimal number from 0 to 10 can be represented in the binary system with four digits or positions as indicated in the following table.Shown as the sum of powers of 22^3 2^2 2^1 2^0Decimal (8) (4) (2) (1) Pure Binary0 = 0 0 0 0 = 00001 = 0 0 0 2^0 = 00012 = 0 0 2^1 0 = 00103 = 0 0 2^1 2^0 = 00114 = 0 2^2 0 0 = 01005 = 0 2^2 0 2^0 = 01016 = 0 2^2 2^1 0 = 01107 = 0 2^2 2^1 2^0 = 01118 = 2^3 0 0 0 = 10009 = 2^3 0 0 2^0 = 100110 = 2^3 0 2^1 0 = 1010The BCD system using decimal numerals replaces the character for each component decimal digit in the decimal numeral with the corresponding four-digit binary Page 409 U. S. 67 numeral, shown in the right-hand column of the table. Thus, decimal 53 is represented as 0101 0011 in BCD, because decimal 5 is equal to binary 0101 and decimal 3 is equivalent to binary 0011. In pure binary notation, however, decimal 53 equals binary 110101. The conversion of BCD numerals to pure binary numerals can be done mentally through use of the foregoing table. The method sought to be patented varies the ordinary arithmetic steps a human would use by changing the order of the steps, changing the symbolism for writing the multiplier used in some steps, and by taking subtotals after each successive operation. The mathematical procedures can be carried out in existing computers long in use, no new machinery being necessary. And, as noted, they can also be performed without a computer.The Court stated in Mackay Co. v. Radio Corp., 306 U. S. 86, 306 U. S. 94, that,"[w]hile a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be."That statement followed the longstanding rule that "[a]n idea, of itself, is not patentable." Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 87 U. S. 507."A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right."Le Roy v. Tatham, 14 How. 156, 55 U. S. 175. Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work. As we stated in Funk Bros. Seed Co. v. Kalo Co., 333 U. S. 127, 333 U. S. 130,"He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."We dealt there with a "product" claim, while the Page 409 U. S. 68 present case deals with a "process" claim. But we think the same principle applies.Here the "process" claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion. The end use may (1) vary from the operation of a train to verification of drivers' licenses to researching the law books for precedents and (2) be performed through any existing machinery or future-devised machinery or without any apparatus.In O'Reilly v. Morse, 15 How. 62, Morse was allowed a patent for a process of using electromagnetism to produce distinguishable signs for telegraphy. Id. at 56 U. S. 111. But the Court denied the eighth claim in which Morse claimed the use of "electro magnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances." Id. at 56 U. S. 112. The Court, in disallowing that claim, said,"If this claim can be maintained, it matters not by what process or machinery the result is accomplished. For aught that we now know, some future inventor, in the onward march of science, may discover a mode of writing or printing at a distance by means of the electric or galvanic current, without using any part of the process or combination set forth in the plaintiff's specification. His invention may be less complicated -- less liable to get out of order -- less expensive in construction, and in its operation. But yet, if it is covered by this patent, the inventor could not use it, nor the public have the benefit of it, without the permission of this patentee."Id. at 56 U. S. 113.In The Telephone Cases, 126 U. S. 1, 126 U. S. 534, the Court explained the Morse case as follows."The effect of that decision was, therefore, that the use of magnetism as a motive power, without regard to the particular process with which it was connected in the patent, could not be claimed, but that its use in that connection could."Bell's invention was the use of electric current to transmit Page 409 U. S. 69 vocal or other sounds. The claim was not"for the use of a current of electricity in its natural state as it comes from the battery, but for putting a continuous current in a closed circuit into a certain specified condition suited to the transmission of vocal and other sounds, and using it in that condition for that purpose."Ibid. The claim, in other words, was not "one for the use of electricity distinct from the particular process with which it is connected in his patent." Id. at 126 U. S. 535. The patent was for that use of electricity "both for the magneto and variable resistance methods." Id. at 126 U. S. 538. Bell's claim, in other words, was not one for all telephonic use of electricity.In Corning v. Burden, 15 How. 252, 56 U. S. 267-268, the Court said,"One may discover a new and useful improvement in the process of tanning, dyeing, etc., irrespective of any particular form of machinery or mechanical device."The examples given were the "arts of tanning, dyeing, making waterproof cloth, vulcanizing India rubber, smelting ores." Id. at 56 U. S. 267. Those are instances, however, where the use of chemical substances or physical acts, such as temperature control, changes articles or materials. The chemical process or the physical acts which transform the raw material are, however, sufficiently definite to confine the patent monopoly within rather definite bounds.Cochrane v. Deener, 94 U. S. 780, involved a process for manufacturing flour so as to improve its quality. The process first separated the superfine flour and then removed impurities from the middlings by blasts of air, reground the middlings, and then combined the product with the superfine. Id. at 94 U. S. 785. The claim was not limited to any special arrangement of machinery. Ibid. The Court said,"That a process may be patentable, irrespective of the particular form of the instrumentalities used, Page 409 U. S. 70 cannot be disputed. If one of the steps of a process be that a certain substance is to be reduced to a powder, it may not be at all material what instrument or machinery is used to effect that object, whether a hammer, a pestle and mortar, or a mill. Either may be pointed out; but if the patent is not confined to that particular tool or machine, the use of the others would be an infringement, the general process being the same. A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing."Id. at 94 U. S. 787-788.Transformation and reduction of an article "to a different state or thing" is the clue to the patentability of a process claim that does not include particular machines. So it is that a patent in the process of "manufacturing fat acids and glycerine from fatty bodies by the action of water at a high temperature and pressure" was sustained in Tilghman v. Proctor, 102 U. S. 707, 102 U. S. 721. The Court said,"The chemical principle or scientific fact upon which it is founded is that the elements of neutral fat require to be severally united with an atomic equivalent of water in order to separate from each other and become free. This chemical fact was not discovered by Tilghman. He only claims to have invented a particular mode of bringing about the desired chemical union between the fatty elements and water."Id. at 102 U. S. 729.Expanded Metal Co. v. Bradford, 214 U. S. 366, sustained a patent on a "process" for expanding metal. A process "involving mechanical operations, and producing a new and useful result," id. at 214 U. S. 385-386, was held to be a patentable process, process patents not being limited to chemical action.Smith v. Snow, 294 U. S. 1, and Taxham v. Smith, 294 U. S. 20, involved a process for setting eggs in staged incubation Page 409 U. S. 71 and applying mechanically circulated currents of air to the eggs. The Court, in sustaining the function performed (the hatching of eggs) and the means or process by which that is done, said:"By the use of materials in a particular manner, he secured the performance of the function by a means which had never occurred in nature, and had not been anticipated by the prior art; this is a patentable method or process. . . . A method which may be patented irrespective of the particular form of the mechanism which may be availed of for carrying it into operation is not to be rejected as 'functional' merely because the specifications show a machine capable of using it."294 U.S. at 294 U. S. 22.It is argued that a process patent must either be tied to a particular machine or apparatus or must operate to change articles or materials to a "different state or thing." We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedents. It is said that the decision precludes a patent for any program servicing a computer. We do not so hold. It is said that we have before us a program for a digital computer but extend our holding to programs for analog computers. We have, however, made clear from the start that we deal with a program only for digital computers. It is said we freeze process patents to old technologies, leaving no room for the revelations of the new, onrushing technology. Such is not our purpose. What we come down to, in a nutshell, is the following.It is conceded that one may not patent an idea. But, in practical effect, that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which Page 409 U. S. 72 means that, if the judgment below is affirmed, the patent would wholly preempt the mathematical formula and, in practical effect, would be a patent of the algorithm itself.It may be that the patent laws should be extended to cover these programs, a policy matter to which we are not competent to speak. The President's Commission on the Patent System [Footnote 4] rejected the proposal that these programs be patentable: [Footnote 5]"Uncertainty now exists as to whether the statute permits a valid patent to be granted on programs. Direct attempts to patent programs have been rejected on the ground of nonstatutory subject matter. Indirect attempts to obtain patents and avoid the rejection, by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further, and should not be permitted.""The Patent Office now cannot examine applications for programs because of a lack of a classification technique and the requisite search files. Even if these were available, reliable searches would not be feasible or economic because of the tremendous volume of prior art being generated. Without this search, the patenting of programs would be tantamount to mere registration, and the presumption of validity would be all but nonexistent.""It is noted that the creation of programs has undergone substantial and satisfactory growth in the absence of patent protection, and that copyright protection for programs is presently available. "Page 409 U. S. 73If these programs are to be patentable, [Footnote 6] considerable problems are raised which only committees of Congress can manage, for broad powers of investigation are needed, including hearings which canvass the wide variety of views which those operating in this field entertain. The technological problems tendered in the many briefs before us [Footnote 7] indicate to us that considered action by the Congress is needed.Reversed

U.S. Supreme CourtGottschalk v. Benson, 409 U.S. 63 (1972)Gottschalk v. BensonNo. 71-485Argued October 16, 1972Decided November 20, 1972409 U.S. 63SyllabusRespondents' method for converting numerical information from binary-coded decimal numbers into pure binary numbers, for use in programming conventional general purpose digital computers, is merely a series of mathematical calculations or mental steps, and does not constitute a patentable "process" within the meaning of the Patent Act, 35 U.S.C. § 100(b). Pp. 409 U. S. 64-73.___ C.C.P.A. (Pat.) ___, 441 F.2d 682, reversed.DOUGLAS, J., delivered the opinion of the Court, in which all members joined except STEWART, BLACKMUN, and POWELL, JJ., who took no part in the consideration or decision of the case. Page 409 U. S. 64

1956_53

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.Petitioner is under sentence of death for the crime of burglary with intent to commit rape. He seeks reversal of the judgment through a writ of certiorari to the Supreme Court of Alabama, which sustained the conviction. 263 Ala. 89, 81 So. 2d 303. Petitioner raised three issues in support of his position that he had been denied due process of law. He alleged: Page 352 U. S. 1921. Admission into evidence of two confessions extracted from him under circumstances demonstrating that the statements were coerced or involuntary.2. Denial by the trial judge of petitioner's request to testify about the manner in which the confessions were obtained without subjecting himself to unlimited cross-examination as to the facts of the crime charged.3. Selection of the grand jury which indicted him by a method that systematically discriminated against members of his race.We granted certiorari to determine whether the requirements of due process under the Fourteenth Amendment had been satisfied in these aspects of petitioner's conviction. 350 U.S. 993. The judgment must be reversed because of the admission of the confessions. Therefore, it is unnecessary at this time to decide or discuss the other two issues raised by petitioner.The facts essential to the present decision are as follows:During the early months of 1953, a number of housebreakings, some involving rape or attempted rape, were committed in the City of Selma, Alabama. The present trial concerned one of these crimes. [Footnote 1] On the night of April 24, 1953, an intruder broke into the apartment of the daughter of the city's mayor. She awoke to find a Negro man sitting on her with a knife at her throat. A struggle ensued which carried the woman and her assailant through the bedroom, hall, and living room, where she finally was able to seize the knife, at which point he fled. These rooms were all lighted. The victim testified Page 352 U. S. 193 that the attacker "had a towel draped over his head" throughout the incident; she did not identify petitioner as the attacker in her testimony at the trial. However, two other women testified to similar housebreakings (one of which resulted in rape), and they each identified petitioner as the burglar. This testimony was admitted at the present trial "solely on the question of intent and identity of defendant and his motive on the occasion then on trial." 263 Ala. at 99, 81 So. 2d at 313. This, with the challenged confessions, was substantially all the evidence concerning the crime at the trial.About midnight on May 16, 1953, petitioner was apprehended in an alley in a white neighborhood in Selma by private persons, who called the police. The officers jailed him "on an open charge of investigation." The next day, a Sunday, the questioning that led to the challenged confessions began. It is, of course, highly material to the question before this Court to ascertain petitioner's character and background. He is a Negro, 27 years old in 1953, who started school at age eight and left at 16 while still in the third grade. There was testimony by three psychiatrists at the trial, in connection with a pleaded defense of insanity, to the effect that petitioner is a schizophrenic, and highly suggestible. His mother testified that he had always been "thick-headed." Petitioner worked in a gas station in his home town of Marion, some 30 miles from Selma. So far as appears, his only prior involvement with the law was a conviction for burglary of a store in November, 1949; he was released on parole in January, 1951.The questioning of petitioner was conducted principally by Captain Baker of the Selma police. His testimony that he repeatedly advised petitioner "that he was entitled to counsel and his various rights" must be viewed in the light of the facts concerning petitioner's mentality and experience just outlined. Page 352 U. S. 194The interrogation began on Sunday, May 17, with a two-hour session in the morning in Captain Baker's office. That afternoon, petitioner was questioned for two and a half or three hours, during part of which time he was driven around the city to some of the locations of the unsolved burglaries. During this ride, petitioner also talked to the sheriff of his home county, who had been called to Selma at petitioner's request, according to Captain Baker's testimony.On Monday, petitioner talked with his employer. Captain Baker continued questioning for two hours in the morning. He testified that a warrant was served on petitioner in jail, but that petitioner did not request a preliminary hearing. In fact, he was not taken before any judicial officer prior to the confessions. [Footnote 2] That afternoon, petitioner was driven to Kilby State Prison, which is located in another county, about 55 miles from Selma and some 80 miles from petitioner's home in Marion. The testimony of the responsible officers was that this Page 352 U. S. 195 removal was done for petitioner's protection, although no specific threat against him had been made.At Kilby Prison, petitioner was kept in the "segregation unit," out of contact with other prisoners. He saw only the jailers and Selma officers who drove over to question him. Petitioner was interrogated in an office in the prison. On Monday, there was questioning there for "several hours" in the afternoon and "a little while" after supper. The next interrogation was on Wednesday. It lasted "several hours" in the afternoon and into the evening. The following day, petitioner was questioned for two hours in the afternoon and about an hour and a half in the evening. That day, his father came to the prison to see him, but was refused admittance.On Thursday evening, the first confession occurred. It was introduced at the trial through a tape recording. The confession consists of an interrogation by Captain Baker. Petitioner responded chiefly in "yes or no" answers to his questions, some of which were quite leading or suggestive.Petitioner was questioned again for three hours on Saturday, May 23. That day, a lawyer who came to the prison to see him was turned away. On Sunday, petitioner's father was allowed to visit his son. This was the only contact petitioner had during the entire period in question with family or friend, or, for that matter, with anyone he knew, except the talks at the beginning of the week with the sheriff of his own county, in the presence of Selma officers, and with his employer.In the second week of his incarceration, on Tuesday afternoon, petitioner was questioned for about two and a half hours. At this time, the second confession was made. Like the other, it consists of responses to questions. The second confession was taken down by a prison stenographer and signed by petitioner after it was read to him. Page 352 U. S. 196This outline of the facts surrounding the taking of the confessions comes entirely from the testimony of the State witnesses, who, under the circumstances, were the only ones who could testify at the trial on this subject other than the prisoner himself. He did not testify, because of the trial judge's ruling that he would be subject to unlimited cross-examination concerning the offense charged against him. [Footnote 3] Standing alone, the State's evidence establishes that the confessions in the present case were not voluntary within the meaning of the decisions of this Court.Here, the prisoner was an uneducated Negro, certainly of low mentality, if not mentally ill. He was first arrested by civilians, lodged in jail, and then removed to Page 352 U. S. 197 a state prison far from his home. We do not criticize the decision to remove the prisoner before any possibility of violence might mature, but petitioner's location and the conditions of his incarceration are facts to be weighed in connection with the issue before us. For a period of a week, he was kept in isolation, except for sessions of questioning. He saw no friend or relative. Both his father and a lawyer were barred in attempts to see him. The protections to be afforded to a prisoner upon preliminary hearing were denied him, contrary to the law of Alabama. [Footnote 4] He was questioned for several hours at a time over the course of five days preceding the first confession, and again interrogated at length before the written confession was secured.There is no evidence of physical brutality, and particular elements that were present in other cases in which this Court ruled that a confession was coerced do not appear here. On the other hand, some of the elements in this case were not present in all of the prior cases. The objective facts in the present case are very much like those that were before the Court in Turner v. Pennsylvania, 338 U. S. 62, while the present petitioner was a weaker and more susceptible subject than the record in that case reveals Turner to have been. And cf. Johnson v. Pennsylvania, 340 U.S. 881. The totality of the circumstances that preceded the confessions in this case goes beyond the allowable limits. The use of the confessions secured in this setting was a denial of due process.Neither Stein v. New York, 346 U. S. 156, nor any of the other cases relied on by respondent stands in the way of this conclusion. In Stein, the Court said:"The limits in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. what would Page 352 U. S. 198 be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal."346 U.S. at 346 U. S. 185. That is the same standard that has been utilized in each case, according to its total facts. Cf. e.g., Watts v. Indiana, 338 U. S. 49, 338 U. S. 53; Lyons v. Oklahoma, 322 U. S. 596, 322 U. S. 602-605. We hold that the circumstances of pressure applied against the power of resistance of this petitioner, who cannot be deemed other than weak of will or mind, deprived him of due process of law. So viewed, the judgment of conviction in this case cannot stand.The judgment is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtFikes v. Alabama, 352 U.S. 191 (1957)Fikes v. AlabamaNo. 53Argued December 6, 1956Decided January 14, 1957352 U.S. 191SyllabusIn an Alabama state court, petitioner, an uneducated Negro of low mentality or mentally ill, was convicted of burglary with intent to commit rape and was sentenced to death. Two confessions admitted in evidence at his trial were obtained while he was held in a state prison far from his home, without the preliminary hearing required by Alabama law and without advice of counsel, friends or family. The first confession was obtained after five days of intermittent questioning by police officers for several hours at a time and the second five days later after more such questioning.Held: the circumstances of pressure applied against the power of resistance of this petitioner, who was weak of will or mind, deprived him of due process of law contrary to the Fourteenth Amendment. Pp. 352 U. S. 191-198.263 Ala. 89, 81 So. 2d 303, reversed and remanded.

1977_77-369

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondents are three black bricklayers who sought employment with petitioner Furnco Construction Corp. Two of the three were never offered employment. The third was employed only long after he initially applied. Upon adverse findings entered after a bench trial, the District Court for the Northern District of Illinois held that respondents had not proved a claim under either the "disparate treatment" theory of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), or the "disparate impact" theory of Griggs v. Duke Power Co., 401 U. S. 424 (1971). The Court of Appeals for the Seventh Circuit, concluding that, under McDonnell Douglas, respondents had made out a prima facie case which had not been effectively rebutted, reversed the judgment of the District Court. 551 F.2d 1085 (1977). We granted certiorari to consider important questions raised by this case regarding the exact scope of the prima facie case under McDonnell Douglas and the nature of the evidence necessary to rebut such a case. 434 U.S. 996 (1977). Having concluded that the Court of Appeals erred in its treatment of the latter question, we reverse and remand to that court for further proceedings consistent with this opinion.IA few facts in this case are not in serious dispute. Petitioner Furnco, an employer within the meaning of §§ 701(b) and (h) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e(b) and (h) (1970 ed., Supp. V), specializes in refractory installation in steel mills, and, more particularly, the rehabilitation or relining of blast furnaces with what is called in the trade "firebrick." Furnco does not, however, maintain a permanent force of bricklayers. Rather, it hires a superintendent for a specific job, and then delegates to him Page 438 U. S. 570 the task of securing a competent workforce. In August, 1971, Furnco contracted with Interlake, Inc., to reline one of its blast furnaces. Joseph Dacies, who had been a job superintendent for Furnco since 1965, was placed in charge of the job and given the attendant hiring responsibilities. He did not accept applications at the jobsite, but instead hired only persons whom he knew to be experienced and competent in this type of work or persons who had been recommended to him as similarly skilled. He hired his first four bricklayers, all of whom were white, on two successive days in August, the 26th and 27th, and two in September, the 7th and 8th. On September 9, he hired the first black bricklayer. By September 13, he had hired 8 more bricklayers, 1 of whom was black; by September 17, 7 more had been employed, another of whom was black; and by September 23, 17 more were on the payroll, again with 1 black included in that number. [Footnote 1] From October 12 to 18, he hired 6 bricklayers, all of whom were black, including respondent Smith, who had worked for Dacies previously and had applied at the jobsite somewhat earlier. Respondents Samuels and Nemhard were not hired, though they were fully qualified and had also attempted to secure employment by appearing at the jobsite gate. Out of the total of 1,819 man-days worked on the Interlake job, 242, or 13.3%, were worked by black bricklayers.Many of the remaining facts found by the District Court and the inferences to be drawn therefrom are in some dispute between the parties, but none was expressly found by the Court of Appeals to be clearly erroneous. The District Court elaborated at some length as to the "critical" necessity of insuring that only experienced and highly qualified firebricklayers Page 438 U. S. 571 were employed. Improper or untimely work would result in substantial losses both to Interlake, which was forced to shut down its furnace and lay off employees during the relining job, and to Furnco, which was paid for this work at a fixed price and for a fixed time period. In addition, not only might shoddy work slow this work process down, but it also might necessitate costly future maintenance work, with its attendant loss of production and employee layoffs; diminish Furnco's reputation and ability to secure similar work in the future; and perhaps even create serious safety hazards, leading to explosions and the like. App. to Pet. for Cert. A13-A15. These considerations justified Furnco's refusal to engage in on-the-job training or to hire at the gate, a hiring process which would not provide an adequate method of matching qualified applications to job requirements and assuring that the applicants are sufficiently skilled and capable. Id. at A18-A19. Furthermore, there was no evidence that these policies and practices were a pretext to exclude black bricklayers, or were otherwise illegitimate or had a disproportionate impact or effect on black bricklayers. Id. at A17-A18. From late 1969 through late 1973, 5.7% of the bricklayers in the relevant labor force were minority group members, see 41 CFR § 60-11 et seq. (1977), [Footnote 2] while, as mentioned before, Page 438 U. S. 572 13.3% of the man-days on Furnco's Interlake job were worked by black bricklayers.Because of the above considerations and following the established practice in the industry, most of the firebricklayers hired by Dacies were persons known by him to be experienced and competent in this type of work. The others were hired after being recommended as skilled in this type of work by his general foreman, an employee (a black), another Furnco superintendent in the area, and Furnco's General Manager John Wright. Wright had not only instructed Dacies to employ, as far as possible, at least 16% black bricklayers, a policy due to Furnco's self-imposed affirmative action plan to insure that black bricklayers were employed by Furnco in Cook County in numbers substantially in excess of their percentage in the local union, [Footnote 3] but he had also recommended, in an effort to show good faith, that Dacies hire several specific bricklayers, who had previously filed a discrimination suit against Furnco, negotiations for the settlement of which had only recently broken down, see n 3, supra.From these factual findings, the District Court concluded that respondents had failed to make out a Title VII claim under the doctrine of Griggs v. Duke Power Co., 401 U. S. 424 (1971). Furnco's policy of not hiring at the gate was racially neutral on its face, and there was no showing that it had a disproportionate impact or effect. App. to Pet. for Cert. A20-A21. It also held that respondents had failed to Page 438 U. S. 573 prove a case of discrimination under McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). App to Pet. for Cert. A21. It is not entirely clear whether the court thought respondents had failed to make out a prima facie case of discrimination under McDonnell Douglas, see App. to Pet. for Cert. A20-A21, but the court left no doubt that it thought Furnco's hiring practices and policies were justified as a "business necessity" in that they were required for the safe and efficient operation of Furnco's business, and were "not used as a pretext to exclude Negroes." Thus, even if a prima facie case had been made out, it had been effectively rebutted. Id. at A21."Not only have Plaintiffs entirely failed to establish that Furnco's employment practices on the Interlake job discriminated against them on the basis of race or constituted retaliatory conduct, but Defendant has proven what it was not required to. By its cross-examination and direct evidence, Furnco has proven beyond all reasonable doubt that it did not engage in either racial discrimination or retaliatory conduct in its employment practices in regard to bricklayers on the Interlake job. [Footnote 4]"Id. at A22.The Court of Appeals reversed, holding that respondents had made out a prima facie case under McDonnell Douglas, supra, at 411 U. S. 802, which Furnco had not effectively rebutted. Because of the "historical inequality of treatment of black workers" [Footnote 5] and the fact that the record failed to reveal that Page 438 U. S. 574 any white persons had applied at the gate, the Court of Appeals rejected Furnco's argument that discrimination had not been shown because a white appearing at the jobsite would have fared no better than respondents. That court also disagreed with Furnco's contention, which the District Court had adopted, that"the importance of selecting people whose capability had been demonstrated to defendant's brick superintendent is a 'legitimate, nondiscriminatory reason' for defendant's refusal to consider plaintiffs."551 F.2d at 1088. Instead, the appellate court proceeded to devise what it thought would be an appropriate hiring procedure for Furnco, saying that"[i]t seems to us that there is a reasonable middle ground between immediate hiring decisions on the spot and seeking out employees from among those known to the superintendent."Ibid. This middle course, according to the Court of Appeals, was to take written applications, with inquiry as to qualifications and experience, and then check, evaluate, and compare those claims against the qualifications and experience of other bricklayers with whom the superintendent was already acquainted. We granted certiorari to consider whether the Court of Appeals had gone too far in substituting its own judgment as to proper hiring practices in the case of an employer which claimed the practices it had chosen did not violate Title VII. [Footnote 6] Page 438 U. S. 575IIAWe agree with the Court of Appeals that the proper approach was the analysis contained in McDonnell Douglas, supra. [Footnote 7] We also think the Court of Appeals was justified in concluding that, as a matter of law, respondents made out a prima facie case of discrimination under McDonnell Douglas. In that case, we held that a plaintiff could make out a prima facie claim by showing"(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications."411 U.S. at 802 (footnote omitted). This, of course, was not intended to be an inflexible rule, as the Court went on to note that"[t]he facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from respondent is not necessarily applicable Page 438 U. S. 576 in every respect to differing factual situations."Id. at 411 U. S. 802 n. 13. See Teamsters v. United States, 431 U. S. 324, 431 U. S. 358 (1977). But McDonnell Douglas did make clear that a Title VII plaintiff carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discriminatory criterion illegal under the Act." 431 U.S. at 431 U. S. 358. See also id. at 431 U. S. 335 n. 15. And here respondents carried that initial burden by proving they were members of a racial minority; they did everything within their power to apply for employment; Furnco has conceded that they were qualified in every respect for the jobs which were about to be open; [Footnote 8] they were not offered employment, although Smith later was; and the employer continued to seek persons of similar qualifications.We think the Court of Appeals went awry, however, in apparently equating a prima facie showing under McDonnell Douglas with an ultimate finding of fact as to discriminatory refusal to hire under Title VII; the two are quite different, and that difference has a direct bearing on the proper resolution of this case. The Court of Appeals, as we read its opinion, thought Furnco's hiring procedures not only must be reasonably related to the achievement of some legitimate purpose, but also must be the method which allows the employer to consider the qualifications of the largest number of minority applicants. We think the imposition of that second Page 438 U. S. 577 requirement simply finds no support either in the nature of the prima facie case or the purpose of Title VII.The central focus of the inquiry in a case such as this is always whether the employer is treating "some people less favorably than others because of their race, color, religion, sex, or national origin." Teamsters v United States, supra, at 431 U. S. 335 n. 15. The method suggested in McDonnell Douglas for pursuing this inquiry, however, was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. See Teamsters v. United States, supra, at 431 U. S. 358 n. 44. And we are willing to presume this largely because we know from our experience that, more often than not, people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.When the prima facie case is understood in the light of the opinion in McDonnell Douglas, it is apparent that the burden which shifts to the employer is merely that of proving that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race. To prove that, he need not prove that he pursued the course which would both enable him to achieve his own business goal and allow him to consider the most employment applications. Title VII prohibits him from having as a goal a workforce selected by any proscribed discriminatory practice, but it does not impose a duty to adopt a hiring procedure that maximizes hiring of Page 438 U. S. 578 minority employees. To dispel the adverse inference from a prima facie showing under McDonnell Douglas, the employer need only "articulate some legitimate, nondiscriminatory reason for the employee's rejection." 411 U.S. at 411 U. S. 802.The dangers of embarking on a course such as that charted by the Court of Appeals here, where the court requires businesses to adopt what it perceives to be the "best" hiring procedures, are nowhere more evident than in the record of this very case. Not only does the record not reveal that the court's suggested hiring procedure would work satisfactorily, but also there is nothing in the record to indicate that it would be any less "haphazard, arbitrary, and subjective" than Furnco's method, which the Court of Appeals criticized as deficient for exactly those reasons. Courts are generally less competent than employers to restructure business practices, and, unless mandated to do so by Congress, they should not attempt it.This is not to say, of course, that proof of a justification which is reasonably related to the achievement of some legitimate goal necessarily ends the inquiry. The plaintiff must be given the opportunity to introduce evidence that the proffered justification is merely a pretext for discrimination. And as we noted in McDonnell Douglas, supra, at 411 U. S. 804-805, this evidence might take a variety of forms. But the Court of Appeals, although stating its disagreement with the District Court's conclusion that the employer's hiring practices were a "legitimate, nondiscriminatory reason" for refusing to hire respondents, premised its disagreement on a view which we have discussed and rejected above. It did not conclude that the practices were a pretext for discrimination, but only that different practices would have enabled the employer to at least consider, and perhaps to hire, more minority employees. But courts may not impose such a remedy on an employer, at least until a violation of Title VII has been proved, and here none had been under the reasoning of either the District Court or the Court of Appeals. Page 438 U. S. 579CThe Court of Appeals was also critical of petitioner's effort to employ statistics in this type of case. While the matter is not free from doubt, it appears that the court thought that, once a McDonnell Douglas prima facie showing had been made out, statistics of a racially balanced workforce were totally irrelevant to the question of motive. See 551 F.2d at 1089. That would undoubtedly be a correct view of the matter if the McDonnell Douglas prima facie showing were the equivalent of an ultimate finding by the trier of fact that the original rejection of the applicant was racially motivated: a racially balanced workforce cannot immunize an employer from liability for specific acts of discrimination. As we said in Teamsters v. United States, 431 U.S. at 431 U. S. 341-342:"[T]he District Court and the Court of Appeals found, upon substantial evidence, that the company had engaged in a course of discrimination that continued well after the effective date of Title VII. The company's later changes in its hiring and promotion policies could be of little comfort to the victims of the earlier post-Act discrimination, and could not erase its previous illegal conduct or its obligation to afford relief to those who suffered because of it."See also Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 412-413 (1975). It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant's race are already proportionately represented in the workforce. See Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 430; McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 427 U. S. 279 (1976).A McDonnell Douglas prima facie showing is not the equivalent of a factual finding of discrimination, however. Rather, it is simply proof of actions taken by the employer from which Page 438 U. S. 580 we infer discriminatory animus because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. When the prima facie showing is understood in this manner, the employer must be allowed some latitude to introduce evidence which bears on his motive. Proof that his workforce was racially balanced, or that it contained a disproportionately high percentage of minority employees, is not wholly irrelevant on the issue of intent when that issue is yet to be decided. We cannot say that such proof would have absolutely no probative value in determining whether the otherwise unexplained rejection of the minority applicants was discriminatorily motivated. Thus, although we agree with the Court of Appeals that, in this case, such proof neither was nor could have been sufficient to conclusively demonstrate that Furnco's actions were not discriminatorily motivated, the District Court was entitled to consider the racial mix of the workforce when trying to make the determination as to motivation. The Court of Appeals should likewise give similar consideration to the proffered statistical proof in any further proceedings in this case.IIIThe parties also press upon the Court a large number of alternative theories of liability and defense, [Footnote 9] none of which was directly addressed by the Court of Appeals as we read its opinion. Given the present posture of this case, however, Page 438 U. S. 581 we think those matters which are still preserved for review are best decided by the Court of Appeals in the first instance. Accordingly, we decline to address them as an original matter here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtFurnco Constr. Corp. v. Waters, 438 U.S. 567 (1978)Furnco Constr. Corp. v. WatersNo. 77-369Argued April 17, 1978Decided June 29, 1978438 U.S. 567SyllabusPetitioner corporation specializes in relining blast furnaces with "firebrick." It maintains no permanent force of bricklayers, but delegates to the superintendent of a particular job the task of hiring a workforce. Respondents, three black bricklayers, sought employment with petitioner on a particular job, but two of them, though fully qualified, were never offered employment, and the third was hired only long after he had initially applied. The job superintendent, pursuant to industry practice, did not accept applications at the jobsite, but hired only bricklayers who he knew were experienced and competent or who had been recommended to him as similarly skilled. Respondents brought suit against petitioner claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court held, inter alia, that respondents had not proved a case of discrimination under McDonnell Douglas Corp. v. Green, 411 U. S. 792, and that petitioner's hiring practices were justified as a "business necessity" in that they were required for the safe and efficient operation of petitioner's business. The Court of Appeals reversed, holding that respondents had made out a prima facie case of employment discrimination under McDonnell Douglas, which petitioner had not effectively rebutted. Disagreeing with the District Court's finding that petitioner's hiring practices were justified as a business necessity, the Court of Appeals devised a hiring procedure whereby petitioner would take written applications, with inquiry as to qualifications and experience, and then check, evaluate, and compare those claims against the qualifications and experience of other bricklayers with whom the superintendent was already acquainted, thereby allowing petitioner to consider the qualifications of more minority applicants.Held: The Court of Appeals erred in its treatment of the nature of the evidence necessary to rebut a prima facie case under McDonnell Douglas, and in substituting its own judgment as to the proper hiring practices for an employer who claims its hiring practices do not violate Title VII. Pp. 438 U. S. 575-580.(a) While the Court of Appeals was justified in concluding that, as a matter of law, respondents had made out a prima facie case of discrimination under McDonnell Douglas, the court went awry in apparently equating such a prima facie showing with an ultimate finding Page 438 U. S. 568 of fact as to discriminatory refusal to hire under Title VII, and the court's imposition of a hiring method enabling the employer to consider, and perhaps to hire, more minority employees finds no support in either the nature of the prima facie case or Title VII's purpose. Courts may not impose such a remedy on an employer, at least until a violation of Title VII has been proved, and here none had been proved under the reasoning of either the District Court or the Court of Appeals. Pp. 438 U. S. 575-578.(b) The Court of Appeals also appears improperly to have concluded that, once a McDonnell Douglas prima facie showing had been made out, statistics offered by petitioner to show that its workforce was racially balanced were totally irrelevant to the question of motive. A McDonnell Douglas showing is not the equivalent of a factual finding of discrimination, but simply proof of actions taken by the employer from which discriminatory animus can be inferred because experience has proved that, in the absence of any other explanation, it is more likely than not those actions were based on impermissible considerations. The employer, therefore, must be allowed some latitude to introduce evidence bearing on his motive. Thus, although petitioner's statistics were not and could not be sufficient to demonstrate conclusively that its actions were not discriminatorily motivated, the District Court was entitled to consider the racial mix of the workforce when making a determination as to motivation, and the Court of Appeals should likewise give similar consideration to such proof in any further proceedings. Pp. 438 U. S. 579-580.551 F.2d 1085, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, J., joined, post, p. 581. Page 438 U. S. 569

1987_86-5309

CHIEF JUSTICE REHNQUIST delivered the opinion of the court.During the selection of the jury in his capital murder trial, petitioner Bobby Lynn Ross resorted to one of his peremptory challenges to remove a juror whom the trial court should have excused for cause under Witherspoon v. Illinois, 391 U. S. 510 (1968). He claims that, because of that fact, the Sixth and Fourteenth Amendments to the United States Constitution require reversal of his conviction and sentence of death. We conclude they do not.In the course of robbing a motel in Elk City, Oklahoma, petitioner killed a police officer. Petitioner was charged with first-degree murder, Okla.Stat., Tit. 21, § 701.7 (Supp.1987), a capital offense, Okla.Stat., Tit. 21, § 701.9(A) (Supp.1987). By statute, Oklahoma provides nine peremptory challenges to both parties in capital trials. Okla.Stat., Tit. 22, § 655 (1981).The jury selection began with the drawing of 12 names from the 150-person venire. Each of the 12 was examined individually by the court and counsel. Prospective jurors not excused for cause after the voir dire were provisionally seated. If a prospective juror was excused for cause, a replacement juror was called and examined. After 12 jurors had been provisionally seated, the parties exercised their peremptory challenges alternately, beginning with the prosecution. When a juror was struck, a replacement juror was immediately selected and examined in the manner described above. Once a replacement was provisionally seated, the trial court called for the exercise of a challenge by the party whose turn it was. This procedure was repeated until each side had exercised or waived its nine peremptory challenges.Darrell Huling's name was drawn to replace the juror excused by the defense with its fifth peremptory challenge. During voir dire, Huling initially indicated that he could vote to recommend a life sentence if the circumstances were appropriate. On further examination by defense counsel, Huling Page 487 U. S. 84 declared that, if the jury found petitioner guilty, he would vote to impose death automatically. Defense counsel moved to have Huling removed for cause, arguing that Huling would not be able to follow the law at the penalty phase. The trial court denied the motion, and Huling was provisionally seated. The defense then exercised its sixth peremptory challenge to remove Huling. The defense ultimately used all nine of its challenges. The prosecution used only five, waiving the remaining four.None of the 12 jurors who actually sat and decided petitioner's fate was challenged for cause by defense counsel. Petitioner is black; the victim was white. At the close of jury selection, the defense objected"to the composition of the twelve people, in that there were no black people called as jurymen in this case, and the defendant feels he's denied a fair and impartial trial by his peers."App. 25. The trial court overruled the objection, and the trial commenced.After two days of evidence, the parties gave closing arguments, the trial court instructed the jury, and deliberations began. The jury found petitioner guilty of first-degree murder. [Footnote 1] Following the presentation of evidence and arguments at a separate sentencing proceeding, the same jury found five aggravating circumstances, and sentenced petitioner to death.On appeal, the Oklahoma Court of Criminal Appeals rejected petitioner's argument that the trial court had committed reversible error in failing to excuse Huling for cause:"The failure of the trial court to remove a prospective juror who unequivocally states that he is unwilling to follow the law during the penalty phase by considering a life sentence is error. The record reflects that defense counsel challenged the prospective juror for cause, and, when the court denied the challenge, defense counsel used Page 487 U. S. 85 a peremptory challenge. All of [petitioner's] peremptory challenges were subsequently used; but as there is nothing in the record to show that any juror who sat on the trial was objectionable, we are unable to discover any grounds for reversal."717 P.2d 117, 120 (1986) (citations omitted). We granted certiorari, 482 U.S. 926 (1987), to consider the Sixth and Fourteenth Amendment implications of the trial court's failure to remove Huling for cause and petitioner's subsequent use of a peremptory challenge to strike Huling. We now affirm.In Wainwright v. Witt, 469 U. S. 412 (1985), the Court held that"the proper standard for determining when a prospective juror may be excused for cause because of his or her views on capital punishment . . . is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"Id. at 469 U. S. 424 (quoting Adams v. Texas, 448 U. S. 38, 448 U. S. 45 (1980)). The Oklahoma Court of Criminal Appeals found, 717 P.2d at 120, and the State concedes, Tr. of Rearg. 30, that Huling should have been excused for cause, and that the trial court erred in failing to do so. Petitioner contends that this error abridged both his Sixth and Fourteenth Amendment right to an impartial jury and his Fourteenth Amendment right to due process. We reject both grounds offered by petitioner.It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant on trial for his life the right to an impartial jury. Witt, supra; Irvin v. Dowd, 366 U. S. 717, 366 U. S. 722 (1961). Had Huling sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court's failure to remove Huling for cause, the sentence would have to be overturned. Adams, supra. But Huling did not sit. Petitioner exercised a peremptory challenge to remove him, and Huling Page 487 U. S. 86 was thereby removed from the jury as effectively as if the trial court had excused him for cause.Any claim that the jury was not impartial, therefore, must focus not on Huling, but on the jurors who ultimately sat. None of those 12 jurors, however, was challenged for cause by petitioner, and he has never suggested that any of the 12 was not impartial."[T]he Constitution presupposes that a jury selected from a fair cross-section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case."Lockhart v. McCree, 476 U. S. 162, 476 U. S. 184 (1986). Although at the close of jury selection petitioner did assert that the jury was not fair and impartial, this claim was based on the absence of blacks from the jury panel. Petitioner neither presses that claim before this Court nor suggests that the absence of blacks was in any way related to the failure to remove Huling for cause. We conclude that petitioner has failed to establish that the jury was not impartial.In arguing that the trial court's error abridged his right to an impartial jury, petitioner relies heavily upon Gray v. Mississippi, 481 U. S. 648 (1987), but we think that case affords him no help. During the jury selection in Gray, the State used several of its 12 peremptory challenges to remove jurors opposed to the death penalty whom the trial court should have excluded for cause under Witherspoon. See 481 U.S. at 481 U. S. 669 (POWELL, J., concurring in part and concurring in judgment); id. at 481 U. S. 673 (SCALIA, J., dissenting, joined by REHNQUIST, C.J., and WHITE and O'CONNOR, JJ.). After the State had exhausted all of its peremptory challenges, a prospective juror, Mrs. H. C. Bounds, stated during voir dire that, although she was opposed to the death penalty, she could vote to impose it in appropriate circumstances. Arguing that the previous "for cause" rulings had been erroneous, the State asked the trial court to restore one of its peremptory Page 487 U. S. 87 challenges so that it might remove Bounds. In an apparent attempt to correct the earlier rulings, the trial court instead excused Bounds for cause. The jury ultimately seated sentenced Gray to death. A closely divided Court reversed Gray's sentence, concluding that the removal of Bounds was erroneous under Adams, supra, and Witt, supra, and that the error could not be considered harmless. Gray, supra.Petitioner relies heavily upon the Gray Court's statement that"the relevant inquiry is 'whether the composition of the jury panel as a whole could possibly have been affected by the trial court's error.'"481 U.S. at 481 U. S. 665 (emphasis in original) (quoting Moore v. Estelle, 670 F.2d 56, 58 (CA5) (specially concurring opinion), cert. denied, 458 U.S. 1111 (1982)). Petitioner points out that, had he not used his sixth peremptory challenge to remove Huling, he could have removed another juror, including one who ultimately sat on the jury. Petitioner asserts, moreover, that, had he used his sixth peremptory challenge differently, the prosecution may have exercised its remaining peremptory challenges differently in response, and consequently, the composition of the jury panel might have changed significantly.Although we agree that the failure to remove Huling may have resulted in a jury panel different from that which would otherwise have decided the case, we do not accept the argument that this possibility mandates reversal. We decline to extend the rule of Gray beyond its context: the erroneous "Witherspoon exclusion" of a qualified juror in a capital case. We think the broad language used by the Gray Court is too sweeping to be applied literally, [Footnote 2] and is best understood in Page 487 U. S. 88 the context of the facts there involved. One of the principal concerns animating the decision in Gray was the inability to know to a certainty whether the prosecution could and would have used a peremptory challenge to remove the erroneously excused juror. See Gray, 481 U.S. at 481 U. S. 665; id. at 485 U. S. 669-670, and n. 2 (POWELL, J., concurring in part and concurring in judgment). In the instant case, there is no need to speculate whether Huling would have been removed absent the erroneous ruling by the trial court; Huling was in fact removed, and did not sit.Petitioner was undoubtedly required to exercise a peremptory challenge to cure the trial court's error. But we reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. We have long recognized that peremptory challenges are not of constitutional dimension. Gray, supra, at 481 U. S. 663; Swain v. Alabama, 380 U. S. 202, 380 U. S. 219 (1965); Stilson v. United States, 250 U. S. 583, 250 U. S. 586 (1919). They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. See Hopt v. Utah, 120 U. S. 430, 120 U. S. 436 (1887); Spies v. Illinois, 123 U. S. 131 (1887). [Footnote 3] We conclude that no violation of petitioner's right to an impartial jury occurred.Relying largely on Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982), and Hicks v. Oklahoma, 447 U. S. 343 (1980), petitioner also argues that the trial court's failure to Page 487 U. S. 89 remove Huling for cause violated his Fourteenth Amendment right to due process by arbitrarily depriving him of the full complement of nine peremptory challenges allowed under Oklahoma law. We disagree. It is true that we have previously stated that the right to exercise peremptory challenges is "one of the most important of the rights secured to the accused.'" Swain, supra, at 380 U. S. 219 (quoting Pointer v. United States, 151 U. S. 396, 151 U. S. 408 (1894)). Indeed, the Swain Court cited a number of federal cases and observed: "The denial or impairment of the right is reversible error without a showing of prejudice." 380 U.S. at 380 U. S. 219. But even assuming that the Constitution were to impose this same rule in state criminal proceedings, petitioner's due process challenge would nonetheless fail. Because peremptory challenges are a creature of statute, and are not required by the Constitution, Gray, supra, at 481 U. S. 663; Swain, supra, at 380 U. S. 219, it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. Cf. Stilson, supra, at 250 U. S. 587; Frazier v. United States, 335 U. S. 497, 335 U. S. 505, n. 11 (1948). As such, the "right" to peremptory challenges is "denied or impaired" only if the defendant does not receive that which state law provides.It is a long-settled principle of Oklahoma law that a defendant who disagrees with the trial court's ruling on a for-cause challenge must, in order to preserve the claim that the ruling deprived him of a fair trial, exercise a peremptory challenge to remove the juror. Even then, the error is grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him. Ferrell v. State, 475 P.2d 825, 828 (Okla.Crim.App.1970); Stott v. State, 538 P.2d 1061, 1064-1065 (Okla.Crim.App.1975). In McDonald v. State, 54 Okla.Crim. 161, 164-165, 15 P.2d 1092, 1094 (1932), the court declared:"If counsel believed any juror was pledged to return a verdict imposing the death penalty, under the circumstances named, he should have purged the jury by challenge. Page 487 U. S. 90 He cannot speculate on the result of the jury's verdict by consenting that the juror sit on the panel, and, if the verdict is adverse, then assert he is disqualified."Thus, although Oklahoma provides a capital defendant with nine peremptory challenges, this grant is qualified by the requirement that the defendant must use those challenges to cure erroneous refusals by the trial court to excuse jurors for cause. We think there is nothing arbitrary or irrational about such a requirement, which subordinates the absolute freedom to use a peremptory challenge as one wishes to the goal of empaneling an impartial jury. Indeed, the concept of a peremptory challenge as a totally freewheeling right unconstrained by any procedural requirement is difficult to imagine. As pointed out by the dissenters in Swain, supra, at 380 U. S. 243-244:"This Court has sanctioned numerous incursions upon the right to challenge peremptorily. Defendants may be tried together even though the exercise by one of his right to challenge peremptorily may deprive his codefendant of a juror he desires or may require that codefendant to use his challenges in a way other than he wishes. United States v. Marchant, [12 Wheat. 480 (1827)]. A defendant may be required to exercise his challenges prior to the State, so that some may be wasted on jurors whom the State would have challenged. Pointer v. United States, 151 U. S. 396 [(1894)]. Congress may regulate the number of peremptory challenges available to defendants by statute, and may require codefendants to be treated as a single defendant so that each has only a small portion of the number of peremptories he would have if tried separately. Stilson v. United States, [250 U.S. 583 (1919)]."As required by Oklahoma law, petitioner exercised one of his peremptory challenges to rectify the trial court's error, and consequently he retained only eight peremptory challenges Page 487 U. S. 91 to use in his unfettered discretion. But he received all that Oklahoma law allowed him, and therefore his due process challenge fails. [Footnote 4]Petitioner relies on Logan, 455 U. S. 422 (1982), and Hicks, 447 U. S. 343 (1980), to support his claim of a denial of due process. The Logan Court held that, because of the arbitrary application of a limitations period, Logan had been deprived of a state-provided cause of action in violation of due process. In Hicks, the Court overturned on due process grounds the sentence imposed on Hicks because the sentence had not been determined by the jury, as required by Oklahoma law. Here, however, the requirement that the defendant use peremptory challenges to cure trial court errors is established by Oklahoma law, and petitioner received all that was due under Oklahoma law. [Footnote 5]Although the trial court erred in failing to dismiss prospective juror Huling for cause, the error did not deprive petitioner of an impartial jury or of any interest provided by the State. "[T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one." Delaware v. Van Arsdall, 475 U. S. 673, 475 U. S. 681 (1986).Affirmed

U.S. Supreme CourtRoss v. Oklahoma, 487 U.S. 81 (1988)Ross v. OklahomaNo. 86-5309Argued January 19, 1988Reargued April 18, 1988Decided June 22, 1988487 U.S. 81SyllabusPetitioner was charged with the capital offense of first-degree murder. An Oklahoma statute provides both parties in capital trials with nine peremptory challenges to prospective jurors. After the trial court denied petitioner's motion to remove for cause prospective juror Huling, who had declared that he would vote to impose death automatically if the jury found petitioner guilty, the defense exercised one of its peremptory challenges to remove him. Although the defense used all nine of its challenges, it did not challenge for cause any of the 12 jurors who actually heard the case. At the close of jury selection, the trial court overruled the objection of petitioner, who is black, that the composition of the all-white jury denied him a fair and impartial trial by his peers. The jury found petitioner guilty and sentenced him to death, and the Oklahoma Court of Criminal Appeals affirmed.Held:1. Although the trial court erred in failing to remove Huling for cause under Witherspoon v. Illinois, 391 U. S. 510, and Wainwright v. Witt, 469 U. S. 412, such failure did not abridge petitioner's Sixth and Fourteenth Amendment right to an impartial jury, since Huling did not sit on the jury that sentenced petitioner to death, petitioner's peremptory challenge having removed him as effectively as if the trial court had done so. The broad language in Gray v. Mississippi, 481 U. S. 648, 481 U. S. 665, that the"relevant inquiry is whether the composition of the jury panel as a whole could possibly have been affected by the trial court's error"(internal quotations omitted; emphasis in original), is too sweeping to be applied literally, and should not be extended beyond its context: the erroneous "Witherspoon exclusion" of a qualified juror in a capital case. Although the failure to remove Huling may have resulted in a jury panel different from that which would otherwise have decided the case, one of the principal concerns animating Gray -- the inability to know whether the prosecution could and would have used a peremptory challenge to remove the erroneous excluded juror -- is absent here, since Huling was in fact removed. The fact that petitioner had to use a peremptory challenge to cure the court's error does not mean that the Sixth Amendment was violated, since peremptory challenges are not of constitutional dimension, Page 487 U. S. 82 but are merely a means to achieve the end of an impartial jury. Petitioner has failed to establish that the jury that actually sat was not impartial, since he never challenged any of the jurors for cause, nor suggested their partiality, and since, in this Court, he neither pressed the claim that the absence of blacks deprived the jury of partiality nor suggested that such absence was in any way related to the court's failure to remove Huling. Pp. 487 U. S. 85-88.2. The trial court's failure to remove Huling for cause did not abridge petitioner's Fourteenth Amendment right to due process by arbitrarily depriving him of his full complement of peremptory challenges. Even assuming that the Constitution renders a State's denial or impairment of the right to exercise such challenges reversible error without a showing of prejudice, cf. Swain v. Alabama, 380 U. S. 202, that "right" would be "denied or impaired" only if the defendant did not receive that which state law provides, since peremptory challenges are a creature of statute, and not constitutionally required, and, accordingly, it is for the State to determine their number and to define their purpose and the manner of their exercise. Although Oklahoma provides a capital defendant with nine peremptory challenges, state law has long qualified this grant with the requirement that the defendant must use those challenges to cure erroneous refusals to excuse jurors for cause. There is nothing arbitrary or irrational about such a requirement, since it subordinates the unfettered discretion to use challenges to the goal of empaneling an impartial jury, and since this Court has sanctioned numerous incursions upon the right to challenge peremptorily. Thus, petitioner's due process challenge must fail, since he received all that Oklahoma law allowed him. Logan v. Zimmerman Brush Co., 455 U. S. 422, and Hicks v. Oklahoma, 447 U. S. 343, distinguished. Pp. 487 U. S. 88-91.717 P.2d 117, affirmed.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 487 U. S. 91. Page 487 U. S. 83

1988_87-470

JUSTICE WHITE delivered the opinion of the Court.**We have before us two decisions of the Indiana courts, involving the application of that State's Racketeer Influenced and Corrupt Organizations (RICO) and Civil Remedies for Racketeering Activity (CRRA) Acts to cases involving bookstores containing allegedly obscene materials.IThe two causes before us arise from wholly unrelated incidents.APetitioner in No. 87-470, Fort Wayne Books, Inc., and two other corporations [Footnote 1] each operated an "adult bookstore" in Fort Wayne, Indiana. On March 19, 1984, the State of Indiana and a local prosecutor, respondents here, filed a civil action against the three corporations and certain of their employees Page 489 U. S. 51 alleging that defendants had engaged in a pattern of racketeering activity by repeatedly violating the state laws barring the distribution of obscene books and films, thereby violating the State's RICO law. [Footnote 2] The complaint recited 39 criminal convictions for selling obscene publications from the three stores. App. 9-37. It was also alleged that there were currently other obscene materials available for sale in the stores. Id. at 37-44. The proceeds from the sales of obscene materials, it was alleged, were being used to operate and maintain the bookstores. Respondents sought civil injunctive relief to bar further racketeering violations, invoking the State's CRRA statute, Ind.Code § 34-4-30.5-1 et seq. (1988). Among the remedies requested in the complaint was forfeiture of all of Fort Wayne Books' property, real and personal, that "was used in the course of, intended for use in the course of, derived from, or realized through" petitioner's "racketeering activity." App. 47. Such forfeiture is authorized by the CRRA statute. Ind.Code § 34-4-30.5-3(a) (1988).Respondents also moved, in a separate "Verified Petition for Seizure of Property Subject to Forfeiture," for the particular judicial order that is the subject of our consideration here. Specifically, respondents asked the Allen County Circuit Court "to immediately seize . . . all property subject to forfeiture' as set forth in [the CRRA] complaint." App. 51. Such pretrial seizures are authorized under Ind.Code § 34-4-30.5-3(b) (1988), which empowers prosecutors bringing CRRA actions to move for immediate seizure of the property subject to forfeiture, and permits courts to issue seizure orders "upon a showing of probable cause to believe that a violation of [the State's RICO law] involving the property in question has occurred." The seizure petition was supported Page 489 U. S. 52 by an affidavit executed by a local police officer, recounting the 39 criminal convictions involving the defendants, further describing various other books and films available for sale at petitioner's bookstores and believed by affiant to be obscene, and alleging a conspiracy among several of petitioner's employees and officers who had previous convictions for obscenity offenses. App. 55-78.The trial court, ex parte, heard testimony in support of the petition and had supporting exhibits before it. On the same day, the court entered an order finding that probable cause existed to conclude that Fort Wayne Books was violating the State RICO law, and directing the immediate seizure of the real estate, publications, and other personal property comprising each of the three bookstores operated by the corporate defendants. Id. at 81-83. The court's order authorized the county sheriff to padlock the stores. This was done, and a few days later, the contents of the stores were hauled away by law enforcement officials. No trial date on the CRRA complaint was ever set.Following the March, 1984, seizure of the bookstores, Fort Wayne Books sought to vacate the ex parte seizure order. An adversarial hearing on a motion to vacate the order based on federal constitutional grounds failed to yield relief. Other efforts to obtain some measure of relief also failed. The trial court did, however, certify the constitutional issues to the Indiana Court of Appeals. In June, 1985, that court held that the relevant RICO/CRRA provisions were violative of the United States Constitution. 4447 Corp. v. Goldsmith, 479 N.E.2d 578 (Ind.App.). [Footnote 3] The Indiana Supreme Court reversed, Page 489 U. S. 53 upholding the constitutionality of the CRRA statute as a general proposition and the pretrial seizure of Fort Wayne Books' store as a specific matter. 4447 Corp. v. Goldsmith, 504 N.E.2d 559 (1987).We granted Fort Wayne's petition for certiorari, 485 U.S. 933 (1988), for the purpose of considering the substantial constitutional issues raised by the pretrial seizure.BIn No. 87-614, an investigation of adult bookstores in Howard County, Indiana, led prosecutors there, in April, 1985, to charge petitioner Sappenfield with six counts of distribution of obscene matter, in violation of Ind.Code § 35-49-3-1 (1988). In addition, employing the 1984 amendments to the Indiana RICO statute discussed above, prosecutors used these alleged predicate acts of obscenity as a basis for filing two charges of RICO violations against petitioner. App. 142-143, 148-149. The obscenity charges were Class A misdemeanors under Indiana law, the racketeering offenses Class C felonies.The trial court dismissed the two RICO counts on the ground that the RICO statute was unconstitutionally vague as applied to obscenity predicate offenses. The Indiana Court of Appeals reversed, and reinstated the charges against petitioner. Relying on the Indiana Supreme Court's opinion under review here in No. 87-40, 4447 Corp. v. Goldsmith, supra, the Court of Appeals held that "Indiana's RICO statute is not unconstitutional as applied to the State's obscenity statute." 505 N.E.2d 504, 506 (1987). The Indiana Supreme Court declined to review this holding of the Indiana Court of Appeals. Page 489 U. S. 54We granted certiorari, 485 U.S. 933 (1988), and consolidated this case with No. 87-470, to consider the common and separate issues presented by both cases.IISince it involves challenges to the constitutionality of the Indiana RICO statute, we deal first with No. 87-614.As noted above, petitioner was charged with six substantive obscenity violations and two RICO offenses. App. 138-149. Petitioner challenged only the latter charges, raising no objection to the obscenity indictments. Id. at 150. He makes no claim here that the Constitution bars a criminal prosecution for distributing obscene materials. [Footnote 4] Rather, petitioner's claim is that certain particulars of the Indiana RICO law render the prosecution of petitioner under that statute unconstitutional. Petitioner advances several specific attacks on the RICO statute.ABefore we address the merits of petitioner's claims, we must first consider our jurisdiction to hear this case. The relevant statute, 28 U.S.C. § 1257, limits our review to "[f]inal judgments or decrees" of the state courts. The general rule is that finality in the context of a criminal prosecution is defined by a judgment of conviction and the imposition of a sentence. See Parr v. United States, 351 U. S. 513, 351 U. S. 518 (1956); Berman v. United States, 302 U. S. 211, 302 U. S. 212 (1937). Since neither is present here, we would usually conclude that the judgment below is not final, and is hence unreviewable.There are, however, exceptions to the general rule. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975). Cox Page 489 U. S. 55 identified four categories of cases in which a judgment is final even though further proceedings are pending in the state courts. This case fits within the fourth category of cases described in Cox:"[W]here the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action . . . in the state court proceedings still to come. In these circumstances, if a refusal immediately to review the state court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for the purposes of the state litigation."Id. at 420 U. S. 482-483.This case clearly satisfies the first sentence of the above-cited passage: petitioner could well prevail on nonfederal grounds at a subsequent trial, and reversal of the Indiana Court of Appeals' holding would bar further prosecution on the RICO counts at issue here. Thus, the only debatable question is whether a refusal to grant immediate review of petitioner's claims "might seriously erode federal policy." Ibid.Adjudicating the proper scope of First Amendment protections has often been recognized by this Court as a "federal policy" that merits application of an exception to the general finality rule. See, e.g., National Socialist Party of America v. Skokie, 432 U. S. 43, 432 U. S. 44 (1977) (per curiam); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 418 U. S. 246-247 (1974). Petitioner's challenge to the constitutionality of the use of RICO statutes to criminalize patterns of obscenity offenses calls into question the legitimacy of the law enforcement practices of several States, as well as the Federal Government. [Footnote 5] Page 489 U. S. 56 Resolution of this important issue of the possible limits the First Amendment places on state and federal efforts to control organized crime should not remain in doubt."Whichever way we were to decide on the merits, it would be intolerable to leave unanswered, under these circumstances, an important question of freedom of the press under the First Amendment; an uneasy and unsettled constitutional posture [of the state statute in question] could only further harm the operation of a free press."Tornillo, supra, at 418 U. S. 247, n. 6.JUSTICE O'CONNOR contends that a contrary result is counseled here by our decision in Flynt v. Ohio, 451 U. S. 619 (1981) (per curiam). Post at 489 U. S. 69-70. But as the Court understood it,"[t]he question presented for review [in Flynt was] whether, on [that] record, the decision to prosecute petitioners was selective or discriminatory in violation of the Equal Protection Clause."Flynt, supra, at 451 U. S. 622 (emphasis added). The claim before us in Flynt was not a First Amendment claim, but rather an equal protection claim (albeit one in the context of a trial raising First Amendment issues). As a result, Cox's fourth exception was held to be inapplicable in that case. Though the dissenters in Flynt disagreed with the premise of the Court's holding, and contended that that case was a First Amendment dispute that demanded immediate attention under Cox's fourth exception, see 451 U.S. at 451 U. S. 623 (Stewart, J., dissenting); id. at 451 U. S. 623-624 (STEVENS, J., Page 489 U. S. 57 dissenting), the fact is that no Member of the Court concluded in Flynt -- as JUSTICE O'CONNOR does today -- that where an important First Amendment claim is before us, the Court should refuse to invoke Cox's fourth exception and hold that we have no authority to address the issue.Consequently, we conclude that this case, which clearly involves a First Amendment challenge to the facial validity of the Indiana RICO statute, merits review under the fourth exception recognized by Cox to the finality rule.BPetitioner's broadest contention is that the Constitution forbids the use of obscenity violations as predicate acts for a RICO conviction. Petitioner's argument in this regard is twofold: first, that the Indiana RICO law, as applied to an "enterprise" that has allegedly distributed obscene materials, is unconstitutionally vague; and second, that the potential punishments available under the RICO law are so severe that the statute lacks a "necessary sensitivity to first amendment rights," Brief for Petitioner in No. 87-614, p. 23. We consider each of these arguments in turn.(1)The "racketeering activities" forbidden by the Indiana RICO law are a "pattern" of multiple violations of certain substantive crimes, of which distributing obscenity (Ind.Code § 35-49-3-1) is one. Ind.Code § 35-45-6-1 (1988). Thus, the RICO statute at issue wholly incorporates the state obscenity law by reference.Petitioner argues that the "inherent vagueness" of the standards established by Miller v. California, 413 U. S. 15 (1973), are at the root of his objection to any RICO prosecution based on predicate acts of obscenity. Brief for Petitioner in No. 87-614, pp. 24-33. Yet this is nothing less than an invitation to overturn Miller -- an invitation that we reject. And we note that the Indiana obscenity statute, Ind.Code § 35-49-1-1 et seq. (1988), is closely tailored to conform Page 489 U. S. 58 to the Miller standards. Cf. Sedelbauer v. State, 428 N.E.2d 206, 210-211 (Ind.1981), cert. denied, 455 U. S. 1035 (1982). [Footnote 6] Moreover, petitioner's motion to dismiss the RICO charges in the trial court rested on the alleged vagueness of that statute, and not any alleged defect in the underlying obscenity law. See App. 150-151, 161-167.We find no merit in petitioner's claim that the Indiana RICO law is unconstitutionally vague as applied to obscenity predicate offenses. Given that the RICO statute totally encompasses the obscenity law, if the latter is not unconstitutionally vague, the former cannot be vague either. At petitioner's forthcoming trial, the prosecution will have to prove beyond a reasonable doubt each element of the alleged RICO offense, including the allegation that petitioner violated (or attempted or conspired to violate) the Indiana obscenity law. Cf. Ind.Code § 35-45-6-1 (1988); 504 N.E.2d at 566. Thus, petitioner cannot be convicted of violating the RICO law without first being "found guilty" of two counts of distributing (or attempting to, or conspiring to, distribute) obscene materials.It is true, as petitioner argues, Brief for Petitioner in No. 87-614, pp. 16-18, that the punishments available in a RICO prosecution are different from those for obscenity violations. But we fail to see how this difference renders the RICO statute void for vagueness. [Footnote 7] Page 489 U. S. 59(2)Petitioner's next contention rests on the difference between the sanctions imposed on obscenity law violators and those imposed on convicted "racketeers": the sanctions imposed on RICO violators are so "draconian" that they have an improper chilling effect on First Amendment freedoms, petitioner contends. See id. at 12, 17. The use of such "heavy artillery" from the "war on crime" against obscenity is improper, petitioner argues, and therefore, obscenity offenses should not be permitted to be used as predicate acts for RICO purposes.It is true that the criminal penalties for a RICO violation under Indiana law, a Class C felony, are more severe than those authorized for an obscenity offense, a Class A misdemeanor. Specifically, if petitioner is found guilty of the two RICO counts against him, he faces a maximum sentence of 10 years in prison and a $20,000 fine; if petitioner were convicted instead of only the six predicate obscenity offenses charged in the indictments, the maximum punishment he could face would be six years in jail and $30,000 in fines. Compare Ind.Code § 35-50-2-6 (1988), with Ind.Code § 35-50-3-2 (1988). While the RICO punishment is obviously greater than that for obscenity violations, we do not perceive any constitutionally significant difference between the two potential punishments. [Footnote 8] Indeed, the Indiana RICO provisions in this respect function quite similarly to an enhanced Page 489 U. S. 60 sentencing scheme for multiple obscenity violations. As such, "[i]t is not for this Court . . . to limit the State in resorting to various weapons in the armory of the law." Kingsley Books, Inc. v. Brown, 354 U. S. 436, 354 U. S. 441 (1957).It may be true that the stiffer RICO penalties will provide an additional deterrent to those who might otherwise sell obscene materials; perhaps this means -- as petitioner suggests, Brief for Petitioner in No. 87-614, pp. 20-22 -- that some cautious booksellers will practice self-censorship and remove First Amendment protected materials from their shelves. But deterrence of the sale of obscene materials is a legitimate end of state anti-obscenity laws, and our cases have long recognized the practical reality that"any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene."Smith v. California, 361 U. S. 147, 361 U. S. 154-155 (1959). Cf. also Arcara v. Cloud Books, Inc., 478 U. S. 697, 478 U. S. 706 (1986). The mere assertion of some possible self-censorship resulting from a statute is not enough to render an anti-obscenity law unconstitutional under our precedents.Petitioner further raises the question whether the civil sanctions available against RICO violations -- under the CRRA statute -- are so severe as to render the RICO statute itself unconstitutional. See, e.g., Brief for Petitioner in No. 87-614, pp. 22-23. However, this contention is not ripe, since the State has not sought any civil penalties in this case. These claims can only be reviewed when (or if) such remedies are enforced against petitioner.Consequently, we find no constitutional bar to the State's inclusion of substantive obscenity violations among the predicate offenses under its RICO statute.CFinally, petitioner advances two narrower objections to the application of the Indiana RICO statute in obscenity-related prosecutions. Page 489 U. S. 61(1)First, petitioner contends that, even if the statute is constitutional on its face,"the First Amendment . . . requires that predicate obscenity offenses must be affirmed convictions on successive dates . . . in the same jurisdiction as that where the RICO charge is brought."Id. at 33.We find no constitutional basis for the claim that the alleged predicate acts used in a RICO/obscenity prosecution must be "affirmed convictions." We rejected a like contention, albeit in dicta, when considering a case under the Federal RICO statute. See Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 473 U. S. 488 (1985). We see no reason for a different rule where the alleged predicate acts are obscenity. As long as the standard of proof is the proper one with respect to all of the elements of the RICO allegation -- including proof, beyond a reasonable doubt, of the requisite number of constitutionally proscribable predicate acts -- all of the relevant constitutional requirements have been met. The analogy suggested by the United States in its amicus brief is apt:"This Court has never required a State to fire warning shots, in the form of misdemeanor prosecutions, before it may bring felony charges for distributing obscene materials."Brief for United States as Amicus Curiae 16. We likewise decline to impose such a "warning shot" requirement here.The second aspect of this claim -- that all of the predicate offenses charged must have occurred in the jurisdiction where the RICO indictment is brought -- also lacks merit. This contention must be rejected in this case, if for no other reason than the fact that all of petitioner's alleged predicate acts of distributing obscenity did take place in the same jurisdiction (Howard County) where the RICO prosecution was initiated; petitioner lacks standing to advance this claim on these facts. See App. 138-149. More significantly, petitioner's suggestion fails because such a rule would essentially turn the RICO statute on its head: barring RICO prosecutions of large national enterprises that commit single predicate offenses in numerous jurisdictions, for example. Page 489 U. S. 62Of course, petitioner is correct when he argues that "community standards" may vary from jurisdiction to jurisdiction where different predicate obscenity offenses allegedly were committed. But as long as, for example, each previous obscenity conviction was measured by the appropriate community's standard, we see no reason why the RICO prosecution -- alleging a pattern of such violations -- may take place only in a jurisdiction where two or more such offenses have occurred. Cf. Smith v. United States, 431 U. S. 291, 431 U. S. 306-309 (1977).(2)Second, petitioner contends that he should have been provided with a prompt adversarial hearing, shortly after his arrest, on the question of the obscenity of the materials he allegedly distributed. Brief for Petitioner in No. 87-614, pp. 36-37.This contention lacks merit for several reasons. First, it does not appear that petitioner requested such a hearing below. See App. 135-137. Second, unlike No. 87-470, in this case, there was no seizure of any books or films owned by petitioner. The only expressive materials "seized" by Howard County officials in this case were a few items purchased by police officers in connection with their investigation of petitioner's stores. See id. at 138-147. We have previously rejected the argument that such purchases trigger constitutional concerns. See Maryland v. Macon, 472 U. S. 463, 472 U. S. 468-471 (1985).We consequently affirm the judgment in No. 87-614.IIIWe reverse, however, the judgment in No. 87-470 sustaining the pretrial seizure order.In a line of cases dating back to Marcus v. Search Warrant, 367 U. S. 717 (1961), this Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as "obscene." In Marcus, Page 489 U. S. 63 and again in A Quantity of Books v. Kansas, 378 U. S. 205 (1964), the Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a "procedure designed to focus searchingly on the question of obscenity.'" Id. at 378 U. S. 210 (quoting Marcus, supra, at 367 U. S. 732). See also e.g., Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636 (1968).We refined that approach further in our subsequent decisions. Most importantly, in Heller v. New York, 413 U. S. 483, 413 U. S. 492 (1973), the Court noted that"seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding."As a result, we concluded that, until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. Id. at 413 U. S. 492-493. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. Ibid.; see New York v. P. J. Video, Inc., 475 U. S. 868, 475 U. S. 874-876 (1986).Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 442 U. S. 326, n. 5 (1979). It is"[t]he risk of prior restraint, Page 489 U. S. 64 which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials"that motivates this rule. Maryland v. Macon, supra, at 472 U. S. 470. These same concerns render invalid the pretrial seizure at issue here. [Footnote 9]In its decision below, the Indiana Supreme Court did not challenge our precedents or the limitations on seizures that our decisions in this area have established. Rather, the court found those rules largely inapplicable in this case. 504 N.E.2d at 564-567. The court noted that the alleged predicate offenses included 39 convictions for violating the State's obscenity laws, [Footnote 10] and observed that the pretrial seizures (which were made in strict accordance with Indiana law) were not based on the nature or suspected obscenity of the contents of the items seized, but upon the neutral ground that the sequestered property represented assets used and acquired in the course of racketeering activity."The remedy Page 489 U. S. 65 of forfeiture is intended not to restrain the future distribution of presumptively protected speech, but rather to disgorge assets acquired through racketeering activity. Stated simply, it is irrelevant whether assets derived from an alleged violation of the RICO statute are or are not obscene."Id. at 565. The court also specifically rejected petitioner's claim that the legislative inclusion of violations of obscenity laws as a form of racketeering activity was "merely a semantic device intended to circumvent well-established First Amendment doctrine." Id. at 564. The assets seized were subject to forfeiture "if the elements of a pattern of racketeering activity are shown," ibid.; there being probable cause to believe this was the case here, the pretrial seizure was permissible, the Indiana Supreme Court concluded.We do not question the holding of the court below that adding obscenity law violations to the list of RICO predicate crimes was not a mere ruse to sidestep the First Amendment. And, for the purpose of disposing of this case, we assume without deciding that bookstores and their contents are forfeitable (like other property such as a bank account or a yacht) when it is proved that these items are property actually used in, or derived from, a pattern of violations of the State's obscenity laws. [Footnote 11] Even with these assumptions, though, we find the seizure at issue here unconstitutional. It is incontestable that these proceedings were begun to put an end to the sale of obscenity at the three bookstores named in the complaint, and hence we are quite sure that the special rules applicable to removing First Amendment materials from circulation are relevant here. This includes specifically Page 489 U. S. 66 the admonition that probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.Here there was not -- and has not been -- any determination that the seized items were "obscene," or that a RICO violation has occurred. True, the predicate crimes on which the seizure order was based had been adjudicated, and are unchallenged. But the petition for seizure and the hearing thereon were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, and the order for seizure recited no more than probable cause in that respect. As noted above, our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation. See, e.g., New York v. P. J. Video, Inc., supra; Heller v. New York, 413 U. S. 483 (1973). The elements of a RICO violation other than the predicate crimes remain to be established in this case, e.g., whether the obscenity violations by the three corporations or their employees established a pattern of racketeering activity, and whether the assets seized were forfeitable under the State's CRRA statute. Therefore, the pretrial seizure at issue here was improper.The fact that respondent's motion for seizure was couched as one under the Indiana RICO law -- instead of being brought under the substantive obscenity statute -- is unavailing. As far back as the decision in Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 720-721 (1931), this Court has recognized that the way in which a restraint on speech is "characterized" under state law is of little consequence. See also Schad v. Mount Ephraim, 452 U. S. 61, 452 U. S. 67-68 (1981); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 420 U. S. 552-555 (1975). For example, in Vance v. Universal Amusement Co., 445 U. S. 308 (1980) (per curiam), we struck down a prior restraint placed on the exhibitions of films under a Texas "public nuisance" statute, finding that its failure to Page 489 U. S. 67 comply with our prior case law in this area was a fatal defect. Cf. also Arcara v. Cloud Books, Inc., 478 U.S. at 478 U. S. 708 (O'CONNOR, J., concurring) (noting that, if a "city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books . . . the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review"). While we accept the Indiana Supreme Court's finding that Indiana's RICO law is not "pretextual" as applied to obscenity offenses, it is true that the State cannot escape the constitutional safeguards of our prior cases by merely recategorizing a pattern of obscenity violations as "racketeering."At least where the RICO violation claimed is a pattern of racketeering that can be established only by rebutting the presumption that expressive materials are protected by the First Amendment, [Footnote 12] that presumption is not rebutted until the claimed justification for seizing books or other publications is properly established in an adversary proceeding. Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order. See App. 87; Record 601-627. Yet it remained to be proved whether the seizure was actually warranted under the Indiana CRRA and RICO statutes. If we are to maintain the regard for First Amendment values expressed in our prior decisions dealing with interrupting the flow of expressive materials, the judgment of the Indiana Court must be reversed. [Footnote 13] Page 489 U. S. 68IVFor the reasons given above, the judgment in No. 87-470 is reversed, and the case is remanded for further proceedings. The judgment in No. 87-614 is affirmed, and it too is remanded for further proceedings.It is so ordered

U.S. Supreme CourtFort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989)Fort Wayne Books, Inc. v. IndianaNo. 87-470Argued October 3, 1988Decided February 21, 1989*489 U.S. 46SyllabusIn No. 87-470, the State of Indiana and a local prosecutor (respondents) filed a civil action in state court against petitioner operator of an "adult bookstore," alleging that it had violated the state Racketeer Influenced and Corrupt Organizations (RICO) statute by engaging in a pattern of racketeering activity consisting of repeated violations of the state laws barring the distribution of obscene books and films. Respondents sought injunctive relief under the state Civil Remedies for Racketeering Activity (CRRA) statute, including forfeiture of all of petitioner's property used in the alleged racketeering activity, and moved, in a separate petition, for a court order for immediate seizure of all property subject to forfeiture, as authorized by statute. After the court, ex parte, heard testimony in support of this petition, it ordered the immediate seizure of petitioner's bookstore and its contents. Following petitioner's unsuccessful attempts to vacate the seizure order on federal constitutional grounds, the court certified the constitutional issues to the Indiana Court of Appeals, which held that the relevant RICO/CRRA provisions violated the Federal Constitution. The Indiana Supreme Court reversed, upholding both the constitutionality of the CRRA statute and the pretrial seizure. In No. 87-614, petitioner "adult bookstore" operator was charged with distributing obscene matter in violation of an Indiana statute (a misdemeanor) and in addition with RICO violations (felonies) based on these alleged predicate acts of obscenity. The trial court dismissed the RICO charges on the ground that the RICO statute was unconstitutionally vague as applied to obscenity predicate offenses. The Indiana Court of Appeals reversed and reinstated the charges, holding that the RICO statute was not unconstitutional as applied to the state obscenity statute, and the Indiana Supreme Court declined review.Held:1. This Court has jurisdiction to hear No. 87-614. Under the general rule defining finality in the context of a criminal prosecution by a judgment of conviction and the imposition of a sentence, this Court would usually conclude that, since neither a conviction nor sentence was present here, the judgment below was not final, and hence not reviewable under 28 U.S.C. § 1257, which limits review to "[f]inal judgments or Page 489 U. S. 47 decrees." But the case merits review under the exception to the general finality rule recognized in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 420 U. S. 482-483,"[w]here the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action."Petitioner could well prevail on nonfederal grounds at a subsequent trial, and reversal of the Indiana Court of Appeals' holding would bar further prosecution on the RICO charges. Moreover, the case clearly involves a First Amendment challenge to the Indiana RICO statute's facial validity. Adjudicating the proper scope of First Amendment protection is a "federal policy" that merits application of an exception to the general finality rule. Resolution of the important issue of the possible limits the First Amendment places on state and federal efforts to control organized crime should not remain in doubt. Flynt v. Ohio, 451 U. S. 619, distinguished. Pp. 489 U. S. 54-57.2. There is no constitutional bar to the State's inclusion of substantive obscenity violations among the predicate offenses under its RICO statute. Pp. 489 U. S. 57-60.(a) The RICO statute is not unconstitutionally vague as applied to obscenity predicate offenses. The "racketeering activities" that the statute forbids are a "pattern" of multiple violations of certain substantive crimes, of which distributing obscenity is one. Given that the RICO statute totally encompasses the obscenity law, if the latter is not unconstitutionally vague, the former cannot be vague either. Petitioner in No. 87-614 cannot be convicted of violating the RICO statute without first being "found guilty" of distributing or of attempting or conspiring to distribute obscene materials. To argue, as petitioner does, that the "inherent vagueness" of the obscenity standards established by Miller v. California, 413 U. S. 15, are at the root of his objection to any RICO prosecution based on predicate acts of obscenity is nothing less than an invitation to overturn Miller -- an invitation that this Court rejects. That the punishments available in a RICO prosecution are different from those for obscenity violations does not render the RICO statute void for vagueness. Pp. 489 U. S. 57-58.(b) While the RICO punishments are greater than those for obscenity violations, there is no constitutionally significant difference between them. The stiffer RICO punishments may provide an additional deterrent to those who might otherwise sell obscene materials and may result in some booksellers practicing self-censorship and removing First Amendment protected materials from their shelves. But deterrence of the sale of obscene materials is a legitimate end of state obscenity laws, Page 489 U. S. 48 and the mere assertion of some possible self-censorship resulting from a statute is not enough to render an anti-obscenity law unconstitutional. Petitioner's contention in No. 87-614 that the civil sanctions available under the CRRA against RICO violations are so severe as to render the RICO statute itself unconstitutional is not ripe, since the State has not sought any civil penalties. Pp. 489 U. S. 59-60.(c) There is no constitutional basis for petitioner's contention in No. 87-614 that the alleged predicate acts used in a RICO/obscenity prosecution must be "affirmed convictions." As long as the standard of proof is proper with respect to all elements of the RICO allegation, including proof, beyond a reasonable doubt, of the requisite number of constitutionally proscribable predicate acts, all of the relevant constitutional requirements have been met. This Court will not require a State to fire a "warning shot" in the form of misdemeanor prosecutions before it may bring felony charges for distributing obscene materials. And there is no merit to petitioner's contention that the predicate offenses charged must have occurred in the jurisdiction where the RICO indictment is brought, not only because all of petitioner's alleged predicate acts of distributing obscenity did take place in the same jurisdiction where the RICO prosecution was initiated, but more significantly because such a rule would essentially turn the RICO statute on its head. Pp. 489 U. S. 60-62.(d) Nor is there any merit to petitioner's contention in No. 87-614 that he should have been provided with a prompt post-arrest adversarial hearing on the question of the obscenity of the materials he allegedly distributed. He did not request such a hearing, and there was no seizure of any of his books or films. Police officers' purchases of a few items in connection with their investigation of petitioner's stores did not trigger constitutional concern. P. 489 U. S. 62.3. The pretrial seizure of petitioner's bookstore and its contents in No. 87-470 was improper. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional. Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films. Here, there was no determination that the seized items were "obscene" or that a RICO violation had occurred. The petition Page 489 U. S. 49 for seizure and the hearing thereon were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, and the seizure order recited no more than probable cause in that respect. Mere probable cause to believe a violation has transpired is not adequate to remove books or film from circulation. The elements of a RICO violation other than the predicate crimes remain to be established in this case. Where the claimed RICO violation is a pattern of racketeering that can be established only by rebutting the presumption that expressive materials are protected by the First Amendment, that presumption is not rebutted until the claimed justification for seizing such materials is properly established in an adversary proceeding. Pp. 489 U. S. 62-67.No. 87-470, 504 N.E.2d 559, reversed and remanded; No. 87-614, 505 N.E.2d 504, affirmed and remanded.WHITE, J., delivered the opinion of the Court, in Part I of which REHNQUIST, C.J., and BRENNAN, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined, in Part II-A of which REHNQUIST, C.J., and BRENNAN, STEVENS, SCALIA, and KENNEDY, JJ., joined, in Parts II-B and II-C of which REHNQUIST, C.J., and BLACKMUN, SCALIA, and KENNEDY, JJ., joined, and in Part III of which REHNQUIST, C.J., and BRENNAN, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 489 U. S. 68. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, post, p. 489 U. S. 68. STEVENS, J., filed an opinion dissenting in No. 87-614 and concurring in part and dissenting in part in No. 87-470, in which BRENNAN and MARSHALL, JJ., joined, post, p. 489 U. S. 70. Page 489 U. S. 50

1959_25

MR. JUSTICE WHITTAKER delivered the opinion of the Court.To relieve against what was apparently thought to be the harshness of dismissal, under the doctrine of forum Page 363 U. S. 336 non conveniens, of an action brought in an inconvenient one of two or more legally available forums, Gulf Oil Corp. v. Gilbert, 330 U. S. 501, and concerned by the reach of Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44, [Footnote 1] Congress, in 1948, enacted 28 U.S.C. § 1404(a), which provides:"§ 1404. Change of venue.""(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."The instant cases present the question whether a District Court in which a civil action has been properly brought is empowered by § 1404(a) to transfer the action, on the motion of the defendant, to a district in which the plaintiff did not have a right to bring it.No. 25, Blaski. -- Respondents, Blaski and others, residents of Illinois, brought this patent infringement action in the United States District Court for the Northern District of Texas against one Howell and a Texas corporation controlled by him, alleging that the defendants are residents of, and maintain their only place of business in, the City of Dallas, in the Northern District of Texas, where they are infringing respondents' patents. After being served with process and filing their answer, the defendants moved, under § 1404(a), to transfer the action to the United States District Court for the Northern District of Illinois. [Footnote 2] Respondents objected to the Page 363 U. S. 337 transfer on the ground that, inasmuch as the defendants did not reside, maintain a place of business, or infringe the patents in, and could not have been served with process in, the Illinois district, the courts of that district lacked venue over the action [Footnote 3] and ability to command jurisdiction over the defendants; [Footnote 4] that therefore that district was not a forum in which the respondents had a right to bring the action, and hence the court was without power to transfer it to that district. Without mentioning that objection or the question it raised, the District Court found that "the motion should be granted for the convenience of the parties and witnesses in the interest of justice," and ordered the case transferred to the Illinois district. Thereupon, respondents moved in the Fifth Circuit for leave to file a petition for a writ of mandamus directing the vacation of that order. That court, holding that"[t]he purposes for which § 1404(a) was enacted would be unduly circumscribed if a transfer could not be made 'in the interest of justice' to a district where the defendants not only waive venue but to which they seek the transfer,"denied the motion. Ex parte Blaski, 245 F.2d 737, 738.Upon receipt of a certified copy of the pleadings and record, the Illinois District Court assigned the action to Judge Hoffman's calendar. Respondents promptly moved for an order remanding the action on the ground that the Texas District Court did not have power to make the transfer order and, hence, the Illinois District Court was not thereby vested with jurisdiction of the action. Page 363 U. S. 338 After expressing his view that the "weight of reason and logic" favored "retransfer of this case to Texas," Judge Hoffman, with misgivings, denied the motion. Respondents then filed in the Seventh Circuit a petition for a writ of mandamus directing Judge Hoffman to reverse his order. After hearing and rehearing, the Seventh Circuit, holding that,"[w]hen Congress provided [in § 1404(a)] for transfer [of a civil action] to a district 'where it might have been brought,' it is hardly open to doubt but that it referred to a district where the plaintiff . . . had a right to bring the case,"and that respondents did not have a right to bring this action in the Illinois district, granted the writ, one judge dissenting. 260 F.2d 317, 320.No. 26, Behimer. -- Diversity of citizenship then existing, respondents, Behimer and Roberts, residents of Illinois and New York, respectively, brought this stockholders' derivative action, as minority stockholders of Utah Oil Refining Corporation, a Utah corporation, on behalf of themselves and others similarly situated, in the United States District Court for the Northern District of Illinois against Standard Oil Company and Standard Oil Foundation, Inc., Indiana corporations but licensed to do and doing business in the Northern District of Illinois, for damages claimed to have been sustained through the alleged illegal acquisition by defendants of the assets of the Utah corporation at an inadequate price.After being served with process and filing their answer, the defendants moved under § 1404(a) to transfer the action to the United States District Court for the District of Utah. [Footnote 5] Respondents objected to the transfer on the Page 363 U. S. 339 ground that, inasmuch as the defendants were not incorporated in or licensed to do or doing business in, and could not be served with process in, the district of Utah, the courts of that district lacked venue over the action [Footnote 6] and ability to command jurisdiction over the defendants; [Footnote 7] that therefore that district was not a forum in which the respondents had a right to bring the action, and, hence, the court was without power to transfer it to that district. Without mentioning the question raised by that objection, the court found that the proposed transfer would be "for the convenience of the parties and witnesses, and in the interest of justice," and ordered the case transferred to the district of Utah.Respondents then filed in the Seventh Circuit a petition for a writ of mandamus directing the District Court to reverse its order. After hearing, the Seventh Circuit, following its decision in Blaski v. Hoffman, supra, granted the writ. 261 F.2d 467.To settle the conflict that has arisen among the circuits respecting the proper interpretation and application of § 1404(a), [Footnote 8] we granted certiorari. 359 U.S. 904; 361 U.S. 809. Page 363 U. S. 340Without sacrifice or slight of any tenable position, the parties have in this Court commendably narrowed their contentions to the scope of the only relevant inquiry. The points of contention may be sharpened by first observing what is not in contest. Discretion of the district judges concerned is not involved. Propriety of the remedy of mandamus is not assailed. No claim is made here that the order of the Fifth Circuit denying the motion of respondents in the Blaski case for leave to file a petition for writ of mandamus, 245 F.2d 737, precluded Judge Hoffman or the Seventh Circuit from remanding that case. [Footnote 9] Petitioners concede that these actions were Page 363 U. S. 341 properly brought in the respective transferor forums; that statutory venue did not exist over either of these actions in the respective transferee districts, [Footnote 10] and that the respective defendants were not within the reach of the process of the respective transferee courts. [Footnote 11] They concede, too, Page 363 U. S. 342 that § 1404(a), being "not unlimited," "may be utilized only to direct an action to any other district or division where it might have been brought,'" and that, like the superseded doctrine of forum non conveniens, Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 330 U. S. 507, the statute requires "an alternative forum in which plaintiff might proceed."Petitioners' "thesis" and sole claim is that § 1404(a), being remedial, Ex parte Collett, 337 U. S. 55, 337 U. S. 71, should be broadly construed, and, when so construed, the phrase "where it might have been brought" should be held to relate not only to the time of the bringing of the action, but also to the time of the transfer; and that"if, at such time, the transferee forum has the power to adjudicate the issues of the action, it is a forum in which the action might then have been brought. [Footnote 12]"(Emphasis added.) They argue that, in the interim between the bringing of the action and the filing of a motion to transfer it, the defendants may move their residence to, or, if corporations, may begin the transaction of business in, some other district, and, if such is done, the phrase "where it might have been brought" should be construed to empower the District Court to transfer the action, on motion of the defendants, to such other district; and that, similarly, if, as here, the defendants move to transfer the action to some other district and consent to submit to the jurisdiction of such other district, the latter district should be held one "in which the action might then have been brought." (Emphasis added.)We do not agree. We do not think the § 1404(a) phrase "where it might have been brought" can be interpreted to mean, as petitioners' theory would required, Page 363 U. S. 343 "where it may now be rebrought, with defendants' consent." This Court has said, in a different context, that § 1404(a) is "unambiguous, direct [and] clear," Ex parte Collett, 337 U.S. at 337 U. S. 58, and that "the unequivocal words of § 1404(a) and the legislative history . . . [establish] that Congress indeed meant what it said." United States v. National City Lines, Inc., 337 U. S. 78, 337 U. S. 84. Like the Seventh Circuit, 260 F.2d at 322, we think the dissenting opinion of Judges Hastie and McLaughlin in Paramount Pictures, Inc. v. Rodney, 186 F.2d 111, 119 (C.A. 3d Cir.), correctly answered this contention:"But we do not see how the conduct of a defendant after suit has been instituted can add to the forums where 'it might have been brought.' In the normal meaning of words, this language of Section 1404(a) directs the attention of the judge who is considering a transfer to the situation which existed when suit was instituted."It is not to be doubted that the transferee courts, like every District Court, had jurisdiction to entertain actions of the character involved, but it is obvious that they did not acquire jurisdiction over these particular actions when they were brought in the transferor courts. The transferee courts could have acquired jurisdiction over these actions only if properly brought in those courts, or if validly transferred thereto under § 1404(a). Of course, venue, like jurisdiction over the person, may be waived. A defendant, properly served with process by a court having subject matter jurisdiction, waives venue by failing seasonably to assert it, or even simply by making default. Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U. S. 177, 278 U. S. 179-180; Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U. S. 165. But the power of a District Court under § 1404(a) to transfer an action to another district is made to depend not upon the wish or waiver of the defendant, but rather upon whether the transferee district was one Page 363 U. S. 344 in which the action "might have been brought" by the plaintiff.The thesis urged by petitioners would not only do violence to the plain words of § 1404(a), but would also inject gross discrimination. That thesis, if adopted, would empower a District Court, upon a finding of convenience, to transfer an action to any district desired by the defendants and in which they were willing to waive their statutory defenses as to venue and jurisdiction over their persons, regardless of the fact that such transferee district was not one in which the action "might have been brought" by the plaintiff. Conversely, that thesis would not permit the court, upon motion of the plaintiffs and a like showing of convenience, to transfer the action to the same district, without the consent and waiver of venue and personal jurisdiction defenses by the defendants. Nothing in § 1404(a) or in its legislative history suggests such a unilateral objective, and we should not, under the guise of interpretation, ascribe to Congress any such discriminatory purpose.We agree with the Seventh Circuit that:"If, when a suit is commenced, plaintiff has a right to sue in that district, independently of the wishes of defendant, it is a district 'where [the action] might have been brought.' If he does not have that right, independently of the wishes of defendant, it is not a district 'where it might have been brought,' and it is immaterial that the defendant subsequently [makes himself subject, by consent, waiver of venue and personal jurisdiction defenses or otherwise, to the jurisdiction of some other forum]."260 F.2d at 321 and 261 F.2d at 469.Inasmuch as the respondents (plaintiffs) did not have a right to bring these actions in the respective transferee districts, it follows that the judgments of the Court of Appeals were correct, and must beAffirmed

U.S. Supreme CourtHoffman v. Blaski, 363 U.S. 335 (1960)Hoffman v. BlaskiNo. 25Argued April 19-20, 1960Decided June 13, 1960*363 U.S. 335SyllabusUnder 28 U.S.C. § 1404(a), a federal district court in which a civil action has been properly brought is not empowered to transfer the action on the motion of the defendant to a district in which the plaintiff did not have a right to bring it. Pp. 363 U. S. 335-344.(a) The phrase "where it might have been brought" in § 1404(a) cannot be interpreted to mean "where it may now be rebrought, with defendants' consent." Pp. 363 U. S. 342-343.(b) Under § 1404(a), the power of a district court to transfer an action to another district is made to depend not upon the wish or waiver of the defendant, but upon whether the transferee district is one in which the action "might have been brought" by the plaintiff. Pp. 363 U. S. 343-344.260 F.2d 317, 261 F.2d 467, affirmed.

1999_98-818

to the State, to treat Hawaiians or native Hawaiians as tribes, Congress may not authorize a State to create a voting scheme of the sort created here. Congress may not authorize a State to establish a voting scheme that limits the electorate for its public officials to a class of tribal Indians to the exclusion of all non-Indian citizens. The elections for OHA trustee are elections of the State, not of a separate quasi sovereign, and they are elections to which the Fifteenth Amendment applies. Morton v. Mancari, supra, distinguished. The State's further contention that the limited voting franchise is sustainable under this Court's cases holding that the one-person, one-vote rule does not pertain to certain special purpose districts such as water or irrigation districts also fails, for compliance with the one-person, one-vote rule of the Fourteenth Amendment does not excuse compliance with the Fifteenth Amendment. Hawaii's final argument that the voting restriction does no more than ensure an alignment of interests between the fiduciaries and the beneficiaries of a trust founders on its own terms, for it is not clear that the voting classification is symmetric with the beneficiaries of the programs OHA administers. While the bulk of the funds appears to be earmarked for the benefit of "native Hawaiians," the State permits both "native Hawaiians" and "Hawaiians" to vote for trustees. The argument fails on more essential grounds; it rests on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters. There is no room under the Amendment for the concept that the right to vote in a particular election can be allocated based on race. Pp. 517-524.146 F.3d 1075, reversed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined. BREYER, J., filed an opinion concurring in the result, in which SOUTER, J., joined, post, p. 524. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined as to Part II, post, p. 527. GINSBURG, J., filed a dissenting opinion, post, p. 547.Theodore B. Olson argued the cause for petitioner. With him on the briefs were Douglas R. Cox and Thomas G. Hungar.John G. Roberts, Jr., argued the cause for respondent.With him on the brief were Earl 1. Anzai, Attorney General of Hawaii, Girard D. Lau, Dorothy Sellers, and Charleen M. Aina, Deputy Attorneys General, and Gregory G. Garre.498Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Waxman, Assistant Attorney General Schiffer, Deputy Solicitor General Underwood, Irving L. Gornstein, and Elizabeth Ann Peterson. *JUSTICE KENNEDY delivered the opinion of the Court.A citizen of Hawaii comes before us claiming that an explicit, race-based voting qualification has barred him from voting in a statewide election. The Fifteenth Amendment to the Constitution of the United States, binding on the National Government, the States, and their political subdivisions, controls the case.The Hawaiian Constitution limits the right to vote for nine trustees chosen in a statewide election. The trustees com-*Briefs of amici curiae urging reversal were filed for the Campaign for a Color-Blind America et al. by Richard K. Willard and Shannen W Coffin; and for the Center for Equal Opportunity et al. by Brett M. Kavanaugh, Robert H. Bork, and Roger Clegg.Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, and Thomas F. Gede, Special Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, John F. Tarantino of Guam, Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New Mexico, Maya B. Kara of the Northern Mariana Islands, W A. Drew Edmondson of Oklahoma, and Hardy Myers of Oregon; for the Alaska Federation of Natives et al. by Jeffrey L. Bleich; for the Kamehameha Schools Bishop Estate Trust by Carter G. Phillips, Virginia A. Seitz, and C. Michael Hare; for the National Congress of American Indians by Kim Jerome Gottschalk and Steven C. Moore; for the State Council of Hawaiian Homestead Associations et al. by Paul Alston, William M. Tam, Lea Hong, and David M. Forman; and for the Office of Hawaiian Affairs et al. by Harry R. Sachse, Reid Peyton Chambers, Arthur Lazarus, Jr., Sherry P. Broder, and Jon M. Van Dyke.Briefs of amici curiae were filed for the Hawai'i Congressional Delegations by Patricia M. Zell, Jennifer M. L. Chock, and Janet Erickson; for the Hou Hawaiians et al. by Walter R. Schoettle; and for the Pacific Legal Foundation by John H. Findley and Sharon L. Browne.499pose the governing authority of a state agency known as the Office of Hawaiian Affairs, or aHA. Haw. Const., Art. XII, § 5. The agency administers programs designed for the benefit of two subclasses of the Hawaiian citizenry. The smaller class comprises those designated as "native Hawaiians," defined by statute, with certain supplementary language later set out in full, as descendants of not less than one-half part of the races inhabiting the Hawaiian Islands prior to 1778. Haw. Rev. Stat. § 10-2 (1993). The second, larger class of persons benefited by aHA programs is "Hawaiians," defined to be, with refinements contained in the statute we later quote, those persons who are descendants of people inhabiting the Hawaiian Islands in 1778. Ibid. The right to vote for trustees is limited to "Hawaiians," the second, larger class of persons, which of course includes the smaller class of "native Hawaiians." Haw. Const., Art. XII, § 5.Petitioner Rice, a citizen of Hawaii and thus himself a Hawaiian in a well-accepted sense of the term, does not have the requisite ancestry even for the larger class. He is not, then, a "Hawaiian" in terms of the statute; so he may not vote in the trustee election. The issue presented by this case is whether Rice may be so barred. Rejecting the State's arguments that the classification in question is not racial or that, if it is, it is nevertheless valid for other reasons, we hold Hawaii's denial of petitioner's right to vote to be a clear violation of the Fifteenth Amendment.IWhen Congress and the State of Hawaii enacted the laws we are about to discuss and review, they made their own assessments of the events which intertwine Hawaii's history with the history of America itself. We will begin with a very brief account of that historical background. Historians and other scholars who write of Hawaii will have a different purpose and more latitude than do we. They may draw judgments either more laudatory or more harsh than the500ones to which we refer. Our more limited role, in the posture of this particular case, is to recount events as understood by the lawmakers, thus ensuring that we accord proper appreciation to their purposes in adopting the policies and laws at issue. The litigants seem to agree that two works in particular are appropriate for our consideration, and we rely in part on those sources. See L. Fuchs, Hawaii Pono:An Ethnic and Political History (1961) (hereinafter Fuchs); 1-3 R. Kuykendall, The Hawaiian Kingdom (1938); (1953); (1967) (hereinafter Kuykendall).The origins of the first Hawaiian people and the date they reached the islands are not established with certainty, but the usual assumption is that they were Polynesians who voyaged from Tahiti and began to settle the islands around A. D. 750. Fuchs 4; 1 Kuykendall 3; see also G. Daws, Shoal of Time: A History of the Hawaiian Islands xii-xiii (1968) (Marquesas Islands and Tahiti). When England's Captain Cook made landfall in Hawaii on his expedition in 1778, the Hawaiian people had developed, over the preceding 1,000 years or so, a cultural and political structure of their own. They had well-established traditions and customs and practiced a polytheistic religion. Agriculture and fishing sustained the people, and, though population estimates vary, some modern historians conclude that the population in 1778 was about 200,000-300,000. See Fuchs 4; R. Schmitt, Historical Statistics of Hawaii 7 (1977) (hereinafter Schmitt). The accounts of Hawaiian life often remark upon the people's capacity to find beauty and pleasure in their island existence, but life was not altogether idyllic. In Cook's time the islands were ruled by four different kings, and intra-Hawaiian wars could inflict great loss and suffering. Kings or principal chieftains, as well as high priests, could order the death or sacrifice of any subject. The society was one, however, with its own identity, its own cohesive forces, its own history.In the years after Cook's voyage many expeditions would follow. A few members of the ships' companies remained on501the islands, some as authorized advisers, others as deserters. Their intermarriage with the inhabitants of Hawaii was not infrequent.In 1810, the islands were united as one kingdom under the leadership of an admired figure in Hawaiian history, Kamehameha 1. It is difficult to say how many settlers from Europe and America were in Hawaii when the King consolidated his power. One historian estimates there were no more than 60 or so settlers at that time. 1 Kuykendall 27. An influx was soon to follow. Beginning about 1820, missionaries arrived, of whom Congregationalists from New England were dominant in the early years. They sought to teach Hawaiians to abandon religious beliefs and customs that were contrary to Christian teachings and practices.The 1800's are a story of increasing involvement of westerners in the economic and political affairs of the Kingdom. Rights to land became a principal concern, and there was unremitting pressure to allow non-Hawaiians to use and to own land and to be secure in their title. Westerners were not the only ones with pressing concerns, however, for the disposition and ownership of land came to be an unsettled matter among the Hawaiians themselves.The status of Hawaiian lands has presented issues of complexity and controversy from at least the rule of Kamehameha I to the present day. We do not attempt to interpret that history, lest our comments be thought to bear upon issues not before us. It suffices to refer to various of the historical conclusions that appear to have been persuasive to Congress and to the State when they enacted the laws soon to be discussed.When Kamehameha I came to power, he reasserted suzerainty over all lands and provided for control of parts of them by a system described in our own cases as "feudal." Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 232 (1984); Kaiser Aetna v. United States, 444 U. S. 164, 166 (1979). A well-known description of the King's early decrees is con-502tained in an 1864 opinion of the Supreme Court of the Kingdom of Hawaii. The court, in turn, drew extensively upon an earlier report which recited, in part, as follows:"'When the islands were conquered by Kamehameha 1., he followed the example of his predecessors, and divided out the lands among his principal warrior chiefs, retaining, however, a portion in his own hands to be cultivated or managed by his own immediate servants or attendants. Each principal chief divided his lands anew and gave them out to an inferior order of chiefs or persons of rank, by whom they were subdivided again and again after (often) passing through the hands of four, five or six persons from the King down to the lowest class of tenants. All these persons were considered to have rights in the lands, or the productions of them, the proportions of which rights were not clearly defined, although universally acknowledged .... The same rights which the King possessed over the superior landlords and all under them, the several grades of landlords possessed over their inferiors, so that there was a joint ownership of the land, the King really owning the allodium, and the person in whose hands he placed the land, holding it in trust.'" In re Estate of His Majesty Kamehameha IV, 2 Haw. 715, 718-719 (quoting Principles Adopted by the Board of Commissioners to Quiet Land Titles, 2 Stat. Laws 81-82 (Haw. Kingdom 1847)).Beginning in 1839 and through the next decade, a successive ruler, Kamehameha III, approved a series of decrees and laws designed to accommodate demands for ownership and security of title. In the words of the Hawaiian Supreme Court, "[t]he subject of rights in land was one of daily increasing importance to the newly formed Government, for it was obvious that the internal resources of the country could not be developed until the system of undivided and undefined ownership in land should be abolished." 2 Haw., at 721.503Arrangements were made to confer freehold title in some lands to certain chiefs and other individuals. The King retained vast lands for himself, and directed that other extensive lands be held by the government, which by 1840 had adopted the first Constitution of the islands. Thus was effected a fundamental and historic division, known as the Great Mahele. In 1850, foreigners, in turn, were given the right of land ownership.The new policies did not result in wide dispersal of ownership. Though some provisions had been attempted by which tenants could claim lands, these proved ineffective in many instances, and ownership became concentrated. In 1920, the Congress of the United States, in a Report on the bill establishing the Hawaiian Homes Commission, made an assessment of Hawaiian land policy in the following terms:"Your committee thus finds that since the institution of private ownership of lands in Hawaii the native Hawaiians, outside of the King and the chiefs, were granted and have held but a very small portion of the lands of the Islands. Under the homestead laws somewhat more than a majority of the lands were homesteaded to Hawaiians, but a great many of these lands have been lost through improvidence and inability to finance farming operations. Most frequently, however, the native Hawaiian, with no thought of the future, has obtained the land for a nominal sum, only to turn about and sell it to wealthy interests for a sum more nearly approaching its real value. The Hawaiians are not business men and have shown themselves unable to meet competitive conditions unaided. In the end the speculators are the real beneficiaries of the homestead laws. Thus the tax returns for 1919 show that only 6.23 per centum of the property of the Islands is held by native Hawaiians and this for the most part is lands in the possession of approximately a thousand wealthy Hawaiians, the504descendents of the chiefs." H. R. Rep. No. 839, 66th Cong., 2d Sess., 6 (1920).While these developments were unfolding, the United States and European powers made constant efforts to protect their interests and to influence Hawaiian political and economic affairs in general. The first "articles of arrangement" between the United States and the Kingdom of Hawaii were signed in 1826, 8 Department of State, Treaties and Other International Agreements of the United States of America 1776-1949, p. 861 (C. Bevans compo 1968), and additional treaties and conventions between the two countries were signed in 1849, 1875, and 1887, see Treaty with the Hawaiian Islands, 9 Stat. 977 (1849) (friendship, commerce, and navigation); Convention between the United States of America and His Majesty the King of the Hawaiian Islands, 19 Stat. 625 (1875) (commercial reciprocity); Supplementary Convention between the United States of America and His Majesty the King of the Hawaiian Islands, 25 Stat. 1399 (1887) (same). The United States was not the only country interested in Hawaii and its affairs, but by the later part of the century the reality of American dominance in trade, settlement, economic expansion, and political influence became apparent.Tensions intensified between an anti-Western, pro-native bloc in the government on the one hand and western business interests and property owners on the other. The conflicts came to the fore in 1887. Westerners forced the resignation of the Prime Minister of the Kingdom of Hawaii and the adoption of a new Constitution, which, among other things, reduced the power of the monarchy and extended the right to vote to non-Hawaiians. 3 Kuykendall 344-372.Tensions continued through 1893, when they again peaked, this time in response to an attempt by the then-Hawaiian monarch, Queen Liliuokalani, to promulgate a new constitution restoring monarchical control over the House of Nobles and limiting the franchise to Hawaiian subjects. A so-called505Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with United States Armed Forces, replaced the monarchy with a provisional government. That government sought annexation by the United States. On December 18 of the same year, President Cleveland, unimpressed and indeed offended by the actions of the American Minister, denounced the role of the American forces and called for restoration of the Hawaiian monarchy. Message of the President to the Senate and House of Representatives, reprinted in H. R. Rep. No. 243, 53d Cong., 2d Sess., 3-15 (1893). The Queen could not resume her former place, however, and, in 1894, the provisional government established the Republic of Hawaii. The Queen abdicated her throne a year later.In 1898, President McKinley signed a Joint Resolution, sometimes called the Newlands Resolution, to annex the Hawaiian Islands as territory of the United States. 30 Stat. 750. According to the Joint Resolution, the Republic of Hawaii ceded all former Crown, government, and public lands to the United States. Ibid. The resolution further provided that revenues from the public lands were to be "used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." Ibid. Two years later the Hawaiian Organic Act established the Territory of Hawaii, asserted United States control over the ceded lands, and put those lands "in the possession, use, and control of the government of the Territory of Hawaii ... until otherwise provided for by Congress." Act of Apr. 30, 1900, ch. 339, § 91, 31 Stat. 159.In 1993, a century after the intervention by the Committee of Safety, the Congress of the United States reviewed this history, and in particular the role of Minister Stevens. Congress passed a Joint Resolution recounting the events in some detail and offering an apology to the native Hawaiian people. 107 Stat. 1510.506Before we turn to the relevant provisions two other important matters, which affected the demographics of Hawaii, must be recounted. The first is the tragedy inflicted on the early Hawaiian people by the introduction of western diseases and infectious agents. As early as the establishment of the rule of Kamehameha I, it was becoming apparent that the native population had serious vulnerability to diseases borne to the islands by settlers. High mortality figures were experienced in infancy and adulthood, even from common illnesses such as diarrhea, colds, and measles. Fuchs 13; see Schmitt 58. More serious diseases took even greater tolls. In the smallpox epidemic of 1853, thousands of lives were lost. Ibid. By 1878, 100 years after Cook's arrival, the native population had been reduced to about 47,500 people. Id., at 25. These mortal illnesses no doubt were an initial cause of the despair, disenchantment, and despondency some commentators later noted in descendents of the early Hawaiian people. See Fuchs 13.The other important feature of Hawaiian demographics to be noted is the immigration to the islands by people of many different races and cultures. Mostly in response to the demand of the sugar industry for arduous labor in the cane fields, successive immigration waves brought Chinese, Portuguese, Japanese, and Filipinos to Hawaii. Beginning with the immigration of 293 Chinese in 1852, the plantations alone drew to Hawaii, in one estimate, something over 400,000 men, women, and children over the next century. Id., at 24; A. Lind, Hawaii's People 6-7 (4th ed. 1980). Each of these ethnic and national groups has had its own history in Hawaii, its own struggles with societal and official discrimination, its own successes, and its own role in creating the present society of the islands. See E. Nordyke, The Peopling of Hawai'i 28-98 (2d ed. 1989). The 1990 census figures show the resulting ethnic diversity of the Hawaiian population. U. S. Dept. of Commerce, Bureau of Census, 1990 Census of Popu-507lation, Supplementary Reports, Detailed Ancestry Groups for States (Oct. 1992).With this background we turn to the legislative enactments of direct relevance to the case before us.IINot long after the creation of the new Territory, Congress became concerned with the condition of the native Hawaiian people. See H. R. Rep. No. 839, at 2-6; Hearings on the Rehabilitation and Colonization of Hawaiians and Other Proposed Amendments to the Organic Act of the Territory of Hawaii before the House Committee on the Territories, 66th Cong., 2d Sess. (1920). Reciting its purpose to rehabilitate the native Hawaiian population, see H. R. Rep. No. 839, at 1-2, Congress enacted the Hawaiian Homes Commission Act, which set aside about 200,000 acres of the ceded public lands and created a program of loans and long-term leases for the benefit of native Hawaiians. Act of July 9, 1921, ch. 42, 42 Stat. 108. The Act defined "native Hawaiian[sJ" to include "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778." Ibid.Hawaii was admitted as the 50th State of the Union in 1959. With admission, the new State agreed to adopt the Hawaiian Homes Commission Act as part of its own Constitution. Pub. L. 86-3, §§ 4, 7, 73 Stat. 5, 7 (Admission Act); see Haw. Const., Art. XII, §§ 1-3. In addition, the United States granted Hawaii title to all public lands and public property within the boundaries of the State, save those which the Federal Government retained for its own use. Admission Act §§ 5(b)-(d), 73 Stat. 5. This grant included the 200,000 acres set aside under the Hawaiian Homes Commission Act and almost 1.2 million additional acres of land. Brief for United States as Amicus Curiae 4.The legislation authorizing the grant recited that these lands, and the proceeds and income they generated, were to508be held "as a public trust" to be "managed and disposed of for one or more of" five purposes:"[1] for the support of the public schools and other public educational institutions, [2] for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, [3] for the development of farm and home ownership on as widespread a basis as possible[,] [4] for the making of public improvements, and [5] for the provision of lands for public use." Admission Act § 5(f), 73 Stat. 6.In the first decades following admission, the State apparently continued to administer the lands that had been set aside under the Hawaiian Homes Commission Act for the benefit of native Hawaiians. The income from the balance of the public lands is said to have "by and large flowed to the department of education." Hawaii Senate Journal, Standing Committee Rep. No. 784, pp. 1350, 1351 (1979).In 1978 Hawaii amended its Constitution to establish the Office of Hawaiian Affairs, Haw. Const., Art. XII, § 5, which has as its mission "[t]he betterment of conditions of native Hawaiians ... [and] Hawaiians," Haw. Rev. Stat. § 10-3 (1993). Members of the 1978 constitutional convention, at which the new amendments were drafted and proposed, set forth the purpose of the proposed agency:"Members [of the Committee of the Whole] were impressed by the concept of the Office of Hawaiian Affairs which establishes a public trust entity for the benefit of the people of Hawaiian ancestry. Members foresaw that it will provide Hawaiians the right to determine the priorities which will effectuate the betterment of their condition and welfare and promote the protection and preservation of the Hawaiian race, and that it will unite Hawaiians as a people." 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Committee of the Whole Rep. No. 13, p. 1018 (1980).509Implementing statutes and their later amendments vested aHA with broad authority to administer two categories of funds: a 20 percent share of the revenue from the 1.2 million acres of lands granted to the State pursuant to § 5(b) of the Admission Act, which aHA is to administer "for the betterment of the conditions of native Hawaiians," Haw. Rev. Stat. § 10-13.5 (1993), and any state or federal appropriations or private donations that may be made for the benefit of "native Hawaiians" and/or "Hawaiians," Haw. Const., Art. XII, § 6. See generally Haw. Rev. Stat. §§ 10-1 to 10-16. (The 200,000 acres set aside under the Hawaiian Homes Commission Act are administered by a separate agency. See Haw. Rev. Stat. § 26-17 (1993).) The Hawaiian Legislature has charged aHA with the mission of "[s]erving as the principal public agency ... responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians," "[a]ssessing the policies and practices of other agencies impacting on native Hawaiians and Hawaiians," "conducting advocacy efforts for native Hawaiians and Hawaiians," "[a]pplying for, receiving, and disbursing, grants and donations from all sources for native Hawaiian and Hawaiian programs and services," and "[s]erving as a receptacle for reparations." § 10-3.aHA is overseen by a nine-member board of trustees, the members of which "shall be Hawaiians" and-presenting the precise issue in this case-shall be "elected by qualified voters who are Hawaiians, as provided by law." Haw. Const., Art. XII, § 5; see Haw. Rev. Stat. §§ 13D-1, 13D-3(b)(1) (1993). The term "Hawaiian" is defined by statute:" 'Hawaiian' means any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii." § 10-2.The statute defines "native Hawaiian" as follows:510"'Native Hawaiian' means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii." Ibid.Petitioner Harold Rice is a citizen of Hawaii and a descendant of preannexation residents of the islands. He is not, as we have noted, a descendant of pre-1778 natives, and so he is neither "native Hawaiian" nor "Hawaiian" as defined by the statute. Rice applied in March 1996 to vote in the elections for aHA trustees. To register to vote for the office of trustee he was required to attest: "I am also Hawaiian and desire to register to vote in aHA elections." Affidavit on Application for Voter Registration, Lodging by Petitioner, Tab 2. Rice marked through the words "am also Hawaiian and," then checked the form "yes." The State denied his application.Rice sued Benjamin Cayetano, the Governor of Hawaii, in the United States District Court for the District of Hawaii. (The Governor was sued in his official capacity, and the Attorney General of Hawaii defends the challenged enactments. We refer to the respondent as "the State.") Rice contested his exclusion from voting in elections for aHA trustees and from voting in a special election relating to native Hawaiian sovereignty which was held in August 1996. After the District Court rejected the latter challenge, see Rice v. Cayetano, 941 F. Supp. 1529 (1996) (a decision not before us), the parties moved for summary judgment on the claim that the Fourteenth and Fifteenth Amendments to the United States Constitution invalidate the law excluding Rice from the aHA trustee elections.511The District Court granted summary judgment to the State. 963 F. Supp. 1547 (Haw. 1997). Surveying the history of the islands and their people, the District Court determined that Congress and the State of Hawaii have recognized a guardian-ward relationship with the native Hawaiians, which the court found analogous to the relationship between the United States and the Indian tribes. Id., at 1551-1554. On this premise, the court examined the voting qualification with the latitude that we have applied to legislation passed pursuant to Congress' power over Indian affairs. Id., at 1554-1555 (citing Morton v. Mancari, 417 U. S. 535 (1974)). Finding that the electoral scheme was "rationally related to the State's responsibility under the Admission Act to utilize a portion of the proceeds from the § 5(b) lands for the betterment of Native Hawaiians," the District Court held that the voting restriction did not violate the Constitution's ban on racial classifications. 963 F. Supp., at 1554-1555.The Court of Appeals affirmed. 146 F.3d 1075 (CA9 1998). The court noted that Rice had not challenged the constitutionality of the underlying programs or of OHA itself. Id., at 1079. Considering itself bound to "accept the trusts and their administrative structure as [it found] them, and assume that both are lawful," the court held that Hawaii "may rationally conclude that Hawaiians, being the group to whom trust obligations run and to whom OHA trustees owe a duty of loyalty, should be the group to decide who the trustees ought to be." Ibid. The court so held notwithstanding its clear holding that the Hawaii Constitution and implementing statutes "contain a racial classification on their face." Ibid.We granted certiorari, 526 U. S. 1016 (1999), and now reverse.IIIThe purpose and command of the Fifteenth Amendment are set forth in language both explicit and comprehensive.512The National Government and the States may not violate a fundamental principle: They may not deny or abridge the right to vote on account of race. Color and previous condition of servitude, too, are forbidden criteria or classifications, though it is unnecessary to consider them in the present case.Enacted in the wake of the Civil War, the immediate concern of the Amendment was to guarantee to the emancipated slaves the right to vote, lest they be denied the civil and political capacity to protect their new freedom. Vital as its objective remains, the Amendment goes beyond it. Consistent with the design of the Constitution, the Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment. The Amendment grants protection to all persons, not just members of a particular race.The design of the Amendment is to reaffirm the equality of races at the most basic level of the democratic process, the exercise of the voting franchise. A resolve so absolute required language as simple in command as it was comprehensive in reach. Fundamental in purpose and effect and self-executing in operation, the Amendment prohibits all provisions denying or abridging the voting franchise of any citizen or class of citizens on the basis of race. "[B]y the inherent power of the Amendment the word white disappeared" from our voting laws, bringing those who had been excluded by reason of race within "the generic grant of suffrage made by the State." Guinn v. United States, 238 U. S. 347,363 (1915); see also Neal v. Delaware, 103 U. S. 370, 389 (1881). The Court has acknowledged the Amendment's mandate of neutrality in straightforward terms: "If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination: now there is." United States v. Reese, 92 U. S. 214, 218 (1876).513Though the commitment was clear, the reality remained far from the promise. Manipulative devices and practices were soon employed to deny the vote to blacks. We have cataloged before the "variety and persistence" of these techniques. South Carolina v. Katzenbach, 383 U. S. 301, 311312 (1966) (citing, e. g., Guinn, supra (grandfather clause); Myers v. Anderson, 238 U. S. 368 (1915) (same); Lane v. Wilson, 307 U. S. 268 (1939) ("procedural hurdles"); Terry v. Adams, 345 U. S. 461 (1953) (white primary); Smith v. Allwright, 321 U. S. 649 (1944) (same); United States v. Thomas, 362 U. S. 58 (1960) (per curiam) (registration challenges); Gomillion v. Lightfoot, 364 U. S. 339 (1960) (racial gerrymandering); Louisiana v. United States, 380 U. S. 145 (1965) ("interpretation tests")). Progress was slow, particularly when litigation had to proceed case by case, district by district, sometimes voter by voter. See 383 U. S., at 313-315.Important precedents did emerge, however, which give instruction in the case now before us. The Fifteenth Amendment was quite sufficient to invalidate a scheme which did not mention race but instead used ancestry in an attempt to confine and restrict the voting franchise. In 1910, the State of Oklahoma enacted a literacy requirement for voting eligibility, but exempted from that requirement the "'lineal descendant[sJ''' of persons who were" 'on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation.'" Guinn, supra, at 357. Those persons whose ancestors were entitled to vote under the State's previous, discriminatory voting laws were thus exempted from the eligibility test. Recognizing that the test served only to perpetuate those old laws and to effect a transparent racial exclusion, the Court invalidated it. 238 U. S., at 364-365.More subtle, perhaps, than the grandfather device in Guinn were the evasions attempted in the white primary cases; but the Fifteenth Amendment, again by its own terms, sufficed to strike down these voting systems, systems de-514signed to exclude one racial class (at least) from voting. See Terry, supra, at 469-470; Allwright, supra, at 663-666 (overruling Grovey v. Townsend, 295 U. S. 45 (1935)). The Fifteenth Amendment, the Court held, could not be so circumvented: "The Amendment bans racial discrimination in voting by both state and nation. It thus establishes a national policy ... not to be discriminated against as voters in elections to determine public governmental policies or to select public officials, national, state, or local." Terry, supra, at 467.Unlike the cited cases, the voting structure now before us is neither subtle nor indirect. It is specific in granting the vote to persons of defined ancestry and to no others. The State maintains this is not a racial category at all but instead a classification limited to those whose ancestors were in Hawaii at a particular time, regardless of their race. Brief for Respondent 38-40. The State points to theories of certain scholars concluding that some inhabitants of Hawaii as of 1778 may have migrated from the Marquesas Islands and the Pacific Northwest, as well as from Tahiti. Id., at 38-39, and n. 15. Furthermore, the State argues, the restriction in its operation excludes a person whose traceable ancestors were exclusively Polynesian if none of those ancestors resided in Hawaii in 1778; and, on the other hand, the vote would be granted to a person who could trace, say, one sixtyfourth of his or her ancestry to a Hawaiian inhabitant on the pivotal date. Ibid. These factors, it is said, mean the restriction is not a racial classification. We reject this line of argument.Ancestry can be a proxy for race. It is that proxy here.Even if the residents of Hawaii in 1778 had been of more diverse ethnic backgrounds and cultures, it is far from clear that a voting test favoring their descendants would not be a race-based qualification. But that is not this case. For centuries Hawaii was isolated from migration. 1 Kuykendall 3. The inhabitants shared common physical character-515istics, and by 1778 they had a common culture. Indeed, the drafters of the statutory definition in question emphasized the "unique culture of the ancient Hawaiians" in explaining their work. Hawaii Senate Journal, Standing Committee Rep. No. 784, at 1354; see ibid. ("Modern scholarship also identified such race of people as culturally distinguishable from other Polynesian peoples"). The provisions before us reflect the State's effort to preserve that commonality of people to the present day. In the interpretation of the Reconstruction era civil rights laws we have observed that "racial discrimination" is that which singles out "identifiable classes of persons ... solely because of their ancestry or ethnic characteristics." Saint Francis College v. Al-Khazraji, 481 U. S. 604, 613 (1987). The very object of the statutory definition in question and of its earlier congressional counterpart in the Hawaiian Homes Commission Act is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose.The history of the State's definition demonstrates thepoint. As we have noted, the statute defines "Hawaiian" as"any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii." Haw. Rev. Stat. § 10-2 (1993).A different definition of "Hawaiian" was first promulgated in 1978 as one of the proposed amendments to the State Constitution. As proposed, "Hawaiian" was defined as "any descendant of the races inhabiting the Hawaiian Islands, previous to 1778." 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Committee of the Whole Rep. No. 13, at 1018. Rejected as not ratified in a valid manner, see Kahalekai v. Doi, 60 Haw. 324, 342, 590 P. 2d 543, 555 (1979),516the definition was modified and in the end promulgated in statutory form as quoted above. See Hawaii Senate Journal, Standing Committee Rep. No. 784, at 1350, 1353-1354; id., Conf. Comm. Rep. No. 77, at 998. By the drafters' own admission, however, any changes to the language were at most cosmetic. Noting that "[t]he definitions of 'native Hawaiian' and 'Hawaiian' are changed to substitute 'peoples' for 'races,'" the drafters of the revised definition "stress[ed] that this change is non-substantive, and that 'peoples' does mean 'races.'" Ibid.; see also id., at 999 ("[T]he word 'peoples' has been substituted for 'races' in the definition of 'Hawaiian'. Again, your Committee wishes to emphasize that this substitution is merely technical, and that 'peoples' does mean 'races' ").The next definition in Hawaii's compilation of statutes incorporates the new definition of "Hawaiian" and preserves the explicit tie to race:"'Native Hawaiian' means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii." Haw. Rev. Stat. § 10-2 (1993). This provision makes it clear: "[T]he descendants ... of [the] aboriginal peoples" means "the descendants ... of the races." Ibid.As for the further argument that the restriction differentiates even among Polynesian people and is based simply on the date of an ancestor's residence in Hawaii, this too is insufficient to prove the classification is nonracial in purpose and operation. Simply because a class defined by ancestry does not include all members of the race does not suffice to517make the classification race neutral. Here, the State's argument is undermined by its express racial purpose and by its actual effects.The ancestral inquiry mandated by the State implicates the same grave concerns as a classification specifying a particular race by name. One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens.The ancestral inquiry mandated by the State is forbidden by the Fifteenth Amendment for the further reason that the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U. S. 81, 100 (1943). Ancestral tracing of this sort achieves its purpose by creating a legal category which employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name. The State's electoral restriction enacts a race-based voting qualification.IVThe State offers three principal defenses of its voting law, any of which, it contends, allows it to prevail even if the classification is a racial one under the Fifteenth Amendment. We examine, and reject, each of these arguments.518AThe most far reaching of the State's arguments is that exclusion of non-Hawaiians from voting is permitted under our cases allowing the differential treatment of certain members of Indian tribes. The decisions of this Court, interpreting the effect of treaties and congressional enactments on the subject, have held that various tribes retained some elements of quasi-sovereign authority, even after cession of their lands to the United States. See Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 425 (1989) (plurality opinion); Oliphant v. Suquamish Tribe, 435 U. S. 191, 208 (1978). The retained tribal authority relates to self-governance. Brendale, supra, at 425 (plurality opinion). In reliance on that theory the Court has sustained a federal provision giving employment preferences to persons of tribal ancestry. Mancari, 417 U. S., at 553-555. The Mancari case, and the theory upon which it rests, are invoked by the State to defend its decision to restrict voting for the OHA trustees, who are charged so directly with protecting the interests of native Hawaiians.If Hawaii's restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. Among other postulates, it would be necessary to conclude that Congress, in reciting the purposes for the transfer of lands to the Stateand in other enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993-has determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the State a broad authority to preserve that status. These propositions would raise questions of considerable moment and difficulty. It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes. Compare Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale L. & Pol'y Rev. 95 (1998), with Benjamin, Equal Protection and the Special Re-519lationship: The Case of Native Hawaiians, 106 Yale L. J. 537 (1996). We can stay far off that difficult terrain, however.The State's argument fails for a more basic reason. Even were we to take the substantial step of finding authority in Congress, delegated to the State, to treat Hawaiians or native Hawaiians as tribes, Congress may not authorize a State to create a voting scheme of this sort.Of course, as we have established in a series of cases, Congress may fulfill its treaty obligations and its responsibilities to the Indian tribes by enacting legislation dedicated to their circumstances and needs. See Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 673, n. 20 (1979) (treaties securing preferential fishing rights); United States v. Antelope, 430 U. S. 641, 645-647 (1977) (exclusive federal jurisdiction over crimes committed by Indians in Indian country); Delaware Tribal Business Comm. v. Weeks, 430 U. S. 73, 84-85 (1977) (distribution of tribal property); Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 479-480 (1976) (Indian immunity from state taxes); Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 390-391 (1976) (per curiam) (exclusive tribal court jurisdiction over tribal adoptions). As we have observed, "every piece of legislation dealing with Indian tribes and reservations ... single[s] out for special treatment a constituency of tribal Indians." Mancari, supra, at 552.Mancari, upon which many of the above cases rely, presented the somewhat different issue of a preference in hiring and promoting at the federal Bureau of Indian Affairs (BIA), a preference which favored individuals who were "'onefourth or more degree Indian blood and ... member[s] of a Federally-recognized tribe.'" 417 U. S., at 553, n. 24 (quoting 44 BIAM 335, 3.1 (1972)). Although the classification had a racial component, the Court found it important that the preference was "not directed towards a 'racial' group consisting of 'Indians,'" but rather "only to members of 'fed-520erally recognized' tribes." 417 U. S., at 553, n. 24. "In this sense," the Court held, "the preference [was] political rather than racial in nature." Ibid.; see also id., at 554 ("The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion"). Because the BIA preference could be "tied rationally to the fulfillment of Congress' unique obligation toward the Indians," and was "reasonable and rationally designed to further Indian self-government," the Court held that it did not offend the Constitution. Id., at 555. The opinion was careful to note, however, that the case was confined to the authority of the BIA, an agency described as "sui generis." Id., at 554.Hawaii would extend the limited exception of Mancari to a new and larger dimension. The State contends that "one of the very purposes of aHA-and the challenged voting provision-is to afford Hawaiians a measure of selfgovernance," and so it fits the model of Mancari. Brief for Respondent 34. It does not follow from Mancari, however, that Congress may authorize a State to establish a voting scheme that limits the electorate for its public officials to a class of tribal Indians, to the exclusion of all non-Indian citizens.The tribal elections established by the federal statutes the State cites illuminate its error. See Brief for Respondent 22 (citing, e. g., the Menominee Restoration Act, 25 U. S. C. § 903b, and the Indian Reorganization Act, 25 U. S. C. § 476). If a non-Indian lacks a right to vote in tribal elections, it is for the reason that such elections are the internal affair of a quasi sovereign. The aHA elections, by contrast, are the affair of the State of Hawaii. aHA is a state agency, established by the State Constitution, responsible for the administration of state laws and obligations. See Haw. Const., Art. XII, §§ 5-6. The Hawaiian Legislature has declared that aHA exists to serve "as the principal public agency in thee]521State responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians." Haw. Rev. Stat. § 10-3(3) (1993); see also Lodging by Petitioner, Tab 6, OHA Annual Report 1993-1994, p. 5 (May 27, 1994) (admitting that "OHA is technically a part of the Hawai'i state government," while asserting that "it operates as a semi-autonomous entity"). Foremost among the obligations entrusted to this agency is the administration of a share of the revenues and proceeds from public lands, granted to Hawaii to "be held by said State as a public trust." Admission Act §§ 5(b), (f), 73 Stat. 5, 6; see Haw. Const., Art. XII, § 4.The delegates to the 1978 constitutional convention ex-plained the position of OHA in the state structure:"The committee intends that the Office of Hawaiian Affairs will be independent from the executive branch and all other branches of government although it will assume the status of a state agency. The chairman may be an ex officio member of the governor's cabinet. The status of the Office of Hawaiian Affairs is to be unique and special. ... The committee developed this office based on the model of the University of Hawaii. In particular, the committee desired to use this model so that the office could have maximum control over its budget, assets and personnel. The committee felt that it was important to arrange a method whereby the assets of Hawaiians could be kept separate from the rest of the state treasury." 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Standing Committee Rep. No. 59, at 645.Although it is apparent that OHA has a unique position under state law, it is just as apparent that it remains an arm of the State.The validity of the voting restriction is the only question before us. As the Court of Appeals did, we assume the va-522lidity of the underlying administrative structure and trusts, without intimating any opinion on that point. Nonetheless, the elections for aHA trustee are elections of the State, not of a separate quasi sovereign, and they are elections to which the Fifteenth Amendment applies. To extend Mancari to this context would be to permit a State, by racial classification, to fence out whole classes of its citizens from decisionmaking in critical state affairs. The Fifteenth Amendment forbids this result.BHawaii further contends that the limited voting franchise is sustainable under a series of cases holding that the rule of one person, one vote does not pertain to certain special purpose districts such as water or irrigation districts. See Ball v. James, 451 U. S. 355 (1981); Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U. S. 719 (1973). Just as the Mancari argument would have involved a significant extension or new application of that case, so too it is far from clear that the Salyer line of cases would be at all applicable to statewide elections for an agency with the powers and responsibilities of aHA.We would not find those cases dispositive in any event, however. The question before us is not the one-person, one-vote requirement of the Fourteenth Amendment, but the race neutrality command of the Fifteenth Amendment. Our special purpose district cases have not suggested that compliance with the one-person, one-vote rule of the Fourteenth Amendment somehow excuses compliance with the Fifteenth Amendment. We reject that argument here. We held four decades ago that state authority over the boundaries of political subdivisions, "extensive though it is, is met and overcome by the Fifteenth Amendment to the Constitution." Gomillion, 364 U. S., at 345. The Fifteenth Amendment has independent meaning and force. A State may not deny or abridge the right to vote on account of race, and this law does so.523cHawaii's final argument is that the voting restriction does no more than ensure an alignment of interests between the fiduciaries and the beneficiaries of a trust. Thus, the contention goes, the restriction is based on beneficiary status rather than race.As an initial matter, the contention founders on its own terms, for it is not clear that the voting classification is symmetric with the beneficiaries of the programs aHA administers. Although the bulk of the funds for which aHA is responsible appears to be earmarked for the benefit of "native Hawaiians," the State permits both "native Hawaiians" and "Hawaiians" to vote for the office of trustee. The classification thus appears to create, not eliminate, a differential alignment between the identity of aHA trustees and what the State calls beneficiaries.Hawaii's argument fails on more essential grounds. The State's position rests, in the end, on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters. That reasoning attacks the central meaning of the Fifteenth Amendment. The Amendment applies to "any election in which public issues are decided or public officials selected." Terry, 345 U. S., at 468. There is no room under the Amendment for the concept that the right to vote in a particular election can be allocated based on race. Race cannot qualify some and disqualify others from full participation in our democracy. All citizens, regardless of race, have an interest in selecting officials who make policies on their behalf, even if those policies will affect some groups more than others. Under the Fifteenth Amendment voters are treated not as members of a distinct race but as members of the whole citizenry. Hawaii may not assume, based on race, that petitioner or any other of its citizens will not cast a principled vote. To accept the position advanced by the State would give rise to the same indignities, and the same resulting tensions and ani-524BREYER, J., concurring in resultmosities, the Amendment was designed to eliminate. The voting restriction under review is prohibited by the Fifteenth Amendment.***When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations; and their dismay may be shared by many members of the larger community. As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii.In this case the Fifteenth Amendment invalidates the electoral qualification based on ancestry. The judgment of the Court of Appeals for the Ninth Circuit is reversed.It is so ordered

OCTOBER TERM, 1999SyllabusRICE v. CAYETANO, GOVERNOR OF HAWAIICERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 98-818. Argued October 6, 1999-Decided February 23, 2000The Hawaiian Constitution limits the right to vote for nine trustees chosen in a statewide election. The trustees compose the governing authority of a state agency known as the Office of Hawaiian Mfairs, or OHA. The agency administers programs designed for the benefit of two subclasses of Hawaiian citizenry, "Hawaiians" and "native Hawaiians." State law defines "native Hawaiians" as descendants of not less than one-half part of the races inhabiting the islands before 1778, and "Hawaiians"-a larger class that includes "native Hawaiians"-as descendants of the peoples inhabiting the Hawaiian Islands in 1778. The trustees are chosen in a statewide election in which only "Hawaiians" may vote. Petitioner Rice, a Hawaiian citizen without the requisite ancestry to be a "Hawaiian" under state law, applied to vote in OHA trustee elections. When his application was denied, he sued respondent Governor (hereinafter State), claiming, inter alia, that the voting exclusion was invalid under the Fourteenth and Fifteenth Amendments. The Federal District Court granted the State summary judgment. Surveying the history of the islands and their people, it determined that Congress and Hawaii have recognized a guardian-ward relationship with the native Hawaiians, which is analogous to the relationship between the United States and Indian tribes. It examined the voting qualifications with the latitude applied to legislation passed pursuant to Congress' power over Indian affairs, see Morton v. Mancari, 417 U. S. 535, and found that the electoral scheme was rationally related to the State's responsibility under its Admission Act to utilize a part of the proceeds from certain public lands for the native Hawaiians' benefit. The Ninth Circuit affirmed, finding that Hawaii "may rationally conclude that Hawaiians, being the group to whom trust obligations run and to whom OHA trustees owe a duty of loyalty, should be the group to decide who the trustees ought to be." 146 F.3d 1075, 1079.Held: Hawaii's denial of Rice's right to vote in OHA trustee elections violates the Fifteenth Amendment. Pp. 511-524.(a) The Amendment's purpose and command are set forth in explicit and comprehensive language. The National Government and the States may not deny or abridge the right to vote on account of race. The Amendment reaffirms the equality of races at the most basic level496Syllabusof the democratic process, the exercise of the voting franchise. It protects all persons, not just members of a particular race. Important precedents give instruction in the instant case. The Amendment was quite sufficient to invalidate a grandfather clause that did not mention race but instead used ancestry in an attempt to confine and restrict the voting franchise, Guinn v. United States, 238 U. S. 347, 364-365; and it sufficed to strike down the white primary systems designed to exclude one racial class (at least) from voting, see, e. g., Terry v. Adams, 345 U. S. 461, 469-470. The voting structure in this case is neither subtle nor indirect; it specifically grants the vote to persons of the defined ancestry and to no others. Ancestry can be a proxy for race. It is that proxy here. For centuries Hawaii was isolated from migration. The inhabitants shared common physical characteristics, and by 1778 they had a common culture. The provisions at issue reflect the State's effort to preserve that commonality to the present day. In interpreting the Reconstruction Era civil rights laws this Court has observed that racial discrimination is that which singles out "identifiable classes of persons ... solely because of their ancestry or ethnic characteristics." Saint Francis College v. Al-Khazraji, 481 U. S. 604, 613. The very object of the statutory definition here is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The history of the State's definition also demonstrates that the State has used ancestry as a racial definition and for a racial purpose. The drafters of the definitions of "Hawaiian" and "native Hawaiian" emphasized the explicit tie to race. The State's additional argument that the restriction is race neutral because it differentiates even among Polynesian people based on the date of an ancestor's residence in Hawaii is undermined by the classification's express racial purpose and its actual effects. The ancestral inquiry in this case implicates the same grave concerns as a classification specifying a particular race by name, for it demeans a person's dignity and worth to be judged by ancestry instead of by his or her own merit and essential qualities. The State's ancestral inquiry is forbidden by the Fifteenth Amendment for the further reason that using racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. The State's electoral restriction enacts a race-based voting qualification. Pp. 511-517.(b) The State's three principal defenses of its voting law are rejected.It argues first that the exclusion of non-Hawaiians from voting is permitted under this Court's cases allowing the differential treatment of Indian tribes. However, even if Congress had the authority, delegated497Full Text of Opinion

1971_70-5030

MR. JUSTICE DOUGLAS delivered the opinion of the Court.This case involves eight defendants who were convicted in a Florida municipal court of violating a Jacksonville, Florida, vagrancy ordinance. [Footnote 1] Their convictions Page 405 U. S. 157 were affirmed by the Florida Circuit Court in a consolidated appeal, and their petition for certiorari was denied by the District Court of Appeal on the authority of Johnson v. State, 202 So. 2d 82. [Footnote 2] The case is Page 405 U. S. 158 here on a petition for certiorari, which we granted. 403 U.S. 917. For reasons which will appear, we reverse.At issue are five consolidated cases. Margaret Papachristou, Betty Calloway, Eugene Eddie Melton, and Leonard Johnson were all arrested early on a Sunday morning, and charged with vagrancy -- "prowling by auto."Jimmy Lee Smith and Milton Henry were charged with vagrancy -- "vagabonds."Henry Edward Heath and a codefendant were arrested for vagrancy -- "loitering" and "common thief."Thomas Owen Campbell was charged with vagrancy -- "common thief."Hugh Brown was charged with vagrancy -- "disorderly loitering on street" and "disorderly conduct -- resisting arrest with violence."The facts are stipulated. Papachristou and Calloway are white females. Melton and Johnson are black males. Papachristou was enrolled in a Job-training program sponsored by the State Employment Service at Florida Junior College in Jacksonville. Calloway was a typing and shorthand teacher at a state mental institution located near Jacksonville. She was the owner of the automobile in which the four defendants were arrested. Melton was a Vietnam war veteran who had been released from the Navy after nine months in a veterans' hospital. On the date of his arrest, he was a part-time computer helper while attending college as a full-time student in Jacksonville. Johnson was a tow-motor operator in a grocery chain warehouse, and was a lifelong resident of Jacksonville.At the time of their arrest, the four of them were riding Page 405 U. S. 159 in Calloway's car on the main thoroughfare in Jacksonville. They had left a restaurant owned by Johnson's uncle, where they had eaten, and were on their way to a nightclub. The arresting officers denied that the racial mixture in the car played any part in the decision to make the arrest. The arrest, they said, was made because the defendants had stopped near a used-car lot which had been broken into several times. There was, however, no evidence of any breaking and entering on the night in question.Of these four charged with "prowling by auto," none had been previously arrested except Papachristou, who had once been convicted of a municipal offense.Jimmy Lee Smith and Milton Henry (who is not a petitioner) were arrested between 9 and 10 a.m. on a weekday in downtown Jacksonville, while waiting for a friend who was to lend them a car so they could apply for a job at a produce company. Smith was a part-time produce worker and part-time organizer for a Negro political group. He had a common law wife and three children supported by him and his wife. He had been arrested several times, but convicted only once. Smith's companion, Henry, was an 18-year-old high school student with no previous record of arrest.This morning, it was cold, and Smith had no jacket, so they went briefly into a dry cleaning shop to wait, but left when requested to do so. They thereafter walked back and forth two or three times over a two-block stretch looking for their friend. The store owners, who apparently were wary of Smith and his companion, summoned two police officers, who searched the men and found neither had a weapon. But they were arrested because the officers said they had no identification and because the officers did not believe their story.Heath and a codefendant were arrested for "loitering" and for "common thief." Both were residents of Jacksonville, Heath having lived there all his life and being Page 405 U. S. 160 employed at an automobile body shop. Heath had previously been arrested, but his codefendant had no arrest record. Heath and his companion were arrested when they drove up to a residence shared by Heath's girlfriend and some other girls. Some police officers were already there in the process of arresting another man. When Heath and his companion started backing out of the driveway, the officers signaled to them to stop and asked them to get out of the car, which they did. Thereupon they and the automobile were searched. Although no contraband or incriminating evidence was found, they were both arrested, Heath being charged with being a "common thief" because he was reputed to be a thief. The codefendant was charged with "loitering" because he was standing in the driveway, an act which the officers admitted was done only at their command.Campbell was arrested as he reached his home very early one morning and was charged with "common thief." He was stopped by officers because he was traveling at a high rate of speed, yet no speeding charge was placed against him.Brown was arrested when he was observed leaving a downtown Jacksonville hotel by a police officer seated in a cruiser. The police testified he was reputed to be a thief, narcotics pusher, and generally opprobrious character. The officer called Brown over to the car, intending at that time to arrest him unless he had a good explanation for being on the street. Brown walked over to the police cruiser, as commanded, and the officer began to search him, apparently preparatory to placing him in the car. In the process of the search, he came on two small packets which were later found to contain heroin. When the officer touched the pocket where the packets were, Brown began to resist. He was charged with "disorderly loitering on street" and "disorderly Page 405 U. S. 161 conduct -- resisting arrest with violence." While he was also charged with a narcotics violation, that charge was nolled.Jacksonville's ordinance and Florida's statute were "derived from early English law," Johnson v. State, 202 So. 2d at 854, and employ "archaic language" in their definitions of vagrants. Id. at 855. The history is an often-told tale. The breakup of feudal estates in England led to labor shortages which, in turn, resulted in the Statutes of Laborers, [Footnote 3] designed to stabilize the labor force by prohibiting increases in wages and prohibiting the movement of workers from their home areas in search of improved conditions. Later, vagrancy laws became criminal aspects of the poor laws. The series of laws passed in England on the subject became increasingly severe. [Footnote 4] Page 405 U. S. 162 But "the theory of the Elizabethan poor laws no longer fits the facts," Edwards v. California, 314 U. S. 160, 314 U. S. 174. The conditions which spawned these laws may be gone, but the archaic classifications remain.This ordinance is void for vagueness, both in the sense that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," United States v. Harriss, 347 U. S. 612, 347 U. S. 617, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U. S. 88; Herndon v. Lowry, 301 U. S. 242.Living under a rule of law entails various suppositions, one of which is that "[all persons] are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U. S. 451, 306 U. S. 453.Lanzetta is one of a well recognized group of cases insisting that the law give fair notice of the offending conduct. See Connally v. General Construction Co., 269 U. S. 385, 269 U. S. 391; Cline v. Frink Dairy Co., 274 U. S. 445; United States v. Cohen Grocery Co., 255 U. S. 81. In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. Boyce Motor Lines, Inc. v. United States, 342 U. S. 337; United States v. National Dairy Products Corp., 372 U. S. 29; United States v. Petrillo, 332 U. S. 1.The poor among us, the minorities, the average householder, are not in business and not alerted to the regulatory Page 405 U. S. 163 schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net by the necessity of having a specific intent to commit an unlawful act. See Screws v. United States, 325 U. S. 91; Boyce Motor Lines, Inc. v. United States, supra.The Jacksonville ordinance makes criminal activities which, by modern standards, are normally innocent. "Nightwalking" is one. Florida construes the ordinance not to make criminal one night's wandering, Johnson v. State, 202 So. 2d at 855, only the "habitual" wanderer or, as the ordinance describes it, "common night walkers." We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleep-inducing relaxation will result.Luis Munoz-Marin, former Governor of Puerto Rico, commented once that "loafing" was a national virtue in his Commonwealth, and that it should be encouraged. It is, however, a crime in Jacksonville."[P]ersons able to work but habitually living upon the earnings of their wives or minor children" -- like habitually living "without visible means of support" -- might implicate unemployed pillars of the community who have married rich wives."[P]ersons able to work but habitually living upon the earnings of their wives or minor children" may also embrace unemployed people out of the labor market, by reason of a recession [Footnote 5] or disemployed by reason of technological or so-called structural displacements. Page 405 U. S. 164Persons "wandering or strolling" from place to place have been extolled by Walt Whitman and Vachel Lindsay. [Footnote 6] The qualification "without any lawful purpose or object" may be a trap for innocent acts. Persons "neglecting all lawful business and habitually spending their time by frequenting . . . places where alcoholic beverages are sold or served" would literally embrace many members of golf clubs and city clubs.Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be "casing" a place for a holdup. Letting one's wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes.The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been, in part, responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent, and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits, rather than hushed, suffocating silence.They are embedded in Walt Whitman's writings, especially in his "Song of the Open Road." They are reflected, too, in the spirit of Vachel Lindsay's "I Want to Go Wandering," and by Henry D. Thoreau. [Footnote 7] Page 405 U. S. 165This aspect of the vagrancy ordinance before us is suggested by what this Court said in 1876 about a broad criminal statute enacted by Congress:"It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large."United States v. Reese, 92 U. S. 214, 92 U. S. 221.While that was a federal case, the due process implications are equally applicable to the States and to this vagrancy ordinance. Here, the net cast is large not to give the courts the power to pick and choose, but to increase the arsenal of the police. In Winters v. New York, 333 U. S. 507, the Court struck down a New York statute that made criminal the distribution of a magazine made up principally of items of criminal deeds of bloodshed or lust so massed as to become vehicles for inciting violent and depraved crimes against the person. The infirmity the Court found was vagueness -- the absence of "ascertainable standards of guilt" (id. at 515) in the Page 405 U. S. 166 sensitive First Amendment area. [Footnote 8] Mr. Justice Frankfurter dissented. But concerned as he, and many others, [Footnote 9] had been over the vagrancy laws, he added:"Only a word needs to be said regarding Lanzetta v. New Jersey, 306 U. S. 451. The case involved a New Jersey statute of the type that seek to control 'vagrancy.' These statutes are in a class by themselves, in view of the familiar abuses to which they are put. . . . Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense. In short, these 'vagrancy statutes' and laws against 'gangs' are not fenced in by the text of the statute or by the subject matter so as to give notice of conduct to be avoided."Id. at 333 U. S. 540.Where the list of crimes is so all-inclusive and generalized [Footnote 10] as the one in this ordinance, those convicted Page 405 U. S. 167 may be punished for no more than vindicating affronts to police authority:"The common ground which brings such a motley assortment of human troubles before the magistrates in vagrancy-type proceedings is the procedural laxity which permits 'conviction' for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems Page 405 U. S. 168 that appear to have no other immediate solution."Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603, 631. [Footnote 11]Another aspect of the ordinance's vagueness appears when we focus not on the lack of notice given a potential offender, but on the effect of the unfettered discretion it places in the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has called the vagrancy-type law as offering "punishment by analogy." Id. at 609. Such crimes, though long common in Russia, [Footnote 12] are not compatible with our constitutional Page 405 U. S. 169 system. We allow our police to make arrests only on "probable cause," [Footnote 13] a Fourth and Fourteenth Amendment standard applicable to the States [Footnote 14] as well as to the Federal Government. Arresting a person on suspicion, like arresting a person for investigation, is foreign to our system, even when the arrest is for past criminality. Future criminality, however, is the common justification for the presence of vagrancy statutes. See Foote, supra, at 625. Florida has, indeed, construed her vagrancy statute "as necessary regulations," inter alia, "to deter vagabondage and prevent crimes." Johnson v. State, 202 So. 2d 852; Smith v. State, 239 So. 2d 250, 251.A direction by a legislature to the police to arrest all "suspicious" persons [Footnote 15] would not pass constitutional muster. A vagrancy prosecution may be merely the cloak for a conviction which could not be obtained on the real but undisclosed grounds for the arrest. People Page 405 U. S. 170 v. Moss, 309 N.Y. 429, 131 N.E.2d 717. But as Chief Justice Hewart said in Frederick Dean, 18 Crim.App. 133, 134 (1924):"It would be in the highest degree unfortunate if, in any part of the country, those who are responsible for setting in motion the criminal law should entertain, connive at or coquette with the idea that, in a case where there is not enough evidence to charge the prisoner with an attempt to commit a crime, the prosecution may, nevertheless, on such insufficient evidence, succeed in obtaining and upholding a conviction under the Vagrancy Act, 1824."Those generally implicated by the imprecise terms of the ordinance -- poor people, nonconformists, dissenters, idlers -- may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and the courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for "harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure." Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98. It results in a regime in which the poor and the unpopular are permitted to "stand on a public sidewalk . . . only at the whim of any police officer." Shuttlesworth v. Birmingham, 382 U. S. 87, 382 U. S. 90. Under this ordinance,"[I]f some carefree type of fellow is satisfied to work just so much, and no more, as will pay for one square meal, some wine, and a flophouse daily, but a court thinks this kind of living subhuman, the fellow can be forced to raise his sights or go to jail as a vagrant."Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Page 405 U. S. 171 Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim.L.Bull. 205, 226 (1967).A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy standards -- that crime is being nipped in the bud -- is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together.The Jacksonville ordinance cannot be squared with our constitutional standards, and is plainly unconstitutional.Reversed

U.S. Supreme CourtPapachristou v. City of Jacksonville, 405 U.S. 156 (1972)Papachristou v. City of JacksonvilleNo. 70-5030Argued December 8, 1971Decided February 24, 1972405 U.S. 156SyllabusThe Jacksonville vagrancy ordinance, under which petitioners were convicted, is void for vagueness, in that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," it encourages arbitrary and erratic arrests and convictions, it makes criminal activities that, by modern standards, are normally innocent, and it places almost unfettered discretion in the hands of the police. Pp. 405 U. S. 161-171.236 So. 2d 141, reversed.DOUGLAS, J., delivered the opinion of the Court, in which all Members joined except POWELL and REHNQUIST, JJ., who took no part in the consideration or decision of the case.

1974_73-1148

MR. JUSTICE STEWART delivered the opinion of the Court.These two cases, consolidated for decision, raise the single question whether the Lake Traverse Indian Reservation in South Dakota, created by an 1867 treaty between the United States and the Sisseton and Wahpeton bands of Sioux Indians, was terminated and returned to Page 420 U. S. 427 the public domain, by the Act of March 3, 1891, c. 543, 26 Stat. 1035. In each of the two cases, the South Dakota courts asserted jurisdiction over members of the Sisseton-Wahpeton Tribe for acts done on lands which, though within the 1867 reservation borders, have been owned and settled by non-Indians since the 1891 Act. The parties agree that the state courts did not have jurisdiction if these lands are "Indian country," as defined in 18 U.S.C. § 1151, [Footnote 1] and that this question depends upon whether the lands retained reservation status after 1891. [Footnote 2] We hold, for the reasons that follow, that the Page 420 U. S. 428 1891 Act terminated the Lake Traverse Reservation, and that consequently the state courts have jurisdiction over conduct on non-Indian lands within the 1867 reservation borders.IThe 1867 boundaries of the Lake Traverse Reservation enclose approximately 918,000 acres of land. Within the 1867 boundaries, there reside about 3,000 tribal members and 30,000 non-Indians. About 15% of the land is in the form of "Indian trust allotments"; these are individual land tracts retained by members of the Sisseton-Wahpeton Tribe when the rest of the reservation lands were sold to the United States in 1891. The trust allotments are scattered in a random pattern throughout the 1867 reservation area. The remainder of the reservation land was purchased from the United States by non-Indian settlers after 1891, and is presently inhabited by non-Indians.It is common ground here that Indian conduct occurring on the trust allotments is beyond the State's jurisdiction, being instead the proper concern of tribal or federal authorities. In the two cases before us, however, the State asserted jurisdiction over Indians based on conduct occurring on non-Indian, unallotted land within the 1867 reservation borders.The petitioner in No. 73-1148, Cheryl Spider DeCoteau, is the natural mother of Herbert John Spider and Robert Lee Feather; all are enrolled members of the Sisseton-Wahpeton Tribe. Both children have been assigned to foster homes by order of the respondent District County Court for the Tenth Judicial District of South Dakota. The petitioner gave Robert up for adoption in March of 1971, and Herbert was later separated from her through neglect and dependency proceedings in the respondent court, initiated by the State Welfare Department. Page 420 U. S. 429 On August 31, 1972, the petitioner commenced a habeas corpus action in a State Circuit Court alleging that the respondent had lacked jurisdiction to order her children separated from her, and asking that they be released from the custodial process of the respondent. After a hearing, the state court denied the writ, finding that the respondent had possessed jurisdiction because"the non-Indian patented land, upon which a portion of the acts or omissions giving rise to the Order of the District County Court occurred is not within Indian Country. [Footnote 3]"While acknowledging that this non-Indian patented land is within the 1867 boundaries of the Lake Traverse Reservation, the court noted that the tribe"had sold or relinquished [the non-Indian land in question] to the United States under the terms of the agreement which was ratified by acts of Congress, March 3, 1891."The South Dakota Supreme Court affirmed [Footnote 4] upon the ground that the 1891 Act ratified an 1889 Agreement by which"the Sisseton and Wahpeton Bands of Indians sold their unallotted lands, and the United States Government paid a sum certain for each and every acre Page 420 U. S. 430 purchased. . . . This, then, was an outright cession and sale of lands by the Indians to the United States. The land sold was separated from the reservation by Congress, and became part of the public domain. [Footnote 5]"The relators in No. 73-1500 are enrolled members of the tribe who were convicted in South Dakota courts of various violations of the State's penal laws committed on non-Indian lands within the 1867 reservation boundaries. The relators, in the custody of a state penitentiary, separately petitioned for writs of habeas corpus in the United States District Court for the District of South Dakota, alleging that the state courts had lacked criminal jurisdiction over their conduct within the 1867 reservation boundaries. The District Court summarily denied the petitions, but the Court of Appeals for the Eighth Circuit reversed. [Footnote 6] In DeMarrias v. South Dakota, 319 F.2d 845, that court had previously held that the 1891 Act had terminated the Lake Traverse Reservation, leaving only allotted Indian lands within tribal or federal jurisdiction. But in the present case, the Court of Appeals overruled its DeMarrias decision, finding it inconsistent with the principles of statutory construction established by this Court in Mattz v. Arnett, 412 U. S. 481, and Seymour v. Superintendent, 368 U. S. 351. The Court of Appeals accordingly held that"[t]he boundaries of the Lake Traverse Indian reservation remain as they were established in 1867. The scene of the alleged crimes is, therefore, within Indian country. South Dakota had no jurisdiction to try appellants."489 F.2d 99, 103.We granted certiorari in the two cases, 417 U.S. 929, to resolve the conflict between the Supreme Court of South Dakota and the Court of Appeals for the Eighth Circuit Page 420 U. S. 431 as to the effect of the 1891 Act on South Dakota's civil and criminal jurisdiction over unallotted lands within the 1867 reservation boundaries.IIWhen the Sioux Nation rebelled against the United States in 1862, the Sisseton and Wahpeton bands of the Nation remained loyal to the Federal Government, many members serving as "scouts" for federal troops. This loyalty went unrecognized, however, when the Government confiscated the Sioux lands after the rebellion. In a belated act of gratitude, the United States entered into a treaty with the Sisseton-Wahpeton Tribe in 1867. The treaty granted the tribe a permanent reservation in the Lake Traverse area, and provided for tribal self-government under the supervision of federal agents. [Footnote 7]But familiar forces soon began to work upon the Lake Traverse Reservation. A nearby and growing population of white farmers, merchants, and railroad men began urging authorities in Washington to open the reservation to general settlement. The Indians, suffering from disease and bad harvests, developed an increasing need for cash and direct assistance. [Footnote 8] Meanwhile, the Government Page 420 U. S. 432 had altered its general policy toward the Indian tribes. After 1871, the tribes were no longer regarded as sovereign nations, and the Government began to regulate their affairs through statute or through contractual agreements ratified by statute. [Footnote 9] In 1887, the General Allotment Act (or Dawes Act) was enacted in an attempt to reconcile the Government's responsibility for the Indians' welfare with the desire of non-Indians to settle upon reservation lands. [Footnote 10] The Act empowered the President to allot portions of reservation land to tribal members and, with tribal consent, to sell the surplus lands to white settlers, with the proceeds of these sales being dedicated to the Indians' benefit. See Mattz v. Arnett, 412 U.S. at 412 U. S. 496-497.Against this background, a series of negotiations took place in 1889 with the objective of opening the Lake Page 420 U. S. 433 Traverse Reservation to settlement. In April of that year, a South Dakota banker, D. W. Diggs, sent to the Secretary of the Interior a request on behalf of the local white community that reservation lands be made available for commerce, farming, and railroad development. [Footnote 11] In May, Diggs met with a council of tribal leaders, who told him that the tribe would consider selling the reserved lands if the Government would first pay a "loyal scout claim" which the tribe believed was owing as part of the 1867 Treaty. Spokesmen for the tribe were quoted in the local press that month as follows:"We never thought to keep this reservation for our lifetime.""* * * *" ". . . Now that South Dakota has come in as a state, we have some one to go to to right our wrongs. The Indians have taken their land in severalty. They are waiting for patents. The Indians are anxious to get patents. We are willing the surplus land should be sold. We don't expect to keep reservation. We want to get the benefit of the sale. If the government will pay what they owe, we will be pleased with the opening. There will be left over allotments 880,000 acres. If the government pays what they owe, and pay what they agree per acre, we will be pleased with the opening. When the government asks me to do anything, I am always willing to do it. I hope you will try to get the government to do what is right.""If the government will do this, it will benefit both the Indians and the whites [and illustrates by holding up half a dozen keys [in a] perpendicular position, separately], we all stand this way [and Page 420 U. S. 434 then, pressing them against each other], we will be as one key. When the reservation is open, we meet as one body. We be as one.""* * * *" ". . . If we get the money, we will open up. Your committee needn't be discouraged, we will open up."". . . We are anxious to become citizens and vote. We have laid before you all we have to say from our hearts. [Footnote 12]"By summer, the Commissioner of Indian Affairs had apparently been won over, for in August, 1889, he sent to the Secretary of the Interior a set of draft instructions for the guidance of a Commission to negotiate with the Sisseton and Wahpeton Indians for the sale of their surplus lands. [Footnote 13] The instructions noted that the negotiations would be pursuant to § 5 of the General Allotment Act, that the allotment of individual tracts of reservation land to tribal members was already "virtually . . . completed," and that "the Indians desire to sell a portion at least of their surplus [i.e., unallotted] lands."While these proposed instructions suggested that sale of all the surplus lands might be "inadvisable," the negotiations, in fact, proceeded toward such a total sale. The three Government representatives [Footnote 14] were appointed in November, and two weeks of meetings at the reservation promptly ensued. The proceedings at these meetings Page 420 U. S. 435 were transcribed, [Footnote 15] and the records show that the Indians wished to sell outright all of their unallotted lands, on three conditions: that each tribal member, regardless of age or sex, receive an allotment of 160 acres; that Congress appropriate moneys to make good on the tribe's outstanding "loyal scout claim"; and that an adequate sales price per acre be arrived at for all of the unallotted land. [Footnote 16] Page 420 U. S. 436In December, an Agreement was reached, and the contract was signed by the required majority of male adult tribal members. Its terms [Footnote 17] were accurately summarized Page 420 U. S. 437 by the Commissioner of Indian Affairs in his report to the Secretary of the Interior: [Footnote 18]"By article 1, the Indians cede, sell, relinquish, and convey to the United States all the unallotted land within the reservation remaining after the allotments and additional allotments provided for in article 4 shall have been made.""Article 2 provides that the United States will pay to the Indians $2.50 per acre for the lands ceded.""Article 3 provides for the payment of back annuities, and continues the annuities of $18,400 until July 1, 1901.""Article 4 provides for the equalization of allotments so that each person, including married women, shall have 160 acres."President Harrison immediately submitted the Agreement to Congress for legislative approval. While the Page 420 U. S. 438 subsequent legislative history is largely irrelevant to the issues before us, three aspects bear notice. First, the several committee reports which commented on the Agreement recognized that it effected a simple and unqualified cession of all of the unallotted lands to the United States for a sum certain. [Footnote 19] Second, the Congress recognized that the Agreement could not be altered, and therefore debate centered largely on the disposition to be made by the United States of the lands it had acquired under the Agreement; it was decided that these lands Page 420 U. S. 439 should be sold to settlers at $2.50 per acre under the homestead laws [Footnote 20] Third, the Congress included the Sisseton-Wahpeton Agreement in a comprehensive Act which also ratified several other agreements providing for the outright cession of surplus reservation lands to the Government. [Footnote 21] The other agreements employed cession language virtually identical to that in the Sisseton-Wahpeton Agreement, but in these other cases, the Indians sold only a described portion of their lands, rather than all "unallotted" portions, the result being merely a reduction in the size of the affected reservations. [Footnote 22] The intended effect of all of these ratification Page 420 U. S. 440 agreements was made clear by the sponsors of the comprehensive legislation:"All the pending agreements or treaties for the purchase of Indian lands are ratified and confirmed by the provisions of this bill. . . .""The bill carries the largest appropriation ever carried by an Indian appropriation bill, but it extinguishes the Indian title to a great domain and opens it to settlement by the hardy and progressive pioneers. . . . [Footnote 23]""We do not pretend to make any modification or amendment of the agreements themselves. We merely ratify those, and then we take the estate we have acquired in this way, and after providing for the payment of the money, or whatever it is we have agreed to pay these Indians, we take these landed estates and parcel and divide them out among Page 420 U. S. 441 the people in a fashion that we think is the most conducive to the occupancy of that country by an honest, laborious, earnest, and faithful set of people. [Footnote 24]""The remainder of the bill is made up of the other appropriations necessary to carry out the agreements that were made with Indians for the surrender of a large portion of their reservations to the public domain. In the main, it has cost the United States between $1.25 and $1.50 an acre for some ten or eleven million acres of land. All this land is opened by this bill to settlement as part of the public domain upon the payment by the settler of $1.50 an acre, for all except that which was obtained from the Sisseton and Wahpeton reservation, which is open to settlement at $2.50 an acre, because the United States gave the Indians for the surrender $2.50 an acre. [Footnote 25]"As passed by the Congress, the 1891 Act recited and ratified the 1889 Agreement with the tribe and appropriated $2,203,000 to pay the tribe for the ceded land and to make good the tribe's "loyal scout" claim. § 27, 26 Stat. 1038. A portion of the moneys was made available for immediate distribution to tribal members, on a per capita basis, and the remaining funds were, as had been agreed,"placed in the Treasury of the United States, to the credit of said . . . Indians [at five percent interest] . . . for the education and civilization of said bands of Indians or members thereof."§ 27, 26 Stat. 1039. The Act further provided that the 160-acre allotments were to be effected "as soon as practicable," pursuant to the terms of the General Allotment Act. § 29, 26 Stat. 1039. Finally, the Act provided that upon payment of Page 420 U. S. 442 the per capita purchase moneys to the tribe, and the completion of the enlarged allotment process, "the lands by said agreement ceded, sold, relinquished, and conveyed to the United States" shall be opened"only to entry and settlement [at $2.50 per acre] under the homestead and townsite laws of the United States, excepting the sixteenth and thirty-sixth sections of said lands, which shall be reserved for common school purposes, and be subject to the laws of the State wherein located,"§ 30, 26 Stat. 1039.On April 11, 1892, President Harrison declared open for settlement all "lands embraced in said reservation, saving and excepting the lands reserved for and allotted to said Indians." [Footnote 26] The ceded lands were rapidly purchased and settled by non-Indians.The jurisdictional history subsequent to the 1891 Act is not wholly clear, but it appears that state jurisdiction over the ceded (i.e., unallotted) lands went virtually unquestioned until the 1960's. The Lake Traverse Reservation was eliminated from the maps published by the Commissioner of Indian Affairs until 1908; thereafter, some Government maps included the area as an "open" or "former" reservation, while more recent ones have characterized it simply as a "reservation." [Footnote 27] Federal Indian agents have remained active in the area, and Congress Page 420 U. S. 443 has regularly appropriated funds for the tribe's welfare; [Footnote 28] the allotted Indian tracts have retained their "trust" status pursuant to periodic Executive Orders. [Footnote 29] A tribal constitution did not appear until 1946, and tribal jurisdiction under it extended only to "Indian-owned lands lying in the territory within the original confines of the Sisseton-Wahpeton Lake Traverse Sioux Reservation." [Footnote 30] In 1963, the Court of Appeals for the Eighth Circuit held that the 1891 Act had terminated the reservation; in the process, the court noted that "the highest court of that state [South Dakota] has repeatedly held that South Dakota has jurisdiction," and that the Justice Department had taken a like position. DeMarrias v. South Dakota, 319 F.2d at 846.But the Commissioner of Indian Affairs approved a new tribal constitution in 1966, which stated:"The jurisdiction of the Sisseton-Wahpeton Sioux Tribe shall extend to lands lying in the territory within the original confines of the Lake Traverse Reservation as described in Article III of the Treaty of February 19, 1867. [Footnote 31]"Apparently, however, no tribal court or legal code was established to exercise this jurisdiction. In 1972, a field Page 420 U. S. 444 solicitor for the Department of the Interior rendered an opinion that the 1891 Act had not extinguished tribal jurisdiction over the 1867 reservation lands. [Footnote 32] In 1973, the Court of Appeals overruled DeMarrias, in the decision here under review, and in early 1974, after several months of preparation, the tribe formally established a law court and a legal code to exercise civil and criminal jurisdiction throughout the 1867 reservation lands.IIIThis Court does not lightly conclude that an Indian reservation has been terminated."[W]hen Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress."United States v. Celestine, 215 U. S. 278, 215 U. S. 285. The congressional intent must be clear, to overcome"the general rule that '[d]oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.'"McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 411 U. S. 174, quoting Carpenter v. Shaw, 280 U. S. 363, 280 U. S. 367. Accordingly, the Court requires that the"congressional determination to terminate . . . be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history."Mattz v. Arnett, 412 U.S. at 412 U. S. 505. See also Seymour v. Superintendent, 368 U. S. 351, and United States v. Nice, 241 U. S. 591. In particular, we have stressed that reservation status may survive the mere opening of a reservation to settlement, even when the moneys paid for the land by the settlers are placed in trust by the Government for the Indians' benefit. Mattz v. Arnett, supra, and Seymour v. Superintendent, supra. Page 420 U. S. 445But in this case, "the face of the Act," and its "surrounding circumstances" and "legislative history" all point unmistakably to the conclusion that the Lake Traverse Reservation was terminated in 1891. The negotiations leading to the 1889 Agreement show plainly that the Indians were willing to convey to the Government, for a sum certain, all of their interest in all of their unallotted lands. See supra at 420 U. S. 432-437. The Agreement's language, adopted by majority vote of the tribe, was precisely suited to this purpose:"The Sisseton and Wahpeton bands of Dakota or Sioux Indians hereby cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set apart to said bands of Indians as aforesaid remaining after the allotments and additional allotments provided for in article four of this agreement shall have been made. [Footnote 33] "Page 420 U. S. 446This language is virtually indistinguishable from that used in the other sum-certain cession agreements ratified by Congress in the same 1891 Act. See nn. 21 and | 21 and S. 425fn22|>22, supra. That the lands ceded in the other agreements were returned to the public domain, stripped of reservation status, can hardly be questioned, and every party here acknowledges as much. The sponsors of the legislation stated repeatedly that the ratified agreements would return the ceded lands to the "public domain." See supra at 21 and S. 440|>440-441. Cf. Mattz v. Arnett, 412 U.S. at 412 U. S. 504 n. 22.It is true that the Sisseton-Wahpeton Agreement was unique in providing for cession of all, rather than simply a major portion of, the affected tribe's unallotted lands. But, as the historical circumstances make clear, this was not because the tribe wished to retain its former reservation, undiminished, but rather because the tribe and the Government were satisfied that retention of allotments would provide an adequate fulcrum for tribal affairs. In such a situation, exclusive tribal and federal jurisdiction is limited to the retained allotments. 18 Page 420 U. S. 447 U.S.C. 1151(c). See United States v. Pelican, 232 U. S. 442. With the benefit of hindsight, it may be argued that the tribe and the Government would have been better advised to have carved out a diminished reservation, instead of or in addition to the retained allotments. But we cannot rewrite the 1889 Agreement and the 1891 statute. For the courts to reinstate the entire reservation, on the theory that retention of mere allotments was ill-advised, would carry us well beyond the rule by which legal ambiguities are resolved to the benefit of the Indians. We give this rule the broadest possible scope, but it remains at base a canon for construing the complex treaties, statutes, and contracts which define the status of Indian tribes. A canon of construction is not a license to disregard clear expressions of tribal and congressional intent.The Court of Appeals thought that a finding of termination here would be inconsistent with Mattz and Seymour. This is not so. We adhere without qualification to both the holdings and the reasoning of those decisions. But the gross differences between the facts of those cases and the facts here cannot be ignored.In Mattz, the Court held that an 1892 Act of Congress [Footnote 34] did not terminate the Klamath River Indian Reservation in northern California. That Act declared the reservation lands "subject to settlement, entry, and purchase" under the homestead laws of the United States, empowered the Secretary of the Interior to allot tracts to tribal members, and provided that any proceeds of land sales to settlers should be placed in a fund for the tribe's benefit. The 1892 statute could be considered a termination provision only if continued reservation status were inconsistent with the mere opening of lands to settlement, and such is not the case. See 18 U.S.C. § 1151(a). Page 420 U. S. 448 But the 1891 Act before us is a very different instrument. It is not a unilateral action by Congress, but the ratification of a previously negotiated agreement, to which a tribal majority consented. The 1891 Act does not merely open lands to settlement; it also appropriates and vests in the tribe a sum certain -- $2.50 per acre -- in payment for the express cession and relinquishment of "all" of the tribe's "claim, right, title and interest" in the unallotted lands. The statute in Mattz, by contrast, benefited the tribe only indirectly, by establishing a fund dependent on uncertain future sales of its land to settlers. See also Ash Sheep Co. v. United States, 252 U. S. 159, 252 U. S. 164-166. Furthermore, the circumstances surrounding congressional action in Mattz militated persuasively against a finding of termination. That action represented a clear retreat from previous congressional attempts to vacate the Klamath River Reservation in express terms; and the Department of the Interior had consistently regarded the Klamath River Reservation as a continuing one, despite the 1892 legislation. Mattz v. Arnett, supra, at 412 U. S. 503-505. In the present case, by contrast, the surrounding circumstances are fully consistent with an intent to terminate the reservation, and inconsistent with any other purpose. In Seymour, the Court held that a 1906 Act of Congress [Footnote 35] did not terminate the southern portion of the Colville Indian Reservation in Washington. Like that in question in Mattz, this Act was unilateral in character; like that in question in Mattz, it merely opened reservation land to settlement and provided that the uncertain future proceeds of settler purchases should be applied to the Indians' benefit. The Seymour Court was not confronted with a straightforward agreement ceding lands to the Government for a sum certain. In Seymour, the Court sharply contrasted the 1906 Act, which provided Page 420 U. S. 449 only for non-Indian settlement, with an 1892 Act which plainly "vacated'" and restored "`to the public domain'" the northern portion of the Colville Reservation. Seymour v. Superintendent, 368 U.S. at 368 U. S. 355. The 1891 Act before us here is analogous to that 1892 statute. Thus, in finding a termination of the Lake Traverse Reservation, we are not departing from, but following and reaffirming, the guiding principles of Mattz and Seymour. Until the Court of Appeals altered the status quo, South Dakota had exercised jurisdiction over the unallotted lands of the former reservation for some 80 years. Counsel for the tribal members stated at oral argument that many of the Indians have resented state authority, and suffered under it. Counsel for the State denied this, and argued that an end to state jurisdiction would be calamitous for all the residents of the area, Indian and non-Indian alike. These competing pleas are not for us to adjudge, for our task here is a narrow one. In the 1889 Agreement and the 1891 Act ratifying it, Congress and the tribe spoke clearly. Some might wish they had spoken differently, but we cannot remake history. The judgment in No. 73-1148 is affirmed, and that in No. 73-1500 is reversed.It is so ordered

U.S. Supreme CourtDeCoteau v. District Court, 420 U.S. 425 (1975)DeCoteau v. District CourtNo. 73-1148Argued December 16, 1974Decided March 3, 1975*420 U.S. 425SyllabusThe Lake Traverse Indian Reservation in South Dakota, created by an 1867 treaty, held terminated and returned to the public domain by an 1891 Act which, in ratification of a previously negotiated 1889 Agreement between the affected Indian tribe and the United States, not only opened all unallotted lands to settlement, but also appropriated and vested in the tribe a sum certain per acre in payment for the express cession and relinquishment of "all" of the tribe's "claim, right, title, and interest" in the unallotted lands; and therefore the South Dakota state courts have civil and criminal jurisdiction over conduct of members of the tribe on the non-Indian, unallotted lands within the 1867 reservation borders. The face of the Act and its surrounding circumstances and legislative history all point unmistakably to this conclusion. Mattz v. Arnett, 412 U. S. 481, and Seymour v. Superintendent, 368 U. S. 351, distinguished. Pp. 420 U. S. 431-449.No. 73-1148, 87 S.D. 555, 211 N.W.2d 843, affirmed; No. 73-1500, 489 F.2d 99, reversed.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 420 U. S. 460. Page 420 U. S. 426

1975_74-1487

MR. JUSTICE REHNQUIST announced the judgment of the Court in an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE POWELL join.This case presents the question of whether the restrictions imposed by 28 U.S.C. § 753 on the availability to an indigent prisoner of a free trial transcript to aid him in preparing a petition for collateral relief are consistent with the Fifth Amendment to the Constitution. The Court of Appeals for the Ninth Circuit, in contrast to every other Court of Appeals which has ruled on the issue, held that such prisoners have an absolute right to a transcript. We reverse.IRespondent was convicted of uttering forged currency in violation of 18 U.S.C. § 472 after a jury trial in the United States District Court for the Western District of Washington. On June 3, 1970, he was sentenced to 10 years' imprisonment. He did not appeal. Nearly two years later, respondent, acting pro se, filed in the District Court a paper designated "Motion for Transcript in Forma Pauperis." This was returned to respondent with the advice that he first had to file a motion pursuant to 28 U.S.C. § 2255 before the court could act on his request for a transcript.Respondent then filed a "complaint for Declaratory Judgment and Injunctive Relief" in which he alleged that he "intends to move this Court for vacation of his sentence pursuant to 28 U.S.C. § 2255." He asserted that he was unable to afford a transcript, that a transcript would show that he had not been afforded effective assistance of counsel, and that there was insufficient evidence to support the verdict of guilty. The complaint further alleged that, without a transcript, respondent would be "unable to frame his arguments for fair and Page 426 U. S. 320 effective review." The complaint did not elaborate upon respondent's two asserted grounds for relief.The District Court treated this pleading as a motion under 28 U.S.C. § 2255, granted respondent leave to proceed in forma pauperis, appointed counsel, and held a hearing. After the hearing, the court dismissed the complaint for failure to state a claim upon which relief could be granted. Respondent appealed, and a divided panel of the Court of Appeals reversed, 511 F.2d 1116 (1974), holding that respondent was entitled to a transcript "in order to assist him in the preparation of a post-conviction motion under 28 U.S.C. [§ ] 2255." Id. at 1124.IICongress has expressly addressed the question of furnishing transcripts at public expense in 28 U.S.C. § 753(f), which provides in pertinent part:"Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U.S.C. [§] 3006A), or in habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by the United States out of moneys appropriated for those purposes. Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. . . ."The statute thus provides for a free transcript for indigent prisoners asserting a claim under § 2255 if a judge certifies that the asserted claim is "not frivolous" Page 426 U. S. 321 and that the transcript is "needed to decide the issue." The District Court, by its conclusion that respondent failed to state a claim upon which relief could be granted, implicitly decided one of these two issues against respondent.The Court of Appeals held that it was not necessary to declare § 753(f) unconstitutional in order to grant respondent relief. Rather, the court held that the section"does not prohibit courts from . . . requiring the government to supply an imprisoned indigent with a free transcript before he files a § 2255 motion. Such a court order would simply fill a constitutional deficit not addressed by the statute."(Emphasis added.) 511 F.2d at 1119-1120.This is a novel approach to statutory construction. T he established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress. Reeside v. Walker, 11 How. 272, 52 U. S. 291 (1851). This particular statute contains a limited grant of authority to the courts to authorize the expenditure of public funds for furnishing transcripts to plaintiffs in § 2255 actions. The fact that the statute does not "prohibit" the furnishing of free transcripts in other circumstances is of little significance, since most such statutes speak only in terms of granting authority for the expenditure of federal funds. Where Congress has addressed the subject, as it has here, and authorized expenditures where a condition is met, the clear implication is that, where the condition is not met, the expenditure is not authorized. Botany Mills v. United States, 278 U. S. 282, 278 U. S. 289 (1929); Passenger Corp. v. Passengers Assn., 414 U. S. 453, 414 U. S. 458 (1974). [Footnote 1] Page 426 U. S. 322It is true, as respondent observes, that the statute, as currently written, distinguishes between habeas corpus petitioners and parties proceeding under § 2255 in that only the latter must make a showing of need and nonfrivolousness in order to obtain a free transcript. Thus, while it is still true that the "remedy" afforded by § 2255 is "exactly commensurate with that which had previously been available by habeas corpus . . . ," Hill v. United States, 368 U. S. 424, 368 U. S. 427 (1962), the right to pursue that remedy with a free transcript has now been somewhat limited by Congress. [Footnote 2] Respondent argues that this constitutes a suspension of the writ of habeas corpus in violation of Art. I, § 9, cl. 2, of the Constitution.This argument presupposes, inter alia, that a right to a free transcript is a necessary concomitant of the writ which the Founders declared could not be suspended. This is obviously not the case. The writ of habeas corpus operated until 1944 with no provision for free transcripts Page 426 U. S. 323 for indigents. See 58 Stat. 6, 28 U.S.C. § 9a (1940 ed., Supp. IV). Congress, when in that year it authorized free transcripts for the first time, could certainly have limited the authorization to nonfrivolous cases where a need had been shown. If Congress could have thus limited the writ directly without "suspending" it, it follows that it may do so indirectly. The only possible objection is a Fifth Amendment due process-equal protection claim, to which we now turn.IIIThe Court of Appeals did not technically decide this constitutional issue, since it thought it had discovered a lacuna in the statute, but its reference to a "constitutional deficit" suggests its view on this question. Respondent urges that, if the statute is read as we now read it, it violates both the Due Process Clause of the Fifth Amendment and his right to "equal protection."The Due Process Clause of the Fifth Amendment does not establish any right to an appeal, see Griffin v. Illinois, 351 U. S. 12, 351 U. S. 18 (1956) (plurality opinion), and certainly does not establish any right to collaterally attack a final judgment of conviction. [Footnote 3] In this case, respondent was granted a statutory right of appeal without payment of costs if he were an indigent, and, had he pursued that right, § 753(f) would have authorized the use of public funds to furnish him a transcript of the trial proceedings without any further showing on his part. Having forgone this right, which existed by force of statute only, he may not, several years later, successfully assert a due process right to review of his conviction, and thereby obtain a free transcript on his own terms as an ancillary constitutional Page 426 U. S. 324 benefit. The conditions which Congress had imposed on obtaining such a transcript in § 753(f) are not "so arbitrary and unreasonable . . . as to require their invalidation," Douglas v. California, 372 U. S. 353, 372 U. S. 365 (1963) (Harlan, J., dissenting); rather they "comport with fair procedure," id. at 3 372 U. S. 57 (Court's opinion).Although the statutory conditions established in § 753(f) with respect to furnishing a free transcript to movants in § 2255 proceedings are therefore consistent with the due process requirements of the Fifth Amendment, it is undoubtedly true that they place an indigent in a somewhat less advantageous position than a person of means. But neither the Equal Protection Clause of the Fourteenth Amendment nor the counterpart equal protection requirement embodied in the Fifth Amendment, guarantees "absolute equality or precisely equal advantages," San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 411 U. S. 24 (1973). In the context of a criminal proceeding, they require only "an adequate opportunity to present [one's] claims fairly. . . ." Ross v. Moffitt, 417 U. S. 600, 417 U. S. 616 (1974).In Douglas v. California, supra, the Court held that the State must provide counsel for an indigent on his first appeal as of right. But in Ross v. Moffitt, supra, we declined to extend that holding to a discretionary second appeal from an intermediate appellate court to the Supreme Court of North Carolina. We think the distinction between these two holdings of the Court is of considerable assistance in resolving respondent's equal protection claim. Respondent in this case had an opportunity for direct appeal, and, had he chosen to pursue it, he would have been furnished a free transcript of the trial proceedings. But, having forgone that right, and instead some years later having sought to obtain a free transcript in order to make the best case he could in a Page 426 U. S. 325 proceeding under § 2255, respondent stands in a different position.The Court has held that, when a State grants a right to collateral review, it may not deny the right to an indigent simply because of inability to pay the required filing fee, Smith v. Bennett, 365 U. S. 708 (1961). There is no such impediment here; respondent was permitted to proceed in forma pauperis in his § 2255 action. The Court has also held that a State may not confide to the public defender the final decision as to whether a transcript shall be available to the criminal defendant who collaterally attacks his conviction, Lane v. Brown, 372 U. S. 477 (1963). There the Court observed that the state provision "confers upon a state officer outside the judicial system power to take from an indigent all hope of any appeal at all." Id. at 372 U. S. 485.The congressional statute governing the furnishing of free transcripts to plaintiffs in § 2255 actions has no such infirmity. The decision as to the provisions of the transcript at public expense is made initially by an official at the very heart of the judicial system -- a district judge in the judicial district in which the § 2255 plaintiff was tried. The district court has the power to order a free transcript furnished if it finds that the "suit . . . is not frivolous and that the transcript is needed to decide the issue presented. . . ." 28 U.S.C. § 753(f).We think that the formula devised by Congress satisfies the equal protection component of the Fifth Amendment. Respondent chose to forgo his opportunity for direct appeal with its attendant unconditional free transcript. This choice affects his later equal protection claim as well as his due process claim. Equal protection does not require the Government to furnish to the indigent a delayed duplicate of a right of appeal with attendant free transcript which it offered in the first Page 426 U. S. 326 instance, even though a criminal defendant of means might well decide to purchase such a transcript in pursuit of relief under § 2255. The basic question is one of adequacy of respondent's access to procedures for review of his conviction, Ross v. Moffitt, supra, and it must be decided in the light of avenues which respondent chose not to follow, as well as those he now seeks to widen. We think it enough at the collateral relief stage that Congress has provided that the transcript be paid for by public funds if one demonstrates to a district judge that his § 2255 claim is not frivolous and that the transcript is needed to decide the issue presented.Respondent urged in oral argument that, if trial counsel had done a poor job of representing a criminal defendant, such counsel might well urge the defendant to forgo his right of appeal in order to prevent a claim of ineffective assistance of counsel from being raised on the appeal. It is certainly conceivable that such a state of facts might exist, notwithstanding the fidelity to the interest of their clients demonstrated repeatedly by the overwhelming majority of the members of the legal profession. But § 753(f) does not require that a § 2255 plaintiff must prove his claim in order to obtain a transcript, but only that he convince the district court that such claim is not frivolous. Had the District Court here been confronted not with merely a conclusory allegation, but with some factual allegations indicating a denial of respondent's Sixth Amendment right to counsel, together with an additional explicit assertion that trial counsel had urged respondent to forgo his appeal, that court might have concluded that such a claim was not frivolous, and further decided that a free transcript should be furnished pursuant to § 753(f). [Footnote 4] Page 426 U. S. 327But that is not our case. Respondent made only a naked allegation of ineffective assistance of counsel. Since any discussion he may have had with his trial counsel as to the desirability of appeal would not normally appear in the transcript of proceedings at trial, the furnishing of such transcript would not have aided him in refreshing his recollection of such discussions. The failure to flesh out this aspect of respondent's claim of ineffective assistance of counsel, then, is not likely to have been cured by a transcript.We think this is an area of the law where the opinions of the courts of appeals are entitled to particular weight, since they represent not only expositions of federal and constitutional law, but also expressions of essentially practical judgment on questions which those courts must confront far more than we do. The fact that, with the exception of the decision presently under review, they have unanimously concluded that the conditions established by § 753(f) for the furnishing of a free transcript do not violate the Fifth Amendment is significant. [Footnote 5] A practical reason for their conclusion is well expressed by Judge Haynsworth in United States v. Shoaf, 341 F.2d 832 (CA4 1964), in which he said for that court:"The usual grounds for successful collateral attacks upon convictions arise out of occurrences outside Page 426 U. S. 328 of the courtroom or of events in the courtroom of which the defendant was aware and can recall without the need of having his memory refreshed by reading a transcript. He may well have a need of a transcript [to support his claim], but rarely, if ever, . . . to become aware of the events or occurrences which constitute a ground for collateral attack,"Id. at 835. [Footnote 6] We conclude that the fact that a transcript was available had respondent chosen to appeal from his conviction, and remained available on the conditions set forth in § 753 to an indigent proceeding under § 2255, afforded respondent an adequate opportunity to attack his conviction. To hold otherwise would be to place the indigent defendant in a more favorable position than a similarly situated prisoner of some, but not unlimited, means, who presumably would make an evaluation much like that prescribed in § 753(f) before he spent his own funds for a transcript."[T]he fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required. The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process."Ross v. Moffitt, 417 U.S. at 417 U. S. 616. Page 426 U. S. 329The judgment of the Court of Appeals for the Ninth Circuit isReversed

U.S. Supreme CourtUnited States v. MacCollom, 426 U.S. 317 (1976)United States v. MacCollomNo. 74-1487Argued March 29, 1976Decided June 10, 1976426 U.S. 317SyllabusNearly two years after his conviction of a federal crime, from which he took no appeal, respondent, pro se, filed a complaint for declaratory and injunctive relief, in which he asserted that he intended to seek vacation of his sentence pursuant to 28 U.S.C. § 2255; that he was unable to afford a transcript; that without one he could not frame his arguments for effective review; that a transcript would show that he had not been afforded effective assistance of counsel; and that there was insufficient evidence to support the guilty verdict. The District Court, after granting respondent leave to proceed in forma pauperis, appointing counsel, and holding a hearing, denied relief. The Court of Appeals reversed, holding that respondent was entitled to a transcript in order to assist him in preparing a motion under § 2255. The court concluded that 28 U.S.C. § 753(f), which provides for a free transcript for indigent prisoners asserting a claim under § 2255 if the trial judge certifies that the asserted claim is "not frivolous" and that the transcript is "needed to decide the issue," does not prohibit courts from requiring the government to supply an indigent prisoner with a free transcript before he files a § 2255 motion. By so ruling the court felt that it was unnecessary to hold § 753(f) unconstitutional.Held: The judgment is reversed. Pp. 426 U. S. 320-329; 426 U. S. 329-330.511 F.2d 1116, reversed.MR. JUSTICE REHNQUIST, joined by MR. CHIEF JUSTICE BURGER MR. JUSTICE STEWART, and MR. JUSTICE POWELL, concluded:1. Section 753(f) does not violate Art. I, § 9, cl. 2, by constituting a suspension of the writ of habeas corpus. The right to a free transcript is not a necessary concomitant of the writ, which operated until 1944 with no provision at all for free transcripts for indigents. If Congress thus could have limited the writ directly without "suspending" it, Congress may do so indirectly. Pp. 426 U. S. 322-323. Page 426 U. S. 3182. Nor does § 753(f) violate the Due Process Clause of the Fifth Amendment and respondent's right to "equal protection," since respondent, to whom the transcript was available had he chosen to appeal his conviction, and remained available on the conditions set forth in § 753, had an adequate opportunity to attack his conviction. Pp. 426 U. S. 323-328.(a) The Due Process Clause does not establish a right of appeal, and § 753(f)'s conditions are not "so arbitrary and unreasonable . . . as to require their invalidation," Douglas v. California, 372 U. S. 353, 372 U. S. 365 (Harlan, J., dissenting). Pp. 426 U. S. 323-324.(b) Though those statutory conditions place an indigent in a position somewhat less advantageous than that of a person of means, the equal protection component of the Fifth Amendment's Due Process Clause does not guarantee absolute equality, the conditions of § 753(f) providing an adequate access to procedures for review of the conviction of an indigent, who, like respondent, chose to forgo his opportunity for a direct appeal with its attendant free transcript. Pp. 426 U. S. 324-328.MR. JUSTICE BLACKMUN concluded that § 753(f) afforded respondent a fair and adequate opportunity to present his claims effectively in this collateral proceeding, and that it is not necessary to consider the constitutional significance of what respondent might have done at the time he could have directly appealed his conviction. Pp. 426 U. S. 329-330.REHNQUIST, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C.J., and STEWART and POWELL, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 426 U. S. 329. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 426 U. S. 330. STEVENS, J., filed a dissenting opinion, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 426 U. S. 334. Page 426 U. S. 319

1996_95-1201

Alan Jenkins argued the cause for the United States as amicus curiae urging reversal. With him on the briefs were Solicitor General Days, Assistant Attorney General Patrick, Deputy Solicitor General Bender, Steven H. Rosenbaum, and Eileen Penner.Daniel G. Stone, Deputy Attorney General of California, argued the cause for appellees. With him on the brief for state appellees were Daniel E. Lungren, Attorney General, Floyd D. Shimomura, Senior Assistant Attorney General, and Linda A. Cabatic, Supervising Deputy Attorney General. *JUSTICE O'CONNOR delivered the opinion of the Court. This appeal presents a challenge to an order by a threejudge District Court for the Northern District of California that authorized Monterey County to conduct judicial elections under an election plan that has not received federal approval pursuant to § 5 of the Voting Rights Act.IThe State of California has 58 counties, one of which is Monterey County (hereinafter County). In 1971, the Attorney General designated the County a covered jurisdiction under § 4(b) of the Voting Rights Act of 1965, 79 Stat. 438, as amended, 42 U. S. C. § 1973b(b). 36 Fed. Reg. 5809 (1971); see 28 CFR pt. 51, App. (1995). As a result, the County became subject to the federal preclearance requirements set forth in § 5 of the Voting Rights Act, 42 U. S. C. § 1973c.*Sidney S. Rosdeitcher, Paul C. Saunders, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Brenda Wright, Samuel L. Walters, Laughlin McDonald, Neil Bradley, Steven R. Shapiro, Elaine R. Jones, Norman J. Chachkin, and Jacqueline A. Berrien filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.Sharon L. Browne and Deborah J. La Fetra filed a brief for the Pacific Legal Foundation as amicus curiae urging affirmance.Barbara McDowell and Elwood G. Lui filed a brief for the California Judges Association as amicus curiae.12Section 5 governs changes in voting procedures, with the purpose of preventing jurisdictions covered by its requirements from enacting or seeking to administer voting changes that have a discriminatory purpose or effect. As a jurisdiction covered by § 5, Monterey County must obtain federal preclearance-either administrative or judicial-of any voting practice different from the practices in effect on November 1, 1968. To obtain administrative preclearance of a changed voting practice, a covered jurisdiction submits the enactment to the Attorney General of the United States. If the Attorney General does not formally object to the new procedure within 60 days of submission, the jurisdiction may enforce the legislation. A covered jurisdiction may also obtain judicial preclearance-either directly or after the Attorney General has objected to the voting change-by securing in the United States District Court for the District of Columbia a declaratory judgment that the new practice "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 .... " Ibid.On November 1, 1968, the County had nine inferior court districts. Two of these districts were municipal court districts, each served by two judges, and the other seven were justice court districts, each served by a single judge. Both municipal and justice courts were trial courts of limited jurisdiction. Municipal courts served districts with populations exceeding 40,000, and justice courts served those districts with smaller populations. The justice courts differed from the municipal courts in other respects. They were not courts of record and were served by judges who often worked part time and did not have to be members of the bar. Comment, Trial Court Consolidation in California, 21 UCLA L. Rev. 1081, 1086 (1974). (On January 1, 1990, however, a state constitutional amendment specified that all courts, including justice courts, were courts of record. Cal. Const.,13Art. VI, § 1 (1988). A few years later, California voters eliminated justice courts altogether. Art. VI, §§ 1, 5(b).)Each of the municipal and justice courts operated separately and independently. Judges for each court were elected at large by the voters of their respective districts, and they served only the judicial district in which they were elected. The municipal and justice court districts varied widely in population and judicial workloads. For example, a 1972 survey showed that the Monterey-Carmel Municipal Court District had a population of 106,700, with more than enough work for two full-time judges. By contrast, the San Ardo Justice Court District had a population of 3,500, with a caseload that required less than a quarter of one judge's time.Between 1972 and 1983, the County adopted six ordinances, which ultimately merged the seven justice court districts and the two municipal court districts into a single, countywide municipal court, served by nine judges whom County residents elected at large. (At present, 10 judges serve on the municipal court.) Each judge was elected to serve for a term of six years. Judicial elections were conducted under various interim schemes in 1974, 1976, 1978, and 1982. Additionally, the County conducted at-large, countywide judicial elections in 1986, 1988, and 1990.The County's reorganization of its inferior court system took place against a backdrop of state laws governing the general administration and organization of state courts. State law authorizes a county board of supervisors, "[a]s public convenience requires, ... [to] divide the county into judicial districts for the purpose of electing judges .... " Cal. Govt. Code Ann. § 71040 (West 1976). The board also "may change district boundaries and create other districts." Ibid.; see also Cal. Govt. Code Ann. § 25200 (West 1988) ("The board of supervisors may divide the county into election ... and other districts required by law, change their boundaries, and create other districts, as convenience re-14quires"). A county's judicial election scheme must comply with several state constitutional and statutory requirements. Municipal court districts must include at least 40,000 residents, Cal. Const., Art. VI, § 5(a); cities may not be split into more than one judicial district, ibid.; Cal. Govt. Code Ann. § 71040 (West 1976); municipal court judges must be residents of the judicial district to which they are elected or appointed, § 71140; and, according to the State, judges' jurisdictional and electoral bases must be coextensive, Cal. Const., Art. VI, § 16(b); Koski v. James, 47 Cal. App. 3d 349, 354, 120 Cal. Rptr. 754, 758 (1975).In addition to these generally applicable laws, the state legislature has enacted various pieces of legislation directed at the judicial systems of particular California counties, including laws aimed specifically at Monterey County's judicial system. Cal. Govt. Code Ann., Tit. 8, ch. 10 (West 1993). Some of these laws have reflected changes in the County's judicial districts resulting from the consolidation process. * The State has also enacted legislation dealing with the administration of the County's judicial system, such as appoint-*See, e. g., 1953 Cal. Stats., ch. 206, § 2 ("This article applies to the municipal court established in a district embracing the Cities of Carmel and Monterey"); 1975 Cal. Stats., ch. 966, § 2 ("This article applies only to municipal courts established in ... [a] district embracing the Cities of Monterey, Carmel, Seaside, Sand City, and Del Rey Oaks designated as the Monterey-Carmel Judicial District; [and a] district embracing the City of Salinas designated as the Salinas Judicial District"); 1977 Cal. Stats., ch. 995, § 1 ("This article applies to all of the municipal courts established in the County of Monterey, which are in judicial districts entitled as follows: the Monterey Peninsula Judicial District, the Salinas Judicial District, and the North Monterey County Judicial District"); 1979 Cal. Stats., ch. 694, § 2 ("There is in the County of Monterey, on and after the effective date of this section, a single municipal court district which embraces the former Salinas Judicial District, Monterey Peninsula Judicial District and North Monterey County Judicial District"); 1989 Cal. Stats., ch. 608, § 1 (codified at Cal. Govt. Code Ann. § 73560 (West 1993)) ("This article applies to the Monterey County Municipal Court District, which encompasses the entire County of Monterey").15ment and compensation of court personnel. Cal. Govt. Code Ann. §§ 73564-73569 (West 1993).Although it was subject to § 5 preclearance requirements, the County did not submit any of the consolidation ordinances for federal preclearance under § 5. The State, however, in 1983 submitted for administrative preclearance a state law, 1983 Cal. Stats., ch. 1249, that mentioned Monterey County's prospective consolidation of the last two justice court districts with the remaining municipal court district. The Department of Justice requested additional information concerning this aspect of the state legislation. In its response, the State included the last of the County's six consolidation ordinances, which was adopted in 1983. The Attorney General interposed no objection to the 1983 state law. The State's submission may well have served to preclear the 1983 county ordinance. See 28 CFR § 51.14(2) (1981); 28 CFR § 51.15(a) (1987). The United States points out, however, that the 1983 submission to the Department of Justice did not identify or describe any of the County's previous consolidation ordinances. The State does not contest this point. Thus, under our precedent, these previous consolidation ordinances do not appear to have received federal preclearance approval. Clark v. Roemer, 500 U. S. 646, 657-658 (1991); McCain v. Lybrand, 465 U. S. 236, 249 (1984).On September 6, 1991, appellants, five Hispanic voters residing in the County, sued the County in the United States District Court for the Northern District of California, alleging that the County had violated § 5 by failing to obtain federal preclearance of the six judicial district consolidation ordinances it had adopted between 1972 and 1983. They raised no claim under § 2 of the Voting Rights Act or constitutional challenge. A three-judge District Court was convened. On March 31,1993, the District Court ruled that the challenged ordinances were election changes subject to § 5 and consequently unenforceable without federal preclearance. The District Court directed the County to submit the16ordinances to federal officials for preclearance. I t also denied the County's motion to join the State as an indispensable party under Federal Rule of Civil Procedure 19(b), finding that the State had no legally protected interest in the outcome of the action.In August 1993, the County filed a declaratory judgment action in the United States District Court for the District of Columbia, seeking judicial preclearance of the challenged ordinances. Appellants intervened. But before that court made any findings, the County voluntarily dismissed its action, without prejudice. The County and appellants subsequently stipulated that the County was" 'unable to establish that the [consolidation ordinances] adopted by the County between 1968 and 1983 did not have the effect of denying the right to vote to Latinos in Monterey County due to the retrogressive effect several of these ordinances had on Latino voting strength .... '" 871 F. Supp. 1254, 1256 (N. D. Cal. 1994). The parties thereupon returned to the threejudge District Court, and several years of litigation ensued.In essence, the County and appellants ceased to litigate the case as adversaries. Instead, they embarked on a joint attempt, opposed by the State and others as intervenors, to persuade the District Court to order a judicial election plan they viewed as less retrogressive than an at-large, countywide election scheme. In late 1993 and early 1994, the County and appellants jointly proposed two plans to the District Court. Each plan divided the County into different election areas, with judges from each area to serve on the countywide municipal court. The State objected to these schemes on the ground that they contravened California law, including the constitutional requirements that a judge's jurisdictional and electoral bases be coextensive, Cal. Const., Art. VI, § 16(b), and that cities not be split into more than one judicial district, Art. VI, § 5(a). Appellants and the County acknowledged these conflicts, but asked the District17Court to suspend operation of these state constitutional provisions in the County.For some time, the District Court was reluctant to implement either of the proposed plans, ruling that it was "not satisfied that a plan necessarily ha[s] to conflict with [Article VI, § 16(b) in order to meet the requirements of] the Voting Rights Act." 871 F. Supp., at 1256. Finally, the County and appellants filed with the District Court a stipulation that the County could not "'devise or prepare any plan for the election of municipal court judges in Monterey County that [did] not conflict with at least one state law and still compl[ied] with the Voting Rights Act.'" Id., at 1257. The parties supported the stipulation with information on County demographics, the presence of politically cohesive Hispanic communities and Anglo bloc voting, and a legacy of discrimination that had affected Hispanic citizens' right to vote. They also set forth a number of potential election plans that they believed complied with § 5, all of which violated some aspect of state law.In June 1994, the District Court decided to give appellants, the County, the State, and the United States, which had at this point weighed in as amicus curiae, another chance to develop a workable solution. It enjoined the upcoming 1994 elections. It directed the County to attempt to obtain changes in state law that would permit the implementation of a judicial election plan that complied with § 5 requirements. It asked the State to assist the County in creating an acceptable judicial election plan. Nevertheless, in late 1994, the parties were back in court, still without a satisfactory plan. The County had sought amendments to the State Constitution and statutes, but was unsuccessful.In a December 20, 1994, order, the District Court concluded that it had to devise a remedy that would permit judicial elections to take place, pending implementation of a permanent, federally precleared voting plan. Otherwise, voters would be deprived of their right to elect judges. The18District Court recognized that neither appellants nor the County thought feasible a return to the election scheme in effect on November 1, 1968. Instead, it decided to adopt one of the plans the County and appellants previously had proposed. Under this scheme, the County was divided into four election districts. Voters in three of the districts, in which Hispanics constituted a majority, would each elect one judge. Voters in the fourth district would elect the other seven judges. Judges elected under the plan would serve for 18-month terms, until January 1997. All 10 judges would serve on the countywide municipal court. The District Court acknowledged that the interim plan was inconsistent with state law, but reasoned that the intrusion on state interests was minimal. The County submitted the interim plan to the Attorney General for preclearance, and it was precleared on March 6, 1995. In a special election conducted on June 6, 1995, seven judges were elected. (Apparently, terms of three of the judges holding seats in the seven-member election district had not expired by June 1995.)Shortly after the June 1995 special election, this Court issued its decision in Miller v. Johnson, 515 U. S. 900 (1995), which prompted the three-judge District Court to reconsider the soundness of its interim election plan. Miller, ruled the District Court, cast "substantial doubt" on the constitutionality of its previous order, "as that plan used race as a significant factor in dividing the County into election areas." App. 167. Without ruling that the interim plan was in fact unconstitutional, the District Court decided to change course. It denied the County's request to extend the terms of judges elected in the 1995 special election, concerned that such an extension would be "inappropriate" in light of the possible constitutional infirmity of the interim plan. A return to the judicial election system in existence before the adoption of the consolidation ordinances was not "legal, feasible or desired." Ibid. In the District Court's19view, its only option was to order the County to conduct an at-large, countywide judicial election in March 1996, while enjoining future elections pending preclearance of a permanent plan. Judges elected in 1996 would serve for the usual 6-year terms. The District Court also joined the State as an indispensable party, based on the State's argument that the County was doing nothing more than administering a state statute that required countywide elections, rather than administering its own county ordinance. Thus, in essence, four years after the filing of the complaint in this case, the District Court ordered the County to hold elections under the very same scheme that appellants originally challenged under § 5 as unprecleared.On January 22, 1996, appellants filed an emergency application in this Court to enjoin the 1996 elections pending appeal. We granted the application on February 1, 516 U. S. 1104 (1996), and noted probable jurisdiction on April 1, 517 U. S. 1118 (1996).II ASection 5 of the Voting Rights Act applies whenever a covered jurisdiction "enact[s] or seek[s] to administer any ... standard, practice, or procedure" different from that in force on the date of § 5 coverage. As a threshold matter, the State contends that, although the County perhaps should have submitted the consolidation ordinances to federal authorities before implementing them, intervening changes in California law have transformed the County's judicial election scheme into a state plan. Therefore, asserts the State, the County is not administering County consolidation ordinances in conducting municipal court elections, but is merely implementing California law, for which § 5 preclearance is not needed. The District Court was "not persuaded" by this argument, but ruled that the State could continue to seek to show that the County was merely administering California law. See20Cal. Govt. Code Ann. § 71040 (West 1976); see also Cal. Govt. Code Ann. § 25200 (West 1988). We leave this issue about the scope of § 5 to the District Court to resolve on remand.The State raises other threshold issues that the District Court did not have the opportunity to address. The State contends that appellants' suit was barred by laches; that it is constitutionally improper to designate the County a covered jurisdiction under § 5; and that the consolidation ordinances did not alter a voting "standard, practice, or procedure" subject to § 5 preclearance. We express no view on these claims, leaving it to the District Court to decide them in the first instance.BA jurisdiction subject to § 5's requirements must obtain either judicial or administrative preclearance before implementing a voting change. No new voting practice is enforceable unless the covered jurisdiction has succeeded in obtaining preclearance. Clark v. Roemer, 500 U. S., at 652-653; McDaniel v. Sanchez, 452 U. S. 130, 137 (1981); Connor v. Waller, 421 U. S. 656 (1975) (per curiam). If a voting change subject to § 5 has not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting implementation of the change. Clark v. Roemer, supra, at 652-653 (citing Allen v. State Bd. of Elections, 393 U. S. 544, 572 (1969)). The District Court's order that the County conduct elections under the unprecleared, at-large judicial election plan conflicts with these principles and with our decision in Clark v. Roemer, supra.Clark concerned the propriety of a three-judge District Court's refusal to enjoin elections under an unprecleared Louisiana judicial election plan. There, Louisiana had not submitted for preclearance a number of statutory and constitutional voting changes relating to elections of state judges, many of which were adopted in the late 1960's and 1970's. Id., at 649. The District Court nonetheless permitted elections to go forward, with the winners allowed to take office21if Louisiana filed a judicial preclearance action within 90 days. Id., at 651. We held that the District Court erred in authorizing these elections in the absence of preclearance, pointing out that although Louisiana had been aware for at least three years that the judgeships were not precleared, it had still failed to file for judicial preclearance. Id., at 655.We acknowledged in Clark that earlier decisions such as Perkins v. Matthews, 400 U. S. 379 (1971), and Berry v. Doles, 438 U. S. 190 (1978) (per curiam), held that where a covered jurisdiction had already conducted elections under an unprecleared plan, it might be appropriate for the district court to afford local officials an opportunity to seek federal approval before ordering a new election. 500 U. S., at 654. But those cases raised an issue different from the one in Clark. In Perkins and Berry, the District Courts confronted the question whether to set aside illegal elections that had already taken place. By contrast, the District Court in Clark had to decide whether to allow illegal elections to go forward in the first place. In this situation, "§ 5's prohibition against implementation of unprecleared changes required the District Court to enjoin the election." 500 U. S., at 654.The District Court faced fundamentally the same problem here as in Clark. The County did not preclear the ordinances as required by § 5. For several years, the County had been on notice that its electoral changes were subject to § 5's preclearance requirements, yet it never obtained judicial or administrative preclearance of the consolidation ordinances. In Clark, we left open the question whether a district court may ever deny a § 5 plaintiff's motion for an injunction and allow a covered jurisdiction to conduct an election under an unprecleared voting plan. We suggested that "[a]n extreme circumstance might be present if a seat's unprecleared status is not drawn to the attention of the [covered jurisdiction] until the eve of the election and there are equitable principles that justify allowing the election to pro-22ceed." Id., at 654-655. We found no such exigency to exist in Clark, and we find none here.The State contends that there is a difference between a district court's failing to enjoin an unprecleared election scheme-the situation in Clark-and its ordering, pursuant to its equitable remedial authority, an election under an unprecleared plan. Regardless whether this distinction is meaningful, it does not advance the argument that the County's judicial elections may be held without § 5 preclearance. We have recognized, at least in cases raising claims under the Fourteenth Amendment, that § 5 preclearance requirements may not apply where a district court independently crafts a remedial electoral plan. McDaniel v. Sanchez, supra, 148-150 (quoting S. Rep. No. 94-295, pp. 18-19 (1975)). But where a court adopts a proposal "reflecting the policy choices ... of the people [in a covered jurisdiction] ... the preclearance requirement of the Voting Rights Act is applicable." 452 U. S., at 153. The at-large, countywide system under which the District Court ordered the County to conduct elections undoubtedly "reflect[ed] the policy choices" of the County; it was the same system that the County had adopted in the first place. It was, therefore, error for the District Court to order elections under that system before it had been precleared by either the Attorney General or the United States District Court for the District of Columbia.We appreciate the predicament that the District Court faced. The County did not submit the consolidation ordinances for preclearance when they were adopted many years ago, and the District Court concluded that changes have occurred in the intervening years that make unrealistic a return to the judicial election plan of 1968, now nearly 30 years old. Since there may be no practical way to go back to the 1968 plan, simply enjoining the elections would leave the County without a judicial election system. The County and appellants seem unable to fashion an election plan that does23not contravene the California Constitution, and the State has vigorously opposed each of the parties' proposals as violative of state law.These complications do not, however, change the basic nature of the § 5 preclearance process. Congress designed the preclearance procedure "to forestall the danger that local decisions to modify voting practices will impair minority access to the electoral process." McDaniel, 452 U. S., at 149 (footnote omitted). Congress chose to accomplish this purpose by giving exclusive authority to pass on the discriminatory effect or purpose of an election change to the Attorney General and to the District Court for the District of Columbia. As we explained in McDaniel, "[b]ecause a large number of voting changes must necessarily undergo the preclearance process, centralized review enhances the likelihood that recurring problems will be resolved in a consistent and expeditious way." Id., at 151 (footnote omitted). Once a covered jurisdiction has complied with these preclearance requirements, § 5 provides no further remedy. Allen v. State Bd. of Elections, 393 U. S., at 549-550.This congressional choice in favor of specialized review necessarily constrains the role of the three-judge district court. On a complaint alleging failure to preclear election changes under § 5, that court lacks authority to consider the discriminatory purpose or nature of the changes. Perkins v. Matthews, supra, at 385 ("What is foreclosed to such district court is what Congress expressly reserved for consideration by the District Court for the District of Columbia or the Attorney General-the determination whether a covered change does or does not have the purpose or effect 'of denying or abridging the right to vote on account of race or color' "). The three-judge district court may determine only whether § 5 covers a contested change, whether § 5's approval requirements were satisfied, and if the requirements were not satisfied, what temporary remedy, if any, is appropriate. See City of Lockhart v. United States, 460 U. S. 125,24129, n. 3 (1983); United States v. Board of Supervisors of Warren Cty., 429 U. S. 642, 645-647 (1977) (per curiam); Perkins, supra, at 385; Allen, supra, at 558-559. The goal of a three-judge district court facing a § 5 challenge must be to ensure that the covered jurisdiction submits its election plan to the appropriate federal authorities for preclearance as expeditiously as possible.In this case, nearly five years after appellants brought their challenge, neither the Attorney General nor the District Court for the District of Columbia has yet made any findings regarding the retrogressive effect-or lack thereof-of the consolidation ordinances adopted between 1972 and 1983. The County dismissed its declaratory judgment action before the District Court for the District of Columbia made any findings, and it has never submitted the consolidation ordinances to the Attorney General for review. Although the District Court initially ordered the County to obtain preclearance of the ordinances, when the County failed to follow through, the District Court did not enforce its order.The District Court itself holds some responsibility for protracting this litigation. Because of its concern that the judicial election plans proposed by the County and appellants unnecessarily conflicted with California law, the District Court several times ordered the parties to submit to it an election plan that complied both with § 5's substantive requirements and with state law, before the County submitted the plan to federal officials. In so doing, it interposed itself into the § 5 approval process in a way that the statute does not contemplate. Cf. Upham v. Seamon, 456 U. S. 37, 42-43 (1982) (per curiam); United States v. Board of Supervisors of Warren Cty., supra, at 645-647; Perkins, 400 U. S., at 385. In their briefs, both parties raise detailed arguments regarding the effect of the consolidation ordinances on the County's minority voters, but § 5 requires either the Attorney General or the District Court for the District of Columbia to resolve25in the first instance whether the consolidated municipal court system is retrogressive compared to the system existing in 1968.The County has not discharged its obligation to submit its voting changes to either of the forums designated by Congress. The requirement of federal scrutiny should be satisfied without further delay. See Berry v. Doles, 438 U. S., at 192. The State appears willing to assist the County in pursuing the issue before either the Attorney General or the District Court for the District of Columbia, and its effort will doubtless be of assistance.The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1996SyllabusLOPEZ ET AL. v. MONTEREY COUNTY, CALIFORNIA, ET AL.APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIANo.95-1201. Argued October 8, 1996-Decided November 6,1996As a jurisdiction covered by § 5 of the Voting Rights Act of 1965, appellee Monterey County (hereinafter County) must obtain federal preclearance-either from the Attorney General of the United States or from the United States District Court for the District of Columbia-of any voting practice different from its practices on November 1, 1968. On that date, the County had nine separate and independent inferior court districts, the judges of which were elected exclusively by their respective districts' voters. Between 1972 and 1983, the County adopted six ordinances, which ultimately merged all the districts into a single, countywide municipal court served by judges whom County residents elected at large. This consolidation took place against a backdrop of California laws, some of which governed courts generally and others of which applied to the County's courts specifically. In 1991, appellants, Hispanic voters residing in the County, sued in the District Court, alleging that the County had violated § 5 by failing to obtain federal preclearance of the consolidation ordinances. The three-judge District Court ordered the County to obtain federal preclearance of the challenged ordinances. But the County did not submit the ordinances to the appropriate federal authorities. Instead, the County began to work with appellants to develop a new judicial election plan that they believed would be less retrogressive than the at-large, countywide election scheme. The State of California, as intervenor, opposed the parties' proposed plans. Ultimately, the District Court ordered the County to conduct judicial elections under an at-large, countywide election plan. In essence, four years after the filing of the complaint, the District Court ordered the County to hold elections under the very same scheme that appellants had originally challenged under § 5 as unprecleared.Held:1. This Court leaves to the District Court to resolve on remand appellee State's threshold contentions that, although the County perhaps should have submitted the consolidation ordinances for federal preclearance before implementing them, intervening changes in California law have transformed the County's judicial election scheme into a state plan, for which § 5 preclearance is not needed; that appellants' suit was barred10Syllabusby laches; that it is constitutionally improper to designate the County a covered jurisdiction under § 5; and that the consolidation ordinances did not alter a voting "standard, practice, or procedure" subject to § 5 preclearance. Pp. 19-20.2. The District Court's order that the County conduct elections under its unprecleared, at-large judicial election plan conflicts with Clark v. Roemer, 500 U. S. 646, 652-653, in which the Court held, among other things, that a voting change subject to § 5 is unenforceable unless precleared and that § 5 plaintiffs are entitled to an injunction prohibiting implementation of an unprecleared change. Thus, an injunction is required where, as here, a district court must decide whether to allow illegal elections to go forward. Id., at 654. There is no "extreme circumstance" here that might justify allowing the 1996 elections to proceed, cf. id., at 654-655, and the District Court has not independently crafted a remedial electoral plan such as might render the preclearance requirements inapplicable, see McDaniel v. Sanchez, 452 U. S. 130,148150. Nor is the preclearance process' basic nature changed by the complicating factors that a simple injunction could leave the County without a judicial election system because a return to the 1968 plan appears impractical, and that the parties seem unable to fashion a plan that does not contravene California law. Congress gave exclusive authority to pass on an election change's discriminatory effect or purpose to the federal authorities designated in § 5. See id., at 151. On a complaint alleging failure to preclear election changes under § 5, a three-judge district court may determine only whether § 5 covers a contested change, whether § 5's approval requirements were satisfied, and if the requirements were not satisfied, what temporary remedy, if any, is appropriate. See City of Lockhart v. United States, 460 U. S. 125, 129, n. 3. The goal of a three-judge district court facing a § 5 challenge must be to ensure that the covered jurisdiction submits its election plan to the appropriate federal authorities for preclearance as expeditiously as possible. Here, by protracting this litigation in order to obtain a plan that complied both with § 5 and with state law, the District Court interposed itself into the § 5 approval process in a way that the statute does not contemplate. Cf., e. g., Upham v. Seamon, 456 U. S. 37, 42-43 (per curiam). pp.20-25.Reversed and remanded.O'CONNOR, J., delivered the opinion for a unanimous Court.Joaquin G. Avila argued the cause for appellants. With him on the briefs were Robert Rubin, Anthony Chavez, Antonia Hernandez, and Richard M. Pearl.11Full Text of Opinion

1985_83-1968

JUSTICE BRENNAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, an opinion with respect to Part III-C, in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, and an opinion with respect to Part IV-B, in which JUSTICE WHITE joins.This case requires that we construe for the first time § 2 of the Voting Rights Act of 1965, as amended June 29, 1982. 42 U.S.C. § 1973. The specific question to be decided is whether the three-judge District Court, convened in the Eastern District of North Carolina pursuant to 28 U.S.C. § 2284(a) and 42 U.S.C. § 1973c, correctly held that the use in a legislative redistricting plan of multimember districts in five North Carolina legislative districts violated § 2 by impairing the opportunity of black voters "to participate in the political process and to elect representatives of their choice." § 2(b), 96 Stat. 134.IBACKGROUNDIn April, 1982, the North Carolina General Assembly enacted a legislative redistricting plan for the State's Senate Page 478 U. S. 35 and House of Representatives. Appellees, black citizens of North Carolina who are registered to vote, challenged seven districts, one single-member [Footnote 1] and six multimember [Footnote 2] districts, alleging that the redistricting scheme impaired black citizens' ability to elect representatives of their choice in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution and of § 2 of the Voting Rights Act. [Footnote 3]After appellees brought suit, but before trial, Congress amended § 2. The amendment was largely a response to this Court's plurality opinion in Mobile v. Bolden, 446 U. S. 55 (1980), which had declared that, in order to establish a violation either of § 2 or of the Fourteenth or Fifteenth Amendments, minority voters must prove that a contested electoral mechanism was intentionally adopted or maintained by state officials for a discriminatory purpose. Congress substantially revised § 2 to make clear that a violation could be proved by showing discriminatory effect alone, and to establish as the relevant legal standard the "results test," applied by this Court in White v. Regester, 412 U. S. 755 (1973), and by other federal courts before Bolden, supra. S.Rep. No. 97-417, p. 28 (1982) (hereinafter S.Rep.). Page 478 U. S. 36Section 2, as amended, 96 Stat. 134, reads as follows:"(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), as provided in subsection (b).""(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."Codified at 42 U.S.C. § 1973.The Senate Judiciary Committee majority Report accompanying the bill that amended § 2 elaborates on the circumstances that might be probative of a § 2 violation, noting the following "typical factors": [Footnote 4]"1. the extent of any history of official discrimination in the state or political subdivision that touched the right of Page 478 U. S. 37 the members of the minority group to register, to vote, or otherwise to participate in the democratic process;""2. the extent to which voting in the elections of the state or political subdivision is racially polarized;""3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;""4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;""5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;""6. whether political campaigns have been characterized by overt or subtle racial appeals;""7. the extent to which members of the minority group have been elected to public office in the jurisdiction.""Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are:""whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.""whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous."S.Rep. at 28-29.The District Court applied the "totality of the circumstances" test set forth in § 2(b) to appellees' statutory claim, and, relying principally on the factors outlined in the Senate Page 478 U. S. 38 Report, held that the redistricting scheme violated § 2 because it resulted in the dilution of black citizens' votes in all seven disputed districts. In light of this conclusion, the court did not reach appellees' constitutional claims. Gingles v. Edmisten, 590 F. Supp. 345 (EDNC 1984).Preliminarily, the court found that black citizens constituted a distinct population and registered-voter minority in each challenged district. The court noted that, at the time the multimember districts were created, there were concentrations of black citizens within the boundaries of each that were sufficiently large and contiguous to constitute effective voting majorities in single-member districts lying wholly within the boundaries of the multimember districts. With respect to the challenged single-member district, Senate District No. 2, the court also found that there existed a concentration of black citizens within its boundaries and within those of adjoining Senate District No. 6 that was sufficient in numbers and in contiguity to constitute an effective voting majority in a single-member district. The District Court then proceeded to find that the following circumstances combined with the multimember districting scheme to result in the dilution of black citizens' votes.First, the court found that North Carolina had officially discriminated against its black citizens with respect to their exercise of the voting franchise from approximately 1900 to 1970 by employing, at different times, a poll tax, a literacy test, a prohibition against bullet (single-shot) voting, [Footnote 5] Page 478 U. S. 39 and designated seat plans [Footnote 6] for multimember districts. The court observed that, even after the removal of direct barriers to black voter registration such as the poll tax and literacy test, black voter registration remained relatively depressed; in 1982, only 52.7% of age-qualified blacks statewide were registered to vote, whereas 66.7% of whites were registered. The District Court found these statewide depressed levels of black voter registration to be present in all of the disputed districts, and to be traceable, at least in part, to the historical pattern of statewide official discrimination.Second, the court found that historic discrimination in education, housing, employment, and health services had resulted in a lower socioeconomic status for North Carolina blacks as a group than for whites. The court concluded that this lower status both gives rise to special group interests and hinders blacks' ability to participate effectively in the political process and to elect representatives of their choice.Third, the court considered other voting procedures that may operate to lessen the opportunity of black voters to elect candidates of their choice. It noted that North Carolina has a majority vote requirement for primary elections, and, while acknowledging that no black candidate for election to the State General Assembly had failed to win solely because of this requirement, the court concluded that it nonetheless presents a continuing practical impediment to the opportunity of black voting minorities to elect candidates of their choice. The court also remarked on the fact that North Carolina does not have a subdistrict residency requirement for members of the General Assembly elected from multimember Page 478 U. S. 40 districts, a requirement which the court found could offset to some extent the disadvantages minority voters often experience in multimember districts.Fourth, the court found that white candidates in North Carolina have encouraged voting along color lines by appealing to racial prejudice. It noted that the record is replete with specific examples of racial appeals, ranging in style from overt and blatant to subtle and furtive, and in date from the 1890's to the 1984 campaign for a seat in the United States Senate. The court determined that the use of racial appeals in political campaigns in North Carolina persists to the present day, and that its current effect is to lessen to some degree the opportunity of black citizens to participate effectively in the political processes and to elect candidates of their choice.Fifth, the court examined the extent to which blacks have been elected to office in North Carolina, both statewide and in the challenged districts. It found, among other things, that, prior to World War II, only one black had been elected to public office in this century. While recognizing that "it has now become possible for black citizens to be elected to office at all levels of state government in North Carolina," 590 F. Supp. at 367, the court found that, in comparison to white candidates running for the same office, black candidates are at a disadvantage in terms of relative probability of success. It also found that the overall rate of black electoral success has been minimal in relation to the percentage of blacks in the total state population. For example, the court noted, from 1971 to 1982, there were, at any given time, only two-to-four blacks in the 120-member House of Representatives -- that is, only 1.6% to 3.3% of House members were black. From 1975 to 1983, there were, at any one time, only one or two blacks in the 50-member State Senate -- that is, only 2% to 4% of State Senators were black. By contrast, at the time of the District Court's opinion, blacks constituted about 22.4% of the total state population. Page 478 U. S. 41With respect to the success in this century of black candidates in the contested districts, see also 478 U.S. 30app B|>Appendix B to opinion, post p. 82, the court found that only one black had been elected to House District 36 -- after this lawsuit began. Similarly, only one black had served in the Senate from District 22, from 1975-1980. Before the 1982 election, a black was elected only twice to the House from District 39 (part of Forsyth County); in the 1982 contest, two blacks were elected. Since 1973, a black citizen had been elected each 2-year term to the House from District 23 (Durham County), but no black had been elected to the Senate from Durham County. In House District 21 (Wake County), a black had been elected twice to the House, and another black served two terms in the State Senate. No black had ever been elected to the House or Senate from the area covered by House District No. 8, and no black person had ever been elected to the Senate from the area covered by Senate District No. 2.The court did acknowledge the improved success of black candidates in the 1982 elections, in which 11 blacks were elected to the State House of Representatives, including 5 blacks from the multimember districts at issue here. However, the court pointed out that the 1982 election was conducted after the commencement of this litigation. The court found the circumstances of the 1982 election sufficiently aberrational, and the success by black candidates too minimal and too recent in relation to the long history of complete denial of elective opportunities, to support the conclusion that black voters' opportunities to elect representatives of their choice were not impaired.Finally, the court considered the extent to which voting in the challenged districts was racially polarized. Based on statistical evidence presented by expert witnesses, supplemented to some degree by the testimony of lay witnesses, the court found that all of the challenged districts exhibit severe and persistent racially polarized voting. Page 478 U. S. 42Based on these findings, the court declared the contested portions of the 1982 redistricting plan violative of § 2, and enjoined appellants from conducting elections pursuant to those portions of the plan. Appellants, the Attorney General of North Carolina and others, took a direct appeal to this Court, pursuant to 28 U.S.C. § 1253, with respect to five of the multimember districts -- House Districts 21, 23, 36, and 39, and Senate District 22. Appellants argue, first, that the District Court utilized a legally incorrect standard in determining whether the contested districts exhibit racial bloc voting to an extent that is cognizable under § 2. Second, they contend that the court used an incorrect definition of racially polarized voting, and thus erroneously relied on statistical evidence that was not probative of polarized voting. Third, they maintain that the court assigned the wrong weight to evidence of some black candidates' electoral success. Finally, they argue that the trial court erred in concluding that these multimember districts result in black citizens' having less opportunity than their white counterparts to participate in the political process and to elect representatives of their choice. We noted probable jurisdiction, 471 U.S. 1064 (1985), and now affirm with respect to all of the districts except House District 23. With regard to District 23, the judgment of the District Court is reversed.IISECTION 2 AND VOTE DILUTION THROUGH USEOF MULTIMEMBER DISTRICTSAn understanding both of § 2 and of the way in which multimember districts can operate to impair blacks' ability to elect representatives of their choice is prerequisite to an evaluation of appellants' contentions. First, then, we review amended § 2 and its legislative history in some detail. Second, we explain the theoretical basis for appellees' claim of vote dilution. Page 478 U. S. 43ASECTION 2 AND ITS LEGISLATIVE HISTORYSubsection 2(a) prohibits all States and political subdivisions from imposing any voting qualifications or prerequisites to voting, or any standards, practices, or procedures which result in the denial or abridgment of the right to vote of any citizen who is a member of a protected class of racial and language minorities. Subsection 2(b) establishes that § 2 has been violated where the "totality of circumstances" reveals that"the political processes leading to nomination or election . . . are not equally open to participation by members of a [protected class] . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."While explaining that"[t]he extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered"in evaluating an alleged violation, § 2(b) cautions that"nothing in [§ 2] establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."The Senate Report which accompanied the 1982 amendments elaborates on the nature of § 2 violations, and on the proof required to establish these violations. [Footnote 7] First and foremost, the Report dispositively rejects the position of the plurality in Mobile v. Bolden, 446 U. S. 55 (1980), which Page 478 U. S. 44 required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters. [Footnote 8] See, e.g., S.Rep. at 2, 15-16, 27. The intent test was repudiated for three principal reasons -- it is "unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities," it places an "inordinately difficult" burden of proof on plaintiffs, and it "asks the wrong question." Id. at 36. The "right" question, as the Report emphasizes repeatedly, is whether,"as a result of the challenged practice or structure, plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice. [Footnote 9]"Id. at 28. See also id. at 2, 27, 29, n. 118, 36.In order to answer this question, a court must assess the impact of the contested structure or practice on minority electoral opportunities "on the basis of objective factors." Id. at 27. The Senate Report specifies factors which typically may be relevant to a § 2 claim: the history of voting-related discrimination in the State or political Page 478 U. S. 45 subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction. Id. at 28-29; see also supra at 36-37. The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group, and that the policy underlying the State's or the political subdivision's use of the contested practice or structure is tenuous, may have probative value. Id. at 29. The Report stresses, however, that this list of typical factors is neither comprehensive nor exclusive. While the enumerated factors will often be pertinent to certain types of § 2 violations, particularly to vote dilution claims, [Footnote 10] other factors may also be relevant, and may be considered. Id. at 29-30. Furthermore, the Senate Committee observed that "there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other." Id. at 29. Rather, the Committee determined that"the question whether the political processes are 'equally open' depends upon a searching practical evaluation of the 'past and present reality,'"id. at 30 (footnote omitted), and on a "functional" view of the political process. Id. at 30, n. 120. Page 478 U. S. 46Although the Senate Report espouses a flexible, fact-intensive test for § 2 violations, it limits the circumstances under which § 2 violations may be proved in three ways. First, electoral devices, such as at-large elections, may not be considered per se violative of § 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process. Id. at 16. Second, the conjunction of an allegedly dilutive electoral mechanism and the lack of proportional representation, alone, does not establish a violation. Ibid. Third, the results test does not assume the existence of racial bloc voting; plaintiffs must prove it. Id. at 33.BVOTE DILUTION THROUGH THE USE OFMULTIMEMBER DISTRICTSAppellees contend that the legislative decision to employ multimember, rather than single-member, districts in the contested jurisdictions dilutes their votes by submerging them in a white majority, [Footnote 11] thus impairing their ability to elect representatives of their choice. [Footnote 12] Page 478 U. S. 47The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives. This Court has long recognized that multimember districts and at-large voting schemes may "operate to minimize or cancel out the voting strength of racial [minorities in] the voting population.'" [Footnote 13] Burns v. Richardson, 384 U.S. Page 478 U. S. 48 73, 384 U. S. 88 (1966) (quoting Fortson v. Dorsey, 379 U. S. 433, 379 U. S. 439 (1965)). See also Rogers v. Lodge, 458 U. S. 613, 458 U. S. 617 (1982); White v. Regester, 412 U.S. at 412 U. S. 765; Whitcomb v. Chavis, 403 U. S. 124, 403 U. S. 143 (1971). The theoretical basis for this type of impairment is that, where minority and majority voters consistently prefer different candidates, the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters. [Footnote 14] See, e.g., Grofman, Alternatives, in Representation and Redistricting Issues 113-114. Multimember districts and at-large election schemes, however, are not per se violative of minority voters' rights. S.Rep. at 16. Cf. Rogers v. Lodge, supra, at 458 U. S. 617; Regester, supra, at 412 U. S. 765; Whitcomb, supra, at 403 U. S. 142. Minority voters who contend that the multimember form of districting violates § 2 must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates. See, e.g., S.Rep. at 16.While many or all of the factors listed in the Senate Report may be relevant to a claim of vote dilution through submergence in multimember districts, unless there is a conjunction of the following circumstances, the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice. [Footnote 15] Stated succinctly, Page 478 U. S. 49 a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group. Bonapfel 355; Blacksher & Menefee 34; Butler 903; Carpeneti 696-699; Davidson, Minority Vote Dilution: An Overview (hereinafter Davidson), in Minority Vote Dilution 4; Grofman, Alternatives 117. Cf. Bolden, 446 U.S. at 446 U. S. 105, n. 3 (MARSHALL, J., dissenting) ("It is obvious Page 478 U. S. 50 that the greater the degree to which the electoral minority is homogeneous and insular, and the greater the degree that bloc voting occurs along majority-minority lines, the greater will be the extent to which the minority's voting power is diluted by multimember districting"). These circumstances are necessary preconditions for multimember districts to operate to impair minority voters' ability to elect representatives of their choice for the following reasons. First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. [Footnote 16] If it is not, as would be the case in a substantially integrated district, the multimember form of the district cannot be responsible for minority voters' inability to elect its candidates. [Footnote 17] Cf. Rogers, Page 478 U. S. 51 458 U.S. at 458 U. S. 616. See also Blacksher & Menefee 51-56, 58; Bonapfel 355; Carpeneti 696; Davidson 4; Jewell 130. Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. Blacksher & Menefee 51-55, 58-60, and n. 344; Carpeneti 696-697; Davidson 4. Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it -- in the absence of special circumstances, such as the minority candidate running unopposed, see, infra, at 478 U. S. 57, and n. 26 -- usually to defeat the minority's preferred candidate. See, e.g., Blacksher & Menefee 51, 53, 56-57, 60. Cf. Rogers, supra, at 458 U. S. 616-617; Whitcomb, 403 U.S. at 158-159; McMillan v. Escambia County, Fla., 748 F.2d 1037, 1043 (CA5 1984). In establishing this last circumstance, the minority group demonstrates that submergence in a white multimember district impedes its ability to elect its chosen representatives.Finally, we observe that the usual predictability of the majority's success distinguishes structural dilution from the mere loss of an occasional election. Cf. Davis v. Bandemer, post at 478 U. S. 131-133, 478 U. S. 139-140 (opinion of WHITE, J.); Bolden, supra, at 446 U. S. 111, n. 7 (MARSHALL, J., dissenting); Whitcomb, supra, at 403 U. S. 153. See also Blacksher & Menefee 57, n. 333; Note, Geometry and Geography: Racial Gerrymandering and the Voting Rights Act, 94 Yale L.J. 189, 200, n. 66 (1984) (hereinafter Note, Geometry and Geography). Page 478 U. S. 52IIIRACIALLY POLARIZED VOTINGHaving stated the general legal principles relevant to claims that § 2 has been violated through the use of multimember districts, we turn to the arguments of appellants and of the United States as amicus curiae addressing racially polarized voting. [Footnote 18] First, we describe the District Court's treatment of racially polarized voting. Next, we consider appellants' claim that the District Court used an incorrect legal standard to determine whether racial bloc voting in the contested districts was sufficiently severe to be cognizable as an element of a § 2 claim. Finally, we consider appellants' contention that the trial court employed an incorrect definition of racially polarized voting, and thus erroneously relied on statistical evidence that was not probative of racial bloc voting.ATHE DISTRICT COURT'S TREATMENT OF RACIALLYPOLARIZED VOTINGThe investigation conducted by the District Court into the question of racial bloc voting credited some testimony of lay witnesses, but relied principally on statistical evidence presented by appellees' expert witnesses, in particular that offered by Dr. Bernard Grofman. Dr. Grofman collected and evaluated data from 53 General Assembly primary and general elections involving black candidacies. These elections were held over a period of three different election years in the six originally challenged multimember districts. [Footnote 19] Dr. Grofman subjected the data to two complementary methods of analysis -- extreme case analysis and bivariate ecological Page 478 U. S. 53 regression analysis [Footnote 20] -- in order to determine whether blacks and whites in these districts differed in their voting behavior. These analytic techniques yielded data concerning the voting patterns of the two races, including estimates of the percentages of members of each race who voted for black candidates.The court's initial consideration of these data took the form of a three-part inquiry: did the data reveal any correlation between the race of the voter and the selection of certain candidates; was the revealed correlation statistically significant; and was the difference in black and white voting patterns "substantively significant"? The District Court found that blacks and whites generally preferred different candidates and, on that basis, found voting in the districts to be racially correlated. [Footnote 21] The court accepted Dr. Grofman's expert opinion that the correlation between the race of the voter and the voter's choice of certain candidates was statistically significant. [Footnote 22] Finally, adopting Dr. Grofman's terminology, see Page 478 U. S. 54 Tr.195, the court found that, in all but 2 of the 53 elections, [Footnote 23] the degree of racial bloc voting was "so marked as to be substantively significant, in the sense that the results of the individual election would have been different depending upon whether it had been held among only the white voters or only the black voters." 590 F. Supp. at 368.The court also reported its findings, both in tabulated numerical form and in written form, that a high percentage of black voters regularly supported black candidates and that most white voters were extremely reluctant to vote for black candidates. The court then considered the relevance to the existence of legally significant white bloc voting of the fact that black candidates have won some elections. It determined that, in most instances, special circumstances, such as incumbency and lack of opposition, rather than a diminution in usually severe white bloc voting, accounted for these candidates' success. The court also suggested that black voters' reliance on bullet voting was a significant factor in their successful efforts to elect candidates of their choice. Based on all of the evidence before it, the trial court concluded that each of the districts experienced racially polarized voting "in a persistent and severe degree." Id. at 367.BTHE DEGREE OF BLOC VOTING THAT IS LEGALLYSIGNIFICANT UNDER § 21Appellants' ArgumentsNorth Carolina and the United States argue that the test used by the District Court to determine whether voting patterns in the disputed districts are racially polarized to an extent cognizable under § 2 will lead to results that are inconsistent with congressional intent. North Carolina maintains Page 478 U. S. 55 that the court considered legally significant racially polarized voting to occur whenever "less than 50% of the white voters cast a ballot for the black candidate." Brief for Appellants 36. Appellants also argue that racially polarized voting is legally significant only when it always results in the defeat of black candidates. Id. at 39-40.The United States, on the other hand, isolates a single line in the court's opinion and identifies it as the court's complete test. According to the United States, the District Court adopted a standard under which legally significant racial bloc voting is deemed to exist whenever"'the results of the individual election would have been different depending upon whether it had been held among only the white voters or only the black voters in the election.'"Brief for United States as Amicus Curiae 29 (quoting 590 F.Supp. at 368). We read the District Court opinion differently.2The Standard for Legally Significant Racial Bloc VotingThe Senate Report states that the "extent to which voting in the elections of the state or political subdivision is racially polarized," S.Rep. at 29, is relevant to a vote dilution claim. Further, courts and commentators agree that racial bloc voting is a key element of a vote dilution claim. See, e.g., Escambia County, Fla., 748 F.2d at 1043; United States v. Marengo County Comm'n, 731 F.2d 1546, 1566 (CA11), appeal dism'd and cert. denied, 469 U.S. 976 (1984); Nevett v. Sides, 571 F.2d 209, 223 (CA5 1978), cert. denied, 446 U.S. 951 (1980); Johnson v. Halifax County, 594 F. Supp. 161, 170 (EDNC 1984); Blacksher & Menefee; Engstrom & Wildgen, 465, 469; Parker 107; Note, Geometry and Geography 199. Because, as we explain below, the extent of bloc voting necessary to demonstrate that a minority's ability to elect its preferred representatives is impaired varies according to several factual circumstances, the degree of bloc voting which constitutes the threshold of legal significance will vary Page 478 U. S. 56 from district to district. Nonetheless, it is possible to state some general principles, and we proceed to do so.The purpose of inquiring into the existence of racially polarized voting is twofold: to ascertain whether minority group members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidates. See supra, at 478 U.S. 48-51. Thus, the question whether a given district experiences legally significant racially polarized voting requires discrete inquiries into minority and white voting practices. A showing that a significant number of minority group members usually vote for the same candidates is one way of proving the political cohesiveness necessary to a vote dilution claim, Blacksher & Menefee 59-60, and n. 344, and, consequently, establishes minority bloc voting within the context of § 2. And, in general, a white bloc vote that normally will defeat the combined strength of minority support plus white "crossover" votes rises to the level of legally significant white bloc voting. Id. at 60. The amount of white bloc voting that can generally "minimize or cancel," S.Rep. at 28; Regester, 412 U.S. at 412 U. S. 765, black voters' ability to elect representatives of their choice, however, will vary from district to district according to a number of factors, including the nature of the allegedly dilutive electoral mechanism; the presence or absence of other potentially dilutive electoral devices, such as majority vote requirements, designated posts, and prohibitions against bullet voting; the percentage of registered voters in the district who are members of the minority group; the size of the district; and, in multimember districts, the number of seats open and the number of candidates in the field. [Footnote 24] See, e.g., Butler 874-876; Davidson 5; Jones, The Impact of Local Election Systems on Black Political Representation, 11 Urb.Aff.Q. 345 (1976); United States Commission Page 478 U. S. 57 on Civil Rights, The Voting Rights Act: Unfulfilled Goals 38-41 (1981).Because loss of political power through vote dilution is distinct from the mere inability to win a particular election, Whitcomb, 403 U.S. at 403 U. S. 153, a pattern of racial bloc voting that extends over a period of time is more probative of a claim that a district experiences legally significant polarization than are the results of a single election. [Footnote 25] Blacksher & Menefee 61; Note, Geometry and Geography 200, n. 66 ("Racial polarization should be seen as an attribute not of a single election, but rather of a polity viewed over time. The concern is necessarily temporal and the analysis historical because the evil to be avoided is the subordination of minority groups in American politics, not the defeat of individuals in particular electoral contests"). Also for this reason, in a district where elections are shown usually to be polarized, the fact that racially polarized voting is not present in one or a few individual elections does not necessarily negate the conclusion that the district experiences legally significant bloc voting. Furthermore, the success of a minority candidate in a particular election does not necessarily prove that the district did not experience polarized voting in that election; special circumstances, such as the absence of an opponent, incumbency, or the utilization of bullet voting, may explain minority electoral success in a polarized contest. [Footnote 26]As must be apparent, the degree of racial bloc voting that is cognizable as an element of a § 2 vote dilution claim will Page 478 U. S. 58 vary according to a variety of factual circumstances. Consequently, there is no simple doctrinal test for the existence of legally significant racial bloc voting. However, the foregoing general principles should provide courts with substantial guidance in determining whether evidence that black and white voters generally prefer different candidates rises to the level of legal significance under § 2.3Standard Utilized by the District CourtThe District Court clearly did not employ the simplistic standard identified by North Carolina -- legally significant bloc voting occurs whenever less than 50% of the white voters cast a ballot for the black candidate. Brief for Appellants 36. And, although the District Court did utilize the measure of "substantive significance" that the United States ascribes to it --"'the results of the individual election would have been different depending on whether it had been held among only the white voters or only the black voters,'"Brief for United States as Amicus Curiae 29 (quoting 590 F.Supp. at 368) -- the court did not reach its ultimate conclusion that the degree of racial bloc voting present in each district is legally significant through mechanical reliance on this standard. [Footnote 27] While the court did not phrase the standard for legally significant racial bloc voting exactly as we do, a fair reading of the court's opinion reveals that the court's analysis conforms to our view of the proper legal standard.The District Court's findings concerning black support for black candidates in the five multimember districts at issue Page 478 U. S. 59 here clearly establish the political cohesiveness of black voters. As is apparent from the District Court's tabulated findings, reproduced in 478 U.S. 30app A|>Appendix A to opinion, post p. 478 U. S. 80, black voters' support for black candidates was overwhelming in almost every election. In all but 5 of 16 primary elections, black support for black candidates ranged between 71% and 92%; and in the general elections, black support for black Democratic candidates ranged between 87% and 96%.In sharp contrast to its findings of strong black support for black candidates, the District Court found that a substantial majority of white voters would rarely, if ever, vote for a black candidate. In the primary elections, white support for black candidates ranged between 8% and 50%, and in the general elections it ranged between 28% and 49%. See ibid. The court also determined that, on average, 81.7% of white voters did not vote for any black candidate in the primary elections. In the general elections, white voters almost always ranked black candidates either last or next to last in the multicandidate field, except in heavily Democratic areas where white voters consistently ranked black candidates last among the Democrats, if not last or next to last among all candidates. The court further observed that approximately two-thirds of white voters did not vote for black candidates in general elections, even after the candidate had won the Democratic primary and the choice was to vote for a Republican or for no one. [Footnote 28] Page 478 U. S. 60While the District Court did not state expressly that the percentage of whites who refused to vote for black candidates in the contested districts would, in the usual course of events, result in the defeat of the minority's candidates, that conclusion is apparent both from the court's factual findings and from the rest of its analysis. First, with the exception of House District 23, see infra at 478 U. S. 77, the trial court's findings clearly show that black voters have enjoyed only minimal and sporadic success in electing representatives of their choice. See 478 U.S. 30app B|>Appendix B to opinion, post, p. 478 U. S. 82. Second, where black candidates won elections, the court closely examined the circumstances of those elections before concluding that the success of these blacks did not negate other evidence, derived from all of the elections studied in each district, that legally significant racially polarized voting exists in each district. For example, the court took account of the benefits incumbency and running essentially unopposed conferred on some of the successful black candidates, [Footnote 29] as well as of the Page 478 U. S. 61 very different order of preference blacks and whites assigned black candidates, [Footnote 30] in reaching its conclusion that legally significant racial polarization exists in each district.We conclude that the District Court's approach, which tested data derived from three election years in each district, and which revealed that blacks strongly supported black candidates, while, to the black candidates' usual detriment, whites rarely did, satisfactorily addresses each facet of the proper legal standard.CEVIDENCE OF RACIALLY POLARIZED VOTING1Appellants' ArgumentNorth Carolina and the United States also contest the evidence upon which the District Court relied in finding that voting patterns in the challenged districts were racially polarized. They argue that the term "racially polarized voting" must, as a matter of law, refer to voting patterns for which the principal cause is race. They contend that the District Court utilized a legally incorrect definition of racially polarized voting by relying on bivariate statistical analyses which merely demonstrated a correlation between the race of the voter and the level of voter support for certain candidates, but which did not prove that race was the primary determinant of voters' choices. According to appellants and the United States, only multiple regression analysis, which can take account of other variables which might also explain voters' choices, such as "party affiliation, age, religion, income[,] incumbency, education, campaign expenditures," Brief for Page 478 U. S. 62 Appellants 42, "media use measured by cost, . . . name, identification, or distance that a candidate lived from a particular precinct," Brief for United States as Amicus Curiae 30, n. 57, can prove that race was the primary determinant of voter behavior. [Footnote 31]Whether appellants and the United States believe that it is the voter's race or the candidate's race that must be the primary determinant of the voter's choice is unclear; indeed, their catalogs of relevant variables suggest both. [Footnote 32] Age, religion, income, and education seem most relevant to the voter; incumbency, campaign expenditures, name identification, and media use are pertinent to the candidate; and party affiliation could refer both to the voter and the candidate. In either case, we disagree: for purposes of § 2, the legal concept of racially polarized voting incorporates neither causation nor intent. It means simply that the race of voters correlates with the selection of a certain candidate or candidates; that is, it refers to the situation where different races (or minority language groups) vote in blocs for different candidates. Grofman, Migalski, & Noviello 203. As we demonstrate infra, appellants' theory of racially polarized voting would thwart the goals Congress sought to achieve when it amended § 2, and would prevent courts from performing the "functional" analysis of the political process, S.Rep. at 30, n. 119, and the "searching practical evaluation of the past Page 478 U. S. 63 and present reality,'" id. at 30 (footnote omitted), mandated by the Senate Report.2Causation Irrelevant to Section 2 InquiryThe first reason we reject appellants' argument that racially polarized voting refers to voting patterns that are in some way caused by race, rather than to voting patterns that are merely correlated with the race of the voter, is that the reasons black and white voters vote differently have no relevance to the central inquiry of § 2. By contrast, the correlation between race of voter and the selection of certain candidates is crucial to that inquiry.Both § 2 itself and the Senate Report make clear that the critical question in a § 2 claim is whether the use of a contested electoral practice or structure results in members of a protected group having less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. See, e.g., S.Rep. at 2, 27, 28, 29, n. 118, 36. As we explained, supra, at 478 U. S. 47-48, multimember districts may impair the ability of blacks to elect representatives of their choice where blacks vote sufficiently as a bloc as to be able to elect their preferred candidates in a black majority, single-member district and where a white majority votes sufficiently as a bloc usually to defeat the candidates chosen by blacks. It is the difference between the choices made by blacks and whites -- not the reasons for that difference -- that results in blacks having less opportunity than whites to elect their preferred representatives. Consequently, we conclude that, under the "results test" of § 2, only the correlation between race of voter and selection of certain candidates, not the causes of the correlation, matters.The irrelevance to a § 2 inquiry of the reasons why black and white voters vote differently supports, by itself, our rejection of appellants' theory of racially polarized voting. However, their theory contains other equally serious flaws Page 478 U. S. 64 that merit further attention. As we demonstrate below, the addition of irrelevant variables distorts the equation and yields results that are indisputably incorrect under § 2 and the Senate Report.3Race of Voter as Primary Determinant of Voter BehaviorAppellants and the United States contend that the legal concept of "racially polarized voting" refers not to voting patterns that are merely correlated with the voter's race, but to voting patterns that are determined primarily by the voter's race, rather than by the voter's other socioeconomic characteristics.The first problem with this argument is that it ignores the fact that members of geographically insular racial and ethnic groups frequently share socioeconomic characteristics, such as income level, employment status, amount of education, housing and other living conditions, religion, language, and so forth. See, e.g., Butler 902 (Minority group "members' shared concerns, including political ones, are . . . a function of group status, and as such are largely involuntary. . . . As a group blacks are concerned, for example, with police brutality, substandard housing, unemployment, etc., because these problems fall disproportionately upon the group"); S. Verba & N. Nie, Participation in America 151-152 (1972) ("Socioeconomic status . . . is closely related to race. Blacks in American society are likely to be in lower-status jobs than whites, to have less education, and to have lower incomes"). Where such characteristics are shared, race or ethnic group not only denotes color or place of origin, it also functions as a shorthand notation for common social and economic characteristics. Appellants' definition of racially polarized voting is even more pernicious where shared characteristics are causally related to race or ethnicity. The opportunity to achieve high employment status and income, for example, is often influenced by the presence or absence of racial or ethnic discrimination. A definition of racially polarized voting which Page 478 U. S. 65 holds that black bloc voting does not exist when black voters' choice of certain candidates is most strongly influenced by the fact that the voters have low incomes and menial jobs -- when the reason most of those voters have menial jobs and low incomes is attributable to past or present racial discrimination -- runs counter to the Senate Report's instruction to conduct a searching and practical evaluation of past and present reality, S.Rep. at 30, and interferes with the purpose of the Voting Rights Act to eliminate the negative effects of past discrimination on the electoral opportunities of minorities. Id. at 5, 40.Furthermore, under appellants' theory of racially polarized voting, even uncontrovertible evidence that candidates strongly preferred by black voters are always defeated by a bloc voting white majority would be dismissed for failure to prove racial polarization whenever the black and white populations could be described in terms of other socioeconomic characteristics.To illustrate, assume a racially mixed, urban multimember district in which blacks and whites possess the same socioeconomic characteristics that the record in this case attributes to blacks and whites in Halifax County, a part of Senate District 2. The annual mean income for blacks in this district is $10,465, and 47.8% of the black community lives in poverty. More than half -- 51.5% -- of black adults over the age of 25 have only an eighth-grade education or less. Just over half of black citizens reside in their own homes; 48.9% live in rental units. And almost a third of all black households are without a car. In contrast, only 12.6% of the whites in the district live below the poverty line. Whites enjoy a mean income of $19,042. White residents are better educated than blacks -- only 25.6% of whites over the age of 25 have only an eighth-grade education or less. Furthermore, only 26.2% of whites live in rental units, and only 10.2% live in households with no vehicle available. 1 App. Ex-44. As is the case in Senate District 2, blacks in this Page 478 U. S. 66 hypothetical urban district have never been able to elect a representative of their choice.According to appellants' theory of racially polarized voting, proof that black and white voters in this hypothetical district regularly choose different candidates, and that the blacks' preferred candidates regularly lose, could be rejected as not probative of racial bloc voting. The basis for the rejection would be that blacks chose a certain candidate not principally because of their race, but principally because this candidate best represented the interests of residents who, because of their low incomes, are particularly interested in government-subsidized health and welfare services; who are generally poorly educated, and thus share an interest in job training programs; who are, to a greater extent than the white community, concerned with rent control issues; and who favor major public transportation expenditures. Similarly, whites would be found to have voted for a different candidate, not principally because of their race, but primarily because that candidate best represented the interests of residents who, due to their education and income levels, and to their property and vehicle ownership, favor gentrification, low residential property taxes, and extensive expenditures for street and highway improvements.Congress could not have intended that courts employ this definition of racial bloc voting. First, this definition leads to results that are inconsistent with the effects test adopted by Congress when it amended § 2 and with the Senate Report's admonition that courts take a "functional" view of the political process, S.Rep. 30, n. 119, and conduct a searching and practical evaluation of reality. Id. at 30. A test for racially polarized voting that denies the fact that race and socioeconomic characteristics are often closely correlated permits neither a practical evaluation of reality nor a functional analysis of vote dilution. And, contrary to Congress' intent in adopting the "results test," appellants' proposed definition could result in the inability of minority voters to establish a critical Page 478 U. S. 67 element of a vote dilution claim, even though both races engage in "monolithic" bloc voting, id. at 33, and generations of black voters have been unable to elect a representative of their choice.Second, appellants' interpretation of "racially polarized voting" creates an irreconcilable tension between their proposed treatment of socioeconomic characteristics in the bloc voting context and the Senate Report's statement that"the extent to which members of the minority group . . . bear the effects of discrimination in such areas as education, employment and health"may be relevant to a § 2 claim. Id. at 29. We can find no support in either logic or the legislative history for the anomalous conclusion to which appellants' position leads -- that Congress intended, on the one hand, that proof that a minority group is predominately poor, uneducated, and unhealthy should be considered a factor tending to prove a § 2 violation, but that Congress intended, on the other hand, that proof that the same socioeconomic characteristics greatly influence black voters' choice of candidates should destroy these voters' ability to establish one of the most important elements of a vote dilution claim.4Race of Candidate as Primary Determinant of Voter BehaviorNorth Carolina's and the United States' suggestion that racially polarized voting means that voters select or reject candidates principally on the basis of the candidate's race is also misplaced.First, both the language of § 2 and a functional understanding of the phenomenon of vote dilution mandate the conclusion that the race of the candidate per se is irrelevant to racial bloc voting analysis. Section 2(b) states that a violation is established if it can be shown that members of a protected minority group "have less opportunity than other members of the electorate to . . . elect representatives of their choice." Page 478 U. S. 68 (Emphasis added.) Because both minority and majority voters often select members of their own race as their preferred representatives, it will frequently be the case that a black candidate is the choice of blacks, while a white candidate is the choice of whites. Cf. Letter to the Editor from Chandler Davidson, 17 New Perspectives 38 (Fall 1985). Indeed, the facts of this case illustrate that tendency -- blacks preferred black candidates, whites preferred white candidates. Thus, as a matter of convenience, we and the District Court may refer to the preferred representative of black voters as the "black candidate" and to the preferred representative of white voters as the "white candidate." Nonetheless, the fact that race of voter and race of candidate is often correlated is not directly pertinent to a § 2 inquiry. Under § 2, it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important.An understanding of how vote dilution through submergence in a white majority works leads to the same conclusion. The essence of a submergence claim is that minority group members prefer certain candidates whom they could elect were it not for the interaction of the challenged electoral law or structure with a white majority that votes as a significant bloc for different candidates. Thus, as we explained in Part III, supra, the existence of racial bloc voting is relevant to a vote dilution claim in two ways. Bloc voting by blacks tends to prove that the black community is politically cohesive, that is, it shows that blacks prefer certain candidates whom they could elect in a single-member, black majority district. Bloc voting by a white majority tends to prove that blacks will generally be unable to elect representatives of their choice. Clearly, only the race of the voter, not the race of the candidate, is relevant to vote dilution analysis. See, e.g., Blacksher & Menefee 59-60; Grofman, Should Representatives be Typical?, in Representation and Redistricting Issues 98; Note, Geometry and Geography 207. Page 478 U. S. 69Second, appellants' suggestion that racially polarized voting refers to voting patterns where whites vote for white candidates because they prefer members of their own race or are hostile to blacks, as opposed to voting patterns where whites vote for white candidates because the white candidates spent more on their campaigns, utilized more media coverage, and thus enjoyed greater name recognition than the black candidates, fails for another, independent reason. This argument, like the argument that the race of the voter must be the primary determinant of the voter's ballot, is inconsistent with the purposes of § 2, and would render meaningless the Senate Report factor that addresses the impact of low socioeconomic status on a minority group's level of political participation.Congress intended that the Voting Rights Act eradicate inequalities in political opportunities that exist due to the vestigial effects of past purposeful discrimination. S.Rep. at 5, 40; H.R.Rep. No. 97-227, p. 31 (1981). Both this Court and other federal courts have recognized that political participation by minorities tends to be depressed where minority group members suffer effects of prior discrimination such as inferior education, poor employment opportunities, and low incomes. See, e.g., White v. Regester, 412 U.S. at 412 U. S. 768-769; Kirksey v. Board of Supervisors of Hinds County, Miss., 554 F.2d 139, 145-146 (CA5) (en banc), cert. denied, 434 U.S. 968 (1977). See also S. Verba & N. Nie, Participation in America 152 (1972). The Senate Report acknowledges this tendency, and instructs that"the extent to which members of the minority group . . . bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process,"S.Rep. at 29 (footnote omitted), is a factor which may be probative of unequal opportunity to participate in the political process and to elect representatives. Courts and commentators have recognized further that candidates generally must spend more money in order to win Page 478 U. S. 70 election in a multimember district than in a single-member district. See, e.g., Graves v. Barnes, 343 F. Supp. 704, 720-721 (WD Tex.1972), aff'd in part and rev'd in part sub nom. White v. Regester, supra. Berry & Dye 88; Davidson & Fraga, Nonpartisan Slating Groups in an At-Large Setting, in Minority Vote Dilution 122-123; Derfner 554, n. 126; Jewell 131; Karnig, Black Representation on City Councils, 12 Urb.Aff.Q. 223, 230 (1976). If, because of inferior education and poor employment opportunities, blacks earn less than whites, they will not be able to provide the candidates of their choice with the same level of financial support that whites can provide theirs. Thus, electoral losses by candidates preferred by the black community may well be attributable in part to the fact that their white opponents outspent them. But the fact is that, in this instance, the economic effects of prior discrimination have combined with the multimember electoral structure to afford blacks less opportunity than whites to participate in the political process and to elect representatives of their choice. It would be both anomalous and inconsistent with congressional intent to hold that, on the one hand, the effects of past discrimination which hinder blacks' ability to participate in the political process tend to prove a § 2 violation, while holding on the other hand that, where these same effects of past discrimination deter whites from voting for blacks, blacks cannot make out a crucial element of a vote dilution claim. Accord, Escambia County, 748 F.2d at 1043 ("[T]he failure of the blacks to solicit white votes may be caused by the effects of past discrimination'") (quoting United States v. Dallas County Comm'n, 739 F.2d 1529, 1536 (CA11 1984)); United States v. Marengo County Comm'n, 731 F.2d at 1567.5Racial Animosity as Primary Determinant of Voter BehaviorFinally, we reject the suggestion that racially polarized voting refers only to white bloc voting which is caused by Page 478 U. S. 71 white voters' racial hostility toward black candidates. [Footnote 33] To accept this theory would frustrate the goals Congress sought to achieve by repudiating the intent test of Mobile v. Bolden, 446 U. S. 55 (1980), and would prevent minority voters who have clearly been denied an opportunity to elect representatives of their choice from establishing a critical element of a vote dilution claim.In amending § 2, Congress rejected the requirement announced by this Court in Bolden, supra, that § 2 plaintiffs must prove the discriminatory intent of state or local governments in adopting or maintaining the challenged electoral mechanism. [Footnote 34] Appellants' suggestion that the discriminatory intent of individual white voters must be proved in order to make out a § 2 claim must fail for the very reasons Congress rejected the intent test with respect to governmental bodies. See Engstrom, The Reincarnation of the Intent Standard: Federal Judges and At-Large Election Cases, 28 How.L.J. 495 (1985).The Senate Report states that one reason the Senate Committee abandoned the intent test was that"the Committee . . . heard persuasive testimony that the intent test is unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities."S.Rep. at 36. The Committee found the testimony of Dr. Arthur S. Page 478 U. S. 72 Flemming, Chairman of the United States Commission on Civil Rights, particularly persuasive. He testified:"[Under an intent test,] [l]itigators representing excluded minorities will have to explore the motivations of individual council members, mayors, and other citizens. The question would be whether their decisions were motivated by invidious racial considerations. Such inquiries can only be divisive, threatening to destroy any existing racial progress in a community. It is the intent test, not the results test, that would make it necessary to brand individuals as racist in order to obtain judicial relief."Ibid. (footnote omitted). The grave threat to racial progress and harmony which Congress perceived from requiring proof that racism caused the adoption or maintenance of a challenged electoral mechanism is present to a much greater degree in the proposed requirement that plaintiffs demonstrate that racial animosity determined white voting patterns. Under the old intent test, plaintiffs might succeed by proving only that a limited number of elected officials were racist; under the new intent test, plaintiffs would be required to prove that most of the white community is racist in order to obtain judicial relief. It is difficult to imagine a more racially divisive requirement.A second reason Congress rejected the old intent test was that, in most cases, it placed an "inordinately difficult burden" on § 2 plaintiffs. Ibid. The new intent test would be equally, if not more, burdensome. In order to prove that a specific factor -- racial hostility -- determined white voters' ballots, it would be necessary to demonstrate that other potentially relevant causal factors, such as socioeconomic characteristics and candidate expenditures, do not correlate better than racial animosity with white voting behavior. As one commentator has explained: Page 478 U. S. 73"Many of the[se] independent variables . . . would be all but impossible for a social scientist to operationalize as interval-level independent variables for use in a multiple regression equation, whether on a step-wise basis or not. To conduct such an extensive statistical analysis as this implies, moreover, can become prohibitively expensive.""Compared to this sort of effort, proving discriminatory intent in the adoption of an at-large election system is both simple and inexpensive."McCrary, Discriminatory Intent: The Continuing Relevance of "Purpose" Evidence in Vote-Dilution Lawsuits, 28 How.L.J. 463, 492 (1985) (footnote omitted).The final and most dispositive reason the Senate Report repudiated the old intent test was that it "asks the wrong question." S.Rep. at 36. Amended § 2 asks instead "whether minorities have equal access to the process of electing their representatives." Ibid.Focusing on the discriminatory intent of the voters, rather than the behavior of the voters, also asks the wrong question. All that matters under § 2 and under a functional theory of vote dilution is voter behavior, not its explanations. Moreover, as we have explained in detail, supra, requiring proof that racial considerations actually caused voter behavior will result -- contrary to congressional intent -- in situations where a black minority that functionally has been totally excluded from the political process will be unable to establish a § 2 violation. The Senate Report's remark concerning the old intent test thus is pertinent to the new test: the requirement that a"court . . . make a separate . . . finding of intent, after accepting the proof of the factors involved in the White \[v. Regester, 412 U. S. 755] analysis . . . [would] seriously clou[d] the prospects of eradicating the remaining instances of racial discrimination in American elections."Id. at 37. We therefore decline to adopt such a requirement. Page 478 U. S. 746SummaryIn sum, we would hold that the legal concept of racially polarized voting, as it relates to claims of vote dilution, refers only to the existence of a correlation between the race of voters and the selection of certain candidates. Plaintiffs need not prove causation or intent in order to prove a prima facie case of racial bloc voting, and defendants may not rebut that case with evidence of causation or intent.IVTHE LEGAL SIGNIFICANCE OF SOME BLACK CANDIDATES' SUCCESSANorth Carolina and the United States maintain that the District Court failed to accord the proper weight to the success of some black candidates in the challenged districts. Black residents of these districts, they point out, achieved improved representation in the 1982 General Assembly election. [Footnote 35] They also note that blacks in House District 23 have enjoyed proportional representation consistently since 1973, and that blacks in the other districts have occasionally enjoyed nearly proportional representation. [Footnote 36] This electoral Page 478 U. S. 75 success demonstrates conclusively, appellants and the United States argue, that blacks in those districts do not have"less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."42 U.S.C. § 1973(b). Essentially, appellants and the United States contend that, if a racial minority gains proportional or nearly proportional representation in a single election, that fact alone precludes, as a matter of law, finding a § 2 violation.Section 2(b) provides that "[t]he extent to which members of a protected class have been elected to office . . . is one circumstance which may be considered." 42 U.S.C. § 1973(b). The Senate Committee Report also identifies the extent to which minority candidates have succeeded as a pertinent factor. S.Rep. at 29. However, the Senate Report expressly states that "the election of a few minority candidates does not necessarily foreclose the possibility of dilution of the black vote,'" noting that, if it did, "the possibility exists that the majority citizens might evade [§ 2] by manipulating the election of a `safe' minority candidate." Id. at 29, n. 115, quoting Zimmer v. McKeithen, 485 F.2d 1297, 1307 (CA5 1973) (en banc), aff'd sub nom. East Carroll Parish School Board v. Marshall, 424 U. S. 636 (1976) (per curiam). The Senate Committee decided, instead, to "require an independent consideration of the record." S.Rep. at 29, n. 115. The Senate Report also emphasizes that the question whether "the political processes are `equally open' depends upon a searching practical evaluation of the `past Page 478 U. S. 76 and present reality.'" Id. at 30 (footnote omitted). Thus, the language of § 2 and its legislative history plainly demonstrate that proof that some minority candidates have been elected does not foreclose a § 2 claim.Moreover, in conducting its "independent consideration of the record" and its "searching practical evaluation of the past and present reality,'" the District Court could appropriately take account of the circumstances surrounding recent black electoral success in deciding its significance to appellees' claim. In particular, as the Senate Report makes clear, id. at 29, n. 115, the court could properly notice the fact that black electoral success increased markedly in the 1982 election -- an election that occurred after the instant lawsuit had been filed -- and could properly consider to what extent"the pendency of this very litigation [might have] worked a one-time advantage for black candidates in the form of unusual organized political support by white leaders concerned to forestall single-member districting. [Footnote 37]"590 F. Supp. at 367, n. 27.Nothing in the statute or its legislative history prohibited the court from viewing with some caution black candidates' success in the 1982 election, and from deciding on the basis of all the relevant circumstances to accord greater weight to blacks' relative lack of success over the course of several recent elections. Consequently, we hold that the District Court did not err, as a matter of law, in refusing to treat the fact that some black candidates have succeeded as dispositive of appellees' § 2 claim. Where multimember districting generally works to dilute the minority vote, it cannot be defended on the ground that it sporadically and serendipitously benefits minority voters. Page 478 U. S. 77BThe District Court did err, however, in ignoring the significance of the sustained success black voters have experienced in House District 23. In that district, the last six elections have resulted in proportional representation for black residents. This persistent proportional representation is inconsistent with appellees' allegation that the ability of black voters in District 23 to elect representatives of their choice is not equal to that enjoyed by the white majority.In some situations, it may be possible for § 2 plaintiffs to demonstrate that such sustained success does not accurately reflect the minority group's ability to elect its preferred representatives, [Footnote 38] but appellees have not done so here. Appellees presented evidence relating to black electoral success in the last three elections; they failed utterly, though, to offer any explanation for the success of black candidates in the previous three elections. Consequently, we believe that the District Court erred, as a matter of law, in ignoring the sustained success black voters have enjoyed in House District 23, and would reverse with respect to that District.VULTIMATE DETERMINATION OF VOTE DILUTIONFinally, appellants and the United States dispute the District Court's ultimate conclusion that the multimember districting scheme at issue in this case deprived black voters of an equal opportunity to participate in the political process and to elect representatives of their choice.AAs an initial matter, both North Carolina and the United States contend that the District Court's ultimate conclusion that the challenged multimember districts operate to dilute Page 478 U. S. 78 black citizens' votes is a mixed question of law and fact subject to de novo review on appeal. In support of their proposed standard of review, they rely primarily on Bose Corp. v. Consumers Union of U.S. Inc., 466 U. S. 485 (1984), a case in which we reconfirmed that, as a matter of constitutional law, there must be independent appellate review of evidence of "actual malice" in defamation cases. Appellants and the United States argue that, because a finding of vote dilution under amended § 2 requires the application of a rule of law to a particular set of facts it constitutes a legal, rather than factual, determination. Reply Brief for Appellants 7; Brief for United States as Amicus Curiae 18-19. Neither appellants nor the United States cite our several precedents in which we have treated the ultimate finding of vote dilution as a question of fact subject to the clearly erroneous standard of Rule 52(a). See, e.g., Rogers v. Lodge, 458 U.S. at 458 U. S. 622-627; City of Rome v. United States, 446 U. S. 156, 446 U. S. 183 (1980); White v. Regester, 412 U.S. at 412 U. S. 765-770. Cf. Anderson v. Bessemer City, 470 U. S. 564, 470 U. S. 573 (1985).In Regester, supra, we noted that the District Court had based its conclusion that minority voters in two multimember districts in Texas had less opportunity to participate in the political process than majority voters on the totality of the circumstances, and stated that"we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the . . . multimember district in the light of past and present reality, political and otherwise."Id. at 412 U. S. 769-770. Quoting this passage from Regester with approval, we expressly held in Rogers v. Lodge, supra, that the question whether an at-large election system was maintained for discriminatory purposes and subsidiary issues, which include whether that system had the effect of diluting the minority vote, were questions of fact, reviewable under Rule 52(a)'s Page 478 U. S. 79 clearly erroneous standard. 458 U.S. at 458 U. S. 622-623. Similarly, in City of Rome v. United States, we declared that the question whether certain electoral structures had a "discriminatory effect," in the sense of diluting the minority vote, was a question of fact subject to clearly erroneous review. 446 U.S. at 446 U. S. 183.We reaffirm our view that the clearly erroneous test of Rule 52(a) is the appropriate standard for appellate review of a finding of vote dilution. As both amended § 2 and its legislative history make clear, in evaluating a statutory claim of vote dilution through districting, the trial court is to consider the "totality of the circumstances" and to determine, based "upon a searching practical evaluation of the past and present reality,'" S.Rep. at 30 (footnote omitted), whether the political process is equally open to minority voters. "`This determination is peculiarly dependent upon the facts of each case,'" Rogers, supra, at 621, quoting Nevett v. Sides, 571 F.2d 209, 224 (CA5 1978), and requires "an intensely local appraisal of the design and impact" of the contested electoral mechanisms. 458 U.S. at 458 U. S. 622. The fact that amended § 2 and its legislative history provide legal standards which a court must apply to the facts in order to determine whether § 2 has been violated does not alter the standard of review. As we explained in Bose, Rule 52(a)"does not inhibit an appellate court's power to correct errors of law, including those that may infect a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law. Page 478 U. S. 80 466 U.S. at 466 U. S. 501, citing Pullman-Standard v. Swint, 456 U. S. 273, 456 U. S. 287 (1982); Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 456 U. S. 855, n. 15 (1982). Thus, the application of the clearly erroneous standard to ultimate findings of vote dilution preserves the benefit of the trial court's particular familiarity with the indigenous political reality without endangering the rule of law."BThe District Court in this case carefully considered the totality of the circumstances and found that, in each district, racially polarized voting; the legacy of official discrimination in voting matters, education, housing, employment, and health services; and the persistence of campaign appeals to racial prejudice acted in concert with the multimember districting scheme to impair the ability of geographically insular and politically cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice. It found that the success a few black candidates have enjoyed in these districts is too recent, too limited, and, with regard to the 1982 elections, perhaps too aberrational, to disprove its conclusion. Excepting House District 23, with respect to which the District Court committed legal error, see supra, at 478 U. S. 77, we affirm the District Court's judgment. We cannot say that the District Court, composed of local judges who are well acquainted with the political realities of the State, clearly erred in concluding that use of a multimember electoral structure has caused black voters in the districts other than House District 23 to have less opportunity than white voters to elect representatives of their choice.The judgment of the District Court isAffirmed

U.S. Supreme CourtThornburg v. Gingles, 478 U.S. 30 (1986)Thornburg v. GinglesNo. 83-1968Argued December 4, 1985Decided June 30, 1986478 U.S. 30SyllabusIn 1982, the North Carolina General Assembly enacted a legislative redistricting plan for the State's Senate and House of Representatives. Appellees, black citizens of North Carolina who are registered to vote, brought suit in Federal District Court, challenging one single-member district and six multimember districts on the ground, inter alia, that the redistricting plan impaired black citizens' ability to elect representatives of their choice in violation of § 2 of the Voting Rights Act of 1965. After appellees brought suit, but before trial, § 2 was amended, largely in response to Mobile v. Bolden, 446 U. S. 55, to make clear that a violation of § 2 could be proved by showing discriminatory effect alone, rather than having to show a discriminatory purpose, and to establish as the relevant legal standard the "results test." Section 2(a), as amended, prohibits a State or political subdivision from imposing any voting qualifications or prerequisites to voting, or any standards, practices, or procedures that result in the denial or abridgment of the right of any citizen to vote on account of race or color. Section 2(b), as amended, provides that § 2(a) is violated where the "totality of circumstances" reveals that"the political processes leading to nomination or election . . . are not equally open to participation by members of a [protected class] . . . in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,"and that the extent to which members of a protected class have been elected to office is one circumstance that may be considered. The District Court applied the "totality of circumstances" test set forth in § 2(b), and held that the redistricting plan violated § 2(a) because it resulted in the dilution of black citizens' votes in all of the disputed districts. Appellants, the Attorney General of North Carolina and others, took a direct appeal to this Court with respect to five of the multimember districts.Held: The judgment is affirmed in part and reversed in part.590 F. Supp. 345, affirmed in part and reversed in part.JUSTICE BRENNAN delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, concluding that: Page 478 U. S. 311. Minority voters who contend that the multimember form of districting violates § 2 must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates. While many or all of the factors listed in the Senate Report may be relevant to a claim of vote dilution through submergence in multimember districts, unless there is a conjunction of the following circumstances, the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice. Stated succinctly, a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group. The relevance of the existence of racial bloc voting to a vote dilution claim is twofold: to ascertain whether minority group members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidate. Thus, the question whether a given district experiences legally significant racial bloc voting requires discrete inquiries into minority and white voting practices. A showing that a significant number of minority group members usually vote for the same candidates is one way of proving the political cohesiveness necessary to a vote dilution claim, and consequently establishes minority bloc voting within the meaning of § 2. And, in general, a white bloc vote that normally will defeat the combined strength of minority support plus white "crossover" votes rises to the level of legally significant white bloc voting. Because loss of political power through vote dilution is distinct from the mere inability to win a particular election, a pattern of racial bloc voting that extends over a period of time is more probative of a claim that a district experiences significant polarization than are the results of a single election. In a district where elections are shown usually to be polarized, the fact that racially polarized voting is not present in one election or a few elections does not necessarily negate the conclusion that the district experiences legally significant bloc voting. Furthermore, the success of a minority candidate in a particular election does not necessarily prove that the district did not experience polarized voting in that election. Here, the District Court's approach, which tested data derived from three election years in each district in question, and which revealed that blacks strongly supported black candidates, while, to the black candidates' usual detriment, whites rarely did, satisfactorily addresses each facet of the proper standard for legally significant racial bloc voting. Pp. 478 U. S. 52-61.2. The language of § 2 and its legislative history plainly demonstrate that proof that some minority candidates have been elected does not foreclose a § 2 claim. Thus, the District Court did not err, as a matter of law, in refusing to treat the fact that some black candidates have Page 478 U. S. 32 succeeded as dispositive of appellees' § 2 claims. Where multimember districting generally works to dilute the minority vote, it cannot be defended on the ground that it sporadically and serendipitously benefits minority voters. Pp. 478 U. S. 74-76.3. The clearly erroneous test of Federal Rule of Civil Procedure 52(a) is the appropriate standard for appellate review of ultimate findings of vote dilution. As both amended § 2 and its legislative history make clear, in evaluating a statutory claim of vote dilution through districting, the trial court is to consider the "totality of circumstances" and to determine, based upon a practical evaluation of the past and present realities, whether the political process is equally open to minority voters. In this case, the District Court carefully considered the totality of the circumstances, and found that, in each district, racially polarized voting; the legacy of official discrimination in voting matters, education, housing, employment, and health services; and the persistence of campaign appeals to racial prejudice acted in concert with the multimember districting scheme to impair the ability of geographically insular and politically cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice. Pp. 478 U. S. 77-79.JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS, concluded in Part III-C that, for purposes of § 2, the legal concept of racially polarized voting, as it relates to claims of vote dilution -- that is, when it is used to prove that the minority group is politically cohesive and that white voters will usually be able to defeat the minority's preferred candidates -- refers only to the existence of a correlation between the race of voters and the selection of certain candidates. Plaintiffs need not prove causation or intent in order to prove a prima facie case of racial bloc voting, and defendants may not rebut that case with evidence of causation or intent. Pp. 478 U. S. 61-73.JUSTICE BRENNAN, joined by JUSTICE WHITE, concluded in Part IV-B, that the District Court erred, as a matter of law, in ignoring the significance of the sustained success black voters have experienced in House District 23. The persistent proportional representation for black residents in that district in the last six elections is inconsistent with appellees' allegation that black voters' ability in that district to elect representatives of their choice is not equal to that enjoyed by the white majority. P. 478 U. S. 77.JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST, concluded that:1. Insofar as statistical evidence of divergent racial voting patterns is admitted solely to establish that the minority group is politically cohesive and to assess its prospects for electoral success, such a showing cannot be rebutted by evidence that the divergent voting patterns may Page 478 U. S. 33 be explained by causes other than race. However, evidence of the reasons for divergent voting patterns can, in some circumstances, be relevant to the overall vote dilution inquiry, and there is no rule against consideration of all evidence concerning voting preferences other than statistical evidence of racial voting patterns. Pp. 478 U. S. 100-101.2. Consistent and sustained success by candidates preferred by minority voters is presumptively inconsistent with the existence of a § 2 violation. The District Court erred in assessing the extent of black electoral success in House District 39 and Senate District 22, as well as in House District 23. Except in House District 23, despite these errors, the District Court's ultimate conclusion of vote dilution is not clearly erroneous. But in House District 23, appellees failed to establish a violation of § 2. Pp. 478 U. S. 101-105.BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, an opinion with respect to Part III-C, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and an opinion with respect to Part IV-B, in which WHITE, J., joined. WHITE, J., filed a concurring opinion, post, p. 478 U. S. 82. O'CONNOR, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. 478 U. S. 83. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 478 U. S. 106. Page 478 U. S. 34

1991_91-594

ents had contracted AIDS from a transfusion of contaminated blood during surgery, and naming as defendants the surgeon and the manufacturer of a piece of medical equipment used during the procedure. After discovering that the Red Cross had supplied the tainted blood, respondents sued it, too, again in state court, and moved to consolidate the two actions. Before the state court decided that motion, the Red Cross invoked the federal removal statute, 28 U. S. C. § 1441, to remove the latter suit to the United States District Court for the District of New Hampshire. The Red Cross claimed federal jurisdiction based both on the diversity of the parties and on the "sue and be sued" provision of its charter, which it argued conferred original federal jurisdiction over suits involving the organization. The District Court rejected respondents' motion to remand the case to state court, holding that the charter provision conferred original federal jurisdiction. See District Court order of May 24, 1990, reprinted at App. to Pet. for Cert. 18a-25a.On interlocutory appeal, the United States Court of Appeals for the First Circuit reversed. 938 F.2d 1494 (1991). The Court of Appeals compared the Red Cross Charter's "sue and be sued" provision with analogous provisions in federal corporate charters previously examined by this Court, and concluded that the relevant language in the Red Cross Charter was similar to its cognates in the charter of the first Bank of the United States, construed in Bank of the United States v. Deveaux, 5 Cranch 61 (1809), and in that of the federally chartered railroad construed in Bankers Trust Co. v. Texas & Pacific R. Co., 241 U. S. 295 (1916), in neither of which cases did we find a grant of federal jurisdiction. The Court of Appeals distinguished Osborn v. Bank of United States, 9 Wheat. 738 (1824), where we reached the opposite result under the charter of the second Bank of the United States, the Court of Appeals finding it significant that the second Bank's authorization to sue and be sued spoke of a particular federal court and of state courts already possessed250of jurisdiction. The Court of Appeals also discounted the Red Cross's reliance on our opinion in D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U. S. 447 (1942), concluding that in that case we had "not[ed] only incidentally" that federal jurisdiction was based on the "sue and be sued" clause in the FDIC's charter. See 938 F. 2d, at 14971499. The Court of Appeals found support for its conclusion in the location of the Red Cross Charter's "sue and be sued" provision in the section "denominat[ing] standard corporate powers," id., at 1499, as well as in legislative history of the amendment to the Red Cross Charter adding the current "sue and be sued" language, and in the different form of analogous language in other federal corporate charters enacted contemporaneously with that amendment, see id., at 1499-1500.We granted certiorari, 502 U. S. 976 (1991), to answer this difficult and recurring question.1IISince its founding in 1881 as part of an international effort to ameliorate soldiers' wartime suffering, the American Red Cross has expanded its activities to include, among others, the civilian blood-supply services here at issue. The organization was reincorporated in 1893, and in 1900 received its first federal charter, which was revised in 1905. See American National Red Cross, Report of the Advisory Committee on Organization 4 (1946) (hereinafter Advisory Report), reprinted at App. to Brief for Appellants in No. 90-1873 (CA1), pp. 94,101.1 Although more than 40 District Court cases have considered this issue, no result clearly predominates. Compare Pet. for Cert. 10, n. 4 (listing cases finding jurisdictional grant in Red Cross Charter's "sue and be sued" provision), with id., at 11, n. 5 (listing cases reaching opposite conclusion). Reflecting this confusion, the only other Court of Appeals to consider this issue decided differently from the First Circuit. See Kaiser v. Memorial Blood Center of Minneapolis, Inc., 938 F.2d 90 (CA8 1991).251The 1905 charter empowered the Red Cross "to sue and be sued in courts of law and equity within the jurisdiction of the United States." Act of Jan. 5, 1905, ch. 23, §2, 33 Stat. 600. At that time the provision would not have had the jurisdictional significance of its modern counterpart, since the law of the day held the involvement of a federally chartered corporation sufficient to render any case one "arising under" federal law for purposes of general statutory federalquestion jurisdiction. See Pacific Railroad Removal Cases, 115 U. S. 1, 14 (1885). In 1925, however, Congress restricted the reach of this jurisdictional theory to federally chartered corporations in which the United States owned more than one-half of the capital stock. Act of Feb. 13, 1925, ch. 229, § 12, 43 Stat. 941; codified as amended at 28 U. S. C. § 1349.2 Since the effect of the 1925 law on non stock corporations like the Red Cross is unclear, see, e. g., C. H. v. American Red Cross, 684 F. Supp. 1018, 1020-1022 (ED Mo. 1987) (noting split in authority over whether § 1349 applies to nonstock corporations),3 its enactment invested the charter's "sue and be sued" clause with a potential jurisdiction significance previously unknown to it.Its text, nevertheless, was left undisturbed for more than 20 years further, until its current form, authorizing the Red Cross "to sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States," took shape with the addition of the term "State or Federal" to the 1905 language, as part of an overall revision of the organization's charter and bylaws. See Act of May 8, 1947,2 Congress had previously overruled much of Pacific Railroad Removal Cases, 115 U. S. 1 (1885), by withdrawing federal jurisdiction over cases involving federally chartered railroads based solely on the railroad's federal incorporation, see Act of Jan. 28, 1915, ch. 22, § 5, 38 Stat. 803, 804, a limitation irrelevant for our purposes.3We do not address this question, as we hold that the "sue and be sued" provision of the Red Cross's Charter suffices to confer federal jurisdiction independently of the organization's federal incorporation.252Pub. L. 80-47, § 3, 61 Stat. 80, 81. It is this language upon which the Red Cross relies, and which the Court of Appeals held to have conferred no federal jurisdiction.III AAs indicated earlier, we do not face a clean slate. Beginning with Chief Justice Marshall's opinion in 1809, we have had several occasions to consider whether the "sue and be sued" provision of a particular federal corporate charter conferred original federal jurisdiction over cases to which that corporation was a party, and our readings of those provisions not only represented our best efforts at divining congressional intent retrospectively, but have also placed Congress on prospective notice of the language necessary and sufficient to confer jurisdiction. See, e. g., United States v. Merriam, 263 U. S. 179, 186 (1923) (Congress presumed to intend judicially settled meaning of terms); Cannon v. University of Chicago, 441 U. S. 677, 696-698 (1979) (presuming congressional knowledge of interpretation of similarly worded earlier statute). Those cases therefore require visitation with care.In Deveaux, we considered whether original federal jurisdiction over suits by or against the first Bank of the United States was conferred by its charter. The language in point authorized the Bank "'to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in courts of record, or any other place whatsoever,'" 5 Cranch, at 85. In the opinion written by Chief Justice Marshall, the Court held this language to confer no federal jurisdiction, reading it as a mere grant to the bank of the normal corporate capacity to sue, id., at 85-86. The Court contrasted the charter's "sue and be sued" provision with one authorizing the institution of certain suits against the bank's officers "in any court of record of the United States, or of253[sic] either of them," a provision the Court described as "expressly authoriz[ing] the bringing of that action in the federal or state courts," id., at 86. The Chief Justice concluded that this latter provision "evince[d] the opinion of congress, that the right to sue does not imply a right to sue in the courts of the union, unless it be expressed," ibid.The same issue came to us again 15 years later in Osborn.By this time Congress had established the second Bank of the United States, by a charter that authorized it "to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all state courts having competent jurisdiction, and in any circuit court of the United States." Act of Apr. 10, 1816, ch. 44, § 7, 3 Stat. 266, 269. In its interpretation of this language, the Court, again speaking through Chief Justice Marshall, relied heavily on its Deveaux analysis, and especially on the contrast developed there between the first bank charter's "sue and be sued" provision and its provision authorizing suits against bank officers. See Osborn, 9 Wheat., at 818. Holding that the language of the second bank's charter "could not be plainer by explanation," ibid., in conferring federal jurisdiction, the Osborn Court distinguished Deveaux as holding that "a general capacity in the Bank to sue, without mentioning the courts of the Union, may not give a right to sue in those courts," 9 Wheat., at 818.With the basic rule thus established, our next occasion to consider the issue did not arise until Bankers Trust, nearly a century later. The federal charter considered in that case authorized a railroad corporation "to sue and be sued, plead and be impleaded, defend and be defended, in all courts of law and equity within the United States." Act of Mar. 3, 1871, ch. 122, § 1, 16 Stat. 573, 574. Testing this language against that construed in Deveaux and Osborn, we concluded that it "d[id] not literally follow" its analogues considered in either of the earlier cases, 241 U. S., at 304, but held, never-254theless, that it had "the same generality and natural import" as the clause contained in the first Bank charter. Thus, we followed Deveaux and found in the failure to authorize federal court litigation expressly no grant of federal jurisdiction. 241 U. S., at 304-305.Last came D'Oench, Duhme, where we held that the FDIC's charter granted original federal jurisdiction. That jurisdiction was not, we explained, "based on diversity of citizenship. Respondent, a federal corporation, brings this suit under an Act of Congress authorizing it to sue or be sued 'in any court of law or equity, State or Federal.' " 315 U. S., at 455-456 (citation and footnote omitted). It is perfectly true, as respondents stressed in argument, that in an accompanying footnote we quoted without comment another part of the same statute, providing that" '[a]ll suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States: Provided, That any such suit to which the Corporation is a party in its capacity as receiver of a State bank and which involves only the rights or obligations of depositors, creditors, stockholders and such State bank under State law shall not be deemed to arise under the laws of the United States.'" Id., at 455-456, n. 2.4 The footnote did not, however, raise any doubt that the Court held federal jurisdiction to rest on the terms of the "sue and be sued" clause. Quite the contrary, the footnote's treatment naturally expressed the subordinate importance of the provision it quoted. While as a state bank's receiver the FDIC might lose the benefit of the deemer clause as a grant of federal4 The "sue and be sued" language was originally enacted in the statute creating the FDIC, see Banking Act of 1933, ch. 89, § 8, 48 Stat. 162, 172, and was reenacted in the 1935 amendments to that statute, see Banking Act of 1935, ch. 614, § 101,49 Stat. 684, 692. The 1935 amendments also enacted for the first time the deemer provision we quoted in footnote 2 of our opinion in D'Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 455 (1942). See 49 Stat. 684, 692.255jurisdiction, the "sue and be sued" clause would settle the jurisdictional question conclusively, in any case.5BThese cases support the rule that a congressional charter's "sue and be sued" provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts. In Deveaux, the Court found a "conclusive argument" against finding a jurisdictional grant in the "sue and be sued" clause in the fact that another provision of the same document authorized suits by and against bank officers "in any court of record of the United States, or of [sic] either of them .... " See 5 Cranch, at 86. In contrasting these two provisions the Deveaux Court plainly intended to indicate the degree of specificity required for a jurisdictional grant.6 That is certainly how the Osborn Court understood Deveaux, as it described the latter provision as an "express grant of jurisdiction," 9 Wheat., at 818, in contrast to the first Bank charter's "sue and be sued" provision, which, "without men-5 Respondents argue that the parties in D'Oench, Duhme did not litigate the jurisdictional issue. See Brief for Respondents 18-22. But the parties' failure to challenge jurisdiction is irrelevant to the force of our holding on that issue. See, e. g., FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990) (federal courts have independent obligation to examine their own jurisdiction); see also Ex parte Bollman, 4 Cranch 75, 100 (1807) (Marshall, C. J.) (giving controlling weight to previous jurisdictional holding by Court even though parties to previous case had not raised jurisdictional issue).6 The dissent reads Deveaux as distinguishing between these two provisions not on this basis, but rather on the ground that the provision authorizing suits against bank officers allowed the bringing of a particular cause of action. See post, at 270. That reading might be possible if Chief Justice Marshall had not nipped it in the bud. He did not explain the difference between the jurisdictional significance of the two clauses in question by saying that jurisdiction may be granted only in provisions referring to courts in which causes of action could be brought. He explained it simply by inferring, from the drafting contrasts, "the opinion of congress that the right to sue does not imply the right to sue in the courts of the union unless it be expressed." Deveaux, 5 Cranch, at 86 (emphasis added).256tioning the courts of the Union," ibid., was held merely to give the Bank "a general capacity ... to sue [but not] a right to sue in those courts," ibid.7 The Osborn Court thus found a jurisdictional grant sufficiently stated in the second Bank charter's "sue and be sued" provision, with its express federal reference, remarking that "[t]o infer from [Deveaux] that words expressly conferring a right to sue in those courts do not give the right, is surely a conclusion which the premises do not warrant." Ibid.sApplying the rule thus established, in Bankers Trust we described the railroad charter's "sue and be sued" provision, with its want of any reference to federal courts, and, holding it up against its analogues in Deveaux and Osborn, we found7 The dissent accuses us of repeating what it announces as Chief Justice Marshall's misunderstanding, in Osborn, of his own previous opinion in Deveaux. See post, at 271. We are honored.8 Contrary to respondents' argument, our cases do not support a requirement that federal jurisdiction under a "sue and be sued" clause requires mention of the specific federal court on which it is conferred. D'Oench, Duhme, of course, bars any such reading. Nor would Osborn v. Bank of United States, 9 Wheat. 738 (1824), require such a specification even if D'Oench, Duhme were not on the books. When the second Bank was chartered, two sets of federal courts, the Circuit Courts and the District Courts, shared overlapping original federal jurisdiction. See, e. g., E. Surrency, History of the Federal Courts 61 (1987). If (as apparently was the case) the framers of the second Bank's charter wished to provide that all suits in federal court involving the Bank be brought in one set of courts, it would have been necessary for any jurisdictional grant to specify which set of federal trial courts was being invested with jurisdiction. This need no longer exists, and the means chosen by the drafters of the early charters to resolve that problem should not be thought significant in resolving the very different issue before us today. Moreover, the larger part of the Court's analysis in Osborn speaks only of the charter's mention of federal courts, not its specification of the Circuit Courts in particular. See 9 Wheat., at 817-818. The charter's specification of those courts would have made it natural for the Osborn Court to indicate its reliance on that narrower ground, had it believed such specificity to be required. The fact that it did not so indicate is strong evidence that the Court thought it unnecessary.257it closer to the former.9 Finally, in D'Oench, Duhme we based our finding of jurisdiction on the "sue and be sued" provision of the FDIC charter, which mentioned the federal courts in general, but not a particular federal court.The rule established in these cases makes it clear that the Red Cross Charter's "sue and be sued" provision should be read to confer jurisdiction. In expressly authorizing the organization to sue and be sued in federal courts, using language resulting in a "sue and be sued" provision in all relevant respects identical to one on which we based a holding of federal jurisdiction just five years before, the provision extends beyond a mere grant of general corporate capacity to sue, and suffices to confer federal jurisdiction.IVRespondents offer several arguments against this conclusion, none of which we find availing.9 The dissent is playful in manufacturing a conflict between our synthesis of the cases and the opinion in Bankers Trust Co. v. Texas and Pacific R. Co., 241 U. S. 295 (1916). See post, at 272. The dissent first quotes the Court's construction in the Bankers Trust opinion, that the clause at issue there implied no jurisdictional grant, but simply rendered the corporation " 'capable of suing and being sued by its corporate name in any court of law or equity-Federal, state or territorial-whose jurisdiction as otherwise competently defined was adequate to the occasion.'" Post, at 272 (emphasis omitted) (quoting 241 U. S., at 303). The dissent then concludes that "[t]hat paraphrasing of the railroad charter, in terms that would spell jurisdiction under the key the Court adopts today, belies any notion that Bankers Trust was using the same code book." Post, at 273. The dissent thus attempts to set up a conflict between our analysis and the result in Bankers Trust, by suggesting that that Court's interpretation of the provision (i. e., to confer capacity to sue in courts including federal ones) should itself be subject to a second-order interpretation, which under our analysis might require a holding of jurisdiction, the conclusion rejected by the Bankers Trust Court. This "interpretation of an interpretation" methodology is simply illegitimate, originating not in our opinion but in the dissent's whimsy. Like our predecessors, we are construing a charter, not a paraphrase.258AFirst, we can make short work of respondents' argument that the charter's conferral of federal jurisdiction is nevertheless subject to the requirements of the "well-pleaded complaint" rule (that the federal question must appear on the face of a well-pleaded complaint) limiting the removal of cases from state to federal court. See Brief for Respondents 38-46. Respondents erroneously invoke that rule outside the realm of statutory "arising under" jurisdiction, i. e., jurisdiction based on 28 U. S. C. § 1331, to jurisdiction based on a separate and independent jurisdictional grant, in this case, the Red Cross Charter's "sue and be sued" provision. The "well-pleaded complaint" rule applies only to statutory "arising under" cases, see Verlinden B. v: v. Central Bank of Nigeria, 461 U. S. 480, 494 (1983); see also 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3566, pp. 82-83 (2d ed. 1984); Chemerinsky & Kramer, Defining the Role of the Federal Courts, 1990 B. Y. U. L. Rev. 67, 75, n. 17; it has no applicability here.BRespondents also claim that language used in congressional charters enacted closely in time to the 1947 amendment casts doubt on congressional intent thereby to confer federal jurisdiction over cases involving the Red Cross. Respondents argue that the 1948 amendment to the charter of the Commodity Credit Corporation (CCC), the 1947 amendment to the charter of the Federal Crop Insurance Corporation (FCIC), and the 1935 amendment to the FDIC's charter, each of which includes explicit grants of federal jurisdiction, together demonstrate "a practice of using clear and explicit language to confer federal jurisdiction over corporations [Congress] had created." Brief for Respondents 27.The argument does not hold up. The CCC amendment is irrelevant to this enquiry, as it conferred exclusive, rather than concurrent, federal jurisdiction. See Act of June 29,2591948, ch. 704, § 4, 62 Stat. 1070. There is every reason to expect Congress to take great care in its use of explicit language when it wishes to confer exclusive jurisdiction, given our longstanding requirement to that effect.lO Its employment of explicitly jurisdictional language in the CCC's case thus raises no suggestion that its more laconic Red Cross amendment was not meant to confer concurrent federal jurisdiction.Nor do the other two enactments support respondents' argument. The statutes were passed 12 years apart and employed verbally and doctrinally distinct formulations. Compare Banking Act of 1935, ch. 614, § 101, 49 Stat. 684, 692 (providing that suits involving FDIC "shall be deemed to arise under the laws of the United States"), with Act of Aug. 1, 1947, ch. 440, § 7, 61 Stat. 719 (providing that FCIC "may sue and be sued in its corporate name in any court of record of a State having general jurisdiction, or in any United States district court, and [that] jurisdiction is hereby conferred upon such district court to determine such controversies without regard to the amount in controversy").l1 These differences are not merely semantic: the jurisdictional effect of the FDIC's provision depends on the 28 U. S. C. § 1331 grant of general federal-question jurisdiction, while the10 See Claflin v. Houseman, 93 U. S. 130, 136 (1876) ("[O]ur judgment [has] been ... to affirm [concurrent state-court] jurisdiction, where it is not excluded by express provision, or by incompatibility in its exercise arising from the nature of the particular case"); see also Charles Dowd Box Co. v. Courtney, 368 U. S. 502, 508 (1962) (Claflin's analysis of this question "has remained unmodified through the years").11 Respondents do not repeat the Court of Appeals's argument that the original language of the FCIC charter tracked in all relevant respects that in the Red Cross's post-1947 charter, and that Congress's later amendment of the FCIC charter to make jurisdiction more explicit thus implicitly suggests that Congress considered that language insufficient to confer jurisdiction. See 938 F.2d 1494, 1500 (CA1 1991). We note here only that the Red Cross adequately rebuts that argument. See Brief for Petitioner 42-43.260FCIC's provision functions independently of § 1331. These differences of both form and substance belie respondents' claim of a coherent drafting pattern against which to judge the ostensible intent behind the Red Cross amendment.If, indeed, respondents' argument could claim any plausibility, it would have to be at the cost of ignoring the 1942 D'Oench, Duhme opinion citing the FDIC charter's "sue and be sued" provision as the source of federal jurisdiction in that case. See 315 U. S., at 455. If the "sue and be sued" clause is sufficient for federal jurisdiction when it occurs in the same charter with the language respondents claim to be at odds with its jurisdictional significance, it is certainly sufficient standing alone. In any event, the fact that our opinion in D'Oench, Duhme was handed down before the 1947 amendment to the Red Cross Charter indicates that Congress may well have relied on that holding to infer that amendment of the Red Cross Charter's "sue and be sued" provision to make it identical to the FDIC's would suffice to confer federal jurisdiction. See, e. g., Cannon, 441 U. S., at 696-697. Congress was, in any event, entitled to draw the inference.CRespondents would have us look behind the statute to find quite a different purpose when they argue that the 1947 amendment may have been meant not to confer jurisdiction, but to clarify the Red Cross's capacity to sue in federal courts where an independent jurisdictional basis exists. See Brief for Respondents 23-27. The suggestion is that Congress may have thought such a clarification necessary after passage of the 1925 statute generally bringing an end to federal incorporation as a jurisdictional basis. See 28 U. S. C. § 1349.12 But this suggestion misconstrues § 1349 as12 See Act of Feb. 13, 1925, ch. 229, § 12, 43 Stat. 941 (currently codified at 28 U. S. C. § 1349). The exception, for federally chartered corporations over one-half owned by the United States, is irrelevant to our enquiry. See n. 3, supra.261somehow affecting a federally chartered corporation's capacity to sue, when by its own terms it speaks only to jurisdiction. If, then, respondents are correct that the enactment of § 1349 motivated the 1947 amendment, that motivation cuts against them, given that § 1349 affected only jurisdiction.The legislative history of the 1947 amendment cuts against them, as well, to the extent it points in any direction.13 Congress's revision of the charter was prompted by, and followed, the recommendations of a private advisory committee of the Red Cross. See H. R. Rep. No. 337, 80th Cong., 1st Sess., 6 (1947) ("[The 1947 amendment] was drafted as the result of recommendations made by [the Advisory committee] .... [They] incorporat[e] the recommendations of th[at] advisory committee ... "); S. Rep. No. 38, 80th Cong., 1st Sess., 1 (1947) ("The present legislation incorporates, in the main, the recommendations of the [A]dvisory committee"). The Advisory Report had recommended that "[t]he charter should make it clear that the Red Cross can sue and be sued in the Federal Courts," reasoning that "[t]he Red Cross has in several instances sued in the Federal Courts, and its powers in this respect have not been questioned. However, in view of the limited nature of the jurisdiction of the Federal Courts, it seems desirable that this right be clearly stated in the Charter." Advisory Report 35-36, reprinted at App. to Brief for Appellants in No. 90-1873, at 132-133.l3The only debate on the 1947 amendment to the charter's "sue and be sued" provision occurred at a Senate Committee hearing. See Hearings on S. 591 before the Senate Committee on Foreign Relations, 80th Cong., 1st Sess., 10 (1947). The only two relevant comments, both made by Senator George, appear to be mutually contradictory on the matter at issue here. At one point Senator George said: "I think the purpose of the bill is very clear, and that is to give the jurisdiction in State courts and Federal courts, and I think we had better leave it there," ibid. Later, however, he stated: "I think there might be some question about the right of a Federal corporation to be sued in a State court. I thought that was, and I still think it is, the purpose of this provision," id., at 11.262The Advisory Report's explicit concern with the limited jurisdiction of the federal courts indicates that the recommended change, which prompted the amendment to the "sue and be sued" provision, spoke to jurisdiction rather than capacity to sue. Against this, respondents argue only that the Advisory Report's use of the words "can" and "power" indicate concern with the latter, not the former. See Brief for Respondents 25. This is fine parsing, too fine to overcome the overall jurisdictional thrust of the Report's recommendation.In a final look toward the text, respondents speculate that the 1947 amendment can be explained as an attempt to clarify the Red Cross's capacity to enter the federal courts under their diversity jurisdiction. See Brief for Respondents 2526, 29. The argument turns on the theory that federally chartered corporations are not citizens of any particular State, and thus may not avail themselves of diversity jurisdiction. See id., at 26 (quoting Walton v. Howard University, 683 F. Supp. 826, 829 (DC 1987)). Respondents completely fail, however, to explain how the addition of the words "State or Federal" to the "sue and be sued" provision might address this claimed jurisdictional problem. Indeed, the 1947 amendment, by specifying the particular courts open to the Red Cross, as opposed to the Red Cross's status as a party, seems particularly ill-suited to rectifying an asserted party-based jurisdictional deficiency.1414 At oral argument respondents carried the suggestion a further step by speculating that the 1947 amendment could be explained as an attempt to ensure the Red Cross's access to federal courts when diversity jurisdiction existed, due to concern, presumably present until our 1949 decision in National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, about the constitutionality of the 1940 statute giving District of Columbiachartered corporations the same rights to sue in diversity as statechartered corporations. See Tr. of Oral Arg. 30-31. But the speculation, if sound, would prove too much. For on this theory Congress would have been hedging against a constitutional problem of diversity jurisdiction by resorting to a special grant of jurisdiction to cover the Red Cross, which is263Perhaps most obviously, respondents' argument violates the ordinary sense of the language used, as well as some basic canons of statutory construction. The 1905 charter, authorizing the Red Cross "to sue and be sued in courts of law and equity within the jurisdiction of the United States," simply cannot be read as failing to empower the Red Cross to sue in federal courts having jurisdiction. That fact, when combined with the Advisory Report's justification of the 1947 amendment by reference to federal courts' limited jurisdiction, see supra, leaves it extremely doubtful that capacity to sue simpliciter motivated that amendment. Indeed, the Red Cross's clear preamendment capacity to sue in federal courts calls into play the canon of statutory construction requiring a change in language to be read, if possible, to have some effect, see, e. g., Brewster v. Gage, 280 U. S. 327, 337 (1930); 2A N. Singer, Sutherland on Statutory Construction § 46.06 (5th rev. ed. 1992), a rule which here tugs hard toward a jurisdictional reading of the 1947 amendment.15exactly what the Red Cross maintains was intended by following D'Oench, Duhme and Osborn.Respondents complain that the Red Cross's theory is of recent vintage, citing a 1951 case in which the Red Cross removed a suit against it from state to federal court based not on any independent jurisdictional grant implicit in the "sue and be sued" provision, but rather on party diversity. See Brief for Respondents 29 (citing Patterson v. American National Red Cross, 101 F. Supp. 655 (SD Fla. 1951)). However, the Red Cross's failure in one 40-year-old case to base its removal petition on the theory it advances today adds nothing to respondents' attack on the Red Cross's current interpretation.15 The dissent adopts and refines respondents' argument, see Brief for Respondents 16, that the 1947 amendment's parallel treatment of federal and state courts counsels against reading that amendment as conferring jurisdiction, see post, at 267-268. The short answer is that D'Oench, Duhme forecloses the argument, since the charter language we held to confer federal jurisdiction in that case made exactly the same parallel mention of federal and state courts. But going beyond that, the reference to state as well as federal courts presumably was included lest a mention of federal courts alone (in order to grant jurisdiction to them) be taken as motivated by an intent to confer exclusive federal jurisdiction. Moreover, the Red Cross Charter's "sue and be sued" provision, like its counterparts264VOur holding leaves the jurisdiction of the federal courts well within Article Ill's limits. As long ago as Osborn, this Court held that Article Ill's "arising under" jurisdiction is broad enough to authorize Congress to confer federal-court jurisdiction over actions involving federally chartered corporations. See 9 Wheat., at 823-828.16 We have consistently reaffirmed the breadth of that holding. See Pacific R. Removal Cases, 115 U. S., at 11-14; In re Dunn, 212 U. S. 374, 383-384 (1909); Bankers Trust, 241 U. S., at 305-306; Puertoconstrued in Osborn and D'Oench, Duhme, confers both capacity to sue and jurisdiction. While capacity to sue in both federal and state courts was already clearly established before the 1947 amendment, it may have been feared that the addition of the word "Federal" to confer federal jurisdiction would be misread to limit the Red Cross's capacity to sue in state courts, if it were not reaffirmed by explicit inclusion of the word "State."It is the dissent's conclusion that the 1947 amendment was meant to "eliminat[e] the possibility that the language 'courts of law and equity within the jurisdiction of the United States' that was contained in the original charter might be read to limit the grant of capacity to sue in federal court," post, at 275 (emphasis and citation omitted); that is difficult to justify. Such a motivation is nowhere even hinted at in the Advisory Report, the document both Houses of Congress acknowledged as the source for the amendment, see supra, at 261 (quoting congressional reports); indeed, the relevant part of the Advisory Report does not even mention state courts, see Advisory Report 35-36, reprinted at App. to Brieffor Appellants in No. 90-1873, at 132-133. It is hardly a "reasonable construction," post, at 275, of the amendment to view it as granting something the Advisory Report never requested. While the dissent notes one of Senator George's comments supporting its hypothesis, it ignores the other, which explicitly notes a federal jurisdiction-conferring motivation behind the amendment. See supra, at 261, n. 13.Neither party reads the 1947 amendment to clarify the Red Cross's capacity to sue in state courts, and, as there is no evidence of such an intent, we do not embrace that reading here.16 Again, it should be pointed out that statutory jurisdiction in this case is not based on the Red Cross's federal incorporation, but rather upon a specific statutory grant. In contrast, the constitutional question asks whether Article Ill's provision for federal jurisdiction over cases "arising under federal law" is sufficiently broad to allow that grant.265Rico v. Russell & Co., 288 U. S. 476, 485 (1933); Verlinden, 461 U. S., at 492. We would be loath to repudiate such a longstanding and settled rule, on which Congress has surely been entitled to rely, cf. Pennsylvania v. Union Gas Co., 491 U. S. 1, 34-35 (1989) (SCALIA, J., concurring in part and dissenting in part), and this case gives us no reason to contemplate overruling it.VIThe judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusAMERICAN NATIONAL RED CROSS v. S. G. ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUITNo. 91-594. Argued March 3, 1992-Decided June 19, 1992In a state-court tort action, respondents alleged that one of them had contracted AIDS from a transfusion of contaminated blood supplied by petitioner American National Red Cross. The Red Cross removed the suit to the Federal District Court, claiming federal jurisdiction based on, inter alia, the provision in its federal charter authorizing it "to sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States." The court rejected respondents' motion to remand the case to state court, holding that the charter provision conferred original federal jurisdiction. The Court of Appeals reversed.Held: The charter's "sue and be sued" provision confers original federalcourt jurisdiction. pp. 250-265.(a) A congressional charter's "sue and be sued" provision may be read to confer federal-court jurisdiction if, but only if, it specifically mentions the federal courts. The charter must contain an express authorization, such as "in all state courts ... and in any circuit court of the United States," Osborn v. Bank of United States, 9 Wheat. 738, 818, or "'in any court of law or equity, State or Federal,'" D'Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 455-456, rather than a mere grant of general corporate capacity to sue, such as "'in courts of record, or any other place whatsoever,'" Bank of the United States v. Deveaux, 5 Cranch 61, 8586, or "in all courts of law and equity within the United States," Bankers Trust Co. v. Texas & Pacific R. Co., 241 U. S. 295,304-305. The Red Cross Charter provision has an express authorization and thus should be read to confer jurisdiction. Pp. 250-257.(b) Respondents' several arguments against this conclusion-that the well-pleaded complaint rule bars the removal; that language in congressional charters enacted closely in time to the 1947 amendment of the Red Cross Charter incorporating the provision in dispute show a coherent drafting pattern that casts doubt on congressional intent to confer federal jurisdiction over Red Cross cases; and that the 1947 amendment was meant not to confer jurisdiction, but to clarify the Red Cross' capacity to sue in federal courts where an independent jurisdictional basis exists-are all unavailing. Pp. 257-263.(c) The holding in this case leaves the jurisdiction of the federal courts well within Article Ill's limits. This Court has consistently held248that Article Ill's "arising under" jurisdiction is broad enough to authorize Congress to confer federal-court jurisdiction over actions involving federally chartered corporations. Pp. 264-265.938 F.2d 1494, reversed and remanded.SOUTER, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, and THOMAS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined, post, p. 265.Roy T. Englert, Jr., argued the cause for petitioner. With him on the briefs were Kenneth S. Geller, Bruce M. Chadwick, Karen Shoos Lipton, and Edward L. WolfRonald J. Mann argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, and Deputy Solicitor General Roberts.Gilbert Upton argued the cause for respondents. With him on the brief were Gary B. Richardson and David P. Slawsky. *JUSTICE SOUTER delivered the opinion of the Court.The Charter of the American National Red Cross authorizes the organization "to sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States." 33 Stat. 600, as amended, 36 U. S. C. § 2. In this case we consider whether that "sue and be sued" provision confers original jurisdiction on federal courts over all cases to which the Red Cross is a party, with the consequence that the organization is thereby authorized to remove from state to federal court any state-law action it is defending. We hold that the clause does confer such jurisdiction.IIn 1988 respondents filed a state-law tort action in a court of the State of New Hampshire, alleging that one of respond-*Christopher V. Tisi and Bob Gibbins filed a brief for the Association of Trial Lawyers of America as amicus curiae urging affirmance.249Full Text of Opinion

1956_107

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This is a proceeding under § 22-a of the New York Code of Criminal Procedure (L.1941, c. 925), as amended in 1954 (L.1954, c. 702). This section supplements the existing conventional criminal provision dealing with pornography by authorizing the chief executive, or legal officer, of a municipality to invoke a "limited injunctive remedy," under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial to be obscene, and to obtain an order for the seizure, in default of surrender, of the condemned publications. [Footnote 1] Page 354 U. S. 438A complaint dated September 10, 1954, charged appellants with displaying for sale paper-covered obscene booklets, fourteen of which were annexed, under the general title of "Nights of Horror." The complaint prayed Page 354 U. S. 439 that appellants be enjoined from further distribution of the booklets, that they be required to surrender to the sheriff for destruction all copies in their possession, and, upon failure to do so, that the sheriff be commanded to seize and destroy those copies. The same day, the appellants were ordered to show cause within four days why they should not be enjoined pendente lite from distributing the booklets. Appellants consented to the granting of an injunction pendente lite, and did not bring the matter to issue promptly, as was their right under subdivision 2 of the challenged section, which provides that the persons sought to be enjoined"shall be entitled to a trial of the issues within one day after joinder of issue, and a decision shall be rendered by the court within two days of the conclusion of the trial."After the case came to trial, the judge, sitting in equity, found that the booklets annexed to the complaint and introduced in evidence were clearly obscene -- were "dirt for dirt's sake"; he enjoined their further distribution and ordered their destruction. He refused to enjoin "the sale and distribution of later issues" on the ground that "to rule against at volume not offered in evidence would . . . impose an unreasonable prior restraint upon freedom of the press." 208 Misc. 150, 167, 142 N.Y.S.2d 735, 750.Not challenging the construction of the statute or the finding of obscenity, appellants took a direct appeal to the New York Court of Appeals, a proceeding in which the constitutionality of the statute was the sole question open to them. That court (one judge not sitting) found no constitutional infirmity: three judges supported the unanimous conclusion by detailed discussion, the other three deemed a brief disposition justified by "ample authority." 1 N.Y.2d 177, 189, 151 N.Y.S.2d 639, 134 N.E.2d 461, 468. A claim under the Due Process Clause of the Fourteenth Amendment made throughout the state litigation brought the case here on appeal. 352 U.S. 962. Page 354 U. S. 440Neither in the New York Court of Appeals nor here did appellants assail the legislation insofar as it outlaws obscenity. The claim they make lies within a very narrow compass. Their attack is upon the power of New York to employ the remedial scheme of § 22-a. Authorization of an injunction pendente lite, as part of this scheme, during the period within which the issue of obscenity must be promptly tried and adjudicated in an adversary proceeding for which "[a]dequate notice, judicial hearing, [and] fair determination" are assured, 208 Misc. 150, 164, 142 N.Y.S.2d 735, 747, is a safeguard against frustration of the public interest in effectuating judicial condemnation of obscene matter. It is a brake on the temptation to exploit a filthy business offered by the limited hazards of piecemeal prosecutions, sale by sale, of a publication already condemned as obscene. New York enacted this procedure on the basis of study by a joint legislative committee. Resort to this injunctive remedy, it is claimed, is beyond the constitutional power of New York in that it amounts to a prior censorship of literary product, and, as such, is violative of that "freedom of thought and speech" which has been "withdrawn by the Fourteenth Amendment from encroachment by the states." Palko v. Connecticut, 302 U. S. 319, 302 U. S. 326-327. Reliance is particularly placed upon Near v. Minnesota, 283 U. S. 697.In an unbroken series of cases extending over a long stretch of this Court's history, it has been accepted as a postulate that "the primary requirements of decency may be enforced against obscene publications." Id. at 283 U. S. 716. And so, our starting point is that New York can constitutionally convict appellants of keeping for sale the booklets incontestably found to be obscene. Alberts v. California, post, p. 354 U. S. 476. The immediate problem, then, is whether New York can adopt as an Page 354 U. S. 441 auxiliary means of dealing with such obscene merchandising the procedure of § 22-a.We need not linger over the suggestion that something can be drawn out of the Due Process Clause of the Fourteenth Amendment that restricts New York to the criminal process in seeking to protect its people against the dissemination of pornography. It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action, or by an injunction, or by some or all of these remedies in combination, is a matter within the legislature's range of choice. See Tigner v. Texas, 310 U. S. 141, 310 U. S. 148. If New York chooses to subject persons who disseminate obscene "literature" to criminal prosecution and also to deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies. Just as Near v. Minnesota, supra, one of the landmark opinions in shaping the constitutional protection of freedom of speech and of the press, left no doubts that "Liberty of speech, and of the press, is also not an absolute right," 283 U.S. at 283 U. S. 708, it likewise made clear that "the protection even as to previous restraint is not absolutely unlimited." Id. at 283 U. S. 716. To be sure, the limitation is the exception; it is to be closely confined so as to preclude what may fairly be deemed licensing or censorship.The judicial angle of vision in testing the validity of a statute like § 22-a is "the operation and effect of the statute in substance." Id. at 283 U. S. 713. The phrase "prior restraint" is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who Page 354 U. S. 442 brings weighty learning to his support of constitutionally protected liberties: "What is needed," writes Professor Paul A. Freund,"is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis."The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539.Wherein does § 22-a differ in its effective operation from the type of statute upheld in Alberts? Section 311 of California's Penal Code provides that "Every person who wilfully and lewdly . . . keeps for sale . . . any obscene . . . book . . . is guilty of a misdemeanor. . . ." Section 1141 of New York's Penal Law is similar. One would be bold to assert that the in terrorem effect of such statutes less restrains booksellers in the period before the law strikes than does § 22-a. Instead of requiring the bookseller to dread that the offer for sale of a book may, without prior warning, subject him to a criminal prosecution with the hazard of imprisonment, the civil procedure assures him that such consequences cannot follow unless he ignores a court order specifically directed to him for a prompt and carefully circumscribed determination of the issue of obscenity. Until then, he may keep the book for sale and sell it on his own judgment, rather than steer "nervously among the treacherous shoals." Warburg, Onward And Upward With The Arts, The New Yorker, April 20, 1957, pp. 98, 101, in connection with R. v. Martin Secker Warburg, Ltd., [1954] 2 All Eng. 683 (C.C.C.).Criminal enforcement and the proceeding under § 22-a interfere with a book's solicitation of the public precisely at the same stage. In each situation, the law moves after publication; the book need not in either case have yet passed into the hands of the public. The Alberts record does not show that the matter there found to be Page 354 U. S. 443 obscene had reached the public at the time that the criminal charge of keeping such matter for sale was lodged, while here, as a matter of fact, copies of the booklets whose distribution was enjoined had been on sale for several weeks when process was served. In each case, the bookseller is put on notice by the complaint that sale of the publication charged with obscenity in the period before trial may subject him to penal consequences. In the one case, he may suffer fine and imprisonment for violation of the criminal statute; in the other, for disobedience of the temporary injunction. The bookseller may, of course, stand his ground and confidently believe that in any judicial proceeding the book could not be condemned as obscene, but both modes of procedure provide an effective deterrent against distribution prior to adjudication of the book's content -- the threat of subsequent penalization. [Footnote 2]The method devised by New York in § 22-a for determining whether a publication is obscene does not differ in essential procedural safeguards from that provided under many state statutes making the distribution of obscene publications a misdemeanor. For example, while the New York criminal provision brings the State's criminal procedure into operation, a defendant is not thereby entitled to a jury trial. In each case, a judge is the conventional trier of fact; in each, a jury may, as a matter of discretion, be summoned. Compare N.Y.City Criminal Courts Act, § 31, Sub. 1(c) and Sub. 4, with N.Y.Civil Practice Act, § 430. (Appellants, as a matter of fact, did not request a jury trial, they did not attack Page 354 U. S. 444 the statute in the courts below for failure to require a jury, and they did not bring that issue to this Court.) Of course, the Due Process Clause does not subject the States to the necessity of having trial by jury in misdemeanor prosecutions.Nor are the consequences of a judicial condemnation for obscenity under § 22-a more restrictive of freedom of expression than the result of conviction for a misdemeanor. In Alberts, the defendant was fined $500, sentenced to sixty days in prison, and put on probation for two years on condition that he not violate the obscenity statute. Not only was he completely separated from society for two months, but he was also seriously restrained from trafficking in all obscene publications for a considerable time. Appellants, on the other hand, were enjoined from displaying for sale or distributing only the particular booklets theretofore published and adjudged to be obscene. Thus, the restraint upon appellants as merchants in obscenity was narrower than that imposed on Alberts.Section 22-a's provision for the seizure and destruction of the instruments of ascertained wrongdoing expresses resort to a legal remedy sanctioned by the long history of Anglo-American law. See Holmes, The Common Law 24-26; Van Oster v. Kansas, 272 U. S. 465; Goldsmith-Grant Co. v. United States, 254 U. S. 505, 254 U. S. 510-511; Lawton v. Steele, 152 U. S. 133, and see United States v. Urbuteit, 335 U. S. 355, dealing with misbranded articles under § 304(a) of the Food, Drug, and Cosmetic Act, 52 Stat. 1044. It is worth noting that, although the Alberts record does not reveal whether the publications found to be obscene were destroyed, provision is made for that by §§ 313 and 314 of the California Penal Code. Similarly, § 1144 of New York's Penal Law provides for destruction of obscene matter following conviction for its dissemination. Page 354 U. S. 445It only remains to say that the difference between Near v. Minnesota, supra, and this case is glaring in fact. The two cases are no less glaringly different when judged by the appropriate criteria of constitutional law. Minnesota empowered its courts to enjoin the dissemination of future issues of a publication because its past issues had been found offensive. In the language of Mr. Chief Justice Hughes, "This is of the essence of censorship." 283 U.S. at 283 U. S. 713. As such, it was found unconstitutional. This was enough to condemn the statute wholly apart from the fact that the proceeding in Near involved not obscenity, but matters deemed to be derogatory to a public officer. Unlike Near, § 22-a is concerned solely with obscenity, and, as authoritatively construed, it studiously withholds restraint upon matters not already published and not yet found to be offensive.The judgment isAffirmed

U.S. Supreme CourtKingsley Books, Inc. v. Brown, 354 U.S. 436 (1957)Kingsley Books, Inc. v. BrownNo. 107Argued April 22, 1957Decided June 24, 1957354 U.S. 436SyllabusIn a proceeding under §22-a of the New York Code of Criminal Procedure, a State Court, sitting in equity, found that certain booklets displayed for sale by appellants were clearly obscene, and it enjoined their further distribution and ordered their destruction.Held: resort to this remedy by the State was not violative of the freedom of speech and press protected by the Due Process Clause of the Fourteenth Amendment from encroachment by the States. Pp. 354 U. S. 437-445.(a) A State could constitutionally convict appellants for keeping for sale booklets found to be obscene. Alberts v. California, post, p. 354 U. S. 476. P. 354 U. S. 440.(b) Nothing in the Due Process Clause of the Fourteenth Amendment restricts a State to the criminal process in seeking to protect its people from the dissemination of pornography. P. 354 U. S. 441.(c) The injunction here sustained no more amounts to a "prior restraint" on freedom of speech or press than did the criminal prosecution in Alberts v. California, supra, where the defendant was fined, sentenced to imprisonment, and put on probation for two years on condition that he not violate the obscenity statute. Pp. 354 U. S. 441-444.(d) The Due Process Clause does not subject the States to the necessity of having trials by jury in misdemeanor prosecutions, and the procedure prescribed by § 22-a of the New York statute for determination whether a publication is obscene does not differ in essential procedural safeguards from that provided under many state statutes making the distribution of obscene publications a misdemeanor. Pp. 354 U. S. 443-444.(e) The provision in § 22-a for the seizure and destruction of instruments of ascertained wrongdoing is a resort to a legal remedy long sanctioned in Anglo-American law. P. 354 U. S. 444.(f) Near v. Minnesota, 283 U. S. 697, distinguished. P. 354 U. S. 445.1 N.Y.2d 177, 134 N.E.2d 461, affirmed. Page 354 U. S. 437

1977_76-864

MR. JUSTICE BRENNAN delivered the opinion of the Court (Part I), together with an opinion (Parts II and III), in which MR. JUSTICE MARSHALL, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS joined.Parker v. Brown, 317 U. S. 341 (1943), held that the federal antitrust laws do not prohibit a State "as sovereign" from imposing certain anticompetitive restraints "as an act of government." The question in this case is the extent to which the antitrust laws prohibit a State's cities from imposing such anticompetitive restraints.Petitioner cities are organized under the laws of the State of Louisiana, [Footnote 1] which grant them power to own and operate electric utility systems both within and beyond their city limits. [Footnote 2] Petitioners brought this action in the District Court for the Eastern District of Louisiana, alleging that, among others, [Footnote 3] Louisiana Power & Light Co. (LP&L), an investor-owned electric service utility with which petitioners compete Page 435 U. S. 392 in the areas beyond their city limits, [Footnote 4] committed various antitrust offenses which injured petitioners in the operation of their electric utility systems. [Footnote 5] LP&L counterclaimed, seeking damages and injunctive relief for various antitrust offenses which petitioners had allegedly committed and which injured it in its business and property. [Footnote 6]Petitioners moved to dismiss the counterclaim on the ground that, as cities and subdivisions of the State of Louisiana, the "state action" doctrine of Parker v. Brown rendered federal antitrust laws inapplicable to them. The District Court granted the motion, holding that the decision of the Court of Appeals for the Fifth Circuit in Saenz v. University Interscholastic League, 487 F.2d 1026 (1973), required dismissal, notwithstanding that "[t]hese plaintiff cities are engaging in what is clearly a business activity . . . in which a profit is realized," and "for this reason . . . , this court is reluctant to Page 435 U. S. 393 hold that the antitrust laws do not apply to any state activity." [Footnote 7] App. 47 (emphasis in original). The District Court in this case read Saenz to interpret the "state action" exemption [Footnote 8] as requiring the "holding that purely state government activities are not subject to the requirements of the antitrust laws of the United States," App. 48, thereby making petitioners' status as cities determinative against maintenance of antitrust suits against them. The Court of Appeals for the Fifth Circuit reversed and remanded for further proceedings. [Footnote 9] 532 F.2d 431 (1976). The Court of Appeals noted that the District Court had acted before this Court's decision in Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), and held that, "taken together" Parker v. Brown and Goldfarb "require the following analysis":"A subordinate state governmental body is not ipso facto exempt from the operation of the antitrust laws. Rather, a district court must ask whether the state legislature contemplated a certain type of anticompetitive restraint. In our opinion, though, it is not necessary to point to an Page 435 U. S. 394 express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activity was clearly within the legislative intent. Thus, a trial judge may ascertain, from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of. On the other hand, as in Goldfarb, the connection between a legislative grant of power and the subordinate entity's asserted use of that power may be too tenuous to permit the conclusion that the entity's intended scope of activity encompassed such conduct. Whether a governmental body's actions are comprehended within the powers granted to it by the legislature is, of course, a determination which can be made only under the specific facts in each case. A district judge's inquiry on this point should be broad enough to include all evidence which might show the scope of legislative intent."532 F.2d at 434-435 (footnotes omitted). We granted certiorari, 430 U.S. 944 (1977). We affirm.IPetitioners' principal argument is that,"since a city is merely a subdivision of a state, and only exercises power delegated to it by the state, Parker's findings regarding the congressionally intended scope of the Sherman Act apply with equal force to such political subdivisions."Brief for Petitioners 5. Before addressing this question, however, we shall address the contention implicit in petitioners' arguments in their brief that, apart from the question of their exemption as agents of the State under the Parker doctrine, Congress never intended to subject local governments to the antitrust laws.AThe antitrust laws impose liability on and create a cause of action for damages for a "person" or "persons" as defined in Page 435 U. S. 395 the Acts. [Footnote 10] Since the Court has held that the definition of "person" or "persons" embraces both cities and States, it is understandable that the cities do not argue that they are not "persons" within the meaning of the antitrust laws.Section 8 of the Sherman Act, ch. 647, 26 Stat. 210, 15 U.S.C. § 7 (1976 ed.), and § 1 of the Clayton Act, 38 Stat. 730, 15 U.S.C. § 12 (1976 ed.), are general definitional sections which define "person" or "persons,""wherever used in this [Act] . . . , to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country. [Footnote 11]"Section 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15 (1976 ed.), provides, Page 435 U. S. 396 in pertinent part, that"[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court . . . , and shall recover threefold the damages by him sustained. . . . [Footnote 12]"Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390 (196), held that a municipality is a "person" within the meaning of § 8 of the Sherman Act, the general definitional section, and that the city of Atlanta therefore could maintain a treble damages action under § 7, the predecessor of § 4 of the Clayton Act, [Footnote 13] against a supplier from whom the city purchased water pipe which it used to furnish water as a municipal utility service. Some 36 years later, Georgia v. Evans, 316 U. S. 159 (1942), held that the words "any person" in § 7 of the Sherman Act included States. Under that decision, the State of Georgia was permitted to bring an action in its own name charging injury from a combination to fix prices and suppress competition in the market for asphalt which the Page 435 U. S. 397 State purchased annually for use in the construction of public roads. The Court reasoned that "[n]othing in the Act, its history, or its policy, could justify so restrictive a construction of the word person' in § 7 as to exclude a State." 316 U.S. at 316 U. S. 162.Although both Chattanooga Foundry and Georgia v. Evans involved the public bodies as plaintiffs, whereas petitioners in the instant case are defendants to a counterclaim, the basis of those decisions plainly precludes a reading of "person" or "persons" to include municipal utility operators that sue as plaintiffs, but not to include such municipal operators when sued as defendants. Thus, the conclusion that the antitrust laws are not to be construed as meant by Congress to subject cities to liability under the antitrust laws must rest on the impact of some overriding public policy which negates the construction of coverage, and not upon a reading of "person" or "persons" as not including them. [Footnote 14]BPetitioners suggest several reasons why, in addition to their arguments for exemption as agents of the State under the Parker doctrine, a congressional purpose not to subject cities Page 435 U. S. 398 to the antitrust laws should be inferred. Those arguments, like the Parker exemption itself, necessarily must be considered in light of the presumption against implied exclusions from coverage under the antitrust laws.(1)The purposes and intended scope of the Sherman Act have been developed in prior cases, and require only brief mention here. Commenting upon the language of the Act in rejecting a claim that the insurance business was excluded from coverage, the Court stated:"Language more comprehensive is difficult to conceive. On its face, it shows a carefully studied attempt to bring within the Act every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states."United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 322 U. S. 553 (1944). That and subsequent cases reviewing the legislative history of the Sherman Act have concluded that Congress, exercising the full extent of its constitutional power, [Footnote 15] sought to establish a regime of competition as the fundamental principle governing commerce in this country. [Footnote 16]For this reason, our cases have held that, even when Congress, by subsequent legislation, establishes a regulatory regime over an area of commercial activity, the antitrust laws will not be displaced unless it appears that the antitrust and regulatory provisions are plainly repugnant. E.g., 374 U. S. Page 435 U. S. 399 Philadelphia Nat. Bank, 374 U. S. 321, 374 U. S. 350-351, and n. 28 (1963) (collecting cases). The presumption against repeal by implication reflects the understanding that the antitrust laws establish overarching and fundamental policies, a principle which argues with equal force against implied exclusions. See Goldfarb, 421 U.S. at 435 U. S. 786-788.Two policies have been held sufficiently weighty to override the presumption against implied exclusions from coverage of the antitrust laws. In Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), the Court held that, regardless of anticompetitive purpose or intent, a concerted effort by persons to influence lawmakers to enact legislation beneficial to themselves or detrimental to competitors was not within the scope of the antitrust laws. Although there is nothing in the language of the statute or its history which would indicate that Congress considered such an exclusion, the impact of two correlative principles was held to require the conclusion that the presumption should not support a finding of coverage. The first is that a contrary construction would impede the open communication between the polity and its lawmakers which is vital to the functioning of a representative democracy. Second, "and of at least equal significance," is the threat to the constitutionally protected right of petition which a contrary construction would entail. Id. at 365 U. S. 137-138. [Footnote 17] Page 435 U. S. 400Parker v. Brown [Footnote 18] identified a second overriding policy, namely that,"[i]n a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress."317 U.S. at 317 U. S. 351.Common to the two implied exclusions was potential conflict with policies of signal importance in our national traditions and governmental structure of federalism. Even then, however, the recognized exclusions have been unavailing to prevent antitrust enforcement which, though implicating those fundamental policies, was not thought severely to impinge upon them. See, e.g.,Goldfarb, supra; California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972).Petitioners' arguments therefore cannot prevail unless they demonstrate that there are countervailing policies which are sufficiently weighty to overcome the presumption. We now turn to a consideration of whether, apart from the question of their exemption as agents of the State under the Parker doctrine, petitioners have made that showing.(2)Petitioners argue that their exclusion must be inferred because it would be anomalous to subject municipalities to the criminal and civil liabilities imposed upon violators of the antitrust laws. The short answer is that it has not been regarded as anomalous to require compliance by municipalities with the substantive standards of other federal laws which impose such sanctions upon "persons." See Union Pacific R. Page 435 U. S. 401 Co. v. United States, 313 U. S. 450 (1941). [Footnote 19] See generally Ohio v. Helvering, 292 U. S. 360, 292 U. S. 370 (1934); [Footnote 20] California v. United States, 320 U. S. 577 (144). [Footnote 21] But those cases do not Page 435 U. S. 402 necessarily require the conclusion that remedies appropriate to redress violations by private corporations would be equally appropriate for municipalities; nor need we decide any question of remedy in this case. [Footnote 22] Page 435 U. S. 403Petitioners next argue that the antitrust laws are intended to protect the public only from abuses of private power, and not from actions of municipalities that exist to serve the public weal.Petitioners' contention that their goal is not private profit, but public service, is only partly correct. Every business enterprise, public or private, operates its business in furtherance of its own goals. In the case of a municipally owned utility, that goal is likely to be, broadly speaking, the benefit of its citizens. But the economic choices made by public corporations in the conduct of their business affairs, designed as they are to assure maximum benefits for the community constituency, are not inherently more likely to comport with the broader interests of national economic wellbeing than are those of private corporations acting in furtherance of the interests of the organization and its shareholders. The allegations of the counterclaim, which, for present purposes, we accept as true, [Footnote 23] aptly illustrate the impact which local governments, acting as providers of services, may have on other individuals and business enterprises with which they interrelate as purchasers, suppliers, and sometimes, as here, as competitors. [Footnote 24]LP&L alleged that the city of Plaquemine contracted to provide LP&L's electric customers outside its city limits gas and water service only on condition that the customers purchase Page 435 U. S. 404 electricity from the city and not from LP&L. [Footnote 25] The effect of such a tie-in is twofold. First, the tying contract might injure former LP&L customers in two ways. The net effect of the tying contract might be to increase the cost of electric service to these customers. Moreover, a municipality conceivably might charge discriminatorily higher rates to such captive customers outside its jurisdiction without a cost-justified basis. Both of these practices would provide maximum benefits for its constituents, while disserving the interests of the affected customers. Second, the practice would necessarily have an impact on the regulated public utility whose service is displaced. [Footnote 26] The elimination of customers in an established service area would likely reduce revenues, and possibly require abandonment or loss of existing equipment the effect of which would be to reduce its rate base and possibly affect its capital structure. The surviving customers and the investor-owners would bear the brunt of these consequences. The decision to displace existing service, rather than being made on the basis of efficiency in the distribution of services, may be made by the municipality in the interest of realizing maximum benefits to itself without regard to extraterritorial impact and regional efficiency. [Footnote 27] Page 435 U. S. 405The second allegation of LP&L's counterclaim, [Footnote 28] is that petitioners conspired with others to engage in sham and frivolous litigation against LP&L before various federal agencies [Footnote 29] and federal courts for the purpose, and with the effect, of delaying approval and construction of LP&L's proposed nuclear electric generating plant. It is alleged that this course of conduct was designed to deprive LP&L of needed financing, and to impose delay costs, amounting to $180 million, which would effectively block construction of the proposed project. Such activity may benefit the citizens of Plaquemine and Lafayette by eliminating a competitive threat to expansion of the municipal utilities in still undeveloped areas beyond the cities' territorial limits. But that kind of activity, if truly anticompetitive, [Footnote 30] may impose enormous unnecessary costs on the potential customers of the nuclear generating facility both within and beyond the cities' proposed area of expansion. In addition, it may cause significant injury to LP&L, interfering with its ability to provide expanded service.Another aspect of the public service argument [Footnote 31] is that, Page 435 U. S. 406 because government is subject to political control, the welfare of its citizens is assured through the political process, and that federal antitrust regulation is therefore unnecessary. The argument that consumers dissatisfied with the service provided by the municipal utilities may seek redress through the political process is without merit. While petitioners recognize, as they must, that those consumers living outside the municipality who are forced to take municipal service have no political recourse at the municipal level, they argue nevertheless that the customers may take their complaints to the state legislature. It fairly may be questioned whether the consumers in question or the Florida corporation of which LP&L is a subsidiary have a meaningful chance of influencing the state legislature to outlaw on an ad hoc basis whatever anticompetitive practices petitioners may direct against them from time to time. More fundamentally, however, that argument cuts far too broadly; the same argument may be made regarding anticompetitive activity in which any corporation engages. Mulcted consumers and unfairly displaced competitors may always seek redress through the political process. In enacting the Sherman Act, however, Congress mandated competition as the polestar by which all must be guided in ordering their business affairs. It did not leave this fundamental national policy to the vagaries of the political process, but established a broad policy, to be administered by neutral courts, [Footnote 32] which Page 435 U. S. 407 would guarantee every enterprise the right to exercise "whatever economic muscle it can muster," United States v. Topco Associates, 405 U. S. 596, 405 U. S. 610 (1972), without regard to the amount of influence it might have with local or state legislatures. [Footnote 33]In 1972, there were 62,437 different units of local government in this country. [Footnote 34] Of this number 23,885 were special districts which had a defined goal or goals for the provision of one or several services, [Footnote 35] while the remaining 38,552 represented Page 435 U. S. 408 the number of counties, municipalities, and townships, most of which have broad authority for general governance subject to limitations in one way or another imposed by the State. [Footnote 36] These units may, and do, participate in and affect the economic life of this Nation in a great number and variety of ways. When these bodies act as owners and providers of services, they are fully capable of aggrandizing other economic units with which they interrelate, with the potential of serious distortion of the rational and efficient allocation of resources, and the efficiency of free markets which the regime of competition embodied in the antitrust laws is thought to engender. [Footnote 37] If municipalities were free to make economic choices counseled solely by their own parochial interests and without regard to their anticompetitive effects, a serious chink in the armor of antitrust protection would be introduced at odds with the comprehensive national policy Congress established. [Footnote 38]We conclude that these additional arguments for implying an exclusion for local governments from the antitrust laws must be rejected. We therefore turn to petitioners' principal argument, that"Parker's findings regarding the congressionally intended scope of the Sherman Act apply with equal force to such political subdivisions."Brief for Petitioners 5.IIPlainly, petitioners are in error in arguing that Parker held that all governmental entities, whether state agencies or subdivisions of a State, are, simply by reason of their status as such, exempt from the antitrust laws.Parker v. Brown involved the California Agricultural Prorate Page 435 U. S. 409 Act enacted by the California Legislature as a program to be enforced"through action of state officials . . . to restrict competition among the growers [of raisins] and maintain prices in the distribution of their commodities to packers."317 U.S. at 317 U. S. 346. The Court held that the program was not prohibited by the federal antitrust laws, since"nothing in the language of the Sherman Act or in its history . . . suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature,"id. at 317 U. S. 350-351, and "[t]he state . . . as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit." Id. at 317 U. S. 352.Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), underscored the significance of Parker's holding that the determinant of the exemption was whether the challenged action was "an act of government" by the State as "sovereign." Parker repeatedly emphasized that the anticompetitive effects of California's prorate program derived from "the state['s] command"; the State adopted, organized, and enforced the program "in the execution of a governmental policy." [Footnote 39] 317 U.S. at 317 U. S. 352. Goldfarb, on the other hand, presented the question "whether a minimum fee schedule for lawyers published by the Fairfax County Bar Association and enforced by the Virginia State Bar," 421 U.S. at 421 U. S. 775, violated the Sherman Act. Exemption was claimed on the ground that the Virginia State Bar was "a state agency by law." Id. at 421 U. S. 790. The Virginia Legislature had empowered the Supreme Court of Virginia to regulate the practice of law and had assigned the State Bar a role in that regulation as an administrative agency of the Virginia Supreme Court. But no Virginia statute referred to lawyers' fees, and the Supreme Court of Virginia had taken no action requiring the use of and adherence to minimum Page 435 U. S. 410 fee schedules. Goldfarb therefore held that it could not be said that the anticompetitive effects of minimum fee schedules were directed by the State acting as sovereign. Id. at 421 U. S. 791. The State Bar, though acting within its broad powers, had "voluntarily joined in what is essentially a private anticompetitive activity," id. at 421 U. S. 792, and was not executing the mandate of the State. Thus, the actions of the State Bar had failed to meet "[t]he threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe. . . ."Id. at 421 U. S. 790. Goldfarb therefore made it clear that, for purposes of the Parker doctrine, not every act of a state agency is that of the State as sovereign.Bates v. State Bar of Arizona, 433 U. S. 350 (1977), involved the actions of a state agency to which the Parker exemption applied. Bates considered the applicability of the antitrust laws to a ban on attorney advertising directly imposed by the Arizona Supreme Court. In holding the antitrust laws inapplicable, Bates noted that"[t]hat court is the ultimate body wielding the State's power over the practice of law, see Ariz.Const., Art. 3; In re Bailey, 30 Ariz. 407, 248 P. 29 (1926), and, thus, the restraint is 'compelled by direction of the State acting as a sovereign.'"Id. at 433 U. S. 360, quoting Goldfarb, supra, at 421 U. S. 731. We emphasized, moreover, the significance to our conclusion of the fact that the state policy requiring the anticompetitive restraint as part of a comprehensive regulatory system was one clearly articulated and affirmatively expressed as state policy, and that the State's policy was actively supervised by the State Supreme Court as the policymaker. [Footnote 40] Page 435 U. S. 411These decisions require rejection of petitioners' proposition that their status as such automatically affords governmental entities the "state action" exemption. [Footnote 41] Parker's limitation Page 435 U. S. 412 of the exemption, as applied by Goldfarb and Bates, to "official action directed by [the] state," arises from the basis for the "state action" doctrine -- that, given our"dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority,"317 U.S. at 317 U. S. 351, a congressional purpose to subject to antitrust control the States' acts of government will not lightly be inferred. To extend that doctrine to municipalities would be inconsistent with that limitation. Cities are not themselves sovereign; they do not receive all the federal deference of the States that create them. See, e.g., Edelman v. Jordan, 415 U. S. 651, 415 U. S. 667 n. 12 (1974); Lincoln County v. Luning, 133 U. S. 529 (1890) (political subdivisions not protected by Eleventh Amendment from immunity from suit in federal court). Parker's limitation of the exemption to "official action directed by a state," 317 U.S. at 317 U. S. 351, is consistent with the fact that the States' subdivisions generally have not been treated as equivalents of the States themselves. [Footnote 42] In light of the serious economic dislocation which Page 435 U. S. 413 could result if cities were free to place their own parochial interests above the Nation's economic goals reflected in the antitrust laws, see supra at 435 U. S. 403-408, we are especially unwilling to presume that Congress intended to exclude anticompetitive municipal action from their reach.On the other hand, the fact that municipalities, simply by their status as such, are not within the Parker doctrine does not necessarily mean that all of their anticompetitive activities are subject to antitrust restraints. Since "[m]unicipal corporations are instrumentalities of the State for the convenient administration of government within their limits," Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U. S. 285, 109 U. S. 287 (1883), the actions of municipalities may reflect state policy. We therefore conclude that the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service. There remains the question whether the Court of Appeals erred in holding that further inquiry should be made to determine whether petitioners' actions were directed by the State.IIIThe petitioners and our Brother STEWART's dissent focus their arguments upon the fact that municipalities may exercise the sovereign power of the State, concluding from this that any actions which municipalities take necessarily reflect state policy, and must therefore fall within the Parker doctrine. Page 435 U. S. 414 But the fact that the governmental bodies sued are cities, with substantially less than statewide jurisdiction, has significance. When cities, each of the same status under state law, are equally free to approach a policy decision in their own way, the anticompetitive restraints adopted as policy by any one of them, may express its own preference, rather than that of the State. [Footnote 43] Therefore, in the absence of evidence that the State authorized or directed a given municipality to act as it did, the actions of a particular city hardly can be found to be pursuant to "the state['s] command," or to be restraints that "the state . . . as sovereign" imposed. 317 U.S. at 317 U. S. 352. The most [Footnote 44] that could be said is that state policy may be neutral. Page 435 U. S. 415 To permit municipalities to be shielded from the antitrust laws in such circumstances would impair the goals Congress sought to achieve by those laws, see supra at 435 U. S. 403-408, without furthering the policy underlying the Parker "exemption." This does not mean, however, that a political subdivision necessarily must be able to point to a specific, detailed legislative authorization before it properly may assert a Parker defense to an antitrust suit. While a subordinate governmental unit's claim to Parker immunity is not as readily established as the same claim by a state government, sued as such, we agree with the Court of Appeals that an adequate state mandate for anticompetitive activities of cities and other subordinate governmental units exits when it is found,"from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of. [Footnote 45]"532 F.2d at 434.The Parker doctrine, so understood, preserves to the States their freedom under our dual system of federalism to use their municipalities to administer state regulatory policies free of the inhibitions of the federal antitrust laws without at the Page 435 U. S. 416 same time permitting purely parochial interests to disrupt the Nation's free market goals.Our Brother STEWART's dissent argues that the result we reach will "greatly . . . impair the ability of a State to delegate governmental power broadly to its municipalities." Post at 435 U. S. 438 (footnote omitted). That, with respect, is simply hyperbole. Our decision will render a State no less able to allocate governmental power between itself and its political subdivisions. It means only that, when the State itself has not directed or authorized an anticompetitive practice, the State's subdivisions in exercising their delegated power must obey the antitrust laws. The dissent notwithstanding, it is far too late to argue that a State's desire to insulate anticompetitive practices not imposed by it as an act of government falls within the Parker doctrine. Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1951). Moreover, by characterizing the Parker exemption as fully applicable to local governmental units simply by virtue of their status as such, the approach taken by the dissent would hold anticompetitive municipal action free from federal antitrust enforcement even when state statutes specifically provide that municipalities shall be subject to the antitrust laws of the United States. See generally La.Rev.Stat.Ann. § 33:1334(G) (West Supp. 1977), quoted in n 44, supra. That result would be a perversion of federalism. [Footnote 46]Today's decision does not threaten the legitimate exercise of governmental power, nor does it preclude municipal government Page 435 U. S. 417 from providing services on a monopoly basis. Parker and its progeny make clear that a State properly may, as States did in Parker and Bates, direct or authorize its instrumentalities to act in a way which, if it did not reflect state policy, would be inconsistent with the antitrust laws. Compare Bates with Goldfarb. True, even a lawful monopolist may be subject to antitrust restraints when it seeks to extend or exploit its monopoly in a manner not contemplated by its authorization. Cf. Otter Tail Power Co. v. United States, 410 U. S. 366, 410 U. S. 377-382 (1973). [Footnote 47] But assuming that the municipality is authorized to provide a service on a monopoly basis, these limitations on municipal action [Footnote 48] will not hobble the execution of legitimate governmental programs.Affirmed

U.S. Supreme CourtCity of Lafayette v. Louisiana P&L Co., 435 U.S. 389 (1978)City of Lafayette v. Louisiana Power & Light Co.No. 76-864Argued October 4, 1977Decided March 29, 1978435 U.S. 389SyllabusPetitioner cities, which own and operate electric utility systems both within and beyond their respective city limits as authorized by Louisiana law, brought an action in District Court against respondent investor-owned electric utility with which petitioners compete, alleging that it committed various federal antitrust offenses that injured petitioners in the operation of their electric utility systems. Respondent counterclaimed, alleging that petitioners had committed various antitrust offenses that injured respondent in its business and property. Petitioners moved to dismiss the counterclaim on the ground that, as cities and subdivisions of the State, the "state action" doctrine of Parker v. Brown, 317 U. S. 341, rendered federal antitrust laws inapplicable to them. The District Court granted the motion, but the Court of Appeals reversed and remanded.Held: Apart from whether petitioners are exempt from the antitrust laws as agents of the State under the Parker doctrine, there are insufficient grounds for inferring that Congress did not intend to subject cities to antitrust liability. Pp. 435 U. S. 394-408.(a) The definition of "person" or "persons" covered by the antitrust laws clearly includes cities, whether as municipal utility operators suing as plaintiffs seeking damages for antitrust violations or as such operators being sued as defendants. Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390; Georgia v. Evans, 316 U. S. 159. Pp. 435 U. S. 394-397.(b) Petitioners have failed to show the existence of any overriding public policy inconsistent with a construction of coverage of the antitrust laws. The presumption against implied exclusion from such laws cannot be negated either on the ground that it would be anomalous to subject municipalities to antitrust liability or on the ground that the antitrust laws are intended to protect the public only from abuses of private power, and not from action of municipalities that exist to serve the public weal. Pp. 435 U. S. 400-408.MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, concluded:1. Parker v. Brown does not automatically exempt from the antitrust Page 435 U. S. 390 laws all governmental entities, whether state agencies or subdivisions of a State, simply by reason of their status as such, but exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service. Pp. 435 U. S. 408-413.2. The Court of Appeals did not err in holding that further inquiry should be made to determine whether petitioners' actions were directed by the State, since, when the State itself has not directed or authorized an anticompetitive practice, the State's subdivisions, in exercising their delegated power, must obey the antitrust laws. While a subordinate governmental unit's claim to Parker immunity is not as readily established as the same claim by a state government, sued as such, an adequate state mandate for anticompetitive activities of cities and other subordinate governmental units exists when it is found,"from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of."Pp. 435 U. S. 413-417.THE CHIEF JUSTICE, while agreeing with the directions for remand in Part III because they represent, at a minimum, what is required to establish an exemption, would insist that the State compel the alleged anticompetitive activity, and that the cities demonstrate that the exemption is essential to the state regulatory scheme. Pp. 435 U. S. 425-426, and n. 6.532 F.2d 431, affirmed.BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part I, in which BURGER, C.J., and MARSHALL, POWELL, and STEVENS, JJ., joined; and an opinion with respect to Parts II and III, in which MARSHALL, POWELL, and STEVENS, JJ., joined. MARSHALL, J., filed a concurring opinion, post, p. 435 U. S. 417. BURGER, C.J., filed an opinion concurring in part and concurring in the judgment, post, p. 435 U. S. 418. STEWART, J., filed a dissenting opinion, in which WHITE and REHNQUIST, JJ., joined, and in all but Part II-B of which BLACKMUN, J., joined, post, p. 435 U. S. 426. BLACKMUN, J., filed a dissenting opinion, post, p. 435 U. S. 441. Page 435 U. S. 391