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1995_95-365

JUSTICE O'CONNOR delivered the opinion of the Court. Section 504(a) of the Rehabilitation Act of 1973, 87 Stat. 355, 29 U. S. C. § 791 et seq. (Act or Rehabilitation Act), prohibits, among other things, discrimination on the basis of disability "under any program or activity conducted by any Executive agency." 29 U. S. C. § 794(a) (1988 ed., Supp. V). The question presented in this case is whether Congress has waived the Federal Government's sovereign immunity against awards of monetary damages for violations of this provision.IThe United States Merchant Marine Academy is a federal service academy that trains students to serve as commercial merchant marine officers and as commissioned officers in the United States Armed Forces. The Academy is administered by the Maritime Administration, an organization within the Department of Transportation. Petitioner James Griffin Lane entered the Academy as a first-year student in July 1991 after meeting the Academy's requirements for appointment, including passing a physical examination conducted by the Department of Defense. During his first year at the Academy, however, Lane was diagnosed by a private physician as having diabetes mellitus. Lane reported the diagnosis to the Academy's Chief Medical Officer. The Academy's Physical Examination Review Board conducted a hearing in September 1992 to determine Lane's "medical suitability" to continue at the Academy, following which the Board reported to the Superintendent of the Academy that Lane suffered from insulin-dependent diabetes.In December 1992, Lane was separated from the Academy on the ground that his diabetes was a "disqualifying condition," rendering him ineligible to be commissioned for service in the Navy/Merchant Marine Reserve Program or as a Naval Reserve Officer. After unsuccessfully challenging his separation before the Maritime Administrator, Lane brought190suit in Federal District Court against the Secretary of the Department of Transportation and other defendants, alleging that his separation from the Academy violated § 504(a) of the Rehabilitation Act, 29 U. S. C. § 794(a). He sought reinstatement to the Academy, compensatory damages, attorney's fees, and costs.The District Court granted summary judgment in favor of Lane, concluding that his separation from the Academy solely on the basis of his diabetes violated the Act. The court ordered Lane reinstated to the Academy, and the Government did not dispute the propriety of this injunctive relief. The Government did, however, dispute the propriety of a compensatory damages award, claiming that the United States was protected against a damages suit by the doctrine of sovereign immunity. The District Court disagreed; it ruled that Lane was entitled to a compensatory damages award against the Government for its violation of § 504(a), but deferred resolution of the specific amount of damages due. 867 F. Supp. 1050 (DC 1994).Shortly thereafter, however, the Court of Appeals for the District of Columbia Circuit ruled in Dorsey v. United States Dept. of Labor, 41 F.3d 1551 (1994), that the Act did not waive the Federal Government's sovereign immunity against monetary damages for violations of § 504(a). The court denied compensatory damages based on the absence, in any statutory text, of an "unequivocal expression" of congressional intent to waive the Government's immunity as to monetary damages, and this Court's instruction that waivers of sovereign immunity may not be implied, see, e. g., Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990).In light of Dorsey, the District Court vacated its prior order to the extent that it awarded damages to Lane and held that Lane was not entitled to a compensatory damages award against the Federal Government. App. to Pet. for Cert. 5a-6a. Lane appealed. The Court of Appeals for the District of Columbia Circuit first rejected Lane's request for initial en banc review to reconsider Dorsey, then granted the191Government's motion for summary affirmance. App. to Pet. for Cert. 1a. We granted certiorari, 516 U. S. 1036 (1996), to resolve the disagreement in the Courts of Appeals on the important question whether Congress has waived the Federal Government's immunity against monetary damages awards for violations of § 504(a) of the Rehabilitation Act. Compare, e. g., Dorsey, supra, at 1554-1555, with J. L. v. Social Security Admin., 971 F.2d 260 (CA9 1992), and Doe v. Attorney General, 941 F.2d 780 (CA9 1991).IISection 504(a) of the Act provides that"[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." 29 U. S. C. § 794(a).Section 505(a)(2) of the Act describes the remedies available for a violation of § 504(a): "The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under [§ 504]." § 794a(a)(2). Because Title VI provides for monetary damages awards, see Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 70 (1992) (noting that "a clear majority" of the Court confirmed in Guardians Assn. v. Civil Servo Comm'n of New York City, 463 U. S. 582 (1983), that damages are available under Title VI for intentional violations thereof), Lane reads §§ 504(a) and 505(a)(2) together to establish a waiver of the Federal Government's sovereign immunity against monetary damages awards for violations of § 504(a) committed by Executive agencies.192While Lane's analysis has superficial appeal, it overlooks one critical requirement firmly grounded in our precedents:A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text, see, e. g., United States v. Nordic Village, Inc., 503 U. S. 30, 33-34, 37 (1992), and will not be implied, Irwin v. Department of Veterans Affairs, supra, at 95. Moreover, a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign. See, e. g., United States v. Williams, 514 U. S. 527, 531 (1995) (when confronted with a purported waiver of the Federal Government's sovereign immunity, the Court will "constru[e] ambiguities in favor of immunity"); Library of Congress v. Shaw, 478 U. S. 310, 318 (1986); Lehman v. Nakshian, 453 U. S. 156, 161 (1981) ("[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied"). To sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims. Nordic Village, 503 U. S., at 34. A statute's legislative history cannot supply a waiver that does not appear clearly in any statutory text; "the 'unequivocal expression' of elimination of sovereign immunity that we insist upon is an expression in statutory text." Id., at 37.The clarity of expression necessary to establish a waiver of the Government's sovereign immunity against monetary damages for violations of § 504 is lacking in the text of the relevant provisions. The language of § 505(a)(2), the remedies provision, is telling. In that section, Congress decreed that the remedies available for violations of Title VI would be similarly available for violations of § 504(a) "by any recipient of Federal assistance or Federal provider of such assistance." 29 U. S. C. § 794a(a)(2). This provision makes no mention whatsoever of "program[s] or activit[ies] conducted by any Executive agency," the plainly more far-reaching193language Congress employed in § 504(a) itself. Whatever might be said about the somewhat curious structure of the liability and remedy provisions, it cannot be disputed that a reference to "Federal provider[s]" of financial assistance in § 505(a)(2) does not, without more, establish that Congress has waived the Federal Government's immunity against monetary damages awards beyond the narrow category of § 504(a) violations committed by federal funding agencies acting as such-that is, by "Federal provider[s]."The lack of clarity in § 505(a)(2)'s "Federal provider" provision is underscored by the precision with which Congress has waived the Federal Government's sovereign immunity from compensatory damages claims for violations of § 501 of the Rehabilitation Act, 29 U. S. C. § 791, which prohibits discrimination on the basis of disability in employment decisions by the Federal Government. In § 505(a)(1), Congress expressly waived the Federal Government's sovereign immunity against certain remedies for violations of § 501:"The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 [which allows monetary damages] ... shall be available, with respect to any complaint under section 501 of this Act, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint." 29 U. S. C. § 794a(a)(1).Section 505(a)(1)'s broad language-"any complaint under section 501"-suggests by comparison with § 505(a)(2) that Congress did not intend to treat all § 504(a) defendants alike with regard to remedies. Had Congress wished to make Title VI remedies available broadly for all § 504(a) violations, it could easily have used language in § 505(a)(2) that is as sweeping as the "any complaint" language contained in § 505(a)(1).194But our analysis need not end there. In the Civil Rights Act of 1991, Congress made perfectly plain that compensatory damages would be available for certain violations of § 501 by the Federal Government (as well as other § 501 defendants), subject to express limitations:"In an action brought by a complaining party under the powers, remedies, and procedures set forth in ... section 794a(a)(1) of title 29 [which applies to violations of § 501 by the Federal Government] ... against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) under section 791 of title 29 and the regulations implementing section 791 of title 29, or who violated the requirements of section 791 of title 29 or the regulations implementing section 791 of title 29 concerning the provision of a reasonable accommodation, ... the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section ... from the respondent." Rev. Stat. § 1977A, as added, 105 Stat. 1072, 42 U. S. C. § 1981a(a)(2).The Act's attorney's fee provision makes a similar point. Section 505(b) provides that, "[i]n any action or proceeding to enforce or charge a violation of a provision of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 29 U. S. C. § 794a(b). This provision likewise illustrates Congress' ability to craft a clear waiver of the Federal Government's sovereign immunity against particular remedies for violations of the Act. The clarity of these provisions is in sharp contrast to the waiver Lane seeks to tease out of §§ 504 and 505(a)(2) of the Act.Lane insists nonetheless that § 505(a)(2) compels a result in his favor, arguing that the Department of Transportation is a "Federal provider" within the meaning of § 505(a)(2) and thus is liable for a compensatory damages award regardless195of our resolution of the broader sovereign immunity question. Reply Brief for Petitioner 8-9. We disagree. The Department of Transportation, whatever its other activities, is not a "Federal provider" of financial assistance with respect to the Merchant Marine Academy, which the Department itself administers through the Maritime Administration. At oral argument, Lane's counsel effectively conceded as much. See Tr. of Oral Arg. 7 (acknowledging that the Department of Transportation is not a federal provider with respect to the Academy "because of this Court's decision in [Department of Transp. v. Paralyzed Veterans of America, 477 U. S. 597, 612 (1986)], which indicates that funds that are actually provided to an entity that the Federal Government manages itself, which is what DOT does here ... for the Merchant Marine Academy," do not render the agency a "Federal provider"). Lane argues that § 505(a)(2)'s reference to "Federal provider[s]" is not limited by the text of the provision itself to the funding activities of those providers, but instead reaches "any act" of an agency that serves as a "Federal provider" in any context. Reply Brief for Petitioner 9, and n. 11. In light of our established practice of construing waivers of sovereign immunity narrowly in favor of the sovereign, however, we decline Lane's invitation to read the statutory language so broadly.Lane next encourages us to look not only at the language of the liability and remedies provisions but at the larger statutory scheme, from which he would discern congressional intent to "level the playing field" by subjecting the Federal Government to the same remedies as any and all other § 504(a) defendants. A statutory scheme that would subject the Federal Government to awards of injunctive relief, attorney's fees, and monetary damages when it acts as a "Federal provider," but would not subject it to monetary damages awards when, and only when, a federal Executive agency itself commits a violation of § 504(a), Lane posits, is so illogi-196cal as to foreclose the conclusion that Congress intended to create such a scheme.The statutory scheme on which Lane hinges his argument is admittedly somewhat bewildering. But the lack of perfect correlation in the various provisions does not indicate, as Lane suggests, that the reading proposed by the Government is entirely irrational. It is plain that Congress is free to waive the Federal Government's sovereign immunity against liability without waiving its immunity from monetary damages awards. The Administrative Procedure Act (APA) illustrates this nicely. Under the provisions of the APA, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute," is expressly authorized to bring "[a]n action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority." 5 U. S. C. § 702 (emphasis added).In any event, Lane's "equal treatment" argument largely misses the crucial point that, when it comes to an award of money damages, sovereign immunity places the Federal Government on an entirely different footing than private parties. Petitioner's reliance on Franklin v. Gwinnett County Public Schools, 503 U. S. 60 (1992), then, is misplaced. In Franklin, we held only that the implied private right of action under Title IX of the Education Amendments of 1972 supports a claim for monetary damages. "[A]bsent clear direction to the contrary by Congress," we stated, "the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute." Id., at 70-71. Franklin, however, involved an action against nonfederal defendants under Title IX. Although the Government does not contest the propriety of the injunctive relief Lane obtained, the Federal Government's sovereign immunity prohibits wholesale application of Franklin to ac-197tions against the Government to enforce § 504(a). As the Government puts it, "[w]here a cause of action is authorized against the federal government, the available remedies are not those that are 'appropriate,' but only those for which sovereign immunity has been expressly waived." Brief for Respondents 28.And Lane's "equal treatment" argument falters as well on a point previously discussed: Section 505(a)(2) itself indicates congressional intent to treat federal Executive agencies differently from other § 504(a) defendants for purposes of remedies. See supra, at 192-193. The existence of the § 505(a) (2) remedies provision brings this case outside the "general rule" we discussed in Franklin: This is not a case in which "a right of action exists to enforce a federal right and Congress is silent on the question of remedies." 503 U. S., at 69. Title IX, the statute at issue in Franklin, made no mention of available remedies. Id., at 71. The Rehabilitation Act, by sharp contrast, contains a provision labeled "Remedies and attorney fees," § 505. Congress has thus spoken to the question of remedies in § 505(a)(2), the only "remedies" provision directly addressed to § 504 violations, and has done so in a way that suggests that it did not in fact intend to waive the Federal Government's sovereign immunity against monetary damages awards for Executive agencies' violations of § 504(a). Given the existence of a statutory provision that is directed precisely to the remedies available for violations of § 504, it would be a curious application of our sovereign immunity jurisprudence to conclude, as the dissent appears to do, see post, at 209-210, that the lack of clear reference to Executive agencies in any express remedies provision indicates congressional intent to subject the Federal Government to monetary damages.IIIEven if §§ 504(a) and 505(a)(2) together do not establish the requisite unequivocal waiver of immunity, Lane insists, the "equalization" provision contained in § 1003 of the Reha-198bilitation Act Amendments of 1986, 100 Stat. 1845, 42 U. S. C. § 2000d-7, reveals congressional intent to equalize the remedies available against all defendants for § 504(a) violations. Section 1003 was enacted in response to our decision in Atascadero State Hospital v. Scanlon, 473 U. S. 234 (1985), where we held that Congress had not unmistakably expressed its intent to abrogate the States' Eleventh Amendment immunity in the Rehabilitation Act, and that the States accordingly were not "subject to suit in federal court by litigants seeking retroactive monetary relief under § 504." Id., at 235. By enacting § 1003, Congress sought to provide the sort of unequivocal waiver that our precedents demand. That section provides:"(1) A State shall not be immune under the Eleventh Amendment ... from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance."(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State." 42 U. S. C. § 2000d-7(a).The "public entities" to which § 1003 refers, Lane concludes, must include the federal Executive agencies named in § 504(a), and those agencies must be subject to the same remedies under § 504(a), including monetary damages, as are private entities.Although Lane's argument is not without some force, § 1003 ultimately cannot bear the weight Lane would assign199it. The equalization provision is susceptible of at least two interpretations other than the across-the-board leveling of liability and remedies that Lane proposes. Under the first such interpretation, as proposed by the Government, the "public ... entit[ies]" to which the statute refers are "the non-federal public entities receiving federal financial assistance that are covered by" each of the statutes to which § 1003(a)(1) refers: The Rehabilitation Act, Title VI, Title IX, and the Age Discrimination Act of 1975. Brief for Respondents 22. The Government's suggestion is a plausible one: that § 1003(a)(2) refers to municipal hospitals, local school districts, and the like, which are unquestionably subject to each of the Acts listed in § 1003(a)(1). Section 504 alone among the listed Acts, however, extends its coverage to "program[s] or activit[ies] conducted by any Executive agency."Section 1003 is also open to a second interpretation, one similar to the "leveling" interpretation suggested by petitioner: By reference to "public or private entit[ies]," Congress meant only to subject the States to the scope of remedies available against either public or private § 504 defendants, whatever the lesser (or perhaps the greater) of those remedies might be. Lane's reading of the statuteone that would suggest that all § 504(a) defendants, including the States, are subject to precisely the same remedies for violations of that provision-would effectively read out of the statute the very language on which he seeks to rely. That is, if the same remedies are available against all governmental and nongovernmental defendants under § 504(a), the "public or private" language is entirely superfluous. Congress could have achieved the result Lane suggests simply by subjecting States to the same remedies available against "every other entity," without further elaboration. The fact that § 1003(a)(2) itself separately mentions public and private entities suggests that there is a distinction to be made in200terms of the remedies available against the two classes of defendants.Although neither of these conceivable readings of § 1003(a)(2) is entirely satisfactory, their existence points up a fact fatal to Lane's argument: Section 1003(a) is not so free from ambiguity that we can comfortably conclude, based thereon, that Congress intended to subject the Federal Government to awards of monetary damages for violations of § 504(a) of the Act. Given the care with which Congress responded to our decision in Atascadero by crafting an unambiguous waiver of the States' Eleventh Amendment immunity in § 1003, it would be ironic indeed to conclude that that same provision "unequivocally" establishes a waiver of the Federal Government's sovereign immunity against monetary damages awards by means of an admittedly ambiguous reference to "public ... entit[ies]" in the remedies provision attached to the unambiguous waiver of the States' sovereign immunity.For the reasons stated, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed.It is so ordered

OCTOBER TERM, 1995SyllabusLANE v. PENA, SECRETARY OF TRANSPORTATION, ETAL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 95-365. Argued April 15, 1996-Decided June 20,1996Respondents terminated petitioner Lane's enrollment at the United States Merchant Marine Academy on the ground that his recently diagnosed diabetes mellitus rendered him ineligible to be commissioned for service in the Navy/Merchant Marine Reserve Program or as a Naval Reserve Officer. Alleging that his separation from the Academy violated § 504(a) of the Rehabilitation Act of 1973-which prohibits, among other things, discrimination on the basis of disability "under any program or activity conducted by any Executive agency"-Lane brought this suit seeking reinstatement to the Academy, compensatory damages, and other remedies. The District Court ordered him reinstated, but ultimately ruled that he must be denied compensatory damages because Congress has not waived the Federal Government's sovereign immunity against monetary damages awards for § 504(a) violations. The Court of Appeals summarily affirmed.Held: Congress has not waived the Government's sovereign immunity against monetary damages awards for § 504(a) violations. Pp. 191-200.(a) The requisite "unequivocal expression" of congressional intent to grant such a waiver, see, e. g., Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95, is lacking in the text of § 505(a)(2), which decrees that the remedies available for violations of Title VI of the Civil Rights Act of 1964-including monetary damages awards, see, e. g., Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 70-apply also to § 504(a) violations "by any ... Federal provider of [financial] assistance." This provision makes no mention whatsoever of "program[s] or activit[ies] conducted by any Executive agency," the plainly more far-reaching language Congress employed in § 504(a) itself. The lack of the necessary clarity of expression in § 505(a)(2) is underscored by the precision with which Congress has waived the Government's sovereign immunity in §§ 501 and 505(a)(1) of the Act and in the Civil Rights Act of 1991. Lane's contention that the larger statutory scheme indicates congressional intent to "level the playing field" by subjecting the Government to the same remedies as any and all other § 504(a) defendants is rejected. Franklin, supra, at 69-71, distinguished. Pp. 191-197.188Syllabus(b) The "equalization" provision of § 1003 of the Rehabilitation Act Amendments of 1986-which, after waiving the States' Eleventh Amendment immunity from federal-court suit for violations of § 504 and other civil rights statutes, specifies that legal and equitable remedies are available in such a suit "to the same extent as ... in the suit against any public or private entity other than a State"-does not reveal congressional intent to equalize the remedies available against all defendants for § 504(a) violations, such that federal agencies, like private entities, must be subject to monetary damages. Although Lane's argument to this effect is not without force, it is ultimately defeated by the existence of at least two other conceivable, if not entirely satisfactory, interpretations of the equalization provision: (1) that "public ... entit[ies]" refers to the nonfederal public entities receiving federal financial assistance that are covered by each of the referenced federal statutes; and (2) that "public or private entit[ies]" is meant only to subject the States to the scope of remedies available against either public or private § 504 defendants, whatever the lesser (or perhaps the greater) of those remedies might be. Pp. 197-200.Affirmed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BREYER, J., joined, post, p.200.Walter A. Smith, Jr., argued the cause for petitioner.With him on the briefs were Daniel B. Kohrman, Audrey J. Anderson, Arthur B. Spitzer, and Steven R. Shapiro.Beth S. Brinkmann argued the cause for respondents.With her on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Barbara C. Biddle, and Christine N. Kohl. **Linda D. Kilb, Arlene B. Mayerson, and Patricia Shiu filed a brief for the American Association of Retired Persons et al. as amici curiae urging reversal.Michael A. Greene and Jerry W Lee filed a brief for the American Diabetes Association as amicus curiae.189Full Text of Opinion

1958_155

MR. JUSTICE HARLAN delivered the opinion of the Court.On September 24, 1944, the barge Peter B, carrying a cargo of molasses, sank in 30 feet of water at dockside in Texas City, Texas. Although the barge was eventually raised, the cargo, allegedly valued at some $26,000, was largely or totally lost.Petitioner, Southwestern Sugar & Molasses Co., charterer of the barge and owner of the cargo, filed a libel against respondent, River Terminals Corporation, a water carrier certificated under Part III of the Interstate Commerce Act, 49 U.S.C. § 901 et seq., seeking recovery of damages for the loss of cargo and for expenses occasioned in the raising and repair of the barge, which had been towed by respondent from Reserve, Louisiana, to Texas City, and there berthed. The District Court first tried the issue of liability, separating the question of damages for subsequent determination, and held that the barge had sunk and the cargo had been lost as a result of respondent's negligence in the navigation or management of the tow, and that respondent was liable for all damage to the cargo and for the cost of raising and repairing the barge. [Footnote 1] 153 F. Supp. 923. Page 360 U. S. 413Respondent appealed from the interlocutory decree adjudging liability, 28 U.S.C. § 1292(3), urging that the trial court had erred in holding (1) that petitioner had an interest in the Peter B sufficient to entitle it to maintain a libel for damage thereto, (2) that the sinking of the barge and loss of cargo were due to respondent's negligence, (3) that § 3 of the Harter Act [Footnote 2] did not establish respondent's freedom from liability as a matter of law, and (4) that certain provisions in tariffs filed by respondent with the Interstate Commerce Commission, which purported to release respondent from liability for its negligence, and which were assumed by the District Court to have been applicable to the transportation here involved, were invalid as a matter of law and constituted no defense to the libel. [Footnote 3]The Court of Appeals did not consider any of the first three claims of error, although, if sustained, they would wholly have disposed of the case. Instead, the court directed its attention to respondent's contention that the exculpatory clause in respondent's tariff, incorporated by Page 360 U. S. 414 reference in the bill of lading issued in connection with the transportation, must be given effect. The court concluded that, because the clause was embodied in a tariff filed with the ICC, it could not in the first instance declare it invalid, but was bound to give it effect unless and until the Commission, after appropriate investigation, reached a contrary conclusion. [Footnote 4] Accordingly, it reversed the judgment of the District Court"in order to afford . . . [petitioner] reasonable opportunity to seek administrative action before the Commission to test the validity of the challenged provision, otherwise to give full effect to the exculpatory clause. . . ."253 F.2d 922, 928.Petitioner sought certiorari, contending that the refusal of the Court of Appeals to strike down the exculpatory clause as a matter of law was contrary to the decision of this Court in Bisso v. Inland Waterways Corporation, 349 U. S. 85, where it was held that a clause in a private contract of towage purporting altogether to exculpate the tug from liability for its own negligence was void as against public policy. We granted the writ. 358 U.S. 811.At the outset, we hold that the Court of Appeals erred in ordering what was, in substance, a referral of the issue of the validity of the exculpatory clause to the Commission without first passing on the other claims of error tendered by respondent below. As we have noted, those other claims, if accepted, would have required a reversal of the judgment of the District Court and the entry of judgment for respondent. The case had been fully argued before the Court of Appeals, and those claims were plainly ripe for decision. Page 360 U. S. 415Under these circumstances, we think that sound and expeditious judicial administration should have led the Court of Appeals not to leave these issues undecided while a course was charted requiring the institution and litigation of an altogether separate proceeding before the ICC -- a proceeding which might well assume substantial dimensions -- to test the sufficiency of only one of respondent's several defenses. If, in consequence of findings made by the Commission in such a proceeding it should be determined that the exculpatory clause cannot be given effect, the Court of Appeals would then have to decide the very questions which it can now decide without the necessity for any collateral proceeding. Conversely, a present ruling on those other questions might entirely obviate the necessity for proceedings in the Commission which would further delay the final disposition of this already protracted litigation. We conclude, therefore, that the Court of Appeals should have passed upon those issues as to which the expert assistance of the ICC is concededly not appropriate before invoking the processes of the Commission.Despite the fact that disposition of respondent's other claims by the Court of Appeals may ultimately render moot the question of the validity of the exculpatory clause as a defense in the circumstances of this case, we deem it appropriate now to review the holding of that court that the exculpatory clause was not void as a matter of law. Were the Court of Appeals, on remand, to decide the other questions tendered by respondent adversely to it, it would otherwise then be necessary for petitioner once more to seek review here on this very question. The issue is one of importance in the development of the law maritime, as to which we have large responsibilities, constitutionally conferred; it is squarely presented on the record before us; and the exigencies of this litigation clearly Page 360 U. S. 416 call for its resolution at this stage. Accordingly, to this question we now turn.In Bisso, this Court held that a towboat owner might not, as a defense to a suit alleging loss due to negligent towage, rely on a contractual provision which purported to exempt the towboat altogether from liability for negligent injury to its tow. There, a barge, while being towed on the Mississippi River by a steam towboat under a private towage contract, was caused by the negligence of those operating the towboat to collide with a bridge pier and sink. The Court reviewed prior cases in the field, and concluded that the conflict of decision found in those cases should be resolved by declaring private contractual provisions of the kind there involved altogether void as contrary to "public policy." The Court relied on "two main reasons" for its conclusion, (1) that such a rule was necessary "to discourage negligence," and (2) that the owner of the tow required protection from "others who have power to drive hard bargains." As was pointed out explicitly in a concurring opinion, the Court's decision was perforce reached without consideration of particularized economic and other factors relevant to the organization and operation of the tugboat industry.Petitioner argues that Bisso is dispositive of this case on the theory that an inherently illegal condition gains nothing from being filed as part of a tariff with the Commission. [Footnote 5] We think that this reasoning begs the true Page 360 U. S. 417 question here presented, which is whether considerations of public policy which may be called upon by courts to strike down private contractual arrangements between tug and tow are necessarily applicable to provisions of a tariff filed with, and subject to the pervasive regulatory authority of, an expert administrative body. In Bisso, the clause struck down was part of a contract over the terms of which the ICC, the body primarily charged by Congress with the regulation of the terms and conditions upon which water carriers subject to its jurisdiction shall offer their services, had no control. In the present case, the courts below have assumed, and petitioner does not challenge, the applicability to the transportation which resulted in loss to petitioner of a duly filed tariff containing this exculpatory clause.In these circumstances, we would be moving too fast were we automatically to extend the rule of Bisso to govern the present case. [Footnote 6] For all we know, it may be that Page 360 U. S. 418 the rate specified in the relevant tariff is computed on the understanding that the exculpatory clause shall apply to relieve the towboat owner of the expense of insuring itself against liability for damage caused tows by the negligence of its servants, and is a reasonable rate so computed. If that were so, it might be hard to say that public policy demands that the tow should at once have the benefit of a rate so computed, and be able to repudiate the correlative obligation of procuring its own insurance with knowledge that the towboat may be required to respond in damages for any injury caused by its negligence despite agreement to the contrary. For so long as the towboat's rates are at all times subject to regulatory control, prospectively and by way of reparation, the possibility of an overreaching whereby the towboat is at once able to exact high rates and deny the liabilities which transportation at such rates might be found fairly to impose upon it can be aborted by the action of the ICC. The rule of Bisso, however applicable where the towboat owner has the "power to drive hard bargains," may well call for modification when that power is effectively controlled by a pervasive regulatory scheme. [Footnote 7] Page 360 U. S. 419Further, it may be noted that the clause relied on in this case is, by its terms, restricted to the situation where shipments are transported in barges furnished by others than the towboat owner. Whatever may be the considerations involved in forbidding a towboat to contract for exemption from liability for negligence in other circumstances, it may be that different considerations apply when the towboat moves barges which are delivered to it loaded, so that it never has an opportunity adequately to inspect them below the waterline, and which, if defective, may create emergency situations where a small degree of negligence can readily lead to very substantial monetary loss. [Footnote 8] If the peculiar hazards involved in towing a barge supplied by the shipper are great, and the methods of guarding against those hazards uncertain, it may be that, in an area where Congress has not, expressly or by fair implication, declared for a particular result, the federal courts should creatively exercise their responsibility for the development of the law maritime to Page 360 U. S. 420 fashion a particularized rule to deal with particularized circumstances. [Footnote 9]We may assume that the question whether a clause of this kind offends against public policy is one appropriate ultimately for judicial, rather than administrative, resolution. But that does not mean that the courts must therefore deny themselves the enlightenment which may be had from a consideration of the relevant economic and other facts which the administrative agency charged with regulation of the transaction here involved is peculiarly well equipped to marshal and initially to evaluate. As was said in Far East Conference v. United States, 342 U. S. 570, 342 U. S. 574-575, this Court has frequently recognized and applied". . . a principle, now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence Page 360 U. S. 421 serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure."We hold that the Court of Appeals correctly ruled that the exculpatory clause here at issue should not be struck down as a matter of law, and that the parties should be afforded a reasonable opportunity to obtain from the ICC, in an appropriate form of proceeding, a determination as to the particular circumstances of the tugboat industry which lend justification to this form of clause, if any there be, or which militate toward a rule wholly invalidating such provisions regardless of the fact that the carrier which seeks to invoke them is subject to prospective and retrospective rate regulation."Cases are not decided, nor the law appropriately understood, apart from an informed and particularized insight into the factual circumstances of the controversy under litigation."Federal Maritime Board v. Isbrandtsen Co., 356 U. S. 481, 356 U. S. 498. This principle has particular force when the courts are asked to strike down on grounds of public policy a contractual arrangement on its face consensual.The case is remanded to the Court of Appeals with instructions to pass upon the first three assignments of error specified by respondent in its appeal from the judgment of the District Court. Should resolution of those issues not dispose of the case, the Court of Appeals is directed to remand the case to the District Court with instructions to hold it in abeyance while the parties seek Page 360 U. S. 422 the views of the ICC, in any form of proceeding which that body may deem appropriate, as to the circumstances bearing on the validity of respondent's exculpatory clause in the context of this litigation, and for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtSouthwestern Sugar Co. v. River Terminals, 360 U.S. 411 (1959)Southwestern Sugar & Molasses Co., Inc. v. River Terminals Corp.No. 155Argued March 3, 1959Decided June 22, 1959360 U.S. 411SyllabusOn petitioner's libel against respondent, a common carrier by water certificated by the Interstate Commerce Commission, a Federal District Court held respondent liable to petitioner for damages for loss of its cargo and for expenses incurred in raising and repairing a barge chartered by petitioner and towed by respondent from Louisiana to Texas, where it sank at dockside. On appeal, respondent urged that the District Court had committed four errors. Although all had been fully argued and were ripe for decision, the Court of Appeals did not pass on three of respondent's claims which, if sustained, would have disposed of the case, but it reversed the judgment and remanded the case to the District Court with directions to give effect to an exculpatory clause in a tariff filed by respondent with the Interstate Commerce Commission unless petitioner should obtain from the Commission within a reasonable time a ruling that such clause was invalid.Held:1. The Court of Appeals erred in ordering what was, in substance, a referral of the issue of the validity of the exculpatory clause to the Commission without first passing on the other claims of error tendered by respondent. Pp. 360 U. S. 414-415.2. The Court of Appeals correctly ruled that the exculpatory clause here at issue should not be struck down as a matter of law, and that the parties should be afforded a reasonable opportunity to obtain the views of the Commission if necessary to a disposition of the case. Pp. 360 U. S. 415-421.3. The case is remanded to the Court of Appeals with instructions to pass on respondent's first three assignments of error. Should the resolution of those issues not dispose of the case, the Court of Appeals will remand the case to the District Court with instructions to hold it in abeyance while the parties seek the Commission's views as to factors bearing on the validity of the exculpatory clause. Pp. 360 U. S. 421-422.253 F.2d 922, cause remanded to Court of Appeals with instructions. Page 360 U. S. 412

1980_79-1157

JUSTICE BRENNAN delivered the opinion of the Court.The Tax Injunction Act of 1937 provides that"[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State."28 U.S.C. § 1341. The question we must decide in this case is whether an Illinois remedy which requires property owners contesting their property taxes to pay under protest and, if successful, obtain a refund without interest in two years is "a plain, speedy and efficient remedy" within the meaning of the Act. [Footnote 1]ILaSalle National Bank is trustee of a land trust for Patricia Cook, [Footnote 2] the beneficial owner of property improved Page 450 U. S. 506 with a 22-unit apartment building in the all-black low-income community of East Chicago Heights, Ill., located in Cook County. [Footnote 3] Respondent alleged that, as of January 1, 1977, her property had a fair market value of $46,000. In accordance with a Cook County ordinance, her property should have been assessed for property tax purposes at 33% of fair market value -- $15,180. [Footnote 4] Instead, for the 1977 tax year, the Page 450 U. S. 507 County Assessor assessed the property at $52.150. As a result, respondent's property tax liability was $6,106 instead of $1,775, an overcharge of $4,331.Respondent also claimed that the County Assessor "knowingly as official policy or governmental custom maintained, adopted or promulgated policy statements, regulations, decisions and systems of assessment which have produced egregious disparities in assessments throughout the County." Plaintiff's Complaint � 11, App. 7. In particular, she cited a study of the Illinois Department of Local Government Affairs showing that, for 1975, property in the same class as respondent's was assessed as low as 3% and as high as 973% of fair market value. She furthermore alleged that such disparities in assessments were "far greater in number and size in older, inner city and county areas, owned, inhabited or used to a larger extent by minorities and poorer people." Ibid. Finally, she contended that the Assessor knew that she had previously challenged the 1974, 1975, and 1976 assessments of her property. [Footnote 5] Page 450 U. S. 508Respondent first exhausted her administrative remedy by appealing unsuccessfully for a correction of her 1977 assessment before the Cook County Board of Appeals. Ill.Rev.Stat., ch. 120, 594(1), 596 597 598, 599 (1977). [Footnote 6] Her only remaining state remedy was to pay the contested tax under protest, and then to file an objection to the Cook County Collector's Application for Judgment before the Circuit Court of Cook County -- in effect, a reverse suit for refund. [Footnote 7] Page 450 U. S. 509 §§ 675, 716. Although Illinois' statutory refund procedure could theoretically provide a final resolution of the dispute Page 450 U. S. 510 within one year of payment of the tax under protest, [Footnote 8] respondent alleged that the customary delay from the time of payment until the receipt of refund upon successful protest is two years. [Footnote 9] The tax refund is not accompanied by a payment of interest. [Footnote 10] Clarendon Associates v. Korzen, 56 Ill. 2d 101, 109, 306 N.E.2d 299, 303 (1973); Lakefront Realty Corp. v. Lorenz, 19 Ill. 2d 415, 422-423, 167 N.E.2d 236, 240-241 (1960).Respondent refused to pay her 1977 property taxes, and instead brought this 42 U.S.C. § 1983 action in the United States District Court for the Northern District of Illinois, seeking preliminary and permanent injunctive relief to prevent petitioner Rosewell [Footnote 11] from publishing an advertisement of notice and the intended date of Application for Judgment, from applying for judgment and order of sale against her property, and from selling it. Respondent contended that, by requiring payment of taxes 3 1/2 times the lawful amount, petitioners deprived her of equal protection and due process secured by the Fourteenth Amendment of the United States Constitution, and violated state constitutional and statutory rights as well. Respondent further alleged that she had no plain, speedy, and efficient remedy in the Illinois courts.Petitioners moved to dismiss, claiming that actions challenging state tax assessments are not cognizable under Page 450 U. S. 511 42 U.S.C. § 1983 and 28 U.S.C. § 1343, [Footnote 12] and that Illinois' statutory refund procedure is a plain, speedy, and efficient remedy even though it fails to pay interest. Defendants' Motion to Dismiss, App. 11.The District Court denied respondent's motion for a preliminary injunction and dismissed the complaint for want of jurisdiction under 28 U.S.C. § 1341. [Footnote 13] App. to Pet. for Cert. 20a-21a. However, the court enjoined petitioner Rosewell from proceeding to judgment and order of sale against respondent's property pending appeal to the United States Court of appeals for the Seventh Circuit. Fed.Rule Civ. Proc. 62(c). The Court of Appeals reversed the District Court, holding that the Tax Injunction Act did not bar federal district court jurisdiction because Illinois' procedure of no-interest refunds after two years was not "a plain, speedy and efficient remedy." 604 F.2d 530, 536-537 (1979). [Footnote 14] A petition for rehearing and suggestion for rehearing en banc was denied. Id. at 530. We granted certiorari, 445 U.S. 925 (1980), and now reverse. Page 450 U. S. 512IIAt the outset, it must be recognized that the issue we decide is one of statutory construction. Our task is to determine whether the Illinois refund procedure constitutes "a plain, speedy and efficient remedy . . . in the courts of such State" within the meaning of the Tax Injunction Act, 28 U.S.C. § 1341, thereby barring federal jurisdiction to grant injunctive relief. Our review of the plain language of the Act, its legislative history, and its underlying purpose persuades us that the Court of Appeals erred in holding that the Illinois remedy is not "a plain, speedy and efficient remedy."AThe starting point of our inquiry is the plain language of the statute itself. Reiter v. Sonotone Corp., 442 U. S. 330, 442 U. S. 337 (1979); 62 Cases of Jam v. United States, 340 U. S. 593, 340 U. S. 596 (1951). See EPA v. National Crushed Stone Assn., 449 U. S. 64, 449 U. S. 73 (1980). The Tax Injunction Act generally prohibits federal district courts from enjoining state tax administration except in instances where the state court remedy is not "plain, speedy and efficient." On its face, the "plain, speedy and efficient remedy" exception appears to require a state court remedy that meets certain minimal procedural criteria. The Court has only occasionally sought to define the meaning of the exception since passage of the Act in 1937. When it has done so, however the Court has emphasized a procedural interpretation in defining both the entire phrase and its individual word components.Discussing the general meaning of the phrase, the Court, in Tully v. Griffin, Inc., 429 U. S. 68, 429 U. S. 74 (1976), described its "basic inquiry" as"whether, under New York law, there is a 'plain, speedy and efficient' way for [the taxpayer] to press its constitutional claims while preserving the right to challenge the amount of tax due."More directly, in Great Lakes Page 450 U. S. 513 Dredge & Dock Co. v. Huffman, 319 U. S. 293, 319 U. S. 300-301 (1943), the Court stated:"[I]t is the court's duty to withhold such relief when, as in the present case, it appears that the state legislature has provided that on payment of any challenged tax to the appropriate state officer, the taxpayer may maintain a suit to recover it back. In such a suit, he may assert his federal rights and secure a review of them by this Court. This affords an adequate remedy to the taxpayer, and at the same time leaves undisturbed the state's administration of its taxes."(Emphasis added.) [Footnote 15] See Hillsborough v. Cromwell, 326 U. S. 620, 326 U. S. 625 (1946) (issue is "whether the State affords full protection to the federal rights").What little can be gleaned from the legislative history of the Act on the phrase "plain, speedy and efficient remedy" lends further support to a procedural interpretation. Senator Bone, the Act's primary sponsor, referred to the "plain, speedy and efficient remedy" provision and then stated: "Thus, a full hearing and judicial determination of the controversy is assured." 81 Cong.Rec. 1416 (1937). The Senate Report accompanying the Act mirrors Senator Bone's understanding, adding that "[a]n appeal to the Supreme Court of the United State is available, as in other cases." S.Rep. No. 1035, 75th Cong., 1st Sess., 2 (1937).The phrase "a plain, speedy and efficient remedy" in the Tax Injunction Act was "modeled" after verbatim language Page 450 U. S. 514 in the Johnson Act, of 1934, [Footnote 16] an Act prohibiting federal court interference with orders issued by state administrative agencies to public utilities. As Senator Bone made clear, "[m]ost of the arguments which were used in support of the Johnson Act . . . apply in like manner" to the Tax Injunction Act. 81 Cong.Rec. 1416 (1937). Our examination of the Johnson Act and its legislative history reveals the same procedural emphasis as found in the Tax Injunction Act and its legislative history. As gloss on the words "a plain, speedy and efficient remedy," the Senate Report on the Johnson Act spoke of state laws that provided for an appeal from the determination of the state agency by any dissatisfied party. S.Rep. No. 701, 72d Cong., 1st Sess., 1-2 (1932). The Senate Report continued:"This appeal is taken to the courts of the State, thus giving to both sides of any controversy which may arise a full hearing and judicial determination of the controversy."Id. at 2 (emphasis added).There is no doubt that the Illinois state court refund procedure provides the taxpayer with a "full hearing and judicial determination" at which she may raise any and all constitutional objections to the tax. LaSalle National Bank v. County of Cook, 57 Ill. 2d 318, 324, 312 N.E.2d 252, 255-256 (1974). Appeal to the higher Illinois courts is authorized, Ill.Rev.Stat., ch. 120, § 675 (1977), and review is ultimately available in this Court, 28 U.S.C. § 1257. Respondent does not allege any procedural defect in the Illinois remedy, other than delay, [Footnote 17] that would preclude preservation and consideration Page 450 U. S. 515 of her federal rights, since she is free to raise her equal protection and due process federal constitutional objections during the Application for Judgment proceedings before the Circuit Court of Cook County. [Footnote 18] Rather, respondent's argument -- that Illinois' failure to pay interest on the tax refund makes the remedy not "plain, speedy and efficient" -- appears to address a more substantive concern. Whether she has any "federal right" to receive interest -- a right she has not asserted and on which we express no view -- it would appear that she could assert this right in the state court proceeding. The procedural mechanism for correction of her tax bill remains the same, however, whether interest is paid or not. [Footnote 19] Page 450 U. S. 516BA procedural interpretation of the phrase "a plain, speedy and efficient remedy," and the procedural sufficiency of Illinois' remedy, are supported further by analysis of the phrase's individual words. According to the 1934 edition of Webster's New International Dictionary, plain means "clear" or "manifest," speedy means "quick," efficient means "characterized by effective activity," and a remedy is the "legal means to recover a right . . . or obtain redress for . . . a wrong." Webster's New International Dictionary of the English Language 819, 1878, 2106, 2418 (2d ed.1934). [Footnote 20]While the Court has never addressed the meaning of the word "speedy," it has interpreted the words "plain" and "efficient." Thus, the Court suggested that "uncertainty Page 450 U. S. 517 concerning a State's remedy may make it less than plain' under 28 U.S.C. § 1341." Tully v. Griffin, Inc., 429 U.S. at 429 U. S. 76. Earlier cases, without making a direct connection to the word "plain," have held that "uncertainty" surrounding a state court remedy lifts the bar to federal court jurisdiction. Hillsborough v. Cromwell, 326 U.S. at 326 U. S. 625-626. [Footnote 21] Respondent has made no argument that the Illinois refund procedure is uncertain or otherwise unclear. There is no question that, under the Illinois procedure, the court will hear and decide any federal claim. Paying interest or eliminating delay would not make the remedy any more "plain."This Court's interpretation of the word "efficient" has also stressed procedural elements. In Tully, the Court commented that"a State's remedy does not become 'inefficient' merely because a taxpayer must travel across a state line in order to resist or challenge the taxes sought to be imposed."429 U.S. at 429 U. S. 73. In addition, without explicitly mentioning the word "efficient," we have permitted federal court jurisdiction when the taxpayer's state court remedy would require a multiplicity of suits, Georgia Railroad & Banking Co. v. Redwine, 342 U. S. 299, 342 U. S. 303 (1952) (where remedy "would require the filing of over three hundred separate claims in fourteen different counties to protect the single federal claim asserted by [the taxpayer]"), or when the remedy would allow a challenge against only one of many taxing Page 450 U. S. 518 authorities, id. at 342 U. S. 301, 342 U. S. 303 (where suit-for-refund remedy applied only to state taxes, yet taxpayer railroad also wanted to challenge on the same basis taxes paid to counties, school districts, and municipalities). Because the Illinois remedy imposes no unusual hardship on respondent requiring ineffectual activity or an unnecessary expenditure of time or energy, we cannot say that it is not "efficient." [Footnote 22]This Court has never expressly discussed the meaning of the word "speedy," an issue that is squarely presented in this case. We must decide whether Illinois' refund after two years qualifies as a "speedy" remedy. "Speedy" is perforce a relative concept, and we must assess the 2-year delay against the usual time for similar litigation. It surely is no secret that state and federal trial courts have been beset by docket congestion and delay for many years. [Footnote 23] Whether Page 450 U. S. 519 this is a necessary, let alone a reasonable, condition of 20th-century litigation is beside the point: the fact of the matter is that legal conflicts are not resolved as quickly a we would like.In 1976, the median number of days from filing a complaint to disposition of a civil trial matter in 13 urban trial courts ranged from 357 to 980. National Center for State Courts, Justice Delayed 10-11 (1978). [Footnote 24] In 7 of the 13, over 30% of the civil cases took more than two years from start to finish. Id. at 13. The Cook County Circuit Court had a similar record: from 1974 to 1975, the average time from date of filing to verdict was about 40 months. U.S. Department of Justice State Court Caseload Statistics: The State of the Art 7 (1978). Federal district courts have not fared much better. As of 1980, the median time interval from filing to disposition for civil cases going to trial was 20 months; 10% of those took Page 450 U. S. 520 more than 46 months. Annual Report of the Director of the Administrative Office of the U.S. Courts 81, A-30 (1980). For the United States District Court for the Northern District of Illinois, the District in which respondent brought this suit, the median time interval was 23 months, with 10 of all cases over 53 months. Id. at A-31. [Footnote 25]Cast in this light, respondent's 2-year wait, regrettably, is not unusual. Nowhere in the Tax Injunction Act did Congress suggest that the remedy must be the speediest. [Footnote 26] The Page 450 U. S. 521 payment of interest might make the wait more tolerable, but it would not affect the amount of time necessary to adjudicate respondent's federal claims. Limiting ourselves to the circumstances of the instant case, we cannot say that respondent's 2-year delay falls outside the boundary of a "speedy" remedy. [Footnote 27] Page 450 U. S. 522CThe overall purpose of the Tax Injunction Act is consistent with the view that the "plain, speedy an efficient remedy" exception to the Act's prohibition was only designed to require that the state remedy satisfy certain procedural criteria, and that Illinois' refund procedure meets such criteria. The statute "has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations." Tully v. Griffin, Inc., 429 U.S. at 429 U. S. 73. [Footnote 28] This last consideration was the principal motivating force behind the Act: this legislation was first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes. 81 Cong.Rec. 1415 (1937) (remarks of Sen. Bone); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. at 319 U. S. 301 (Act "predicated upon the desirability of freeing, from interference by the federal courts, state procedures which authorize litigation challenging a tax after the tax has been paid"). [Footnote 29] Page 450 U. S. 523When it passed the Act, Congress knew that state tax systems commonly provided for payment of taxes under protest with subsequent refund as their exclusive remedy. The Senate Report to the Act noted:"It is the common practice for statutes of the various States to forbid actions in State courts to enjoin the collection of State and county taxes unless the tax law is invalid or the property is exempt from taxation, and these statutes generally provide that taxpayers may contest their taxes only in refund actions after payment under protest. This type of State legislation makes it possible for the States and their various agencies to survive while long, drawn-out tax litigation is in progress."S.Rep. No. 1035, 75th Cong., 1st Sess., 1 (1937). See H.R.Rep. No. 1503, 75th Cong., 1st Sess., 2 (1937). See also Matthews v. Rodgers, 284 U. S. 521, 284 U. S. 526 (1932).It is only common sense to presume that Congress was also aware that some of these same States did not pay interest on their refunds to taxpayers, following the then-familiar rule that interest in refund actions was recoverable only when expressly allowed by statute. 3 T. Cooley, Law of Taxation Page 450 U. S. 524 § 1308, pp. 2596-2597 (4th ed.1924). [Footnote 30] It would be wholly unreasonable, therefore, to construe a statute passed to limit federal court interference in state tax matters to mean that Congress nevertheless wanted taxpayers from States not paying interest on refunds to have unimpaired access to the federal courts. If Congress had meant to carve out such an expansive exception, one would expect to find some mention of it. The statute's broad prophylactic language is incompatible with such an interpretation.IIIFor the most part, respondent rests her case on the persuasiveness of a syllogism: the Tax Injunction Act is coterminous with pre-1937 federal equity treatment of challenges to state taxes; federal equity practice at that time viewed a no-interest refund remedy as inadequate; [Footnote 31] therefore, it must follow that the Tax Injunction Act would view a nointerest refund remedy as inadequate, thereby authorizing federal jurisdiction. Brief for Respondent 21. This argument Page 450 U. S. 525 also forms part of the basis for the Court of Appeals' decision. 604 F.2d at 533, n. 4. And even petitioners, Brief for Petitioners 40, suggest that the Tax Injunction Act is "a congressional confirmation of the Court's prior federal equity practice in the area of state and local taxation." [Footnote 32]We are unpersuaded. It is true that post-1937 Court cases have suggested that the Tax Injunction Act recognized and sanctioned preexisting federal equity practice. See Moe v. Salish & Kootenai Tribes, 425 U. S. 463, 425 U. S. 470 (1976); Hillsborough v. Cromwell, 326 U.S. at 326 U. S. 622-623; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. at 319 U. S. 298-299. But these cases do no more than confirm that "the statute has its roots in equity practice," Tully v. Griffin, Inc., 429 U.S. at 429 U. S. 73, and that it was a longstanding rule of federal equity to keep out of state tax matters as long as a "plain, adequate and complete remedy" could be had at law. Hillsborough v. Cromwell, supra, at 326 U. S. 622-623. Nothing in our decisions suggests that every wrinkle of federal equity practice was codified, intact, by Congress. [Footnote 33] Page 450 U. S. 526Indeed, Congress, among other things, legislated to solve an existing problem by cutting back federal equity jurisdiction. Senator Bone commented that the"existing practice of the Federal courts to entertain tax injunction suits make[s] it possible for foreign corporations to withhold from a State and its governmental subdivisions taxes in such vast amounts and for such long periods as to disrupt State and county finances, and thus make it possible for such corporations to determine for themselves the amount of taxes they will pay."81 Cong.Rec. 1416 (1937) (emphasis added). See S.Rep. No. 1035, 75th Cong., 1st Sess., 2 (1937). He furthermore noted that "[p]rovision is made that the bill is not to affect suits pending at the time of its enactment." 81 Cong.Rec. at 1415. Thus, Congress plainly did not intend to permit the federal courts, after passage of the Tax Injunction Act, to entertain suits in all cases cognizable by them prior to the Act. [Footnote 34]Furthermore, Congress did not equate § 1341's "plain, speedy and efficient" with equity's "plain, adequate and complete." Ever since the early days of Congress, this "plain, adequate and complete" standard of federal equity practice had been codified into statutory form. 1 Stat. 82. [Footnote 35] And it was not until 1948, more than 10 years after passage of the Page 450 U. S. 527 Tax Injunction Act, that the "Suits in Equity" statute was repealed. 28 U.S.C. § 384 (1946 ed.) (repealed June 25, 1948). Against this background, we will not interpret the Tax Injunction Act as substantially redundant of § 384.IVFinally, we note that the reasons supporting federal noninterference are just as compelling today as they were in 1937. If federal injunctive relief were available,"state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit, the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts."Perez v. Ledesma, 401 U. S. 82, 401 U. S. 128, n. 17 (1971) (BRENNAN, J., concurring in part and dissenting in part).The compelling nature of these considerations is underscored by the dependency of state budgets on the receipt of local tax revenues. In 1978, States derived over 61% of their revenue from property, sales, income, and other taxes. Advisory Commission on Intergovernmental Relations, Significant Features of Fiscal Federalism 53, 56 (1980). For Illinois, the percentage was even higher -- 67.4%. Ibid. The property tax is by far the most important source of tax revenue for cities and counties. For the year 1977-1978, almost 33% of all their income nationwide came from the local property tax; for Illinois' local governments, the amount was greater -- 39.2%. Id. at 78.The experience of Cook County itself demonstrates how ominous would be the potential for havoc should federal Page 450 U. S. 528 injunctive relief be widely available. The county collected over $1.5 billion in real estate taxes for the tax year 1975. Ganz & Laswell, Review of Real Estate Assessments -- Cook County (Chicago) vs. Remainder of Illinois, 11 John Marshall J.Prac. & Proc. 19, and n. 2 (1977). During the same year, the number of complaints filed with the Cook County Board of Appeals totaled 22,262. Id. at 31, n. 61. We may readily appreciate the difficulties encountered by the county should a substantial portion of its rightful tax revenue be tied up in injunction actions. [Footnote 36] If each of these complaints alleged entitlement to a refund of around $5,000, as does respondent, over $113 million in revenues potentially could be encumbered in federal court litigation. See also City of New York, Annual Report of the Tax Commission for Fiscal Year 1978-1979, p. 14 (1979) (41,449 applications for correction of taxes owed concerning 48,170 parcels of land, of which 40,793 applications concerning 47,512 parcels of land involved hearings).Accordingly, we hold that Illinois' legal remedy that provides property owners paying property taxes under protest a refund without interest in two years is "a plain, speedy and efficient remedy" under the Tax Injunction Act.Reversed

U.S. Supreme CourtRosewell v. LaSalle Nat'l Bank, 450 U.S. 503 (1981)Rosewell v. LaSalle National BankNo. 79-1157Argued November 10, 1980Decided March 24, 1981450 U.S. 503SyllabusUnder an Illinois statute, real property owners who contest their property taxes are required first to exhaust their available administrative remedy and, if unsuccessful, are then afforded a legal remedy requiring the payment of the taxes under protest and a subsequent state court challenge. The customary delay from the time of payment until the receipt of refund upon successful protest is two years, and the refund is not accompanied by a payment of interest. The beneficial owner of an apartment building in Cook County, Ill., challenged the tax assessment of her property for a certain tax year, but, after an unsuccessful administrative appeal, refused to pay the taxes and instead brought an action in Federal District Court for injunctive relief against petitioners (the Treasurer and Assessor of Cook County), alleging, inter alia, that, by requiring her to pay taxes in excess of the lawful amount, they deprived her of equal protection and due process secured by the Fourteenth Amendment. The District Court dismissed the complaint for want of jurisdiction pursuant to the Tax Injunction Act, which prohibits federal district courts from enjoining the assessment, levy, or collection of state taxes where "a plain, speedy and efficient remedy may be had in the courts of such State." The Court of Appeals reversed, holding that the Tax Injunction Act did not bar federal district court jurisdiction because Illinois' procedure of no-interest refunds after two years was not "a plain, speedy and efficient remedy."Held: The Illinois refund procedure is "a plain, speedy and efficient remedy" within the meaning of the Tax Injunction Act, thereby barring federal jurisdiction to grant injunctive relief. Pp. 450 U. S. 512-528.(a) The language of the "plain, speedy and efficient remedy" exception appears to require a state court remedy that meets certain minimal procedural criteria, and the Tax Injunction Act's legislative history supports this procedural interpretation. Here, the Illinois state court refund procedure provided the taxpayer with a "full hearing and judicial determination" at which she might raise any and all constitutional objections to the taxes, and review was authorized in the higher Illinois Page 450 U. S. 504 courts and ultimately could be obtained in this Court. She did not allege any procedural defect in the Illinois remedy, other than delay, that would preclude preservation and consideration of her federal rights, but rather alleged that Illinois' failure to pay interest on the tax refund made the remedy not "plain, speedy and efficient." Any "federal right" she might have to receive interest could be assert.ed in the state court legal proceeding. Pp. 450 U. S. 512-515.(b) With respect to whether the Illinois remedy was "plain," respondent has not alleged that the remedy is uncertain or otherwise unclear. There is no question that, under the Illinois procedure, the court will hear and decide any federal claim; paying interest or eliminating delay would not make the remedy any more "plain." Pp. 450 U. S. 516-517.(c) Because the Illinois remedy imposes no unusual hardship on the taxpayer requiring ineffectual activity or an unnecessary expenditure of time or energy, it cannot be said that it is not "efficient." Pp. 450 U. S. 517-518.(d) Assessing the 2-year delay in receiving a refund against the usual time for similar litigation, such delay is not unusual and, under the circumstances of this case, did not fall outside the boundary of a "speedy" remedy. Pp. 450 U. S. 518-521.(e) The Tax Injunction Act's overall purpose to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes is consistent with the view that the "plain, speedy and efficient remedy" exception to the Act's prohibition was only designed to require that the state remedy satisfy certain procedural criteria, and that Illinois' refund procedure meets such criteria. It would be unreasonable to construe a statute passed with such a purpose to mean that Congress nevertheless wanted taxpayers from States not paying interest on refunds to have unimpaired access to the federal courts. If Congress had meant to carve out such an expansive exception, some mention of it would be expected, and there is none. Pp. 450 U. S. 522-524.(f) Although the Tax Injunction Act had its roots in federal equity practice, nevertheless, where it appears that not every wrinkle of such practice was codified intact, but rather that Congress, among other things, legislated to solve an existing problem by cutting back federal equity jurisdiction, the Act will not be interpreted to incorporate that portion of federal equity practice arguably viewing a no-interest refund remedy as inadequate. Pp. 450 U. S. 524-526.(g) The reasons supporting federal noninterference with state tax administration -- such as the dependency of st.ate budgets on the receipt of local tax revenues and the havoc that would be caused if federal injunctive relief against collection of state or local taxes were widely Page 450 U. S. 505 available -- are just as compelling today as they were in 1937, when the Tax Injunction Act was passed. Pp. 450 U. S. 527-528.604 F.2d 530, reversed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 450 U. S. 528. STEVENS, J., filed a dissenting opinion, in which STEWART, MARSHALL, and POWELL, JJ., joined, post, p. 450 U. S. 529.

1984_84-5240

JUSTICE REHNQUIST delivered the opinion of the Court.Petitioners, the named representatives of a class of undocumented and unadmitted aliens from Haiti, sued respondent Commissioner of the Immigration and Naturalization Service (INS). They alleged, inter alia, that they had been denied parole by INS officials on the basis of race and national origin. See 711 F.2d 1455 (CA11 1983) (panel opinion) (Jean I). The en banc Eleventh Circuit concluded that any such discrimination concerning parole would not violate the Fifth Amendment to the United States Constitution because of the Government's plenary authority to control the Nation's borders. That court remanded the case to the District Court for consideration of petitioners' claim that their treatment violated INS regulations, which did not authorize consideration of race or national origin in determining whether or not an excludable alien should be paroled. 727 F.2d 957 (1984) (Jean II). We granted certiorari. 469 U.S. 1071. We conclude that the Court of Appeals should not have reached and decided the parole question on constitutional grounds, but we affirm its judgment remanding the case to the District Court.Petitioners arrived in this country sometime after May 1981, and represent a part of the recent influx of undocumented excludable aliens who have attempted to migrate from the Caribbean basin to south Florida. Section 235(b) of the Immigration and Nationality Act, 66 Stat.199, 8 U.S.C. § 1225(b), provides that"[e]very alien . . . who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer."Section 212(d)(5)(A) of the Act, 66 Stat. 188, as amended, 8 U.S.C. § 1182(d)(5)(A), authorizes the Attorney General "in his discretion" to parole into the United States any such alien applying for admission "under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest." The Page 472 U. S. 849 statute further provides that such parole shall not be regarded as an admission of the alien, and that the alien shall be returned to custody when in the opinion of the Attorney General the purposes of the parole have been served.For almost 30 years before 1981, the INS had followed a policy of general parole for undocumented aliens arriving on our shores seeking admission to this country. In the late 1970's and early 1980's, however, large numbers of undocumented aliens arrived in south Florida, mostly from Haiti and Cuba. Concerned about this influx of undocumented aliens, the Attorney General, in the first half of 1981, ordered the INS to detain without parole any immigrants who could not present a prima facie case for admission. The aliens were to remain in detention pending a decision on their admission or exclusion. This new policy of detention rather than parole was not based on a new statute or regulation. By July 31, 1981, it was fully in operation in south Florida.Petitioners, incarcerated and denied parole, filed suit in June 1981, seeking a writ of habeas corpus under 28 U.S.C. § 2241 and declaratory and injunctive relief. The amended complaint set forth two claims pertinent here. First, petitioners alleged that the INS's change in policy was unlawfully effected without observance of the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA), 5 U.S.C. § 553. Petitioners also alleged that the restrictive parole policy, as executed by INS officers in the field, violated the equal protection guarantee of the Fifth Amendment because it discriminated against petitioners on the basis of race and national origin. Specifically, petitioners alleged that they were impermissibly denied parole because they were black and Haitian.The District Court certified the class as"all Haitian aliens who have arrived in the Southern District of Florida on or after May 20, 1981, who are applying for entry into the United States and who are presently in detention pending exclusion proceedings . . . for whom an order of exclusion has Page 472 U. S. 850 not been entered. . . ."Louis v. Nelson, 544 F. Supp. 1004, 1005 (SD Fla.1982). After discovery and a 6-week bench trial the District Court held for petitioners on the APA claim, but concluded that petitioners had failed to prove by a preponderance of the evidence discrimination on the basis of race or national origin in the denial of parole. Louis v. Nelson, 544 F. Supp. 973 (1982); see also id. at 1004.The District Court held that, because the new policy of detention and restrictive parole was not promulgated in accordance with APA rulemaking procedures, the INS policy under which petitioners were incarcerated was "null and void," and the prior policy of general parole was restored to "full force and effect," 544 F. Supp. at 1006. The District Court ordered the release on parole of all incarcerated class members, about 1,700 in number. See ibid. Additionally, the court enjoined the INS from enforcing a rule of detaining unadmitted aliens until the INS complied with the APA rulemaking process, 5 U.S.C. §§ 552, 553.Under the District Court's order, the INS retained the discretion to detain unadmitted aliens who were deemed a security risk or likely to abscond, or who had serious mental or physical ailments. The court's order also subjected the paroled class members to certain conditions, such as compliance with the law and attendance at required INS proceedings. The court retained jurisdiction over any class member whose parole might be revoked for violating the conditions of parole.Although all class members were released on parole forthwith, the District Court imposed a 30-day stay upon its order enjoining future use of the INS's policy of incarceration without parole. The purpose of this stay was to permit the INS to promulgate a new parole policy in compliance with the APA. The INS promulgated this new rule promptly. See 8 CFR § 212.5 (1985); 47 Fed.Reg. 30044 (1982), as amended, 47 Fed.Reg. 46494 (1982). Both petitioners and respondents Page 472 U. S. 851 agree that this new rule requires even-handed treatment and prohibits the consideration of race and national origin in the parole decision. Except for the initial 30-day stay, the District Court's injunction against the prior INS policy ended the unwritten INS policy put into place in the first half of 1981. Some 100 to 400 members of the class are currently in detention; most of these have violated the terms of their parole, but some may have arrived in this country after the District Court's judgment. [Footnote 1] It is certain, however, that no class member is being held under the prior INS policy which the District Court invalidated. See Jean II, 727 F.2d at 962.After the District Court entered its judgment, respondents appealed the decision on the APA claim and petitioners cross-appealed the decision on the discrimination claim. A panel of the Court of Appeals for the Eleventh Circuit affirmed the District Court's judgment on the APA claim, although on a somewhat different rationale than the District Court. Jean I, 711 F.2d at 1455. The panel went on to decide the constitutional discrimination issue as well, holding that the Fifth Amendment's equal protection guarantee applied to parole of unadmitted aliens, and the District Court's finding of no invidious discrimination on the basis of race or national origin was clearly erroneous. The panel ordered, inter alia, continued parole of the class members, an injunction against discriminatory enforcement of INS parole policies, and any further relief necessary "to ensure that all aliens, regardless of their nationality or origin, are accorded equal treatment." Id. at 1509-1510. Page 472 U. S. 852The Eleventh Circuit granted a rehearing en banc, thereby vacating the panel opinion. See 11th Cir. Ct. Rule 26(k). After hearing argument, the en banc court held that the APA claim was moot because the Government was no longer detaining any class members under the stricken incarceration and parole policy. [Footnote 2] All class members who were incarcerated had either violated the terms of their parole or were postjudgment arrivals detained under the regulations adopted after the District Court's order of June 29, 1982. Jean II, supra, at 962. The en banc court then turned to the constitutional issue and held that the Fifth Amendment did not apply to the consideration of unadmitted aliens for parole. According to the court the grant of discretionary authority to the Attorney General under 8 U.S.C. § 1182(d)(5)(A) permitted the Executive to discriminate on the basis of national origin in making parole decisions.Although the court in Jean II rejected petitioners' constitutional claim, it accorded petitioners relief based upon the current INS parole regulations, see 8 CFR § 212.5 (1985), which are facially neutral and which respondents and petitioners admit require parole decisions to be made without regard to race or national origin. Because no class members were being detained under the policy held invalid by the District Court, the en banc court ordered a remand to the District Court to permit a review of the INS officials' discretion under the nondiscriminatory regulations which were promulgated in 1982 and are in current effect. The court stated:"The question that the district court must therefore consider with regard to the remaining Haitian detainees is thus not whether high-level executive branch officials such as the Attorney General have the discretionary authority under the Immigration and Nationality Act Page 472 U. S. 853 (INA) to discriminate between classes of aliens, but whether lower-level INS officials have abused their discretion by discriminating on the basis of national origin in violation of facially neutral instructions from their superiors."Jean II, 727 F.2d at 963.The court stated that the statutes and regulations, as well as policy statements of the President and the Attorney General, required INS officials to consider aliens for parole individually, without consideration of race or national origin. Thus, on remand, the District Court was to ensure that the INS had exercised its broad discretion in an individualized and nondiscriminatory manner. See id. at 978-979.The court noted that the INS's power to parole or refuse parole, as delegated by Congress in the United States Code, e.g., 8 U.S.C. §§ 1182(d)(5)(A), 1225(b), 1227(a), was quite broad. 727 F.2d at 978-979. The court held that this power was subject to review only on a deferential abuse of discretion standard. According to the court"immigration officials clearly have the authority to deny parole to unadmitted aliens if they can advance a 'facially legitimate and bona fide reason' for doing so."Jean II, supra, at 977, citing Kleindienst v. Mandel, 408 U. S. 753, 408 U. S. 770 (1972).The issue we must resolve is aptly stated by petitioners:"This case does not implicate the authority of Congress, the President, or the Attorney General. Rather, it challenges the power of low-level politically unresponsive government officials to act in a manner which is contrary to federal statutes . . . and the directions of the President and the Attorney General, both of whom provided for a policy of nondiscriminatory enforcement."Brief for Petitioners 37.Petitioners urge that low-level INS officials have invidiously discriminated against them, and notwithstanding the new neutral regulations and the statutes, these low-level agents will renew a campaign of discrimination against the Page 472 U. S. 854 class members on parole and those members who are currently detained. Petitioners contend that the only adequate remedy is "declaratory and injunctive relief" ordered by this Court, based upon the Fifth Amendment. The limited statutory remedy ordered by the court in Jean II, petitioners contend, is insufficient. For their part respondents are also eager to have us reach the Fifth Amendment issue. Respondents wish us to hold that the equal protection component of the Fifth Amendment has no bearing on an unadmitted alien's request for parole."Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision." Gulf Oil Co. v. Bernard, 452 U. S. 89, 452 U. S. 99 (1981); Mobile v. Bolden, 446 U. S. 55, 446 U. S. 60 (1980); Kolender v. Lawson, 461 U. S. 352, 461 U. S. 361, n. 10 (1983), citing Ashwander v. TVA, 297 U. S. 288, 297 U. S. 347 (1936) (Brandeis, J., concurring). This is a "fundamental rule of judicial restraint." Three Affiliated Tribes of Berthold Reservation v. Wold Engineering, 467 U. S. 138 (1984). Of course, the fact that courts should not decide constitutional issues unnecessarily does not permit a court to press statutory construction "to the point of disingenuous evasion" to avoid a constitutional question. United States v. Locke, 471 U. S. 84, 471 U. S. 96 (1985). As the Court stressed in Spector Motor Co. v. McLaughlin, 323 U. S. 101, 323 U. S. 105 (1944),"[i]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable."See also United States v. Gerlach Livestock Co., 339 U. S. 725, 339 U. S. 737 (1950); Larson v. Valente, 456 U. S. 228, 456 U. S. 257 (1982) (STEVENS, J., concurring).Had the court in Jean II followed this rule, it would have addressed the issue involving the immigration statutes and INS regulations first, instead of after its discussion of the Constitution. Because the current statutes and regulations Page 472 U. S. 855 provide petitioners with nondiscriminatory parole consideration -- which is all they seek to obtain by virtue of their constitutional argument -- there was no need to address the constitutional issue.Congress has delegated its authority over incoming undocumented aliens to the Attorney General through the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. The Act provides that any alien"who [upon arrival in the United States] may not appear to [an INS] examining officer . . . to be clearly and beyond a doubt entitled to land"is to be detained for examination by a special inquiry officer or immigration judge of the INS. 8 U.S.C. §§ 1225(b), 1226(a); see 8 CFR § 236.1 (1985). The alien may request parole pending the decision on his admission. Under 8 U.S.C. § 1182(d)(5)(A),"[t]he Attorney General may . . . parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States."The Attorney General has delegated his parole authority to his INS District Directors under new regulations promulgated after the District Court's order in this case. See 8 CFR § 212.5 (1985). Title 8 CFR § 212.5 provides a lengthy list of neutral criteria which bear on the grant or denial of parole. Respondents concede that the INS's parole discretion under the statute and these regulations, while exceedingly broad, does not extend to considerations of race or national origin. Respondents' position can best be seen in this colloquy from oral argument:"Question: You are arguing that constitutionally you would not be inhibited from discriminating against these people on whatever ground seems appropriate. But as I understand your regulations, you are also maintaining Page 472 U. S. 856 that the regulations do not constitute any kind of discrimination against these people, and . . . your agents in the field are inhibited by your own regulations from doing what you say the Constitution would permit you to do.""Solicitor General: That's correct."Tr. of Oral Arg. 28-29.See also Brief for Respondents 18-19; 8 U.S.C. § 1182(d) (5)(A); 8 CFR § 212.5 (1985); cf. Statement of the President, United States Immigration and Refugee Policy (July 31, 1981), 17 Weekly Comp. of Pres. Doc. 829 (1981). As our dissenting colleagues point out, post at 472 U. S. 862-863, the INS has adopted nationality-based criteria in a number of regulations. These criteria are noticeably absent from the parole regulations, a fact consistent with the position of both respondents and petitioners that INS parole decisions must be neutral as to race or national origin. [Footnote 3] Page 472 U. S. 857Accordingly, we affirm the en banc court's judgment insofar as it remanded to the District Court for a determination whether the INS officials are observing this limit upon their broad statutory discretion to deny parole to class members in detention. On remand, the District Court must consider: (1) whether INS officials exercised their discretion under § 1182(d)(5)(A) to make individualized determinations of parole, and (2) whether INS officials exercised this broad discretion under the statutes and regulations without regard to race or national origin.Petitioners protest, however, that such a nonconstitutional remedy will permit lower-level INS officials to commence parole revocation and discriminatory parole denial against class members who are currently released on parole. But these officials, while like all others bound by the provisions of the Constitution, are just as surely bound by the provisions of the statute and of the regulations. Respondents concede that the latter do not authorize discrimination on the basis of race and national origin. These class members are therefore protected by the terms of the Court of Appeals' remand from the very conduct which they fear. The fact that the protection results from the terms of a regulation or statute, rather than from a constitutional holding, is a necessary consequence of the obligation of all federal courts to avoid constitutional adjudication except where necessary.The judgment of the Court of Appeals remanding the case to the District Court for consideration of petitioner's claims based on the statute and regulations isAffirmed

U.S. Supreme CourtJean v. Nelson, 472 U.S. 846 (1985)Jean v. NelsonNo. 84-5240Argued March 25, 1985Decided June 26, 1985472 U.S. 846SyllabusPetitioner named representatives of a class of undocumented and unadmitted aliens from Haiti filed suit in Federal District Court alleging that the change by the Immigration and Naturalization Service (INS) from a policy of general parole for undocumented aliens seeking admission to a policy, based on no statute or regulation, of detention without parole for aliens who could not present a prima facie case for admission was unlawful because it did not comply with the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA). It was further alleged that the restrictive parole policy, as executed by INS officers in the field, violated the equal protection guarantee of the Fifth Amendment because it discriminated against petitioners on the basis of race and national origin. The District Court held for petitioners on the APA claim, but concluded that they had failed to prove discrimination on the basis of race or national origin. The court then enjoined future use of the restrictive parole policy, but stayed the injunction to permit the INS to promulgate a new parole policy in compliance with the APA. The INS promptly promulgated a new rule that prohibits the consideration of race or national origin. Ultimately, the Court of Appeals held that the APA claim was moot because the Government was no longer detaining any class members under the invalidated policy, and that the Fifth Amendment did not apply to the consideration of unadmitted aliens for parole. The court then remanded the case to the District Court to permit review of the INS officials' discretion under the new nondiscriminatory rule.Held: Because the current statutes and regulations provide petitioners with nondiscriminatory parole consideration, there was no need for the Court of Appeals to address the constitutional issue, but it properly remanded the case to the District Court. On remand, the District Court must consider (1) whether INS officials exercised their discretion under the statute to make individualized parole determinations, and (2) whether they exercised this discretion under the statutes and regulations without regard to race or national origin. Such remand protects the class members from the very conduct they fear, and the fact that the protection results from a regulation or statute, rather than from a constitutional Page 472 U. S. 847 holding, is a necessary consequence of the obligation of all federal courts to avoid constitutional adjudication except where necessary. Pp. 472 U. S. 853-857.727 F.2d 957, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, STEVENS, POWELL, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 472 U. S. 858. Page 472 U. S. 848

1982_82-331

JUSTICE MARSHALL delivered the opinion of the Court.We are called upon to decide in this case whether a State may restrict an Indian Tribe's regulation of hunting and fishing on its reservation. With extensive federal assistance and supervision, the Mescalero Apache Tribe has established a comprehensive scheme for managing the reservation's fish and wildlife resources. Federally approved tribal ordinances regulate in detail the conditions under which both members of the Tribe and nonmembers may hunt and fish. New Mexico seeks to apply its own laws to hunting and fishing by nonmembers on the reservation. We hold that this application of New Mexico's hunting and fishing laws is preempted by the operation of federal law.IThe Mescalero Apache Tribe (Tribe) resides on a reservation located within Otero County in south central New Mexico. The reservation, which represents only a small portion Page 462 U. S. 326 of the aboriginal Mescalero domain, was created by a succession of Executive Orders promulgated in the 1870's and 1880's. [Footnote 1] The present reservation comprises more than 460,000 acres, of which the Tribe owns all but 193.85 acres. [Footnote 2] Approximately 2,000 members of the Tribe reside on the reservation, along with 179 non-Indians, including resident federal employees of the Bureau of Indian Affairs and the Indian Health Service.The Tribe is organized under the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S.C. § 461 et seq. (1976 ed. and Supp. V), which authorizes any tribe residing on a reservation to adopt a constitution and bylaws, subject to the approval of the Secretary of the Interior (Secretary). The Tribe's Constitution, which was approved by the Secretary on January 12, 1965, requires the Tribal Council"[t]o protect and preserve the property, wildlife and natural resources of the tribe, and to regulate the conduct of trade and the use and disposition of tribal property upon the reservation, providing that any ordinance directly affecting non-members of the tribe shall be subject to review by the Secretary of [the] Interior."App. 53a. Page 462 U. S. 327 The Constitution further provides that the Council shall"adopt and approve plans of operation to govern the conduct of any business or industry that will further the economic wellbeing of the members of the tribe, and to undertake any activity of any nature whatsoever, not inconsistent with Federal law or with this constitution, designed for the social or economic improvement of the Mescalero Apache people, . . . subject to review by the Secretary of the Interior."Ibid.Anticipating a decline in the sale of lumber which has been the largest income-producing activity within the reservation, the Tribe has recently committed substantial time and resources to the development of other sources of income. The Tribe has constructed a resort complex financed principally by federal funds, [Footnote 3] and has undertaken a substantial development of the reservation's hunting and fishing resources. These efforts provide employment opportunities for members of the Tribe, and the sale of hunting and fishing licenses and related services generates income which is used to maintain the tribal government and provide services to Tribe members. [Footnote 4]Development of the reservation's fish and wildlife resources has involved a sustained, cooperative effort by the Page 462 U. S. 328 Tribe and the Federal Government. Indeed, the reservation's fishing resources are wholly attributable to these recent efforts. Using federal funds, the Tribe has established eight artificial lakes which, together with the reservation's streams, are stocked by the Bureau of Sport Fisheries and Wildlife of the United States Fish and Wildlife Service, Department of the Interior, which operates a federal hatchery located on the reservation. None of the waters are stocked by the State. [Footnote 5] The United States has also contributed substantially to the creation of the reservation's game resources. Prior to 1966, there were only 13 elk in the vicinity of the reservation. In 1966 and 1967, the National Park Service donated a herd of 162 elk which was released on the reservation. Through its management and range development, [Footnote 6] the Tribe has dramatically increased the elk population, which by 1977 numbered approximately 1,200. New Mexico has not contributed significantly to the development of the elk herd or the other game on the reservation, which includes antelope, bear, and deer. [Footnote 7]The Tribe and the Federal Government jointly conduct a comprehensive fish and game management program. Pursuant to its Constitution and to an agreement with the Bureau of Sport Fisheries and Wildlife, [Footnote 8] the Tribal Council adopts hunting and fishing ordinances each year. The tribal ordinances, which establish bag limits and seasons and provide Page 462 U. S. 329 for licensing of hunting and fishing, are subject to approval by the Secretary under the Tribal Constitution, and have been so approved. The Tribal Council adopts the game ordinances on the basis of recommendations submitted by a Bureau of Indian Affairs' range conservationist, who is assisted by full-time conservation officers employed by the Tribe. The recommendations are made in light of the conservation needs of the reservation, which are determined on the basis of annual game counts and surveys. Through the Bureau of Sport Fisheries and Wildlife, the Secretary also determines the stocking of the reservation's waters based upon periodic surveys of the reservation.Numerous conflicts exist between state and tribal hunting regulations. [Footnote 9] For instance, tribal seasons and bag limits for both hunting and fishing often do not coincide with those imposed by the State. The Tribe permits a hunter to kill both a buck and a doe; the State permits only buck to be killed. Unlike the State, the Tribe permits a person to purchase an elk license in two consecutive years. Moreover, since 1977, the Tribe's ordinances have specified that state hunting and fishing licenses are not required for Indians or non-Indians who hunt or fish on the reservation. [Footnote 10] The New Mexico Department of Game and Fish has enforced the State's regulations by arresting non-Indian hunters for illegal possession of game killed on the reservation in accordance with tribal ordinances but not in accordance with state hunting regulations.In 1977, the Tribe filed suit against the State and the Director of its Game and Fish Department in the United States District Court for the District of New Mexico, seeking to prevent the State from regulating on-reservation hunting or Page 462 U. S. 330 fishing by members or nonmembers. On August 2, 1978, the District Court ruled in favor of the Tribe and granted declaratory and injunctive relief against the enforcement of the State's hunting and fishing laws against any person for hunting and fishing activities conducted on the reservation. The United States Court of Appeals for the Tenth Circuit affirmed. 630 F.2d 724 (1980). Following New Mexico's petition for a writ of certiorari, this Court vacated the Tenth Circuit's judgment, 450 U.S. 1036 (1981), and remanded the case for reconsideration in light of Montana v. United States, 450 U. S. 544 (1981). On remand, the Court of Appeals adhered to its earlier decision. 677 F.2d 55 (1982). We granted certiorari, 459 U.S. 1014 (1982), and we now affirm.IINew Mexico concedes that, on the reservation, the Tribe exercises exclusive jurisdiction over hunting and fishing by members of the Tribe, and may also regulate the hunting and fishing by nonmembers. [Footnote 11] New Mexico contends, however, that it may exercise concurrent jurisdiction over nonmembers, and that therefore its regulations governing hunting and fishing throughout the State should also apply to hunting and fishing by nonmembers on the reservation. Although New Mexico does not claim that it can require the Tribe to permit nonmembers to hunt and fish on the reservation, it claims that, once the Tribe chooses to permit hunting and fishing by nonmembers, such hunting and fishing is subject to any state-imposed conditions. Under this view, the State would be free to impose conditions more restrictive than the Tribe's own regulations, including an outright prohibition. The question in this case is whether the State may so restrict the Tribe's exercise of its authority.Our decision in Montana v. United States, supra, does not resolve this question. Unlike this case, Montana concerned lands located within the reservation but not owned by the Page 462 U. S. 331 Tribe or its members. We held that the Crow Tribe could not, as a general matter, regulate hunting and fishing on those lands. 450 U.S. at 450 U. S. 557-567. [Footnote 12] But as to "land belonging to the Tribe or held by the United States in trust for the Tribe," we "readily agree[d]" that a Tribe may "prohibit nonmembers from hunting or fishing . . . [or] condition their entry by charging a fee or establish bag and creel limits." Id. at 450 U. S. 557. We had no occasion to decide whether a Tribe may only exercise this authority in a manner permitted by a State.On numerous occasions, this Court has considered the question whether a State may assert authority over a reservation. The decision in Worcester v. Georgia, 6 Pet. 515, 31 U. S. 560 (1832), reflected the view that Indian tribes were wholly distinct nations within whose boundaries "the laws of [a State] can have no force." We long ago departed from the "conceptual clarity of Mr. Chief Justice Marshall's view in Worcester," Mescalero Apache Tribe v. Jones, 411 U. S. 145, 411 U. S. 148 (1973), and have acknowledged certain limitations on tribal sovereignty. For instance, we have held that Indian tribes have been implicitly divested of their sovereignty in certain respects by virtue of their dependent status, [Footnote 13] that, under certain circumstances, a State may validly assert authority over the activities of nonmembers on a reservation, [Footnote 14] and that, in exceptional Page 462 U. S. 332 circumstances, a State may assert jurisdiction over the on-reservation activities of tribal members. [Footnote 15]Nevertheless, in demarcating the respective spheres of state and tribal authority over Indian reservations, we have continued to stress that Indian tribes are unique aggregations possessing "attributes of sovereignty over both their members and their territory,'" White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 448 U. S. 142 (1980), quoting United States v. Mazurie, 419 U. S. 544, 419 U. S. 557 (1975). Because of their sovereign status, tribes and their reservation lands are insulated in some respects by a "historic immunity from state and local control," Mescalero Apache Tribe v. Jones, supra, at 411 U. S. 152, and tribes retain any aspect of their historical sovereignty not "inconsistent with the overriding interests of the National Government." Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 447 U. S. 153 (1980).The sovereignty retained by tribes includes "the power of regulating their internal and social relations," United States v. Kagama, 118 U. S. 375, 118 U. S. 381-382 (1886), cited in United States v. Wheeler, 435 U. S. 313, 435 U. S. 322 (1978). A tribe's power to prescribe the conduct of tribal members has never been doubted, and our cases establish that, "absent governing Acts of Congress,'" a State may not act in a manner that "`infringe[s] on the right of reservation Indians to make their own laws and be ruled by them.'" McClanahan v. Arizona Page 462 U. S. 333 State Tax Comm'n, 411 U. S. 164, 411 U. S. 171-172 (1973), quoting Williams v. Lee, 358 U. S. 217, 358 U. S. 219-220 (1959). See also Fisher v. District Court, 424 U. S. 382, 424 U. S. 388-389 (1976) (per curiam).A tribe's power to exclude nonmembers entirely or to condition their presence on the reservation is equally well established. See, e.g., Montana v. United States, 450 U. S. 544 (1981); Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982). Whether a State may also assert its authority over the on-reservation activities of nonmembers raises "[m]ore difficult questions," Bracker, supra, at 448 U. S. 144. While under some circumstances a State may exercise concurrent jurisdiction over non-Indians acting on tribal reservations, see, e.g., Washington v. Confederated Tribes, supra; Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), such authority may be asserted only if not preempted by the operation of federal law. See, e.g., Ramah Navajo School Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U. S. 832 (1982); Bracker, supra; Central Machinery Co. v. Arizona Tax Comm'n, 448 U. S. 160 (1980); Williams v. Lee, supra; Warren Trading Post v. Arizona Tax Comm'n, 380 U. S. 685 (1965); Fisher v. District Court, supra; Kennerly v. District Court of Montana, 400 U. S. 423 (1971).In Bracker, we reviewed our prior decisions concerning tribal and state authority over Indian reservations and extracted certain principles governing the determination whether federal law preempts the assertion of state authority over nonmembers on a reservation. We stated that that determination does not depend"on mechanical or absolute conceptions of state or tribal sovereignty, but call[s] for a particularized inquiry into the nature of the state, federal, and tribal interests at stake."448 U.S. at 448 U. S. 145. We also emphasized the special sense in which the doctrine of preemption is applied in this context. See id. at 448 U. S. 143-144; Ramah Navajo School Bd., supra, at 458 U. S. 838. Although a State will certainly be without jurisdiction if its authority Page 462 U. S. 334 is preempted under familiar principles of preemption, we cautioned that our prior cases did not limit preemption of state laws affecting Indian tribes to only those circumstances. "The unique historical origins of tribal sovereignty" and the federal commitment to tribal self-sufficiency and self-determination make it "treacherous to import . . . notions of preemption that are properly applied to . . . other [contexts]." Bracker, supra, at 448 U. S. 143. See also Ramah Navajo School Bd., supra, at 458 U. S. 838. By resting preemption analysis principally on a consideration of the nature of the competing interests at stake, our cases have rejected a narrow focus on congressional intent to preempt state law as the sole touchstone. They have also rejected the proposition that preemption requires "an express congressional statement to that effect.'" Bracker, supra, at 45 U. S. 144 (footnote omitted). State jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority. Bracker, supra, at 448 U. S. 145. See also Ramah Navajo School Bd., supra, at 458 U. S. 845, quoting Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941). [Footnote 16]Certain broad considerations guide our assessment of the federal and tribal interests. The traditional notions of Indian sovereignty provide a crucial "backdrop," Bracker, supra, at 448 U. S. 143, citing McClanahan, supra, at 411 U. S. 172, against which any assertion of state authority must be assessed. Moreover, both the tribes and the Federal Government are firmly committed to the goal of promoting tribal self-government, Page 462 U. S. 335 a goal embodied in numerous federal statutes. [Footnote 17] We have stressed that Congress' objective of furthering tribal self-government encompasses far more than encouraging tribal management of disputes between members, but includes Congress' overriding goal of encouraging "tribal self-sufficiency and economic development." Bracker, 448 U.S. at 448 U. S. 143 (footnote omitted). In part as a necessary implication of this broad federal commitment, we have held that tribes have the power to manage the use of their territory and resources by both members and nonmembers, [Footnote 18] Merrion, supra, at 455 U. S. 137; Bracker, supra, at 448 U. S. 151; Montana v. United States, supra; 18 U.S.C. § 1162(b); 25 U.S.C. §§ 1321(b), 1322(b), to undertake and regulate economic activity within the reservation, Merrion, 455 U.S. at 455 U. S. 137, and to defray Page 462 U. S. 336 the cost of governmental services by levying taxes. Ibid. Thus, when a tribe undertakes an enterprise under the authority of federal law, an assertion of state authority must be viewed against any interference with the successful accomplishment of the federal purpose. See generally Bracker, supra, at 448 U. S. 143 (footnote omitted); Ramah Navajo School Bd., 458 U.S. at 458 U. S. 845, quoting Hines v. Davidowitz, supra, at 312 U. S. 67 (state authority precluded when it "stands as an obstacle to the accomplishment of the full purposes and objectives of Congress'").Our prior decisions also guide our assessment of the state interest asserted to justify state jurisdiction over a reservation. The exercise of state authority which imposes additional burdens on a tribal enterprise must ordinarily be justified by functions or services performed by the State in connection with the on-reservation activity. Ramah Navajo School Bd., supra, at 458 U. S. 843, and n. 7; Bracker, supra, at 448 U. S. 148-149; Central Machinery Co. v. Arizona Tax Comm'n, 448 U.S. at 448 U. S. 174 (POWELL, J., dissenting). Thus, a State seeking to impose a tax on a transaction between a tribe and nonmembers must point to more than its general interest in raising revenues. See, e.g., Warren Trading Post Co. v. Arizona, 380 U. S. 685 (1965); Bracker, supra; Ramah Navajo School Bd., supra. See also Confederated Tribes, 447 U.S. at 447 U. S. 157 ("governmental interest in raising revenues is . . . strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services"); Moe, 425 U.S. at 425 U. S. 481-483 (State may require tribal shops to collect state cigarette tax from nonmember purchasers). A State's regulatory interest will be particularly substantial if the State can point to off-reservation effects that necessitate state intervention. Cf. Puyallup Tribe v. Washington Game Dept., 433 U. S. 165 (1977).IIIWith these principles in mind, we turn to New Mexico's claim that it may superimpose its own hunting and fishing Page 462 U. S. 337 regulations on the Mescalero Apache Tribe's regulatory scheme.AIt is beyond doubt that the Mescalero Apache Tribe lawfully exercises substantial control over the lands and resources of its reservation, including its wildlife. As noted supra, at 462 U. S. 330, and as conceded by New Mexico, [Footnote 19] the sovereignty retained by the Tribe under the Treaty of 1852 includes its right to regulate the use of its resources by members as well as nonmembers. In Montana v. United States, we specifically recognized that tribes in general retain this authority.Moreover, this aspect of tribal sovereignty has been expressly confirmed by numerous federal statutes. [Footnote 20] Pub.L. 280 specifically confirms the power of tribes to regulate on-reservation hunting and fishing. 67 Stat. 588, 18 U.S.C. § 1162(b); see also 25 U.S.C. § 1321(b). [Footnote 21] This authority Page 462 U. S. 338 is afforded the protection of the federal criminal law by 18 U.S.C. § 1165, which makes it a violation of federal law to enter Indian land to hunt, trap, or fish without the consent of the tribe. See Montana v. United States, 450 U.S. at 450 U. S. 56, n. 11. The 1981 Amendments to the Lacey Act, 16 U.S.C. § 3371 et seq. (1976 ed., Supp. V), further accord tribal hunting and fishing regulations the force of federal law by making it a federal offense"to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife . . . taken or possessed in violation of any . . . Indian tribal law."§ 3372(a)(1). [Footnote 22]BSeveral considerations strongly support the Court of Appeals' conclusion that the Tribe's authority to regulate hunting and fishing preempts state jurisdiction. It is important to emphasize that concurrent jurisdiction would effectively nullify the Tribe's authority to control hunting and fishing on the reservation. Concurrent jurisdiction would empower New Mexico wholly to supplant tribal regulations. The State would be able to dictate the terms on which nonmembers are permitted to utilize the reservation's resources. The Tribe would thus exercise its authority over the reservation only at the sufferance of the State. The tribal authority to regulate hunting and fishing by nonmembers, which has been repeatedly confirmed by federal treaties and laws and which we explicitly recognized in Montana v. United States, supra, would have a rather hollow ring if tribal authority amounted to no more than this.Furthermore, the exercise of concurrent state jurisdiction in this case would completely "disturb and disarrange," Warren Trading Post Co. v. Arizona Tax Comm'n, supra, at 380 U. S. 691, the comprehensive scheme of federal and tribal management established pursuant to federal law. As described Page 462 U. S. 339 supra, at 462 U. S. 326, federal law requires the Secretary to review each of the Tribe's hunting and fishing ordinances. Those ordinances are based on the recommendations made by a federal range conservationist employed by the Bureau of Indian Affairs. Moreover, the Bureau of Sport Fisheries and Wildlife stocks the reservation's waters based on its own determinations concerning the availability of fish, biological requirements, and the fishing pressure created by on-reservation fishing. App. 71a. [Footnote 23]Concurrent state jurisdiction would supplant this regulatory scheme with an inconsistent dual system: members would be governed by tribal ordinances, while nonmembers would be regulated by general state hunting and fishing laws. This could severely hinder the ability of the Tribe to conduct a sound management program. Tribal ordinances reflect the specific needs of the reservation by establishing the optimal level of hunting and fishing that should occur, not simply a maximum level that should not be exceeded. State laws, in contrast, are based on considerations not necessarily relevant to, and possibly hostile to, the needs of the reservation. For instance, the ordinance permitting a hunter to kill a buck and a doe was designed to curb excessive growth of the deer population on the reservation. Id. at 153a-154a. Enforcement of the state regulation permitting only buck to be killed would frustrate that objective. Similarly, by determining the tribal hunting seasons, bag limits, and permit availability, the Tribe regulates the duration and intensity of hunting. These determinations take into account numerous factors, including the game capacity of the terrain, the range utilization of the game animals, and the availability of tribal personnel to monitor the hunts. Permitting the State to enforce different restrictions simply because they have been determined to be appropriate for the State as a whole would impose on the Tribe the possibly insurmountable task of ensuring that the Page 462 U. S. 340 patchwork application of state and tribal regulations remains consistent with sound management of the reservation's resources.Federal law commits to the Secretary and the Tribal Council the responsibility to manage the reservation's resources. It is most unlikely that Congress would have authorized, and the Secretary would have established, financed, and participated in, tribal management if it were thought that New Mexico was free to nullify the entire arrangement. [Footnote 24] Requiring tribal ordinances to yield whenever state law is more restrictive would seriously "undermine the Secretary's [and the Tribe's] ability to make the wide range of determinations committed to [their] authority." Bracker, 448 U.S. at 448 U. S. 149. See Fisher v. District Court, 424 U.S. at 424 U. S. 390; United States v. Mazurie, 419 U. S. 544 (1975). [Footnote 25] Page 462 U. S. 341The assertion of concurrent jurisdiction by New Mexico not only would threaten to disrupt the federal and tribal regulatory scheme, but also would threaten Congress' overriding objective of encouraging tribal self-government and economic development. The Tribe has engaged in a concerted and sustained undertaking to develop and manage the reservation's wildlife and land resources specifically for the benefit of its members. The project generates funds for essential tribal services and provides employment for members who reside on the reservation. This case is thus far removed from those situations, such as on-reservation sales outlets which market to nonmembers goods not manufactured by the tribe or its members, in which the tribal contribution to an enterprise is de minimis. See Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. at 447 U. S. 154-159. [Footnote 26] The tribal enterprise in this case clearly involves "value generated on the reservation by activities involving the Trib[e]." Id. at 447 U. S. 156-157. The disruptive effect that would result from the assertion of concurrent jurisdiction by New Mexico would plainly "stan[d] as an obstacle to the accomplishment of the full purposes and objectives of Congress,'" Ramah Navajo School Bd., 458 U.S. at 458 U. S. 845, quoting Hines v. Davidowitz, 312 U.S. at 312 U. S. 67.CThe State has failed to "identify any regulatory function or service . . . that would justify" the assertion of concurrent regulatory authority. Bracker, supra, at 448 U. S. 148. The hunting and fishing permitted by the Tribe occur entirely on the reservation. Page 462 U. S. 342 The fish and wildlife resources are either native to the reservation or were created by the joint efforts of the Tribe and the Federal Government. New Mexico does not contribute in any significant respect to the maintenance of these resources, and can point to no other "governmental functions it provides," Ramah Navajo School Bd., supra, at 458 U. S. 843, in connection with hunting and fishing on the reservation by nonmembers that would justify the assertion of its authority.The State also cannot point to any off-reservation effects that warrant state intervention. Some species of game never leave tribal lands, and the State points to no specific interest concerning those that occasionally do. Unlike Puyallup Tribe v. Washington Game Dept., this is not a case in which a treaty expressly subjects a tribe's hunting and fishing rights to the common rights of nonmembers and in which a State's interest in conserving a scarce, common supply justifies state intervention. 433 U.S. at 433 U. S. 174, 433 U. S. 175-177. The State concedes that the Tribe's management has "not had an adverse impact on fish and wildlife outside the Reservation." App. to Brief in Opposition 35a. [Footnote 27]We recognize that New Mexico may be deprived of the sale of state licenses to nonmembers who hunt and fish on the reservation, as well as some federal matching funds calculated in Page 462 U. S. 343 part on the basis of the number of state licenses sold. [Footnote 28] However, any financial interest the State might have in this case is simply insufficient to justify the assertion of concurrent jurisdiction. The loss of revenues to the State is likely to be insubstantial, given the small numbers of persons who purchase tribal hunting licenses. [Footnote 29] Moreover, unlike Confederated Tribes, supra, and Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), the activity involved here concerns value generated on the reservation by the Tribe. Finally, as already noted supra at 462 U. S. 342, the State has pointed to no services it has performed in connection with hunting and fishing by nonmembers which justify imposing a tax in the form of a hunting and fishing license, Ramah Navajo School Bd., supra, at 458 U. S. 843; Central Machinery Co. v. Arizona Tax Comm'n, 448 U.S. at 448 U. S. 174 (POWELL, J., dissenting), and its general desire to obtain revenues is simply inadequate to justify the assertion of concurrent jurisdiction in this case. See Bracker, 448 U.S. at 448 U. S. 150; Ramah Navajo School Bd., supra, at 458 U. S. 845. [Footnote 30]IVIn this case, the governing body of an Indian Tribe, working closely with the Federal Government and under the authority of federal law, has exercised its lawful authority to develop and manage the reservation's resources for the benefit of its members. The exercise of concurrent jurisdiction Page 462 U. S. 344 by the State would effectively nullify the Tribe's unquestioned authority to regulate the use of its resources by members and nonmembers, interfere with the comprehensive tribal regulatory scheme, and threaten Congress' firm commitment to the encouragement of tribal self-sufficiency and economic development. Given the strong interests favoring exclusive tribal jurisdiction and the absence of state interests which justify the assertion of concurrent authority, we conclude that the application of the State's hunting and fishing laws to the reservation is preempted.Accordingly, the judgment of the Court of Appeals is Affirmed

U.S. Supreme CourtNew Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983)New Mexico v. Mescalero Apache TribeNo. 82-331Argued April 19, 1983Decided June 13, 1983462 U.S. 324SyllabusWith extensive federal assistance, respondent Indian Tribe has established a comprehensive scheme for managing the fish and wildlife resources on its reservation in New Mexico. Federally approved tribal ordinances regulate in detail the conditions under which both members of the Tribe and nonmembers may hunt and fish. New Mexico has hunting and fishing regulations that conflict with, and in some instances are more restrictive than, the tribal regulations, and the State has applied its regulations to hunting and fishing by nonmembers on the reservation. The Tribe filed suit in Federal District Court, seeking to prevent the State from regulating on-reservation hunting and fishing. The District Court ruled in the Tribe's favor and granted declaratory and injunctive relief. The Court of Appeals affirmed.Held: The application of New Mexico's laws to on-reservation hunting and fishing by nonmembers of the Tribe is preempted by the operation of federal law. Pp. 462 U. S. 330-344.(a) The exercise of concurrent jurisdiction by the State would effectively nullify the Tribe's unquestioned authority to regulate the use of its resources by members and nonmembers, would interfere with the comprehensive tribal regulatory scheme, and would threaten Congress' overriding objective of encouraging tribal self-government and economic development. Pp. 462 U. S. 338-341.(b) The State has failed to identify any interests that would justify the assertion of concurrent regulatory authority. Any financial interest that the State might have by way of revenues from the sale of licenses to nonmembers who hunt or fish on the reservation or matching federal funds based on the number of state licenses sold is insufficient justification, especially where the loss of such revenues is likely to be insubstantial. Pp. 462 U. S. 341-343.677 F.2d 55, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court. Page 462 U. S. 325

1983_82-1721

JUSTICE POWELL delivered the opinion of the Court.This case presents the issue whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial discovery process.IRespondent Rhinehart is the spiritual leader of a religious group, the Aquarian Foundation. The Foundation has fewer than 1,000 members, most of whom live in the State of Washington. Aquarian beliefs include life after death and the ability to communicate with the dead through a medium. Rhinehart is the primary Aquarian medium.In recent years, the Seattle Times and the Walla Walla Union-Bulletin have published stories about Rhinehart and the Foundation. Altogether, 11 articles appeared in the newspapers during the years 1973, 1978, and 1979. The five articles that appeared in 1973 focused on Rhinehart and the manner in which he operated the Foundation. They described seances conducted by Rhinehart in which people paid him to put them in touch with deceased relatives and friends. The articles also stated that Rhinehart had sold magical "stones" that had been "expelled" from his body. One article referred to Rhinehart's conviction, later vacated, for sodomy. The four articles that appeared in 1978 concentrated on an "extravaganza" sponsored by Rhinehart at the Walla Walla State Penitentiary. The articles stated that he had treated 1,100 inmates to a 6-hour-long show, during which he gave away between $35,000 and $50,000 in cash and prizes. One article described a "chorus line of girls [who] shed their Page 467 U. S. 23 gowns and bikinis and sang. . . ." App. 25a. The two articles that appeared in 1979 referred to a purported connection between Rhinehart and Lou Ferrigno, star of the popular television program, "The Incredible Hulk."IIRhinehart brought this action in the Washington Superior Court on behalf of himself and the Foundation against the Seattle Times, the Walla Walla Union-Bulletin, the authors of the articles, and the spouses of the authors. Five female members of the Foundation who had participated in the presentation at the penitentiary joined the suit as plaintiffs. [Footnote 1] The complaint alleges that the articles contained statements that were "fictional and untrue," and that the defendants -- petitioners here -- knew, or should have known, they were false. According to the complaint, the articles"did and were calculated to hold [Rhinehart] up to public scorn, hatred and ridicule, and to impeach his honesty, integrity, virtue, religious philosophy, reputation as a person and in his profession as a spiritual leader."Id. at 8a. With respect to the Foundation, the complaint also states:"[T]he articles have, or may have had, the effect of discouraging contributions by the membership and public, and thereby diminished the financial ability of the Foundation to pursue its corporate purposes."Id. at 9a. The complaint alleges that the articles misrepresented the role of the Foundation's "choir" and falsely implied that female members of the Foundation had "stripped off all their clothes and wantonly danced naked. . . ." Id. at 6a. The complaint requests $14,100,000 in damages for the alleged defamation and invasions of privacy. [Footnote 2] Page 467 U. S. 24Petitioners filed an answer, denying many of the allegations of the complaint and asserting affirmative defenses. [Footnote 3] Petitioners promptly initiated extensive discovery. They deposed Rhinehart, requested production of documents pertaining to the financial affairs of Rhinehart and the Foundation, and served extensive interrogatories on Rhinehart and the other respondents. Respondents turned over a number of financial documents, including several of Rhinehart's income tax returns. Respondents refused, however, to disclose certain financial information, [Footnote 4] the identity of the Foundation's donors during the preceding 10 years, and a list of its members during that period.Petitioners filed a motion under the State's Civil Rule 37 requesting an order compelling discovery. [Footnote 5] In their supporting memorandum, petitioners recognized that the principal issue as to discovery was respondents'"refusa[l] to permit any effective inquiry into their financial affairs, such as the source of their donations, their financial transactions, uses of Page 467 U. S. 25 their wealth and assets, and their financial condition in general."Record 350. Respondents opposed the motion, arguing in particular that compelled production of the identities of the Foundation's donors and members would violate the First Amendment rights of members and donors to privacy, freedom of religion, and freedom of association. Respondents also moved for a protective order preventing petitioners from disseminating any information gained through discovery. Respondents noted that petitioners had stated their intention to continue publishing articles about respondents and this litigation, and their intent to use information gained through discovery in future articles.In a lengthy ruling, the trial court initially granted the motion to compel and ordered respondents to identify all donors who made contributions during the five years preceding the date of the complaint, along with the amounts donated. The court also required respondents to divulge enough membership information to substantiate any claims of diminished membership. Relying on In re Halkin, 194 U.S.App.D.C. 257, 598 F.2d 176 (1979), [Footnote 6] the court refused to issue a protective order. It stated that the facts alleged by respondents in support of their motion for such an order were too conclusory to warrant a finding of "good cause" as required Page 467 U. S. 26 by Washington Superior Court Civil Rule 26(c). [Footnote 7] The court stated, however, that the denial of respondents' motion was"without prejudice to [respondents'] right to move for a protective order in respect to specifically described discovery materials and a factual showing of good cause for restraining defendants in their use of those materials."Record 16.Respondents filed a motion for reconsideration in which they renewed their motion for a protective order. They submitted affidavits of several Foundation members to support their request. The affidavits detailed a series of letters and telephone calls defaming the Foundation, its members, and Rhinehart -- including several that threatened physical harm to those associated with the Foundation. The affiants also described incidents at the Foundation's headquarters involving attacks, threats, and assaults directed at Foundation members by anonymous individuals and groups. In general, the affidavits averred that public release of the donor lists would adversely affect Foundation membership and income Page 467 U. S. 27 and would subject its members to additional harassment and reprisals.Persuaded by these affidavits, the trial court issued a protective order covering all information obtained through the discovery process that pertained to"the financial affairs of the various plaintiffs, the names and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, clients, or donors to any of the various plaintiffs."App. 65a. The order prohibited petitioners from publishing, disseminating, or using the information in any way except where necessary to prepare for and try the case. By its terms, the order did not apply to information gained by means other than the discovery process. [Footnote 8] In an accompanying opinion, the trial court recognized that the protective order would restrict petitioners' right to publish information obtained by discovery, but the court reasoned that the restriction was necessary to avoid the "chilling effect" that dissemination would have on "a party's willingness to bring his case to court." Record 63.Respondents appealed from the trial court's production order, and petitioners appealed from the protective order. Page 467 U. S. 28 The Supreme Court of Washington affirmed both. 98 Wash. 2d 226, 654 P.2d 673 (1982). With respect to the protective order, the court reasoned:"Assuming then that a protective order may fall, ostensibly, at least, within the definition of a 'prior restraint of free expression,' we are convinced that the interest of the judiciary in the integrity of its discovery processes is sufficient to meet the 'heavy burden' of justification. The need to preserve that integrity is adequate to sustain a rule like CR 26(c) which authorizes a trial court to protect the confidentiality of information given for purposes of litigation."Id. at 256, 654 P.2d at 690. [Footnote 9] The court noted that"[t]he information to be discovered concerned the financial affairs of the plaintiff Rhinehart and his organization, in which he and his associates had a recognizable privacy interest; and the giving of publicity to these matters would allegedly and understandably result in annoyance, embarrassment and even oppression."Id. at 256-257, 654 P.2d at 690. Therefore, the court concluded, the trial court had not abused its discretion in issuing the protective order. [Footnote 10]The Supreme Court of Washington recognized that its holding conflicts with the holdings of the United States Court Page 467 U. S. 29 of Appeals for the District of Columbia Circuit in In re Halki, 194 U.S.App.D.C. 257, 598 F.2d 176 (1979), [Footnote 11] and applies a different standard from that of the Court of Appeals for the First Circuit in In re San Juan Star Co., 662 F.2d 108 (1981). [Footnote 12] We granted certiorari to resolve the conflict. [Footnote 13] 464 U.S. 812 (1983). We affirm.IIIMost States, including Washington, have adopted discovery provisions modeled on Rules 26 through 37 of the Federal Rules of Civil Procedure. F. James & G. Hazard, Civil Procedure 179 (1977). [Footnote 14] Rule 26(b)(1) provides that a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." It further provides that discovery is not limited to matters that will be admissible at trial so long as the information sought "appears reasonably calculated to lead to the discovery Page 467 U. S. 30 of admissible evidence." Wash.Super.Ct.Civ.Rule 26(b)(1); Trust Fund Services v. Aro Glass Co., 89 Wash. 2d 758, 763, 575 P.2d 716, 719 (1978); cf. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2008 (1970). [Footnote 15]The Rules do not differentiate between information that is private or intimate and that to which no privacy interests attach. Under the Rules, the only express limitations are that the information sought is not privileged, and is relevant to the subject matter of the pending action. Thus, the Rules often allow extensive intrusion into the affairs of both litigants and third parties. [Footnote 16] If a litigant fails to comply with a request for discovery, the court may issue an order directing compliance that is enforceable by the court's contempt powers. Wash.Super.Ct.Civ.Rule 37(b). [Footnote 17]Petitioners argue that the First Amendment imposes strict limits on the availability of any judicial order that has the Page 467 U. S. 31 effect of restricting expression. They contend that civil discovery is not different from other sources of information, and that therefore the information is "protected speech" for First Amendment purposes. Petitioners assert the right in this case to disseminate any information gained through discovery. They do recognize that, in limited circumstances, not thought to be present here, some information may be restrained. They submit, however:"When a protective order seeks to limit expression, it may do so only if the proponent shows a compelling governmental interest. Mere speculation and conjecture are insufficient. Any restraining order, moreover, must be narrowly drawn and precise. Finally, before issuing such an order, a court must determine that there are no alternatives which intrude less directly on expression."Brief for Petitioners 10. We think the rule urged by petitioners would impose an unwarranted restriction on the duty and discretion of a trial court to oversee the discovery process.IVIt is, of course, clear that information obtained through civil discovery authorized by modern rules of civil procedure would rarely, if ever, fall within the classes of unprotected speech identified by decisions of this Court. In this case, as petitioners argue, there certainly is a public interest in knowing more about respondents. This interest may well include most -- and possibly all -- of what has been discovered as a result of the court's order under Rule 26(b)(1). It does not necessarily follow, however, that a litigant has an unrestrained right to disseminate information that has been obtained through pretrial discovery. For even though the broad sweep of the First Amendment seems to prohibit all restraints on free expression, this Court has observed that "[f]reedom of speech . . . does not comprehend the right to speak on any subject at any time." American Communications Assn. v. Dods, 339 U. S. 382, 339 U. S. 394-395 (1950). Page 467 U. S. 32The critical question that this case presents is whether a litigant's freedom comprehends the right to disseminate information that he has obtained pursuant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used. In addressing that question, it is necessary to consider whether the "practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression" and whether "the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved." Procunier v. Martinez, 416 U. S. 396, 416 U. S. 413 (1974); see Brown v. Glines, 444 U. S. 348, 444 U. S. 354-355 (1980); Buckley v. Valeo, 424 U. S. 1, 424 U. S. 25 (1976).AAt the outset, it is important to recognize the extent of the impairment of First Amendment rights that a protective order, such as the one at issue here, may cause. As in all civil litigation, petitioners gained the information they wish to disseminate only by virtue of the trial court's discovery processes. As the Rules authorizing discovery were adopted by the state legislature, the processes thereunder are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit. Zemel v. Rusk, 381 U. S. 1, 381 U. S. 16-17 (1965) ("The right to speak and publish does not carry with it the unrestrained right to gather information"). Thus, continued court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations. See In re Halkin, 194 U.S.App.D.C. at 287, 598 F.2d at 206-207 (Wilkey, J., dissenting). [Footnote 18] Page 467 U. S. 33Moreover, pretrial depositions and interrogatories are not public components of a civil trial. [Footnote 19] Such proceedings were not open to the public at common law, Gannett Co. v. DePasquale, 443 U. S. 368, 443 U. S. 389 (199), and, in general, they are conducted in private as a matter of modern practice. See id. at 443 U. S. 396 (BURGER, C.J., concurring); Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell L.Rev. 1 (1983). Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.Finally, it is significant to note that an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny. See Gannett Co. v. DePasquale, Page 467 U. S. 34 supra, at 443 U. S. 399 (POWELL, J., concurring). As in this case, such a protective order prevents a party from disseminating only that information obtained through use of the discovery process. Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court's processes. In sum, judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context. Therefore, our consideration of the provision for protective orders contained in the Washington Civil Rules takes into account the unique position that such orders occupy in relation to the First Amendment.BRule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression. Procunier, supra, at 416 U. S. 413. The Washington Civil Rules enable parties to litigation to obtain information "relevant to the subject matter involved" that they believe will be helpful in the preparation and trial of the case. Rule 26, however, must be viewed in its entirety. Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority to issue protective orders conferred by Rule 26(c). It is clear from experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse. [Footnote 20] This abuse is not limited to Page 467 U. S. 35 matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties. [Footnote 21] The Rules do not distinguish between public and private information. Nor do they apply only to parties to the litigation, as relevant information in the hands of third parties may be subject to discovery.There is an opportunity, therefore, for litigants to obtain -- incidentally or purposefully -- information that not only is irrelevant but, if publicly released, could be damaging to reputation and privacy. The government clearly has a substantial interest in preventing this sort of abuse of its processes. Cf. Herbert v. Lando, 441 U. S. 153, 441 U. S. 176-177 (1979); Gumbel v. Pitkir, 124 U. S. 131, 124 U. S. 145-146 (1888). As stated by Judge Friendly in International Products Corp. v. Koons, 325 F.2d 403, 407-408 (CA2 1963),"[w]hether or not the Rule itself authorizes [a particular protective order] . . . , we have no question as to the court's jurisdiction to do this under the inherent 'equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices'"(citing Gumbel v. Pitkir, supra). The prevention of the abuse that can attend the coerced production of information under Page 467 U. S. 36 a State's discovery rule is sufficient justification for the authorization of protective orders. [Footnote 22]CWe also find that the provision for protective orders in the Washington Rules requires, in itself, no heightened First Amendment scrutiny. To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. The Legislature of the State of Washington, following the example of the Congress in its approval of the Federal Rules of Civil Procedure, has determined that such discretion is necessary, and we find no reason to disagree. The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. [Footnote 23] The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.VThe facts in this case illustrate the concerns that justifiably may prompt a court to issue a protective order. As we have noted, the trial court's order allowing discovery was extremely broad. It compelled respondents -- among other Page 467 U. S. 37 things -- to identify all persons who had made donations over a 5-year period to Rhinehart and the Aquarian Foundation, together with the amounts donated. In effect, the order would compel disclosure of membership as well as sources of financial support. The Supreme Court of Washington found that dissemination of this information would "result in annoyance, embarrassment and even oppression." 98 Wash. 2d at 257, 654 P.2d at 690. It is sufficient for purposes of our decision that the highest court in the State found no abuse of discretion in the trial court's decision to issue a protective order pursuant to a constitutional state law. We therefore hold that where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment. [Footnote 24]The judgment accordingly isAffirmed

U.S. Supreme CourtSeattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)Seattle Times Co. v. RhinehartNo. 82-1721Argued February 21, 1984Decided May 21, 1984467 U.S. 20SyllabusRespondent Rhinehart is the spiritual leader of a religious group, respondent Aquarian Foundation. In recent years, petitioner newspaper companies published several stories about Rhinehart and the Foundation. A damages action for alleged defamation and invasions of privacy was brought in a Washington state court by respondents (who also include certain members of the Foundation) against petitioners (who also include the authors of the articles and their spouses). During the course of extensive discovery, respondents refused to disclose certain information, including the identity of the Foundation's donors and members. Pursuant to state discovery Rules modeled on the Federal Rules of Civil Procedure, the trial court issued an order compelling respondents to identify all donors who made contributions during the five years preceding the date of the complaint, along with the amounts donated. The court also required respondents to divulge enough membership information to substantiate any claims of diminished membership. However, pursuant to the State's Rule 26(c), the court also issued a protective order prohibiting petitioners from publishing, disseminating, or using the information in any way except where necessary to prepare for and try the case. In seeking the protective order, respondents had submitted affidavits of several Foundation members averring that public release of the information would adversely affect Foundation membership and income and would subject its members to harassment and reprisals. By its terms, the protective order did not apply to information gained by means other than the discovery process. The Washington Supreme Court affirmed both the production order and the protective order, concluding that even if the latter order was assumed to constitute a prior restraint of free expression, the trial court had not violated its discretion in issuing the order.Held: The protective order issued in this case does not offend the First Amendment. Pp. 467 U. S. 29-37.(a) In addressing the First Amendment question presented here, it is necessary to consider whether the "practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression" and whether"the limitation of First Amendment Page 467 U. S. 21 freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved."Procunier v. Martinez, 416 U. S. 396, 416 U. S. 413. Pp. 31-32.(b) Judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in other contexts. Rules authorizing discovery are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit. Furthermore, restraints placed on discovered information are not a restriction on a traditionally public source of information. Pp. 467 U. S. 32-34.(c) Rule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression. Liberal pretrial discovery under the State's Rules has a significant potential for abuse. There is an opportunity for litigants to obtain -- incidentally or purposefully -- information that not only is irrelevant but, if publicly released, could be damaging to reputation and privacy. The prevention of such abuse is sufficient justification for the authorization of protective orders. Pp. 467 U. S. 34-36.(d) The provision for protective orders in the Washington Rules -- conferring broad discretion on the trial court -- requires, in itself, no heightened First Amendment scrutiny. The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders. P. 467 U. S. 36.(e) In this case, the trial court entered the protective order upon a showing that constituted good cause as required by Rule 26(c). Also, the order is limited to the context of pretrial civil discovery, and does not restrict dissemination if the information is obtained from other sources. It is sufficient for purposes of this Court's decision that the highest court in the State found no abuse of discretion in the trial court's decision to issue a protective order pursuant to a constitutional state law. Pp. 467 U. S. 36-37.98 Wash. 2d 226, 654 P.2d 673, affirmed.POWELL, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 467 U. S. 37. Page 467 U. S. 22

1956_92

MR. JUSTICE BLACK delivered the opinion of the Court.The question presented is whether petitioner, Rudolph Schware, has been denied a license to practice law in New Mexico in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.New Mexico has a system for the licensing of persons to practice law similar to that in effect in most States. [Footnote 1] A Board of Bar Examiners determines if candidates for admission to the bar have the necessary qualifications. When the Board concludes that an applicant qualifies, Page 353 U. S. 234 it recommends to the State Supreme Court that he be admitted. If the court accepts the recommendation, the applicant is entitled to practice law upon taking an oath to support the constitutions and laws of the United States and New Mexico. An applicant must pass a bar examination before the Board will give him its recommendation. The Board can refuse to permit him to take this examination unless he demonstrates that he has "good moral character."In December, 1953, on the eve of his graduation from the University of New Mexico School of Law, Schware filed an application with the Board of Bar Examiners requesting that he be permitted to take the bar examination scheduled for February, 1954. His application was submitted on a form prescribed by the Board that required answers to a large number of questions. From the record, it appears that he answered these questions in detail. Among other things, he disclosed that he had used certain aliases between 1933 and 1937, and that he had been arrested on several occasions prior to 1940. When he appeared to take the examination, the Board informed him that he could not do so. He later requested a formal hearing on the denial of his application. The Board granted his request. At the hearing, the Board told him for the first time why it had refused to permit him to take the bar examination. It gave him a copy of the minutes of the meeting at which it had voted to deny his application. These minutes read:"No. 1309, Randolph Schware. It is moved by Board Member Frank Andrews that the application of Rudolph Schware to take the bar examination be denied for the reason that, taking into consideration the use of aliases by the applicant, his former connection with subversive organizations, and his record of arrests, he has failed to satisfy the Board as to the Page 353 U. S. 235 requisite moral character for admission to the Bar of New Mexico. Whereupon, said motion is duly seconded by Board Member Ross L. Malone, and unanimously passed. [Footnote 2]"At the hearing, petitioner called his wife, the rabbi of his synagogue, a local attorney, and the secretary to the dean of the law school to testify about his character. [Footnote 3] He took the stand himself, and was thoroughly examined under oath by the Board. His counsel introduced a series of letters that petitioner had written his wife from 1944 through 1946 while he was on duty in the Army. Letters were also introduced from every member of petitioner's law school graduating class except one, who did not comment. And all of his law school professors who were then available wrote in regard to his moral Page 353 U. S. 236 character. The Board called no witnesses, and introduced no evidence.The record of the formal hearing shows the following facts relevant to Schware's moral character. He was born in a poor section of New York City in 1914, and grew up in a neighborhood inhabited primarily by recent immigrants. His father was an immigrant, and, like many of his neighbors, had a difficult time providing for his family. Schware took a job when he was nine years old, and, throughout the remainder of school, worked to help provide necessary income for his family. After 1929, the economic condition of the Schware family and their neighbors, as well as millions of others, was greatly worsened. Schware was then at a formative stage in high school. He was interested in and enthusiastic for socialism and trade unionism, as was his father. In 1932, despairing at what he considered lack of vigor in the socialist movement at a time when the country was in the depths of the great depression, he joined the Young Communist League. [Footnote 4] At this time, he was 18 years old and in the final year of high school.From the time he left school until 1940, Schware, like many others, was periodically unemployed. He worked at a great variety of temporary and ill-paying jobs. In 1933, he found work in a glove factory, and there he participated in a successful effort to unionize the employees. Since these workers were principally Italian, Schware assumed the name Rudolph Di Caprio to forestall the effects of anti-Jewish prejudice against him, not only in securing and retaining a job, but in assisting in the organization of his fellow employees. In 1934, he went to California, where he secured work on the Page 353 U. S. 237 docks. He testified that he continued to use the name Rudolph Di Caprio because Jews were discriminated against in employment for this work. Wherever Schware was employed, he was an active advocate of labor organization. In 1934, he took part in the great maritime strikes on the west coast, which were bitterly fought on both sides. While on strike in San Pedro, California, he was arrested twice on "suspicion of criminal syndicalism." He was never formally charged nor tried, and was released in each instance after being held for a brief period. He testified that the San Pedro police, in a series of mass arrests, jailed large numbers of the strikers.At the time of his father's death in 1937, Schware left the Communist Party, but later he rejoined. In 1940, he was arrested and indicted for violating the Neutrality Act of 1917. He was charged with attempting to induce men to volunteer for duty on the side of the Loyalist Government in the Spanish Civil War. Before his case came to trial, the charges were dismissed and he was released. Later in 1940, he quit the Communist Party. The Nazi-Soviet Non-Aggression Pact of 1939 had greatly disillusioned him, and this disillusionment was made complete as he came to believe that certain leaders in the Party were acting to advance their own selfish interests, rather than the interests of the working class which they purported to represent.In 1944, Schware entered the armed forces of the United States. While in the service, he volunteered for duty as a paratrooper, and was sent to New Guinea. While serving in the Army here and abroad, he wrote a number of letters to his wife. These letters show a desire to serve his country and demonstrate faith in a free democratic society. They reveal serious thoughts about religion which later led him and his wife to associate themselves with a synagogue when he returned to civilian Page 353 U. S. 238 life. He was honorably discharged from the Army in 1946.After finishing college, he entered the University of New Mexico law school in 1950. At the beginning, he went to the dean and told him of his past activities and his association with the Communist Party during the depression, and asked for advice. The dean told him to remain in school and put behind him what had happened years before. While studying law, Schware operated a business in order to support his wife and two children and to pay the expenses of a professional education. During his three years at the law school, his conduct was exemplary.At the conclusion of the hearing, the Board reaffirmed its decision denying Schware the right to take the bar examination. He appealed to the New Mexico Supreme Court. That court upheld the denial with one justice dissenting. 60 N.M. 304, 291 P.2d 607, 630. In denying a motion for rehearing, the court stated that:"[Schware's membership in the Communist Party], together with his other former actions in the use of aliases and record of arrests, and his present attitude toward those matters, were the considerations upon which [we approved the denial of his application]."Schware then petitioned this Court to review his case, alleging that he had been denied an opportunity to qualify for the practice of law contrary to the Due Process Clause of the Fourteenth Amendment. We granted certiorari. 352 U.S. 821. Cf. In re Summers, 325 U. S. 561, 325 U. S. 562, 325 U. S. 564-569. And see Konigsberg v. State Bar of California, post, p. 353 U. S. 252, decided today.A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Page 353 U. S. 239 Clause of the Fourteenth Amendment. [Footnote 5] Dent v. West Virginia, 129 U. S. 114. Cf. Slochower v. Board of Higher Education, 350 U. S. 551; Wieman v. Updegraff, 344 U. S. 183. And see 60 U. S. 19 How. 9, 60 U. S. 13. A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Douglas v. Noble, 261 U. S. 165; Cummings v. Missouri, 4 Wall. 277, 71 U. S. 319-320. Cf. Nebbia v. New York, 291 U. S. 502. Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory. Cf. Yick Wo v. Hopkins, 118 U. S. 356.Here, the State concedes that Schware is fully qualified to take the examination in all respects other than good moral character. Therefore, the question is whether the Supreme Court of New Mexico, on the record before us, could reasonably find that he had not shown good moral character.There is nothing in the record which suggests that Schware has engaged in any conduct during the past 15 years which reflects adversely on his character. The New Mexico Supreme Court recognized that he "presently Page 353 U. S. 240 enjoys good repute among his teachers, his fellow students and associates and in his synagogue." Schware's professors, his fellow students, his business associates, and the rabbi of the synagogue of which he and his family are members all gave testimony that he is a good man, a man who is imbued with a sense of deep responsibility for his family, who is trustworthy, who respects the rights and beliefs of others. From the record, it appears he is a man of religious conviction, and is training his children in the beliefs and practices of his faith. A solicitude for others is demonstrated by the fact that he regularly read the Bible to an illiterate soldier while in the Army and law to a blind student while at the University of New Mexico law school. His industry is depicted by the fact that he supported his wife and two children and paid for a costly professional education by operating a business separately while studying law. He demonstrated candor by informing the Board of his personal history and by going to the dean of the law school and disclosing his past. The undisputed evidence in the record shows Schware to be a man of high ideals with a deep sense of social justice. Not a single witness testified that he was not a man of good character.Despite Schware's showing of good character, the Board and court below thought there were certain facts in the record which raised substantial doubts about his moral fitness to practice law.(1) Aliases. -- From 1934 to 1937, Schware used certain aliases. He testified that these aliases were adopted so he could secure a job in businesses which discriminated against Jews in their employment practices and so that he could more effectively organize non-Jewish employees at plants where he worked. Of course it is wrong to use an alias when it is done to cheat or defraud another, but it can hardly be said that Schware's attempt to forestall anti-semitism in securing employment or organizing Page 353 U. S. 241 his fellow workers was wrong. He did give an assumed name to police in 1934 when he was picked up in a mass arrest during a labor dispute. He said he did this so he would not be fired as a striker. This is certainly not enough evidence to support an inference that petitioner has bad moral character more than 20 years later.(2) Arrests. -- In response to the questions on the Board's application form, Schware stated that he had been arrested on several occasions:1. In 1934, while he was participating in a bitter labor dispute in the California shipyards, petitioner was arrested at least two times on "suspicion of criminal syndicalism." After being held for a brief period, he was released without formal charges being filed against him. He was never indicted nor convicted for any offense in connection with these arrests.The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. [Footnote 6] An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated. Moreover here, the special facts surrounding the 1934 arrests are relevant in shedding light on their present significance. Apparently great numbers of strikers were picked up by police in a series of arrests during the strike at San Pedro, and many of these were charged with "criminal syndicalism." [Footnote 7] The California syndicalism Page 353 U. S. 242 statutes in effect in 1934 were very broad and vague. [Footnote 8] There is nothing in the record which indicates why Schware was arrested on "suspicion" that he had violated this statute. There is no suggestion that he was using force or violence in an attempt to overthrow the state or national government. Again, it should be emphasized that these arrests were made more than 20 years ago, and petitioner was never formally charged nor tried for any offense related to them.2. In 1940, Schware was arrested for violating the Neutrality Act of 1917, which makes it unlawful for a person within the United States to join or to hire or retain another to join the army of any foreign state. [Footnote 9] He was indicted, but, before the case came to trial, the prosecution dropped the charges. He had been charged with recruiting persons to go overseas to aid the Loyalists in the Spanish Civil War. Schware testified that he was unaware of this old law at the time. From the facts in the record, it is not clear that he was guilty of its violation. [Footnote 10] But even if it be assumed that the law was violated, it does not seem that such an offense indicated moral turpitude -- even in 1940. Many persons in this country actively supported the Spanish Loyalist Government. During the prelude to World War II, many idealistic young men volunteered to help causes they believed right. It is commonly known that a number of Americans Page 353 U. S. 243 joined air squadrons and helped defend China and Great Britain prior to this country's entry into the war. There is no record that any of these volunteers were prosecuted under the Neutrality Act. Few Americans would have regarded their conduct as evidence of moral turpitude. In determining whether a person's character is good, the nature of the offense which he has committed must be taken into account. [Footnote 11]In summary, these arrests are wholly insufficient to support a finding that Schware had bad moral character at the time he applied to take the bar examination. [Footnote 12] They all occurred many years ago, and in no case was he ever tried or convicted for the offense for which he was arrested.(3) Membership in the Communist Party. -- Schware admitted that he was a member of the Communist Party from 1932 to 1940. Apparently the Supreme Court of New Mexico placed heavy emphasis on this part membership in denying his application. [Footnote 13] It stated:"We believe one who has knowingly given his loyalties to [the Communist Party] for six to seven Page 353 U. S. 244 years during a period of responsible adulthood is a person of questionable character."60 N.M. 319, 291 P.2d 617. The court assumed that, in the 1930's, when petitioner was a member of the Communist Party, it was dominated by a foreign power and was dedicated to the violent overthrow of the Government, and that every member was aware of this. It based this assumption primarily on a view of the nature and purposes of the Communist Party as of 1950 expressed in a concurring opinion in American Communications Ass'n v. Douds, 339 U. S. 382, 339 U. S. 422. However, that view did not purport to be a factual finding in that case, and obviously it cannot be used as a substitute for evidence in this case to show that petitioner participated in any illegal activity or did anything morally reprehensible as a member of that Party. During the period when Schware was a member, the Communist Party was a lawful political party with candidates on the ballot in most States. [Footnote 14] There is nothing in the record that gives any indication that his association with that Party was anything more than a political faith in a political party. That faith may have been unorthodox. But, as counsel for New Mexico said in his brief,"Mere unorthodoxy [in the field of political and social ideas] does not, as a matter of fair and logical inference, negative 'good moral character.' [Footnote 15] "Page 353 U. S. 245Schware joined the Communist Party when he was a young man during the midst of this country's greatest depression. Apparently, many thousands of other Americans joined him in this step. [Footnote 16] During the depression, when millions were unemployed and our economic system was paralyzed, many turned to the Communist Party out of desperation or hope. It proposed a radical solution to the grave economic crisis. Later, the rise of fascism as a menace to democracy spurred others who feared this form of tyranny to align with the Communist Party. [Footnote 17] After 1935, that Party advocated a "Popular Front" of "all democratic parties against fascism." Its platform and slogans stressed full employment, racial equality and various other political and economic changes. [Footnote 18]During the depression, Schware was led to believe that drastic changes needed to be made in the existing economic system. There is nothing in the record, however, which indicates that he ever engaged in any actions to Page 353 U. S. 246 overthrow the Government of the United States or of any State by force or violence, or that he even advocated such actions. Assuming that some members of the Communist Party during the period from 1932 to 1940 had illegal aims and engaged in illegal activities, it cannot automatically be inferred that all members shared their evil purposes or participated in their illegal conduct. As this Court declared in Wieman v. Updegraff, 344 U. S. 183, 344 U. S. 191: "Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power." Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 341 U. S. 136. [Footnote 19] And finally, there is no suggestion that Schware was affiliated with the Communist Party after 1940 -- more than 15 years ago. We conclude that his past membership in the Communist Party does not justify an inference that he presently has bad moral character.The State contends that, even though the use of aliases, the arrests, and the membership in the Communist Party would not justify exclusion of petitioner from the New Mexico bar if each stood alone, when all three are combined, his exclusion was not unwarranted. We cannot accept this contention. In the light of petitioner's forceful showing of good moral character, the evidence upon which the State relies -- the arrests for offenses for which petitioner was neither tried nor convicted, the use of an assumed name many years ago, and membership in the Communist Party during the 1930's -- cannot be said to raise substantial doubts about his present good moral character. There is no evidence in the record which Page 353 U. S. 247 rationally justifies a finding that Schware was morally unfit to practice law. [Footnote 20]On the record before us, we hold that the State of New Mexico deprived petitioner of due process in denying him the opportunity to qualify for the practice of law. The judgment below is reversed, and the case remanded for proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtSchware v. Board of Bar Examiners, 353 U.S. 232 (1957)Schware v. Board of Bar Examiners of New MexicoNo. 92Argued January 14-15, 1957Decided May 6, 1957353 U.S. 232SyllabusIn 1953 the Board of Bar Examiners of New Mexico refused to permit petitioner to take the bar examination, on the ground that he had not shown "good moral character," and thereby precluded his admission to the bar of that State. It was conceded that petitioner was qualified in all other respects. Petitioner made a strong showing of good moral character, except that it appeared that, from 1933 to 1937, he had used certain aliases, that he had been arrested (but never tried or convicted) on several occasions prior to 1940, and that, from 1932 to 1940, he was a member of the Communist Party. The State Supreme Court sustained the Board.Held: On the record in this case, the State of New Mexico deprived petitioner of due process in denying him the opportunity to qualify for the practice of law. Pp. 353 U. S. 233-247.(a) A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process Clause of the Fourteenth Amendment. Pp. 353 U. S. 238-239.(b) A State can require high standards of qualifications, such as good moral character or proficiency in its law, before it admits an applicant to the bar; but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. P. 353 U. S. 239.(c) Even in applying permissible standards, officers of the State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory. P. 353 U. S. 239.(d) Whether the practice of law is a "right" or a "privilege" need not here be determined; it is not a matter of the State's grace, and a person cannot be barred except for valid reasons. P. 353 U. S. 239, n 5.(e) Petitioner's use from 1934 to 1937 of certain aliases, for purposes which were not wrong and not to cheat or defraud, does Page 353 U. S. 233 not support an inference of bad moral character more than 20 years later. Pp. 353 U. S. 240-241.(f) The arrests of petitioner are insufficient to support a finding that he had bad moral character at the time he applied to take the bar examination. Pp. 353 U. S. 241-243.(g) Petitioner's membership in the Communist Party from 1932 to 1940 does not justify an inference that he presently has bad moral character. Pp. 353 U. S. 243-246.(h) The use of aliases, the arrests, and former membership in the Communist Party do not in combination warrant exclusion of petitioner from the practice of law. P. 353 U. S. 246.(i) In the light of petitioner's forceful showing of good moral character, the evidence upon which the State relies cannot be said to raise substantial doubts as to his present good moral character. P. 353 U. S. 246.60 N.M. 304, 291 P.2d 607, reversed and remanded.

1983_82-1050

JUSTICE BRENNAN delivered the opinion of the Court.Califano v. Goldfarb, 430 U. S. 199 (1977), held that a gender-based classification in the spousal benefit provisions of the Social Security Act violated the right to the equal protection of the laws guaranteed by the Due Process Clause Page 465 U. S. 731 of the Fifth Amendment. In this case, the United States District Court for the Northern District of Alabama held that amendments to the Act, adopted in 1977 partly in response to our decision, unjustifiably revive the gender-based classification that was invalidated in Goldfarb, and therefore also violate the Fifth Amendment. App. to Juris. Statement 1a-9a. The Secretary of Health and Human Services appealed directly to this Court. We noted probable jurisdiction under 28 U.S.C. § 1252, 460 U.S. 1036 (1983), and now reverse.IAThe Social Security Act (Act) provides spousal benefits for the wives, husbands, widows, and widowers of retired and disabled wage earners. 42 U.S.C. § 402 (1976 ed. and Supp. V). Prior to December, 1977, benefits were payable only to those husbands or widowers who could demonstrate dependency on their wage-earning wives for one-half of their support. Wives and widows, on the other hand, were entitled to spousal benefits without any such showing of dependency on their husbands. See former 42 U.S.C. §§ 402(b), (c)(1)(C), and (f)(1)(D). In March, 1977, Califano v. Goldfarb, supra, affirmed the judgment of a three-judge District Court which held that the gender-based dependency requirement for widowers violated the equal protection component of the Due Process Clause of the Fifth Amendment. [Footnote 1] Subsequently, the Court summarily affirmed two District Court decisions invalidating the dependency requirement for husbands' benefits. Califano v. Silbowitz, 430 U.S. 924 (1977); Jablon v. Califano, 430 U.S. 924 (1977).Following these decisions, as part of a general reform of the Social Security system, Congress repealed the dependency requirement for widowers and husbands. Social Security Page 465 U. S. 732 Amendments of 1977 (1977 Amendments), §§ 334(b)(1), (d)(1), Pub.L. 95-216, 91 Stat. 1544, 1545, 42 U.S.C. §§ 402(c)(1), (f)(1) (1976 ed., Supp. V). See S.Rep. No. 95-572, pp. 88, 93 (1977). [Footnote 2] It concluded, however, that elimination of the dependency test, by increasing the number of individuals entitled to spousal benefits, could create a serious fiscal problem for the Social Security trust fund. See id. at 27-28. This problem was particularly acute with respect to the large number of retired federal and state employees who would now become eligible for spousal benefits. Unlike most applicants, who must offset any dual Social Security benefits against each other, 42 U.S.C. § 402(k)(3)(A), retired civil servants could, at the time of the 1977 Amendments, receive the full amount of both the spousal benefits and the government pensions to which they were entitled. Congress estimated that payment of unreduced spousal benefits to such individuals could cost the system an estimated $190 million in 1979. S.Rep. No. 95-572, supra, at 27-28.To avoid this fiscal drain, Congress included as part of the 1977 Amendments a "pension offset" provision that generally requires the reduction of spousal benefits by the amount of certain Federal or State Government pensions received by the Social Security applicant. 1977 Amendments, §§ 334 (a)(2) and (b)(2), 42 U.S.C. §§ 402(b)(4)(A) and (c)(2)(A) (1976 ed., Supp. V). Congress estimated that 90 percent of the savings that would be achieved by the pension offset provision as proposed by the Senate would be attributable to a reduction in payments to nondependent husbands and widowers who had not been entitled to any spousal benefits prior to Page 465 U. S. 733 the decision in Goldfarb. See S.Rep. No. 95-572, supra, at 81. The remaining portion of the savings, however, would come from a reduction in benefits to individuals, mostly women but also dependent men, who had retired or were about to retire and who had planned their retirements in reliance on their entitlement, under pre-1977 law, to spousal benefits unreduced by government pension benefits. See ibid.; H.R.Conf.Rep. No. 95-837, p. 72 (1977); S.Conf.Rep. No. 95-612, p. 72 (1977). In order to protect the reliance interests of this group, see infra at 465 U. S. 742, Congress exempted from the pension offset requirement as ultimately enacted those spouses who were eligible to receive pension benefits prior to December, 1982, and who would have qualified for unreduced spousal benefits under the Act "as it was in effect and being administered in January, 1977." 1977 Amendments, § 334(g)(1), note following 42 U.S.C. § 402 (1976 ed., Supp. V). [Footnote 3] Page 465 U. S. 734In the same subsection in which it established this 5-year grace period for individuals who qualified for spousal benefits in January. 1977, Congress also included a severability clause, which provides:"If any provision of this subsection, or the application thereof to any person or circumstance, is held invalid, the remainder of this section shall not be affected thereby, but the application of this subsection to any other persons or circumstances shall also be considered invalid."1977 Amendments, § 334(g)(3), note following 42 U.S.C. § 402 (1976 ed., Supp. V). The Conference Committee explained that the severability clause was enacted"so that, if [the exception to the pension offset provision] is found invalid, the pension-offset . . . would not be affected, and the application of the exception clause would not be broadened to include persons or circumstances that are not included within it."H.R.Conf.Rep. No. 95837, pp. 71-72 (1977); S.Conf.Rep. No. 95-612, pp. 71-72 (1977).BAppellee Robert H. Mathews (hereafter Mathews or appellee) retired from his job with the United States Postal Service on November 18, 1977. His wife, who had retired from her job a few months earlier, was fully insured under the Page 465 U. S. 735 Social Security Act. In December, 1977, Mathews applied for husband's benefits on his wife's account. On review of the application, the Social Security Administration (SSA) informed Mathews that he was entitled to spousal benefits of $153.30 per month but that, because, as appellee acknowledged, he was not dependent upon his wife for one-half of his support, this amount would be entirely offset by his $573 per month Postal Service pension in accordance with § 334(b)(2) of the 1977 Amendments, 42 U.S.C. § 402(c)(2) (1976 ed., Supp. V). App. to Juris.Statement 2a. After a hearing, an Administrative Law Judge (ALJ) affirmed the SSA's initial decision. Id. at 16a-22a. The ALJ's decision was, in turn, affirmed by the Appeals Council of the Department of Health and Human Services, and thereby became the final decision of the Secretary. Id. at 13a-14a.Mathews and his wife then brought this class action against the Secretary in the United States District Court for the Northern District of Alabama under § 205(g) of the Act, 42 U.S.C. 405(g). The complaint alleged that application of the pension offset provision of the 1977 Amendments to Mathews and other nondependent men but not to similarly situated nondependent women violated the Due Process Clause of the Fifth Amendment, and sought a declaratory judgment to that effect. Appellee also contended that the severability clause of the 1977 Amendments was unconstitutional. The District Court certified a nationwide class composed of"all applicants for husband's insurance benefits . . . whose applications . . . have been denied [beginning 60 days before the filing of the complaint] solely because of the statutory requirement that husbands must have received more than one-half of their support from their wives in order to be entitled to benefits."App. to Juris.Statement 10a.Shortly thereafter, the District Court filed an opinion, id. at 1a-9a, and order, id. at 27a-28a, holding both the pension offset exception of § 334(g)(1)(B) and the severability clause of § 334(g)(3) unconstitutional. The court noted that, in essence, Page 465 U. S. 736 the exception to the pension offset"provides a five-year grace period for all women who retire within five years of the enactment, and for men who retire within five years of the enactment and who are economically dependent upon their wives."Id. at 3a. In light of this gender-based classification, the court noted that the offset exception could be upheld only if it "serve[s] important governmental objectives and [is] substantially related to achievement of those objectives.'" Id. at 4a, quoting Craig v. Boren, 429 U. S. 190, 429 U. S. 197 (1976). The court decided that the exception could not be justified as protecting the reliance interests of individuals who had planned their retirements prior to the 1977 Amendments in expectation of undiminished benefits because, by requiring men to prove dependency notwithstanding the decision in Goldfarb, the offset exception presumes that"women would have relied upon the practices of the Social Security Administration, yet men would not have relied upon a decision of the Supreme Court."App. to Juris.Statement 5a. Accordingly, the court held that the"portion of the exception to the pension offset provision that requires a male applicant to prove that he received one-half of his economic support from his wife violates the equal protection guarantees of the due process clause of the fifth amendment."Id. at 6a-7a (footnote omitted).Having invalidated the exception to the offset provision, the District Court considered the severability clause of § 334(g)(3). The court noted that, in the event appellee obtained a judgment that the offset exception unconstitutionally discriminates against him, the clause, if valid, would require nullification of the exception as to all persons, rather than extension of the exception to persons like appellee. Consequently, all government retirees not covered by Social Security, without regard to gender or dependency, would have their spousal benefits offset by the amount of their government pensions. The court characterized this effect of the severability clause as an effort by Congress"to mandate the Page 465 U. S. 737 outcome of any challenge to the validity of the [pension offset] exception by making such a challenge fruitless. Even if a plaintiff achieved success in having the gender-based classification stricken, he would derive no personal benefit from the decision, because the pension offset would be applied to all applicants without exception."Id. at 8a. Because of its view that Congress could not have meant to defeat the reliance interests of government retirees in that way, the court concluded"that the severability clause is not an expression of the true Congressional intent, but instead is an adroit attempt to discourage the bringing of an action by destroying standing."Ibid. Accordingly, the court held the severability provision unconstitutional and ordered the Secretary to pay Mathews and the rest of the plaintiff class full spousal benefits without regard to dependency and without offsetting the amount of their government pensions. Id. at 9a.IIBecause it may affect our jurisdiction, see Linda R. S. v. Richard D., 410 U. S. 614, 410 U. S. 616 (1973), we consider first the District Court's conclusion that the severability provision of the 1977 Amendments would, if valid, deprive appellee of standing to bring this action by preventing him from receiving any more spousal benefits if he prevails than he is now allowed. Appellee agrees with the District Court's analysis and, for that reason, contends that the severability clause amounts to an unconstitutional attempt by Congress to thwart the jurisdiction and remedial power of the federal courts. We agree with the Secretary, however, that, because the right asserted by appellee is the right to receive"benefits . . . distributed according to classifications which do not without sufficient justification differentiate among covered [applicants] solely on the basis of sex,"Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 647 (1975), and not a substantive right to any particular amount of benefits, appellee's standing does not depend on his ability to obtain increased Social Security payments. Page 465 U. S. 738In order to establish standing for purposes of the constitutional "case or controversy" requirement, a plaintiff"must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,"Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 441 U. S. 99 (1979), and that the injury "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 426 U. S. 38 (1976). In this case, appellee claims a type of personal injury we have long recognized as judicially cognizable. [Footnote 4] He alleges that the pension offset exception subjects him to unequal treatment in the provision of his Social Security benefits solely because of his gender; specifically, as a nondependent man, he receives fewer benefits than he would if he were a similarly situated woman. App. 6.Although the severability clause would prevent a court from redressing this inequality by increasing the benefits payable to appellee, we have never suggested that the injuries caused by a constitutionally underinclusive scheme can be remedied only by extending the program's benefits to the excluded class. To the contrary, we have noted that a court sustaining such a claim faces"two remedial alternatives: [it] may either declare [the statute] a nullity, and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion."Welsh v. United States, 398 U. S. 333, 398 U. S. 361 (1970) (Harlan, J., concurring in result). See Califano v. Westcott, 443 U. S. 76, Page 465 U. S. 739 443 U. S. 89-91 (1979). [Footnote 5] For that reason, we have frequently entertained attacks on discriminatory statutes or practices even when the government could deprive a successful plaintiff of any monetary relief by withdrawing the statute's benefits from both the favored and the excluded class. [Footnote 6]These decisions demonstrate that, like the right to procedural due process, see Carey v. Piphus, 435 U. S. 247, 435 U. S. 266 (1978), the right to equal treatment guaranteed by the Constitution is not coextensive with any substantive rights to the benefits denied the party discriminated against. Rather, as we have repeatedly emphasized, discrimination itself, by perpetuating "archaic and stereotypic notions" or by stigmatizing members of the disfavored group as "innately inferior" and therefore as less worthy participants in the political community, Mississippi University for Women v. Hogan, 458 U. S. 718, 458 U. S. 725 (1982), can cause serious noneconomic injuries Page 465 U. S. 740 to those persons who are personally denied equal treatment solely because of their membership in a disfavored group. [Footnote 7] Accordingly, as Justice Brandeis explained, when the "right invoked is that to equal treatment," the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class. Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 284 U. S. 247 (1931). [Footnote 8] Because the severability clause would forbid only the latter, and not the former, kind of relief in this case, the injury caused by the unequal treatment allegedly suffered by appellee may "be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Organization, supra, at 426 U. S. 38, and he therefore has standing to prosecute this action. [Footnote 9] Page 465 U. S. 741IIIAlthough appellee prevailed in the District Court on his constitutional claim, he urges as an alternative ground for affirmance that we construe the pension offset exception so that it does not incorporate a gender-based classification of the kind invalidated in Califano v. Goldfarb, 430 U. S. 199 (1977), but instead exempts from the offset requirement both men and women, without regard to dependency. Relying on "the maxim that statutes should be construed to avoid constitutional questions," United States v. Batchelder, 442 U. S. 114, 442 U. S. 122 (1979), he contends that Congress, in reviving the qualifying criteria in effect before the decision in Goldfarb, must be presumed to have done so without reenacting the gender-based dependency test which this Court had held unconstitutional.The canon favoring constructions of statutes to avoid constitutional questions does not, however, license a court to usurp the policymaking and legislative functions of duly elected representatives. Yu Con Eng v. Trinidad, 271 U. S. 500, 271 U. S. 518 (1926). See NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 440 U. S. 499-501 (1979); id. at 440 U. S. 508-511 (BRENNAN, J., dissenting); United States v. Sullivan, 332 U. S. 689, 332 U. S. 693 (1948)."'[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of Page 465 U. S. 742 perverting the purpose of a statute . . . ' or judicially rewriting it."Aptheker v. Secretary of State, 378 U. S. 500, 378 U. S. 515 (1964), quoting Scales v. United States, 367 U. S. 203, 367 U. S. 211 (1961). In this case, the language and history of the offset exception plainly demonstrate that Congress meant to resurrect, for a 5-year grace period, the gender-based dependency test of pre-Goldfarb law.As we have noted, supra at 465 U. S. 731-733, Congress adopted the pension offset requirement to prevent the serious fiscal drain that it concluded would result from payment of unreduced benefits to the new class of recipients made eligible by the decision in Goldfarb. Nevertheless, in an effort to protect the reliance interests of individuals who had planned their retirement before the March, 1977, Goldfarb decision and the resulting amendments to the Act, see H.R.Conf.Rep. No. 95-837, p. 72 (1977); S.Conf.Rep. No. 95-612, p. 72 (1977), Congress exempted from the offset requirement those individuals eligible for spousal benefits under the Act "as it was in effect and being administered in January 1977." There can be no dispute that,, in January, 1977, men were eligible for benefits only upon a showing of dependency whereas women were subject to no such requirement. See former 42 U.S.C. §§ 402(c) and (f); Califano v. Goldfarb, supra, at 430 U. S. 201-202, and nn. 1, 2. [Footnote 10] And Congress further indicated its intent to revive those eligibility criteria by including an unusual Page 465 U. S. 743 severability clause that would, in the event the classification were held invalid, sacrifice the exception's protection of reliance interests to the goal served by the offset provision itself -- preventing an undue financial burden on the system. See supra at 465 U. S. 734, and n. 5; H.R.Conf.Rep. No. 95-837, supra, at 72; S.Conf.Rep. No. 95-612, supra, at 72.Consistent with the plain import of these provisions, Senator Long, then Chairman of the Senate Finance Committee and principal manager of the bill in the Senate, explained that the exception clause was meant"to afford . . . protection to those who anticipated receiving their spouses benefits prior to March, 1977, without providing it also to those [who] would qualify only as a result of [the Goldfarb] decision."123 Cong.Rec. 39134 (1977) (emphasis added). See also id. at 39008 (remarks of Rep. Ullman). Appellee's proposed interpretation of the exception provision would defeat this clearly expressed intention and, by rendering the offset requirement applicable to very few applicants, [Footnote 11] frustrate the congressional Page 465 U. S. 744 aim of preventing a major fiscal drain on the Social Security trust fund. Accordingly, we reject appellee's construction of the Act and conclude that the exception to the offset provision applies to otherwise eligible men only when they can show dependency on their wives for one-half of their support. We turn therefore to consider the constitutionality of that gender-based classification.IVWe recently reviewed the "firmly established principles" by which to evaluate a claim of gender discrimination like that made by appellee:"Our decisions . . . establish that the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an 'exceedingly persuasive justification' for the classification. . . . The burden is met only by showing at least that the classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives.' . . .""Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or 'protect' members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate. . . .""If the State's objective is legitimate and important, we next determine whether the requisite direct, substantial relationship between objective and means is present."Mississippi University for Women v. Hogan, 458 U.S. at 458 U. S. 724-725. (Citations and footnotes omitted.) Page 465 U. S. 745 We therefore consider, in turn, whether the Secretary has carried her burden of (A) showing a legitimate and "exceedingly persuasive justification" for the gender-based classification of the pension offset provision and (B) demonstrating "the requisite direct, substantial relationship" between the classification and the important governmental objectives it purports to serve.AAlthough the offset exception temporarily revives the gender-based eligibility requirements invalidated in Goldfarb, Congress' purpose in adopting the exception bears no relationship to the concerns that animated the original enactment of those criteria. The Court concluded in Goldfarb that the original gender-based standards, which were premised on an assumption that females would normally be dependent on the earnings of their spouses, but males would not, constituted an "accidental byproduct of a traditional way of thinking about females," 430 U.S. at 430 U. S. 223 (STEVENS, J., concurring in judgment), that reflected "old notions' and `archaic and overbroad' generalizations" about the roles and relative abilities of men and women, id. at 430 U. S. 211, 430 U. S. 217 (plurality opinion). Accordingly, the statute's "objective itself [was] illegitimate." Mississippi University for Women v. Hogan, supra, at 458 U. S. 725. [Footnote 12]The provision at issue here, in contrast, reflects no such illegitimate government purposes. As detailed above, Congress adopted the offset exception in order to protect the expectations of persons, both men and women, who had planned their retirements based on pre-January, 1977, law, under which they could receive spousal benefits unreduced by the amount of any government pensions to which they were also entitled. Congress accomplished its aim by incorporating Page 465 U. S. 746 the eligibility criteria as they existed in January, 1977; its choice of this approach, rather than an explicit adoption of new gender-based standards, confirms that its purpose was to protect reliance on prior law, not to reassert the sexist assumptions rejected in Goldfarb.Nor is that purpose rendered illegitimate by the fact that it is achieved through a temporary revival of an invalidated classification. We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time. See, e.g., Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50, 458 U. S. 87-89 (1982) (plurality opinion); Buckley v. Valeo, 424 U. S. 1, 424 U. S. 142-143 (1976) (per curiam); Chevron Oil Co. v. Huson, 404 U. S. 97, 404 U. S. 106-107 (1971). See also Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 435 U. S. 718-723 (1978). Although an unconstitutional scheme could not be retained for an unduly prolonged period in the name of protecting reliance interests, or even for a brief period if the expectations sought to be protected were themselves unreasonable or illegitimate, there is no indication that the offset exception suffers from either of these flaws. The duration of the exception is closely related to its goal of protecting only individuals who had planned their retirements in reliance on prior law, see infra at 465 U. S. 748-749, and appellee does not suggest that the expectations of those individuals, who hardly could have anticipated the adoption of the offset requirement, were unreasonable or illegitimate.The protection of reasonable reliance interests is not only a legitimate governmental objective: it provides "an exceedingly persuasive justification" for the statute at issue here. See Kirchberg v. Feenstra, 450 U. S. 455, 450 U. S. 461 (1981); Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 442 U. S. 273 (1979). Appellee does not, and cannot, contest the Secretary's statement that"it is a significant and salutary goal to secure the retirement plans of our Nation's workers who, in Page 465 U. S. 747 good faith, had long and reasonably relied on the provisions of the Social Security Act."Brief for Appellant 33. Instead, appellee contends that the only people who could justifiably have relied on an expectation of unreduced benefits are those who actually retired before the effective date of the offset provision, and those individuals will not be required to offset their benefits. Brief for Appellees 28-29, and n. 21, 31-32. Congress determined, however, that many individuals adjusted their spending and savings habits prior to their retirements in expectation of receiving full spousal benefits as well as a government pension, [Footnote 13] and we have no reason to doubt that conclusion. One commentator has explained:"Many couples have undoubtedly made retirement plans and adjusted the level of their private saving and investment in anticipation of retirement benefits from social security which include a special benefit for a spouse. An abrupt denial of benefits in these cases, even if the spouse who would have received them is shown to be not truly dependent on the other, is clearly inequitable, since the couple's savings and retirement plans would have Page 465 U. S. 748 been different had the spouse benefit not been anticipated. Thus, were it to be decided that wives should prove dependency in order to receive spouse benefits, a strong argument could be made for making such a change gradually, so as to avoid inequities to couples approaching retirement who had anticipated that such benefits would be available to them and had made their retirement plans accordingly."M. Flowers, Women and Social Security: An Institutional Dilemma 41 (1977).In short, particularly in the years immediately preceding retirement, individuals make spending, savings, and investment decisions based on assumptions regarding the amount of income they expect to receive after they stop working. For such individuals, reliance on the law in effect during those years may be critically important. [Footnote 14] In recognition of this fact, the offset exception, in the words of the Conference Report, protects"people who are already retired, or close to retirement, from public employment and who cannot be expected to readjust their retirement plans to take account of the 'offset' provision that will apply in the future."H.R.Conf.Rep. No. 95-837, p. 72 (1977); S.Conf.Rep. No. 95612, p. 72 (1977). That purpose, consistent with the principle that "[g]reat nations, like great men, should keep their word,'" Astrup v. INS, 402 U. S. 509, 402 U. S. 514, n. 4 (1971), quoting FPC v. Tuscarora Indian Nation, 362 U. S. 99, 362 U. S. 142 (1960) (Black, J., dissenting), provides an exceedingly persuasive justification for the gender-based classification incorporated in the offset exception.BHaving identified the legitimate and important governmental purpose of the offset exception, we have little trouble Page 465 U. S. 749 concluding that the means employed by the statute is "substantially related to the achievement of [that] objectiv[e]." Wengler v. Druggists Mutual Insurance Co., 446 U. S. 142, 446 U. S. 150 (1980). By reviving for a 5-year period the eligibility criteria in effect in January, 1977, the exception is narrowly tailored to protect only those individuals who made retirement plans prior to the changes in the law that occurred after that date. Individuals who were eligible for spousal benefits before the law changed and who retire within five years of the statute's enactment may reasonably be assumed to have begun planning for their retirement prior to the adoption of the offset provision. See supra at 465 U. S. 747-748. Such persons, men as well as women, may receive spousal benefits unreduced by their government pensions, while those persons, men as well as women, who first became eligible for benefits after January, 1977, may not. [Footnote 15] Page 465 U. S. 750Moreover, the offset exception was plainly adopted"through reasoned analysis, rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women."Mississippi University for Women v. Hogan, 458 U.S. at 458 U. S. 726 (footnote omitted). As the legislative history set out above demonstrates, Congress considered carefully and at length both the financial problems that led to the offset provision and the reliance interests that might be frustrated by that requirement. The solution finally adopted, after rejection of more expensive or impractical alternatives, [Footnote 16] distinguishes Social Security applicants, not according to archaic generalizations about the roles and abilities of men and women, but rather according to whether they planned their retirements with the expectation, created by the law in effect in January, 1977, that they would receive both full spousal benefits and a government pension.VThe exception to the pension offset requirement set out in § 334(g)(1) of the 1977 Amendments to the Social Security Act, while temporarily reviving the gender-based classification Page 465 U. S. 751 invalidated in Califano v. Goldfarb, is directly and substantially related to the important governmental interest of protecting individuals who planned their retirements in reasonable reliance on the law in effect prior to that decision. Accordingly, the judgment of the District Court isReversed

U.S. Supreme CourtHeckler v. Mathews, 465 U.S. 728 (1984)Heckler v. MathewsNo. 82-1050Argued December 5, 1983Decided March 5, 1984465 U.S. 728SyllabusPrior to 1977, spousal benefits under the Social Security Act (Act) were payable only to husbands or widowers who could demonstrate dependency on their wives for one-half of their support, whereas wives and widows were entitled to benefits without any such showing of dependency on their husbands. In Califano v. Goldfarb, 430 U. S. 199, this Court affirmed a District Court judgment holding that the gender-based dependency requirement for widowers violated the equal protection component of the Due Process Clause of the Fifth Amendment. Thereafter, while repealing the dependency requirement for widowers and husbands, Congress, in order to avoid a fiscal drain on the Social Security trust fund, enacted a "pension offset" provision that generally requires the reduction of spousal benefits by the amount of Federal or State Government pensions received by the Social Security applicant. However, in order to protect the interests of those individuals who had retired or were about to retire and who had planned their retirements in reliance on their entitlement, under pre-1977 law, to spousal benefits unreduced by government pension benefits, Congress exempted from the pension offset requirement those spouses who were eligible to receive pension benefits prior to December, 1982, and who would have qualified for unreduced spousal benefits under the Act as administered in January, 1977. Congress also included a severability clause which, in substance, provides that, if the exception to the pension offset requirement is held invalid, that requirement would not be affected, and the application of the exception would not be broadened to include persons not included within it. Appellee husband (hereafter appellee), after retiring from the United States Postal Service, applied for husband's benefits under the Act on account of his wife, who had retired earlier and was fully insured under the Act. It was determined administratively that, although appellee was entitled to spousal benefits, they were entirely offset by his Postal Service pension pursuant to the pension offset provision of the Act. Appellee and his wife then brought a class action in Federal District Court, alleging that application of the pension offset provision to him and other nondependent men, but not to similarly situated nondependent women, violated the Due Process Clause of the Fifth Amendment, and that the severability clause was also unconstitutional. Page 465 U. S. 729 The District Court held both the pension offset provision and the severability clause unconstitutional, concluding that the latter would, if valid, deprive appellee of standing to bring the action by preventing him from receiving any more spousal benefits if he prevails than he is now allowed.Held.1. Appellee has standing to prosecute this action. Because the right he asserts is the right to receive benefits according to classifications that do not without sufficient justification differentiate among covered applicants solely on the basis of sex, and not a substantive right to any particular amount of benefits, appellee's standing does not depend on his ability to obtain increased Social Security payments. The right to equal treatment guaranteed by the Constitution is not coextensive with any substantive rights to the benefits denied the party discriminated against. Rather, discrimination itself, by perpetuating "archaic and stereotypic notions" or by stigmatizing members of the disfavored group as "innately inferior," and therefore less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are denied equal treatment solely because of their membership in a disfavored group. Because the severability clause would forbid only the extension of benefits to the excluded class and not the withdrawal of benefits from the favored class, the injury caused by the unequal treatment allegedly suffered by appellee may be redressed. Pp. 465 U. S. 737-740.2. The pension offset exception applies to otherwise eligible men only when they can show dependency on their wives for one-half of their support. The language and history of the exception plainly demonstrate that Congress intended to resurrect, for a 5-year grace period, the gender-based dependency test of pre-Goldfarb law so as to afford protection to those who anticipated receiving spousal benefits prior to Goldfarb without providing it also to those who would qualify only as a result of the Goldfarb decision. To interpret the exception, as appellee urges, so that it does not incorporate a gender-based classification of the kind invalidated in Goldfarb, but instead exempts from the offset requirement both men and women, without regard to dependency, would defeat Congress' intention and, by rendering the offset requirement applicable to only a few applicants, frustrate the congressional aim of preventing a fiscal drain on the Social Security trust fund. Pp. 465 U. S. 741-744.3. The gender-based classification of the pension offset exception is constitutional. Pp. 465 U. S. 744-751.(a) Although temporarily reviving the gender-based classification invalidated in Goldfarb, the offset exception is directly and substantially related to the important governmental objective of protecting individuals who planned their retirements in reasonable reliance on the law in effect prior to that decision under which they could receive spousal benefits Page 465 U. S. 730 unreduced by the amount of government pensions to which they were also entitled. This objective provides an exceedingly persuasive justification for the gender-based classification incorporated in the offset exception. Pp. 465 U. S. 745-748.(b) And the means employed by the statute is substantially related to the achievement of that objective. By reviving for a 5-year period the eligibility criteria in effect in January, 1977, the offset exception is narrowly tailored to protect only those persons who made retirement plans prior to the changes in the law that occurred after that date. Such persons, men as well as women, may receive spousal benefits unreduced by their government pensions while those persons, men as well as women, who first became eligible for benefits after January, 1977, may not. The exception distinguishes Social Security applicants, not according to archaic generalizations about the roles and abilities of men and women, but rather according to whether they planned their retirements with the expectation, created by the law in effect in January, 1977, that they would receive full spousal benefits and a government pension. Pp. 465 U. S. 748-750.Reversed.BRENNAN, J., delivered the opinion for a unanimous Court.

1977_76-1159

MR. JUSTICE STEWART delivered the opinion of the Court.These cases require examination of the interplay between state option and federal mandate within the system of cooperative federalism created by the public assistance programs of Title IV-A of the Social Security Act, 42 U.S.C. § 601 et seq. The ultimate question to be decided is whether a Page 436 U. S. 727 State may ever receive federal matching funds for a program of emergency assistance to needy families, either under the general program of Aid to Families with Dependent Children (AFDC) [Footnote 1] or under the specific provisions for Emergency Assistance to Needy Families with Children (EA), [Footnote 2] if it limits Page 436 U. S. 728 eligibility for such aid more narrowly than the federal EA statute.ITitle IV-A of the Social Security Act establishes several different public aid programs under the general rubric of "Grants to States for Aid and Services to Needy Families with Children." In order to receive federal funds under any of the Title IV-A programs a State must adopt a "state plan for aid and services to needy families with children" that is approved by the United States Department of Health, Education, and Welfare (HEW) as meeting the requirements set forth in § 402 of the Act.AFDC is the core of the Title IV-A system. As the Court observed in one of its earliest forays into Title IV, AFDC is a categorical aid program, and"the category singled out for welfare assistance . . . is the 'dependent child,' who is defined in § 40B of the Act . . . as an age-qualified 'needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with' any one of several listed relatives."King v. Smith, 392 U. S. 309, 392 U. S. 313. A State's expenditures for AFDC, under an approved § 402 state plan, are reimbursed by the Federal Government according to the formula set forth in § 403(a)(1).The federal EA program was added to Title IV as part of the omnibus Social Security Amendments of 1967. Pub.L. 90-248, § 206, 81 Stat. 893. It was described in the Senate Finance Committee report as"a new program optional with the States [to] authorize dollar-for-dollar Federal matching to provide temporary assistance to meet the great variety of situations faced by needy children in families with emergencies."S.Rep. No. 744, 90th Cong., 1st Sess., 4 (1967). Page 436 U. S. 729 To participate in the program, a State must include a provision for EA in its § 402 state plan, and funding at a flat rate of 50% of program expenses is authorized by § 403(a)(5).Unlike AFDC, eligibility for EA is not limited to "dependent children." Instead, the term "emergency assistance to needy families with children" is broadly defined in § 406(e) to include money payments and other kinds of aid provided on a temporary basis "to avoid destitution . . . or to provide living arrangements" for a "needy child under the age of 21 who is . . . without available resources." 42 U.S.C. § 606(e)(1). Thus, under the EA statute, federal matching funds are available for emergency aid to intact families with children if threatened with destitution, regardless of the cause of their need.The State of Illinois, however, elected to adopt an EA program of much narrower scope. It provided only for (1) aid to AFDC families who were without shelter as a result of either damage to their homes or court-ordered eviction for reasons other than nonpayment of rent; and (2) aid to applicants determined to be presumptively eligible for AFDC who were in immediate need of clothing or household furnishings.In 1973, the respondents instituted a class action against state and federal officials on behalf of all "AFDC recipients, applicants for AFDC, and other families with needy children" in Illinois seeking a declaratory judgment that the Illinois EA program violated federal law by defining eligibility more narrowly than 406(e)(1), and an injunction restraining the defendants from administering the allegedly unlawful program. [Footnote 3] The United States District Court for the Northern Page 436 U. S. 730 District of Illinois held, in an unreported opinion, that the State's program was not inconsistent with federal law. The Court of Appeals for the Seventh Circuit reversed this judgment, ruling that"Illinois may no longer conduct an emergency assistance program under [§ 406(e)] in which some of the families with needy children described in [§ 406(e)] are given aid and some are not."Mandley v. Trainor, 523 F.2d 415, 423 (Mandley I).After the Court of Appeals' mandate was returned to the District Court, the plaintiffs submitted a proposed final order requiring the State to conform its EA program to the provisions of § 406(e) and further requiring the federal defendants to promulgate regulations consistent with the Court of Appeals' interpretation of the statute. The state and federal defendants not only opposed the substantive terms of the proposed order, but also filed motions to dismiss the complaint altogether on the ground that the case had been rendered moot by the State's decision to withdraw entirely from the EA program. In support of its motion, the State filed an affidavit from the Chief Fiscal Officer of its Department of Public Aid stating that"the Department would immediately cease all activities and requests for federal reimbursement pursuant to the 'Emergency Assistance' program of § 406(e) of the Social Security Act,"and that "no additional § 406(e) Page 436 U. S. 731 federal funds [would] be drawn for the balance . . . of the current fiscal year."In opposing the motions to dismiss, the plaintiffs argued that, even though the State would no longer request federal reimbursement for emergency aid under §§ 406(e) and 403(a)(5), it intended nonetheless to operate virtually the identical program as an AFDC "special needs" program, and to seek federal reimbursement under § 403(a)(1). They contended that such a course of conduct would be equally unlawful. The District Court took the position that the validity of any proposed program under the AFDC provisions presented a new question that had not been raised in the original lawsuit, and that the plaintiffs' challenge to the § 406(e) program had indeed been rendered moot by the State's decision to withdraw altogether from the EA program. When the plaintiffs declined to amend their complaint to allege that the new program would also be in violation of § 403(a)(1), the District Court entered an order dismissing the cause "for lack of case or controversy."The Court of Appeals again reversed. Mandley v. Trainor, 545 F.2d 1062 (Mandley II). Noting that the defendants"admit[ted] that they [were] conducting the same program under the label 'special assistance' that they formerly conducted under the label of emergency assistance,"Id. at 1068, the Court of Appeals held that the change in funding arrangements did not raise issues beyond the scope of the plaintiffs' pleadings, and did not render the case moot. As the appellate court viewed the situation, the plaintiffs were still claiming, as they always had, that any federally funded program for emergency assistance must conform with the eligibility standards of § 406(e)(1), and that the defendants were still violating the federal law by using federal funds to operate an emergency assistance program that defined eligibility more narrowly than § 406(e)(1). On the merits, the Court of Appeals agreed with the plaintiffs that § 403(a)(5) Page 436 U. S. 732 is the exclusive source of federal funds for a program of emergency assistance, and therefore held that Illinois' proposed new program, as a de facto EA program, must extend aid to all persons eligible under § 40(e)(1).Because of the lengthy and, in its view, wrongful delay in the implementation of its Mandley mandate, the Court of Appeals then considered sua sponte the defendants' objections to the terms of the final order that had been proposed by the plaintiffs after the first remand, and directed the District Court on remand to enter the proposed order with minor modifications. As to the state defendants, this order would provide:"Defendants . . . are enjoined, so long as Illinois receives federal funding under Title IV-A of the Social Security Act, from claiming reimbursement for emergency assistance (however designated) under any other section of the Act than §§ 406(e) and 403(a)(5), and are enjoined from using any other means of limiting eligibility for emergency assistance more narrowly than the provisions of § 406(e), and are further enjoined from denying emergency assistance . . . to any member of the plaintiff class with a needy child [who is eligible under he definition in § 406(e)]. [Footnote 4]"In addition the Secretary of HEW was to be"enjoined from approving state plans for emergency assistance which limit eligibility more narrowly than Page 436 U. S. 733 § 406(e) of the Act or funding an emergency assistance program (however designated) under any provision of the Act other than §§ 406(e) and 403(a)(5). [Footnote 5]"The broad injunction ordered by the Court of Appeals raises two distinct statutory questions: whether a program of emergency aid to AFDC families may qualify for federal funding under a provision other than § 403(a)(5), and more particularly as an AFDC "special needs" program under § 403(a)(1); [Footnote 6] and whether a State that adopts an EA program under §§ 403(a)(5) and 406(e) must define eligibility no more narrowly than § 406(e). [Footnote 7] We granted certiorari, 431 Page 436 U. S. 734 U.S. 953, to consider these important questions affecting the nationwide administration of a major federal welfare program.IIAs the Court of Appeals readily conceded, its holding in Mandley I that federal eligibility standards are mandatory upon States that adopt the optional EA program in no way obligates a State to continue that program. The federal definition of eligibility in § 406(e), like the other provisions of Title IV of the Social Security Act, simply governs the dispensation of federal funds. See Townsend v. Swank, 404 U. S. 282, 404 U. S. 292 (BURGER, C.J., concurring in result). And while Congress may attach strings to its offer of federal funding, it does not require the States to accept any federal funds at all.The Court of Appeals also acknowledged that § 406(e) Page 436 U. S. 735 does not, by its own terms, attach any eligibility "strings" to a program funded under the AFDC provisions. If Illinois' plan to meet the emergency needs of AFDC recipients by means of AFDC "special needs payments" was proper under § 403(a)(1), the broader EA eligibility definition would have no application. The Court of Appeals believed, however, that the requirements of § 406(e) would be "totally eviscerated" if States could evade them simply by resorting to the AFDC provisions. This effect, in its view, compels the conclusion that § 403(a)(5) is the exclusive source of federal funds for emergency needs, and therefore that emergency payments of the kind contemplated by the Illinois plan [Footnote 8] cannot be reimbursed under § 403(a)(1) as AFDC "special needs."AEven assuming the Court of Appeals' premise that § 406(e) does impose mandatory standards of eligibility for EA, its conclusion simply does not follow. If a State adopts a program that is, for whatever reason, not a proper EA program, it is no "evasion" of the requirements of § 406(e) to seek alternative funding. It is merely an election not to operate an EA program, but to do something quite different instead. Since the statute clearly offers the States an option whether or not to adopt an EA program, it is in no sense "eviscerated" when a State chooses to forgo the offer.The legislative history does not indicate a contrary intent. The Court of Appeals found highly significant the description Page 436 U. S. 736 of EA as an altogether "new" program that would provide federal matching for emergency assistance "[f]or the first time," 13 Cong.Rec. 36319 (197) (remarks of Sen. Curtis). But, as we have already observed, a critical distinction between EA and AFDC is that eligibility for the former does not depend on the absence of a parent from the home. Thus the, enactment of EA extended aid to an entirely new class of families that had not previously been eligible for any form of federal assistance. [Footnote 9] In this context, the fact that EA was described as a "new" program hardly implies an understanding that the emergency needs of persons who were eligible for AFDC could not be met under the existing program. [Footnote 10] Indeed the contrary understanding is revealed in the observation that emergency assistance to AFDC applicants was "frequently . . . unavailable under State programs today." S.Rep. No. 744, 90th Cong., 1st Sess., 165 (1967). (Emphasis supplied.)There is nothing, therefore, in the policies or history of the EA statute to indicate that Illinois' proposed AFDC special needs program should not be judged solely under the requirements for an AFDC program funded under § 403(a)(1), without regard to the EA requirements of §§ 406(e) and 403(a)(5). Accordingly, we must consider whether the special needs program proposed by Illinois is permissible as part of an AFDC program alone. Page 436 U. S. 737BIllinois' proposed program would recognize specified emergency needs as "special needs items" within its AFDC "standard of need." The standard of need is a dollar figure set by each State reflecting the amount deemed necessary to provide for essential needs, such as food, clothing, and shelter. [Footnote 11] See Rosado v. Wyman, 397 U. S. 397, 397 U. S. 408. It is the "yardstick" for measuring financial eligibility for assistance, but the level of benefits actually paid is not necessarily a function of the standard of need. Ibid. At least as early as 1966, federal regulations recognized that States could properly include special needs items in their standards of need for AFDC. [Footnote 12] These"are usually defined as those needs that are recognized by the State as essential for some persons, but not for all, and that must therefore be determined on an individual basis."U.S. Dept. of HEW, Social and Rehabilitation Service, Assistance Payments Administration, Characteristics of State Plans for Aid to Families with Dependent Children xiii (1974) (AFDC Survey). Whenever the special need is found to exist, it is budgeted in the total standard of need. Ibid.Frequently the special need is a regular or recurring expense, such as medication or a medically indicated diet, but this is not always the case. On the contrary, the 1974 AFDC Survey, supra, reveals that HEW has approved state plans that cover a wide variety of needs under the rubric of "special circumstance items," including one-time emergency needs like Page 436 U. S. 738 replacing major appliances, [Footnote 13] home repair, [Footnote 14] and catastrophic loss.16 [Footnote 15] Similarly, the loss of shelter because of damage or eviction is a particular, nonrecurring event that befalls some, but not all, AFDC recipients, which may be reflected in an adjustment in the standard of need whenever that event occurs.By approving state plans that cover nonrecurring emergencies as special needs, HEW has expressed its view that such items are properly included in the AFDC standard of need for reimbursement under § 403(a)(1). The interpretation of the agency charged with administration of the statute is, of course, entitled to substantial deference. New York Dept. of Social Services v. Dublino, 413 U. S. 405, 413 U. S. 421. Moreover, this view is entirely consistent with the well established principle that the States have "undisputed power to set the level of benefits and the standard of need" for their AFDC programs. King v. Smith, 392 U.S. at 392 U. S. 334; Dandridge v. Williams, 397 U. S. 471, 397 U. S. 478; Rosado v. Wyman, supra at 397 U. S. 408; Jefferson v. Hackney, 406 U. S. 535, 406 U. S. 541. See n 11, supra.Since Illinois has not, in fact, submitted a proposed special needs program for approval, see n 8, supra, there is no way of knowing whether such a plan would comply in all other respects with the requirements for an AFDC program. But it is clear that a plan to meet certain emergency needs of AFDC recipient -- specifically, actual or threatened loss of shelter due to damage or eviction -- is not necessarily improper as an AFDC special needs program simply because it addresses a Page 436 U. S. 739 nonrecurring need that could alternatively be provided for under an EA program.IIIAlthough the Court of Appeals' opinion in Mandley II focused on the proposed special needs program, the injunction it ordered to be entered on remand would prohibit not only the operation of such a program under AFDC, but any program of emergency assistance that defines eligibility more narrowly than § 406(e). In substance, therefore, the injunction would enforce Mandley I's holding that § 406(e) imposes mandatory eligibility standards on States participating in the EA program. Since there is still a live controversy over this issue, see n 7, supra, it is to that question that we now turn.Section 406(e) defines EA in terms of four distinct considerations. First, unlike AFDC, it specifies a time limitation: EA may be provided only for a period not to exceed 30 days in any 12-month period. Second, it describes the persons on whose behalf aid may be furnished: needy children under the age of 21 who are living with specified relatives. Third, it defines the circumstances under which aid may be provided: where the child is without resources, and aid is necessary to "avoid destitution . . or to provide living arrangements" for the child. Finally, it describes the method by which aid may be provided: not only cash payments and medical or remedial care, as under AFDC, but also payments in kind and "such services as may be specified by the Secretary." In summary, under EA, any family with children that is for any reason threatened with destitution is eligible for emergency aid at least once in a 12-month period, and that aid may be provided by almost any means.In declaring that Illinois is prohibited from narrowing these broad standards in any way, [Footnote 16] the Court of Appeals relied on Page 436 U. S. 740 a long line of this Court's cases mapping out the mandatory reach of the AFDC eligibility provisions. As to AFDC, the law is indeed clear. Each State is entirely free to set its own monetary standard of need and level of benefits. King v. Smith, supra at 392 U. S. 334; Dandridge v. Williams, supra, at 397 U. S. 478; Rosado v. Wyman, 397 U.S. at 397 U. S. 408; Jefferson v. Hackney, supra at 406 U. S. 541. [Footnote 17] But the States are not free to narrow the federal standards that define the categories of people eligible for aid. Beginning with King v. Smith, supra, this Court has consistently held that States participating in the AFDC program must make assistance available to all persons who meet the criteria of § 406(a) of the Act. Carleson v. Remillard, 406 U. S. 598; Townsend v. Swank, 404 U. S. 282. See also Lewis v. Martin, 397 U. S. 552. The statutory foundation for this conclusion is § 402(a)(10), which requires that a State's "plan for aid and services to needy families with children" must provide that "aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 602(a)(10). Page 436 U. S. 741The question to be decided is whether these interpretive principles are to be applied to the EA program as well.AThe short answer is that, since § 402(a)(10), on its face, applies only to "aid to families with dependent children," and not to the separately designated program of "emergency aid to needy families with children," it cannot be the basis for making the § 406(e) eligibility requirements mandatory on the States.The Court of Appeals recognized that § 402(a)(10) was limited by its language to AFDC, but nevertheless concluded that Congress intended to treat EA "in the same way" because it is "part of the same statutory scheme," and rooted in the "same Congressional concern with [the] deprivation of children that brought forth the AFDC program. . . ." Mandley I, 523 F.2d at 422. But Congress' choice of precise language in this complex statute cannot be glossed over with such generalities.The § 402 "state plan for aid and services to needy families with children" is the central, organizing element of the Title IV-A program. A State's plan establishes both its funding relationship with the Federal Government and the substantive terms of all Title IV-A programs in which it has elected to participate. Thus, the plan reflects not only the basic AFDC program of cash assistance defined in § 406(b), but also Title XX social services, see § 402(a)(15) and 42 U.S.C. § 1397 et seq. (1970 ed., Supp. V), and, if the State chooses to adopt them, the optional programs of EA, defined in § 406(e), and AFDC Unemployed Fathers (AFDC-UF), established by § 407.Section 402(a) lists some 20 specific requirements for which a state plan "must provide." Some clearly apply to the plan as a whole. These generally concern program administration. E.g., § 402(a)(1) ("provide that it shall be in effect in all Page 436 U. S. 742 political subdivisions of the State"); § 402(a)(5) ("provide . . . such methods of administration . . . as are found by the Secretary to be necessary [and] proper . . ."); § 402(a)(9) ("provide safeguards which restrict the use or disclosure of information concerning applicants or recipients . . ."). Others, like § 402(a)(10), refer specifically to "aid to families with dependent children." E.g., § 402(a)(7) ("provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children"); § 402(a)(11) ("provide for prompt notice . . . to the State child support collection agency . . . of the furnishing of aid to families with dependent children with respect to a child who has been deserted or abandoned . . . ").The term "aid to families with dependent children" is given a very specific meaning in § 406(b) -- and "emergency assistance to needy families with children" as defined in § 406(e) means, as we have observed, something quite different. It is true that both the EA and AFDC programs must be reflected in a State's § 402 plan, and both will be governed by those parts of § 402 that apply to the plan as a whole. But there is no basis for assuming that, when § 402 refers specifically to AFDC, those references are either meaningless or inadvertent. On the contrary, there is every reason to suppose that the exclusion of EA from specific substantive requirements of § 402, in particular § 402(a)(10)'s imposition of mandatory eligibility standards, was deliberate, since the absence of mandatory eligibility standards is wholly consistent with the nature and purpose of the EA program.BThe EA program was adopted by means of an amendment to § 406 defining the new term "emergency assistance to needy families with children." Pub.L. 90-248, § 206(b), 81 Stat. 893. But nowhere in the EA statute is there a Page 436 U. S. 743 precise definition of eligibility comparable to the terms that have been held mandatory in AFDC. As to the latter, the term "aid to families with dependent children" is defined in § 406(b) as "money payments . . . in behalf of [a] dependent child. . . ." The term "dependent child" is separately defined in § 406(a) as a needy child who has been deprived of parental support, is living with specified relatives, and is either under the age of 18 or under the age of 21 and regularly attending school. It is this very specific definition of "dependent child" in § 406(a) that has been held to be mandatory upon the States in King v. Smith, 392 U. S. 309 ("deprived of parental support"), Carleson v. Remillard, 406 U. S. 598 ("continued absence from the home"), and Townsend v. Swank, 404 U. S. 282 ("regularly attending a school").On the other hand, the term "emergency assistance to needy families with children" is defined in § 406(e) as payments and services furnished "in the case of a needy child" who meets certain requirements and is facing destitution. The structure of this statutory provision thus parallels § 406(b) -- i.e., while it describes eligible persons, it is, in terms, a definition of the program for which federal funding is available. But in the EA program, there is no separate provision, parallel to § 406(a), that defines the terms used to describe eligible persons. [Footnote 18] There is no statutory language, therefore, that can reasonably be understood as imposing uniform standards of eligibility on every state EA program. [Footnote 19] Page 436 U. S. 744The conclusion that Congress in fact intended to treat EA and AFDC quite differently is fully consistent with its purposes in enacting the EA program. Unlike the basic AFDC program and the optional AFDC-UF extension, EA is not a comprehensive system of income maintenance, but rather a program designed to allow quick, ad hoc responses to immediate needs. Indeed, one of the primary purposes of making EA available to persons not receiving or eligible for AFDC was to "encourag[e] the States to move quickly in family crises, supplying the family promptly with appropriate services," in the hope that this "would, in many cases, preclude the necessity for the family having to go on [AFDC] assistance on a more or less permanent basis." 113 Cong.Rec. 23054 (1967) (remarks of Cong. Mills). This purpose reflects not only all awareness of the distinct difference between AFDC and EA, but also an understanding that EA would not be surrounded with all of the trappings that § 402 requires of the ongoing AFDC cash payments program. In short, EA was designed"to assure needed care for children, to focus maximum effort on self-support by families, and to provide more flexible and appropriate tools to accomplish these objectives."S.Rep. No. 744, 90th Cong., 1st Sess., 15 (1967). (Emphasis supplied.) Page 436 U. S. 745As a matter of historical fact, Congress has always left the States broad discretion in shaping the programs that, like EA, authorize assistance to persons not eligible for AFDC in the hope of preventing lasting welfare dependency. Under the former § 406(d) family services program, [Footnote 20] the States had "considerable latitude in providing services to non-welfare recipients on the grounds that they [were] former or potential' recipients." S.Rep. No. 93-1356, p. 9 (1974). And the declared purpose of the new Title XX social services program enacted in 1975, 42 U.S.C. § 1397 et seq. (1970 ed., Supp. V), was to"encourag[e] each State, as far as practicable under the conditions in that State, to furnish services directed at the goal of . . . achieving or maintaining economic self-support to prevent, reduce, or eliminate dependency. . . ."42 U.S.C. § 1397 (1970 ed., Supp. V). (Emphasis supplied.) The legislative history of that statutory program reflects Congress' awareness that the very magnitude of its purpose would require that"the States . . . have the ultimate decisionmaking authority in fashioning their own social service programs within the limits of funding established by Congress."S.Rep. No. 93-1356, supra, at 6. [Footnote 21]By the same token, the very breadth of the potential reach of EA -- to virtually any family with needy children of a Page 436 U. S. 746 certain age that faces a risk of destitution -- argues against the inference that Congress intended to require participating States to extend aid to all who were potentially eligible under § 406(e). A literal application of all of the § 406(e) standards, as required by the Court of Appeals' proposed order, would create an entirely open-ended program, not susceptible of meaningful fiscal or programmatic control by the States.The Court of Appeals believed that ,under its interpretation of the Act, Illinois would retain "substantial control" of its program through its ability to limit the amount of assistance actually paid:"It will be able to choose the level of benefits that it will provide, and to set the standard of need. It may reasonably limit the amounts paid out in emergency assistance, Dandridge v. Williams, 397 U. S. 471, . . . but it will not be able to declare ineligible those who come within the federal definition of eligibility in [§ 406(e)]. . . . This need not result in additional expense to the state, but, with existing appropriations, should at least result in helping a broader number of persons, although more moderately than at present."Mandley I, 523 F.2d at 422-423. But this application of the distinction drawn in the AFDC cases between eligibility criteria and financial need standards, see supra at 436 U. S. 740, fundamentally misconceives the purpose of the EA program. A family that is facing destitution because its home has burned down is not helped at all by a "moderate" grant insufficient to see it through the crisis. As the Illinois Director of the Department of Public Aid stated in his report to the Legislative Advisory Committe on Public Aid, the decision in Mandley I created an untenable tension between fiscal and programmatic integrity in the EA system:"But even if the Department could so limit [expenditures as suggested by the Court of Appeals] the results would be to divide a limited amount of Emergency Assistance Page 436 U. S. 747 money among a very expanded group of individuals, thus reducing the amount of assistance paid in each individual case to a meaninglessly small amount. The agency is thus faced with the prospect, if it continues the program, of potentially unlimited financial expenses, if it meets actual need in Emergency Assistance payments, or the payment of meaninglessly small amounts (and the possibility of legal challenge and subsequent mandatory order of additional financial payments)."The intent of Congress in enacting EA thus would not be furthered by a statutory interpretation that requires a State to meet less than what it believes is the actual emergency need of an eligible family in order to retain financial control of its program. On the other hand, that intent will be effectuated by the natural reading we give to the relevant statutory provisions. Neither § 402(a)(10), which makes AFDC eligibility criteria mandatory, nor § 406(e), which defines the permissible scope of an EA program for purposes of federal funding, imposes mandatory eligibility standards on States that elect to participate in the EA program.For the foregoing reasons the judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. [Footnote 22]It is so ordered

U.S. Supreme CourtQuern v. Mandley, 436 U.S. 725 (1978)Quern v. MandleyNo. 76-1159Argued November 30, 1977Decided June 6, 1978*436 U.S. 725SyllabusThis litigation originated as a challenge to the validity of Illinois' Emergency Assistance to Needy Families with Children (EA) program under Title IV-A of the Social Security Act (SSA). The Court of Appeals, reversing the District Court, first held that the program was invalid because it limited eligibility for such assistance more narrowly than § 406(e)(1) of the SSA, which makes federal matching funds available under a state EA program for emergency aid to intact families with children if threatened with destitution, regardless of the cause of the need. In a later appeal involving the validity of a proposed alternative to the EA program, the Court of Appeals held that § 403(a)(5) of the SSA, which authorizes federal funding of a state EA program, is the exclusive source of federal funds for a state program of emergency assistance, and that therefore a new "special needs" program that Illinois proposed to operate under its Title IV-A Aid to Families with Dependent Children (AFDC) program, funded under § 403(a)(1) of the SSA, in place of its withdrawn EA program, must, as a de facto EA program, extend aid to all persons eligible under § 406(e)(1).Held:1. There is nothing in the policies or history of the EA statute to indicate that Illinois' proposed "special needs" program should not be judged solely under the requirements for an AFDC program funded under § 403(a)(1) without regard to the EA requirements of §§ 406(e) and 403(a)(5). Pp. 436 U. S. 735-736.2. The proposed "special needs" program is permissible as part of an AFDC program alone. A plan to meet certain emergency needs of AFDC recipients -- specifically actual or threatened loss of shelter due to damage or eviction -- is not necessarily improper as an AFDC "special needs" program simply because it addresses a nonrecurring need that could alternatively be provided for under an EA program. Pp. 436 U. S. 737-739.3. Neither § 402(a)(10) of the SSA, which makes AFDC, not EA, eligibility criteria mandatory, nor § 406(e), which defines the permissible Page 436 U. S. 726 scope of an EA program for purpose of federal funding, imposes mandatory eligibility standards on States that elect to participate in the EA program, and therefore Illinois is not precluded from receiving matching federal funds for either an EA or a "special needs" program simply because it limits eligibility for aid under that program more narrowly than § 406(e). Pp. 436 U. S. 739-747.545 F.2d 1062, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which all other Members joined except BLACKMUN, J., who took no part in the consideration or decision of the cases.

1987_86-595

STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 484 U. S. 455.JUSTICE SCALIA delivered the opinion of the Court.Respondent Joseph A. Fausto, an employee of the Department of the Interior Fish and Wildlife Service (FWS), was suspended from his job for 30 days because of unauthorized use of a Government vehicle. The United States Court of Appeals for the Federal Circuit held that he could maintain a suit for backpay in the United States Claims Court alleging that his suspension was in violation of Department of the Interior regulations. We granted certiorari to decide whether the Civil Service Reform Act of 1978 (CSRA or Act), Pub.L. Page 484 U. S. 441 95-454, 92 Stat. 1111 et seq. (codified, as amended, in various sections of 5 U.S.C. (1982 ed. and Supp. IV)), which affords an employee in respondent's situation no review of the agency's decision, precludes such a Claims Court suit.IRespondent was hired by FWS in January, 1978, as an administrative officer for the Young Adult Conservation Corps camp in Virginia Beach, Virginia. His position was in the excepted service, [Footnote 1] and was to last for the duration of the Conservation Corps program at Virginia Beach, but not beyond September 30, 1982.In November, 1980, FWS advised respondent that it intended to dismiss him for a number of reasons, including unauthorized use of a Government vehicle. After respondent replied to the charges, he received a memorandum from FWS informing him that he would be removed effective January 16, 1981. That memorandum did not advise respondent of his grievance rights under Department of the Interior regulations, which included the right to a formal hearing conducted Page 484 U. S. 442 by a grievance examiner. See Department of the Interior Federal Personnel Manual -- 231, pt. 370 DM, ch. 771, subch. 3, 3.22A (May 4, 1981). [Footnote 2]Respondent sought review of his removal with the Merit Systems Protection Board (MSPB), which dismissed his appeal in August, 1981, on the ground that, under the CSRA, a nonpreference eligible in the excepted service has no right to appeal to the MSPB. Fausto v. Department of Interior, No. PH 075281102271 (M.S.P.B. Aug. 27, 1981), aff'd, 738 F.2d 454 (CA Fed.1984) (judgment order). On September 18, 1981, FWS permanently closed the camp at Virginia Beach. In March, 1982, in response to an inquiry initiated on behalf of respondent, FWS admitted that respondent had not been informed of his grievance rights, and offered him the opportunity to challenge his removal. Respondent filed a formal grievance, and on June 30, 1982, FWS concluded, based on the administrative file and without a hearing, that respondent should not have been removed. FWS found that most of the charges against respondent were de minimis and warranted no penalty, but imposed a 30-day suspension for misuse of a Government vehicle. Se 31 U.S.C. § 638a(c)(2) (1976 ed.) (now codified at 31 U.S.C. § 1349(b)). FWS offered respondent backpay from February 15, 1981, the date his 30-day suspension would have ended, through September 18, 1981, the date the camp was closed.Respondent filed an appeal with the Department of the Interior, claiming that his suspension was unwarranted and that he was entitled to additional backpay for the period covered by the suspension as well as for the period from the date on which the camp closed through the date on which FWS admitted that he should not have been removed. The Secretary of the Interior upheld FWS's decision. Page 484 U. S. 443In February, 1983, respondent filed the present action under the Back Pay Act, 5 U.S.C. § 5596, in the Claims Court. The Claims Court dismissed, holding that the CSRA comprised the exclusive catalog of remedies for civil servants affected by adverse personnel action. 7 Cl.Ct. 459, 461 (1985). The Federal Circuit reversed and remanded, 783 F.2d 1020 (1986), holding that, although the CSRA did not afford nonpreference excepted service employees a right of appeal to the MSPB, it did not preclude them from seeking the Claims Court review traditionally available under the Tucker Act, 28 U.S.C. § 1491, based on the Back Pay Act. 783 F.2d at 1022-1023. On the merits, it found Fausto's suspension wrongful, and awarded backpay for the period of the suspension. Id. at 1023-1024. The Court of Appeals denied the Government's petition for rehearing of the case en banc, but issued a second panel opinion reaffirming its decision. 791 F.2d 1554 (1986).The Government petitioned for certiorari on the question whether a nonveteran member of the excepted service may obtain, under the Tucker Act, judicial review of adverse personnel action for which the CSRA does not provide him a right of review.IIWe have recognized that the CSRA "comprehensively overhauled the civil service system," Lindahl v. OPM, 470 U. S. 768, 470 U. S. 773 (1985), creating an elaborate "new framework for evaluating adverse personnel actions against [federal employees]," id. at 470 U. S. 774. It prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review. No provision of the CSRA gives nonpreference members of the excepted service the right to administrative or judicial review of suspension for misconduct. The question we face is whether that withholding of remedy was meant to preclude judicial review for those employees, or rather merely to leave Page 484 U. S. 444 them free to pursue the remedies that had been available before enactment of the CSRA. The answer is to be found by examining the purpose of the CSRA, the entirety of its text, and the structure of review that it establishes. See Lindahl, supra, at 470 U. S. 779; Block v. Community Nutrition Institute, 467 U. S. 340, 467 U. S. 345 (1984).A leading purpose of the CSRA was to replace the haphazard arrangements for administrative and judicial review of personnel action, part of the "outdated patchwork of statutes and rules built up over almost a century" that was the civil service system, S.Rep. No. 95-969, p. 3 (1978). Under that preexisting system, only veterans enjoyed a statutory right to appeal adverse personnel action to the Civil Service Commission (CSC), the predecessor of the MSPB. 5 U.S.C. § 7701 (1976 ed.). Other employees were afforded this type of administrative review by Executive Order. Exec.Order No. 11491, § 22, 3 CFR 874 (1966-1970 Comp.), note following 5 U.S.C. § 7301 (1976 ed.) (extending CSC review to competitive service employees). Still others, like employees in respondent's classification, had no right to such review. As for appeal to the courts: since there was no special statutory review proceeding relevant to personnel action, see 5 U.S.C. § 703, employees sought to appeal the decisions of the CSC, or the agency decision unreviewed by the CSC, to the district courts through the various forms of action traditionally used for so-called nonstatutory review of agency action, including suits for mandamus, see, e.g., Taylor v. United States Civil Service Comm'n, 374 F.2d 466 (CA9 1967), injunction, see, e.g., Hargett v. Summerfield, 100 U.S.App.D.C. 85, 243 F.2d 29 (1957), and declaratory judgment, see, e.g., Camero v. McNamara, 222 F. Supp. 742 (ED Pa.1963). See generally R. Vaughn, Principles of Civil Service Law § 5.4, p. 5-21, and nn. 13-17 (1976) (collecting cases). For certain kinds of Page 484 U. S. 445 personnel decisions, federal employees could maintain an action in the Court of Claims of the sort respondent seeks to maintain here. See, e.g., Ainsworth v. United States, 185 Ct.Cl. 110, 399 F.2d 176 (1968).Criticism of this "system" of administrative and judicial review was widespread. The general perception was that "appeals processes [were] so lengthy and complicated that managers [in the civil service] often avoid[ed] taking disciplinary action" against employees even when it was clearly warranted. S.Rep. No. 95-969, at 9. With respect to judicial review in particular, there was dissatisfaction with the "wide variations in the kinds of decisions . . . issued on the same or similar matters," id. at 63, which were the product of concurrent jurisdiction, under various bases of jurisdiction, of the district courts in all Circuits and the Court of Claims. Moreover, as the Court of Appeals for the District of Columbia Circuit repeatedly noted, beginning the judicial process at the district court level, with repetition of essentially the same review on appeal in the court of appeals, was wasteful and irrational. See Polcover v. Secretary of Treasury, 155 U.S.App.D.C. 338, 341-342, 477 F.2d 1223, 1226-1228 (1973)Congress responded to this situation by enacting the CSRA, which replaced the patchwork system with an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration. See S.Rep. No. 95-969, at 4. Three main sections of the CSRA govern personnel action taken against members of the civil service. In each of these sections, Congress deals explicitly with the situation of nonpreference members of the excepted service, granting them limited, and in some cases conditional, rights.Chapter 43 of the CSRA governs personnel actions based on unacceptable job performance. It applies to both competitive Page 484 U. S. 446 service employees and members of the excepted service. 5 U.S.C. § 4301. It provides that, before an employee can be removed or reduced in grade for unacceptable job performance, certain procedural protections must be afforded, including 30 days' advance written notice of the proposed action, the right to be represented by an attorney or other representative, a reasonable period of time in which to respond to the charges, and a written decision specifying the instances of unacceptable performance. § 4303(b)(1). Although Congress extended these protections to nonpreference members of the excepted service, it denied them the right to seek either administrative or judicial review of the agency's final action. Chapter 43 gives only competitive service employees and preference eligible members of the excepted service the right to appeal the agency's decision to the MSPB and then to the Federal Circuit. § 4303(e).Chapter 23 of the CSRA establishes the principles of the merit system of employment, § 2301, and forbids an agency to engage in certain "prohibited personnel practices," including unlawful discrimination, coercion of political activity, nepotism, and reprisal against so-called whistleblowers. § 2302. Nonpreference excepted service employees who are not in positions of a confidential or policymaking nature are protected by this chapter, § 2302(a)(2)(B), and are given the right to file charges of "prohibited personnel practices" with the Office of Special Counsel of the MSPB, whose responsibility it is to investigate the charges and, where appropriate, to seek remedial action from the agency and the MSPB. § 1206.Chapter 75 of the Act governs adverse action taken against employees for the "efficiency of the service," which includes action of the type taken here, based on misconduct. Subchapter I governs minor adverse action (suspension for 14 days or less), §§ 7501-7504, and Subchapter II governs major Page 484 U. S. 447 adverse action (removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less), §§ 7511-7514. In each subchapter, covered employees are given procedural protections similar to those contained in Chapter 43, §§ 7503(b), 7513(b), and in Subchapter II covered employees are accorded administrative review by the MSPB, followed by judicial review in the Federal Circuit. §§ 7513(d), 7703. The definition of "employee[s]" covered by Subchapter II (major adverse action) specifically includes preference eligibles in the excepted service, § 7511(a)(1)(B), but does not include other members of the excepted service. The Office of Personnel Management is, however, given authority to extend coverage of Subchapter II to positions in the excepted service that have that status because they have been excluded from the competitive service by OPM regulation. § 7511(c).The Court of Appeals viewed the exclusion of nonpreference members of the excepted service from the definitional sections of Chapter 75 as congressional silence on the issue of what review these employees should receive for the categories of personnel action covered by that chapter, including a suspension of the duration at issue here, which would come within Subchapter II. The court therefore found respondent free to pursue whatever judicial remedies he would have had before enactment of the CSRA. We view the exclusion quite differently. In the context of the entire statutory scheme, we think it displays a clear congressional intent to deny the excluded employees the protections of Chapter 75 -- including judicial review -- for personnel action covered by that chapter.In Block v. Community Nutrition Institute, 467 U.S. at 467 U. S. 345-348, we observed that, under the Agricultural Marketing Agreement Act of 1937, the omission of review procedures for consumers affected by milk market orders, coupled with Page 484 U. S. 448 the provision of such procedures for milk handlers so affected, was strong evidence that Congress intended to preclude consumers from obtaining judicial review. Similarly, in United States v. Erika, Inc., 456 U.S. 201 (1982), we found that, in the context of the "precisely drawn provisions" of the Medicare statute, the provision of judicial review for awards made under Part A of the statute, coupled with the omission of judicial review for awards under Part B, "provides persuasive evidence that Congress deliberately intended to foreclose further review of such claims." Id. at 456 U. S. 208 (citations omitted). The same type of analysis applies here. The comprehensive nature of the CSRA, the attention that it gives throughout to the rights of nonpreference excepted service employees, and the fact that it does not include them in provisions for administrative and judicial review contained in Chapter 75, combine to establish a congressional judgment that those employees should not be able to demand judicial review for the type of personnel action covered by that chapter. Their exclusion from the scope of those protections can hardly be explained on the theory that Congress simply did not have them in mind, since, as noted earlier, Congress specifically included in Chapter 75 preference eligible excepted service employees, § 7511(a)(1)(B), and specifically provided for optional inclusion (at the election of OPM) of certain nonpreference excepted service employees with respect to certain protections of the chapter, including MSPB and judicial review, § 751 1(c). (Respondent, incidentally, falls within the category eligible for that optional inclusion, see ibid.; 5 CFR § 213.3102(hh) (1978), which OPM has chosen not to invoke.) It seems to us evident that the absence of provision for these employees to obtain judicial review is not an uninformative consequence of the limited scope of the statute, but rather manifestation of a considered congressional judgment that they should not have statutory Page 484 U. S. 449 entitlement to review for adverse action of the type governed by Chapter 75.This conclusion emerges not only from the statutory language, but also from what we have elsewhere found to be an indicator of nonreviewability, the structure of the statutory scheme. Block v. Community Nutrition Institute, supra, at 467 U. S. 345; see Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444, 442 U. S. 456-459 (1979). Two structural elements important for present purposes are clear in the framework of the CSRA: first, the preferred position of certain categories of employees -- competitive service employees and "preference eligibles" (veterans). See 5 U.S.C. §§ 4303(e), 7501(1), 7503, 7511(a)(1), 7513. This is, of course, not an innovation of the CSRA, but continuation of a traditional feature of the civil service system. See Veterans Preference Act of 1944, ch. 287, § 14, 58 Stat. 390; Exec.Order No. 10988, § 14, 3 CFR 527 (1959-1963 Comp.). The second structural element is the primacy of the MSPB for administrative resolution of disputes over adverse personnel action, 5 U.S.C. §§ 1205, 4303(e), 7513(d), 7701 (1982 ed. and Supp. IV), and the primacy of the United States Court of Appeals for the Federal Circuit for judicial review, § 7703. This enables the development, through the MSPB, of a unitary and consistent Executive Branch position on matters involving personnel action, avoids an "unnecessary layer of judicial review" in lower federal courts, and "[e]ncourages more consistent judicial decisions. . . ." S.Rep. No. 95-969, at 52; see Lindahl v. OPM, 470 U.S. at 470 U. S. 797-798.Interpreting the exclusion of nonpreference excepted service personnel from Chapter 75 as leaving them free to pursue other avenues of review would turn the first structural element upside down, and would seriously undermine the second. As to the former: under respondent's view, he would be able to obtain judicial review of a 10-day suspension for Page 484 U. S. 450 misconduct, even though a competitive service employee would not, since Chapter 75 makes MSPB review, and hence judicial review, generally unavailable for minor adverse personnel action, including suspensions of less than 14 days. [Footnote 3] Moreover, this inverted preference shown to nonpreference excepted service employees would be shown as well to probationary employees, another disfavored class. See 5 U.S.C. § 4303(f)(2) (expressly excluding probationary employees from review under Chapter 43); § 7511(a)(1)(A) (expressly excluding probationary employees from Chapter 75); S.Rep. No. 95-969, at 45 ("It is inappropriate to restrict an agency's authority to separate an employee who does not perform acceptably during the [probationary period]"). Since probationary employees, like nonpreference excepted service employees, are excluded from the definition of "employee" for purposes of Chapter 75, respondent's theory that persons so excluded retain their pre-CSRA remedies must apply to them as well. And as it happens, the very case relied upon by the Federal Circuit as demonstrating the pre-CSRA right to Court of Claims review involved a probationary employee. See Greenway v. United States, 163 Ct.Cl. 72 (1963). [Footnote 4] Page 484 U. S. 451The manner in which respondent's interpretation would undermine the second structural element of the Act is obvious. First, for random categories of employees, legally enforceable employment entitlements will exist that are not subject to the unifying authority, in consistency of factfinding as well as interpretation of law, of the MSPB. Second, for these same employees, the second layer of judicial review, which Congress meant to eliminate, would persist, see Lindahl, supra, at 470 U. S. 797-798, since pre-CSRA causes of action had to be commenced in the federal courts of first instance, rather than in the courts of appeals. Finally, for certain kinds of actions, these employees would be able to obtain review in the district courts and the regional courts of appeals throughout the country, undermining the consistency of interpretation by the Federal Circuit envisioned by § 7703 of the Act. Although a Tucker Act suit is appealable only to the Federal Circuit, regardless of whether it is brought in the Claims Court or in district court, see 28 U.S.C. §§ 1295(a)(2), 1295(a)(3), 1346(a)(2), actions brought under the other statutes used to obtain judicial review before the CSRA, see supra, at 484 U. S. 445, would be appealable to the various regional Circuits. When, as would often be the case, particular agency action could be challenged under either the Tucker Act or one of the other bases of jurisdiction, an agency office would not know whether to follow the law of its geographical Circuit or the conflicting law of the Federal Circuit. This, and the other consequences of respondent's theory that the pre-CSRA remedies of nonpreference excepted service employees were not meant to be affected by the Act, are inherently implausible. [Footnote 5] Page 484 U. S. 452Amicus contends that interpreting the CSRA to foreclose review in this case is contrary to two well-established principles of statutory construction. The first is that Congress will be presumed to have intended judicial review of agency action to be available unless there is "persuasive reason" to believe otherwise. Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 140 (1967). We agree with the principle, but find ample basis for applying the exception it contains. As we have made clear elsewhere, the presumption favoring judicial review is not to be applied in the "strict evidentiary sense," but may be "overcom[e] whenever the congressional intent to preclude review is fairly discernible in the statutory scheme.'" Block v. Community Nutrition Institute, 467 U.S. at 467 U. S. 351 (quoting Data Processing Service v. Camp, 397 U. S. 150, 397 U. S. 157 (1970)). Here, as in Block, we think Congress' intention is fairly discernible, and that "the presumption favoring judicial review . . . [has been] overcome by inferences of intent drawn from the statutory scheme as a whole." 467 U.S. at 467 U. S. 349.The other principle of statutory construction to which amicus appeals is the doctrine that repeals by implication are strongly disfavored, Rodriguez v. United States, 480 U.S. Page 484 U. S. 453 522, 524 (1987); Regional Rail Reorganization Act Cases, 419 U. S. 102, 419 U. S. 133 (1974), so that a later statute will not be held to have implicitly repealed an earlier one unless there is a clear repugnancy between the two, Georgia v. Pennsylvania R. Co., 324 U. S. 439, 324 U. S. 456-457 (1945); Wood v. United States, 16 Pet. 342, 41 U. S. 362-363 (1842). This means, amicus asserts, that, absent an express statement to the contrary, the CSRA cannot be interpreted to deprive respondent of the the statutory remedy he possessed under the Back Pay Act.Once again we agree with the principle, but do not find it applicable here. Repeal by implication of an express statutory text is one thing; it can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change. See, e.g., Morton v. Mancari, 417 U. S. 535 (1971) (Equal Employment Opportunity Act of 1972, 86 Stat. 103 42 U.S.C. § 2000e et seq. (1970 ed., Supp. 1I), did not negate employment preference for Indians expressly established by the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S.C. § 461 et seq.). But repeal by implication of a legal disposition implied by a statutory text is something else. The courts frequently find Congress to have done this -- whenever, in fact, they interpret a statutory text in the light of surrounding texts that happen to have been subsequently enacted. This classic judicial task of reconciling many laws enacted over time, and getting them to "make sense" in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute. And that is what we have here. By reason of the interpretation we adopt today, the Back Pay Act does not stand repealed, but remains an operative part of the integrated statutory scheme set up by Congress to protect civil servants. All that we find to have been "repealed" by the CSRA is the judicial interpretation of the Back Pay Act -- or, if you will, the Back Pay Act's implication -- allowing review in the Court of Claims of the underlying personnel decision giving rise to the claim for backpay. Page 484 U. S. 454To be more explicit: the Back Pay Act provides in pertinent part:"An employee of an agency who, on the basis of a timely appeal or an administrative determination . . . is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action . . . [is entitled to back pay]."5 U.S.C. § 5596(b)(1) (emphasis added). Before enactment of the CSRA, regulations promulgated by the Civil Service Commission provided that a court authorized to correct, or to direct the correction of, an unjustified personnel action was an "appropriate authority" within the meaning of the Back Pay Act. 5 CFR § 550.803(c) (1968). And the Court of Claims had held (with some circularity of reasoning) that it was such a court because it had jurisdiction to award backpay. Ainsworth v. United States, 185 Ct.Cl., at 118-119, 399 F.2d at 181. Without disagreeing with that determination made in the context of the preexisting patchwork scheme, see supra at 484 U. S. 444-445, we find that, under the comprehensive and integrated review scheme of the CSRA, the Claims Court (and any other court relying on Tucker Act jurisdiction) is not an "appropriate authority" to review an agency's personnel determination. This does not mean that the statutory remedy provided in the Back Pay Act is eliminated, or even that the conditions for invoking it are in any way altered. Now, as previously, if an employee is found by an "appropriate authority" to have undergone an unwarranted personnel action a suit for backpay will lie. Post-CSRA, such an authority would include the agency itself, or the MSPB or the Federal Circuit where those entities have the authority to review the agency's determination. It seems to us that what respondent would have us invoke is a rule akin to the doctrine that statutes in derogation of the common law will be strictly construed -- that is, a presumption against any change, rather than a presumption against Page 484 U. S. 455 implicit repeal of a statute. We decline to embrace that principle.The CSRA established a comprehensive system for reviewing personnel action taken against federal employees. Its deliberate exclusion of employees in respondent's service category from the provisions establishing administrative and judicial review for personnel action of the sort at issue here prevents respondent from seeking review in the Claims Court under the Back Pay Act. Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtUnited States v. Fausto, 484 U.S. 439 (1988)United States v. FaustoNo. 86-595Argued October 7, 1987Decided January 25, 1988484 U.S. 439SyllabusIn November, 1980, the Department of the Interior Fish and Wildlife Service (FWS) advised respondent, a nonpreference eligible employee in the excepted service, that it intended to dismiss him for a number of reasons, including unauthorized use of a Government vehicle. After he was discharged without being informed of grievance rights granted to him by the FWS regulations, respondent sought review by the Merit Systems Protection Board (MSPB), which dismissed his appeal on the ground that, under the Civil Service Reform Act of 1978 (CSRA), a nonpreference eligible in the excepted service has no right to appeal to the MSPB. In 1982, the FWS reconsidered the matter, concluded that only a 30-day suspension for misuse of a Government vehicle was warranted, and offered respondent backpay from the date the suspension would have ended until the date the program for which he was hired closed. On respondent's appeal, the Secretary of the Interior upheld the FWS decision, rejecting respondent's claims that his suspension was unwarranted and that he was entitled to additional backpay for the 30 days and a period beyond the close of the program. Respondent then filed this action under the Back Pay Act in the Claims Court, which dismissed on the ground that the CSRA was exclusively applicable and did not provide for judicial review in this situation. The Court of Appeals reversed and remanded, holding that respondent could seek Claims Court review traditionally available under the Tucker Act based on the Back Pay Act, that his suspension was wrongful, and that he was entitled to backpay for the period of the suspension.Held: The CSRA, which affords to nonpreference eligibles in the excepted service no administrative or judicial review of adverse personnel action of the type involved here, precludes judicial review for those employees under the Tucker Act based on the Back Pay Act. The CSRA was designed to replace the haphazard arrangements that had built up over almost a century with one integrated system for administrative and judicial review of adverse personnel action. The Act's comprehensive nature, its attention throughout to the rights of nonpreference excepted service employees, and the structure of the Act combine to establish that its failure to include these employees in the provisions for administrative and judicial review of the type of adverse personnel action involved Page 484 U. S. 440 here represents a congressional judgment that judicial review is not available. Interpreting the CSRA to foreclose review in this case is not contrary to the established principle of statutory construction that Congress will be presumed to have intended judicial review of agency action unless there is "persuasive reason" to believe otherwise. Here, in view of the statutory scheme, there is ample basis for applying the exception contained in the principle. Moreover, the principle of statutory construction disfavoring repeals by implication is not applicable here with regard to the CSRA's effect on the Back Pay Act. Rather, the classic judicial task of reconciling laws is involved. Pp. 484 U. S. 443-455.783 F.2d 1020 and 791 F.2d 1554, reversed.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 484 U. S. 455. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 484 U. S. 455.

1986_86-509

JUSTICE STEVENS delivered the opinion of the Court.As part of its major effort to reduce the federal deficit through the Deficit Reduction Act of 1984, 98 Stat. 494, Congress amended the statute authorizing Federal Aid to Families with Dependent Children (AFDC) [Footnote 1] to require that a family's eligibility for benefits must take into account, with certain specified exceptions, the income of all parents, brothers, and sisters living in the same home. [Footnote 2] The principal Page 483 U. S. 590 question presented in this litigation is whether that requirement violates the Fifth Amendment to the United States Constitution when it is applied to require a family wishing to receive AFDC benefits to include within its unit a child for whom child support payments are being made by a noncustodial parent.IThis litigation began in 1970. At that time, the federal statute did not require that all parents and siblings be included in an AFDC filing unit. Thus, for example, if a teenage child had significant income of her own, perhaps from wages or perhaps in support payments from an absent parent, the other members of her family could exclude her from the filing unit in order to avoid disqualifying the entire family from benefits or reducing its level of benefits.Beaty Mae Gilliard, one of the named class members in the 1970 suit, [Footnote 3] began receiving public assistance from North Carolina Page 483 U. S. 591 under AFDC in 1962. In February, 1970, after her seventh child was born, the State automatically included him in the filing unit, thereby increasing the family's monthly allotment from $217 to $227 to reflect the difference between the benefit for a family of seven and the benefit for a family of eight. Gilliard was, however, also receiving $43.33 each month in child support from the baby's father. When a formal parental support order was entered in April, 1970, the State credited the support payments against her account and reduced her monthly benefit to $184. Gilliard sued, contending that she had a statutory right to exclude her seventh child from the unit, and thus to continue to receive the $217 benefit for a family of seven and also to retain the $43.33 paid by her youngest child's father. A three-judge District Court agreed with her reading of the statute and entered an order requiring the State to reinstate her benefits at the $217 level and to reimburse her for the improper credits of $43 per month. Gilliard v. Craig, 331 F. Supp. 587 (WDNC 1971). The District Court also granted class-wide relief. We affirmed that judgment. 409 U.S. 807 (1972). No constitutional question was decided at that time.Congress amended the AFDC program in 1975 to require, as a condition of eligibility, that applicants for assistance must assign to the State any right to receive child support payments for any member of the family included in the filing unit. [Footnote 4] In response, North Carolina amended its laws to provide Page 483 U. S. 592 that the acceptance of public assistance on behalf of a dependent child would constitute an assignment of any right to support for that child. See N.C.Gen.Stat. § 110-137 (Supp.1985). These amendments, however, did not harm recipients like Gilliard, because they did not affect the right to define the family unit covered by an application, and thereby to exclude children with independent income, such as a child for whom support payments were being made.In 1983, the Secretary of Health and Human Services proposed certain amendments to the Social Security Act to "assure that limited Federal and State resources are spent as effectively as possible." Letter of 25 May 1983, to the Honorable George Bush, President of the Senate, App. 168-169 (hereinafter Heckler Letter). One of the Secretary's proposals was"to establish uniform rules on the family members who must file together for AFDC, and the situations in which income must be counted. In general, the parents, sisters, and brothers living together with a dependent child must all be included; the option of excluding a sibling with income, for example, would no longer be available."Ibid. The Secretary stressed that the improvements would result in an AFDC allocation program that "much more realistically reflects the actual home situation." Id. at 169.The Secretary's proposal was not enacted in 1983, but one of the provisions in the Deficit Reduction Act of 1984 (DEFRA) established a standard filing unit for the AFDC program. The Senate Finance Committee estimated that the change would save $455 million during the next three fiscal years. S. Print No. 98-169, p. 980 (1984) (hereinafter Senate Print). It explained the purpose of the amendment Page 483 U. S. 593 in language that removes any possible ambiguity in the relevant text of the statute: [Footnote 5]"Present Law" "There is no requirement in present law that parents and all siblings be included in the AFDC filing unit. Families applying for assistance may exclude from the filing unit certain family members who have income which might reduce the family benefit. For example, a family might choose to exclude a child who is receiving social security or child support payments, if the payments would reduce the family s benefits by an amount greater than the amount payable on behalf of the child. . . .""Explanation of Provision" "The provision approved by the Committee would require States to include in the filing unit the parents and all dependent minor siblings (except SSI recipients and any stepbrothers and stepsisters) living with a child who applies for or receives AFDC. . . .""This change will end the present practice whereby families exclude members with income in order to maximize family benefits, and will ensure that the income of family members who live together and share expenses is Page 483 U. S. 594 recognized and counted as available to the family as a whole."Ibid. See also H.R.Conf.Rep. No. 98-861, p. 1407 (1984).Because the 1984 amendment forced families to include in the filing unit children for whom support payments were being received, the practical effect was that many families' total income was reduced. [Footnote 6] The burden of the change was mitigated somewhat by a separate amendment providing that the first $50 of child support collected by the State must be remitted to the family, and not counted as income for the purpose of determining its benefit level. [Footnote 7] See 42 U.S.C. §§ 602(a)(8)(A)(vi), 657(b)(1) (1982 ed., Supp. III). Thus, the net effect of the 1984 amendments for a family comparable to Gilliard's would include three changes: (1) the addition of the child receiving support would enlarge the filing unit and entitle the family to a somewhat larger benefit; (2) child support would be treated as family income, and would be assigned to the State, thereby reducing the AFDC benefits by that amount; and (3) the reduction would be offset by $50 if that amount was collected from an absent parent. In sum, if the assigned support exceeded $50 plus the difference in the benefit level caused by adding the child or children receiving support, the family would suffer; if less than $50 and the difference in the benefit level was collected as support, it would not. Page 483 U. S. 595IIAfter North Carolina adopted regulations to comply with the 1984 amendments, some members of the class that had earlier obtained relief filed a motion to reopen the 1971 decree and obtain further relief on behalf of the class. The State impleaded the Secretary of Health and Human Services, contending that, if the State's compliance with the federal statute resulted in any liability to appellees, the Federal Government should share in any payment of additional AFDC benefits. The District Court found that North Carolina's and the Department of Health and Human Services' regulations were in conformance with the statute, [Footnote 8] but concluded that the statutory scheme violated both the Due Process Clause and the Takings Clause of the Fifth Amendment. [Footnote 9]The court interpreted North Carolina law as imposing a duty on the custodial parent to use child support money exclusively for the benefit of the child for whom it had been obtained, [Footnote 10] and reasoned that a forced assignment of the support Page 483 U. S. 596 money to the State in exchange for AFDC benefits for the entire family was a taking of the child's private property. Gilliard v. Kirk, 633 F. Supp. 1529, 1551-1555 (WDNC 1986). Additionally, the court reasoned that the use of the child's support money to reduce the Government's AFDC expenditures was tantamount to punishing the child for exercising the fundamental right to live with his or her family. Id. at 1557. Because of the serious impact on the autonomy of the family -- including the child's potential relationship with his or her noncustodial parent -- "special judicial scrutiny" was considered appropriate, id. at 1555-1557, and the deprivation of property and liberty effected by the statutory scheme could not, in the court's view, survive such scrutiny. We noted probable jurisdiction, 479 U.S. 1004 (1986).The District Court was undoubtedly correct in its perception that a number of needy families have suffered, and will suffer, as a result of the implementation of the DEFRA amendments to the AFDC program. Such suffering is frequently the tragic byproduct of a decision to reduce or to modify benefits to a class of needy recipients. Under our structure of government, however, it is the function of Congress -- not the courts -- to determine whether the savings realized, and presumably used for other critical governmental functions, are significant enough to justify the costs to the individuals affected by such reductions. The Fifth Amendment "gives the federal courts no power to impose upon [Congress] their views of what constitutes wise economic or social policy," by telling it how "to reconcile the demands of . . . Page 483 U. S. 597 needy citizens with the finite resources available to meet those demands." Dandridgev. Williams, 397 U. S. 471, 397 U. S. 486, 397 U. S. 472 (1970). Unless the Legislative Branch's decisions run afoul of some constitutional edict, any inequities created by such decisions must be remedied by the democratic processes. The District Court believed that the amendment at issue did conflict with both the Due Process Clause and the Takings Clause of the Fifth Amendment. [Footnote 11] We consider these arguments in turn, and reject them. [Footnote 12] Page 483 U. S. 598IIIThe precepts that govern our review of appellees' due process and equal protection challenges to this program are similar to those we have applied in reviewing challenges to other parts of the Social Security Act:"[O]ur review is deferential. "Governmental decisions to spend money to improve the general public welfare in one way and not another are not confided to the courts. The discretion belongs to Congress unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.'" Mathews v. De Castro, 429 U. S. 181, 429 U. S. 185 (1976), quoting Helvering v. Davis, 301 U. S. 619, 301 U. S. 640 (1937)." Bowen v. Owens, 476 U. S. 340, 476 U. S. 345 (1986). This standard of review is premised on Congress'"plenary power to define the scope and the duration of the entitlement to . . . benefits, and to increase, to decrease, or to terminate those benefits based on its appraisal of the relative importance of the recipients' needs and the resources available to fund the program."Atkins v. Parker, 472 U. S. 115, 472 U. S. 129 (1985); see also Schweiker v. Hogan, 457 U. S. 569 (1982); Califano v. Boles, 443 U. S. 282, 443 U. S. 296 (1979); California v. Aznavorian, 439 U. S. 170 (1978); Weinberger v. Salfi, 422 U. S. 749 (1975).The District Court had before it evidence that the DEFRA amendment was severely impacting some families. For example, some noncustodial parents stopped making their support payments because they believed that their payments were helping only the State, and not their children. 633 F. Supp. at 1542-1543. It is clear, however, that in the administration of a fund that is large enough to have a significant Page 483 U. S. 599 impact on the Nation's deficit, general rules must be examined in light of the broad purposes they are intended to serve. [Footnote 13] The challenged amendment unquestionably serves Congress' goal of decreasing federal expenditures. See Senate Print, at 981 (estimating that amendment in AFDC program will save $455 million during fiscal years 1984 through 1987); 130 Cong.Rec. 8368 (1984) (remarks of Sen. Dole). The evidence that a few noncustodial parents were willing to violate the law by not making court-ordered support payments does not alter the fact that the entire program has resulted in saving huge sums of money.The rationality of the amendment denying a family the right to exclude a supported child from the filing unit is also supported by the Government's separate interest in distributing benefits among competing needy families in a fair way. Given its perceived need to make cuts in the AFDC budget, Congress obviously sought to identify a group that would suffer less than others as a result of a reduction in benefits. When considering the plight of two five-person families, one of which receives no income at all while the other receives regular support payments for some of the minor children, it is surely reasonable for Congress to conclude that the former is in greater need than the latter. This conclusion is amply supported by Congress' assumption that child support payments received are generally beneficial to the entire family unit, see Senate Print, at 980, and by "the common sense proposition that individuals living with others usually have reduced per capita costs because many of their expenses are shared." Termini v. Califano, 611 F.2d 367, 370 (CA2 1979); Page 483 U. S. 600 see also Lyng v. Castillo, 477 U. S. 635, 477 U. S. 638-643 (1986). [Footnote 14]It was therefore rational for Congress to adjust the AFDC program to reflect the fact that support money generally provides significant benefits for entire family units. This conclusion is not undermined by the fact that there are no doubt many families in which some -- or perhaps all -- of the support money is spent in a way that does not benefit the rest of the family. In determining how best to allocate limited funds among the extremely large class of needy families eligible for AFDC benefits, Congress is entitled to rely on a class-wide presumption that custodial parents have used, and may legitimately use, support funds in a way that is beneficial to entire family units. As we have repeatedly explained:"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 Page 483 U. S. 601 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. 69-70. "A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U. S. 420, 366 U. S. 426.Dandridge v. Williams, 397 U.S. at 397 U. S. 485. See also Weinberger v. Salfi, 422 U.S. at 422 U. S. 785. We have no doubt that the DEFRA amendment satisfies this test. [Footnote 15]Appellees argue (and the District Court ruled), however, that finding that Congress acted rationally is not enough to sustain this legislation. Rather, they claim that some form of "heightened scrutiny" is appropriate, because the amendment interferes with a family's fundamental right to live in the type of family unit it chooses. [Footnote 16] We conclude that the District Court erred in subjecting the DEFRA amendment to any form of heightened scrutiny. That some families may decide to modify their living arrangements in order to avoid the effect of the amendment does not transform the amendment Page 483 U. S. 602 into an act whose design and direct effect are to "intrud[e] on choices concerning family living arrangements." Moore v. East Cleveland, 431 U. S. 494, 431 U. S. 499 (1977). [Footnote 17] As was the case with the marriage-related provision upheld in Califano v. Jobst, 434 U. S. 47 (1977),"Congress adopted this rule in the course of constructing a complex social welfare system that necessarily deals with the intimacies of family life. This is not a case in which government seeks to foist orthodoxy on the unwilling."Id. at 434 U. S. 54, n. 11.Last Term, we rejected a constitutional challenge to a provision in the Federal Food Stamp Program which determines eligibility and benefit levels on a "household," rather than an individual, basis. Lyng v. Castillo, 477 U. S. 635 (1986). [Footnote 18] We held that the guarantee of equal treatment in the Due Process Clause of the Fifth Amendment was not violated by the statutory requirement that generally treated parents, children, and siblings who lived together as a single household, and explained:"The disadvantaged class is that comprised by parents, children, and siblings. Close relatives are not a 'suspect' or 'quasi-suspect' class. As a historical matter, they have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless. See, e.g., 427 U. S. Murgia, 427 Page 483 U. S. 603 U.S. 307, 427 U. S. 313-314 (1976) (per curiam). In fact, quite the contrary is true.""Nor does the statutory classification 'directly and substantially' interfere with family living arrangements, and thereby burden a fundamental right. Zablocki v. Redhail, 434 U. S. 374, 434 U. S. 386-387, and n. 12 (1978). See id. at 434 U. S. 403-404 (STEVENS, J., concurring); Califano v. Jobst, 434 U. S. 47, 434 U. S. 58 (1977)."Id. at 477 U. S. 638. In light of this, we concluded in Lyng that the "District Court erred in judging the constitutionality of the statutory distinction under heightened scrutiny.'" Ibid. In this case, the District Court committed the same error. As in Lyng, the standard of review here is whether "Congress had a rational basis" for its decision. Id. at 477 U. S. 639. And as in Lyng, "the justification for the statutory classification is obvious." Id. at 477 U. S. 642. The provisions at issue do not violate the Due Process Clause. [Footnote 19]IVAside from holding that the amendment violated the Due Process Clause of the Fifth Amendment and its equal protection component, the District Court invalidated the DEFRA Page 483 U. S. 604 amendments as a taking of private property without just compensation. The court based this holding on the premise that a child for whom support payments are made has a right to have the support money used exclusively in his or her "best interest." Yet, the court reasoned, the requirements (1) that a custodial parent who applies for AFDC must include a child's support money in computing family income, and (2) that the support must be assigned to the State, effectively converts the support funds that were once to be used exclusively for the child's best interests into an AFDC check which, under federal law, must be used for the benefit of all the children. § 405, 42 U.S.C. § 605. Therefore, the District Court held that the State was "taking" that child's right to exclusive use of the support money. In addressing this issue, it is helpful to look first at whether the State "takes" the child's property when it considers the support payments as part of the family's income in computing AFDC eligibility. We will then consider whether the requirement that support payments be assigned to the State requires a finding that the amendments violate the taking prohibition.Some perspective on the issue is helpful here. Had no AFDC program ever existed until 1984, and had Congress then instituted a program that took into account support payments that a family receives, it is hard to believe that we would seriously entertain an argument that the new benefit program constituted a taking. Yet, somehow, once benefits are in place and Congress sees a need to reduce them in order to save money and to distribute limited resources more fairly, the "takings" label seems to have a bit more plausibility. For legal purposes though, the two situations are identical. See Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U. S. 41 (1986). Congress is not, by virtue of having instituted a social welfare program, bound to continue it at all, much less at the same benefit level. Thus, notwithstanding the technical legal arguments that have been advanced, it is imperative to recognize that Page 483 U. S. 605 the amendments at issue merely incorporate a definitional element into an entitlement program. It would be quite strange indeed if, by virtue of an offer to provide benefits to needy families through the entirely voluntary AFDC program, Congress or the States were deemed to have taken some of those very family members' property.The basic requirement that the AFDC filing unit must include all family members living in the home, and therefore that support payments made on behalf of a member of the family must be considered in determining that family's level of benefits, does not even arguably take anyone's property. The family members other than the child for whom the support is being paid certainly have no takings claim, since it is clear that they have no protected property rights to continued benefits at the same level. See Public Agencies Opposed to Social Security Entrapment, supra. Nor does the simple inclusion of the support income in the benefit calculation have any legal effect on the child's right to have it used for his or her benefit. To the extent that a child has the right to have the support payments used in his or her "best interest," he or she fully retains that right. Of course, the effect of counting the support payments as part of the filing unit's income often reduces the family's resources, and hence increases the chances that sharing of the support money will be appropriate. See n 13, supra. But given the unquestioned premise that the Government has a right to reduce AFDC benefits generally, that result does not constitute a taking of private property without just compensation.The only possible legal basis for appellees' takings claim, therefore, is the requirement that an applicant for AFDC benefits must assign the support payments to the State, which then will remit the amount collected to the custodial parent, to be used for the benefit of the entire family. This legal transformation in the status of the funds, the argument goes, modifies the child's interest in the use of the money so dramatically that it constitutes a taking of the child's Page 483 U. S. 606 property. As a practical matter, this argument places form over substance, and labels over reality. Although it is true that money which was earmarked for a specific child's or children's "best interest" becomes a part of a larger fund available for all of the children, the difference between these concepts is, as we have discussed, more theoretical than practical. [Footnote 20]In evaluating whether governmental regulation of property constitutes a "taking," we have"eschewed the development of any set formula, . . . and have relied instead on ad hoc, factual inquiries into the circumstances of each particular case."Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211, 475 U. S. 224 (1986)."To aid in this determination, however, we have identified three factors which have 'particular significance': (1) 'the economic impact of the regulation on the claimant'; (2) 'the extent to which the regulation has interfered with distinct investment-backed expectations'; and (3) 'the character of the governmental action.' Penn Central Transportation Co., [438 U.S. 104,] 438 U. S. 124."Id. at 475 U. S. 224-225. Here, each of these three factors refutes the conclusion that there has been a taking.First, in evaluating the economic impact of the assignment, it is important to remember that it is the impact on the child, not on the entire family unit, that is relevant. Thus, the fact Page 483 U. S. 607 that the entire family's net income may be reduced does not necessarily mean that the amount of money spent for the benefit of a supported child will be any less than the amount of the noncustodial parent's support payments. The reality is that the money will usually continue to be used in the same manner that it was previously, since the typical AFDC parent will have used the support money as part of the general family fund even without its being transferred through AFDC. See n 13, supra. Moreover, any diminution in the value of the support payments for the child is mitigated by the extra $50 that the family receives as a result of the assignment, by the extra AFDC benefits that are received by the inclusion of an additional family member in the unit, and by the fact that the State is using its own enforcement power to collect the support payments, and is bearing the risk of nonpayment in any given month. Whatever the diminution in value of the child's right to have support funds used for his or her "exclusive" benefit may be, it is not so substantial as to constitute a taking under our precedents. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 480 U. S. 493-497 (1987); Agins v. Tilburon, 447 U. S. 255, 447 U. S. 260 (1980); Penn Central Transportation Co. v. New York City, 438 U. S. 104, 438 U. S. 131 (1978).Second, the child receiving support payments holds no vested protectable expectation that his or her parent will continue to receive identical support payments on the child's behalf, and that the child will enjoy the same rights with respect to them. See Layton v. Layton, 263 N.C. 453, 456, 139 S.E.2d 732, 734 (1965) (support is "not a property right of the child"). The prospective right to support payments, and the child's expectations with respect to the use of such funds, are clearly subject to modification by law, be it through judicial decree, state legislation, or congressional enactment. See N.C.Gen.Stat. § 50-13.7 (1984) (modification of order for child support). For example, one of the chief criteria in assessing a child support obligation is the noncustodial parent's ability to make payments, see Coggins Page 483 U. S. 608 v. Coggins, 260 N.C. 765, 133 S.E.2d 700 (1963); Douglas, Factors in Determining Child Support, 36 Juvenile & Fam.Court J., No. 3, p. 27 (1985), and an adverse change in that parent's ability may, of course, require a modification of the decree. 2 J. Atkinson, Modern Child Custody Practice § 10.25, pp. 527-528 (1986) (discussing reductions in support). Any right to have the State force a noncustodial parent to make payments is, like so many other legal rights (including AFDC payments themselves), subject to modification by "the public acts of government." Reichelderfer v. Quinn, 287 U. S. 315, 287 U. S. 319 (1932); see generally Public Agencies Opposed to Social Security Entrapment, 477 U.S. at 477 U. S. 51-56. As the District Court explained, Congress, and the States, through their implementing statutes and regulations, have modified those rights through passage of (and the States' compliance with) the DEFRA amendments. See 633 F.Supp. at 1548-1551; Gorrie v. Bowen, 809 F.2d 508, 521 (CA8 1987). This prospective change in the child's expectations concerning future use of support payments is far from anything we have ever deemed a taking.Finally, the character of the governmental action here militates against a finding that the States or Federal Government unconstitutionally take property through the AFDC program. It is obviously necessary for the Government to make hard choices and to balance various incentives in deciding how to allocate benefits in this type of program. But a decision to include child support as part of the family income certainly does not implicate the type of concerns that the Takings Clause protects. This is by no means an enactment that forces "some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U. S. 40, 364 U. S. 49 (1960).The law does not require any custodial parent to apply for AFDC benefits. Surely it is reasonable to presume that a Page 483 U. S. 609 parent who does make such an application does so because she or he is convinced that the family as a whole -- as well as each child committed to her or his custody -- will be better off with the benefits than without. In making such a decision, the parent is not taking a child's property without just compensation; nor is the State doing so when it responds to that decision by supplementing the collections of support money with additional AFDC benefits.VWriting for a unanimous Court, Justice Stewart described the courts' role in cases such as this:"We do not decide today that the . . . regulation is wise, that it best fulfills the relevant social and economic objectives that [Congress] might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration, Goldberg v. Kelly, [397 U.S. 254 (1970)]. But the Constitution does not empower this Court to second-guess . . . officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients."Dandridge v. Williams, 397 U.S. at 397 U. S. 487.The judgment of the District Court isReversed

U.S. Supreme CourtBowen v. Gilliard, 483 U.S. 587 (1987)Bowen v. GilliardNo. 86-509Argued April 22, 1987Decided June 25, 1987*483 U.S. 587SyllabusIn 1975, federal statutes governing the Aid to Families with Dependent Children (AFDC) program required, as a condition of eligibility, that applicants for assistance assign to the State any right to receive child support payments for any family member included in the family unit, but a recipient of aid (the amount of which is determined by the number and income of persons in the family unit) could exclude a child for whom support payments were being made from the family unit if it was financially advantageous to do so, even though the child continued to live with the family. The Deficit Reduction Act of 1984 (DEFRA) amended the AFDC program to require families to include in the filing unit all children living in the same home, including those for whom support payments were being received. Under a separate amendment, the first $50 per month of child support collected by the State must be remitted to the family and not counted as income in determining its benefit level. Thus, if the assigned support exceeded $50 plus the difference in the benefit level resulting from adding the child to the family unit, the family would suffer financially as compared with its total income prior to the amendment. In a class action, the Federal District Court held that North Carolina's implementing regulations were in conformance with the statute, but that the 1984 statutory scheme violated the Due Process Clause of the Fifth Amendment and its equal protection component, as well as the Takings Clause of that Amendment.Held:1. The statutory scheme does not violate Fifth Amendment due process and equal protection principles. The DEFRA amendment rationally serves both Congress' goal of decreasing federal expenditures, and the Government's separate interest in distributing benefits among competing needy families in a fair way. It was also rational for Congress to adjust the AFDC program to reflect the fact that support money generally provides significant benefits for entire family units. There is no Page 483 U. S. 588 merit to the view that some form of "heightened scrutiny" must be applied because the amendment interferes with a family's fundamental right to live in the type of family unit it chooses by intruding on choices concerning family living arrangements. The appropriate standard of review here is whether Congress had a "rational basis" for its decision. Cf. Lyng v. Castillo, 477 U. S. 635. Pp. 483 U. S. 598-603.2. The DEFRA amendment does not violate the Fifth Amendment's Takings Clause. The family members other than the supported child have no claim, since they have no protected property rights to continued AFDC benefits at the same level as before the amendment. Nor does the simple inclusion of the support income in the benefit calculation have any legal effect on the supported child's right to have it used for his or her benefit. The argument that the requirement that an AFDC applicant must assign the support payments to the State, which then, in effect, remits the amount collected to the custodial parent as part of the AFDC payment to be used for the benefit of the entire family, modifies the child's interest in the use of the money so dramatically that it constitutes a taking of the child's property is refuted by three pertinent factors. First, there is no such substantial "economic impact" on the child's right to have support funds used for his or her exclusive benefit as to constitute a "taking." Second, the child holds no vested protectable expectation that the parent will continue to receive identical support payments on the child's behalf, and that the child will enjoy the same rights with respect to them. Third, the character of the governmental action militates against a finding that the State or Federal Governments unconstitutionally take property through the AFDC program. Pp. 483 U.S. 603-609.633 F. Supp. 1529, reversed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, POWELL, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 483 U. S. 609. BLACKMUN, J., filed a dissenting opinion, post, p. 483 U. S. 634. Page 483 U. S. 589

1978_77-120

STEWART, J., filed a dissenting statement, Page 439 U. S. 33 post, p. 439 U. S. 47. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST J., joined, post, p. 439 U. S. 47.MR. JUSTICE MARSHALL delivered the opinion of the Court.Under § 5 of the Voting Rights Act of 1965, [Footnote 1] all States and Page 439 U. S. 34 political subdivisions covered by § 4 of the Act [Footnote 2] must submit any proposed change affecting voting, for preclearance by the Attorney General or the District Court for the District of Columbia. At issue in this appeal is whether a county board of education in a covered State must seek approval of a rule requiring its employees to take unpaid leaves of absence while they campaign for elective office. Resolution of this question necessitates two related inquiries: first, whether a rule governing leave for employee candidates is a "standard, practice, or procedure with respect to voting" within the meaning of § 5 of the Voting Rights Act; and second, whether a county school board is a "political subdivision" within the purview of the Act.IThe facts in this case are not in dispute. Appellee, a Negro, is employed as Assistant Coordinator of Student Personnel Services by appellant Dougherty County Board of Education (Board). In May, 1972, he announced his candidacy for the Georgia House of Representatives. Less than a month later, on June 12, 1972, the Board adopted Rule 58 without seeking prior federal approval. Rule 58 provides:"POLITICAL OFFICE. Any employee of the school system who becomes a candidate for any elective political office will be required to take a leave of absence, without pay, such leave becoming effective upon the qualifying for such elective office and continuing for the duration of such political activity, and during the period of service in such office, if elected thereto."Appellee qualified as a candidate for the Democratic primary in June, 1972, and was compelled by Rule 58 to take a leave of absence without pay. After his defeat in the Page 439 U. S. 35 August primary, appellee was reinstated. Again in June, 1974, he qualified as a candidate for the Georgia House and was forced to take leave. He was successful in both the August primary and the November general election. Accordingly, his leave continued through mid-November, 1974. Appellee took a third leave of absence in June, 1976, when he qualified to run for re-election. When it became clear in September that he would be unopposed in the November, 1976, election, appellee was reinstated. [Footnote 3] As a consequence of those mandatory leaves, appellee lost pay in the amount of $2,810 in 1972, $4,780 in 1974, and $3,750 in 1976.In June, 1976, appellee filed this action in the Middle District of Georgia alleging that Rule 58 was a "standard, practice, or procedure with respect to voting" adopted by a covered entity, and therefore subject to the preclearance requirements of § 5 of the Act. [Footnote 4] Appellee averred that he was the first Negro in recent memory, perhaps since Reconstruction, to run for the Georgia General Assembly from Dougherty County. The Board did not contest this fact, and further acknowledged that it was aware of no individual other than appellee who had run for public office while an employee of the Dougherty County Board of Education.On cross-motions for summary judgment, the three-judge District Court held that Rule 58 should have been submitted for federal approval before implementation. 431 F. Supp. 919 Page 439 U. S. 36 (1977). In so ruling, the court correctly declined to decide the ultimate question that the Attorney General or the District of Columbia court would face on submission of the Rule for preclearance under § 5 -- whether the change, in fact, had a discriminatory purpose or effect. See Perkins v. Matthews, 400 U. S. 379, 400 U. S. 383-385 (1971). Rather, the District Court confined its review to the preliminary issue whether Rule 58 had the "potential" for discrimination, and hence was subject to § 5. Georgia v. United States, 411 U. S. 526, 411 U. S. 534 (1973). In concluding that the Rule did have such potential, the District Court interpreted Allen v. State Board of Elections, 393 U. S. 544 (1969), and Georgia v. United States, supra, to mandate preclearance of any modification by a covered State or political subdivision "which restricts the ability of citizens to run for office." 431 F. Supp. at 922. The court reasoned that Rule 58 was such a modification because:"By imposing a financial loss on [Board] employees who choose to become candidates, [the Rule] makes it more difficult for them to participate in the democratic process and, consequently, restricts the field from which the voters may select their representatives."Ibid. The District Court therefore enjoined enforcement of Rule 58 pending compliance with the preclearance requirements of § 5. We noted probable jurisdiction. 435 U.S. 921 (1978). Since we find Allen v. State Board of Elections, supra, and United States v. Board of Comm'rs of Sheffield, 435 U. S. 110 (1978), dispositive of the issues presented in this appeal, we affirm.IISection 5 provides that, whenever a covered State or political subdivision"shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force Page 439 U. S. 37 or effect on November 1, 1964,"it may not implement that change until it either secures a determination from the District Court for the District of Columbia that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" or submits the change to the Attorney General and he interposes no objection within 60 days. 42 U.S.C. § 1973c (emphasis added). Although § 14(c)(1) expansively defines the term "voting" to "include all action necessary to make a vote effective," 79 Stat. 445, 42 U.S.C. § 19731(c)(1), the Act itself nowhere amplifies the meaning of the phrase "standard, practice, or procedure with respect to voting." Accordingly, in our previous constructions of § 5, we have sought guidance from the history and purpose of the Act.AThis Court first considered the scope of the critical language of § 5 in Allen v. State Board of Elections, 393 U. S. 544 (1969), involving consolidated appeals in three cases from Mississippi and one from Virginia. After canvassing the legislative history of the Act, we concluded that Congress meant "to reach any state enactment which altered the election law of a covered State in even a minor way." 393 U.S. at 393 U. S. 566. [Footnote 5] Conceived after "nearly a century of systematic resistance to the Fifteenth Amendment," South Carolina v. Katzenbach, 383 U. S. 301, 383 U. S. 328 (1966), [Footnote 6] the Voting Rights Page 439 U. S. 38 Act was, as Allen emphasized, "aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race." 393 U.S. at 393 U. S. 565 (footnote omitted). To effectuate the "articulated purposes of the legislation," id. at 393 U. S. 570, the Allen Court held that the phrase "standard, practice, or procedure" must be given the "broadest possible scope," id. at 393 U. S. 567, and construed it to encompass candidate qualification requirements. Id. at 393 U. S. 570 (Whitley v. Williams, companion case decided with Allen, supra). The Court concluded that any enactment which burdens an independent candidate by "increasing the difficulty for [him] to gain a position on the general election ballot" is subject to § 5, since such a measure could "undermine the effectiveness" of voters who wish to elect nonaffiliated representatives. 393 U.S. at 393 U. S. 565.In subsequent cases interpreting § 5, we have consistently adhered to the principles of broad construction set forth in Allen. In Hadnott v. Amos, 394 U. S. 358 (1969), this Court held that an Alabama statute requiring independent candidates to declare their intention to seek office two months earlier than under prior procedures imposed "increased barriers" on candidacy, and therefore warranted § 5 scrutiny. Id. at 394 U. S. 366. Similarly, in contexts other than candidate qualification, we have interpreted § 5 expansively to mandate preclearance for changes in the location of polling places, Perkins v. Matthews, supra; alterations of municipal boundaries, Richmond v. United States, 422 U. S. 358 (1975); Petersburg v. United States, 410 U.S. 962 (1973), summarily aff'g 354 F. Supp. 1021 (DC 1972); Perkins v. Matthews, supra; and reapportionment and redistricting plans, Georgia v. United States, supra.Had Congress disagreed with this broad construction of § 5, it presumably would have clarified its intent when reenacting the statute in 1970 and 1975. Yet, as this Court observed in Georgia v. United States,"[a]fter extensive deliberations Page 439 U. S. 39 in 1970 on bills to extend the Voting Rights Act, during which the Allen case was repeatedly discussed, the Act was extended for five years, without any substantive modification of § 5."411 U.S. at 411 U. S. 533 (footnote omitted). Again in 1975, both the House and Senate Judiciary Committees, in recommending extension of the Act, noted with approval the "broad interpretations to the scope of Section 5" in Allen and Perkins v. Matthews. S.Rep. No. 94-295, p. 16 (1975) (hereinafter S.Rep.); H.R.Rep. No. 9196, p. 9 (1975) (hereinafter H.R.Rep.). Confirming the view of this Court, the Committee Reports stated, without qualification, that "[s]ection 5 of the Act requires review of all voting changes prior to implementation by the covered jurisdictions." S.Rep. 15; H.R.Rep. 8 (emphasis added).The Attorney General's regulations, in force since 1971, reflect an equally inclusive understanding of the reach of § 5. They provide that " [a]ll changes affecting voting, even though the change appears to be minor or indirect," must be submitted for prior approval. 28 CFR § 51.4(a) (1977). More particularly, the regulations require preclearance of "[a]ny alteration affecting the eligibility of persons to become or remain candidates or obtain a position on the ballot in primary or general elections or to become or remain officeholders." § 51.4(c)(4). Pursuant to these regulations, the Attorney General, after being apprised of Rule 58, requested its submission for § 5 clearance. [Footnote 7] Given the central role of the Attorney General in formulating and implementing § 5, this interpretation of its scope is entitled to particular deference. United States v. Board of Comm'rs of Sheffield, Page 439 U. S. 40 435 U.S. at 435 U. S. 131; Perkins v. Matthews, 400 U.S. at 400 U. S. 391. See Georgia v. United States, 411 U.S. at 411 U. S. 536-539.BDespite these consistently expansive constructions of § 5, appellants contend that the Attorney General and District Court erred in treating Rule 58 as a "standard, practice, or procedure with respect to voting," rather than as simply "a means of getting a full days work for a full days pay -- nothing more and nothing less." Brief for Appellants 20. In appellants' view, Congress did not intend to subject all internal personnel measures affecting political activity to federal superintendence.The Board mischaracterizes its policy. Rule 58 is not a neutral personnel practice governing all forms of absenteeism. Rather, it specifically addresses the electoral process, singling out candidacy for elective office as a disabling activity. Although not in form a filing fee, the Rule operates in precisely the same fashion. By imposing substantial economic disincentives on employees who wish to seek elective office, the Rule burdens entry into elective campaigns and, concomitantly, limits the choices available to Dougherty County voters. Given the potential loss of thousands of dollars by employees subject to Rule 58, the Board's policy could operate as a more substantial inhibition on entry into the elective process than many of the filing fee changes involving only hundreds of dollars to which the Attorney General has successfully interposed objections. [Footnote 8] That Congress was well aware of these objections is apparent from the Committee Reports supporting extension of the Act in 1975. S.Rep. 117; H.R.Rep. 10. [Footnote 9] Page 439 U. S. 41In Georgia v. United States, we observed that"[s]ection 5 is not concerned with a simple inventory of voting procedures, but rather with the reality of changed practices as they affect Negro voters."411 U.S. at 411 U. S. 531. The reality here is that Rule 58's impact on elections is no different from that of many of the candidate qualification changes for which we have previously required preclearance. See Hadnott v. Amos, 394 U. S. 358 (1969); Allen, 393 U.S. at 393 U. S. 551. [Footnote 10] Moreover, as a practical matter, Rule 58 implicates the political process to the same extent as do other modifications that this Court and Congress have recognized § 5 to encompass, such as changes in the location of polling places, Perkins v. Matthews, and alterations in the procedures for casting a write-in vote, Allen v. State Board of Elections, supra.We do not, of course, suggest that all constraints on employee political activity affecting voter choice violate § 5. Presumably, most regulation of political involvement by public employees would not be found to have an invidious purpose or effect. Yet the same could be said of almost all changes subject to § 5. According to the most recent figures available, the Voting Rights Section of the Civil Rights Division processes annually some 1,800 submissions involving over 3,100 changes and interposes objections to less than 2%. Attorney General Ann.Rep. 159-160 (1977). Approximately Page 439 U. S. 42 91% of these submissions receive clearance without further exchange of correspondence. Tr. of Oral Arg. 53. Thus, in determining if an enactment triggers § 5 scrutiny, the question is not whether the provision is, in fact, innocuous and likely to be approved, but whether it has a potential for discrimination. See Georgia v. United States, supra, at 411 U. S. 534; Perkins v. Matthews, supra at 400 U. S. 383-385; Allen v. State Board of Elections, supra at 393 U. S. 555-556, n.19, 393 U. S. 558-559, 393 U. S. 570-571.Without intimating any views on the substantive question of Rule 58's legitimacy as a nonracial personnel measure, we believe that the circumstances surrounding its adoption and its effect on the political process are sufficiently suggestive of the potential for discrimination to demonstrate the need for preclearance. Appellee was the first Negro in recent years to seek election to the General Assembly from Dougherty County, an area with a long history of racial discrimination in voting. [Footnote 11] Less than a month after appellee announced his candidacy, the Board adopted Rule 58, concededly without any prior experience of absenteeism among employees seeking office. That the Board made its mandatory leave-of-absence requirement contingent on candidacy, rather than on absence during working hours, underscores the Rule's potential for inhibiting participation in the electoral process. [Footnote 12] Page 439 U. S. 43Plainly, Rule 58 erects "increased barriers" to candidacy as formidable as the filing date changes at issue in Hadnott v. Amos, supra, at 394 U. S. 366 (2 months), and Allen v. State Board of Elections, supra at 393 U. S. 551 (20 days). To require preclearance of Rule 58 follows directly from our previous recognition that § 5 must be given "the broadest possible scope," Allen v. State Board of Elections, supra at 393 U. S. 567, encompassing the "subtle, as well as the obvious," forms of discrimination. 393 U.S. at 393 U. S. 565. Informed by similarly expansive legislative and administrative understandings of the perimeters of § 5, we hold that obstacles to candidate qualification such as the Rule involved here are "standard[s], practice[s], or procedure[s] with respect to voting."IIISection 5 applies to all changes affecting voting made by "political subdivision[s]" of States designated for coverage pursuant to § 4 of the Act. Although acknowledging that the Board is a political subdivision under state law, [Footnote 13] appellants contend that it does not meet the definition of that term as employed in the Voting Rights Act. They rely on § 14(c)(2) of the Act, 79 Stat. 445, 42 U.S.C. § 19731(c)(2), which defines "political subdivision" as"any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting."Because the Board is neither a county, parish, nor entity Page 439 U. S. 44 which conducts voter registration, appellants maintain that it does not come within the purview of § 5.This contention is squarely foreclosed by our decision last Term in United States v. Board of Comm'rs of Sheffield, 435 U. S. 110 (1978). There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of § 6 because it did not itself register voters, and hence was not a political subdivision as the term is defined in § 14(c)(2) of the Act. Rather, the"language, structure, history, and purposes of the Act persuade[d] us that § 5, like the constitutional provisions it is designed to implement, applies to all entities having power over any aspect of the electoral process within designated jurisdictions. . . ."435 U.S. at 435 U. S. 118. Accordingly, we held that once a State has been designated for coverage, § 14(c)(2)'s definition of political subdivision has no "operative significance in determining the reach of § 5." 435 U.S. at 435 U. S. 126.Appellants attempt to distinguish Sheffield on the ground that the Board, unlike the city of Sheffield, does not itself conduct elections. Since the Board has no direct responsibilities in conjunction with the election of public officials, appellants argue that it does not "exercise control" over the voting process, id. at 435 U. S. 127, and is not therefore subject to § 5.Sheffield provides no support for such a cramped reading of the term "control." Our concern there was that covered jurisdictions could obviate the necessity for preclearance of voting changes by the simple expedient of "allowing local entities that do not conduct voter registration to control critical aspects of the electoral process." 435 U.S. at 435 U. S. 125. We thus held that the impact of a change on the elective process, rather than the adopting entity's registration responsibilities, was dispositive of the question of § 5 coverage. Here, as the discussion in 439 U. S. supra, indicates, a political unit with no nominal electoral functions can nonetheless exercise power Page 439 U. S. 45 over the process by attaching a price tag to candidate participation. Appellants' analysis would hence achieve what Sheffield sought to avert; it would enable covered jurisdictions to circumvent the Act by delegating power over candidate qualification to local entities that do not conduct elections or voter registration. A State or political subdivision, by de facto delegation, "thereby could achieve through its instrumentalities what it could not do itself without preclearance." 435 U.S. at 435 U. S. 139 (POWELL, J., concurring in judgment). If only those governmental units with official electoral obligations actuate the preclearance requirements of § 5, the Act would be "nullif[ied] . . . in a large number of its potential applications." 435 U.S. at 435 U. S. 125 (footnote omitted).Nothing in the language or purpose of the Act compels such an anomalous result. By its terms, § 5 requires preclearance whenever a political subdivision within a covered State adopts a change in a standard, practice, or procedure with respect to voting. No requirement that the subdivision itself conduct elections is stated in § 5, and none is fairly implied. [Footnote 14] As this Court has observed, § 5 of the Voting Rights Act reflects Congress' firm resolve to end "the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century." South Carolina v. Katzenbach, 383 U.S. at 383 U. S. 308. Whether a subdivision adopting a potentially discriminatory change has some nominal electoral functions bears no relation to the purpose of § 5. That provision directs attention to the impact of a change on the electoral process, not to the duties of the political subdivision Page 439 U. S. 46 that adopted it. To make coverage under § 5 turn on whether the State has confided in the Dougherty County Board of Education some formal responsibility for the conduct of elections, when the Board clearly has the power to affect candidate participation in those elections, would serve no purpose consonant with the objectives of the federal statutory scheme. Nor would appellants' interpretation of § 5 comport with any ascertainable congressional intent. The legislative history of the 1975 extension, the statute which is controlling here, leaves no doubt but that Congress intended all electoral changes by political entities in covered jurisdictions to trigger federal scrutiny. Both the supporters and opponents of the proposed extension appear to have shared the common understanding that, under § 5, no covered jurisdiction may enforce a change affecting voting without obtaining prior approval. See Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 75-76 (1975) (testimony of Arthur Flemming, Chairman of the U.S. Commission on Civil Rights) (e.g., § 5 applies "to changes in voting laws, practices, and procedures that affect every stage of the political process"); Hearings on H.R. 939 et al. before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st Sess., 19 (1975) (testimony of Arthur Flemming); 121 Cong.Rec. 23744 (1975) (remarks of Sen. Stennis) ("Any changes, so far as election officials [are] concerned, which [are] made in precincts, county districts, school districts, municipalities, or State legislatures . . . [have] to be submitted"); id. at 24114 (remarks of Sen. Allen). Moreover, both the House and Senate Committees and witnesses at the House and Senate hearings referred to § 5's past and prospective application to school districts. See, e.g., 121 Cong.Rec. 23744 (1975) (remarks of Sen. Stennis); Hearings on S. 407, supra at 467-470 (testimony of George Korbel, EEOC Regional Attorney); Hearings on H.R. 939, Page 439 U. S. 47 supra at 387-390 (testimony of George Korbel); S.Rep. 27-28; H.R.Rep. 19-20. Yet none of these discussions suggests that direct supervision of elections by a school board is a prerequisite to its coverage under the Act. To the contrary, a fair reading of the legislative history compels the conclusion that Congress was determined in the 1975 extension of the Act to provide some mechanism for coping with all potentially discriminatory enactments whose source and forms it could not anticipate, but whose impact on the electoral process could be significant. Rule 58 is such a change.Because we conclude that Rule 58 is a standard, practice, or procedure with respect to voting enacted by an entity subject to § 5, the judgment of the District Court isAffirmed

U.S. Supreme CourtDougherty County Bd. of Educ. v. White, 439 U.S. 32 (1978)Dougherty County Board of Education v. WhiteNo. 77-120Argued October 2-3, 1978Decided November 28, 1978439 U.S. 32SyllabusShortly after appellee, a Negro employee of the Dougherty County Board of Education, announced his candidacy for the Georgia House of Representatives, the Board adopted a requirement (Rule 58) that its employees take unpaid leaves of absence while campaigning for elective political office. As a consequence of Rule 58, appellee, who sought election to the Georgia House on three occasions, was forced to take leave, and lost over $11,000 in salary. When compelled to take his third leave of absence, appellee brought this action in District Court, alleging that Rule 58 was unenforceable because it had not been precleared under § 5 of the Voting Rights Act of 1965 (Act). Concluding that Rule 58 had the "potential for discrimination," the District Court enjoined its enforcement pending compliance with § 5.Held:1. Rule 58 is a "standard, practice, or procedure with respect to voting" within the meaning of § 5 of the Act. Pp. 439 U. S. 36-43.(a) Informed by the legislative history and the Attorney General's interpretation of § 5, this Court has consistently given the phrase "standard, practice, or procedure with respect to voting" the "broadest possible scope," and has construed it to encompass any state enactments altering the election law of a covered State "in even a minor way," Allen v. State Board of Elections, 393 U. S. 544, 393 U. S. 566. Pp. 439 U. S. 37-40.(b) Rule 58, like a filing fee, imposes substantial economic disincentives on employees who seek elective public office, and the circumstances surrounding its adoption and its effect on the political process suggest a potential for discrimination. Pp. 439 U. S. 40-43.2. A county school board, although it does not itself conduct elections, is a political subdivision within the purview of the Act when it exercises control over the electoral process. United States v. Board of Comm'rs of Sheffield, 435 U. S. 110. Pp. 439 U. S. 43-47.431 F. Supp. 919, affirmed.MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. STEVENS, J., filed a concurring statement, post, p. 439 U. S. 47. STEWART, J., filed a dissenting statement, Page 439 U. S. 33 post, p. 439 U. S. 47. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST J., joined, post, p. 439 U. S. 47.

1983_83-305

JUSTICE MARSHALL delivered the opinion of the Court.The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment. United States v. Agurs, 427 U. S. 97 (1976); Brady v. Page 467 U. S. 481 Maryland, 373 U. S. 83 (1963). This case raises the question whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of defendants. In particular, the question presented is whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath analysis tests to be admissible in criminal prosecutions.IThe Omicron Intoxilyzer (Intoxilyzer) is a device used in California to measure the concentration of alcohol in the blood of motorists suspected of driving while under the influence of intoxicating liquor. [Footnote 1] The Intoxilyzer analyzes the suspect's breath. To operate the device, law enforcement officers follow these procedures:"Prior to any test, the device is purged by pumping clean air through it until readings of 0.00 are obtained. The breath test requires a sample of 'alveolar' (deep lung) air; to assure that such a sample is obtained, the subject is required to blow air into the intoxilyzer at a constant pressure for a period of several seconds. A breath sample is captured in the intoxilyzer's chamber and infrared light is used to sense the alcohol level. Two samples are taken, and the result of each is indicated on a printout card. The two tests must register within 0.02 of each other in order to be admissible in court. After each test, the chamber is purged with clean air, and then Page 467 U. S. 482 checked for a reading of zero alcohol. The machine is calibrated weekly, and the calibration results, as well as a portion of the calibration samples, are available to the defendant."142 Cal. App. 3d 138, 141-142, 190 Cal. Rptr. 319, 321 (1983) (citations omitted).In unrelated incidents in 1980 and 1981, each of the respondents in this case was stopped on suspicion of drunken driving on California highways. Each respondent submitted to an Intoxilyzer test. [Footnote 2] Each respondent registered a blood alcohol concentration substantially higher than 0.10 percent. Under California law at that time, drivers with higher than 0.10 percent blood alcohol concentrations were presumed to be intoxicated. Cal.Veh.Code Ann. § 23126(a)(3) (West 1971) (amended 1981). Respondents were all charged with driving while intoxicated in violation of Cal.Veh.Code Ann. 23102 (West 1971) (amended 1981).Prior to trial in Municipal Court, each respondent filed a motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath. Although preservation of breath samples is technically feasible, [Footnote 3] California law enforcement officers Page 467 U. S. 483 do not ordinarily preserve breath samples, and made no effort to do so in these cases. Respondents each claimed that, had a breath sample been preserved, he would have been able to impeach the incriminating Intoxilyzer results. All of respondents' motions to suppress were denied. Respondents Ward and Berry then submitted their cases on the police records, and were convicted. Ward and Berry subsequently petitioned the California Court of Appeal for writs of habeas corpus. Respondents Trombetta and Cox did not submit to trial. They sought direct appeal from the Municipal Court orders, and their appeals were eventually transferred to the Court of Appeal to be consolidated with the Ward and Berry petitions. [Footnote 4]The California Court of Appeal ruled in favor of respondents. After implicitly accepting that breath samples would be useful to respondents' defenses, the court reviewed the available technologies and determined that the arresting officers had the capacity to preserve breath samples for respondents. 142 Cal. App. 3d at 141-142, 190 Cal. Rptr. at 320-321. Relying heavily on the California Supreme Court's decision in People v. Hitch, 12 Cal. 3d 641, 527 P.2d 361 (1974), the Court of Appeal concluded:"Due process demands simply that, where evidence is collected by the state, as it is with the intoxilyzer or any other breath testing device, law enforcement agencies must establish and follow rigorous and Page 467 U. S. 484 systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant."142 Cal. App. 3d at 144, 190 Cal. Rptr. at 323. [Footnote 5] The court granted respondents Ward and Berry new trials, and ordered that the Intoxilyzer results not be admitted as evidence against the other two respondents. The State unsuccessfully petitioned for certiorari in the California Supreme Court, and then petitioned for review in this Court. We granted certiorari, 464 U.S. 1037 (1984), and now reverse. Page 467 U. S. 485IIUnder the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed "what might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U. S. 858, 458 U. S. 867 (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U. S. 264, 360 U. S. 269-272 (1959); see also Mooney v. Holohan, 294 U. S. 103 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S. at 373 U. S. 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v. Agurs, 427 U.S. at 427 U. S. 112. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U. S. 150 (1972), and, under some circumstances, may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U. S. 53 (1957). Page 467 U. S. 486Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government's possession. On a few occasions, we have suggested that the Federal Government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant's preparation for trial. For instance, in United States v. Marion, 404 U. S. 307, 404 U. S. 324 (1971), and in United States v. Lovasco, 431 U. S. 783, 431 U. S. 795, n. 17 (1977), we intimated that a due process violation might occur if the Government delayed an indictment for so long that the defendant's ability to mount an effective defense was impaired. Similarly, in United States v. Valenzuela-Bernal, supra, we acknowledged that the Government could offend the Due Process Clause of the Fifth Amendment if, by deporting potential witnesses, it diminished a defendant's opportunity to put on an effective defense. [Footnote 6] 458 U.S. at 458 U. S. 873.We have, however, never squarely addressed the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuela-Bernal, supra, at 458 U. S. 870. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can Page 467 U. S. 487 grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing -- as the California Court of Appeal did in this case -- the State's most probative evidence.One case in which we have discussed due process constraints on the Government's failure to preserve potentially exculpatory evidence is Killian v. United States, 368 U. S. 231 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 18 U.S.C. § 1001. A key element of the Government's case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner's trial, the F.B.I. agents who prepared the investigatory report destroyed the preliminary notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner's defense, the Court ruled that their destruction did not rise to the level of constitutional violation:"If the agents' notes . . . were made only for the purpose of transferring the data thereon . . . and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right."Id. at 242.In many respects, the instant case is reminiscent of Killian v. United States. To the extent that respondents' breath samples came into the possession of California authorities, it was for the limited purpose of providing raw data to the Page 467 U. S. 488 Intoxilyzer. [Footnote 7] The evidence to be presented at trial was not the breath itself, but rather the Intoxilyzer results obtained from the breath samples. As the petitioner in Killian wanted the agents' notes in order to impeach their final reports, respondents here seek the breath samples in order to challenge incriminating tests results produced with the Intoxilyzer.Given our precedents in this area, we cannot agree with the California Court of Appeal that the State's failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents' breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting "in good faith and in accord with their normal practice." Killian v. United States, supra, at 368 U. S. 242. The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.More importantly, California's policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. [Footnote 8] Page 467 U. S. 489 To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S. at 427 U. S. 109-110, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case.Although the preservation of breath samples might conceivably have contributed to respondents' defenses, a dispassionate review of the Intoxilyzer and the California testing procedures can only lead one to conclude that the chances are extremely low that preserved samples would have been exculpatory. The accuracy of the Intoxilyzer has been reviewed and certified by the California Department of Health. [Footnote 9] To protect suspects against machine malfunctions, the Department has developed test procedures that include two independent measurements (which must be closely correlated for the results to be admissible) bracketed by blank runs designed to ensure that the machine is purged of alcohol traces from previous tests. See supra at 467 U. S. 481-482. In all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer's determination that the defendant had a high level of blood alcohol concentration at the time of the test. Once the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory than exculpatory evidence. [Footnote 10] Page 467 U. S. 490Even if one were to assume that the Intoxilyzer results in this case were inaccurate, and that breath samples might therefore have been exculpatory, it does not follow that respondents were without alternative means of demonstrating their innocence. Respondents and amici have identified only a limited number of ways in which an Intoxilyzer might malfunction: faulty calibration, extraneous interference with machine measurements, and operator error. See Brief for Respondents 32-34; Brief for California Public Defender's Association et al. as Amici Curiae 25-40. Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath, as well as that machine's weekly calibration results and the breath samples used in the calibrations. See supra at 467 U. S. 481-482. Respondents could have utilized these data to impeach the machine's reliability. As to improper measurements, the parties have identified only two sources capable of interfering with test results: radio waves and chemicals that appear in the blood of those who are dieting. For defendants whose test results might have been affected by either of these factors, it remains possible to introduce at trial evidence demonstrating that the defendant was dieting at the time of the test or that the test was conducted near a source of radio waves. Finally, as to operator error, the defendant retains the right to cross-examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the factfinder whether the test was properly administered. [Footnote 11] Page 467 U. S. 491IIIWe conclude, therefore, that the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath analysis tests at trial. [Footnote 12] Accordingly, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtCalifornia v. Trombetta, 467 U.S. 479 (1984)California v. TrombettaNo. 83-305Argued April 18, 1984Decided June 11, 1984467 U.S. 479SyllabusWhen stopped in unrelated incidents on suspicion of drunken driving on California highways, each respondent submitted to a Intoxilyzer (breath analysis) test and registered a blood-alcohol concentration high enough to be presumed to be intoxicated under California law. Although it was technically feasible to preserve samples of respondents' breath, the arresting officers, as was their ordinary practice, did not do so. Respondents were then all charged with driving while intoxicated. Prior to trial, the Municipal Court denied each respondent's motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath that the respondents claim would have enabled them to impeach the incriminating test results. Ultimately, in consolidated proceedings, the California Court of Appeal ruled in respondents' favor, concluding that due process demanded that the arresting officers preserve the breath samples.Held: The Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath analysis tests at trial, and thus, here, the State's failure to preserve breath samples for respondents did not constitute a violation of the Federal Constitution. Pp. 467 U. S. 485-491.(a) To the extent that respondents' breath samples came into the California authorities' possession, it was for the limited purpose of providing raw data to the Intoxilyzer. The evidence to be presented at trial was not the breath itself, but rather the Intoxilyzer results obtained from the breath samples. The authorities did not destroy the breath samples in a calculated effort to circumvent the due process requirement of Brady v. Maryland, 373 U. S. 83, and its progeny that the State disclose to criminal defendants material evidence in its possession, but in failing to preserve the samples, the authorities acted in good faith and in accord with their normal practice. Pp. 467 U. S. 485-488.(b) More importantly, California's policy of not preserving breath samples is without constitutional defect. The constitutional duty of the States to preserve evidence is limited to evidence that might be expected to play a role in the suspect's defense. The evidence must possess an exculpatory value that was apparent before it was destroyed, and must also be of such a nature that the defendant would be unable to obtain Page 467 U. S. 480 comparable evidence by other reasonably available means. Neither of these conditions was met on the facts of this case. Pp. 467 U. S. 488-490.142 Cal. App. 3d 138, 190 Cal. Rptr. 319, reversed and remanded.MARSHALL, J., delivered the opinion for a unanimous Court. O'CONNOR, J., filed a concurring opinion, post, p. 467 U. S. 491.

1996_96-454

GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined, and in all but n. 4 of which SCALIA, J., joined. STEVENS, J., filed a dissenting opinion, post, p. 966.Carter G. Phillips argued the cause for petitioner. With him on the briefs were Shalom L. Kohn, David M. Schiffman, Ben L. Aderholt, and Raymond J. Blackwood.Kent L. Jones argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Argrett, Deputy Solicitor General Wallace, and Gary D. Gray.John J. Durkay argued the cause and filed a brief for respondents. *JUSTICE GINSBURG delivered the opinion of the Court.t We resolve in this case a dispute concerning the proper application of § 506(a) of the Bankruptcy Code when a bankrupt debtor has exercised the "cram down" option for which Code § 1325(a)(5)(B) provides. Specifically, when a debtor, over a secured creditor's objection, seeks to retain and use the creditor's collateral in a Chapter 13 plan, is the value of the collateral to be determined by (1) what the secured creditor could obtain through foreclosure sale of the property (the "foreclosure-value" standard); (2) what the debtor would have to pay for comparable property (the "replacement-*Briefs of amici curiae urging reversal were filed for N ationsBank, N. A., et al. by John H. Culver III; and for the Washington Legal Foundation by David R. Kuney, Daniel J. Popeo, and Penelope K. Shapiro.Briefs of amici curiae urging affirmance were filed for the National Association of Chapter 13 Trustees by Henry E. Hildebrand and Christopher M. Minton; for the National Association of Consumer Bankruptcy Attorneys, Inc., by Norma L. Hammes and James J. Gold; and for Donald and Madelaine Taffi by A. Lavar Taylor.Jan T. Chilton and Phillip D. Brady filed a brief for the American Automobile Manufacturers Association, Inc., et al. as amici curiae.tJUSTICE SCALIA joins all but footnote 4 of this opinion.956value" standard); or (3) the midpoint between these two measurements? We hold that § 506(a) directs application of the replacement-value standard.IIn 1989, respondent Elray Rash purchased for $73,700 a Kenworth tractor truck for use in his freight-hauling business. Rash made a downpayment on the truck, agreed to pay the seller the remainder in 60 monthly installments, and pledged the truck as collateral on the unpaid balance. The seller assigned the loan, and its lien on the truck, to petitioner Associates Commercial Corporation (ACC).In March 1992, Elray and Jean Rash filed a joint petition and a repayment plan under Chapter 13 of the Bankruptcy Code (Code), 11 U. S. C. §§ 1301-1330. At the time of the bankruptcy filing, the balance owed to ACC on the truck loan was $41,171. Because it held a valid lien on the truck, ACC was listed in the bankruptcy petition as a creditor holding a secured claim. Under the Code, ACC's claim for the balance owed on the truck was secured only to the extent of the value of the collateral; its claim over and above the value of the truck was unsecured. See 11 U. S. C. § 506(a).To qualify for confirmation under Chapter 13, the Rashes' plan had to satisfy the requirements set forth in § 1325(a) of the Code. The Rashes' treatment of ACC's secured claim, in particular, is governed by subsection (a)(5).1 Under this1 Section 1325(a)(5) states:"(a) Except as provided in subsection (b), the court shall confirm a plan if-"(5) with respect to each allowed secured claim provided for by the plan-"(A) the holder of such claim has accepted the plan;"(B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and"(ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or957provision, a plan's proposed treatment of secured claims can be confirmed if one of three conditions is satisfied: The secured creditor accepts the plan, see 11 U. s. C. § 1325(a)(5) (A); the debtor surrenders the property securing the claim to the creditor, see § 1325(a)(5)(C); or the debtor invokes the so-called "cram down" power, see § 1325(a)(5)(B). Under the cram down option, the debtor is permitted to keep the property over the objection of the creditor; the creditor retains the lien securing the claim, see § 1325(a)(5)(B)(i), and the debtor is required to provide the creditor with payments, over the life of the plan, that will total the present value of the allowed secured claim, i. e., the present value of the collateral, see § 1325(a)(5)(B)(ii). The value of the allowed secured claim is governed by § 506(a) of the Code.The Rashes' Chapter 13 plan invoked the cram down power. It proposed that the Rashes retain the truck for use in the freight-hauling business and pay ACC, over 58 months, an amount equal to the present value of the truck. That value, the Rashes' petition alleged, was $28,500. ACC objected to the plan and asked the Bankruptcy Court to lift the automatic stay so ACC could repossess the truck. ACC also filed a proof of claim alleging that its claim was fully secured in the amount of $41,171. The Rashes filed an objection to ACC's claim.The Bankruptcy Court held an evidentiary hearing to resolve the dispute over the truck's value. At the hearing, ACC and the Rashes urged different valuation benchmarks. ACC maintained that the proper valuation was the price the Rashes would have to pay to purchase a like vehicle, an amount ACC's expert estimated to be $41,000. The Rashes, however, maintained that the proper valuation was the net amount ACC would realize upon foreclosure and sale of the collateral, an amount their expert estimated to be $31,875."(C) the debtor surrenders the property securing such claim to such holder."958The Bankruptcy Court agreed with the Rashes and fixed the amount of ACC's secured claim at $31,875; that sum, the court found, was the net amount ACC would realize if it exercised its right to repossess and sell the truck. See In re Rash, 149 B. R. 430, 431-432 (Bkrtcy. Ct. ED Tex. 1993). The Bankruptcy Court thereafter approved the plan, and the United States District Court for the Eastern District of Texas affirmed.A panel of the Court of Appeals for the Fifth Circuit reversed. In re Rash, 31 F.3d 325 (1994). On rehearing en banc, however, the Fifth Circuit affirmed the District Court, holding that ACC's allowed secured claim was limited to $31,875, the net foreclosure value of the truck. In re Rash, 90 F.3d 1036 (1996).In reaching its decision, the Fifth Circuit highlighted, first, a conflict it perceived between the method of valuation ACC advanced, and the law of Texas defining the rights of secured creditors. See id., at 1041-1042 (citing Tex. Bus. & Com. Code Ann. §§ 9.504(a), (c), 9.505 (1991)). In the Fifth Circuit's view, valuing collateral in a federal bankruptcy proceeding under a replacement-value standard-thereby setting an amount generally higher than what a secured creditor could realize pursuing its state-law foreclosure remedywould "chang[e] the extent to which ACC is secured from what obtained under state law prior to the bankruptcy filing." 90 F. 3d, at 1041. Such a departure from state law, the Fifth Circuit said, should be resisted by the federal forum unless "clearly compel[led]" by the Code. Id., at 1042.The Fifth Circuit then determined that the Code provision governing valuation of security interests, § 506(a), does not compel a replacement-value approach. Instead, the court reasoned, the first sentence of § 506(a) requires that collateral be valued from the creditor's perspective. See id., at 1044. And because "the creditor's interest is in the nature of a security interest, giving the creditor the right to repos-959sess and sell the collateral and nothing more[,] ... the valuation should start with what the creditor could realize by exercising that right." Ibid. This foreclosure-value standard, the Fifth Circuit found, was consistent with the other relevant provisions of the Code, economic analysis, and the legislative history of the pertinent provisions. See id., at 1045-1059. Judge Smith, joined by five other judges, dissented, urging that the Code dictates a replacement-value standard. See id., at 1061-1075.Courts of Appeals have adopted three different standards for valuing a security interest in a bankruptcy proceeding when the debtor invokes the cram down power to retain the collateral over the creditor's objection. In contrast to the Fifth Circuit's foreclosure-value standard, a number of Circuits have followed a replacement-value approach. See, e. g., In re Taffi, 96 F.3d 1190, 1191-1192 (CA9 1996) (en bane), cert. pending sub nom. Taffi v. United States, No. 96881; 2 In re Winthrop Old Farm Nurseries, Inc., 50 F.3d 72, 74-75 (CAl1995); In re Trimble, 50 F.3d 530, 531-532 (CA8 1995). Other courts have settled on the midpoint between foreclosure value and replacement value. See In re Hoskins, 102 F.3d 311, 316 (CA7 1996); cf. In re Valenti, 105 F. 3d 55, 62 (CA2 1997) (bankruptcy courts have discretion to value at midpoint between replacement value and foreclosure value). We granted certiorari to resolve this conflict among the Courts of Appeals, see 519 U. S. 1086 (1997), and we now reverse the Fifth Circuit's judgment.2 In In re Taffi, the Ninth Circuit contrasted replacement value with fair-market value and adopted the latter standard, apparently viewing the two standards as incompatible. See 96 F. 3d, at 1192. By using the term "replacement value," we do not suggest that a creditor is entitled to recover what it would cost the debtor to purchase the collateral brand new. Rather, our use of the term replacement value is consistent with the Ninth Circuit's understanding of the meaning of fair-market value; by replacement value, we mean the price a willing buyer in the debtor's trade, business, or situation would pay a willing seller to obtain property of like age and condition. See also infra, at 965, n. 6.960IIThe Code provision central to the resolution of this case is§ 506(a), which states:"An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, ... and is an unsecured claim to the extent that the value of such creditor's interest ... is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property .... " 11 U. S. C. § 506(a).Over ACC's objection, the Rashes' repayment plan proposed, pursuant to § 1325(a)(5)(B), continued use of the property in question, i. e., the truck, in the debtor's trade or business. In such a "cram down" case, we hold, the value of the property (and thus the amount of the secured claim under § 506(a)) is the price a willing buyer in the debtor's trade, business, or situation would pay to obtain like property from a willing seller.Rejecting this replacement-value standard, and selecting instead the typically lower foreclosure-value standard, the Fifth Circuit trained its attention on the first sentence of § 506(a). In particular, the Fifth Circuit relied on these first sentence words: A claim is secured "to the extent of the value of such creditor's interest in the estate's interest in such property." See 90 F. 3d, at 1044 (emphasis added) (citing § 506(a)). The Fifth Circuit read this phrase to instruct that the "starting point for the valuation [is] what the creditor could realize if it sold the estate's interest in the property according to the security agreement," namely, through "repossess[ing] and sell[ing] the collateral." Ibid.We do not find in the § 506(a) first sentence words-"the creditor's interest in the estate's interest in such property"-961the foreclosure-value meaning advanced by the Fifth Circuit. Even read in isolation, the phrase imparts no valuation standard: A direction simply to consider the "value of such creditor's interest" does not expressly reveal how that interest is to be valued.Reading the first sentence of § 506(a) as a whole, we are satisfied that the phrase the Fifth Circuit considered key is not an instruction to equate a "creditor's interest" with the net value a creditor could realize through a foreclosure sale. The first sentence, in its entirety, tells us that a secured creditor's claim is to be divided into secured and unsecured portions, with the secured portion of the claim limited to the value of the collateral. See United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 238-239 (1989); 4 L. King, Collier on Bankruptcy , 506.02[1][a], p. 506-6 (15th ed. rev. 1996). To separate the secured from the unsecured portion of a claim, a court must compare the creditor's claim to the value of "such property," i. e., the collateral. That comparison is sometimes complicated. A debtor may own only a part interest in the property pledged as collateral, in which case the court will be required to ascertain the "estate's interest" in the collateral. Or, a creditor may hold a junior or subordinate lien, which would require the court to ascertain the creditor's interest in the collateral. The § 506(a) phrase referring to the "creditor's interest in the estate's interest in such property" thus recognizes that a court may encounter, and in such instances must evaluate, limited or partial interests in collateral. The full first sentence of § 506(a), in short, tells a court what it must evaluate, but it does not say more; it is not enlightening on how to value collateral.The second sentence of § 506(a) does speak to the how question. "Such value," that sentence provides, "shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property." § 506(a). By deriving a foreclosure-value standard from § 506(a)'s first sentence, the Fifth Circuit rendered inconsequential the962sentence that expressly addresses how "value shall be determined."As we comprehend § 506(a), the "proposed disposition or use" of the collateral is of paramount importance to the valuation question. If a secured creditor does not accept a debtor's Chapter 13 plan, the debtor has two options for handling allowed secured claims: surrender the collateral to the creditor, see § 1325(a)(5)(C); or, under the cram down option, keep the collateral over the creditor's objection and provide the creditor, over the life of the plan, with the equivalent of the present value of the collateral, see § 1325(a)(5)(B). The "disposition or use" of the collateral thus turns on the alternative the debtor chooses-in one case the collateral will be surrendered to the creditor, and in the other, the collateral will be retained and used by the debtor. Applying a foreclosure-value standard when the cram down option is invoked attributes no significance to the different consequences of the debtor's choice to surrender the property or retain it. A replacement-value standard, on the other hand, distinguishes retention from surrender and renders meaningful the key words "disposition or use."Tying valuation to the actual "disposition or use" of the property points away from a foreclosure-value standard when a Chapter 13 debtor, invoking cram down power, retains and uses the property. Under that option, foreclosure is averted by the debtor's choice and over the creditor's objection. From the creditor's perspective as well as the debtor's, surrender and retention are not equivalent acts.When a debtor surrenders the property, a creditor obtains it immediately, and is free to sell it and reinvest the proceeds. We recall here that ACC sought that very advantage. See supra, at 957. If a debtor keeps the property and continues to use it, the creditor obtains at once neither the property nor its value and is exposed to double risks: The debtor may again default and the property may deteriorate from extended use. Adjustments in the interest rate and secured963creditor demands for more "adequate protection," 11 U. S. c. § 361, do not fully offset these risks. See 90 F. 3d, at 1066 (Smith, J., dissenting) ("vast majority of reorganizations fail ... leaving creditors with only a fraction of the compensation due them"; where, as here, "collateral depreciates rapidly, the secured creditor may receive far less in a failed reorganization than in a prompt foreclosure" (internal cross-reference omitted)); accord, In re Taffi, 96 F. 3d, at 1192-1193.3Of prime significance, the replacement-value standard accurately gauges the debtor's "use" of the property. It values "the creditor's interest in the collateral in light of the proposed [repayment plan] reality: no foreclosure sale and economic benefit for the debtor derived from the collateral equal to ... its [replacement] value." In re Winthrop Old Farm Nurseries, 50 F. 3d, at 75. The debtor in this case elected to use the collateral to generate an income stream. That actual use, rather than a foreclosure sale that will not take place, is the proper guide under a prescription hinged to the property's "disposition or use." See ibid.43 On this matter, amici curiae supporting ACC contended: "'Adequate protection' payments under 11 U. S. C. §§ 361, 362(d)(1) typically are based on the assumption that the collateral will be subject to only ordinary depreciation. Hence, even when such payments are made, they frequently fail to compensate adequately for the usually more rapid depreciation of assets retained by the debtor." Brief for American Automobile Manufacturers Association, Inc., et al. as Amici Curiae 21, n. 9.4 We give no weight to the legislative history of § 506(a), noting that it is unedifying, offering snippets that might support either standard of valuation. The Senate Report simply repeated the phrase contained in the second sentence of § 506(a). See S. Rep. No. 95-989, p. 68 (1978). The House Report, in the Fifth Circuit's view, rejected a "'replacement cost'" valuation. See In re Rash, 90 F.3d 1036, 1056 (CA5 1996) (quoting H. Rep. No. 95-595, p. 124 (1977)). That Report, however, appears to use the term "replacement cost" to mean the cost of buying new property to replace property in which a creditor had a security interest. See ibid. In any event, House Report excerpts are not enlightening, for the provision pivotal here-the second sentence of § 506(a)-did not appear in the bill addressed by the House Report. The key sentence originated in the964The Fifth Circuit considered the replacement-value standard disrespectful of state law, which permits the secured creditor to sell the collateral, thereby obtaining its net foreclosure value "and nothing more." See 90 F. 3d, at 1044. In allowing Chapter 13 debtors to retain and use collateral over the objection of secured creditors, however, the Code has reshaped debtor and creditor rights in marked departure from state law. See, e. g., Uniform Commercial Code §§ 9504, 9-505, 3B U. L. A. 127, 352 (1992). The Code's cram down option displaces a secured creditor's state-law right to obtain immediate foreclosure upon a debtor's default. That change, ordered by federal law, is attended by a direction that courts look to the "proposed disposition or use" of the collateral in determining its value. I t no more disrupts state law to make "disposition or use" the guide for valuation than to authorize the rearrangement of rights the cram down power entails.Nor are we persuaded that the split-the-difference approach adopted by the Seventh Circuit provides the appropriate solution. See In re Hoskins, 102 F. 3d, at 316. Whatever the attractiveness of a standard that picks the midpoint between foreclosure and replacement values, there is no warrant for it in the Code.5 Section 506(a) calls for the value the property possesses in light of the "disposition or use" in fact "proposed," not the various dispositions or uses that might have been proposed. Cf. BFP v. Resolution Trust Corporation, 511 U. S. 531, 540 (1994) (court-made rule defining, for purposes of Code's fraudulent transfer provi-Senate version of the bill, compare H. R. 8200, 95th Cong., 1st Sess., § 506(a) (1977), with S. 2266, 95th Cong., 1st Sess., § 506(a) (1977), and was included in the final text of the statute after the House-Senate conference, see 124 Congo Rec. 33997 (1978).5 As our reading of § 506(a) makes plain, we also reject a ruleless approach allowing use of different valuation standards based on the facts and circumstances of individual cases. Cf. In re Valenti, 105 F.3d 55, 62-63 (CA2 1997) (permissible for bankruptcy courts to determine valuation standard case-by-case).965sion, "reasonably equivalent value" to mean 70% of fair market value "represent[s] [a] policy determinatio[n] that the Bankruptcy Code gives us no apparent authority to make"). The Seventh Circuit rested on the "economics of the situation," In re Hoskins, 102 F. 3d, at 316, only after concluding that the statute suggests no particular valuation method. We agree with the Seventh Circuit that "a simple rule of valuation is needed" to serve the interests of predictability and uniformity. Id., at 314. We conclude, however, that § 506(a) supplies a governing instruction less complex than the Seventh Circuit's "make two valuations, then split the difference" formulation.In sum, under § 506(a), the value of property retained because the debtor has exercised the § 1325(a)(5)(B) "cram down" option is the cost the debtor would incur to obtain a like asset for the same "proposed ... use." 6***For the foregoing reasons, 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, 1996SyllabusASSOCIATES COMMERCIAL CORP. v. RASH ET ux.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 96-454. Argued April 16, 1997-Decided June 16, 1997Petitioner Associates Commercial Corporation (ACC) holds a loan and lien on a tractor truck purchased by respondent Elray Rash for use in his freight-hauling business. Elray and Jean Rash, also a respondent, filed a joint petition and repayment plan under Chapter 13 of the Bankruptcy Code (Code), listing ACC as a secured creditor. Under the Code, ACC's claim for the $41,171 balance owed on the truck was secured only to the extent of the value of the collateral; its claim over and above that value was unsecured. See 11 U. S. C. § 506(a). The Rashes could gain confirmation of their Chapter 13 plan only if ACC accepted it, if the Rashes surrendered the truck to ACC, or if the Rashes invoked the so-called "cram down" provision. See § 1325(a)(5). The cram down option allows the debtor to keep the collateral over the objection of the creditor; the creditor retains the lien securing the claim, see § 1325(a)(5)(B)(i), and the debtor is required to provide the creditor with payments, over the life of the plan, that will total the present value of the collateral, see § 1325(a)(5)(B)(ii). The value of the allowed secured claim is governed by § 506(a) of the Code. The Rashes invoked the cram down power, proposing to keep the truck for use in the freight-hauling business. ACC objected to the plan, sought to repossess the truck, and disputed the value the Rashes had assigned to the truck. At an evidentiary hearing held to resolve the dispute, ACC maintained that the proper valuation was the price the Rashes would have to pay to purchase a like vehicle (the replacement-value standard), estimated to be $41,000. The Rashes, however, maintained that the proper valuation was the net amount ACC would realize upon foreclosure and sale of the collateral (the foreclosure-value standard), estimated to be $31,875. The Bankruptcy Court adopted the Rashes' valuation figure and approved the plan. The District Court and the Fifth Circuit affirmed.Held: Under § 506(a), the value of property retained because the debtor has exercised Chapter 13's "cram down" option is the cost the debtor would incur to obtain a like asset for the same proposed use. pp. 960-965.(a) The words "the creditor's interest in the estate's interest in such property" contained in the first sentence of § 506(a) do not call for the foreclosure-value standard adopted by the Fifth Circuit. Even read in954isolation, the phrase imparts no valuation standard. The first sentence, read as a whole, instructs that a secured creditor's claim is to be divided into secured and unsecured portions. The sentence tells a court what it must evaluate, but it is not enlightening on how to value collateral. Section 506(a)'s second sentence, however, speaks to the how question, providing that "[s]uch value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property." By deriving a foreclosure-value standard from § 506(a)'s first sentence, the Fifth Circuit rendered inconsequential the sentence that expressly addresses how "value shall be determined." The "proposed disposition or use" of the collateral is of paramount importance to the valuation question. Such "disposition or use" turns on which alternative the debtor chooses when a secured creditor refuses to accept the debtor's Chapter 13 plan-in one case the collateral will be surrendered to the creditor, and in the other, the collateral will be retained and used by the debtor. Applying a foreclosure-value standard attributes no significance to the different consequences of the debtor's choice. A replacement-value standard, on the other hand, distinguishes retention from surrender and renders meaningful the key statutory words "disposition or use." Surrender and retention are not equivalent acts. When a debtor surrenders the property, a creditor obtains it immediately, and is free to sell it and reinvest the proceeds. If a debtor keeps the property and continues to use it, the creditor obtains at once neither the property nor its value, and is exposed to double risks against which the Code affords incomplete protection: The debtor may again default and the property may deteriorate from extended use. Of prime significance, the replacement-value standard accurately gauges the debtor's "use" of the property. The debtor in this case elected to use the collateral to generate an income stream. That actual use, rather than a foreclosure sale that will not take place, is the proper guide under a prescription hinged to the property's "disposition or use." Pp. 960-963.(b) The Fifth Circuit considered the replacement-value standard disrespectful of Texas law, which permits the secured creditor to sell the collateral, thereby obtaining only its net foreclosure. In allowing Chapter 13 debtors to retain and use collateral over the objection of secured creditors, however, the Bankruptcy Code has reshaped debtor and creditor rights in marked departure from state law. It no more disrupts state law to make "disposition or use" the guide for valuation than to authorize the rearrangement of rights the cram down power entails. There is also no warrant in the Code for a valuation standard that uses the midpoint between foreclosure and replacement values. pp. 964-965.90 F.3d 1036, reversed and remanded.955Full Text of Opinion

1961_23

MR. JUSTICE Brennan delivered the opinion of the Court.In an investigation initiated by it under 49 U.S.C. § 304(c), [Footnote 1] the Interstate Commerce Commission held that appellees who leased their motor vehicles and hired Page 368 U. S. 372 their services as drivers to the appellee Oklahoma Furniture Manufacturing Company (hereinafter "Oklahoma") were contract carriers within 49 U.S.C. § 303(a)(15) [Footnote 2] and subject to the permit requirements of 49 U.S.C. § 309(a)(1). [Footnote 3] 79 M.C.C. 403. Page 368 U. S. 373A three-judge court in the District Court for the Western District of Oklahoma, convened under 28 U.S.C. § 2325, in a proceeding commenced by appellees pursuant to 28 U.S.C. §§ 1336 and 1398, [Footnote 4] set aside the cease and desist order by which the Commission required the lessors to refrain from their operations unless and until they received appropriate authority therefor from the Commission. 193 F. Supp. 275. The District Court held that Oklahoma was engaged in private carriage as defined in 49 U.S.C. § 303(a)(17). [Footnote 5] We noted probable jurisdiction of the appeals lodged here under 28 U.S.C. § 1253. 365 U.S. 839.The Motor Carrier Act of 1935 [Footnote 6] subject many aspects of interstate motor carriage -- including entry of Page 368 U. S. 374 persons into the business of for-hire motor transportation and the oversight of motor carrier rates -- to administrative controls, on the premise that the public interest in maintaining a stable transportation industry so required. [Footnote 7] However, although aware that"Both [contract carriers and common carriers] . . . are continually faced with actual or potential competition from private truck operation . . . , [Footnote 8]"Congress took cognizance of a shipper's interest in furnishing his own transportation, [Footnote 9] and limited the application of the licensing requirements to those persons who provide "transportation . . . for compensation" [Footnote 10] or, under a 1957 Amendment, "for-hire transportation." [Footnote 11] The Commission, therefore, has had to decide whether a particular arrangement gives rise to that "for-hire" carriage which is subject to economic regulation in the public interest, or whether it is, in fact, private carriage as to which Congress determined that the shipper's interest in carrying his own goods should prevail. This case is a recent instance of the Commission's developing technique of decision.From the beginning, underlying principles have been, and have remained, clear. A primary objective of the scheme of economic regulation is to assure that shippers generally will be provided a healthy system of motor carriage to which they may resort to get their goods to market. This is the goal not only of Commission surveillance Page 368 U. S. 375 of licensed motor carriers as to rates and services, but also of the requirement that the persons from whom shippers would purchase a transportation service designed to meet the shippers' distinctive needs must first secure Commission approval. See Contracts of Contract Carriers, 1 M.C.C. 628, 629; Keystone Transportation Co., 19 M.C.C. 475, 490-492. The statutory requirement that a certificate or permit be issued before any new for-hire carriage may be undertaken bespeaks congressional concern over diversions of traffic which may harm existing carriers upon whom the bulk of shippers must depend for access to market. [Footnote 12] Accordingly, the statutory definitions, while confirming that a shipper is free to transport his own goods without utilizing a regulated instrumentality at the same time deny him the use of "for compensation" or "for-hire" transportation purchased from a person not licensed by the Interstate Commerce Commission. Because the definitions must, if they are to serve their purpose, impose practical limitations upon unregulated competition in a regulated industry, they are to be interpreted in a manner which transcends the merely formal. From the outset, the Commission has correctly interpreted them as importing that a purported private carrier who hires the instrumentalities of transportation from another must -- if he is not to utilize a licensed carrier -- assume in significant measure the characteristic burdens of the transportation business. The problem is one of determining -- by reference to Page 368 U. S. 376 the clear but broad remedial purpose of a regulatory statute committed to agency administration -- the applicability to a narrow fact situation of imprecise definitional language which delineates the coverage of the measure. Private carriers are defined simply as transporters of property who are neither common nor contract carriers; and the statute will yield up no better verbal guide to the reach of its licensing provisions than transportation "for compensation" or "for-hire." Compare Bates & Guild Co. v. Payne, 194 U. S. 106; Rochester Tel. Corp. v. United States, 307 U. S. 125, 307 U. S. 144-146; Gray v. Powell, 314 U. S. 402, 314 U. S. 412-413; Labor Board v. Hearst Publications, 322 U. S. 111, 322 U. S. 130-131. Because the Commission's resolution of the issue does not seem to us to violate the coherence of the body of administrative and judicial precedents so far developed in this area, we are of the opinion that there was no occasion for the District Court to disturb the conclusion reached by the Commission. We therefore reverse the District Court's judgment.It was a wish to rid itself of certain burdens of its existing transportation operation which caused Oklahoma to enter into the arrangement here involved. Prior to 1952, Oklahoma, a manufacturer of low-cost furniture, had maintained a full fleet of tractors and trailers in which all its furniture was shipped. A full crew of drivers was employed. Oklahoma absorbed all the expenses, and carried all the risks, of its transportation operation. It utilized a system of delivered pricing which eliminated transportation charges as an identifiable element of the price of its furniture. Its status as a private carrier exempt from licensing requirements was never questioned under the pre-1952 arrangement. But that method of operation was found to incorporate certain burdensome disadvantages. Oklahoma discovered that its employee-drivers were embezzling its funds through the misuse of Page 368 U. S. 377 credit arrangements which the company had established for the purchasing of fuel and minor repairs on the road. In addition, Oklahoma became convinced that its equipment was too often involved in accidents, and too often in need of repairs and maintenance which could have been avoided by careful operation.In an effort to eliminate these disadvantages, Oklahoma, in 1952, altered its modus operandi. It decided to terminate its investment in tractors for long hauls and, instead, to lease them from the drivers. The original lease agreements encountered difficulty when, in 1956, the Supreme Court of Arkansas held that the resultant operation constituted for-hire carriage by the owner-operators which required licensing under the applicable Arkansas statutes. [Footnote 13] Following this turn of events, Oklahoma revised the leases, and also entered into a collective agreement with the union representing its workers setting forth the terms under which the owner-operators were to be employed as drivers. The current lease and collective agreement provide the factual predicate of the present litigation.The Company presently owns 26 trailers and 6 tractors. It leases 11 tractors for long-haul use in connection with the trailers which it owns. It is solely in connection with the 11 l leased tractors and the services of their owner-operators that the Commission discerned the provision of for-hire transportation. The leases are for renewable terms of one year, but they are terminable by either party on 30 days' notice. Oklahoma is granted the sole right to control the use of the tractor through drivers employed by it; in return, it covenants that such use will be lawful, and will be confined to the transportation of the Company's property. Oklahoma pays for its Page 368 U. S. 378 use of the tractors strictly on a mileage basis. The owner receives weekly rental payments of 10 or 11 cents for each mile the vehicle is driven, plus an extra 3 cents per mile on the backhaul if there is a load of raw materials. Oklahoma does not guarantee any minimum mileage. Operating costs -- including gasoline, oil, grease, parts, and registration fees -- are paid by the owners. Oklahoma assumes no responsibility for wear and tear or damage to the tractors, nor does it provide collision or fire and theft insurance coverage -- although it does pay for public liability and property damage insurance. The owners assume no responsibility to Oklahoma for damage to the cargoes.Under the collective agreement covering the drivers among its employees, the drivers enjoy certain common employment privileges such as collective bargaining, seniority rights, death benefits, immunity from discharge except for cause, military service protection, and vacation pay in an amount based on their average weekly pay. Owner-drivers may be discharged for cause. [Footnote 14] Their remuneration is calculated strictly on a mileage basis, and they are obliged to pay their own living expenses while on the road. No minimum weekly pay or mileage is guaranteed. [Footnote 15] Drivers are required to maintain their trucks in good running condition at all times.Oklahoma's actual operations were a generally faithful reflection of the leases and the collective agreement. Certain matters, not explicitly or unambiguously covered by the written instruments, are of significance. Ordinarily, the drivers were assigned to their own tractors, Page 368 U. S. 379 though there were occasional exceptions. Oklahoma's truck superintendent testified that the owner-operators' services were not utilized each day. The owners were required to pay for all repairs, though Oklahoma conducted safety inspections. [Footnote 16] The Company closely directed all details of loading and delivery routes. It instructed the drivers as to steps to be taken in emergencies. It administered physical examinations, supervised the preparation of reports required by the Interstate Commerce Commission, paid social security taxes and withheld income taxes, and provided workmen's compensation.In sum, Oklahoma's operation possessed a number of the hallmarks of a genuine lease of equipment and a genuine employment arrangement.Still, the Company was able to spare itself -- and pass to the owner-operators -- certain characteristic burdens of the transportation business. The large capital investment in the tractors and the risk of their premature depreciation or catastrophic loss was borne by the owner-operators, not by the Company. The owner-operators, rather than Oklahoma, stood the risk of a rise in variable costs such as fuel, repairs and maintenance of the tractors in good operating condition, and living expenses, although the thirty-day cancellation privilege, taken together with the possible bargaining power of the owner-operators en bloc, may have affected the degree to which that burden was actually shifted. Finally, Oklahoma was able Page 368 U. S. 380 to divest itself, to a significant extent, of the risk of non-utilization of high-priced equipment. The owner-operators received neither rental payments nor wages when their tractors were not used and they did not drive. Oklahoma did, however, carry the risk of a nonproductive backhaul. [Footnote 17]The question before the Commission was whether, under these particular facts, Oklahoma had so far emancipated itself from the burdens of transportation that to permit it, on such terms, to secure a transportation service from these unlicensed owner-operators would be inconsistent with the statutory scheme. The Commission resolved the issue adversely to Oklahoma and the owner-operators. Division 1, one Commissioner dissenting, held that the owner-operators were engaged in contract carriage and ordered them to cease and desist from the activities thus found to be unlawful until such time as they had secured the necessary permits from the Commission. Applications for such permits were invited, the Division's Report observing that the activities presently condemned should not prejudice such applications. [Footnote 18] This disposition was approved by the full Commission on reconsideration. [Footnote 19] Page 368 U. S. 381The Commission dealt with the problem before it by setting out two inquiries which would have to be satisfied before the operations in question could be held to constitute private carriage: first, it would have to be found that no person other than Oklahoma had "any right to control, direct, and dominate" the transportation. Second, it would have to be found that no person before the Commission was "in substance, engaged in the business of . . . transportation of property . . . for hire." [Footnote 20] The Commission found against the respondents on both tests. In connection with the first, or "control," test the Commission pointed out that earlier decisions had established a presumption of for-hire transportation whenever equipment was leased by a shipper, which presumption might be defeated by a showing that the shipper had retained the exclusive right to control the operation. Despite the evidence of actual shipper control in this case, the Commission held that the presumption of for-hire transportation remained in effect because"[t]here is present, whenever the owner-operator drives his own equipment, the right and power of the lessor to defeat any supposed right to control that the shipper-lessee may believe exists. [Footnote 21]"The three-judge District Court reversed the Commission's conclusion relative to shipper control, [Footnote 22] and that action of the District Court is not challenged by the Commission on this appeal. [Footnote 23] Page 368 U. S. 382But a finding of shipper control does not require a resolution of the ultimate issue in the shipper's favor. [Footnote 24] It is true that, until recently, "control" has been at the focus of the Commission's efforts to delineate verbally the permissible area of nonlicensed leases of transportation equipment. The initial technique of the Commission was to assess the lessee-shipper's assumption of the burdens of transportation in terms of the degree to which he undertook to "control" or "dominate" it. [Footnote 25] The interest in "control," in turn, generated an interest in whether the drivers of leased equipment were in substance treated as the shipper's employees. [Footnote 26] Throughout, however, Commission Page 368 U. S. 383 reports have taken note of various factors which clearly transcend any narrow concept of physical direction of the details of the operation; and it has always been apparent that the vesting of such physical "control" in the shipper would not, in itself, suffice to render the transportation private carriage. [Footnote 27]Latterly, the Commission has begun to move away from "control" as the verbal embodiment of its manifold inquiry. [Footnote 28] The Commission thus accords explicit recognition to a premise which has long been implicit in its decisions: Page 368 U. S. 384 that some indicia of private carriage may be assumed, and detailed surveillance of operations undertaken, without a shipper's having significantly shouldered the burdens of transportation. The test of substance with which the Commission supplemented its "control" inquiry in this case thus betokens no heedless departure from the beaten track of administrative decision which might occasion a judicial curb upon the exercise of administrative discretion. [Footnote 29] No more so does the inclusion in the arrangement between Oklahoma and its owner-drivers of a number of particulars also discoverable in arrangements found to constitute private carriage in earlier Commission decisions. We deal in totalities; indicia are instruments of decision, not touchstones. The Commission allowably dealt with this novel situation as an integral and unique problem in judgment, rather than simply as an exercise in counting commonplaces. Nor did it leave the basis for its decision unarticulated. Page 368 U. S. 385The Commission's meaning in applying the test of substance in this case is clearly told in the following language in its report:"Here, each owner-operator assigns his motor vehicle for a continuing period of time to the exclusive use of the company, furnishing a service designed to meet the distinct need of the company. He provides a service in which the equipment is furnished, maintained, and driven by the owners thereof to transport property in interstate commerce. He guarantees a fixed and definite cost for the transportation, bears the risk of profit or loss from such transportation hazards as delays in transit, breakdowns of equipment, and highway detours, and meets all of the cost of operation including appropriate licenses and trip expenses."79 M.C.C. at 412.It is evidence that the Commission here refused to allow Oklahoma the status of a private carrier because of its belief that financial risks are a significant burden of transportation, and its belief that such risks had been shifted by Oklahoma to the owner-operators to an extent which rendered the sanctioning of the operation as private carriage a departure from the statutory design. We think that such conclusions were well within the range of the responsibility Congress assigned to the Commission. The District Court explicitly recognized the propriety of the Commission's inquiring into the substance of the arrangements. Yet the court's conclusion that "what is involved here is private carriage on the part of the Company, rather than transportation for-hire by the owner-operators." 193 F. Supp. at 281, rests on no articulated premise other than that Oklahoma did have control. If the court intended to hold that the Commission is confined to the "control" test, we think it clearly in error in view of the Page 368 U. S. 386 statutory objectives which we have set forth above. If, on the other hand, the court meant to substitute its judgment for the Commission's on the question of substance, we think that, on this record, it indulged in an unwarranted incursion into the administrative domain.Reversed

U.S. Supreme CourtUnited States v. Drum, 368 U.S. 370 (1962)United States v. DrumNo. 23Argued October 11-12, 1961Decided January 15, 1962*368 U.S. 370SyllabusEach of the individual appellees owns a truck tractor which he operates under a leasing arrangement with a furniture manufacturer in the interstate transportation of the manufacturer's furniture and in the backhaul of raw materials used in the manufacture of its products. Appellees are compensated for the use of their tractors and for their services as drivers solely on the basis of fixed rates per mile driven. They bear all of the operating costs of the transportation and assume the financial risk of profit or loss thereon. The manufacturer has a collective bargaining agreement with the union representing appellees and grants them certain benefits of employees, including, inter alia, seniority rights, job security, death benefits, vacation pay and social security and workmen's compensation coverage. The Interstate Commerce Commission found that appellees are "contract carriers" within the meaning of § 203(a)(15) of the Interstate Commerce Act and are subject to the licensing requirements of § 209(a)(1), and it ordered them to cease and desist from operating without permits. The District Court held that the transportation was by the manufacturer as a "private carrier," within the meaning of §203(a)(17), and it set aside the Commission's order.Held: the Commission's finding is sustained, and the judgment of the District Court is reversed. Pp. 368 U. S. 371-386.(a) The Commission's conclusion that the financial risks of this transportation had been shifted from the manufacturer to the owner-operators to an extent which rendered the sanctioning of the operation as private carriage by the manufacturer a departure from the statutory design was well within the range of the responsibility assigned by Congress to the Commission. Pp. 368 U. S. 383-385.(b) If the District Court intended to hold that the Commission was confined to the "control" test -- i.e., whether the manufacturer had any right to control, direct or dominate the transportation -- it Page 368 U. S. 371 was in error, since a finding of shipper control does not require a resolution of the ultimate issue in the shipper's favor. Pp. 368 U. S. 381-383, 368 U. S. 385-386.(c) If the District Court meant to substitute its judgment for that of the Commission on the question of substance on this record, it indulged in an unwarranted incursion into the administrative domain. P. 368 U. S. 386.193 F. Supp. 275, reversed.

1994_93-1340

after his arrest he placed a call to respondent's pager. When respondent returned the call, Shuster told him that a friend wanted to purchase a pound of methamphetamine for $13,000. Shuster arranged to meet respondent later that day.At their meeting, Shuster introduced an undercover officer as his "friend." The officer asked respondent if he had "brought the stuff with him," and respondent told the officer it was in his car. The two proceeded to the car, where respondent produced a brown paper package containing approximately one pound of methamphetamine. Respondent then presented a glass pipe (later found to contain methamphetamine residue) and asked the officer if he wanted to take a "hit." The officer indicated that he would first get respondent the money; as the officer left the car, he gave a prearranged arrest signal. Respondent was arrested and charged with possession of methamphetamine with intent to distribute, in violation of 84 Stat. 1260, as amended, 21 U. S. C. § 841(a)(1).On October 17, 1991, respondent and his attorney asked to meet with the prosecutor to discuss the possibility of cooperating with the Government. The prosecutor agreed to meet later that day. At the beginning of the meeting, the prosecutor informed respondent that he had no obligation to talk, but that if he wanted to cooperate he would have to be completely truthful. As a condition to proceeding with the discussion, the prosecutor indicated that respondent would have to agree that any statements he made during the meeting could be used to impeach any contradictory testimony he might give at trial if the case proceeded that far. Respondent conferred with his counsel and agreed to proceed under the prosecutor's terms.Respondent then admitted knowing that the package he had attempted to sell to the undercover police officer contained methamphetamine, but insisted that he had dealt only in "ounce" quantities of methamphetamine prior to his ar-199rest. Initially, respondent also claimed that he was acting merely as a broker for Shuster and did not know that Shuster was manufacturing methamphetamine at his residence, but he later conceded that he knew about Shuster's laboratory. Respondent attempted to minimize his role in Shuster's operation by claiming that he had not visited Shuster's residence for at least a week before his arrest. At this point, the Government confronted respondent with surveillance evidence showing that his car was on Shuster's property the day before the arrest, and terminated the meeting on the basis of respondent's failure to provide completely truthful information.Respondent eventually was tried on the methamphetamine charge and took the stand in his own defense. He maintained that he was not involved in methamphetamine trafficking and that he had thought Shuster used his home laboratory to manufacture plastic explosives for the CIA. He also denied knowing that the package he delivered to the undercover officer contained methamphetamine. Over defense counsel's objection, the prosecutor cross-examined respondent about the inconsistent statements he had made during the October 17 meeting. Respondent denied having made certain statements, and the prosecutor called one of the agents who had attended the meeting to recount the prior statements. The jury found respondent guilty, and the District Court sentenced him to 170 months in prison.A panel of the Ninth Circuit reversed, over the dissent of Chief Judge Wallace. 998 F.2d 1452 (1993). The Ninth Circuit held that respondent's agreement to allow admission of his plea statements for purposes of impeachment was unenforceable and that the District Court therefore erred in admitting the statements for that purpose. We granted certiorari because the Ninth Circuit's decision conflicts with the Seventh Circuit's decision in United States v. Dortch, 5 F.3d 1056, 1067-1068 (1993).200IIFederal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11 (e) (6) (Rules or plea-statement Rules) are substantively identical. Rule 410 provides:"Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who ... was a participant in the plea discussions: ... (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty .... "The Ninth Circuit noted that these Rules are subject to only two express exceptions,l neither of which says anything about waiver, and thus concluded that Congress must have meant to preclude waiver agreements such as respondent's. 998 F. 2d, at 1454-1456. In light of the "precision with which these rules are generally phrased," the Ninth Circuit declined to "write in a waiver in a waiverless rule." Id., at 1456.2The Ninth Circuit's analysis is directly contrary to the approach we have taken in the context of a broad array of constitutional and statutory provisions. Rather than deeming waiver presumptively unavailable absent some sort of ex-1 A statement made by a criminal defendant in the course of plea discussions is "admissible (i) in any proceeding wherein another statement made in the course of the same ... plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel." Fed. Rule Evid. 410. Accord, Fed. Rule Crim. Proc. 11(e)(6).2 Respondent also goes to great lengths to establish a proposition that is not at issue in this case: that the plea-statement Rules do not contain a blanket "impeachment" exception. We certainly agree that the Rules give a defendant the right not to be impeached by statements made during plea discussions, but that conclusion says nothing about whether the defendant may relinquish that right by voluntary agreement.201press enabling clause, we instead have adhered to the opposite presumption. See Shutte v. Thompson, 15 Wall. 151, 159 (1873) ("A party may waive any provision, either of a contract or of a statute, intended for his benefit"); Peretz v. United States, 501 U. S. 923, 936 (1991) ("The most basic rights of criminal defendants are ... subject to waiver"). A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution. See, e. g., Ricketts v. Adamson, 483 U. S. 1, 10 (1987) (double jeopardy defense waivable by pretrial agreement); Boykin v. Alabama, 395 U. S. 238, 243 (1969) (knowing and voluntary guilty plea waives privilege against compulsory self-incrimination, right to jury trial, and right to confront one's accusers); Johnson v. Zerbst, 304 U. S. 458, 465 (1938) (Sixth Amendment right to counsel may be waived). Likewise, absent some affirmative indication of Congress' intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties. See, e. g., Evans v. Jeff D., 475 U. S. 717, 730732 (1986) (prevailing party in civil-rights action may waive its statutory eligibility for attorney's fees).Our cases interpreting the Federal Rules of Criminal Procedure are consistent with this approach. The provisions of those Rules are presumptively waivable, though an express waiver clause may suggest that Congress intended to occupy the field and to preclude waiver under other, unstated circumstances. See Crosby v. United States, 506 U. S. 255 (1993); Smith v. United States, 360 U. S. 1 (1959). In Crosby, for example, we held that a defendant's failure to appear for any part of his trial did not constitute a valid waiver of his right to be present under Federal Rule of Criminal Procedure 43. We noted that the specific right codified in Rule 43 "was considered unwaivable in felony cases" at common law, and that Rule 43 expressly recognized only one exception to the common-law rule. 506 U. S., at 259. In light of the specific common-law history behind Rule 43 and the ex-202press waiver provision in the Rule, we declined to conclude that "the drafters intended the Rule to go further." Id., at 260. Our decision in Smith followed a similar line of reasoning. It held that waiver of the indictment requirement embodied in Federal Rule of Criminal Procedure 7(a) is confined to the specific circumstances outlined in the Rule's text:"Rule 7(a) recognizes that this safeguard may be waived, but only in those proceedings which are noncapital." 360 U. S., at 9. Unlike Rules 43 and 7(a), however, the plea-statement Rules make no mention of waiver, and so Crosby and Smith provide no basis for setting aside the usual presumption.The presumption of waivability has found specific application in the context of evidentiary rules. Absent some "overriding procedural consideration that prevents enforcement of the contract," courts have held that agreements to waive evidentiary rules are generally enforceable even over a party's subsequent objections. 21 C. Wright & K. Graham, Federal Practice and Procedure § 5039, pp. 207-208 (1977) (hereinafter Wright & Graham). Courts have "liberally enforced" agreements to waive various exclusionary rules of evidence. Note, Contracts to Alter the Rules of Evidence, 46 Harv. L. Rev. 138, 139-140 (1933). Thus, at the time of the adoption of the Federal Rules of Evidence, agreements as to the admissibility of documentary evidence were routinely enforced and held to preclude subsequent objections as to authenticity. See, e. g., Tupman Thurlow Co. v. S. S. Cap Castillo, 490 F.2d 302, 309 (CA2 1974); United States v. Wing, 450 F.2d 806, 811 (CA9 1971). And although hearsay is inadmissible except under certain specific exceptions, we have held that agreements to waive hearsay objections are enforceable. See Sac and Fox Indians of Miss. in Iowa v. Sac and Fox Indians of Miss. in Okla., 220 U. S. 481, 488489 (1911); see also United States v. Bonnett, 877 F.2d 1450, 1458-1459 (CAlO 1989) (party's stipulation to admissibility of document precluded hearsay objection at trial).203Indeed, evidentiary stipulations are a valuable and integral part of everyday trial practice. Prior to trial, parties often agree in writing to the admission of otherwise objectionable evidence, either in exchange for stipulations from opposing counselor for other strategic purposes. Both the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure appear to contemplate that the parties will enter into evidentiary agreements during a pretrial conference. See Fed. Rule Civ. Proc. 16(c)(3); Fed. Rule Crim. Proc. 17.1. During the course of trial, parties frequently decide to waive evidentiary objections, and such tactics are routinely honored by trial judges. See 21 Wright & Graham § 5032, at 161 ("It is left to the parties, in the first instance, to decide whether or not the rules are to be enforced .... It is only in rare cases that the trial judge will ... exclude evidence they are content to see admitted"); see also United States v. Coonan, 938 F.2d 1553, 1561 (CA2 1991) (criminal defendant not entitled "to evade the consequences of an unsuccessful tactical decision" made in welcoming admission of otherwise inadmissible evidence).3IIIBecause the plea-statement Rules were enacted against a background presumption that legal rights generally, and evidentiary provisions specifically, are subject to waiver by voluntary agreement of the parties, we will not interpret3 Respondent contends that a pretrial agreement to waive the exclusionary provisions of the plea-statement Rules is unlike a typical stipulation, which is entered into while the case is in progress, and is more like an extrajudicial agreement made outside the context of litigation. Brief for Respondent 39. While it may be true that extrajudicial contracts made prior to litigation trigger closer judicial scrutiny than stipulations made within the context of litigation, see 21 Wright & Graham § 5039, at 206, there is nothing extrajudicial about the waiver agreement at issue here. The agreement was made in the course of a plea discussion aimed at resolving the specific criminal case that was "in progress" against respondent.204Congress' silence as an implicit rejection of waivability. Respondent bears the responsibility of identifying some affirmative basis for concluding that the plea-statement Rules depart from the presumption of waivability.Respondent offers three potential bases for concluding that the Rules should be placed beyond the control of the parties. We find none of them persuasive.ARespondent first suggests that the plea-statement Rules establish a "guarantee [to] fair procedure" that cannot be waived. Brief for Respondent 12. We agree with respondent's basic premise: There may be some evidentiary provisions that are so fundamental to the reliability of the factfinding process that they may never be waived without irreparably "discredit[ing] the federal courts." See 21 Wright & Graham § 5039, at 207-208; see also Wheat v. United States, 486 U. S. 153, 162 (1988) (court may decline a defendant's waiver of his right to conflict-free counsel); United States v. Josefik, 753 F.2d 585, 588 (CA7 1985) ("No doubt there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant's conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept"). But enforcement of agreements like respondent's plainly will not have that effect. The admission of plea statements for impeachment purposes enhances the truthseeking function of trials and will result in more accurate verdicts. Cf. Jenkins v. Anderson, 447 U. S. 231, 238 (1980) (once a defendant decides to testify, he may be required to face impeachment on cross-examination, which furthers the "'function of the courts of justice to ascertain the truth''') (quoting Brown v. United States, 356 U. S. 148, 156 (1958)); Note, 46 Harv. L. Rev., at 142-143 ("[A] contract to deprive the court of relevant testimony ... stands on a different205ground than one admitting evidence that would otherwise have been barred by an exclusionary rule. One contract is an impediment to ascertaining the facts, the other aids in the final determination of the true situation") (footnote omitted). Under any view of the evidence, the defendant has made a false statement, either to the prosecutor during the plea discussion or to the jury at trial; making the jury aware of the inconsistency will tend to increase the reliability of the verdict without risking institutional harm to the federal courts.Respondent nevertheless urges that the plea-statement Rules are analogous to Federal Rule of Criminal Procedure 24(c), which provides that "[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." JUSTICE KENNEDY'S concurrence in United States v. Olano, 507 U. S. 725, 741 (1993), suggested that the guarantees of Rule 24(c) may never be waived by an agreement to permit alternate jurors to sit in on jury deliberations, and respondent asks us to extend that logic to the plea-statement Rules. But even if we assume that the requirements of Rule 24(c) are "the product of a judgment that our jury system should be given a stable and constant structure, one that cannot be varied by a court with or without the consent of the parties," id., at 742, the pleastatement Rules plainly do not satisfy this standard. Rules 410 and 11(e)(6) "creat[e], in effect, a privilege of the defendant," 2 J. Weinstein & M. Berger, Weinstein's Evidence , 410[05], p. 410-43 (1994), and, like other evidentiary privileges, this one may be waived or varied at the defendant's request. The Rules provide that statements made in the course of plea discussions are inadmissible "against" the defendant, and thus leave open the possibility that a defendant may offer such statements into evidence for his own tactical advantage. Indeed, the Rules contemplate this result in permitting admission of statements made "in any proceeding wherein another statement made in the course of the same ... plea discussions has been introduced and the statement206ought in fairness be considered contemporaneously with it." Fed. Rule Evid. 410(i) (emphasis added); accord, Fed. Rule Crim. Proc. 11(e)(6)(i). Thus, the plea-statement Rules expressly contemplate a degree of party control that is consonant with the background presumption of waivability.4BRespondent also contends that waiver is fundamentally inconsistent with the Rules' goal of encouraging voluntary settlement. See Advisory Committee's Notes on Fed. Rule Evid. 410 (purpose of Rule is "promotion of disposition of criminal cases by compromise"). Because the prospect of waiver may make defendants "think twice" before entering into any plea negotiation, respondent suggests that enforcement of waiver agreements acts "as a brake, not as a facilitator, to the plea-bargain process." Brief for Respondent 23, n. 17. The Ninth Circuit expressed similar concerns, noting that Rules 410 and 11(e)(6) "aid in obtaining thee] cooperation" that is often necessary to identify and prosecute the leaders of a criminal conspiracy and that waiver of the protections of the Rules "could easily have a chilling effect on the entire plea bargaining process." 998 F. 2d, at 1455. According to the Ninth Circuit, the plea-statement Rules "permit the plea bargainer to maximize what he has 'to sell'" by preserving "the ability to withdraw from the bargain proposed by the prosecutor without being harmed by any of his4 The Ninth Circuit relied on Brooklyn Savings Bank v. O'Neil, 324 U. S. 697 (1945), but that case is easily distinguishable in this regard. Brooklyn Savings Bank held that certain statutory entitlements guaranteed to employees by the Fair Labor Standards Act of 1938 were unwaivable because the structure and legislative history of the Act evinced a specific "legislative policy" of "prevent[ing] private contracts" on such matters. Id., at 706. Respondent has identified nothing in the structure or history of the plea-statement Rules that suggests that they were aimed at preventing private bargaining; in fact, the above discussion suggests that the Rules adopt a contrary view.207statements made in the course of an aborted plea bargaining session." Ibid.We need not decide whether and under what circumstances substantial "public policy" interests may permit the inference that Congress intended to override the presumption of waivability, for in this case there is no basis for concluding that waiver will interfere with the Rules' goal of encouraging plea bargaining. The court below focused entirely on the defendant's incentives and completely ignored the other essential party to the transaction: the prosecutor. Thus, although the availability of waiver may discourage some defendants from negotiating, it is also true that prosecutors may be unwilling to proceed without it.Prosecutors may be especially reluctant to negotiate without a waiver agreement during the early stages of a criminal investigation, when prosecutors are searching for leads and suspects may be willing to offer information in exchange for some form of immunity or leniency in sentencing. In this "cooperation" context, prosecutors face "painfully delicate" choices as to "whether to proceed and prosecute those suspects against whom the already produced evidence makes a case or whether to extend leniency or full immunity to some suspects in order to procure testimony against other, more dangerous suspects against whom existing evidence is flimsy or nonexistent." Hughes, Agreements for Cooperation in Criminal Cases, 45 Vand. L. Rev. 1, 15 (1992). Because prosecutors have limited resources and must be able to answer "sensitive questions about the credibility of the testimony" they receive before entering into any sort of cooperation agreement, id., at 10, prosecutors may condition cooperation discussions on an agreement that the testimony provided may be used for impeachment purposes. See Thompson & Sumner, Structuring Informal Immunity, 8 Crim. Just. 16, 19 (spring 1993). If prosecutors were precluded from securing such agreements, they might well decline to enter into cooperation discussions in the first place208and might never take this potential first step toward a plea bargain.5Indeed, as a logical matter, it simply makes no sense to conclude that mutual settlement will be encouraged by precluding negotiation over an issue that may be particularly important to one of the parties to the transaction. A sounder way to encourage settlement is to permit the interested parties to enter into knowing and voluntary negotiations without any arbitrary limits on their bargaining chips. To use the Ninth Circuit's metaphor, if the prosecutor is interested in "buying" the reliability assurance that accompanies a waiver agreement, then precluding waiver can only stifle the market for plea bargains. A defendant can "maximize" what he has to "sell" only if he is permitted to offer what the prosecutor is most interested in buying. And while it is certainly true that prosecutors often need help from the small fish in a conspiracy in order to catch the big ones, that is no reason to preclude waiver altogether. If prosecutors decide that certain crucial information will be gained only by preserving the inadmissibility of plea statements, they will agree to leave intact the exclusionary provisions of the plea-statement Rules.5We cannot agree with the dissent's conclusion that the policies expressed in the Advisory Committee's Notes to the plea-statement Rules indicate congressional animosity toward waivability. The Advisory Committee's Notes always provide some policy justification for the exclusionary provisions in the Rules, yet those policies merely justify the default rule of exclusion; they do not mean that the parties can never waive the default rule. Indeed, the dissent is unwilling to accept the logical result of its approach, which would require a wholesale rejection of the background presumption of party control over evidentiary provisions. Hearsay, for example, is generally excluded because it tends to lack "trustworthiness," see Advisory Committee's Notes on Article VIII of the Fed. Rules of Evid., 28 U. S. C. App., p. 770, yet even the dissent concedes that the hearsay rules are "waivable beyond any question," post, at 212. Thus, the mere existence of a policy justification for the plea-statement Rules cannot provide a sound basis for rejecting the background presumption of waivability.209In sum, there is no reason to believe that allowing negotiation as to waiver of the plea-statement Rules will bring plea bargaining to a grinding halt; it may well have the opposite effect.6 Respondent's unfounded policy argument thus provides no basis for concluding that Congress intended to prevent criminal defendants from offering to waive the plea-statement Rules during plea negotiation.CFinally, respondent contends that waiver agreements should be forbidden because they invite prosecutorial overreaching and abuse. Respondent asserts that there is a "gross disparity" in the relative bargaining power of the parties to a plea agreement and suggests that a waiver agreement is "inherently unfair and coercive." Brief for Respondent 26. Because the prosecutor retains the discretion to "reward defendants for their substantial assistance" under the Sentencing Guidelines, respondent argues that defendants face an "'incredible dilemma'" when they are asked to accept waiver as the price of entering plea discussions. Ibid. (quoting Green v. United States, 355 U. S. 184, 193 (1957)).The dilemma flagged by respondent is indistinguishable from any of a number of difficult choices that criminal defendants face every day. The plea bargaining process neces-6 Respondent has failed to offer any empirical support for his apocalyptic predictions, and data compiled by the Administrative Office of the United States Courts appear to contradict them. Prior to the Ninth Circuit's decision in this case (when, according to the Solicitor General, federal prosecutors in that Circuit used waiver agreements like the one invalidated by the court below, see Pet. for Cert. 10-11), approximately 92.2% of the convictions in the Ninth Circuit were secured through pleas of guilty or nolo contendere. Annual Report of the Director, Administrative Office of the United States Courts, Judicial Business of the United States Courts 278 (1992) (Table D-7). During that same period, about 88.8% of the convictions in all federal courts were secured by voluntary pleas. Id., at 276.210sarily exerts pressure on defendants to plead guilty and to abandon a series of fundamental rights, but we have repeatedly held that the government "may encourage a guilty plea by offering substantial benefits in return for the plea." Corbitt v. New Jersey, 439 U. S. 212, 219 (1978). "While confronting a defendant with the risk of more severe punishment clearly may have a 'discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable' -and permissible'attribute of any legitimate system which tolerates and encourages the negotiation of pleas.'" Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978) (quoting Chaffin v. Stynchcombe, 412 U. S. 17, 31 (1973)).The mere potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing negotiation altogether. "Rather, tradition and experience justify our belief that the great majority of prosecutors will be faithful to their duty." Newton v. Rumery, 480 U. S. 386, 397 (1987) (plurality opinion); see also United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926) ("[I]n the absence of clear evidence to the contrary, courts presume that [public officers] have properly discharged their official duties"). Thus, although some waiver agreements "may not be the product of an informed and voluntary decision," this possibility "does not justify invalidating all such agreements." Newton, supra, at 393 (majority opinion). Instead, the appropriate response to respondent's predictions of abuse is to permit case-by-case inquiries into whether waiver agreements are the product of fraud or coercion. We hold that absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable.IVRespondent conferred with his lawyer after the prosecutor proposed waiver as a condition of proceeding with the plea211discussion, and he has never complained that he entered into the waiver agreement at issue unknowingly or involuntarily. The Ninth Circuit's decision was based on its per se rejection of waiver of the plea-statement Rules. Accordingly, the judgment of the Court of Appeals is reversed.It is so ordered

OCTOBER TERM, 1994SyllabusUNITED STATES v. MEZZANATTOCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 93-1340. Argued November 2, 1994-Decided January 18, 1995Respondent was convicted on federal drug charges after being crossexamined, over his counsel's objection, about inconsistent statements that he had made during an earlier plea discussion. The Ninth Circuit reversed, holding that respondent's agreement that any statements he made in the plea discussion could be used at trial for impeachment purposes was unenforceable under Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6) (Rules or plea-statement Rules), which exclude from admission into evidence against a criminal defendant statements made during plea bargaining.Held: An agreement to waive the plea-statement Rules' exclusionary provisions is valid and enforceable absent some affirmative indication that the defendant entered the agreement unknowingly or involuntarily. Pp.200-211.(a) Contrary to the Ninth Circuit's conclusion, the Rules' failure to include an express waiver-enabling clause does not demonstrate Congress' intent to preclude waiver agreements such as respondent's. Rather, the Rules were enacted against a background presumption that legal rights generally, and evidentiary provisions specifically, are subject to waiver by voluntary agreement of the parties. See, e. g., Ricketts v. Adamson, 483 U. S. 1, 10; Sac and Fox Indians of Miss. in Iowa v. Sac and Fox Indians of Miss. in Okla., 220 U. S. 481, 488-489. Crosby v. United States, 506 U. S. 255, 259, and Smith v. United States, 360 U. S. 1, 9, distinguished. Respondent bears the responsibility of identifying some affirmative basis for concluding that the Rules depart from the presumption of waivability. Pp. 200-203.(b) The three potential bases offered by respondent for concluding that the Rules are not consonant with the presumption of waivability(a) that the Rules establish a "guarantee [to] fair procedure" that cannot be waived, (b) that waiver is fundamentally inconsistent with the Rules' goal of encouraging voluntary settlement, and (c) that waiver agreements should be forbidden because they invite prosecutorial overreaching and abuse-are not persuasive. Instead of the per se rejection of waiver adopted by the Ninth Circuit, the appropriate approach is to permit case-by-case inquiries into whether waiver agreements are the197product of fraud or coercion. Here, respondent conferred with his lawyer after the prosecutor proposed waiver as a condition of proceeding with the plea discussion, and he has never complained that he entered into the waiver agreement at issue unknowingly or involuntarily. Pp. 203-211.998 F.2d 1452, reversed.THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a concurring statement, in which O'CONNOR and BREYER, JJ., joined, post, p. 211. SOUTER, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 211.Miguel A. Estrada argued the cause for the United States.With him on the briefs were Solicitor General Days, Assistant Attorney General Harris, and Deputy Solicitor General Kneedler.Mark R. Lippman, by appointment of the Court, 511 U. S. 1067, argued the cause and filed a brief for respondent. *JUSTICE THOMAS delivered the opinion of the Court. Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6) provide that statements made in the course of plea discussions between a criminal defendant and a prosecutor are inadmissible against the defendant. The court below held that these exclusionary provisions may not be waived by the defendant. We granted certiorari to resolve a conflict among the Courts of Appeals, and we now reverse.IOn August 1, 1991, San Diego Narcotics Task Force agents arrested Gordon Shuster after discovering a methamphetamine laboratory at his residence in Rainbow, California. Shuster agreed to cooperate with the agents, and a few hours* John J. Cleary filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.198Full Text of Opinion

1997_96-8422

Kent L. Jones argued the cause for the United States.With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and John F. De Pue. *JUSTICE STEVENS delivered the opinion of the Court. Petitioner was convicted of "willfully" dealing in firearms without a federal license. The question presented is whether the term "willfully" in 18 U. S. C. § 924(a)(1)(D) requires proof that the defendant knew that his conduct was unlawful, or whether it also requires proof that he knew of the federal licensing requirement.IIn 1968 Congress enacted the Omnibus Crime Control and Safe Streets Act. 82 Stat. 197-239. In Title IV of that Act Congress made findings concerning the impact of the traffic in firearms on the prevalence of lawlessness and violent crime in the United States 1 and amended the Criminal Code*Briefs of amici curiae urging reversal were filed for the Gun Owners Foundation by James H. Jeffries III and James H. Wentzel; and for the National Association of Criminal Defense Lawyers by Barbara Bergman and Stephen P. Halbrook.1 "Sec. 901. (a) The Congress hereby finds and declares-"(1) that there is a widespread traffic in firearms moving in or otherwise affecting interstate or foreign commerce, and that the existing Federal controls over such traffic do not adequately enable the States to control this traffic within their own borders through the exercise of their police power;"(2) that the ease with which any person can acquire firearms other than a rifle or shotgun (including criminals, juveniles without the knowledge or consent of their parents or guardians, narcotics addicts, mental defectives, armed groups who would supplant the functions of duly constituted public authorities, and others whose possession of such weapons is similarly contrary to the public interest) is a significant factor in the prevalence of lawlessness and violent crime in the United States;"(3) that only through adequate Federal control over interstate and foreign commerce in these weapons, and over all persons engaging in the businesses of importing, manufacturing, or dealing in them, can this grave187to include detailed provisions regulating the use and sale of firearms. As amended, 18 U. S. C. § 922 defined a number of "unlawful acts"; subsection (a)(l) made it unlawful for any person except a licensed dealer to engage in the business of dealing in firearms.2 Section 923 established the federal licensing program and repeated the prohibition against dealing in firearms without a license, and § 924 specified the penalties for violating "any provision of this chapter." Read literally, § 924 authorized the imposition of a fine of up to $5,000 or a prison sentence of not more than five years, "or both," on any person who dealt in firearms without a license even if that person believed that he or she was acting lawfully.3 As enacted in 1968, §§ 922(a)(1) and 924 omitted an express scienter requirement and therefore arguably imposed strict criminal liability on every unlicensed dealer in firearms. The 1968 Act also omitted any definition of the term "engaged in the business" even though that conduct was an element of the unlawful act prohibited by § 922(a)(1).In 1986 Congress enacted the Firearms Owners' Protection Act (FOPA), in part, to cure these omissions. The findings in that statute explained that additional legislation was necessary to protect law-abiding citizens with respect to the acquisition, possession, or use of firearms for lawful pur-problem be properly dealt with, and effective State and local regulation of this traffic be made possible .... " 82 Stat. 225.282 Stat. 228. The current version of this provision, which is substantially the same as the 1968 version, is codified at 18 U. S. C. § 922(a)(I)(A). It states:"(a) It shall be unlawful"(1) for any person-"(A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce."3 "§ 924. Penalties"(a) Whoever violates any provision of this chapter ... shall be fined not more than $5,000 or imprisoned not more than five years, or both." 82 Stat. 233.188poses.4 FOPA therefore amended § 921 to include a definition of the term "engaged in the business," 5 and amended § 924 to add a scienter requirement as a condition to the imposition of penalties for most of the unlawful acts defined in § 922. For three categories of offenses the intent required is that the defendant acted "knowingly"; for the fourth category, which includes "any other provision of this chapter," the required intent is that the defendant acted "willfully." 64 "The Congress finds that-"(b)(2) additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act of 1968, that 'it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.''' 100 Stat. 449.5 "Section 921 of title 18, United States Code, is amended-"(21) The term 'engaged in the business' means-"(C) as applied to a dealer in firearms, as defined in section 921 (a)(ll)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms ... ." 100 Stat. 449-450.6 Title 18 U. S. C. § 924(a)(1) currently provides:"Except as otherwise provided in this subsection, subsection (b), (c), or (f) of this section, or in section 929, whoever-"(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter;"(B) knowingly violates subsection (a)(4), (f), (k), (r), (v), or (w) of section 922;189The § 922(a)(1)(A) 7 offense at issue in this case is an "other provision" in the "willfully" category.IIThe jury having found petitioner guilty, we accept the Government's version of the evidence. That evidence proved that petitioner did not have a federal license to deal in firearms; that he used so-called "straw purchasers" in Ohio to acquire pistols that he could not have purchased himself; that the straw purchasers made false statements when purchasing the guns; that petitioner assured the straw purchasers that he would file the serial numbers off the guns; and that he resold the guns on Brooklyn street corners known for drug dealing. The evidence was unquestionably adequate to prove that petitioner was dealing in firearms, and that he knew that his conduct was unlawful.8 There was, however, no evidence that he was aware of the federal law that prohibits dealing in firearms without a federal license.Petitioner was charged with a conspiracy to violate 18 U. s. C. § 922(a)(1)(A), by willfully engaging in the business of dealing in firearms, and with a substantive violation of that provision.9 After the close of evidence, petitioner requested that the trial judge instruct the jury that petitioner could be convicted only if he knew of the federal"(C) knowingly imports or brings into the United States or any possession thereof any firearm or ammunition in violation of section 922(l); or "(D) willfully violates any other provision of this chapter,"shall be fined under this title, imprisoned not more than five years, or both."7 See n. 2, supra.8 Why else would he make use of straw purchasers and assure them that he would shave the serial numbers off the guns? Moreover, the street corner sales are not consistent with a good-faith belief in the legality of the enterprise.9 Although the prohibition against unlicensed dealing in firearms is set forth in § 922, see n. 2, supra, the criminal sanction is set forth in § 924(a)(1), see n. 6, supra.190licensing requirement,lO but the judge rejected this request. Instead, the trial judge gave this explanation of the term "willfully":"A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that his conduct may be violating. But he must act with the intent to do something that the law forbids." 11Petitioner was found guilty on both counts. On appeal he argued that the evidence was insufficient because there was no proof that he had knowledge of the federal licensing requirement, and that the trial judge had erred by failing to instruct the jury that such knowledge was an essential element of the offense. The Court of Appeals affirmed. 122 F.3d 90 (CA2 1997). It concluded that the instructions were proper and that the Government had elicited "ample proof" that petitioner had acted willfully. App. 22.Because the Eleventh Circuit has held that it is necessary for the Government to prove that the defendant acted with knowledge of the licensing requirement, United States v. Sanchez-Corcino, 85 F.3d 549, 553-554 (1996), we granted certiorari to resolve the conflict. 522 U. S. 1024 (1997).lO"KNOWLEDGE OF THE LAW"The Federal Firearms Statute which the Defendant is charged with, conspiracy to violate and with allegedly violated [sic], is a specific intent statute. You must accordingly find, beyond a reasonable doubt, that Defendant at all relevant times charged, acted with the knowledge that it was unlawful to engage in the business of firearms distribution lawfully purchased by a legally permissible transferee or gun purchaser."[Y]ou must be persuaded that with the actual knowledge of the federal firearms licensing laws Defendant acted in knowing and intentional violation of them." App. 17 (citing Ratzlaf v. United States, 510 U. S. 135 (1994)).11 App. 18-19.191IIIThe word "willfully" is sometimes said to be "a word of many meanings" whose construction is often dependent on the context in which it appears. See, e. g., Spies v. United States, 317 U. S. 492, 497 (1943). Most obviously it differentiates between deliberate and unwitting conduct, but in the criminal law it also typically refers to a culpable state of mind. As we explained in United States v. Murdock, 290 U. S. 389 (1933), a variety of phrases have been used to describe that concept.12 As a general matter, when used in the criminal context, a "willful" act is one undertaken with a "bad purpose." 13 In other words, in order to establish a12 "The word often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose (Felton v. United States, 96 U. S. 699; Potter v. United States, 155 U. S. 438; Spurr v. United States, 174 U. S. 728); without justifiable excuse (Felton v. United States, supra; Williams v. People, 26 Colo. 272; 57 Pac. 701; People v. Jewell, 138 Mich 620; 101 N. W. 835; St. Louis, I. M. & S. Ry. Co. v. Batesville & W Tel. Co., 80 Ark. 499; 97 S. W. 660; Clay v. State, 52 Tex. Cr. 555; 107 S. W. 1129); stubbornly, obstinately, perversely, Wales v. Miner, 89 Ind. 118, 127; Lynch v. Commonwealth, 131 Va. 762; 109 S. E. 427; Claus v. Chicago Gt. WRy. Co., 136 Iowa 7; 111 N. W. 15; State v. Harwell, 129 N. C. 550; 40 S. E. 48. The word is also employed to characterize a thing done without ground for believing it is lawful (Roby v. Newton, 121 Ga. 679; 49 S. E. 694), or conduct marked by careless disregard whether or not one has the right so to act, United States v. Philadelphia & R. Ry. Co., 223 Fed. 207, 210; State v. Savre, 129 Iowa 122; 105 N. W. 387; State v. Morgan, 136 N. C. 628; 48 S. E. 670." 290 U. S., at 394-395.13 See, e. g., Heikkinen v. United States, 355 U. S. 273, 279 (1958) ("There can be no willful failure by a deportee, in the sense of § 20(c), to apply to, and identify, a country willing to receive him in the absence of evidence ... of a 'bad purpose' or '[non-]justifiable excuse,' or the like .... [I]t cannot be said that he acted 'willfully' -i. e., with a 'bad purpose' or without 'justifiable excuse' "); United States v. Murdock, 290 U. S. 389, 394 (1933) ("[W]hen used in a criminal statute [willfully] generally means an act done with a bad purpose"); Felton v. United States, 96 U. S. 699, 702 (1878) ("Doing or omitting to do a thing knowingly and wilfully, implies not only a knowledge of the thing, but a determination with a bad192"willful" violation of a statute, "the Government must prove that the defendant acted with knowledge that his conduct was unlawful." Ratzlaf v. United States, 510 U. S. 135, 137 (1994).Petitioner argues that a more particularized showing is required in this case for two principal reasons. First, he argues that the fact that Congress used the adverb "knowingly" to authorize punishment of three categories of acts made unlawful by § 922 and the word "willfully" when it referred to unlicensed dealing in firearms demonstrates that the Government must shoulder a special burden in cases like this. This argument is not persuasive because the term "knowingly" does not necessarily have any reference to a culpable state of mind or to knowledge of the law. As Justice Jackson correctly observed, "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law." 14 Thus, in Unitedintent to do it or to omit doing it. 'The word "wilfully,'" says Chief Justice Shaw, 'in the ordinary sense in which it is used in statutes, means not merely "voluntarily," but with a bad purpose.' 20 Pick. (Mass.) 220. 'It is frequently understood,' says Bishop, 'as signifying an evil intent without justifiable excuse.' Crim. Law, vol. i. sect. 428"); 1 L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions ~ 3A.01, p. 3A-18 (1997) ("'Willfully' means to act with knowledge that one's conduct is unlawful and with the intent to do something the law forbids, that is to say with the bad purpose to disobey or to disregard the law").14 In his opinion dissenting from the Court's decision upholding the constitutionality of a statute authorizing punishment for the knowing violation of an Interstate Commerce regulation, Justice Jackson wrote:"It is further suggested that a defendant is protected against indefiniteness because conviction is authorized only for knowing violations. The argument seems to be that the jury can find that defendant knowingly violated the regulation only if it finds that it knew the meaning of the regulation he was accused of violating. With the exception of Screws v. United States, 325 U. S. 91, which rests on a very particularized basis, the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law. I do not suppose the Court intends to suggest that if petitioner knew nothing of the existence193States v. Bailey, 444 U. S. 394 (1980), we held that the prosecution fulfills its burden of proving a knowing violation of the escape statute "if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission." Id., at 408. And in Staples v. United States, 511 U. S. 600 (1994), we held that a charge that the defendant's possession of an unregistered machine gun was unlawful required proof "that he knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machinegun." Id., at 602. It was not, however, necessary to prove that the defendant knew that his possession was unlawful. See Rogers v. United States, 522 U. S. 252, 254-255 (1998) (plurality opinion). Thus, unless the text of the statute dictates a different result,15 the term "knowingly" merely requires proof of knowledge of the facts that constitute the offense.With respect to the three categories of conduct that are made punishable by § 924 if performed "knowingly," the background presumption that every citizen knows the law makes it unnecessary to adduce specific evidence to prove that "an evil-meaning mind" directed the "evil-doing hand." 16 More is required, however, with respect to the conduct in the fourth category that is only criminal when done "willfully." The jury must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.Petitioner next argues that we must read § 924(a)(1)(D) to require knowledge of the law because of our inter-of such a regulation its ignorance would constitute a defense." Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 345 (1952).15 Liparota v. United States, 471 U. S. 419 (1985), was such a case. We there concluded that both the term "knowing" in 7 U. S. C. § 2024(c) and the term "knowingly" in § 2024(b)(1) literally referred to knowledge of the law as well as knowledge of the relevant facts. See id., at 428-430.16Justice Jackson's translation of the terms mens rea and actus reus is found in his opinion for the Court in Morissette v. United States, 342 U. S. 246, 251 (1952).194pretation of "willfully" in two other contexts. In certain cases involving willful violations of the tax laws, we have concluded that the jury must find that the defendant was aware of the specific provision of the tax code that he was charged with violating. See, e. g., Cheek v. United States, 498 U. S. 192, 201 (1991).17 Similarly, in order to satisfy a willful violation in Ratzlaj, we concluded that the jury had to find that the defendant knew that his structuring of cash transactions to avoid a reporting requirement was unlawful. See 510 U. S., at 138, 149. Those cases, however, are readily distinguishable. Both the tax cases 18 and Ratzlaf19 involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct.20 As a result, we held that these statutes17 Even in tax cases, we have not always required this heightened mens rea. In United States v. Pomponio, 429 U. S. 10 (1976) (per curiam), for example, the jury was instructed that a willful act is one done "with [the] bad purpose either to disobey or to disregard the law." Id., at 11. We approved of this instruction, concluding that "[t]he trial judge ... adequately instructed the jury on willfulness." Id., at 13.18 As we stated in Cheek v. United States, 498 U. S. 192, 199-200 (1991):"The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses. Thus, the Court almost 60 years ago interpreted the statutory term 'willfully' as used in the federal criminal tax statutes as carving out an exception to the traditional rule [that every person is presumed to know the law]. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws."19 See Bates v. United States, 522 U. S. 23, 31, n. 6 (1997) (noting that Ratzlaj's holding was based on the "particular statutory context of currency structuring"); Ratzlaj, 510 U. S., at 149 (Court's holding based on "particular contex[t]" of currency structuring statute).20 Id., at 144-145 ("[C]urrency structuring is not inevitably nefarious ....Nor is a person who structures a currency transaction invariably motivated by a desire to keep the Government in the dark"; Government's construction of the statute would criminalize apparently innocent activity); Cheek, 498 U. S., at 205 ("[I]n 'our complex tax system, uncertainty195"carv[e] out an exception to the traditional rule" that ignorance of the law is no excuse 21 and require that the defendant have knowledge of the law.22 The danger of convicting individuals engaged in apparently innocent activity that motivated our decisions in the tax cases and Ratzlaf is not present here because the jury found that this petitioner knew that his conduct was unlawful.23often arises even among taxpayers who earnestly wish to follow the law,' and '''[i]t is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the exercise of reasonable care.'" United States v. Bishop, 412 U. S. 346, 360-361 (1973) (quoting Spies v. United States, 317 U. S. 492, 496 (1943))"); Murdock, 290 U. S., at 396 ("Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct").21 Cheek, 498 U. S., at 200; see also Ratzlaj, 510 U. S., at 149 (noting the "venerable principle that ignorance of the law generally is no defense to a criminal charge," but concluding that Congress intended otherwise in the "particular contex[t]" of the currency structuring statute).22 Even before Ratzlafwas decided, then-Chief Judge Breyer explained why there was a need for specificity under those statutes that is inapplicable when there is no danger of conviction of a defendant with an innocent state of mind. He wrote:"I believe that criminal prosecutions for 'currency law' violations, of the sort at issue here, very much resemble criminal prosecutions for tax law violations. Compare 26 U. S. C. §§ 60501, 7203 with 31 U. S. C. §§ 5322, 5324. Both sets of laws are technical; and both sets of laws sometimes criminalize conduct that would not strike an ordinary citizen as immoral or likely unlawful. Thus, both sets of laws may lead to the unfair result of criminally prosecuting individuals who subjectively and honestly believe they have not acted criminally. Cheek v. United States, 498 U. S. 192 ... (1991), sets forth a legal standard that, by requiring proof that the defendant was subjectively aware of the duty at issue, would avoid such unfair results." United States v. Aversa, 984 F.2d 493, 502 (CA1 1993) (concurring opinion).He therefore concluded that the "same standards should apply in both" the tax cases and in cases such as Ratzlaf 984 F. 2d, at 503.23 Moreover, requiring only knowledge that the conduct is unlawful is fully consistent with the purpose of FOPA, as FOPA was enacted to protect law-abiding citizens who might inadvertently violate the law. See196Thus, the willfulness requirement of § 924(a)(1)(D) does not carve out an exception to the traditional rule that ignorance of the law is no excuse; knowledge that the conduct is unlawful is all that is required.IVPetitioner advances a number of additional arguments based on his reading of congressional intent. Petitioner first points to the legislative history of FOPA, but that history is too ambiguous to offer petitioner much assistance. Petitioner's main support lies in statements made by opponents of the bilP4 As we have stated, however, "[t]he fears and doubts of the opposition are no authoritative guide to the construction of legislation." Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384, 394 (1951). "In their zeal to defeat a bill, they understandably tend to overstate its reach." NLRB v. Fruit Packers, 377 U. S. 58, 66 (1964).25Petitioner next argues that, at the time FOPA was passed, the "willfulness" requirements in other subsections of the statute-§§ 923(d)(1)(C)-(D)-had uniformly been interpreted by lower courts to require knowledge of the law; petitioner argues that Congress intended that "willfully" should have the same meaning in § 924(a)(1)(D). As an initial matter, the lower courts had come to no such agreement. While some courts had stated that willfulness in § 923(d)(1) is satis-n. 4, supra; see also United States v. Andrade, 135 F.3d 104, 108-109 (CAl1998).24 For example, Representative Hughes, a staunch opponent of the bill, stated that the willfulness requirement would "make it next to impossible to convict dealers, particularly those who engage in business without acquiring a license, because the prosecution would have to show that the dealer was personally aware of every detail of the law, and that he made a conscious decision to violate the law." 132 Congo Rec. 6875 (1986). Even petitioner's amicus acknowledges that this statement was "undoubtedly an exaggeration." Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 14.25 See also Andrade, 135 F. 3d, at 108-109.197tied by a disregard of a known legal obligation,26 willful was also interpreted variously to refer to "purposeful, intentional conduct," 27 "indifferen[ce] to the requirements of the law," 28 or merely a "conscious, intentional, deliberate, voluntary decision." 29 Moreover, in each of the cases in which disregard of a known legal obligation was held to be sufficient to establish willfulness, it was perfectly clear from the record that the licensee had knowledge of the law; 30 thus, while these26 See, e. g., Perri v. Department of the Treasury, 637 F.2d 1332, 1336 (CA9 1981); Stein's Inc. v. Blumenthal, 649 F.2d 463, 467-468 (CA7 1980). 27 Rich v. United States, 383 F. Supp. 797, 800 (SD Ohio 1974).28 Lewin v. Blumenthal, 590 F.2d 268, 269 (CA8 1979); Fin & Feather Sport Shop v. United States Treasury Department, 481 F. Supp. 800, 807 (Neb. 1979).29 Prino v. Simon, 606 F.2d 449, 451 (CA4 1979) (internal quotation marks omitted); see also Stein's, 649 F. 2d, at 467 ("[I]f a person 1) intentionally does an act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or 2) acts with careless disregard of statutory requirements, the violation is willful" (internal quotation marks omitted)).30 Perri, 637 F. 2d, at 1336 ("The district court found Perri knew a strawman transaction would violate the Act"); Stein's, 649 F. 2d, at 468 ("The record shows that the plaintiff's agents were instructed on the requirements of the law and acknowledged an understanding of the Secretary's regulations. Nevertheless, and despite repeated warnings from the Secretary, violations continued to occur" (footnote omitted)); Powers v. Bureau of Alcohol, Tobacco and Firearms, 505 F. Supp. 695, 698 (ND Fla. 1980) ("Bureau representatives inspected Powers August 31, 1976. They pointed out his many violations, gave him a copy of the regulations, thoroughly explained his obligations, and gave him a pamphlet explaining his obligations. As of that date Powers knew his obligations"); Shyda v. Director, Bureau of Alcohol, Tobacco and Firearms, 448 F. Supp. 409, 415 (MD Pa. 1977) ("[A]t the formal administrative hearing petitioner admitted on the stand under oath that he was aware of the specific legal obligation at issue"); Mayesh v. Schultz, 58 F. R. D. 537, 540 (SD Ill. 1973) ("The uncontroverted evidence shows clearly that plaintiff was aware of the above holding period requirements. Mr. Mayesh had been previously advised on the requirements under Illinois law, and he clearly acknowledged that he was aware of them"); McLemore v. United States Treasury Department, 317 F. Supp. 1077, 1078 (ND Fla. 1970) (finding that both198cases support the notion that disregard of a known legal obligation is sufficient to establish a willful violation, they in no way stand for the proposition that it is required.31Finally, petitioner argues that § 922(b)(3), which is governed by § 924(a)(1)(D)'s willfulness standard, indicates that Congress intended "willfully" to include knowledge of the law. Section 922(b)(3) prohibits licensees from selling firearms to any person who the licensee knows or has reasonable cause to believe does not reside in the licensee's State, except where, inter alia, the transaction fully complies with the laws of both the seller's and buyer's State. The subsection further states that the licensee "shall be presumed, ... in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States."32 Although petitioner argues that the presumption in § 922(b)(3) indicates that Congress intended willfulness to require knowledge of the law for all offenses covered by § 924(a)(1)(D), petitioner is mistaken. As noted above, while disregard of a known legal obligation is cer-the owner of the pawnshop, as well as his employees, had knowledge of the law).31 In Mayesh, for example, the court stated:"The uncontroverted evidence shows clearly that plaintiff was aware of the above holding period requirements. Mr. Mayesh had been previously advised on the requirements under Illinois law, and he clearly acknowledged that he was aware of them .... Since the material facts are undisputed, as a matter of law the plaintiff clearly and knowingly violated the Illinois holding provisions ... , and hence, 18 U. S. C. § 922(b)(2). This court can only consider such action to have been 'wilful' as a matter of law. There is no basis for trial of any disputed facts in this connection. This is sufficient to justify refusal of license renewal." 58 F. R. D., at 540. See also, e. g., Perri, 637 F. 2d, at 1336 (stating that when a dealer understands the requirements of the law, but knowingly fails to follow them or is indifferent to them, willfulness "is established," i. e., is satisfied); Stein's, 649 F. 2d, at 468 ("Evidence of repeated violations with knowledge of the law's requirements has been held sufficient to establish willfulness" (emphasis added)); McLemore, 317 F. Supp., at 1078-1079.3218 U. S. C. § 922(b)(3).199tainly sufficient to establish a willful violation, it is not necessary-and nothing in § 922(b)(3) contradicts this basic distinction.33vOne sentence in the trial court's instructions to the jury, read by itself, contained a misstatement of the law. In a portion of the instructions that were given after the correct statement that we have already quoted, the judge stated:"In this case, the government is not required to prove that the defendant knew that a license was required, nor is the government required to prove that he had knowledge that he was breaking the law." App. 19 (emphasis added). If the judge had added the words "that required a license," the sentence would have been accurate, but as given it was not.Nevertheless, that error does not provide a basis for reversal for four reasons. First, petitioner did not object to that sentence, except insofar as he had argued that the jury should have been instructed that the Government had the burden of proving that he had knowledge of the federal licensing requirement. Second, in the context of the entire instructions, it seems unlikely that the jury was misled. See, e. g., United States v. Park, 421 U. S. 658, 674-675 (1975). Third, petitioner failed to raise this argument in the Court of Appeals. Finally, our grant of certiorari was limited to33 Petitioner also argues that the statutory language-"willfully violates any other provision of this chapter" -indicates a congressional intent to attach liability only when a defendant possesses specific knowledge of the "provision[s] of [the] chapter." We rejected a similar argument in United States v. International Minerals & Chemical Corp., 402 U. S. 558 (1971). Although that case involved the word "knowingly" (in the phrase "knowingly violates any such regulation"), the response is the same:"We ... see no reason why the word 'regulations' [or the phrase 'any other provision of this chapter'] should not be construed as a shorthand designation for specific acts or omissions which violate the Act. The Act, so viewed, does not signal an exception to the rule that ignorance of the law is no excuse .... " Id., at 562.200the narrow legal question whether knowledge of the licensing requirement is an essential element of the offense.Accordingly, the judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1997SyllabusBRYAN v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 96-8422. Argued March 31, 1998-Decided June 15, 1998The Firearms Owners' Protection Act (FOPA) added 18 U. S. C. § 924(a) (1)(D) to the Criminal Code to prohibit anyone from "willfully" violating, inter alia, § 922(a)(I)(A), which forbids dealing in firearms without a federal license. The evidence at petitioner's unlicensed dealing trial was adequate to prove that he was dealing in firearms and that he knew his conduct was unlawful, but there was no evidence that he was aware of the federal licensing requirement. The trial judge refused to instruct the jury that he could be convicted only if he knew of the federal licensing requirement, instructing, instead, that a person acts "willfully" if he acts with the bad purpose to disobey or disregard the law, but that he need not be aware of the specific law that his conduct may be violating. The jury found petitioner guilty. The Second Circuit affirmed, concluding that the instructions were proper and that the Government had elicited "ample proof" that petitioner had acted willfully.Held: The term "willfully" in § 924(a)(I)(D) requires proof only that the defendant knew his conduct was unlawful, not that he also knew of the federal licensing requirement. pp. 191-200.(a) When used in the criminal context, a "willful" act is generally one undertaken with a "bad purpose." See, e. g., Heikkinen v. United States, 355 U. S. 273, 279. In other words, to establish a "willful" violation of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful. Ratzlafv. United States, 510 U. S. 135, 137. The Court rejects petitioner's argument that, for two principal reasons, a more particularized showing is required here. His first contention-that the "knowingly" requirement in §§ 924(a)(I)(A)-(C) for three categories of acts made unlawful by § 922 demonstrates that the Government must prove knowledge of the law-is not persuasive because "knowingly" refers to knowledge of the facts constituting the offense, as distinguished from knowledge of the law, see, e. g., United States v. Bailey, 444 U. S. 394, 408. With respect to the three § 924 "knowingly" categories, the background presumption that every citizen knows the law makes it unnecessary to adduce specific evidence to prove an evil-meaning mind. As regards the "willfully" category here at issue, however, the jury must find that the defendant acted with such a mind, i. e., with knowledge that his185conduct was unlawful. Also rejected is petitioner's second argument: that § 924(a)(1)(D) must be read to require knowledge of the law in light of this Court's adoption of a similar interpretation in cases concerned with willful violations of the tax laws, see, e. g., Cheek v. United States, 498 U. S. 192, 201, and the willful structuring of cash transactions to avoid a bank reporting requirement, see Ratzlaj, 510 U. S., at 138, 149. Those cases are readily distinguishable because they involved highly technical statutes that threatened to ensnare individuals engaged in apparently innocent conduct. That danger is not present here because the jury found that this petitioner knew that his conduct was unlawful. Pp. 191-196.(b) Petitioner's additional arguments based on his reading of congressional intent are rejected. FOPA's legislative history is too ambiguous to offer him much assistance, since his main support lies in statements made by opponents of the bill. See, e. g., Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384, 394. His next argumentthat, at the time FOPA was passed, the "willfulness" requirements in §§ 923(d)(1)(C)-(D) had uniformly been interpreted to require knowledge of the law-is inaccurate because a number of courts had reached different conclusions. Moreover, the cases adopting petitioner's view support the notion that disregard of a known legal obligation is sufficient to establish a willful violation, but in no way make it necessary. Petitioner's final argument-that § 922(b)(3), which is governed by § 924(a)(1)(D), indicates that Congress intended "willfully" to include knowledge of the law-fails for a similar reason. Pp. 196-199.(c) The trial court's misstatement of law in a jury instruction given after the correct instructions were given-specifically, a sentence asserting that "the government [need not] prove that [petitioner] had knowledge that he was breaking the law" -does not provide a basis for reversal because (1) petitioner did not effectively object to that sentence; (2) in the context of the entire instructions, it seems unlikely that the jury was misled; (3) petitioner failed to raise this argument in the Second Circuit; and (4) this Court's grant of certiorari was limited to the narrow legal question hereinbefore decided. Pp. 199-200.122 F.3d 90, affirmed.STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, post, p. 200. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and GINSBURG, J., joined, post, p. 200.Roger Bennet Adler argued the cause for petitioner.With him on the briefs was Martin B. Adelman.186Full Text of Opinion

1998_98-387

lines bear any meaningful relationship to the Government's asserted interest. Pp. 188-194.(d) Considering the manner in which § 1304 and its exceptions operate and the scope of the speech proscribed, the Government's second asserted interest-"assisting" States with policies that disfavor private casinos-provides no more convincing basis for upholding the regulation than the first. Even assuming that the state policies on which the Federal Government seeks to embellish are more coherent and pressing than their federal counterpart, § 1304 sacrifices an intolerable amount of truthful speech about lawful conduct when compared to the diverse policies at stake and the social ills that one could reasonably hope such a ban to eliminate. Pp. 194-195.149 F.3d 334, reversed.STEVENS, J., delivered the OpInIOn of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed a concurring opinion, post, p. 196. THOMAS, J., filed an opinion concurring in the judgment, post, p. 197.Bruce J. Ennis, Jr., argued the cause for petitioners.With him on the briefs were Ashton R. Hardy, Nory Miller, and Donald B. Verrilli, Jr.Deputy Solicitor General Underwood argued the cause for respondents. With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Wallace, Matthew D. Roberts, Anthony J. Steinmeyer, and Christopher J. Wright. **Briefs of amici curiae urging reversal were filed for the American Advertising Federation by Richard E. Wiley and Daniel E. Troy; for the American Gaming Association by John G. Roberts, Jr., David G. Leitch, and Frank J. Fahrenkopf, Jr.; for the Association of National Advertisers, Inc., by John J. Walsh, Steven G. Brody, and Gilbert H. Weil; for the Institute for Justice by William H. Mellor, Clint Bolick, and Scott G. Bullock; for the National Association of Broadcasters et al. by P. Cameron De Yore, Gregory J. Kopta, and Jack N. Goodman; and for the Washington Legal Foundation by David H. Remes, Patricia A. Barald, Daniel J. Popeo, and Richard A. Samp.Gerald S. Rourke filed a brief for Valley Broadcasting Co. et al. as amici curiae.176176 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESJUSTICE STEVENS delivered the opinion of the Court. Federal law prohibits some, but by no means all, broadcast advertising of lotteries and casino gambling. In United States v. Edge Broadcasting Co., 509 U. S. 418 (1993), we upheld the constitutionality of 18 U. S. C. § 1304 as applied to broadcast advertising of Virginia's lottery by a radio station located in North Carolina, where no such lottery was authorized. Today we hold that § 1304 may not be applied to advertisements of private casino gambling that are broadcast by radio or television stations located in Louisiana, where such gambling is legal.IThrough most of the 19th and the first half of the 20th centuries, Congress adhered to a policy that not only discouraged the operation of lotteries and similar schemes, but forbade the dissemination of information concerning such enterprises by use of the mails, even when the lottery in question was chartered by a state legislature.1 Consistent with this Court's earlier view that commercial advertising was unprotected by the First Amendment, see Valentine v. Chrestensen, 316 U. S. 52, 54 (1942), we found that the notion that "lotteries ... are supposed to have a demoralizing influence upon the people" provided sufficient justification for excluding circulars concerning such enterprises from the federal postal system, Ex parte Jackson, 96 U. S.1 See, e. g., Act of Mar. 2, 1895, 28 Stat. 963 (prohibiting the transportation in interstate or foreign commerce, and the mailing of, tickets and advertisements for lotteries and similar enterprises); Act of Mar. 2, 1827, § 6, 4 Stat. 238 (restricting the participation of postmasters and assistant postmasters in the lottery business); Act of July 27, 1868, § 13, 15 Stat. 196 (prohibiting the mailing of any letters or circulars concerning lotteries or similar enterprises); Act of July 12, 1876, § 2, 19 Stat. 90 (repealing an 1872 limitation of the mails prohibition to letters and circulars concerning "illegal" lotteries); Anti-Lottery Act of 1890, § 1, 26 Stat. 465 (extending the mails prohibition to newspapers containing advertisements or prize lists for lotteries or gift enterprises).177727, 736-737 (1878). We likewise deferred to congressional judgment in upholding the similar exclusion for newspapers that contained either lottery advertisements or prize lists. In re Rapier, 143 U. S. 110, 134-135 (1892); see generally Edge, 509 U. S., at 421-422; Lottery Case, 188 U. S. 321 (1903). The current versions of these early antilottery statutes are now codified at 18 U. S. C. §§ 1301-1303.Congress extended its restrictions on lottery-related information to broadcasting as communications technology made that practice both possible and profitable. It enacted the statute at issue in this case as § 316 of the Communications Act of 1934, 48 Stat. 1088. Now codified at 18 U. S. C. § 1304 ("Broadcasting lottery information"), the statute prohibits radio and television broadcasting, by any station for which a license is required, of"any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes."The statute provides that each day's prohibited broadcasting constitutes a separate offense punishable by a fine, imprisonment for not more than one year, or both. Ibid. Although § 1304 is a criminal statute, the Solicitor General informs us that, in practice, the provision traditionally has been enforced by the Federal Communications Commission (FCC), which imposes administrative sanctions on radio and television licensees for violations of the agency's implementing regulation. See 47 CFR § 73.1211 (1998); Brief for Respondents 3. Petitioners now concede that the broadcast ban in § 1304 and the FCC's regulation encompasses advertising for privately owned casinos-a concession supported by the broad language of the statute, our precedent, and the178178 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESFCC's sound interpretation. See FCC v. American Broadcasting Co., 347 U. S. 284, 290-291, and n. 8 (1954).During the second half of this century, Congress dramatically narrowed the scope of the broadcast prohibition in § 1304. The first inroad was minor: In 1950, certain notfor-profit fishing contests were exempted as "innocent pastimes ... far removed from the reprehensible type of gambling activity which it was paramount in the congressional mind to forbid." S. Rep. No. 2243, 81st Cong., 2d Sess., 2 (1950); see Act of Aug. 16, 1950, ch. 722, 64 Stat. 451, 18 U. S. C. § 1305.Subsequent exemptions were more substantial. Responding to the growing popularity of state-run lotteries, in 1975 Congress enacted the provision that gave rise to our decision in Edge. 509 U. S., at 422-423; Act of Jan. 2, 1975, 88 Stat. 1916, 18 U. S. C. § 1307; see also § 1953(b)(4). With subsequent modifications, that amendment now exempts advertisements of state-conducted lotteries from the nationwide postal restrictions in §§ 1301 and 1302, and from the broadcast restriction in § 1304, when "broadcast by a radio or television station licensed to a location in ... a State which conducts such a lottery." § 1307(a)(1)(B); see also §§ 1307(a)(1)(A), (b)(l). The § 1304 broadcast restriction remained in place, however, for stations licensed in States that do not conduct lotteries. In Edge, we held that this remaining restriction on broadcasts from nonlottery States, such as North Carolina, supported the "laws against gambling" in those jurisdictions and properly advanced the "congressional policy of balancing the interests of lottery and nonlottery States." 509 U. S., at 428.In 1988, Congress enacted two additional statutes that significantly curtailed the coverage of § 1304. First, the Indian Gaming Regulatory Act (IGRA), 102 Stat. 2467, 25 U. S. C. § 2701 et seq., authorized Native American tribes to conduct various forms of gambling-including casino gambling-pursuant to tribal-state compacts if the State permits179such gambling "for any purpose by any person, organization, or entity." § 2710(d)(1)(B). The IGRA also exempted "any gaming conducted by an Indian tribe pursuant to" the Act from both the postal and transportation restrictions in 18 U. S. C. §§ 1301-1302, and the broadcast restriction in § 1304. 25 U. S. C. § 2720. Second, the Charity Games Advertising Clarification Act of 1988, 18 U. S. C. § 1307(a)(2), extended the exemption from §§ 1301-1304 for state-run lotteries to include any other lottery, gift enterprise, or similar schemenot prohibited by the law of the State in which it operates-when conducted by: (i) any governmental organization; (ii) any not-for-profit organization; or (iii) a commercial organization as a promotional activity "clearly occasional and ancillary to the primary business of that organization." There is no dispute that the exemption in § 1307(a)(2) applies to casinos conducted by state and local governments. And, unlike the 1975 broadcast exemption for advertisements of and information concerning state-conducted lotteries, the exemptions in both of these 1988 statutes are not geographically limited; they shield messages from § 1304's reach in States that do not authorize such gambling as well as those that do.A separate statute, the 1992 Professional and Amateur Sports Protection Act, 28 U. S. C. § 3701 et seq., proscribes most sports betting and advertising thereof. Section 3702 makes it unlawful for a State or tribe "to sponsor, operate, advertise, promote, license, or authorize by law or compact" -or for a person "to sponsor, operate, advertise, or promote, pursuant to the law or compact" of a State or tribe-any lottery or gambling scheme based directly or indirectly on competitive games in which amateur or professional athletes participate. However, the Act also includes a variety of exemptions, some with obscured congressional purposes: (i) gambling schemes conducted by States or other governmental entities at any time between January 1, 1976, and August 31, 1990; (ii) gambling schemes authorized by180180 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESstatutes in effect on October 2, 1991; (iii) gambling "conducted exclusively in casinos" located in certain municipalities if the schemes were authorized within 1 year of the effective date of the Act and, for "commercial casino gaming scheme[s]," that had been in operation for the preceding 10 years pursuant to a state constitutional provision and comprehensive state regulation applicable to that municipality; and (iv) gambling on parimutuel animal racing or jai-alai games. § 3704(a); see also 18 U. s. C. §§ 1953(b)(1)-(3) (regarding interstate transportation of wagering paraphernalia). These exemptions make the scope of § 3702's advertising prohibition somewhat unclear, but the prohibition is not limited to broadcast media and does not depend on the location of a broadcast station or other disseminator of promotional materials.Thus, unlike the uniform federal antigambling policy that prevailed in 1934 when 18 U. s. C. § 1304 was enacted, federal statutes now accommodate both progambling and antigambling segments of the national polity.IIPetitioners are an association of Louisiana broadcasters and its members who operate FCC-licensed radio and television stations in the New Orleans metropolitan area. But for the threat of sanctions pursuant to § 1304 and the FCC's companion regulation, petitioners would broadcast promotional advertisements for gaming available at private, forprofit casinos that are lawful and regulated in both Louisiana and neighboring Mississippi.2 According to an FCC official, however, "[u]nder appropriate conditions, some broadcast signals from Louisiana broadcasting stations may be heard2 See, e. g., La. Rev. Stat. Ann. §§ 27:2, 27:15B(I), 27:42-27:43, 27:44(4), 27:44(10)-27:44(12) (West 1999); Miss. Code Ann. §§ 75-76-3, 97-33-25 (1972); see also La. Rev. Stat. Ann. §§27:202B-27:202D, 27:205(4), 27:205(12)-27:205(14), 27:21OB (West 1999).181in neighboring states including Texas and Arkansas," 3 Record 628, where private casino gambling is unlawful.Petitioners brought this action against the United States and the FCC in the District Court for the Eastern District of Louisiana, praying for a declaration that § 1304 and the FCC's regulation violate the First Amendment as applied to them, and for an injunction preventing enforcement of the statute and the rule against them. After noting that all parties agreed that the case should be decided on their crossmotions for summary judgment, the District Court ruled in favor of the Government. 866 F. Supp. 975, 976 (1994). The court applied the standard for assessing commercial speech restrictions set out in Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557, 566 (1980), and concluded that the restrictions at issue adequately advanced the Government's "substantial interest (1) in protecting the interest of nonlottery states and (2) in reducing participation in gambling and thereby minimizing the social costs associated therewith." 866 F. Supp., at 979. The court pointed out that federal law does not prohibit the broadcast of all information about casinos, such as advertising that promotes a casino's amenities rather than its "gaming aspects," and observed that advertising for stateauthorized casinos in Louisiana and Mississippi was actually "abundant." Id., at 980.A divided panel of the Court of Appeals for the Fifth Circuit agreed with the District Court's application of Central Hudson, and affirmed the grant of summary judgment to the Government. 69 F.3d 1296, 1298 (1995). The panel majority's description of the asserted governmental interests, although more specific, was essentially the same as the District Court's:"First, section 1304 serves the interest of assisting states that restrict gambling by regulating interstate activities such as broadcasting that are beyond the powers of the individual states to regulate. The sec-182182 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESond asserted governmental interest lies in discouraging public participation in commercial gambling, thereby minimizing the wide variety of social ills that have historically been associated with such activities." Id., at 1299.The majority relied heavily on our decision in Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), see 69 F. 3d, at 1300-1302, and endorsed the theory that, because gambling is in a category of "vice activity" that can be banned altogether, "advertising of gambling can lay no greater claim on constitutional protection than the underlying activity," id., at 1302. In dissent, Chief Judge Politz contended that the many exceptions to the original prohibition in § 1304-and that section's conflict with the policies of States that had legalized gambling-precluded justification of the restriction by either an interest in supporting anticasino state policies or "an independent federal interest in discouraging public participation in commercial gambling." Id., at 1303-1304.While the broadcasters' petition for certiorari was pending in this Court, we decided J,J, Liquormart, Inc. v. Rhode Island, 517 U. S. 484 (1996). Because the opinions in that case concluded that our precedent both preceding and following Posadas had applied the Central Hudson test more strictly, 517 U. S., at 509-510 (opinion of STEVENS, J.); id., at 531-532 (O'CONNOR, J., concurring in judgment)-and because we had rejected the argument that the power to restrict speech about certain socially harmful activities was as broad as the power to prohibit such conduct, see id., at 513514 (opinion of STEVENS, J.); see also Rubin v. Coors Brewing Co., 514 U. S. 476, 482-483, n. 2 (1995)-we granted the broadcasters' petition, vacated the judgment of the Court of Appeals, and remanded the case for further consideration. 519 U. S. 801 (1996).On remand, the Fifth Circuit majority adhered to its prior conclusion. 149 F.3d 334 (1998). The majority recognized183that at least part of the Central Hudson inquiry had "become a tougher standard for the state to satisfy," 149 F. 3d, at 338, but held that § 1304's restriction on speech sufficiently advanced the asserted governmental interests and was not "broader than necessary to control participation in casino gambling," id., at 340. Because the Court of Appeals for the Ninth Circuit reached a contrary conclusion in Valley Broadcasting Co. v. United States, 107 F.3d 1328, cert. denied, 522 U. S. 1115 (1998), as did a Federal District Court in Players Int'l, Inc. v. United States, 988 F. Supp. 497 (NJ 1997), we again granted the broadcasters' petition for certiorari. 525 U. S. 1097 (1999). We now reverse.IIIIn a number of cases involving restrictions on speech that is "commercial" in nature, we have employed Central Hudson's four-part test to resolve First Amendment challenges:"At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." 447 U. S., at 566.In this analysis, the Government bears the burden of identifying a substantial interest and justifying the challenged restriction. Edenfield v. Fane, 507 U. S. 761, 770 (1993); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989); Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 71, and n. 20 (1983).The four parts of the Central Hudson test are not entirely discrete. All are important and, to a certain extent, inter-184184 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESrelated: Each raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three. Partly because of these intricacies, petitioners as well as certain judges, scholars, and amici curiae have advocated repudiation of the Central Hudson standard and implementation of a more straightforward and stringent test for assessing the validity of governmental restrictions on commercial speech.3 As the opinions in J,J, Liquormart demonstrate, reasonable judges may disagree about the merits of such proposals. It is, however, an established part of our constitutional jurisprudence that we do not ordinarily reach out to make novel or unnecessarily broad pronouncements on constitutional issues when a case can be fully resolved on a narrower ground. See United States v. Raines, 362 U. S. 17, 21 (1960). In this case, there is no need to break new ground. Central Hudson, as applied in our more recent commercial speech cases, provides an adequate basis for decision.IVAll parties to this case agree that the messages petitioners wish to broadcast constitute commercial speech, and that these broadcasts would satisfy the first part of the Central Hudson test: Their content is not misleading and concerns lawful activities, i. e., private casino gambling in Louisiana and Mississippi. As well, the proposed commercial messages would convey information-whether taken favorably or unfavorably by the audience-about an activity that is the subject of intense public debate in many communities. In addition, petitioners' broadcasts presumably would dissemi-3 See, e. g., Pet. for Cert. 23; Brief for Petitioners 10; Reply Brief for Petitioners 18-20; 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 526-528 (1996) (THOMAS, J., concurring); Kozinski & Banner, Who's Mraid of Commercial Speech?, 76 Va. L. Rev. 627 (1990); Brief for Association of National Advertisers, Inc., as Amicus Curiae 3-4; Brief for American Advertising Federation as Amicus Curiae 2.185nate accurate information as to the operation of market competitors, such as pay-out ratios, which can benefit listeners by informing their consumption choices and fostering price competition. Thus, even if the broadcasters' interest in conveying these messages is entirely pecuniary, the interests of, and benefit to, the audience may be broader. See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 764-765 (1976); Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 96-97 (1977); Bigelow v. Virginia, 421 U. S. 809, 822 (1975).The second part of the Central Hudson test asks whether the asserted governmental interest served by the speech restriction is substantial. The Solicitor General identifies two such interests: (1) reducing the social costs associated with "gambling" or "casino gambling," and (2) assisting States that "restrict gambling" or "prohibit casino gambling" within their own borders.4 Underlying Congress' statutory scheme, the Solicitor General contends, is the judgment that gambling contributes to corruption and organized crime; underwrites bribery, narcotics trafficking, and other illegal conduct; imposes a regressive tax on the poor; and "offers a false but sometimes irresistible hope of financial advancement." Brief for Respondents 15-16. With respect to casino gambling, the Solicitor General states that many of the associated social costs stem from "pathological" or "compulsive" gambling by approximately 3 million Americans, whose behavior is primarily associated with "continuous play" games, such as slot machines. He also observes that compulsive gambling has grown along with the expansion of legalized gambling nationwide, leading to billions of dollars in economic costs; injury and loss to these4 Brief for Respondents 12, 15, 28. We will concentrate on the Government's contentions as to "casino gambling": They are the focus of the Government's argument and are more closely linked to the speech regulation at issue, thereby providing a more likely basis for upholding § 1304 as applied to these broadcasters and their proposed messages.186186 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESgamblers as well as their families, communities, and government; and street, white-collar, and organized crime. Id., at 16-20.We can accept the characterization of these two interests as "substantial," but that conclusion is by no means self-evident. No one seriously doubts that the Federal Government may assert a legitimate and substantial interest in alleviating the societal ills recited above, or in assisting likeminded States to do the same. Cf. Edge, 509 U. S., at 428. But in the judgment of both the Congress and many state legislatures, the social costs that support the suppression of gambling are offset, and sometimes outweighed, by countervailing policy considerations, primarily in the form of economic benefits.5 Despite its awareness of the potential5 Some form of gambling is legal in nearly every State. Government Lodging 192. Thirty-seven States and the District of Columbia operate lotteries. Ibid.; National Gambling Impact Study Commission, Staff Report: Lotteries 1 (1999). As of 1997, commercial casino gambling existed in 11 States, see North American Gaming Report 1997, Int'l Gaming & Wagering Bus., July 1997, pp. S4-S31, and at least 5 authorize statesponsored video gambling, see Del. Code Ann., Tit. 29, §§4801, 4803(f)-(g), 4820 (1974 and Supp. 1997); Ore. Rev. Stat. §461.215 (1998); R. I. Gen. Laws § 42-61.2-2(a) (1998); S. D. Const., Art. III, § 25 (1999); S. D. Compo Laws Ann. §§42-7A-4(4), (l1A) (1991); W. Va. Code §29-22A-4 (1999). Also as of 1997, about half the States in the Union hosted Class III Indian gaming (which may encompass casino gambling), including Louisiana, Mississippi, and four other States that had private casinos. United States General Accounting Office, Casino Gaming Regulation: Roles of Five States and the National Indian Gaming Commission 4-6 (May 1998) (including Indian casino gaming in five States without approved compacts); cf. National Gambling Impact Study Commission, Staff Report: Native American Gaming 2 (1999) (hereinafter Native American Gaming) (noting that 14 States have on-reservation Indian casinos, and that those casinos are the only casinos in 8 States). One count by the Bureau of Indian Mfairs tallied 60 tribes that advertise their casinos on television and radio. Government Lodging 408, 435-437 (3 App. in Player's Int'l, Inc. V. United States, No. 98-5127 (CA3)). By the mid-1990's, tribal casino-style gambling generated over $3 billion in gaming revenue-increasing its share to 18%187social costs, Congress has not only sanctioned casino gambling for Indian tribes through tribal-state compacts, but has enacted other statutes that reflect approval of state legislation that authorizes a host of public and private gambling activities. See, e. g., 18 U. S. C. §§ 1307, 1953(b); 25 u. S. C. §§ 2701-2702, 2710(d); 28 u. S. C. § 3704(a). That Congress has generally exempted state-run lotteries and casinos from federal gambling legislation reflects a decision to defer to, and even promote, differing gambling policies in different States. Indeed, in Edge we identified the federal interest furthered by § 1304's partial broadcast ban as the "congressional policy of balancing the interests of lottery and nonlottery States." 509 U. S., at 428. Whatever its character in 1934 when § 1304 was adopted, the federal policy of discouraging gambling in general, and casino gambling in particular, is now decidedly equivocal.Of course, it is not our function to weigh the policy arguments on either side of the nationwide debate over whether and to what extent casino and other forms of gambling should be legalized. Moreover, enacted congressional policy and "governmental interests" are not necessarily equivalents for purposes of commercial speech analysis. See Bolger, 463 U. S., at 70-71. But we cannot ignore Congress' unwillingness to adopt a single national policy that consistently endorses either interest asserted by the Solicitor General. See Edenfield, 507 U. S., at 768; J,J, Liquormart, 517 U. S., at 531 (O'CONNOR, J., concurring in judgment). Even though the Government has identified substantial interests, when we consider both their quality and the information sought to be suppressed, the crosscurrents in the scope and application of § 1304 become more difficult for the Government to defend.of all casino gaming revenue, matching the total for the casinos in Atlantic City, New Jersey, and reaching about half the figure for Nevada's casinos. See Native American Gaming 2; Government Lodging 407, 423-429.188188 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESvThe third part of the Central Hudson test asks whether the speech restriction directly and materially advances the asserted governmental interest. "This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edenfield, 507 U. S., at 770-771. Consequently, "the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose." Central Hudson, 447 U. S., at 564. We have observed that "this requirement is critical; otherwise, 'a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression.'" Rubin, 514 U. S., at 487, quoting Edenfield, 507 U. S., at 771.The fourth part of the test complements the directadvancement inquiry of the third, asking whether the speech restriction is not more extensive than necessary to serve the interests that support it. The Government is not required to employ the least restrictive means conceivable, but it must demonstrate narrow tailoring of the challenged regulation to the asserted interest-"a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served." Fox, 492 U. S., at 480 (internal quotation marks omitted); see J,J, Liquormart, 517 U. S., at 529, 531 (O'CONNOR, J., concurring in judgment). On the whole, then, the challenged regulation should indicate that its proponent "'carefully calculated' the costs and benefits associated with the burden on speech imposed by its prohibition." Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 417 (1993), quoting Fox, 492 U. S., at 480.As applied to petitioners' case, § 1304 cannot satisfy these standards. With regard to the first asserted interest-189alleviating the social costs of casino gambling by limiting demand-the Government contends that its broadcasting restrictions directly advance that interest because "promotional" broadcast advertising concerning casino gambling increases demand for such gambling, which in turn increases the amount of casino gambling that produces those social costs. Additionally, the Government believes that compulsive gamblers are especially susceptible to the pervasiveness and potency of broadcast advertising. Brief for Respondents 33-36. Assuming the accuracy of this causal chain, it does not necessarily follow that the Government's speech ban has directly and materially furthered the asserted interest. While it is no doubt fair to assume that more advertising would have some impact on overall demand for gambling, it is also reasonable to assume that much of that advertising would merely channel gamblers to one casino rather than another. More important, any measure of the effectiveness of the Government's attempt to minimize the social costs of gambling cannot ignore Congress' simultaneous encouragement of tribal casino gambling, which may well be growing at a rate exceeding any increase in gambling or compulsive gambling that private casino advertising could produce. See n. 5, supra. And, as the Court of Appeals recognized, the Government fails to "connect casino gambling and compulsive gambling with broadcast advertising for casinos"-let alone broadcast advertising for non-Indian commercial casinos. 149 F. 3d, at 339.66 The Government cites several secondary sources and declarations that it put before the Federal District Court in New Jersey and, as an alternative to affirming the judgment below, requests a remand so that it may have another chance to build a record in the Fifth Circuit. Remand is inappropriate for several reasons. First, the Government had ample opportunity to enter the materials it thought relevant after we vacated the Fifth Circuit's first ruling and remanded for reconsideration in light of 44 Liquormart. Second, the Government's evidence did not convince the New Jersey court that § 1304 could be constitutionally applied in circumstances similar to this case, see Players Int'l, Inc. v. United States, 988190190 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESWe need not resolve the question whether any lack of evidence in the record fails to satisfy the standard of proof under Central Hudson, however, because the flaw in the Government's case is more fundamental: The operation of § 1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it. See Rubin, 514 U. S., at 488. Under current law, a broadcaster may not carry advertising about privately operated commercial casino gambling, regardless of the location of the station or the casino. 18 U. S. C. § 1304; 47 CFR § 73.1211(a) (1998). On the other hand, advertisements for tribal casino gambling authorized by state compacts-whether operated by the tribe or by a private party pursuant to a management contract-are subject to no such broadcast ban, even if the broadcaster is located in, or broadcasts to, a jurisdiction with the strictest of antigambling policies. 25 U. S. C. § 2720. Government-operated, nonprofit, and "occasional and ancillary" commercial casinos are likewise exempt. 18 U. S. C. § 1307(a)(2).The FCC's interpretation and application of §§ 1304 and 1307 underscore the statute's infirmity. Attempting to enforce the underlying purposes and policy of the statute, the FCC has permitted broadcasters to tempt viewers with claims of "Vegas-style excitement" at a commercial "casino," if "casino" is part of the establishment's proper name and the advertisement can be taken to refer to the casino's amenities,F. Supp. 497, 502-503, 506-507 (1997), and most of the sources that the Government cited in the New Jersey litigation were also presented to the Fifth Circuit, see Supplemental Brieffor Appellees in No. 94-30732 (CA5), pp. iv-v. Indeed, the Government presented sources to the Fifth Circuit not provided to the New Jersey court, and the Fifth Circuit relied on material that the Government had not proffered. In any event, as we shall explain, additional evidence to support the Government's factual assertions in this Court cannot justify the scheme of speech restrictions currently in effect.191rather than directly promote its gaming aspects.7 While we can hardly fault the FCC in view of the statute's focus on the suppression of certain types of information, the agency's practice is squarely at odds with the governmental interests asserted in this case.From what we can gather, the Government is committed to prohibiting accurate product information, not commercial enticements of all kinds, and then only when conveyed over certain forms of media and for certain types of gamblingindeed, for only certain brands of casino gambling-and despite the fact that messages about the availability of such gambling are being conveyed over the airwaves by other speakers.Even putting aside the broadcast exemptions for arguably distinguishable sorts of gambling that might also give rise to social costs about which the Federal Government is concerned-such as state lotteries and parimutuel betting on horse and dog races, § 1307(a)(1)(B); 28 U. S. C. § 3704(a)the Government presents no convincing reason for pegging its speech ban to the identity of the owners or operators of the advertised casinos. The Government cites revenue needs of States and tribes that conduct casino gambling, and notes that net revenues generated by the tribal casinos are dedicated to the welfare of the tribes and their members. See 25 U. S. C. §§ 2710(b)(2)(B), (d)(l)(A)(ii), (2)(A). Yet the Government admits that tribal casinos offer precisely the same types of gambling as private casinos. Further, the Solicitor General does not maintain that government-operated casino gaming is any different, that States cannot derive revenue from taxing private casinos, or that anyone class7 See, e. g., Letter to DR Partners, 8 FCC Red. 44 (1992); In re WTMJ, Inc., 8 FCC Red. 4354 (1993) (disapproving of the phrase "Vegas style games"); see also 2 Record 493, 497-498 (Mass Media Bureau letter to Forbes W. Blair, Apr. 10, 1987) (concluding that a proposed television commercial stating that the "odds for fun are high" at the sponsor's establishment would be lawful); id., at 492, 500-501.192192 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESof casino operators is likely to advertise in a meaningfully distinct manner from the others. The Government's suggestion that Indian casinos are too isolated to warrant attention is belied by a quick review of tribal geography and the Government's own evidence regarding the financial success of tribal gaming. See n. 5, supra. If distance were determinative, Las Vegas might have remained a relatively small community, or simply disappeared like a desert mirage.Ironically, the most significant difference identified by the Government between tribal and other classes of casino gambling is that the former is "heavily regulated." Brief for Respondents 38. If such direct regulation provides a basis for believing that the social costs of gambling in tribal casinos are sufficiently mitigated to make their advertising tolerable, one would have thought that Congress might have at least experimented with comparable regulation before abridging the speech rights of federally unregulated casinos. While Congress' failure to institute such direct regulation of private casino gambling does not necessarily compromise the constitutionality of § 1304, it does undermine the asserted justifications for the restriction before us. See Rubin, 514 U. S., at 490-491. There surely are practical and nonspeech-related forms of regulation-including a prohibition or supervision of gambling on credit; limitations on the use of cash machines on casino premises; controls on admissions; pot or betting limits; location restrictions; and licensing requirements-that could more directly and effectively alleviate some of the social costs of casino gambling.We reached a similar conclusion in Rubin. There, we considered the effect of conflicting federal policies on the Government's claim that a speech restriction materially advanced its interest in preventing so-called "strength wars" among competing sellers of certain alcoholic beverages. We concluded that the effect of the challenged restriction on commercial speech had to be evaluated in the context of the entire regulatory scheme, rather than in isolation,193and we invalidated the restriction based on the "overall irrationality of the Government's regulatory scheme." I d., at 488. As in this case, there was "little chance" that the speech restriction could have directly and materially advanced its aim, "while other provisions of the same Act directly undermine[d] and counteract[ed] its effects." Id., at 489. Coupled with the availability of other regulatory options which could advance the asserted interests "in a manner less intrusive to [petitioners'] First Amendment rights," we found that the Government could not satisfy the Central Hudson test. I d., at 490-491.Given the special federal interest in protecting the welfare of Native Americans, see California v. Cabazon Band of Mission Indians, 480 U. S. 202, 216-217 (1987), we recognize that there may be valid reasons for imposing commercial regulations on non-Indian businesses that differ from those imposed on tribal enterprises. It does not follow, however, that those differences also justify abridging non-Indians' freedom of speech more severely than the freedom of their tribal competitors. For the power to prohibit or to regulate particular conduct does not necessarily include the power to prohibit or regulate speech about that conduct. J,J, Liquormart, 517 U. S., at 509-511 (opinion of STEVENS, J.); see id., at 531-532 (O'CONNOR, J., concurring in judgment); Rubin, 514 U. S., at 483, n. 2. It is well settled that the First Amendment mandates closer scrutiny of government restrictions on speech than of its regulation of commerce alone. Fox, 492 U. S., at 480. And to the extent that the purpose and operation of federal law distinguishes among information about tribal, governmental, and private casinos based on the identity of their owners or operators, the Government presents no sound reason why such lines bear any meaningful relationship to the particular interest asserted: minimizing casino gambling and its social costs by way of a (partial) broadcast ban. Discovery Network, 507 U. S., at 424, 428. Even under the degree of scrutiny that we have194194 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESapplied in commercial speech cases, decisions that select among speakers conveying virtually identical messages are in serious tension with the principles undergirding the First Amendment. Cf. Carey v. Brown, 447 U. S. 455, 465 (1980); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 777, 784785 (1978).The second interest asserted by the Government-the derivative goal of "assisting" States with policies that disfavor private casinos-adds little to its case. We cannot see how this broadcast restraint, ambivalent as it is, might directly and adequately further any state interest in dampening consumer demand for casino gambling if it cannot achieve the same goal with respect to the similar federal interest.Furthermore, even assuming that the state policies on which the Federal Government seeks to embellish are more coherent and pressing than their federal counterpart, § 1304 sacrifices an intolerable amount of truthful speech about lawful conduct when compared to all of the policies at stake and the social ills that one could reasonably hope such a ban to eliminate. The Government argues that petitioners' speech about private casino gambling should be prohibited in Louisiana because, "under appropriate conditions," 3 Record 628, citizens in neighboring States like Arkansas and Texas (which hosts tribal, but not private, commercial casino gambling) might hear it and make rash or costly decisions. To be sure, in order to achieve a broader objective such regulations may incidentally, even deliberately, restrict a certain amount of speech not thought to contribute significantly to the dangers with which the Government is concerned. See Fox, 492 U. S., at 480; cf. Edge, 509 U. S., at 429-430.8 But Congress' choice here was neither a rough8 As we stated in Edge: "[A]pplying the restriction to a broadcaster such as [respondent] directly advances the governmental interest in enforcing the restriction in nonlottery States, while not interfering with the policies of lottery States like Virginia .... [W]e judge the validity of the restriction in this case by the relation it bears to the general problem of accom-195approximation of efficacy, nor a reasonable accommodation of competing state and private interests. Rather, the regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all. Considering the manner in which § 1304 and its exceptions operate and the scope of the speech it proscribes, the Government's second asserted interest provides no more convincing basis for upholding the regulation than the first.VIAccordingly, respondents cannot overcome the presumption that the speaker and the audience, not the Government, should be left to assess the value of accurate and nonmisleading information about lawful conduct. Edenfield, 507 U. S., at 767. Had the Federal Government adopted a more coherent policy, or accommodated the rights of speakers in States that have legalized the underlying conduct, see Edge, 509 U. S., at 428, this might be a different case. But under current federal law, as applied to petitioners and the messages that they wish to convey, the broadcast prohibition in 18 U. S. C. § 1304 and 47 CFR § 73.1211 (1998) violates themodating the policies of both lottery and nonlottery States." 509 U. S., at 429-430. The Government points out that Edge hypothesized that Congress "might have" held fast to a more consistent and broader antigambling policy by continuing to ban all radio or television advertisements for state-run lotteries, even by stations licensed in States with legalized lotteries. Id., at 428. That dictum does not support the validity of the speech restriction in this case. In that passage, we identified the actual federal interest at stake; we did not endorse any and all nationwide bans on nonmisleading broadcast advertising related to lotteries. As the Court explained, "Instead of favoring either the lottery or the nonlottery State, Congress opted to" accommodate the policies of both; and it was "[t]his congressional policy of balancing the interests of lottery and nonlottery States" that was "the substantial governmental interest that satisfie[d] Central Hudson." Ibid.196196 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESFirst Amendment. The judgment of the Court of Appeals is thereforeReversed

OCTOBER TERM, 1998SyllabusGREATER NEW ORLEANS BROADCASTING ASSOCIATION, INC., ET AL. v. UNITED STATES ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 98-387. Argued April 27, 1999-Decided June 14, 1999Title 18 U. S. C. § 1304 and an implementing Federal Communications Commission (FCC) regulation prohibit, inter alia, radio and television broadcasters from carrying advertising about privately operated commercial casino gambling, regardless of the station's or casino's location. In United States v. Edge Broadcasting Co., 509 U. S. 418, this Court upheld the constitutionality of § 1304 as applied to advertising of Virginia's lottery by a broadcaster in North Carolina, where no such lottery was authorized. Petitioners-representing New Orleans area broadcasters-wish to run advertisements for private commercial casinos that are lawful and regulated in Louisiana and Mississippi, and they filed this suit for a declaration that § 1304 and the FCC's regulation violate the First Amendment as applied to them. The District Court utilized the test for assessing commercial speech restrictions set out in Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557, 566, and granted the Government's cross-motion for summary judgment. The Court of Appeals affirmed.Held: Section 1304 may not be applied to advertisements of lawful private casino gambling that are broadcast by petitioners' radio or television stations located in Louisiana, where such gambling is legal. Pp. 183-196.(a) Central Hudson's four-part test asks (1) whether the speech at issue concerns lawful activity and is not misleading and (2) whether the asserted governmental interest is substantial; and, if so, (3) whether the regulation directly advances the governmental interest asserted and (4) whether it is not more extensive than is necessary to serve that interest. The four parts of the Central Hudson test are not entirely discrete; all are important and, to a certain extent, interrelated. While some advocate a more straightforward and stringent test, Central Hudson, as applied in the Court's more recent commercial speech cases, provides an adequate basis for decision in this case. Pp. 183-184.(b) All parties agree that petitioners' proposed broadcasts constitute commercial speech, and that they would satisfy the first part of the Central Hudson test: Their content is not misleading and concerns lawful activities, i. e., private casino gambling in Louisiana and Mississippi.174174 GREATER NEW ORLEANS BROADCASTING ASSN., INC. v. UNITED STATESSyllabusIn addition, the interests asserted by the Government are "substantial": (1) reducing the social costs associated with casino and other forms of gambling and (2) assisting States that restrict or prohibit casino and other forms of gambling. However, that conclusion is by no means selfevident, since, in the judgment of both Congress and many state legislatures, the social costs that support the suppression of gambling are offset, and sometimes outweighed, by countervailing policy considerations. The Court cannot ignore Congress' unwillingness to adopt a single national policy that consistently endorses either interest asserted by the Government. See, e. g., Edenfield v. Fane, 507 U. S. 761, 768. Considering both the quality of the asserted interests and the information sought to be suppressed, the crosscurrents in the scope and application of § 1304 become more difficult to defend. Pp. 184-187.(c) As applied to petitioners' case, § 1304 cannot satisfy the third and fourth parts of the Central Hudson test. With regard to the Government's first asserted interest-alleviating casino gambling's social costs by limiting demand-the operation of § 1304 and its regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it. See Rubin v. Coors Brewing Co., 514 U. S. 476, 488. For example, federal law prohibits a broadcaster from carrying advertising about privately operated commercial casino gambling regardless of the station's or casino's location, but exempts advertising about state-run casinos, certain occasional commercial casino gambling, and tribal casino gambling even if the broadcaster is located in, or broadcasts to, a jurisdiction with the strictest of antigambling policies. Coupled with the FCC's interpretation and enforcement of the statute, it appears that the Government is committed to prohibiting certain accurate product information, not commercial enticements of all kinds, and then only for certain brands of casino gambling. The most significant difference identified by the Government between tribal and other classes of casino gambling is that the former are heavily regulated; but Congress' failure to institute such direct regulation of private casino gambling undermines the asserted justifications for the speech restriction before the Court. There may be valid reasons for imposing commercial regulations on non-Indian businesses that differ from those imposed on tribal enterprises, but it does not follow that those differences justify abridging non-Indians' freedom of speech more severely than the freedom of their tribal competitors. For the power to prohibit or to regulate particular conduct does not necessarily include the power to prohibit or regulate speech about that conduct. To the extent that federal law distinguishes among information about tribal, governmental, and private casinos based on the identity of their owners or operators, the Government presents no sound reason why such175Full Text of Opinion

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MR. JUSTICE BLACKMUN announced the judgments of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE WHITE join.These cases present the narrow but precise issue whether the Due Process Clause of the Fourteenth Amendment assures the right to trial by jury in the adjudicative phase of a state juvenile court delinquency proceeding. Page 403 U. S. 531IThe issue arises understandably, for the Court, in a series of cases, already has emphasized due process factors protective of the juvenile:1. Haley v. Ohio, 332 U. S. 596 (1948), concerned the admissibility of a confession taken from a 15-year-old boy on trial for first-degree murder. It was held that, upon the facts there developed, the Due Process Clause barred the use of the confession. MR. JUSTICE DOUGLAS, in an opinion in which three other Justices joined, said, "Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law." 332 U.S. at 332 U. S. 601.2. Gallegos v. Colorado, 370 U. S. 49 (1962), where a 14-year-old was on trial, is to the same effect.3. Kent v. United States, 383 U. S. 541 (1966), concerned a 16-year-old charged with housebreaking, robbery, and rape in the District of Columbia. The issue was the propriety of the juvenile court's waiver of jurisdiction "after full investigation," as permitted by the applicable statute. It was emphasized that the latitude the court possessed within which to determine whether it should retain or waive jurisdiction"assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a 'full investigation.'"383 U.S. at 383 U. S. 553.4. In re Gault, 387 U. S. 1 (1967), concerned a 15-year-old, already on probation, committed in Arizona as a delinquent after being apprehended upon a complaint of lewd remarks by telephone. Mr. Justice Fortas, in writing for the Court, reviewed the cases just cited and observed,"Accordingly, while these cases relate only to restricted aspects of the subject, they unmistakably Page 403 U. S. 532 indicate that, whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."387 U.S. at 387 U. S. 13. The Court focused on"the proceedings by which a determination is made as to whether a juvenile is a 'delinquent' as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution"and, as to this, said that "there appears to be little current dissent from the proposition that the Due Process Clause has a role to play." Ibid. Kent was adhered to:"We reiterate this view, here in connection with a juvenile court adjudication of 'delinquency,' as a requirement which is part of the Due Process Clause of the Fourteenth Amendment of our Constitution."Id. at 387 U. S. 30-31. Due process, in that proceeding, was held to embrace adequate written notice; advice as to the right to counsel, retained or appointed; confrontation; and cross-examination. The privilege against self-incrimination was also held available to the juvenile. The Court refrained from deciding whether a State must provide appellate review in juvenile cases or a transcript or recording of the hearings.5. DeBacker v. Brainard, 396 U. S. 28 (1969), presented, by state habeas corpus, a challenge to a Nebraska statute providing that juvenile court hearings "shall be conducted by the judge without a jury in an informal manner." However, because that appellant's hearing had antedated the decisions in Duncan v. Louisiana, 391 U. S. 145 (1968), and Bloom v. Illinois, 391 U. S. 194 (1968), and because Duncan and Bloom had been given only prospective application by DeStefano v. Woods, 392 U. S. 631 (1968), DeBacker's case was deemed an inappropriate one for resolution of the jury trial issue. His appeal was therefore dismissed. MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, in separate dissents, took the position that a juvenile is entitled to a jury trial at Page 403 U. S. 533 the adjudicative stage. MR. JUSTICE BLACK described this as "a right which is surely one of the fundamental aspects of criminal justice in the English-speaking world," 396 U.S. at 396 U. S. 34, and MR. JUSTICE DOUGLAS described it as a right required by the Sixth and Fourteenth Amendments "where the delinquency charged is an offense that, if the person were an adult, would be a crime triable by jury." 396 U.S. at 396 U. S. 35.6. In re Winship, 397 U. S. 358 (1970), concerned a 12-year-old charged with delinquency for having taken money from a woman's purse. The Court held that"the Due Process Clause 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,"397 U.S. at 397 U. S. 364, and then went on to hold, at 397 U. S. 368, that this standard was applicable, too, "during the adjudicatory stage of a delinquency proceeding."From these six cases -- Haley, Gallegos, Kent, Gault, DeBacker, and Winship -- it is apparent that:1. Some of the constitutional requirements attendant upon the state criminal trial have equal application to that part of the state juvenile proceeding that is adjudicative in nature. Among these are the rights to appropriate notice, to counsel, to confrontation and to cross-examination, and the privilege against self-incrimination. Included also is the standard of proof beyond a reasonable doubt.2. The Court, however, has not yet said that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceeding. Indeed, the Court specifically has refrained from going that far:"We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial, or even of the usual administrative Page 403 U. S. 534 hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment."Kent, 383 U.S. at 383 U. S. 562; Gault, 387 U.S. at 387 U. S. 30.3. The Court, although recognizing the high hopes and aspirations of Judge Julian Mack, the leaders of the Jane Addams School [Footnote 1] and the other supporters of the juvenile court concept, has also noted the disappointments of the system's performance and experience and the resulting widespread disaffection. Kent, 383 U.S. at 383 U. S. 555-556; Gault, 387 U.S. at 387 U. S. 17-19. There have been, at one and the same time, both an appreciation for the juvenile court judge who is devoted, sympathetic, and conscientious, and a disturbed concern about the judge who is untrained and less than fully imbued with an understanding approach to the complex problems of childhood and adolescence. There has been praise for the system and its purposes, and there has been alarm over its defects.4. The Court has insisted that these successive decisions do not spell the doom of the juvenile court system, or even deprive it of its "informality, flexibility, or speed." Winship, 397 U.S. at 397 U. S. 366. On the other hand, a concern precisely to the opposite effect was expressed by two dissenters in Winship. Id. at 397 U. S. 375-376.IIWith this substantial background already developed, we turn to the facts of the present cases:No. 322. Joseph McKeiver, then age 16, in May, 1968, was charged with robbery, larceny, and receiving stolen goods (felonies under Pennsylvania law, Pa.Stat.Ann., tit. 18, §§ 4704, 4807, and 4817 (1963)) as acts of juvenile Page 403 U. S. 535 delinquency. At the time of the adjudication hearing, he was represented by counsel. [Footnote 2] His request for a jury trial was denied, and his case was heard by Judge Theodore S. Gutowicz of the Court of Common Pleas, Family Division, Juvenile Branch, of Philadelphia County, Pennsylvania. McKeiver was adjudged a delinquent upon findings that he had violated a law of the Commonwealth. Pa.Stat.Ann., Tit. 11, § 243(4)(a) (1965). He was placed on probation. On appeal, the Superior Court affirmed without opinion. In re McKeiver, 215 Pa.Super. 760, 255 A.2d 921 (1969).Edward Terry, then age 15, in January, 1969, was charged with assault and battery on a police officer and conspiracy (misdemeanors under Pennsylvania law, Pa.Stat.Ann., Tit. 18, § 4708 and 4302 (1963)) as acts of juvenile delinquency. His counsel's request for a jury trial was denied, and his case was heard by Judge Joseph C. Bruno of the same Juvenile Branch of the Court of Common Pleas of Philadelphia County. Terry was adjudged a delinquent on the charges. This followed an adjudication and commitment in the preceding week for an assault on a teacher. He was committed, as he had been on the earlier charge, to the Youth Development Center at Cornwells Heights. On appeal, the Superior Court affirmed without opinion. In re Terry, 215 Pa.Super. 762, 255 A.2d 922 (1969).The Supreme Court of Pennsylvania granted leave to appeal in both cases, and consolidated them. The single question considered, as phrased by the court, was "whether there is a constitutional right to a jury trial in juvenile court." The answer, one justice dissenting, was Page 403 U. S. 536 in the negative. In re Terry, 438 Pa. 339, 265 A.2d 350 (1970). We noted probable jurisdiction. 399 U.S. 925 (1970).The details of the McKeiver and Terry offenses are set forth in Justice Roberts' opinion for the Pennsylvania court, 438 Pa. at 341-342, nn. 1 and 2, 265 A.2d at 351 nn. 1 and 2, and need not be repeated at any length here. It suffices to say that McKeiver's offense was his participating with 20 or 30 youths who pursued three young teenagers and took 25 cents from them; that McKeiver never before had been arrested and had a record of gainful employment; that the testimony of two of the victims was described by the court as somewhat inconsistent and as "weak"; and that Terry's offense consisted of hitting a police officer with his fists and with a stick when the officer broke up a boys' fight Terry and others were watching.No. 128. Barbara Burrus and approximately 45 other black children, ranging in age from 11 to 15 years, [Footnote 3] were the subjects of juvenile court summonses issued in Hyde County, North Carolina, in January, 1969.The charges arose out of a series of demonstrations in the county in late 1968 by black adults and children protesting school assignments and a school consolidation plan. Petitions were filed by North Carolina state highway patrolmen. Except for one relating to James Lambert Howard, the petitions charged the respective juveniles with willfully impeding traffic. The charge against Howard was that he willfully made riotous noise and was disorderly in the O. A. Peay School in Swan Quarter; interrupted and disturbed the school during its regular sessions; and defaced school furniture. The acts so Page 403 U. S. 537 charged are misdemeanors under North Carolina law. N.C.Gen.Stat. §§ 2174.1 (1965 and Supp. 1969), 14-132(a), 14-273 (1969).The several cases were consolidated into groups for hearing before District Judge Hallett S. Ward, sitting as a juvenile court. The same lawyer appeared for all the juveniles. Over counsel's objection, made in all except two of the cases, the general public was excluded. A request for a jury trial in each case was denied.The evidence as to the juveniles other than Howard consisted solely of testimony of highway patrolmen. No juvenile took the stand or offered any witness. The testimony was to the effect that, on various occasions, the juveniles and adults were observed walking along Highway 64 singing, shouting, clapping, and playing basketball. As a result, there was interference with traffic. The marchers were asked to leave the paved portion of the highway, and they were warned that they were committing a statutory offense. They either refused or left the roadway and immediately returned. The juveniles and participating adults were taken into custody. Juvenile petitions were then filed with respect to those under the age of 16.The evidence as to Howard was that, on the morning of December 5, he was in the office of the principal of the O. A. Peay School with 15 other persons while school was in session and was moving furniture around; that the office was in disarray; that. as a result. the school closed before noon; and that neither he nor any of the others was a student at the school or authorized to enter the principal's office.In each case, the court found that the juvenile had committed "an act for which an adult may be punished by law." A custody order was entered declaring the juvenile a delinquent "in need of more suitable guardianship" and committing him to the custody of the County Page 403 U. S. 538 Department of Public Welfare for placement in a suitable institution"until such time as the Board of Juvenile Correction or the Superintendent of said institution may determine, not inconsistent with the laws of this State."The court, however, suspended these commitments and placed each juvenile on probation for either one or two years conditioned upon his violating none of the State's laws, upon his reporting monthly to the County Department of Welfare, upon his being home by 11 p.m. each evening, and upon his attending a school approved by the Welfare Director. None of the juveniles has been confined on these charges.On appeal, the cases were consolidated into two groups. The North Carolina Court of Appeals affirmed. In re Burrus, 4 N.C.App. 523, 167 S.E.2d 454 (1969); In re Shelton, 5 N.C.App. 487, 168 S.E.2d 695 (1969). In its turn, the Supreme Court of North Carolina deleted that portion of the order in each case relating to commitment, but otherwise affirmed. In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969). Two justices dissented without opinion. We granted certiorari. 397 U.S. 1036 (1970).IIIIt is instructive to review, as an illustration, the substance of Justice Roberts' opinion for the Pennsylvania court. He observes, 438 Pa. at 343, 265 A.2d at 352, that, "[f]or over sixty-five years, the Supreme Court gave no consideration at all to the constitutional problems involved in the juvenile court area"; that Gault "is somewhat of a paradox, being both broad and narrow at the same time"; that it "is broad in that it evidences a fundamental and far-reaching disillusionment with the anticipated benefits of the juvenile court system"; that it is narrow because the court enumerated four due process rights which it held applicable in juvenile proceedings, but declined to rule on two other claimed rights, id. at Page 403 U. S. 539 344-345, 265 A.2d at 353; that, as a consequence, the Pennsylvania court was "confronted with a sweeping rationale and a carefully tailored holding," id. at 345, 265 A.2d at 353; that the procedural safeguards"Gault specifically made applicable to juvenile courts have already caused a significant 'constitutional domestication' of juvenile court proceedings,"id. at 346, 265 A.2d at 354; that those safeguards and other rights, including the reasonable doubt standard established by Winship,"insure that the juvenile court will operate in an atmosphere which is orderly enough to impress the juvenile with the gravity of the situation and the impartiality of the tribunal and at the same time informal enough to permit the benefits of the juvenile system to operate"(footnote omitted), id. at 347, 265 A.2d at 354; that the"proper inquiry, then, is whether the right to a trial by jury is 'fundamental' within the meaning of Duncan, in the context of a juvenile court which operates with all of the above constitutional safeguards,"id. at 348, 265 A.2d at 354; and that his court's inquiry turned"upon whether there are elements in the juvenile process which render the right to a trial by jury less essential to the protection of an accused's rights in the juvenile system than in the normal criminal process."Ibid.Justice Roberts then concluded that such factors do inhere in the Pennsylvania juvenile system: (1) Although realizing that "faith in the quality of the juvenile bench is not an entirely satisfactory substitute for due process," id. at 348, 265 A.2d at 355, the judges in the juvenile courts "do take a different view of their role than that taken by their counterparts in the criminal courts." Id. at 348, 265 A.2d at 354-355. (2) While one regrets its inadequacies, "the juvenile system has available and utilizes much more fully various diagnostic and rehabilitative services" that are "far superior to those available in the regular criminal process." Id. at 348-349, Page 403 U. S. 540 265 A.2d at 355. (3) Although conceding that the post-adjudication process "has in many respects fallen far short of its goals, and its reality is far harsher than its theory," the end result of a declaration of delinquency "is significantly different from and less onerous than a finding of criminal guilt," and"we are not yet convinced that the current practices do not contain the seeds from which a truly appropriate system can be brought forth."(4) Finally,"of all the possible due process rights which could be applied in the juvenile courts, the right to trial by jury is the one which would most likely be disruptive of the unique nature of the juvenile process."It is the jury trial that "would probably require substantial alteration of the traditional practices." The other procedural rights held applicable to the juvenile process "will give the juveniles sufficient protection" and the addition of the trial by jury "might well destroy the traditional character of juvenile proceedings." Id. at 349-350, 265 A.2d at 355.The court concluded, id. at 350, 265 A.2d at 356, that it was confident"that a properly structured and fairly administered juvenile court system can serve our present societal needs without infringing on individual freedoms."IVThe right to an impartial jury "[i]n all criminal prosecutions" under federal law is guaranteed by the Sixth Amendment. Through the Fourteenth Amendment, that requirement has now been imposed upon the States "in all criminal cases which -- were they to be tried in a federal court -- would come within the Sixth Amendment's guarantee." This is because the Court has said it believes "that trial by jury in criminal cases is fundamental to the American scheme of justice." Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 149 (1968); Bloom v. Illinois, 391 U. S. 194, 391 U. S. 210-211 (1968). Page 403 U. S. 541This, of course, does not automatically provide the answer to the present jury trial issue, if for no other reason than that the juvenile court proceeding has not yet been held to be a "criminal prosecution" within the meaning and reach of the Sixth Amendment, and also has not yet been regarded as devoid of criminal aspects merely because it usually has been given the civil label. Kent, 383 U.S. at 383 U. S. 554; Gault, 387 U.S. at 387 U. S. 17, 387 U. S. 49-50; Winship, 397 U.S. at 397 U. S. 365-366.Little, indeed, is to be gained by any attempt simplistically to call the juvenile court proceeding either "civil" or "criminal." The Court carefully has avoided this wooden approach. Before Gault was decided in 1967, the Fifth Amendment's guarantee against self-incrimination had been imposed upon the state criminal trial. Malloy v. Hogan, 378 U. S. 1 (1964). So, too, had the Sixth Amendment's rights of confrontation and cross-examination. Pointer v. Texas, 380 U. S. 400 (1965), and Douglas v. Alabama, 380 U. S. 415 (1965). Yet the Court did not automatically and peremptorily apply those rights to the juvenile proceeding. A reading of Gault reveals the opposite. And the same separate approach to the standard of proof issue is evident from the carefully separated application of the standard, first to the criminal trial and then to the juvenile proceeding, displayed in Winship. 397 U.S. at 397 U. S. 361 and 397 U. S. 365.Thus, accepting "the proposition that the Due Process Clause has a role to play," Gault, 387 U.S. at 387 U. S. 13, our task here with respect to trial by jury, as it was in Gault with respect to other claimed rights, "is to ascertain the precise impact of the due process requirement." Id. at 387 U. S. 13-14.VThe Pennsylvania juveniles' basic argument is that they were tried in proceedings "substantially similar to a criminal trial." They say that a delinquency proceeding Page 403 U. S. 542 in their State is initiated by a petition charging a penal code violation in the conclusory language of an indictment; that a juvenile detained prior to trial is held in a building substantially similar to an adult prison; that, in Philadelphia, juveniles over 16 are, in fact, held in the cells of a prison; that counsel and the prosecution engage in plea bargaining; that motions to suppress are routinely heard and decided; that the usual rules of evidence are applied; that the customary common law defenses are available; that the press is generally admitted in the Philadelphia juvenile courtrooms; that members of the public enter the room; that arrest and prior record may be reported by the press (from police sources, however, rather than from the juvenile court records); that, once adjudged delinquent, a juvenile may be confined until his majority in what amounts to a prison (see In re Bethea, 215 Pa.Super. 75, 76, 257 A.2d 368, 369 (1969), describing the state correctional institution at Camp Hill as a "maximum security prison for adjudged delinquents and youthful criminal offenders"); and that the stigma attached upon delinquency adjudication approximates that resulting from conviction in an adult criminal proceeding.The North Carolina juveniles particularly urge that the requirement of a jury trial would not operate to deny the supposed benefits of the juvenile court system; that the system's primary benefits are its discretionary intake procedure permitting disposition short of adjudication, and its flexible sentencing permitting emphasis on rehabilitation; that realization of these benefits does not depend upon dispensing with the jury; that adjudication of factual issues, on the one hand, and disposition of the case, on the other, are very different matters, with very different purposes; that the purpose of the former is indistinguishable from that of the criminal trial; that the jury trial provides an independent protective factor; that Page 403 U. S. 543 experience has shown that jury trials in juvenile courts are manageable; that no reason exists why protection traditionally accorded in criminal proceedings should be denied young people subject to involuntary incarceration for lengthy periods; and that the juvenile courts deserve healthy public scrutiny.VIAll the litigants here agree that the applicable due process standard in juvenile proceedings, as developed by Gault and Winship, is fundamental fairness. As that standard was applied in those two cases, we have an emphasis on factfinding procedures. The requirements of notice, counsel, confrontation, cross-examination, and standard of proof naturally flowed from this emphasis. But one cannot say that, in our legal system, the jury is a necessary component of accurate factfinding. There is much to be said for it, to be sure, but we have been content to pursue other ways for determining facts. Juries are not required, and have not been, for example, in equity cases, in workmen's compensation, in probate, or in deportation cases. Neither have they been generally used in military trials. In Duncan, the Court stated,"We would not assert, however, that every criminal trial -- or any particular trial -- held before a judge alone is unfair, or that a defendant may never be as fairly treated by a judge as he would be by a jury."391 U.S. at 391 U. S. 158. In DeStefano, for this reason and others, the Court refrained from retrospective application of Duncan, an action it surely would have not taken had it felt that the integrity of the result was seriously at issue. And in Williams v. Florida, 399 U. S. 78 (1970), the Court saw no particular magic in a 12-man jury for a criminal case, thus revealing that even jury concepts themselves are not inflexible.We must recognize, as the Court has recognized before, that the fond and idealistic hopes of the juvenile court Page 403 U. S. 544 proponents and early reformers of three generations ago have not been realized. The devastating commentary upon the system's failures as a whole, contained in the President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime 7-9 (1967), reveals the depth of disappointment in what has been accomplished. Too often, the juvenile court judge falls far short of that stalwart, protective, and communicating figure the system envisaged. [Footnote 4] The community's unwillingness to provide people and facilities and to be concerned, the insufficiency of time devoted, the scarcity of professional help, the inadequacy of dispositional alternatives, and our general lack of knowledge all contribute to dissatisfaction with the experiment. [Footnote 5] Page 403 U. S. 545The Task Force Report, however, also said, id. at 7,"To say that juvenile courts have failed to achieve their goals is to say no more than what is true of criminal courts in the United States. But failure is most striking when hopes are highest."Despite all these disappointments, all these failures, and all these shortcomings, we conclude that trial by jury in the juvenile court's adjudicative stage is not a constitutional requirement. We so conclude for a number of reasons:1. The Court has refrained, in the cases heretofore decided, from taking the easy way with a flat holding that all rights constitutionally assured for the adult accused are to be imposed upon the state juvenile proceeding. What was done in Gault and in Winship is aptly described in Commonwealth v. Johnson, 211 Pa.Super. 62, 74, 234 A.2d 9, 15 (1967):"It is clear to us that the Supreme Court has properly attempted to strike a judicious balance by injecting procedural orderliness into the juvenile court system. It is seeking to reverse the trend [pointed out in Kent, 383 U.S. at 383 U. S. 556] whereby 'the child receives the worst of both worlds. . . .'"2. There is a possibility, at least, that the jury trial, if required as a matter of constitutional precept, will remake the juvenile proceeding into a fully adversary process and will put an effective end to what has been the idealistic prospect of an intimate, informal protective proceeding.3. The Task Force Report, although concededly pre-Gault, is notable for its not making any recommendation Page 403 U. S. 546 that the jury trial be imposed upon the juvenile court system. This is so despite its vivid description of the system's deficiencies and disappointments. Had the Commission deemed this vital to the integrity of the juvenile process, or to the handling of juveniles, surely a recommendation or suggestion to this effect would have appeared. The intimations, instead, are quite the other way. Task Force Report 38. Further, it expressly recommends against abandonment of the system and against the return of the juvenile to the criminal courts. [Footnote 6] Page 403 U. S. 5474. The Court specifically has recognized by dictum that a jury is not a necessary part even of every criminal process that is fair and equitable. Duncan v. Louisiana, 391 U.S. at 391 U. S. 149-150, n. 14, and 391 U. S. 158.5. The imposition of the jury trial on the juvenile court system would not strengthen greatly, if at all, the factfinding function, and would, contrarily, provide an attrition of the juvenile court's assumed ability to function in a unique manner. It would not remedy the defects of the system. Meager as has been the hoped-for advance in the juvenile field, the alternative would be regressive, would lose what has been gained, and would tend once again to place the juvenile squarely in the routine of the criminal process.6. The juvenile concept held high promise. We are reluctant to say that, despite disappointments of grave dimensions, it still does not hold promise, and we are particularly reluctant to say, as do the Pennsylvania appellants here, that the system cannot accomplish its rehabilitative goals. So much depends on the availability of resources, on the interest and commitment of the public, on willingness to learn, and on understanding as to cause and effect and cure. In this field, as in so many others, one perhaps learns best by doing. We are reluctant to disallow the States to experiment further and to seek in new and different ways the elusive answers to the problems of the young, and we feel that we would be impeding that experimentation by imposing the jury trial. The States, indeed, must go forward. If, in its wisdom, any State feels the jury trial is desirable in all cases, or in certain kinds, there appears to be no impediment to its installing a system embracing that feature. That, however, is the State's privilege, and not its obligation.7. Of course there have been abuses. The Task Force Report has noted them. We refrain from saying at this Page 403 U. S. 548 point that those abuses are of constitutional dimension. They relate to the lack of resources and of dedication, rather than to inherent unfairness.8. There is, of course, nothing to prevent a juvenile court judge, in a particular case where he feels the need, or when the need is demonstrated, from using an advisory Jury.9."The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105 (1934)."Leland v. Oregon, 343 U. S. 790, 343 U. S. 798 (1952). It therefore is of more than passing interest that at least 29 States and the District of Columbia by statute deny the juvenile a right to a jury trial in cases such as these. [Footnote 7] The same result is achieved in other Page 403 U. S. 549 States by judicial decision. [Footnote 8] In 10 States ,statutes provide for a jury trial under certain circumstances. [Footnote 9]10. Since Gault and since Duncan, the great majority of States, in addition to Pennsylvania and North Carolina, that have faced the issue have concluded that the considerations that led to the result in those two cases do not compel trial by jury in the juvenile court. In re Fucini, 44 Ill. 2d 305, 255 N.E.2d 380 (1970); Bible v. State, ___ Ind. ___, 254 N.E.2d 319 (1970); Dryden v. Commonwealth, 435 S.W.2d 457 (Ky.1968); In re Johnson, 254 Md. 517, 255 A.2d 419 (1969); Hopkins v. Youth Court, 227 So. 2d 282 (Miss.1969); In re J.W., 106 N.J.Super. 129, 254 A.2d 334 (1969); In re D., 27 N.Y.2d 90, 261 N.E.2d 627 (1970); In re Agler, 19 Ohio St.2d 70, 249 N.E.2d 808 (1969); State v. Turner, 253 Ore. 235, 453 P.2d 910 (1969). See In re Estes v. Hopp, 73 Wash. 2d 263, 438 P.2d 205 (1968); McMullen v. Geiger, 184 Neb. 581, 169 N.W.2d 431 (1969). To the contrary are Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968), and, semble, Nieves v. United States, 280 F. Supp. 994 (SDNY 1968).11. Stopping short of proposing the jury trial for juvenile proceedings are the Uniform Juvenile Court Act, § 24(a), approved in July, 1968, by the National Conference of Commissioners on Uniform State Laws; Page 403 U. S. 550 the Standard Juvenile Court Act, Art. V, § 19, proposed by the National Council on Crime and Delinquency (see W. Sheridan, Standards for Juvenile and Family Courts 73, Dept. of H.E.W., Children's Bureau Pub. No. 437-1966); and the Legislative Guide for Drafting Family and Juvenile Court Acts § 29(a) (Dept. of H.E.W., Children's Bureau Pub. No. 472-1969).12. If the jury trial were to be injected into the juvenile court system as a matter of right, it would bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial. It is of interest that these very factors were stressed by the District Committee of the Senate when, through Senator Tydings, it recommended, and Congress then approved, as a provision in the District of Columbia Crime Bill, the abolition of the jury trial in the juvenile court. S.Rep. No. 91-620, pp. 114 (1969).13. Finally, the arguments advanced by the juveniles here are, of course, the identical arguments that underlie the demand for the jury trial for criminal proceedings. The arguments necessarily equate the juvenile proceeding -- or at least the adjudicative phase of it -- with the criminal trial. Whether they should be so equated is our issue. Concern about the inapplicability of exclusionary and other rules of evidence, about the juvenile court judge's possible awareness of the juvenile's prior record and of the contents of the social file; about repeated appearances of the same familiar witnesses in the persons of juvenile and probation officers and social workers -- all to the effect that this will create the likelihood of pre-judgment -- chooses to ignore, it seems to us, every aspect of fairness, of concern, of sympathy, and of paternal attention that the juvenile court system contemplates. Page 403 U. S. 551If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but, for the moment, we are disinclined to give impetus to it.Affirmed

U.S. Supreme CourtMcKeiver v. Pennsylvania, 403 U.S. 528 (1971)McKeiver v. PennsylvaniaNo. 322Argued December 10, 1970Decided June 21, 1971*403 U.S. 528SyllabusThe requests of appellants in No. 322 for a jury trial were denied, and they were adjudged juvenile delinquents under Pennsylvania law. The State Supreme Court, while recognizing the applicability to juveniles of certain due process procedural safeguards, held that there is no constitutional right to a jury trial in juvenile court. Appellants argue for a right to a jury trial because they were tried in proceedings "substantially similar to a criminal trial," and note that the press is generally present at the trial, and that members of the public also enter the courtroom. Petitioners in No. 128 were adjudged juvenile delinquents in North Carolina, where their jury trial requests were denied, and in proceedings where the general public was excluded.Held: A trial by jury is not constitutionally required in the adjudicative phase of a state juvenile court delinquency proceeding. Pp. 403 U. S. 540-551, 403 U. S. 553-556.No. 322, 438 Pa. 339, 265 A.2d 350, and No. 128, 275 N.C. 517, 169 S.E.2d 879, affirmed.MR. JUSTICE BLACKMUN joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE WHITE, concluded that:1. The applicable due process standard in juvenile proceedings is fundamental fairness, as developed by In re Gault, 387 U. S. 1, and In re Winship, 397 U. S. 358, which emphasized factfinding procedures, but, in our legal system, the jury is not a necessary component of accurate factfinding. P. 403 U. S. 543.2. Despite disappointments, failures, and shortcomings in the juvenile court procedure, a jury trial is not constitutionally required in a juvenile court's adjudicative stage. Pp. 403 U. S. 545-550.(a) The Court has not heretofore ruled that all rights constitutionally assured to an adult accused are to be imposed in a juvenile proceeding. P. 403 U. S. 545.(b) Compelling a jury trial might remake the proceeding into a fully adversary process, and effectively end the idealistic prospect of an intimate, informal protective proceeding. P. 403 U. S. 545.(c) Imposing a jury trial on the juvenile court system would not remedy the system's defects, and would not greatly strengthen the factfinding function. P. 403 U. S. 547. Page 403 U. S. 529(d) The States should be free to experiment to achieve the high promise of the juvenile court concept, and they may install a jury system; or a juvenile court judge may use an advisory jury in a particular case. P. 403 U. S. 547.(e) Many States, by statute or judicial decision, deny a juvenile a right to jury trial, and the great majority that have faced that issue since Gault, supra, and Duncan v. Louisiana, 391 U. S. 145, have concluded that the considerations involved in those cases do not compel trial by jury in juvenile court. Pp. 403 U. S. 548-549.(f) Jury trial would entail delay, formality, and clamor of the adversary system, and possibly a public trial. P. 403 U. S. 550.(g) Equating the adjudicative phase of the juvenile proceeding with a criminal trial ignores the aspects of fairness, concern, sympathy, and paternal attention inherent in the juvenile court system. P. 403 U. S. 550.MR. JUSTICE BRENNAN concluded that:Due process in juvenile delinquency proceedings, which are not "criminal prosecutions," does not require the States to provide jury trials on demand so long as some other aspect of the process adequately protects the interests that Sixth Amendment jury trials are intended to serve. In the juvenile context, those interests may be adequately protected by allowing accused individuals to bring the community's attention to bear upon their trials. Since Pennsylvania has no statutory bar to public juvenile trials, and since no claim is made that members of the public were excluded over appellants' objections, the judgment in No. 322 should be affirmed. Pp. 403 U. S. 553-556.MR. JUSTICE HARLAN concurred in the judgments in these cases on the ground that criminal jury trials are not constitutionally required of the States, either by the Sixth Amendment or by due process. P. 403 U. S. 557.BLACKMUN, J., announced the Court's judgments and delivered an opinion in which BURGER, C.J., and STEWART and WHITE, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 403 U. S. 551. BRENNAN, J., filed an opinion concurring in the judgment in No. 322 and dissenting in No. 128, post, p. 403 U. S. 553. HARLAN, J., filed an opinion concurring in the judgments, post, p. 403 U. S. 557. DOUGLAS, J., filed a dissenting opinion, in which BLACK and MARSHALL, JJ., joined, post, p. 403 U. S. 557. Page 403 U. S. 530

1987_86-1602

JUSTICE SCALIA delivered the opinion of the Court.Petitioner United Savings Association of Texas seeks review of an en banc decision of the United States Court of Appeals for the Fifth Circuit holding that petitioner was not entitled to receive from respondent debtor, which is undergoing Page 484 U. S. 368 484 U. S. 368 reorganization in bankruptcy, monthly payments for the use value of the loan collateral which the bankruptcy stay prevented it from possessing. In re Timbers of Inwood Forest Associates, Ltd., 808 F.2d 363 (1987). We granted certiorari, 481 U.S. 1068 (1987), to resolve a conflict in the Courts of Appeals regarding application of §§ 361 and 362(d)(1) of the Bankruptcy Code, 11 U.S.C. §§ 361 and 362(d)(1) (1982 ed. and Supp. IV). Compare Grundy Nat. Bank v. Tandem Mining Corp., 754 F.2d 1436, 1440-1441 (CA4 1985); In re American Mariner Industries, Inc., 734 F.2d 426, 432-435 (CA9 1984); see also In re Briggs Transp. Co., 780 F.2d 1339, 1348-1351 (CA8 1985).IOn June 29, 1982, respondent Timbers of Inwood Forest Associates, Ltd., executed a note in the principal amount of $4,100,000. Petitioner is the holder of the note as well as of a security interest created the same day in an apartment project owned by respondent in Houston, Texas. The security interest included an assignment of rents from the project. On March 4, 1985, respondent filed a voluntary petition under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. (1982 ed. and Supp. IV), in the United States Bankruptcy Court for the Southern District of Texas.On March 18, 1985, petitioner moved for relief from the automatic stay of enforcement of liens triggered by the petition, see 11 U.S.C. § 362(a), on the ground that there was lack of "adequate protection" of its interest within the meaning of 11 U.S.C. § 362(d)(1). At a hearing before the Bankruptcy Court, it was established that respondent owed petitioner $4,366,388.77, and evidence was presented that the value of the collateral was somewhere between $2,650,000 and $4,250,000. The collateral was appreciating in value, but only very slightly. It was therefore undisputed that petitioner was an undersecured creditor. Respondent had agreed to pay petitioner the post-petition rents from the Page 484 U. S. 369 apartment project (covered by the after-acquired property clause in the security agreement), minus operating expenses. Petitioner contended, however, that it was entitled to additional compensation. The Bankruptcy Court agreed, and on April 19, 1985, it conditioned continuance of the stay on monthly payments by respondent, at the market rate of 12% per annum, on the estimated amount realizable on foreclosure, $4,250,000 -- commencing six months after the filing of the bankruptcy petition, to reflect the normal foreclosure delays. In re Bear Creek Ministorage, Inc., 49 B.R. 454 (1985) (editorial revision of earlier decision). The court held that the post-petition rents could be applied to these payments. See id. at 460. Respondent appealed to the District Court, and petitioner cross-appealed on the amount of the adequate protection payments. The District Court affirmed but the Fifth Circuit en banc reversed.We granted certiorari to determine whether undersecured creditors are entitled to compensation under 11 U.S.C. § 362(d)(1) for the delay caused by the automatic stay in foreclosing on their collateral.IIWhen a bankruptcy petition is filed, § 362(a) of the Bankruptcy Code provides an automatic stay of, among other things, actions taken to realize the value of collateral given by the debtor. The provision of the Code central to the decision of this case is § 362(d), which reads as follows:"On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay -- ""(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or""(2) with respect to a stay of an act against property under subsection (a) of this section, if -- "Page 484 U. S. 370"(A) the debtor does not have an equity in such property; and""(B) such property is not necessary to an effective reorganization."The phrase "adequate protection" in paragraph (1) of the foregoing provision is given further content by § 361 of the Code, which reads in relevant part as follows:"When adequate protection is required under section 362 . . . of this title of an interest of an entity in property, such adequate protection may be provided by -- ""(1) requiring the trustee to make a cash payment or periodic cash payments to such entity, to the extent that the stay under section 362 of this title . . . results in a decrease in the value of such entity's interest in such property;""(2) providing to such entity an additional or replacement lien to the extent that such stay . . . results in a decrease in the value of such entity's interest in such property; or""(3) granting such other relief . . . as will result in the realization by such entity of the indubitable equivalent of such entity's interest in such property."It is common ground that the "interest in property" referred to by § 362(d)(1) includes the right of a secured creditor to have the security applied in payment of the debt upon completion of the reorganization, and that that interest is not adequately protected if the security is depreciating during the term of the stay. Thus, it is agreed that, if the apartment project in this case had been declining in value, petitioner would have been entitled, under § 362(d)(1), to cash payments or additional security in the amount of the decline, as § 361 describes. The crux of the present dispute is that petitioner asserts, and respondent denies, that the phrase "interest in property" also includes the secured party's right (suspended by the stay) to take immediate possession of the defaulted Page 484 U. S. 371 security, and apply it in payment of the debt. If that right is embraced by the term, it is obviously not adequately protected unless the secured party is reimbursed for the use of the proceeds he is deprived of during the term of the stay.The term "interest in property" certainly summons up such concepts as "fee ownership," "life estate," "co-ownership," and "security interest" more readily than it does the notion of "right to immediate foreclosure." Nonetheless, viewed in the isolated context of § 362(d)(1), the phrase could reasonably be given the meaning petitioner asserts. Statutory construction, however, is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme -- because the same terminology is used elsewhere in a context that makes its meaning clear, see, e.g., Sorenson v. Secretary of Treasury, 475 U. S. 851, 475 U. S. 860 (1986), or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law, see, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 481 U. S. 54 (1987); Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U. S. 609, 412 U. S. 631-632 (1973); Jarecki v. G. D. Searle & Co., 367 U. S. 303, 367 U. S. 307-308 (1961). That is the case here. Section 362(d)(1) is only one of a series of provisions in the Bankruptcy Code dealing with the rights of secured creditors. The language in those other provisions, and the substantive dispositions that they effect, persuade us that the "interest in property" protected by § 362(d)(1) does not include a secured party's right to immediate foreclosure.Section 506 of the Code defines the amount of the secured creditor's allowed secured claim and the conditions of his receiving post-petition interest. In relevant part it reads as follows:"(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest . . . is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, . . . and Page 484 U. S. 372 is an unsecured claim to the extent that the value of such creditor's interest . . . is less than the amount of such allowed claim. . . .""(b) To the extent that an allowed secured claim is secured by property the value of which . . . is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose."In subsection (a) of this provision, the creditor's "interest in property" obviously means his security interest without taking account of his right to immediate possession of the collateral on default. If the latter were included, the "value of such creditor's interest" would increase, and the proportions of the claim that are secured and unsecured would alter, as the stay continues -- since the value of the entitlement to use the collateral from the date of bankruptcy would rise with the passage of time. No one suggests this was intended. The phrase "value of such creditor's interest" in § 506(a) means "the value of the collateral." H.R.Rep. No. 95-595, pp. 181, 356 (1977); see also S.Rep. No. 95-989, p. 68 (1978). We think the phrase "value of such entity's interest" in § 361(1) and (2), when applied to secured creditors, means the same.Even more important for our purposes than § 506's use of terminology is its substantive effect of denying undersecured creditors post-petition interest on their claims -- just as it denies oversecured creditors post-petition interest to the extent that such interest, when added to the principal amount of the claim, will exceed the value of the collateral. Section 506(b) provides that"[t]o the extent that an allowed secured claim is secured by property the value of which . . . is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim."(Emphasis added.) Since this provision permits post-petition interest to be paid only out of the "security cushion," the undersecured creditor, Page 484 U. S. 373 who has no such cushion, falls within the general rule disallowing post-petition interest. See 11 U.S.C. § 502(b)(2). If the Code had meant to give the undersecured creditor, who is thus denied interest on his claim, interest on the value of his collateral, surely this is where that disposition would have been set forth, and not obscured within the "adequate protection" provision of § 362(d)(1). Instead of the intricate phraseology set forth above, § 506(b) would simply have said that the secured creditor is entitled to interest "on his allowed claim, or on the value of the property securing his allowed claim, whichever is lesser." Petitioner's interpretation of § 362(d)(1) must be regarded as contradicting the carefully drawn disposition of § 506(b).Petitioner seeks to avoid this conclusion by characterizing § 506(b) as merely an alternative method for compensating oversecured creditors, which does not imply that no compensation is available to undersecured creditors. This theory of duplicate protection for oversecured creditors is implausible even in the abstract, but even more so in light of the historical principles of bankruptcy law. Section 506(b)'s denial of post-petition interest to undersecured creditors merely codified pre-Code bankruptcy law, in which that denial was part of the conscious allocation of reorganization benefits and losses between undersecured and unsecured creditors."To allow a secured creditor interest where his security was worth less than the value of his debt was thought to be inequitable to unsecured creditors."Vanston Bondholders Protective Committee v. Green, 329 U. S. 156, 329 U. S. 164 (1946). It was considered unfair to allow an undersecured creditor to recover interest from the estate's unencumbered assets before unsecured creditors had recovered any principal. See id. at 329 U. S. 164, 329 U. S. 166; Ticonic Nat. Bank v. Sprague, 303 U. S. 406, 303 U. S. 412 (1938). We think it unlikely that § 506(b) codified the pre-Code rule with the intent, not of achieving the principal purpose and function of that rule, but of providing oversecured creditors an alternative method of compensation. Page 484 U. S. 374 Moreover, it is incomprehensible why Congress would want to favor undersecured creditors with interest if they move for it under § 362(d)(1) at the inception of the reorganization process -- thereby probably pushing the estate into liquidation -- but not if they forbear and seek it only at the completion of the reorganization.Second, petitioner's interpretation of § 362(d)(1) is structurally inconsistent with 11 U.S.C. § 552. Section 552(a) states the general rule that a prepetition security interest does not reach property acquired by the estate or debtor post-petition. Section 552(b) sets forth an exception, allowing post-petition "proceeds, product, offspring, rents, or profits" of the collateral to be covered only if the security agreement expressly provides for an interest in such property, and the interest has been perfected under "applicable nonbankruptcy law." See, e.g., In re Casbeer, 793 F.2d 1436, 1442-1444 (CA5 1986); In re Johnson, 62 B.R. 24, 28-30 (CA9 Bkrtcy.App. Panel 1986); cf. Butner v. United States, 440 U. S. 48, 440 U. S. 54-56 (1979) (same rule under former Bankruptcy Act). Section 552(b) therefore makes possession of a perfected security interest in post-petition rents or profits from collateral a condition of having them applied to satisfying the claim of the secured creditor ahead of the claims of unsecured creditors. Under petitioner's interpretation, however, the undersecured creditor who lacks such a perfected security interest in effect achieves the same result by demanding the "use value" of his collateral under § 362. It is true that § 506(b) gives the oversecured creditor, despite lack of compliance with the conditions of § 552, a similar priority over unsecured creditors, but that does not compromise the principle of § 552, since the interest payments come only out of the "cushion" in which the oversecured creditor does have a perfected security interest.Third, petitioner's interpretation of § 362(d)(1) makes nonsense of § 362(d)(2). On petitioner's theory, the undersecured creditor's inability to take immediate possession of Page 484 U. S. 375 his collateral is always "cause" for conditioning the stay (upon the payment of market rate interest) under § 362(d)(1), since there is, within the meaning of that paragraph, "lack of adequate protection of an interest in property." But § 362(d)(2) expressly provides a different standard for relief from a stay "of an act against property," which of course includes taking possession of collateral. It provides that the court shall grant relief "if . . . (A) the debtor does not have an equity in such property [i.e., the creditor is undersecured]; and (B) such property is not necessary to an effective reorganization." (Emphasis added.) By applying the "adequate protection of an interest in property" provision of § 362(d)(1) to the alleged "interest" in the earning power of collateral, petitioner creates the strange consequence that § 362 entitles the secured creditor to relief from the stay (1) if he is undersecured (and thus not eligible for interest under § 506(b)), or (2) if he is undersecured and his collateral "is not necessary to an effective reorganization." This renders § 362(d)(2) a practical nullity and a theoretical absurdity. If § 362(d)(1) is interpreted in this fashion, an undersecured creditor would seek relief under § 362(d)(2) only if his collateral was not depreciating (or it was being compensated for depreciation) and he was receiving market rate interest on his collateral, but nonetheless wanted to foreclose. Petitioner offers no reason why Congress would want to provide relief for such an obstreperous and thoroughly unharmed creditor.Section 362(d)(2) also belies petitioner's contention that undersecured creditors will face inordinate and extortionate delay if they are denied compensation for interest lost during the stay as part of "adequate protection" under § 362(d)(1). Once the movant under § 362(d)(2) establishes that he is an undersecured creditor, it is the burden of the debtor to establish that the collateral at issue is "necessary to an effective reorganization." See § 362(g). What this requires is not merely a showing that, if there is conceivably to be an effective reorganization, this property will be needed for it; but Page 484 U. S. 376 that the property is essential for an effective reorganization that is in prospect. This means, as many lower courts, including the en banc court in this case, have properly said, that there must be "a reasonable possibility of a successful reorganization within a reasonable time." 808 F.2d at 370-371, and nn. 12-13, and cases cited therein. The cases are numerous in which § 362(d)(2) relief has been provided within less than a year from the filing of the bankruptcy petition. [Footnote 1] And while the bankruptcy courts demand less detailed showings during the four months in which the debtor is given the exclusive right to put together a plan, see 11 U.S.C. §§ 1121(b), (c)(2), even within that period, lack of any realistic prospect of effective reorganization will require § 362(d)(2) relief. [Footnote 2] Page 484 U. S. 377IIIAPetitioner contends that denying it compensation under § 362(d)(1) is inconsistent with sections of the Code other than those just discussed. Petitioner principally relies on the phrase "indubitable equivalent" in § 361(3), which also appears in 11 U.S.C. § 1129(b)(2)(A)(iii). Petitioner contends that, in the latter context, which sets forth the standards for confirming a reorganization plan, the phrase has developed a well-settled meaning connoting the right of a secured creditor to receive present value of his security -- thus requiring interest if the claim is to be paid over time. It is true that, under § 1129(b), a secured claimant has a right to receive under a plan the present value of his collateral. This entitlement arises, however, not from the phrase "indubitable equivalent" in § 1129(b)(2)(A)(iii), but from the provision of § 1129(b)(2)(A)(i)(II) that guarantees the secured creditor"deferred cash payments . . . of a value, as of the effective date of the plan, of at least the value of such [secured claimant's] interest in the estate's interest in such property."(Emphasis added.) Under this formulation, even though the undersecured creditor's "interest" is regarded (properly) as solely the value of the collateral, he must be rendered payments that assure him that value as of the effective date of the plan. In § 361(3), by contrast, the relief pending the stay need only be such "as will result in the realization . . . of the indubitable equivalent" of the collateral. (Emphasis added.) It is obvious (since §§ 361 and 362(d)(1) do not entitle the secured creditor to immediate payment of the principal of his collateral) that this "realization" is to "result" not at once, but only upon completion of the reorganization. It is then that he must be assured "realization . . . of the indubitable equivalent" of his collateral. To put the point differently: similarity of outcome between § 361(3) and § 1129 would be demanded only if the former read "such other relief . . . as Page 484 U. S. 378 will give such entity, as of the date of the relief, the indubitable equivalent of such entity's interest in such property."Nor is there merit in petitioner's suggestion that "indubitable equivalent" in § 361(3) connotes reimbursement for the use value of collateral because the phrase is derived from In re Murel Holding Corp., 75 F.2d 941 (CA2 1935), where it bore that meaning. Murel involved a proposed reorganization plan that gave the secured creditor interest on his collateral for 10 years, with full payment of the secured principal due at the end of that term; the plan made no provision, however, for amortization of principal or maintenance of the collateral's value during the term. In rejecting the plan, Murel used the words "indubitable equivalence" with specific reference not to interest (which was assured), but to the jeopardized principal of the loan:"Interest is indeed the common measure of the difference [between payment now and payment 10 years hence], but a creditor who fears the safety of his principal will scarcely be content with that; he wishes to get his money, or at least the property. We see no reason to suppose that the statute was intended to deprive him of that in the interest of junior holders, unless by a substitute of the most indubitable equivalence."Id. at 942. Of course, Murel, like § 1129, proceeds from the premise that, in the confirmation context, the secured creditor is entitled to present value. But no more from Murel than from § 1129 can it be inferred that a similar requirement exists as of the time of the bankruptcy stay. The reorganized debtor is supposed to stand on his own two feet. The debtor in process of reorganization, by contrast, is given many temporary protections against the normal operation of the law.Petitioner also contends that the Code embodies a principle that secured creditors do not bear the costs of reorganization. It derives this from the rule that general administrative expenses do not have priority over secured claims. See §§ 506(c), 507(a). But the general principle does not follow Page 484 U. S. 379 from the particular rule. That secured creditors do not bear one kind of reorganization cost hardly means that they bear none of them. The Code rule on administrative expenses merely continues pre-Code law. But it was also pre-Code law that undersecured creditors were not entitled to post-petition interest as compensation for the delay of reorganization. See supra at 484 U. S. 373; see also infra at 484 U. S. 381. Congress could hardly have understood that the readoption of the rule on administrative expenses would work a change in the rule on post-petition interest, which it also readopted.Finally, petitioner contends that failure to interpret § 362 (d)(1) to require compensation of undersecured creditors for delay will create an inconsistency in the Code in the (admittedly rare) case when the debtor proves solvent. When that occurs, 11 U.S.C. § 726(a)(5) provides that post-petition interest is allowed on unsecured claims. Petitioner contends it would be absurd to allow post-petition interest on unsecured claims, but not on the secured portion of undersecured creditors' claims. It would be disingenuous to deny that this is an apparent anomaly, but it will occur so rarely that it is more likely the product of inadvertence than are the blatant inconsistencies petitioner's interpretation would produce. Its inequitable effects, moreover, are entirely avoidable, since an undersecured creditor is entitled to "surrender or waive his security and prove his entire claim as an unsecured one." United States Nat. Bank v. Chase Nat. Bank, 331 U. S. 28, 331 U. S. 34 (1947). Section 726(a)(5) therefore requires no more than that undersecured creditors receive post-petition interest from a solvent debtor on equal terms with unsecured creditors, rather than ahead of them -- which, where the debtor is solvent, involves no hardship.BPetitioner contends that its interpretation is supported by the legislative history of §§ 361 and 362(d)(1), relying almost entirely on statements that "[s]ecured creditors should not Page 484 U. S. 380 be deprived of the benefit of their bargain." H.R.Rep. No. 95-595, at 339; S.Rep. No. 95-989, at 53. Such generalizations are inadequate to overcome the plain textual indication in §§ 506 and 362(d)(2) of the Code that Congress did not wish the undersecured creditor to receive interest on his collateral during the term of the stay. If it is at all relevant, the legislative history tends to subvert, rather than support, petitioner's thesis, since it contains not a hint that § 362(d)(1) entitles the undersecured creditor to post-petition interest. Such a major change in the existing rules would not likely have been made without specific provision in the text of the statute, cf. Kelly v. Robinson, 479 U. S. 36, 479 U. S. 47 (1986); it is most improbable that it would have been made without even any mention in the legislative history.Petitioner makes another argument based upon what the legislative history does not contain. It contends that the pre-Code law gave the undersecured creditor relief from the automatic stay by permitting him to foreclose; and that Congress would not have withdrawn this entitlement to relief without any indication of intent to do so in the legislative history unless it was providing an adequate substitute, to-wit, interest on the collateral during the stay.The premise of this argument is flawed. As petitioner itself concedes, Brief for Petitioner 20, the undersecured creditor had no absolute entitlement to foreclosure in a Chapter X or XII case; he could not foreclose if there was a reasonable prospect for a successful rehabilitation within a reasonable time. See, e.g., In re Yale Express System, Inc., 384 F.2d 990, 991-992 (CA2 1967) (Chapter X); In re Nevada Towers Associates, 14 Collier Bankr.Cas. (MB) 146, 151-156 (Bkrtcy.Ct. SDNY 1977) (Chapter XII); In re Consolidated Motor Inns, 6 Collier Bankr.Cas. (MB) 18, 31-32 (Bkrtcy.Ct. ND Ga.1975) (same). Thus, even assuming petitioner is correct that the undersecured creditor had an absolute entitlement to relief under Chapter XI, Congress would have been faced with the choice between adopting the rule from Page 484 U. S. 381 Chapters X and XII or the asserted alternative rule from Chapter XI, because Chapter 11 of the current Code "replaces chapters X, XI and XII of the Bankruptcy Act" with a "single chapter for all business reorganizations." S.Rep. No. 95-989, at 9; see also H.R.Rep. No. 95-595 at 223-224. We think § 362(d)(2) indicates that Congress adopted the approach of Chapters X and XII. In any event, as far as the silence of the legislative history on the point is concerned, that would be no more strange with respect to alteration of the asserted Chapter XI rule than it would be with respect to alteration of the Chapters X and XII rule.Petitioner's argument is further weakened by the fact that it is far from clear that there was a distinctive Chapter XI rule of absolute entitlement to foreclosure. At least one leading commentator concluded that"a Chapter XI court's power to stay lien enforcement is as broad as that of a Chapter X or XII court and that the automatic stay rules properly make no distinctions between the Chapters."Countryman, Real Estate Liens in Business Rehabilitation Cases, 50 Am.Bankr.L.J. 303, 315 (1976). Petitioner cites dicta in some Chapter XI cases suggesting that the undersecured creditor was automatically entitled to relief from the stay, but the courts in those cases uniformly found in addition that reorganization was not sufficiently likely, or was being unduly delayed. See, e.g., In re Bric of America, Inc., 4 Collier Bankr.Cas. (MB) 34, 39-40 (Bkrtcy.Ct. MD Fla.1975); In re O. K. Motels, 1 Collier Bankr.Cas. (MB) 416, 419-420 (Bkrtcy.Ct. MD Fla.1974). Moreover, other Chapter XI cases held undersecured creditors not entitled to foreclosure under reasoning very similar to that used in Chapters X and XII cases. See In re Coolspring Estates, Inc., 12 Collier Bankr.Cas. (MB) 55, 60-61 (Bkrtcy.Ct. ND Ind.1977); In re The Royal Scot, Ltd., 2 Bankr.Ct. Dec. (CRR) 374, 376-377 (Bkrtcy.Ct. WD Mich.1976); In re Mesker Steel, Inc., 1 Bankr.Ct. Dec. (CRR) 235, 236-237 (Bkrtcy.Ct. SD Ind.1974). The at best divided authority under Chapter XI removes Page 484 U. S. 382 all cause for wonder that the alleged departure from it should not have been commented upon in the legislative history.The Fifth Circuit correctly held that the undersecured petitioner is not entitled to interest on its collateral during the stay to assure adequate protection under 11 U.S.C. § 362(d)(1). Petitioner has never sought relief from the stay under § 362(d)(2) or on any ground other than lack of adequate protection. Accordingly, the judgment of the Fifth Circuit isAffirmed

U.S. Supreme CourtUnited Sav. v. Timbers of Inwood Forest, 484 U.S. 365 (1988)United Savings Association of Texas v. Timbers ofInwood Forest Associates, Ltd.No. 86-1602Argued December 1, 1987Decided January 20, 1988484 U.S. 365SyllabusWhen a bankruptcy petition is filed, § 362(a) of the Bankruptcy Code provides an automatic stay of actions taken to realize the value of collateral given by the debtor. Section 362(d) authorizes the bankruptcy court to grant relief from the stay "(1) for cause, including the lack of adequate protection of an interest in property of . . . [a] party in interest," or "(2) with respect to a stay of an act against property," if the debtor does not have an equity in such property (i.e., the creditor is undersecured) and the property is "not necessary to an effective reorganization." Section 361 provides that adequate protection of an entity's interest in property may be provided by granting such relief "as will result in the realization by such entity of the indubitable equivalent of its interest." After respondent filed a petition for reorganization under Chapter 11 of the Code, petitioner, an undersecured creditor, moved the Bankruptcy Court for relief from the § 362(a) stay on the ground that there was a lack of "adequate protection" of its interest within the meaning of § 362(d)(1). The court granted relief, conditioning continuance of the stay on monthly payments by respondent on the estimated amount realizable on the foreclosure that the stay prevented. The District Court affirmed, but the Court of Appeals reversed.Held: Undersecured creditors are not entitled to compensation under § 362(d)(1) for the delay caused by the automatic stay in foreclosing on their collateral. Pp. 484 U. S. 370-380.(a) The language of other Code provisions that deal with the rights of secured creditors, and the substantive dispositions that those provisions effect, establish that the "interest in property" protected by § 362(d)(1) does not include a secured party's right to immediate foreclosure. First, petitioner's contrary interpretation contradicts the carefully drawn substantive disposition effected by § 506(b), which codifies the pre-Code rule denying undersecured creditors post-petition interest on their claims. Had Congress nevertheless meant to give undersecured creditors interest on the value of their collateral, it would have said so plainly in § 506(b). Moreover, the meaning of § 362(d)(1)'s "interest in property" phrase is clarified by the use of similar terminology in § 506(a), where it must be interpreted to mean only the creditor's security interest Page 484 U. S. 366 in the property without regard to his right to immediate possession on default. Second, § 552(b), which makes possession of a perfected security interest in post-petition rents or profits from collateral a condition of having them applied to satisfy the secured creditor's claim ahead of the claims of unsecured creditors, is inconsistent with petitioner's interpretation of § 362(d)(1), under which the undersecured creditor who lacks such a perfected security interest in effect could achieve the same result by demanding the "use value" of his collateral. Third, petitioner's interpretation of § 362(d)(1) makes a practical nullity of § 362(d)(2), which, on petitioner's theory, would be of use only to a secured creditor who was fully protected both as to the value of, and interest on, its collateral, but nonetheless wanted to foreclose. Petitioner's contention that undersecured creditors will face inordinate and extortionate delay if they are denied compensation under § 362(d)(1) is also belied by § 362(d)(2), which requires relief from the stay unless the debtor establishes a reasonable possibility of a successful reorganization within a reasonable time, and under which numerous cases have provided relief within less than a year from the filing of the bankruptcy petition. Pp. 484 U. S. 370-376.(b) Denying petitioner compensation under § 362(d)(1) is not inconsistent with § 361(3)'s use of the phrase "indubitable equivalent." Although the same phrase appears in § 1129(b), under which section, as a condition for confirmation of a reorganization plan, a secured claimant has a right to receive the present value of his collateral (including interest if the claim is to be paid over time), the source of the right in § 1129 is not the "indubitable equivalent" language, but the provision guaranteeing payments of a value, "as of the effective date of the plan," equal to the value of the collateral. Similarly, petitioner's contention that, since general administrative expenses do not have priority over secured claims, see §§ 506(c), 507(a), the Code embodies a principle prohibiting secured creditors from bearing any of the costs of reorganization, is without merit. Congress could not have intended that its readoption of the pre-Code administrative expenses rule would work a change in the also readopted pre-Code rule denying undersecured creditors post-petition interest. Finally, although failure to interpret § 362(d)(1) to require compensation for undersecured creditors appears inconsistent with § 726(a)(5), which allows post-petition interest on unsecured claims when the debtor proves solvent, this anomaly pertains to such a rare occurrence that it is likely the product of congressional inadvertence, and, in any case, its inequitable effects are entirely avoidable. Pp. 484 U. S. 377-379.(c) General statements in the legislative history of §§ 361 and 362(d)(1) that "[s]ecured creditors should not be deprived of the benefit of their bargain" are inadequate to overcome the plain textual indication in Page 484 U. S. 367 §§ 506 and 362(d)(2) of Congress' intent, as discussed above. It is most improbable that Congress would have made a major change entitling undersecured creditors to post-petition interest without specifically mentioning it in the legislative history. Petitioner's argument that pre-Code Chapter XI gave undersecured creditors the absolute right to foreclose, and that the silence of the Code's legislative history as to the withdrawal of that right indicates a congressional intent to provide interest on the collateral during the stay as a substitute, is flawed. The authorities are far from clear that there was a distinctive Chapter XI rule of absolute entitlement to foreclose, but, even assuming there was, § 362(d)(2) indicates that, in enacting Chapter 11 of the current Code, Congress adopted the approach of pre-Code Chapters X and XII, under which the undersecured creditor did not have such an absolute right. Pp. 484 U. S. 379-382.808 F.2d 363, affirmed.SCALIA, J., delivered the opinion for a unanimous Court.

1991_90-1090

§ 1252(a)(1). We granted the Government's petition for certiorari to decide "[w]hether th[at] provision prohibits promulgation of a rule generally requiring that release bonds contain a condition forbidding unauthorized employment pending determination of deportability." Pet. for Cert. I.IPrior to 1983, the regulations of the Immigration and N aturalization Service (INS) provided that, when an alien was released from custody pending deportation or exclusion proceedings, the INS could in its discretion include in the bond obtained to secure the alien's release a condition barring unauthorized employment. 8 CFR § 103.6(a)(2)(ii) (1982). In 1983, the Attorney General amended those regulations to include the following provision:"(ii) Condition against unauthorized employment.A condition barring employment shall be included in an appearance and delivery bond in connection with a deportation proceeding or bond posted for the release of an alien in exclusion proceedings, unless the District Director determines that employment is appropriate." 8 CFR § 103.6(a)(2)(ii) (1991).11 The regulation further provides:"(iii) Factors to be considered. Only those aliens who upon application under § 109.1(b) of this chapter establish compelling reasons for granting employment authorization may be authorized to accept employment. Among the factors which may be considered when an application is made, are the following:"(A) Safeguarding employment opportunities for United States citizens and lawful permanent resident aliens;"(B) Prior immigration violations by the alien;"(C) Whether there is a reasonable basis for considering discretionary relief; and"(D) Whether a United States citizen or lawful permanent resident spouse or children are dependent upon the alien for support, or other equities exist." § 103.6(a)(2)(iii).186In effect, the new regulation made "no-employment conditions" the rule rather than the exception.Several individuals and organizations (respondents) filed this action challenging the validity of the new rule on statutory and constitutional grounds. Their complaint alleged that the new rule was invalid on its face and therefore could not be enforced even against aliens who may not lawfully accept employment in this country.After finding that the plaintiffs had a fair chance of success on the merits, either on the ground that the statute did not authorize no-employment conditions because such conditions were irrelevant to securing an alien's appearance at a subsequent deportation hearing, or on the ground that the regulation violated an alien's constitutional right to due process, the District Court entered a nationwide preliminary injunction against enforcement of the rule. The Court of Appeals affirmed in part, but held that the scope of the injunction should be limited to the named plaintiffs unless the District Court granted their motion to certify a class. National Center for Immigrants' Rights, Inc. v. INS, 743 F.2d 1365 (CA91984).On remand, the District Court entered summary judgment in favor of respondents on the ground that the regulation was beyond the statutory authority of the Attorney General and also certified a class consisting of "all those persons who have been or may in the future be denied the right to work pursuant to 8 CFR § 103.6." National Center for Immigration Rights, Inc. v. INS, No. CV 83-7927-KN (CD Cal., July 9, 1985), p. 1. The Court of Appeals again affirmed, concluding that the Attorney General's statutory "authority under 8 U. S. C. § 1252(a) of the Act is limited to the imposition of bond conditions which tend to insure the alien's appearance at future deportation proceedings. The peripheral concern of the Act with the employment of illegal aliens is not sufficient to support the imposition of a no-employment condition187in every bond." National Center for Immigrants' Rights, Inc. v. INS, 791 F.2d 1351, 1356 (CA9 1986).The Government petitioned for certiorari raising the same question that is now before us. The Government argued that because the regulation only barred "unauthorized" work by aliens, it merely added the threat of a bond revocation to the already existing prohibition against unauthorized employment. In view of the then-recent enactment of the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, which cast serious doubt on the Court of Appeals' conclusion that employment of undocumented aliens was only a "peripheral concern" of the immigration laws, we vacated that court's judgment and remanded for further consideration in the light of IRCA. 481 U. S. 1009 (1987). On remand, the District Court adhered to its original opinion that the Attorney General's discretion to impose bond conditions is "limited to those [conditions] aimed at obtaining an undocumented worker's appearance at future immigration proceedings." App. to Pet. for Cert. 68a. The District Court noted that the enactment of employer sanctions in IRCA made the question whether the employment of undocumented aliens is merely a "peripheral concern" of the INA more difficult, but concluded that this change in the law did not broaden the Attorney General's discretion.A divided panel of the Court of Appeals again affirmed, but the majority did not rely on the District Court's reasoning. 913 F.2d 1350 (CA9 1990). The majority first rejected the Government's interpretation of the new regulation as merely barring" 'unauthorized employment'''; the Court of Appeals construed the rule as a "blanket bond condition" applicable to aliens authorized to work as well as to those who had no such authority. Id., at 1353-1358. The majority then concluded that the Attorney General exceeded his statutory authority in promulgating the regulation, ruling that the Attorney General's discretion in imposing bond conditions was subject to two constraints. First, the court188ruled, a bond condition must relate either to securing the alien's appearance at a subsequent hearing or to protecting the Nation from danger posed by active subversives. A no-employment condition was not related to either of these purposes. Id., at 1358-1372. Second, the Court of Appeals concluded, bond conditions may only be imposed on an individualized basis and therefore the "blanket rule" promulgated by the Attorney General was invalid. Id., at 1373-1374.We granted certiorari, 499 U. S. 946 (1991), and now reverse.IIIt is appropriate that we preface our analysis by noting the narrowness of the question before us: We must decide whether the regulation on its face is invalid as inconsistent with the Attorney General's statutory authority.We first observe that the plaintiffs framed their challenge to the regulation as a facial challenge. See App. 16-27. We recognize that it is possible that the no-work condition may be improperly imposed on some aliens. That the regulation may be invalid as applied in such cases, however, does not mean that the regulation is facially invalid because it is without statutory authority. Cf. American Hospital Assn. v. NLRB, 499 U. S. 606, 619 (1991); Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 632-633, n. 10 (1989). In this case, we need not and do not address such "as-applied" challenges to the regulation.We also note that, in invalidating the contested regulation, the Court of Appeals relied solely on statutory grounds, and did not reach the plaintiffs' constitutional challenge. See 913 F. 2d, at 1358, n. 8. Accordingly, only the plaintiffs' statutory challenge is before us and we resolve none of the constitutional claims raised by the plaintiffs' initial complaint.189IIIThe threshold question in this case concerns interpretation of the regulation, which as the Government itself concedes, "is not unambiguous." Brief for Petitioners 23, n. 14. Indeed, as the dissenting judge in the Court of Appeals suggested, much of this controversy could have been avoided by a more precise drafting of the regulation, either initially or in response to any of the several lower court opinions. See 913 F. 2d, at 1375 (Trott, J., dissenting).The most critical ambiguity in the regulation is whether the proposed no-work conditions bar all employment or only unauthorized employment-stated another way, whether such conditions will be imposed on all bonds or only on bonds issued for aliens who lack authorization to work. Although the relevant paragraph of the regulation is entitled "Condition against unauthorized employment," the text describes the restriction more broadly, as a "condition barring employment." Based in part on this latter phrase, the Court of Appeals interpreted the regulation as barring all employment, whether authorized or unauthorized. In contrast, the Government contends that the regulation only concerns the imposition of bond conditions in the case of aliens who lack work authorization in the first place.We agree with the Government's interpretation of the regulation. In other contexts, we have stated that the title of a statute or section can aid in resolving an ambiguity in the legislation's text. See Mead Corp. v. Tilley, 490 U. S. 714, 723 (1989); FTC v. Mandel Bros., Inc., 359 U. S. 385, 388-389 (1959). Such analysis obtains in this case as well. The text's generic reference to "employment" should be read as a reference to the "unauthorized employment" identified in the paragraph's title. Moreover, an agency's reasonable,190consistently held interpretation of its own regulation is entitled to deference. In this case, the Government has consistently maintained that the contested regulation only implicates bond conditions barring unauthorized employment.2Our conclusion that the regulation does not contemplate the inclusion of no-work conditions in bonds issued to aliens who are authorized to work is further supported by the text of the regulation,3 the agency's comments when the rule was promulgated,4 the operating instructions issued to INS personnel,5 and the absence of any evidence that the INS has2 In this regard, it is noteworthy that the Government's 1986 petition for certiorari framed the question presented as:''Whether 8 U. S. C. § 1252(a), which allows the Attorney General, pending determination of deportability of an alien, to release the alien under bond 'containing such conditions as the Attorney General may prescribe,' permits a condition that forbids the alien to engage in unauthorized employment pending determination of deportability." Pet. for Cert. in INS v. National Center for Immigrants' Rights, O. T. 1986, No. 86-1207, p. I (emphasis supplied).This supports the Government's current representation that it has consistently taken the position that the regulation was never intended to interfere with an alien's right to engage in authorized employment.3 The critical sentence in the regulation states that the condition shall be included "unless the District Director determines that employment is appropriate." 8 CFR § 103.6(a)(2)(ii) (1991). This language places the burden on the alien of demonstrating that employment is appropriate, but it seems inconceivable that the District Director could determine that employment that had already been authorized was not "appropriate."4 In response to critical comments on the proposed rule during the rulemaking process, the agency categorically stated that "permanent resident aliens are not affected by these release conditions. Until such time as permanent resident status is lost, the permanent resident alien has the right to work in the United States, if released on bond. The Service, therefore, has no intention of applying this condition to a permanent resident alien in exclusion or deportation proceedings." 48 Fed. Reg. 51143 (1983).5 "Individuals maintaining a colorable claim to U. S. Citizenship and permanent resident aliens, authorized to work in the United States under 8 CFR 109.1(a)(1), shall not be subject to this general prohibition until such time as a final administrative determination of deportability has been made." INS Operating Instruction 103.6(i) (Dec. 7, 1983).191imposed such a condition on any such alien.6 We therefore accept the Solicitor General's representation that the INS does not intend to apply the bond condition to prohibit authorized employment.Accordingly, our decision today will not answer any of the questions concerning the validity of a regulation having the broader meaning ascribed to this regulation by the Court of Appeals. We thus have no occasion to consider whether the release of an alien who is authorized to work could be subjected to a "no-work" condition.IVSection 242(a) of the IN A grants the Attorney General authority to release aliens under bonds "containing such conditions as the Attorney General may prescribe." 7 In ruling6 The individual plaintiffs alleged that enforcement of the no-work condition would make it difficult, if not impossible, for them to employ counsel and to obtain their release pending a determination of their deportability. None of them, however, alleged that he or she had been authorized to work in the United States before commencement of his or her deportation proceeding. See App. 34-41. (Although one plaintiff alleged that he had been employed for about six years, he did not allege that he had been authorized to accept work. See id., at 36.)7 Title 8 U. S. C. § 1252(a) provides in pertinent part"Apprehension and deportation of aliens"(a) Arrest and custody; review of determination by court; aliens committing aggravated felonies; report to Congressional committees"(1) Pending a determination of deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody. Except as provided in paragraph (2) [regarding mandatory detention of aliens convicted of aggravated felonies], any such alien taken into custody may, in the discretion of the Attorney General and pending such final determination of deportability, (A) be continued in custody; or (B) be released under bond in the amount of not less than $500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (C) be released on conditional parole. But such bond or parole, whether heretofore or hereafter authorized, may be revoked at any time by the Attorney General, in his discretion, and the alien may be returned to custody under the warrant which initiated the proceedings192that the Attorney General's discretion under this section was limited, the Court of Appeals relied on two cases in which we have interpreted similarly broad language in this statutory scheme: United States v. Witkovich, 353 U. S. 194 (1957), and Carlson v. Landon, 342 U. S. 524 (1952).In Witkovich, we considered the scope of the Attorney General's statutory authority to require deportable aliens to provide the INS with information about their "circumstances, habits, associations and activities, and other information ... deemed fit and proper." 8 CFR § 242.3(c)(3) (1956). Although the challenged regulation seemed clearly authorized by the words of the statute, the Court concluded that Congress had only intended to authorize "questions reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue." 353 U. S., at 202. Relying on Witkovich, the Court of Appeals held that § 1252(a) should also be given a narrow construction.This case differs from Witkovich in important ways. Writing for the Court, Justice Frankfurter explained the reasons for placing a limiting construction on the statutory language:"The language of § 242(d)(3), if read in isolation and literally, appears to confer upon the Attorney General unbounded authority to require whatever information he deems desirable of aliens whose deportation has not been effected within six months after it has been commanded. The Government itself shrinks from standing on the breadth of these words. But once the tyrannyagainst him and detained until final determination of his deportability. Any court of competent jurisdiction shall have authority to review or revise any determination of the Attorney General concerning detention, release on bond, or parole pending final decision of deportability upon a conclusive showing in habeas corpus proceedings that the Attorney General is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability."193of literalness is rejected, all relevant considerations for giving a rational content to the words become operative. A restrictive meaning for what appear to be plain words may be indicated by the Act as a whole, by the persuasive gloss of legislative history or by the rule of constitutional adjudication, relied on by the District Court, that such a restrictive meaning must be given if a broader meaning would generate constitutional doubts." Id., at 199.In this case, the Government's argument proceeds on the assumption that the "Act as a whole"-including its concern with the employment of excludable aliens-should define the scope of the Attorney General's discretion. It is respondents who would excise the interest in preventing unauthorized employment from the statutory scheme and confine the Attorney General's bonding authority to the limited purpose of ensuring the presence of aliens at their deportation hearings. Moreover, the contested regulation, when properly construed as applicable only to unauthorized employment, does not raise "constitutional doubts" and therefore does not militate in favor of a narrow construction of the organic statute. In short, the Court of Appeals' reliance on Witkovich was misplaced.The majority below also relied on Carlson. In that case, the Court upheld the Attorney General's detention (under § 23 of the Internal Security Act of 1950) of deportable members of the Communist Party on the ground that they posed a threat to national security. The Court of Appeals read that case narrowly, as standing for the proposition that the Attorney General may exercise his discretion under § 1252(a) to protect the Nation from active subversion.This reading of Carlson is too cramped. What was significant in Carlson was not simply the threat of "active subversion," but rather the fact that Congress had enacted legislation based on its judgment that such subversion posed a threat to the Nation. The Attorney General's discretion194sanctioned in Carlson was wholly consistent with Congress' intent: "Detention [was] part of [the Internal Security Act]. Otherwise aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings." 342 U. S., at 538. Thus, the statutory policy that justified the detention was the congressional determination that the presence of alien Communists constituted an unacceptable threat to the Nation.In this case, the stated and actual purpose of no-work bond conditions was "'to protect against the displacement of workers in the United States.'" 48 Fed. Reg. 51142 (1983) (citation omitted). We have often recognized that a "primary purpose in restricting immigration is to preserve jobs for American workers." Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 893 (1984); see also 8 U. S. C. § 1182(a)(14) (defining as a class of excludable aliens those "seeking to enter the United States, for the purpose of performing skilled or unskilled labor" without the appropriate authorization).8 The contested regulation is wholly consistent with this established concern of immigration law and thus squarely within the scope of the Attorney General's statutory authority.vAs a related ground supporting invalidation of the regulation, the Court of Appeals ruled that the regulation did not provide for "individualized decisions" as required by the Act. We agree that the lawful exercise of the Attorney General's discretion to impose a no-work condition under § 1252(a) requires some level of individualized determination. Indeed in the absence of such judgments, the legitimate exercise of8For an early statement of this policy, see H. R. Rep. No. 1365, 82d Cong., 2d Sess., 50-51 (1952) (discussing the INA's "safeguards for American labor"). This policy of immigration law was forcefully recognized most recently in the IRCA.195discretion is impossible in this context. We reached a similar conclusion with respect to the determination at issue in Carlson, noting that the findings of "evidence of membership plus personal activity in supporting and extending the [Communist] Party's philosophy concerning violence g[ave] adequate ground for detention." 342 U. S., at 541.However, we believe that the no-work condition regulation, when properly construed and when viewed in the context of the complex regime of immigration law, provides the individualized determinations contemplated in the statute. As noted above, we accept the Attorney General's interpretation of the regulation as affecting only those aliens who may not lawfully accept employment in this country. In addition, the operating instructions issued to INS personnel in connection with this regulation expressly state that individuals maintaining a colorable claim of citizenship shall not be subject to the no-work condition, see n. 5, supra, and the INS has stated that "[a]liens who have applied for asylum will not be affected by these regulations." 48 Fed. Reg. 51143 (1983). These facts substantially narrow the reach of the regulation.Moreover, the Solicitor General has advised us that, in enforcing the regulation, the INS will make "an initial, informal determination [as to] whether the alien holds some status that makes work 'authorized.''' Brief for Petitioners 35. The alien's burden in that proceeding is easily met,9 for aliens who are authorized to work generally possess documents establishing that status. Some persons so authorized carry so-called "green cards," see Saxbe v. Bustos, 419 U. S. 65,9 The Solicitor General also notes that "in those rare cases where an alien claims work authorization by status but is unable readily to document such status[,J a preliminary showing of likely success on the merits ... would be grounds for temporary relief." Brief for Petitioners 36, n. 26 (citing 8 CFR § 274a.12(c)(13)(iii) (1991)).19666-68 (1974), others carry employment authorization documents, see 8 CFR § 274a.12(a) (1991),10 or registration numbers that will readily identify their status.llThis informal process is enhanced by two additional provisions. First, 8 CFR § 103.6(a)(2)(iii) (1991) establishes a procedure under which individual aliens can seek discretionary relief from the INS and secure temporary work authorization. Second, an alien may seek prompt administrative and judicial review of bond conditions. 8 CFR §§ 3.18, 242.2 (1991).Taken together all of these administrative procedures are designed to ensure that aliens detained and bonds issued under the contested regulation will receive the individualized determinations mandated by the Act in this context.For these reasons, we conclude that 8 CFR § 103.6(a)(2)(ii) (1991) is consistent with the Attorney General's statutory authority under § 242(a) of the INA. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusIMMIGRATION AND NATURALIZATION SERVICE ET AL. v. NATIONAL CENTER FOR IMMIGRANTS' RIGHTS, INC., ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 90-1090. Argued November 13, 1991-Decided December 16,1991Section 242(a) of the Immigration and Nationality Act (INA) authorizes the Attorney General to arrest excludable aliens and, pending a determination of their deportability, either to hold them in custody or to release them on bond containing conditions prescribed by the Attorney General. Respondent individuals and organizations filed suit in the District Court against petitioners, alleging that 8 CFR § 103.6(a) (2)(ii)-which is entitled "Condition against unauthorized employment" and generally requires that release bonds contain a "condition barring employment" pending a deportability determination-was invalid on its face and therefore could not be enforced even against aliens who may not lawfully accept employment in this country. Ultimately, the District Court held that the regulation was beyond the Attorney General's statutory authority. The Court of Appeals affirmed, ruling that the regulation barred all employment, whether authorized or unauthorized, and that the Attorney General exceeded his authority in promulgating it because the no-employment condition was not related to the purposes of the INA and the regulation did not provide for "individualized decisions" on the imposition of bond conditions as required by the statute.Held: The regulation on its face is consistent with the Attorney General's statutory authority. Pp. 188-196.(a) No "as-applied" challenges to the regulation nor any constitutional claims raised by respondents' initial complaint are before this Court. P.188.(b) The regulation does not contemplate the inclusion of no-work conditions in bonds issued to aliens who are authorized to work. Reading the text's generic reference to "employment" as a reference to the "unauthorized employment" identified in the paragraph's title helps to resolve any ambiguity in the text's language. See, e. g., Mead Corp. v. Tilley, 490 U. S. 714, 723. Moreover, the agency's consistent interpretation of the regulation as applying only to unauthorized employment is due deference. This conclusion is further supported by the regulation's text, the agency's comments when the rule was promulgated, operating184instructions issued to Immigration and Naturalization Service (INS) personnel, and the absence of any evidence that INS has ever imposed the condition on any alien authorized to work. Pp. 189-191.(c) The regulation is wholly consistent with the established concern of immigration law to preserve jobs for American workers and thus is squarely within the scope of the Attorney General's statutory authority. United States v. Witkovich, 353 U. S. 194; Carlson v. Landon, 342 U. S. 524, distinguished. Pp. 191-194.(d) The regulation, when properly construed, and when viewed in the context of INS' administrative procedures-an initial informal determination regarding an alien's status, the right to seek discretionary relief from the INS and secure temporary authorization, and the right to seek prompt administrative and judicial review of bond conditionsprovides the individualized determinations contemplated in the statute. Pp. 194-196.913 F.2d 1350, reversed and remanded.STEVENS, J., delivered the opinion for a unanimous Court.Stephen J. Marzen argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, Barbara L. Herwig, and John F. Daly.Peter A. Schey argued the cause for respondents. With him on the brief were Michael Rubin and Robert Gibbs. *JUSTICE STEVENS delivered the opinion of the Court. This case presents a narrow question of statutory construction. Section 242(a) of the Immigration and Nationality Act (INA) authorizes the Attorney General to arrest excludable aliens and, pending a determination of their deportability, either to hold them in custody or to release them on bond "containing such conditions as the Attorney General may prescribe." 66 Stat. 208, as amended, 8 U. S. C.*Briefs of amici curiae urging affirmance were filed for the American Bar Association by John J. Curtin, Jr., and Jonathan L. Abram; for the American Immigration Lawyers Association by Joshua Floum, Maureen Callahan, and Lawrence H. Rudnick; and for the International Human Rights Law Group by Nicholas W Fels and Steven M. Schneebaum.185Full Text of Opinion

1994_94-590

Thomas M. Christ argued the cause for respondents.With him on the brief were John A. Wittmayer and Steven R. Shapiro. *JUSTICE SCALIA delivered the opinion of the Court.The Student Athlete Drug Policy adopted by School District 47J in the town of Vernonia, Oregon, authorizes random urinalysis drug testing of students who participate in the District's school athletics programs. We granted certiorari to decide whether this violates the Fourth and Fourteenth Amendments to the United States Constitution.I APetitioner Vernonia School District 47J (District) operates one high school and three grade schools in the logging community of Vernonia, Oregon. As elsewhere in small-town America, school sports play a prominent role in the town's life, and student athletes are admired in their schools and in the community.Drugs had not been a major problem in Vernonia schools.In the mid-to-Iate 1980's, however, teachers and administrators observed a sharp increase in drug use. Students began to speak out about their attraction to the drug culture, and to boast that there was nothing the school could do about it. Along with more drugs came more disciplinary problems.*Briefs of amici curiae urging reversal were filed for the American Alliance for Rights & Responsibilities by Steven P. Fulton and Robert Teir; for the California Interscholastic Federation by Andrew Patterson; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; for the Institute for a Drug-Free Workplace by Benjamin W Hahn; for the National League of Cities et al. by Richard Ruda and Lee Fennell; for the National School Boards Association by Gwendolyn H. Gregory, August W Steinhilber, and Thomas A. Shannon; for Paradise Valley Unified School District No. 69 by Thomas C. Horne; and for the Washington Legal Foundation et al. by Richard K. Willard, Daniel J. Popeo, and David A. Price.649Between 1988 and 1989 the number of disciplinary referrals in Vernonia schools rose to more than twice the number reported in the early 1980's, and several students were suspended. Students became increasingly rude during class; outbursts of profane language became common.Not only were student athletes included among the drug users but, as the District Court found, athletes were the leaders of the drug culture. 796 F. Supp. 1354, 1357 (Ore. 1992). This caused the District's administrators particular concern, since drug use increases the risk of sports-related injury. Expert testimony at the trial confirmed the deleterious effects of drugs on motivation, memory, judgment, reaction, coordination, and performance. The high school football and wrestling coach witnessed a severe sternum injury suffered by a wrestler, and various omissions of safety procedures and misexecutions by football players, all attributable in his belief to the effects of drug use.Initially, the District responded to the drug problem by offering special classes, speakers, and presentations designed to deter drug use. It even brought in a specially trained dog to detect drugs, but the drug problem persisted. According to the District Court:"[T]he administration was at its wits end and ... a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion. Disciplinary actions had reached 'epidemic proportions.' The coincidence of an almost three-fold increase in classroom disruptions and disciplinary reports along with the staff's direct observations of students using drugs or glamorizing drug and alcohol use led the administration to the inescapable conclusion that the rebellion was being fueled by alcohol and drug abuse as well as the student's misperceptions about the drug culture." Ibid.At that point, District officials began considering a drugtesting program. They held a parent "input night" to dis-650cuss the proposed Student Athlete Drug Policy (Policy), and the parents in attendance gave their unanimous approval. The school board approved the Policy for implementation in the fall of 1989. Its expressed purpose is to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs.BThe Policy applies to all students participating in interscholastic athletics. Students wishing to play sports must sign a form consenting to the testing and must obtain the written consent of their parents. Athletes are tested at the beginning of the season for their sport. In addition, once each week of the season the names of the athletes are placed in a "pool" from which a student, with the supervision of two adults, blindly draws the names of 10% of the athletes for random testing. Those selected are notified and tested that same day, if possible.The student to be tested completes a specimen control form which bears an assigned number. Prescription medications that the student is taking must be identified by providing a copy of the prescription or a doctor's authorization. The student then enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15 feet behind the student. Monitors may (though do not always) watch the student while he produces the sample, and they listen for normal sounds of urination. Girls produce samples in an enclosed bathroom stall, so that they can be heard but not observed. After the sample is produced, it is given to the monitor, who checks it for temperature and tampering and then transfers it to a vial.The samples are sent to an independent laboratory, which routinely tests them for amphetamines, cocaine, and marijuana. Other drugs, such as LSD, may be screened at the651request of the District, but the identity of a particular student does not determine which drugs will be tested. The laboratory's procedures are 99.94% accurate. The District follows strict procedures regarding the chain of custody and access to test results. The laboratory does not know the identity of the students whose samples it tests. It is authorized to mail written test reports only to the superintendent and to provide test results to District personnel by telephone only after the requesting official recites a code confirming his authority. Only the superintendent, principals, viceprincipals, and athletic directors have access to test results, and the results are not kept for more than one year.If a sample tests positive, a second test is administered as soon as possible to confirm the result. If the second test is negative, no further action is taken. If the second test is positive, the athlete's parents are notified, and the school principal convenes a meeting with the student and his parents, at which the student is given the option of (1) participating for six weeks in an assistance program that includes weekly urinalysis, or (2) suffering suspension from athletics for the remainder of the current season and the next athletic season. The student is then retested prior to the start of the next athletic season for which he or she is eligible. The Policy states that a second offense results in automatic imposition of option (2); a third offense in suspension for the remainder of the current season and the next two athletic seasons.CIn the fall of 1991, respondent James Acton, then a seventh grader, signed up to play football at one of the District's grade schools. He was denied participation, however, because he and his parents refused to sign the testing consent forms. The Actons filed suit, seeking declaratory and injunctive relief from enforcement of the Policy on the grounds that it violated the Fourth and Fourteenth Amendments to the United States Constitution and Article I, § 9, of the Ore-652gon Constitution. After a bench trial, the District Court entered an order denying the claims on the merits and dismissing the action. 796 F. Supp., at 1355. The United States Court of Appeals for the Ninth Circuit reversed, holding that the Policy violated both the Fourth and Fourteenth Amendments and Article I, § 9, of the Oregon Constitution. 23 F.3d 1514 (1994). We granted certiorari. 513 U. S. 1013 (1994).IIThe Fourth Amendment to the United States Constitution provides that the Federal Government shall not violate "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures .... " We have held that the Fourteenth Amendment extends this constitutional guarantee to searches and seizures by state officers, Elkins v. United States, 364 U. S. 206, 213 (1960), including public school officials, New Jersey v. T. L. 0., 469 U. S. 325, 336-337 (1985). In Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 617 (1989), we held that state-compelled collection and testing of urine, such as that required by the Policy, constitutes a "search" subject to the demands of the Fourth Amendment. See also Treasury Employees v. Von Raab, 489 U. S. 656, 665 (1989).As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is "reasonableness." At least in a case such as this, where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted,l whether a particular search meets the reasonableness standard "'is judged by balancing1 Not until 1852 did Massachusetts, the pioneer in the "common school" movement, enact a compulsory school-attendance law, and as late as the 1870's only 14 States had such laws. R. Butts, Public Education in the United States From Revolution to Reform 102-103 (1978); 1 Children and Youth in America 467-468 (R. Bremner ed. 1970). The drug problem, and the technology of drug testing, are of course even more recent.653its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'" Skinner, supra, at 619 (quoting Delaware v. Prouse, 440 U. S. 648, 654 (1979)). Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant, Skinner, supra, at 619. Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin, 483 U. S. 868, 873 (1987) (internal quotation marks omitted).We have found such "special needs" to exist in the public school context. There, the warrant requirement "would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed," and "strict adherence to the requirement that searches be based on probable cause" would undercut "the substantial need of teachers and administrators for freedom to maintain order in the schools." T. L. 0., 469 U. S., at 340, 341. The school search we approved in T. L. 0., while not based on probable cause, was based on individualized suspicion of wrongdoing. As we explicitly acknowledged, however, "'the Fourth Amendment imposes no irreducible requirement of such suspicion,'" id., at 342, n. 8 (quoting United States v. MartinezFuerte, 428 U. S. 543, 560-561 (1976)). We have upheld suspicionless searches and seizures to conduct drug testing of railroad personnel involved in train accidents, see Skinner, supra; to conduct random drug testing of federal customs officers who carry arms or are involved in drug interdiction,654see Von Raab, supra; and to maintain automobile checkpoints looking for illegal immigrants and contraband, Martinez-Fuerte, supra, and drunk drivers, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990).IIIThe first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes. The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as "legitimate." T. L. 0., 469 U. S., at 338. What expectations are legitimate varies, of course, with context, id., at 337, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park. In addition, the legitimacy of certain privacy expectations vis-a-vis the State may depend upon the individual's legal relationship with the State. For example, in Griffin, supra, we held that, although a "probationer's home, like anyone else's, is protected by the Fourth Amendmen[t]," the supervisory relationship between probationer and State justifies "a degree of impingement upon [a probationer's] privacy that would not be constitutional if applied to the public at large." 483 U. S., at 873, 875. Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination-including even the right of liberty in its narrow sense, i. e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. See 59 Am. Jur. 2d, Parent and Child § 10 (1987). When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. In fact, the tutor or schoolmas-655ter is the very prototype of that status. As Blackstone describes it, a parent "may ... delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed." 1 W. Blackstone, Commentaries on the Laws of England 441 (1769).In T. L. O. we rejected the notion that public schools, like private schools, exercise only parental power over their students, which of course is not subject to constitutional constraints. 469 U. S., at 336. Such a view of things, we said, "is not entirely 'consonant with compulsory education laws,'" ibid. (quoting Ingraham v. Wright, 430 U. S. 651, 662 (1977)), and is inconsistent with our prior decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses, T. L. 0., supra, at 336. But while denying that the State's power over schoolchildren is formally no more than the delegated power of their parents, T. L. 0. did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. "[A] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult." 469 U. S., at 339. While we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional "duty to protect," see DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 200 (1989), we have acknowledged that for many purposes "school authorities ac[t] in loco parentis," Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 684 (1986), with the power and indeed the duty to "inculcate the habits and manners of civility," id., at 681 (internal quotation marks omitted). Thus, while children assuredly do not "shed their constitutional656rights ... at the schoolhouse gate," Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969), the nature of those rights is what is appropriate for children in school. See, e. g., Goss v. Lopez, 419 U. S. 565, 581-582 (1975) (due process for a student challenging disciplinary suspension requires only that the teacher "informally discuss the alleged misconduct with the student minutes after it has occurred"); Fraser, supra, at 683 ("[I]t is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse"); Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 273 (1988) (public school authorities may censor school-sponsored publications, so long as the censorship is "reasonably related to legitimate pedagogical concerns"); Ingraham, supra, at 682 ("Imposing additional administrative safeguards [upon corporal punishment] ... would ... entail a significant intrusion into an area of primary educational responsibility").Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the "reasonableness" inquiry cannot disregard the schools' custodial and tutelary responsibility for children. For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases. According to the American Academy of Pediatrics, most public schools "provide vision and hearing screening and dental and dermatological checks .... Others also mandate scoliosis screening at appropriate grade levels." Committee on School Health, American Academy of Pediatrics, School Health: A Guide for Health Professionals 2 (1987). In the 1991-1992 school year, all 50 States required public school students to be vaccinated against diphtheria, measles, rubella, and polio. U. S. Dept. of Health & Human Services, Public Health Service, Centers for Disease Control, State Immunization Requirements 1991-1992, p. 1. Particularly with regard to medical examinations and proce-657dures, therefore, "students within the school environment have a lesser expectation of privacy than members of the population generally." T. L. 0., supra, at 348 (Powell, J., concurring).Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require "suiting up" before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. The locker rooms in Vernonia are typical: No individual dressing rooms are provided; shower heads are lined up along a wall, unseparated by any sort of partition or curtain; not even all the toilet stalls have doors. As the United States Court of Appeals for the Seventh Circuit has noted, there is "an element of 'communal undress' inherent in athletic participation," Schaill by Kross v. Tippecanoe County School Corp., 864 F.2d 1309, 1318 (1988).There is an additional respect in which school athletes have a reduced expectation of privacy. By choosing to "go out for the team," they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. In Vernonia's public schools, they must submit to a preseason physical exam (James testified that his included the giving of a urine sample, App. 17), they must acquire adequate insurance coverage or sign an insurance waiver, maintain a minimum grade point average, and comply with any "rules of conduct, dress, training hours and related matters as may be established for each sport by the head coach and athletic director with the principal's approval." Record, Exh. 2, p. 30, , 8. Somewhat like adults who choose to participate in a "closely regulated industry," students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy. See Skinner, 489 U. S., at 627; United States v. Biswell, 406 U. S. 311, 316 (1972).658IVHaving considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of. We recognized in Skinner that collecting the samples for urinalysis intrudes upon "an excretory function traditionally shielded by great privacy." 489 U. S., at 626. We noted, however, that the degree of intrusion depends upon the manner in which production of the urine sample is monitored. Ibid. Under the District's Policy, male students produce samples at a urinal along a wall. They remain fully clothed and are only observed from behind, if at all. Female students produce samples in an enclosed stall, with a female monitor standing outside listening only for sounds of tampering. These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially schoolchildren use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.The other privacy-invasive aspect of urinalysis is, of course, the information it discloses concerning the state of the subject's body, and the materials he has ingested. In this regard it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic. See id., at 617. Moreover, the drugs for which the samples are screened are standard, and do not vary according to the identity of the student. And finally, the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function. 796 F. Supp., at 1364; see also 23 F. 3d, at 1521.22 Despite the fact that, like routine school physicals and vaccinationswhich the dissent apparently finds unobjectionable even though they "are both blanket searches of a sort," post, at 682-the search here is undertaken for prophylactic and distinctly nonpunitive purposes (protecting659Respondents argue, however, that the District's Policy is in fact more intrusive than this suggests, because it requires the students, if they are to avoid sanctions for a falsely positive test, to identify in advance prescription medications they are taking. We agree that this raises some cause for concern. In Von Raab, we flagged as one of the salutary features of the Customs Service drug-testing program the fact that employees were not required to disclose medical information unless they tested positive, and, even then, the information was supplied to a licensed physician rather than to the Government employer. See Von Raab, 489 U. S., at 672-673, n. 2. On the other hand, we have never indicated that requiring advance disclosure of medications is per se unreasonable. Indeed, in Skinner we held that it was not "a significant invasion of privacy." 489 U. S., at 626, n. 7. It can be argued that, in Skinner, the disclosure went only to the medical personnel taking the sample, and the Government personnel analyzing it, see id., at 609, but see id., at 610 (railroad personnel responsible for forwarding the sample, and presumably accompanying information, to the Government's testing lab); and that disclosure to teachers and coaches-to persons who personally know the student-is a greater invasion of privacy. Assuming for the sake of argu-student athletes from injury, and deterring drug use in the student population), see 796 F. Supp., at 1363, the dissent would nonetheless lump this search together with "evidentiary" searches, which generally require probable cause, see supra, at 653, because, from the student's perspective, the test may be "regarded" or "understood" as punishment, post, at 683684. In light of the District Court's findings regarding the purposes and consequences of the testing, any such perception is by definition an irrational one, which is protected nowhere else in the law. In any event, our point is not, as the dissent apparently believes, post, at 682-683, that since student vaccinations and physical exams are constitutionally reasonable, student drug testing must be so as well; but rather that, by reason of those prevalent practices, public school children in general, and student athletes in particular, have a diminished expectation of privacy. See supra, at 656-657.660ment that both those propositions are true, we do not believe they establish a difference that respondents are entitled to rely on here.The General Authorization Form that respondents refused to sign, which refusal was the basis for James's exclusion from the sports program, said only (in relevant part): "I ... authorize the Vernonia School District to conduct a test on a urine specimen which I provide to test for drugs and/or alcohol use. I also authorize the release of information concerning the results of such a test to the Vernonia School District and to the parents and/or guardians of the student." App. 10-11. While the practice of the District seems to have been to have a school official take medication information from the student at the time of the test, see id., at 29, 42, that practice is not set forth in, or required by, the Policy, which says simply: "Student athletes who ... are or have been taking prescription medication must provide verification (either by a copy of the prescription or by doctor's authorization) prior to being tested." Id., at 8. It may well be that, if and when James was selected for random testing at a time that he was taking medication, the School District would have permitted him to provide the requested information in a confidential manner-for example, in a sealed envelope delivered to the testing lab. Nothing in the Policy contradicts that, and when respondents choose, in effect, to challenge the Policy on its face, we will not assume the worst. Accordingly, we reach the same conclusion as in Skinner: that the invasion of privacy was not significant.VFinally, we turn to consider the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it. In both Skinner and Von Raab, we characterized the government interest motivating the search as "compelling." Skinner, supra, at 628 (interest in preventing railway accidents); Von Raab, supra, at 670 (in-661terest in ensuring fitness of customs officials to interdict drugs and handle firearms). Relying on these cases, the District Court held that because the District's program also called for drug testing in the absence of individualized suspicion, the District "must demonstrate a 'compelling need' for the program." 796 F. Supp., at 1363. The Court of Appeals appears to have agreed with this view. See 23 F. 3d, at 1526. It is a mistake, however, to think that the phrase "compelling state interest," in the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering in isolation the question: Is there a compelling state interest here? Rather, the phrase describes an interest that appears important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy. Whether that relatively high degree of government concern is necessary in this case or not, we think it is met.That the nature of the concern is important-indeed, perhaps compelling-can hardly be doubted. Deterring drug use by our Nation's schoolchildren is at least as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs, which was the governmental concern in Von Raab, supra, at 668, or deterring drug use by engineers and trainmen, which was the governmental concern in Skinner, supra, at 628. School years are the time when the physical, psychological, and addictive effects of drugs are most severe. "Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound"; "children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor." Hawley, The Bumpy Road to Drug-Free Schools, 72 Phi Delta Kappan 310, 314 (1990). See also Estroff, Schwartz, & Hoffmann, Adolescent Cocaine Abuse: Addictive Potential, Behavioral and Psychiatric Effects, 28 Clinical Pediatrics 550662(Dec. 1989); Kandel, Davies, Karus, & Yamaguchi, The Consequences in Young Adulthood of Adolescent Drug Involvement, 43 Arch. Gen. Psychiatry 746 (Aug. 1986). And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted. In the present case, moreover, the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction. Finally, it must not be lost sight of that this program is directed more narrowly to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high. Apart from psychological effects, which include impairment of judgment, slow reaction time, and a lessening of the perception of pain, the particular drugs screened by the District's Policy have been demonstrated to pose substantial physical risks to athletes. Amphetamines produce an "artificially induced heart rate increase, [p]eripheral vasoconstriction, [b]lood pressure increase, and [m]asking of the normal fatigue response," making them a "very dangerous drug when used during exercise of any type." Hawkins, Drugs and Other Ingesta: Effects on Athletic Performance, in H. Appenzeller, Managing Sports and Risk Management Strategies 90, 90-91 (1993). Marijuana causes "[i]rregular blood pressure responses during changes in body position," "[r]eduction in the oxygen-carrying capacity of the blood," and "[i]nhibition of the normal sweating responses resulting in increased body temperature." Id., at 94. Cocaine produces "[v]asoconstriction[,] [e]levated blood pressure," and "[p]ossible coronary artery spasms and myocardial infarction." Ibid.As for the immediacy of the District's concerns: We are not inclined to question-indeed, we could not possibly find clearly erroneous-the District Court's conclusion that "a large segment of the student body, particularly those in-663volved in interscholastic athletics, was in a state of rebellion," that "[d]isciplinary actions had reached 'epidemic proportions,'" and that "the rebellion was being fueled by alcohol and drug abuse as well as by the student's misperceptions about the drug culture." 796 F. Supp., at 1357. That is an immediate crisis of greater proportions than existed in Skinner, where we upheld the Government's drug-testing program based on findings of drug use by railroad employees nationwide, without proof that a problem existed on the particular railroads whose employees were subject to the test. See Skinner, 489 U. S., at 607. And of much greater proportions than existed in Von Raab, where there was no documented history of drug use by any customs officials. See Von Raab, 489 U. S., at 673; id., at 683 (SCALIA, J., dissenting).As to the efficacy of this means for addressing the problem: It seems to us self-evident that a drug problem largely fueled by the "role model" effect of athletes' drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs. Respondents argue that a "less intrusive means to the same end" was available, namely, "drug testing on suspicion of drug use." Brief for Respondents 45-46. We have repeatedly refused to declare that only the "least intrusive" search practicable can be reasonable under the Fourth Amendment. Skinner, supra, at 629, n. 9 (collecting cases). Respondents' alternative entails substantial difficulties-if it is indeed practicable at all. It may be impracticable, for one thing, simply because the parents who are willing to accept random drug testing for athletes are not willing to accept accusatory drug testing for all students, which transforms the process into a badge of shame. Respondents' proposal brings the risk that teachers will impose testing arbitrarily upon troublesome but not drug-likely students. It generates the expense of defending lawsuits that charge such arbitrary imposition, or that simply demand greater process before accusatory drug664testing is imposed. And not least of all, it adds to the everexpanding diversionary duties of schoolteachers the new function of spotting and bringing to account drug abuse, a task for which they are ill prepared, and which is not readily compatible with their vocation. Cf. Skinner, supra, at 628 (quoting 50 Fed. Reg. 31526 (1985)) (a drug impaired individual "will seldom display any outward 'signs detectable by the lay person or, in many cases, even the physician' "); Goss, 419 U. S., at 594 (Powell, J., dissenting) ("There is an ongoing relationship, one in which the teacher must occupy many roles-educator, adviser, friend, and, at times, parentsubstitute. It is rarely adversary in nature ... ") (footnote omitted). In many respects, we think, testing based on "suspicion" of drug use would not be better, but worse.3VITaking into account all the factors we have considered above-the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met3 There is no basis for the dissent's insinuation that in upholding the District's Policy we are equating the Fourth Amendment status of schoolchildren and prisoners, who, the dissent asserts, may have what it calls the "categorical protection" of a "strong preference for an individualized suspicion requirement," post, at 681. The case on which it relies for that proposition, Bell v. Wolfish, 441 U. S. 520 (1979), displays no stronger a preference for individualized suspicion than we do today. It reiterates the proposition on which we rely, that '''elaborate less-restrictivealternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers.''' Id., at 559, n. 40 (quoting United States v. Martinez-Fuerte, 428 U. S. 543, 556-557, n. 12 (1976)). Even Wolfish's arguendo "assum[ption] that the existence of less intrusive alternatives is relevant to the determination of the reasonableness of the particular search method at issue," 441 U. S., at 559, n. 40, does not support the dissent, for the opinion ultimately rejected the hypothesized alternative (as we do) on the ground that it would impair other policies important to the institution. See id., at 560, n. 40 (monitoring of visits instead of conducting body searches would destroy "the confidentiality and intimacy that these visits are intended to afford").665by the search-we conclude Vernonia's Policy is reasonable and hence constitutional.We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.4 Just as when the government conducts a search in its capacity as employer (a warrantless search of an absent employee's desk to obtain an urgently needed file, for example), the relevant question is whether that intrusion upon privacy is one that a reasonable employer might engage in, see O'Connor v. Ortega, 480 U. S. 709 (1987); so also when the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake. Given the findings of need made by the District Court, we conclude that in the present case it is.We may note that the primary guardians of Vernonia's schoolchildren appear to agree. The record shows no objection to this districtwide program by any parents other than the couple before us here-even though, as we have described, a public meeting was held to obtain parents' views. We find insufficient basis to contradict the judgment of Vernonia's parents, its school board, and the District Court, as to what was reasonably in the interest of these children under the circumstances.4 The dissent devotes a few meager paragraphs of its 21 pages to this central aspect of the testing program, see post, at 680-682, in the course of which it shows none of the interest in the original meaning of the Fourth Amendment displayed elsewhere in the opinion, see post, at 669-671. Of course at the time of the framing, as well as at the time of the adoption of the Fourteenth Amendment, children had substantially fewer "rights" than legislatures and courts confer upon them today. See 1 D. Kramer, Legal Rights of Children § 1.02, p. 9 (2d ed. 1994); Wald, Children's Rights:A Framework for Analysis, 12 U. C. D. L. Rev. 255, 256 (1979).666***The Ninth Circuit held that Vernonia's Policy not only violated the Fourth Amendment, but also, by reason of that violation, contravened Article I, § 9, of the Oregon Constitution. Our conclusion that the former holding was in error means that the latter holding rested on a flawed premise. We therefore vacate the judgment, and remand the case to the Court of Appeals for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1994SyllabusVERNONIA SCHOOL DISTRICT 47J v. ACTON ET UX., GUARDIANS AD LITEM FOR ACTONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 94-590. Argued March 28, 1995-Decided June 26,1995Motivated by the discovery that athletes were leaders in the student drug culture and concern that drug use increases the risk of sports-related injury, petitioner school district (District) adopted the Student Athlete Drug Policy (Policy), which authorizes random urinalysis drug testing of students who participate in its athletics programs. Respondent Acton was denied participation in his school's football program when he and his parents (also respondents) refused to consent to the testing. They then filed this suit, seeking declaratory and injunctive relief on the grounds that the Policy violated the Fourth and Fourteenth Amendments and the Oregon Constitution. The District Court denied the claims, but the Court of Appeals reversed, holding that the Policy violated both the Federal and State Constitutions.Held: The Policy is constitutional under the Fourth and Fourteenth Amendments. Pp. 652-666.(a) State-compelled collection and testing of urine constitutes a "search" under the Fourth Amendment. Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 617. Where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, the "reasonableness" of a search is judged by balancing the intrusion on the individual's Fourth Amendment interests against the promotion of legitimate governmental interests. Pp. 652-654.(b) The first factor to be considered in determining reasonableness is the nature of the privacy interest on which the search intrudes. Here, the subjects of the Policy are children who have been committed to the temporary custody of the State as schoolmaster; in that capacity, the State may exercise a degree of supervision and control greater than it could exercise over free adults. The requirements that public school children submit to physical examinations and be vaccinated indicate that they have a lesser privacy expectation with regard to medical examinations and procedures than the general population. Student athletes have even less of a legitimate privacy expectation, for an element of communal undress is inherent in athletic participation, and athletes are647subject to preseason physical exams and rules regulating their conduct. Pp. 654-657.(c) The privacy interests compromised by the process of obtaining urine samples under the Policy are negligible, since the conditions of collection are nearly identical to those typically encountered in public restrooms. In addition, the tests look only for standard drugs, not medical conditions, and the results are released to a limited group. Pp. 658-660.(d) The nature and immediacy of the governmental concern at issue, and the efficacy of this means for meeting it, also favor a finding of reasonableness. The importance of deterring drug use by all this Nation's schoolchildren cannot be doubted. Moreover, the Policy is directed more narrowly to drug use by athletes, where the risk of physical harm to the user and other players is high. The District Court's conclusion that the District's concerns were immediate is not clearly erroneous, and it is self-evident that a drug problem largely caused by athletes, and of particular danger to athletes, is effectively addressed by ensuring that athletes do not use drugs. The Fourth Amendment does not require that the "least intrusive" search be conducted, so respondents' argument that the drug testing could be based on suspicion of drug use, if true, would not be fatal; and that alternative entails its own substantial difficulties. Pp. 660-664.23 F.3d 1514, vacated and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and KENNEDY, THOMAS, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a concurring opinion, post, p. 666. O'CONNOR, J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ., joined, post, p.666.Timothy R. Volpert argued the cause for petitioner. With him on the briefs was Claudia Larkins.Richard H. Seamon argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Leonard Schaitman, and Edward Himmelfarb.648Full Text of Opinion

1972_71-909

MR. JUSTICE WHITE delivered the opinion of the Court.The Freedom of Information Act of 1966, 5 U.S.C. § 552, provides that Government agencies shall make available to the public a broad spectrum of information, but exempts from its mandate certain specified categories of information, including matters that are "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," § 552(b)(1), or are"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,"§ 552(b)(5). It is the construction and scope of these exemptions that are at issue here. Page 410 U. S. 75IRespondents' lawsuit began with an article that appeared in a Washington, D.C. newspaper in late July, 1971. The article indicated that the President had received conflicting recommendations on the advisability of the underground nuclear test scheduled for that coming fall and, in particular, noted that the "latest recommendations" were the product of "a departmental under-secretary committee named to investigate the controversy." Two days later, Congresswoman Patsy Mink, a respondent, sent a telegram to the President urgently requesting the "immediate release of recommendations and report by inter-departmental committee. . . ." When the request was denied, an action under the Freedom of Information Act was commenced by Congresswoman Mink and 32 of her colleagues in the House. [Footnote 1]Petitioners immediately moved for summary judgment on the ground that the materials sought were specifically exempted from disclosure under subsections (b)(1) and (b)(5) of the Act. [Footnote 2] In support of the motion, petitioners filed an affidavit of John N. Irwin II, the Under Secretary Page 410 U. S. 76 of State. Briefly, the affidavit states that Mr. Irwin was appointed by President Nixon as Chairman of an "Under Secretaries Committee," which was a part of the National Security Council system organized by the President "so that he could use it as an instrument for obtaining advice on important questions relating to our national security." The Committee was directed by the President in 1969"to review the annual underground nuclear test program and to encompass within this review requests for authorization of specific scheduled tests."Results of the Committee's reviews were to be transmitted to the President "in time to allow him to give them full consideration before the scheduled events." In � 5 of the affidavit, Mr. Irwin stated that, pursuant to "the foregoing directions from the President," the Under Secretaries Committee had prepared and transmitted to the President a report on the proposed underground nuclear test known as "Cannikin," scheduled to take place at Amchitka Island, Alaska. The report was said to have consisted of a covering memorandum from Mr. Irwin, the report of the Under Secretaries Committee, five documents attached to that report, and three additional letters separately sent to Mr. Irwin. [Footnote 3] Of the Page 410 U. S. 77 total of 10 documents, one, an Environmental Impact Statement prepared by AEC, was publicly available and was not in dispute. Each of the other nine was claimed in the Irwin affidavit to have been"prepared and used solely for transmittal to the President as advice and recommendations and set forth the views and opinions of the individuals and agencies preparing the documents so that the President might be fully apprised of varying viewpoints and have been used for no other purpose."In addition, at least eight (by now reduced to six) of the nine remaining documents were said to involve highly sensitive matter vital to the national defense and foreign policy, and were described as having been classified Top Secret or Secret pursuant to Executive Order 10501. [Footnote 4] Page 410 U. S. 78On the strength of this showing by petitioners, the District Court granted summary judgment in their favor on the ground that each of the nine documents sought was exempted from compelled disclosure by §§ (b)(1) and (b)(5) of the Act. The Court of Appeals reversed, concluding that subsection (b)(1) of the Act permits the withholding of only the secret portions of those documents bearing a separate classification under Executive Order 10501:"If the nonsecret components [of such documents] are separable from the secret remainder and my be read separately without distortion of meaning, they too should be disclosed."150 U.S.App.D.C. 233, 237, 464 F.2d 742, 746. The court instructed the District Judge to examine the classified documents "looking toward their possible separation for purposes of disclosure or nondisclosure." Ibid.In addition, the Court of Appeals concluded that all nine contested documents fell within subsection (b)(5) of the Act, but construed that exemption as shielding only the "decisional processes" reflected in internal Government memoranda, not "factual information" unless that information is "inextricably intertwined with policymaking processes." The court then ordered the District Judge to examine the documents in camera (including, presumably, any "nonsecret components" of the six classified documents) to determine if "factual data" could be separated out and disclosed "without impinging on the policymaking decisional processes intended to be protected by this exemption." We granted certiorari, 405 U.S. 974, and now reverse the judgment of the Court of Appeals. Page 410 U. S. 79IIThe Freedom of Information Act, 5 U.S.C. § 552, [Footnote 5] is a revision of § 3, the public disclosure section, of the Administrative Procedure Act, 5 U.S.C. § 1002 (1964 ed.). Section 3 was generally recognized as falling far short of its disclosure goals, and came to be looked upon more as a withholding statute than a disclosure statute. See S.Rep. No. 813, 89th Cong., 1st Sess., 5 (1965) (hereinafter S.Rep. No. 813); H.R.Rep. No. 1497, 89th Cong., 2d Sess., 5-6 (1966) (hereinafter H.R.Rep. No. 1497). The section was plagued with vague phrases, such as that exempting from disclosure "any function of the United States requiring secrecy in the public interest." Moreover, even "matters of official record" were only to be made available to "persons properly and directly concerned" with the information. And the section provided no remedy for wrongful withholding of information. The provisions of the Freedom of Information Act stand in sharp relief against those of § 3. The Act eliminates the "properly and directly concerned" test of access, stating repeatedly that official information shall be made available "to the public," "for public inspection." Subsection (b) of the Act creates nine exemptions from compelled disclosures. These exemptions are explicitly made exclusive, 5 U.S.C. § 552(c), and are plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed. Aggrieved citizens are given a speedy remedy in district courts, where "the court shall determine the matter de novo and the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(3). Noncompliance with court orders may be punished by contempt. Ibid. Page 410 U. S. 80Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands. Subsection (b) is part of this scheme, and represents the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses. As the Senate Committee explained, it was not"an easy task to balance the opposing interests, but it is not an impossible one, either. . . . Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure."S.Rep. No. 813, p. 3. [Footnote 6]It is in the context of the Act's attempt to provide a "workable formula" that "balances, and protects all interests," that the conflicting claims over the documents in this case must be considered. Page 410 U. S. 81ASubsection (b)(1) of the Act exempts from forced disclosure matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." According to the Irwin affidavit, the six documents for which Exemption 1 is now claimed were all duly classified Top Secret or Secret, pursuant to Executive Order 10501, 3 CFR 280 (Jan. 1, 1970). That order was promulgated under the authority of the President in 1953, 18 Fed.Reg. 7049, and, since that time, has served as the basis for the classification by the Executive Branch of information "which requires protection in the interests of national defense." [Footnote 7] We do not believe that Exemption 1 permits compelled disclosure of documents, such as the six here that were classified pursuant to this Executive Order. Nor does the Exemption permit in camera inspection of such documents to sift out so-called "nonsecret components." Obviously, this test was not the only alternative available. But Congress chose to follow the Executive's determination in these matters, and that choice must be honored.The language of Exemption 1 was chosen with care. According to the Senate Committee,"[t]he change of standard from 'in the public interest' is made both to delimit more narrowly the exception and to give it a more precise definition. The phrase 'public interest' in section 3(a) of the Administrative Procedure Act has been subject Page 410 U. S. 82 to conflicting interpretations, often colored by personal prejudices and predilections. It admits of no clear delineations."S.Rep. No. 813, p. 8. The House Committee similarly pointed out that Exemption 1 "both limits the present vague phrase, in the public interest,' and gives the area of necessary secrecy a more precise definition." H.R.Rep. No. 1407, p. 9. Manifestly, Exemption 1 was intended to dispel uncertainty with respect to public access to material affecting "national defense or foreign policy." Rather than some vague standard, the test was to be simply whether the President has determined by Executive Order that particular documents are to be kept secret. The language of the Act itself is sufficiently clear in this respect, but the legislative history disposes of any possible argument that Congress intended the Freedom of Information Act to subject executive security classifications to judicial review at the insistence of anyone who might seek to question them. Thus, the House Report stated with respect to subsection (b)(1) that"citizens both in and out of Government can agree to restrictions on categories of information which the President has determined must be kept secret to protect the national defense or to advance foreign policy, such as matters classified pursuant to Executive Order 10501."H.R.Rep. No. 1497, pp. 9-10. [Footnote 8] Similarly, Representative Page 410 U. S. 83 Moss, Chairman of the House Subcommittee that considered the bill, stated that the exemption "was intended to specifically recognize that Executive order [No. 10501]," and was drafted "in conformity with that Executive order." Hearings on Federal Public Records Law before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 52, 55 (1965) (hereinafter 1965 House Hearings). And a member of the Committee, Representative Gallagher, stated that the legislation and the Committee Report make it"crystal clear that the bill in no way affects categories of information which the President . . . has determined must be classified to protect the national defense or to advance foreign policy. These areas of information most generally are classified under Executive Order No. 10501."112 Cong.Rec. 13659.These same sources make untenable the argument that classification of material under Executive Order 10501 is somehow insufficient for Exemption 1 purposes, or that the exemption contemplates the issuance of orders, under some other authority, for each document the Executive may want protected from disclosure under the Act. Congress could certainly have provided that the Executive Branch adopt new procedures, or it could have established its own procedures -- subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering. Cf. United States v. Reynolds, 345 U. S. 1 (1953). But Exemption 1 does neither. It states with the utmost directness that the Act exempts matters "specifically required by Executive order to be kept secret." Congress was well aware of the Order, and obviously accepted determinations pursuant to that Order as qualifying for exempt status under § (b)(1). In this context, it is patently unrealistic to Page 410 U. S. 84 argue that the "Order has nothing to do with the first exemption." [Footnote 9]What has been said thus far makes wholly untenable any claim that the Act intended to subject the soundness of executive security classifications to judicial review at the insistence of any objecting citizen. It also negates the proposition that Exemption 1 authorizes or permits in camera inspection of a contested document bearing a single classification so that the court may separate the secret from the supposedly nonsecret and order disclosure of the latter. The Court of Appeals was thus in error. The Irwin affidavit stated that each of the six documents for which Exemption 1 is now claimed "are and have been classified" Top Secret and Secret "pursuant to Executive Order No. 10501," and as involving "highly sensitive matter that is vital to our national defense and foreign policy." The fact of those classifications and the documents' characterizations have never been disputed by respondents. Accordingly, upon such a showing and in such circumstances petitioners had met their burden of demonstrating that the documents were entitled to protection under Exemption 1, and the duty of the District Court under § 552(a)(3) was therefore at an end. [Footnote 10] Page 410 U. S. 85BDisclosure of the three documents conceded to be "unclassified" is resisted solely on the basis of subsection (b)(5) of the Act (hereafter Exemption 5). [Footnote 11] That Exemption was also invoked, alternatively, to support withholding the six documents for which Exemption 1 was claimed. It is beyond question that the Irwin affidavit, standing alone, is sufficient to establish that all of the documents involved in this litigation are "inter-agency or intra-agency" memoranda or "letters" that were used in the decisionmaking processes of the Executive Branch. By its terms, however, Exemption 5 creates an exemption for such documents only insofar as they "would not be available by law to a party . . . in litigation with the Page 410 U. S. 86 agency." 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. Drawing such a line between what may be withheld and what must be disclosed is not without difficulties. In many important respects, the rules governing discovery in such litigation have remained uncertain from the very beginnings of the Republic. [Footnote 12] Moreover, at best, the discovery rules can only be applied under Exemption 5 by way of rough analogies. For example, we do not know whether the Government is to be treated as though it were a prosecutor, a civil plaintiff, or a defendant. [Footnote 13] Nor does the Act, by its terms, permit inquiry into particularized needs of the individual seeking the information, although such an inquiry would ordinarily be made of a private litigant. Still, the legislative history of Exemption 5 demonstrates that Congress intended to incorporate generally the recognized rule that "confidential intra-agency advisory opinions . . . are privileged from inspection." Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct.Cl. Page 410 U. S. 87 38, 49, 157 F. Supp. 939, 946 (1958) (Reed, J.). As Mr. Justice Reed there stated:"There is a public policy involved in this claim of privilege for this advisory opinion -- the policy of open, frank discussion between subordinate and chief concerning administrative action."Id. at 48, 157 F. Supp. at 946. The importance of this underlying policy was echoed again and again during legislative analysis and discussions of Exemption 5:"It was pointed out in the comments of many of the agencies that it would be impossible to have any frank discussion of legal or policy matters in writing if all such writings were to be subjected to public scrutiny. It was argued, and with merit, that efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to 'operate in a fishbowl.' The committee is convinced of the merits of this general proposition, but it has attempted to delimit the exception as narrowly as consistent with efficient Government operation."S.Rep. No. 813, p. 9. See also H.R.Rep. No. 1497, p. 10. But the privilege that has been held to attach to intra-governmental memoranda clearly has finite limits, even in civil litigation. In each case, the question was whether production of the contested document would be "injurious to the consultative functions of government that the privilege of nondisclosure protects." Kaiser Aluminum & Chemical Corp., supra., at 49, 157 F. Supp. at 946. Thus, in the absence of a claim that disclosure would jeopardize state secrets, see United States v. Reynolds, 345 U. S. 1 (1953), memoranda consisting only of compiled factual material Page 410 U. S. 88 or purely factual material contained in deliberative memoranda and severable from its context would generally be available for discovery by private parties in litigation with the Government. [Footnote 14] Moreover, in applying the privilege, courts often were required to examine the disputed documents in camera in order to determine which should be turned over or withheld. [Footnote 15] We must Page 410 U. S. 89 assume, therefore, that Congress legislated against the backdrop of this case law, particularly since it expressly intended "to delimit the exception [5] as narrowly as consistent with efficient Government operation." S.Rep. No. 813, p. 9. See H.R.Rep. No. 1497, p. 10. Virtually all of the courts that have thus far applied Exemption 5 have recognized that it requires different treatment for materials reflecting deliberative or policymaking processes, on the one hand, and purely factual, investigative matters, on the other. [Footnote 16]Nothing in the legislative history of Exemption 5 is contrary to such a construction. When the bill that ultimately became the Freedom of Information Act, Page 410 U. S. 90 S. 1160, was introduced in the 89th Congress, it contained an exemption that excluded:"inter-agency or intra-agency memorandums or letters dealing solely with matters of law or policy. [Footnote 17]"This formulation was designed to permit "[a]ll factual material in Government records . . . to be made available to the public." S.Rep. No. 1219, 88th Cong., 2d Sess., 7 (1964). (Emphasis in original.) The formulation was severely criticized, however, on the ground that it would permit compelled disclosure of an otherwise private document simply because the document did not deal "solely" with legal or policy matters. Documents dealing with mixed questions of fact, law, and policy would inevitably, under the proposed exemption, become available to the public. [Footnote 18] As a result of this criticism, Page 410 U. S. 91 Exemption 5 was changed to substantially its present form. But plainly the change cannot be read as suggesting that all factual material was to be rendered exempt from compelled disclosure. Congress sensibly discarded a wooden exemption that could have meant disclosure of manifestly private and confidential policy recommendations simply because the document containing them also happened to contain factual data. That decision should not be taken, however, to embrace an equally wooden exemption permitting the withholding of factual material otherwise available on discovery merely because it was placed in a memorandum with matters of law, policy, or opinion. It appears to us that Exemption 5 contemplates that the public's access to internal memoranda will be governed by the same flexible, common sense approach that has long governed private parties' discovery of such documents involved in litigation with Government agencies. And, as noted, that approach extended and continues to extend to the discovery of purely factual material appearing in those documents in a form that is severable without compromising the private remainder of the documents.Petitioners further argue that, although in camera inspection and disclosure of "low-level, routine, factual reports" [Footnote 19] may be contemplated by Exemption 5, that type of document is not involved in this case. Rather, Page 410 U. S. 92 it is argued, the documents here were submitted directly to the President by top-level Government official, involve matters of major significance, and contain, by their very nature, a blending of factual presentations and policy recommendations that are necessarily "inextricably intertwined with policymaking processes." 150 U.S.App.D.C. at 237, 464 F.2d at 746. For these reasons, the petitioners object both to disclosure of any portions of the documents and to in camera inspection by the District Court.To some extent, this argument was answered by the Court of Appeals, for its remand expressly directed the District Judge to disclose only such factual material that is not "intertwined with policymaking processes" and that may safely be disclosed "without impinging on the policymaking decisional processes intended to be protected by this exemption." We have no reason to believe that, if petitioners' characterization of the documents is accurate, the District Judge would go beyond the limits of the remand and in any way compromise the confidentiality of deliberative information that is entitled to protection under Exemption 5.We believe, however, that the remand now ordered by the Court of Appeals is unnecessarily rigid. The Freedom of Information Act may be invoked by any member of "the public" -- without a showing of need -- to compel disclosure of confidential Government documents. The unmistakable implication of the decision below is that any member of the public invoking the Act may require that otherwise confidential documents be brought forward and placed before the District Court for in camera inspection -- no matter how little, if any, purely factual material may actually be contained therein. Exemption 5 mandates no such result. As was said in Page 410 U. S. 93 Kaiser Aluminum & Chemical Corp., 141 Ct.Cl. at 50, 157 F.Supp. at 947:"It seems . . . obvious that the very purpose of the privilege, the encouragement of open expression of opinion as to governmental policy, is somewhat impaired by a requirement to submit the evidence even [in camera]."Plainly, in some situations, in camera inspection will be necessary and appropriate. But it need not be automatic. An agency should be given the opportunity, by means of detailed affidavits or oral testimony, to establish to the satisfaction of the District Court that the documents sought fall clearly beyond the range of material that would be available to a private party in litigation with the agency. The burden is, of course, on the agency resisting disclosure, 5 U.S.C. 552(a)(3), and, if it fails to meet its burden without in camera inspection, the District Court may order such inspection. But the agency may demonstrate, by surrounding circumstances, that particular documents are purely advisory, and contain no separable, factual information. A representative document of those sought may be selected for in camera inspection. And, of course, the agency may itself disclose the factual portions of the contested documents and attempt to show, again by circumstances, that the excised portions constitute the barebones of protected matter. In short, in camera inspection of all documents is not a necessary or inevitable tool in every case. Others are available. Cf. United States v. Reynolds, 345 U. S. 1 (1953). In the present case, the petitioners proceeded on the theory that all of the nine documents were exempt from disclosure in their entirety under Exemption 5 by virtue of their use in the decisionmaking process. On remand, petitioners are entitled to attempt to demonstrate the propriety of withholding any documents, or portions Page 410 U. S. 94 thereof, by means short of submitting them for in camera inspection.The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtEPA v. Mink, 410 U.S. 73 (1973)Environmental Protection Agency v. MinkNo. 71-909Argued November 9, 1972Decided January 22, 1973410 U.S. 73SyllabusRespondent Members of Congress brought suit under the Freedom of Information Act of 1966 to compel disclosure of nine documents that various officials had prepared for the President concerning a scheduled underground nuclear test. All but three were classified as Top Secret or Secret under E.O. 10501, and petitioners represented that all were inter-agency or intra-agency documents used in the Executive Branch's decisionmaking processes. The District Court granted petitioners' motion for summary judgment on the grounds that each of the documents was exempt from compelled disclosure by 5 U.S.C. § 552(b)(1) (hereafter Exemption 1), excluding matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," and § 552(b)(5) (hereafter Exemption 5), excluding "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." The Court of Appeals reversed, concluding (a) that Exemption 1 permits nondisclosure of only the secret portions of classified documents but requires disclosure of the nonsecret components if separable, and (b) that Exemption 5 shields only governmental "decisional processes" and not factual information unless "inextricably intertwined with policymaking processes." The District Court was ordered to examine the documents in camera to determine both aspects of separability.Held:1. Exemption 1 does not permit compelled disclosure of the six classified documents or in camera inspection to sift out "non-secret components," and petitioners met their burden of demonstrating that the documents were entitled to protection under that exemption. Pp. 410 U. S. 79-84.2. Exemption 5 does not require that otherwise confidential documents be made available for a district court's in camera inspection regardless of how little, if any, purely factual material they contain. In implying that such inspection be automatic, the Court of Appeals order was overly rigid, and petitioners should be afforded the opportunity of demonstrating by means short of Page 410 U. S. 74 in camera inspection that the documents sought are clearly beyond the range of material that would be available to a private part in litigation with a Government agency. Pp. 410 U. S. 85-94.150 U.S. App. D.C. 233, 464 F.2d 742, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and POWELL, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 410 U. S. 94. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 410 U. S. 95. DOUGLAS, J., filed a dissenting opinion, post, p. 410 U. S. 105. REHNQUIST, J., tool no part in the consideration or decision of the case.

1976_75-1693

MR JUSTICE STEWART delivered the opinion of the Court.The respondent, Gary Darrell Allison, an inmate of a North Carolina penitentiary, petitioned a Federal District Court for a writ of habeas corpus. The court dismissed his petition without a hearing, and the Court of Appeals reversed, ruling that, in the circumstances of this case, summary dismissal was improper. We granted certiorari to review the judgment of the Court of Appeals.IAllison was indicted by a North Carolina grand jury for breaking and entering, attempted safe robbery, and possession of burglary tools. At his arraignment, where he was represented by court-appointed counsel, he initially pleaded not guilty. But after learning that his codefendant planned to plead guilty, he entered a guilty plea to a single count of attempted safe robbery, for which the minimum prison sentence was 10 years and the maximum was life. N.C.Gen.Stat. § 14-89.1 (1969).In accord with the procedure for taking guilty pleas then in effect in North Carolina, the judge in open court read from a printed form 13 questions, generally concerning the defendant's understanding of the charge, its consequences, and the voluntariness of his plea. Allison answered "yes" or "no" to each question, and the court clerk transcribed those responses on a copy of the form, which Allison signed. So far as the record shows, there was no questioning beyond this routine; no inquiry was made of either defense counsel or prosecutor. Two questions from the form are of particular relevance to the issues before us: Question No. 8 -- "Do you Page 431 U. S. 66 understand that upon your plea of guilty you could be imprisoned for as much as minimum [sic] of 10 years to life?" to which Allison answered "Yes"; and Question No. 11 -- "Has the Solicitor, or your lawyer, or any policeman, law officer or anyone else made any promises or threat to you to influence you to plead guilty in this case?" to which Allison answered "No."The trial judge then accepted the plea by signing his name at the bottom of the form under a text entitled "Adjudication," which recited the three charges for which Allison had been indicted, that he had been fully advised of his rights, was in fact guilty, and pleaded guilty to attempted safe robbery "freely, understandingly and voluntarily," with full awareness of the consequences, and "without undue . . . compulsion . . . duress, [or] promise of leniency." [Footnote 1] Three days later, at a Page 431 U. S. 67 sentencing hearing, of which there is no record whatsoever, Allison was sentenced to 17-21 years in prison.After unsuccessfully exhausting a state collateral remedy, Page 431 U. S. 68 Allison filed a pro se petition in a Federal District Court seeking a writ of habeas corpus. The petition alleged:"[H]is guilty plea was induced by an unkept promise, and therefore was not the free and willing choice of the petitioner, and should be set aside by this Court. An unkept bargain which has induced a guilty plea is grounds for relief. Santobello v. New York, 404 U. S. 257, 404 U. S. 267 (1971)."Pet. for Cert. 14. The petition went on to explain and support this allegation as follows:"The petitioner was led to believe and did believe, by Mr. Pickard [Allison's attorney], that he Mr. N. Glenn Page 431 U. S. 69 Pickard had talked the case over with the Solicitor and the Judge, and that, if the petitioner would plea[d] guilty, that he would only get a 10-year sentence of penal servitude. This conversation, where the petitioner was assured that, if he plea[ded] guilty, he would only get ten years was witnessed by another party other than the petitioner and counsel.""* * * *" "The petitioner believing that he was only going to get a ten-year active sentence, allowed himself to be pled guilty to the charge of attempted safe robbery, and was shocked by the Court with a 17-21 year sentence.""* * * *" "The petitioner was promised by his Attorney, who had consulted presumably with the Judge and Solicitor, that he was only going to get a ten-year sentence, and therefore because of this unkept bargain, he is entitled to relief in this Court.""* * * *" "The petitioner is aware of the fact that he was questioned by the trial Judge prior to sentencing, but as he thought he was only going to get ten years, and had been instructed to answer the questions, so that the Court would accept the guilty plea, this fact does not preclude him from raising this matter, especially since he was not given the promised sentence by the Court.""* * * *" ". . . The fact that the Judge, said that he could get more, did not affect the belief of the petitioner that he was only going to get a ten-year sentence."The petitioner here, Warden Blackledge, filed a motion to dismiss and attached to it the "transcript" of the plea hearing, consisting of nothing more than the printed form filled in by the clerk and signed by Allison and the state court judge. The motion contended that the form conclusively showed that Page 431 U. S. 70 Allison had chosen to plead guilty knowingly, voluntarily, and with full awareness of the consequences. The Federal District Court agreed that the printed form "conclusively shows that [Allison] was carefully examined by the Court before the plea was accepted. Therefore, it must stand." Pet. for Cert. 18. Construing Allison's petition as alleging merely that his lawyer's prediction of the severity of the sentence turned out to be inaccurate, the District Court found no basis for relief and, accordingly, dismissed the petition.One week later, Allison filed a petition for rehearing. He contended that his statements during the guilty plea proceeding in the state court were "evidentiary, but NOT conclusory" (App 17); that, if true the allegations in his petition entitled him to relief; and that he deserved a chance to establish their truth. Apparently impressed by these arguments and recognizing that Allison was alleging more than a mere "prediction" by his lawyer, the District Court referred the rehearing petition to a United States Magistrate, who directed Allison to submit evidence in support of his allegations. After an inconclusive exchange of correspondence, the Magistrate concluded that, despite "ample opportunity," Allison had failed to comply with the directive, and recommended that the petition for rehearing be denied. The District Court accepted the Magistrate's recommendation and denied the petition. A motion for reconsideration was also denied.The Court of Appeals for the Fourth Circuit reversed. It held that Allison's allegation of a broken promise, as amplified by the explanation that his lawyer instructed him to deny the existence of any promises, was not foreclosed by his responses to the form questions at the state guilty plea proceeding. The appellate court reasoned that, when a pro se, indigent prisoner makes allegations that, if proved, would entitle him to habeas corpus relief, he should not be required to prove his allegations in advance of an evidentiary hearing, at least in the absence of counteraffidavits conclusively proving their Page 431 U. S. 71 falsity. The case was therefore remanded for an evidentiary hearing. 533 F.2d 894.The petitioner warden sought review in this Court, 28 U.S.C. § 1254(1), and we granted certiorari, 429 U.S. 814, to consider the significant federal question presented.IIWhatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned. The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings. [Footnote 2]These advantages can be secured, however, only if dispositions by guilty plea are accorded a great measure of finality. To allow indiscriminate hearings in federal postconviction proceedings, whether for federal prisoners under 28 U.S.C. § 2255 or state prisoners under 28 U.S.C. §§ 2241-2254, would eliminate the chief virtues of the plea system -- speed, economy, and finality. And there is reason for concern about that prospect. More often than not, a prisoner has everything to gain and nothing to lose from filing a collateral attack upon his guilty plea. If he succeeds in vacating the judgment of Page 431 U. S. 72 conviction, retrial may be difficult. If he convinces a court that his plea was induced by an advantageous plea agreement that was violated, he may obtain the benefit of its terms. A collateral attack may also be inspired by "a mere desire to be freed temporarily from the confines of the prison." Price v. Johnston, 334 U. S. 266, 334 U. S. 284-285; accord, Machibroda v. United States, 368 U. S. 487, 368 U. S. 497 (Clark, J., dissenting).Yet arrayed against the interest in finality is the very purpose of the writ of habeas corpus -- to safeguard a person's freedom from detention in violation of constitutional guarantees. Harris v. Nelson, 394 U. S. 286, 394 U. S. 290-291."The writ of habeas corpus has played a great role in the history of human freedom. It has been the judicial method of lifting undue restraints upon personal liberty."Price v. Johnston, supra at 334 U. S. 269. And a prisoner in custody after pleading guilty, no less than one tried and convicted by a jury, is entitled to avail himself of the writ in challenging the constitutionality of his custody.In Machibroda v. United States, supra, the defendant had pleaded guilty in federal court to bank robbery charges and been sentenced to 40 years in prison. He later filed a § 2255 motion alleging that his plea had been induced by an Assistant United States Attorney's promises that his sentence would not exceed 20 years, that the prosecutor had admonished him not to tell his lawyer about the agreement, and that the trial judge had wholly failed to inquire whether the guilty plea was made voluntarily before accepting it. This Court noted that the allegations, if proved, would entitle the defendant to relief, and that they raised an issue of fact that could not be resolved simply on the basis of an affidavit from the prosecutor denying the allegations. Because those allegations "related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light," 368 U.S. at 368 U. S. 494-495, and were not so "vague [or] conclusory," id. at Page 431 U. S. 73 368 U. S. 495, as to permit summary disposition, the Court ruled that the defendant was entitled to the opportunity to substantiate them at an evidentiary hearing.The later case of Fontaine v. United States, 411 U. S. 213, followed the same approach. The defendant there, having waived counsel, had also pleaded guilty to federal bank robbery charges. Before accepting the plea, the District Judge addressed the defendant personally, and the defendant stated, in substance,"that his plea was given voluntarily and knowingly, that he understood the nature of the charge and the consequences of the plea, and that he was, in fact, guilty."Id. at 411 U. S. 213-214. The defendant later filed a § 2255 motion to vacate his sentence on the ground that his plea had been coerced "by a combination of fear, coercive police tactics, and illness, including mental illness." 411 U.S. at 411 U. S. 214. The motion included supporting factual allegations, as well as hospital records documenting some of the contentions.Although noting that, in collaterally attacking a plea of guilty, a prisoner "may not ordinarily repudiate" statements made to the sentencing judge when the plea was entered, the Court observed that no procedural device for the taking of guilty pleas is so perfect in design and exercise as to warrant a per se rule rendering it "uniformly invulnerable to subsequent challenge." Id. at 411 U. S. 215. Because the record of the plea hearing did not, in view of the allegations made, "conclusively show that the prisoner [was] entitled to no relief,'" 28 U.S.C. § 2255, the Court ruled that the prisoner should be given an evidentiary hearing. [Footnote 3]These cases do not in the least reduce the force of the original plea hearing. For the representations of the defendant, Page 431 U. S. 74 his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that, in the face of the record, are wholly incredible. Machibroda, supra, at 368 U. S. 495-496 (§ 2255); Price v. Johnston, supra, at 334 U. S. 286-287 (§ 2243). [Footnote 4]What Machibroda and Fontaine indisputably teach, however, is that the barrier of the plea or sentencing proceeding record, although imposing, is not invariably insurmountable. [Footnote 5] Page 431 U. S. 75 In administering the writ of habeas corpus and its § 2255 counterpart, the federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant's representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment. [Footnote 6]IIIThe allegations in this case were not in themselves so "vague [or] conclusory," Machibroda, 368 U.S. at 368 U. S. 495, as to warrant dismissal for that reason alone. [Footnote 7] Allison alleged as a ground for relief that his plea was induced by an unkept promise. [Footnote 8] But he did not stop there. He proceeded to Page 431 U. S. 76 elaborate upon this claim with specific factual allegations. The petition indicated exactly what the terms of the promise were; when, where, and by whom the promise had been made; and the identity of one witness to its communication. The critical question is whether these allegations, when viewed against the record of the plea hearing, were so "palpably incredible," ibid., so "patently frivolous or false," Herman v. Claudy, 350 U. S. 116, 350 U. S. 119, as to warrant summary dismissal. In the light of the nature of the record of the proceeding at which the guilty plea was accepted, and of the ambiguous status of the process of plea bargaining at the time the guilty plea was made, we conclude that Allison's petition should not have been summarily dismissed.Only recently has plea bargaining become a visible practice accepted as a legitimate component in the administration of criminal justice. For decades, it was a sub rosa process shrouded in secrecy and deliberately concealed by participating defendants, defense lawyers, prosecutors, and even judges. [Footnote 9] Indeed, it was not until our decision in Santobello v. New York, 404 U. S. 257, that lingering doubts about the legitimacy of the practice were finally dispelled. [Footnote 10]Allison was arraigned a mere 37 days after the Santobello decision was announced, under a North Carolina procedure that had not been modified in light of Santobello or earlier Page 431 U. S. 77 decisions of this Court [Footnote 11] recognizing the process of plea bargaining. [Footnote 12] That procedure itself reflected the atmosphere of secrecy which then characterized plea bargaining generally. No transcript of the proceeding was made. The only record was a standard printed form. There is no way of knowing whether the trial judge in any way deviated from or supplemented the text of the form. The record is silent as to what statements Allison, his lawyer, or the prosecutor might have made regarding promised sentencing concessions. And there is no record at all of the sentencing hearing three days later, at which one of the participants might well have made a statement shedding light upon the veracity of the allegations Allison later advanced.The litany of form questions followed by the trial judge at arraignment nowhere indicated to Allison (or indeed to the lawyers involved) that plea bargaining was a legitimate practice that could be freely disclosed in open court. Neither lawyer was asked to disclose any agreement that had been reached, or sentencing recommendation that had been promised. The process thus did nothing to dispel a defendant's belief that any bargain struck must remain concealed -- a belief here allegedly reinforced by the admonition of Allison's lawyer himself that disclosure could jeopardize the agreement. Rather than challenging respondent's counsel's contention at oral argument in this Court that "at that time in North Carolina plea bargains were never disclosed in response to such a question on such a form," Tr. of Oral Arg. 25, counsel for the petitioners conceded at oral argument that "[t]hat form was a minimum inquiry." Id. at 49.Although "[l]ogically the general inquiry should elicit information about plea bargaining, . . . it seldom has in the Page 431 U. S. 78 past." Advisory Committee Notes to 1974 Amendment of Fed.Rule Crim.Proc. 11, 18 U.S.C.App. p. 1304 (1970 ed., Supp. V). [Footnote 13] Particularly if, as Allison alleged, he was advised by counsel to conceal any plea bargain, his denial that any promises had been made might have been a courtroom ritual more sham than real. [Footnote 14] We thus cannot conclude that the allegations in Allison's habeas corpus petition, when measured against the "record" of the arraignment, were so "patently false or frivolous" [Footnote 15] as to warrant summary dismissal. [Footnote 16] Page 431 U. S. 79North Carolina has recently undertaken major revisions of its plea-bargaining procedures, in part to prevent the very kind of problem now before us. [Footnote 17] Plea bargaining is expressly legitimated. N.C.Gen.Stat. § 15A-1021, and Official Commentary (1975). The judge is directed to advise the defendant that courts have approved plea bargaining, and he may thus admit to any promises without fear of jeopardizing an advantageous agreement or prejudicing himself in the judge's eyes. See Brief for Respondent, App. D. Specific inquiry about whether a plea bargain has been struck is then made not only of the defendant, but also of his counsel and the prosecutor. N.C.Gen.Stat. §§ 15A-1023(a), (c) (1975). Finally, the entire proceeding is to be transcribed verbatim. § 15A-1026, as amended (Int. Supp. 1976). [Footnote 18]Had these commendable procedures been followed in the present case, Allison's petition would have been cast in a very different light. The careful explication of the legitimacy of plea bargaining. the questioning of both lawyers, and the verbatim record of their answers at the guilty plea proceedings would almost surely have shown whether any bargain did Page 431 U. S. 80 exist and, if so, insured that it was not ignored. [Footnote 19] But the salutary reforms recently implemented by North Carolina highlight even more sharply the deficiencies in the record before the District Court in the present case. [Footnote 20]This is not to say that every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing. As in civil cases generally, there exists a procedure whose purpose is to test whether facially adequate allegations have sufficient basis in fact to warrant plenary presentation of evidence. That procedure is, of course, the motion for summary judgment. Upon remand, the warden will be free to make such a motion, supporting it with whatever proof he wishes to attach. [Footnote 21] If he chooses to do so, Allison will then be required either to produce some contrary proof indicating that there is a genuine issue of fact to be Page 431 U. S. 81 resolved by the District Court or to explain his inability to provide such proof. Fed.Rules Civ.Proc. 56(e), (f).Moreover, as is now expressly provided in the Rules Governing Habeas Corpus Cases, the district judge (or a magistrate to whom the case may be referred) [Footnote 22] may employ a variety of measures in an effort to avoid the need for an evidentiary hearing. Under Rule 6, [Footnote 23] a party may request and the judge may direct that discovery take place, and "there may be instances in which discovery would be appropriate [before an evidentiary hearing, and would show such a hearing] to be unnecessary. . . ." Advisory Committee note to Rule 6, Rules Governing Habeas Corpus Cases, 28 U.S.C. Page 431 U. S. 82 p. 268 (1976 ed.). Under Rule 7, [Footnote 24] the judge can direct expansion of the record to include ay appropriate material that"enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing. [Footnote 25]"In short, it may turn out upon remand that a full evidentiary hearing is not required. But Allison is"entitled to careful consideration and plenary processing of [his claim,] including full opportunity for presentation of the relevant Page 431 U. S. 83 facts."Harris v. Nelson, 394 U.S. at 394 U. S. 298. See Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv.L.Rev. 321, 337-338 (1973). [Footnote 26] Upon that understanding, the judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtBlackledge v. Allison, 431 U.S. 63 (1977)Blackledge v. AllisonNo. 75-1693Argued February 22, 1977Decided May 2, 1977431 U.S. 63SyllabusAt the arraignment of respondent, who had been indicted in North Carolina for various state criminal offenses, he entered a guilty plea to a single count of attempted safe robbery. In response to two of various form questions that under then-applicable procedures were put by the trial judge to those entering guilty pleas, respondent acknowledged that he understood that he could be imprisoned for a minimum of 10 years to a maximum of life, and that no one had made promises or threats to influence him to plead guilty. Without further questioning, the judge accepted the plea on an "Adjudication" form, which, inter alia, recited that respondent had pleaded guilty to attempted safe robbery "freely, understandingly and voluntarily," with full awareness of the consequences, and "without undue . . . compulsion . . . duress, [or] promise of leniency." At a sentencing hearing three days later, respondent was sentenced to 17-21 years. After unsuccessfully exhausting a state collateral remedy, respondent sought a writ of habeas corpus in a Federal District Court, claiming that his guilty plea had been induced by the promise of his attorney, who presumably had consulted with the judge and Solicitor, that he would get only a 10-year sentence. He also stated that he was aware that he had been questioned by the judge before sentencing, but thought that he was going to get only 10 years, and had been instructed to answer the questions so that the court would accept the guilty plea. The District Court granted a motion to dismiss the petition, on the ground that the form conclusively showed that respondent had chosen to plead guilty knowingly, voluntarily, and with full awareness of the consequences. The Court of Appeals reversed, holding that respondent's allegation of a broken promise, as amplified by the explanation that his lawyer instructed him to deny the existence of any promises, was not foreclosed by his responses to the form questions, and that he was entitled to an evidentiary hearing, at least in the absence of counteraffidavits conclusively proving the falsity of respondent's allegations.Held: In light of the nature of the record of the proceeding at which the guilty plea was accepted, and of the ambiguous status of the process of plea bargaining at the time the guilty plea was made, respondent's petition for a writ of habeas corpus should not have been summarily dismissed. Pp. 431 U. S. 71-83. Page 431 U. S. 64(a) Although the plea or sentencing proceeding record constitutes a formidable barrier to a collateral attack on a guilty plea, that barrier is not insurmountable, and, in administering the writ of habeas corpus, federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant's representations at the time of his guilty plea were so much the product of such factors as misunderstanding, duress, or misrepresentation as to make that plea a constitutionally inadequate basis for imprisonment. Machibroda v. United States, 368 U. S. 487; Fontaine v. United States, 411 U. S. 213. Pp. 431 U. S. 71-75(b) Respondent's allegations were not so vague or conclusory as to warrant dismissal for that reason alone. He elaborated on his claim with specific factual allegations, indicating exactly what the terms of the promise were; when, where, and by whom it had been made; and the identity of a witness to its communication. Pp. 431 U. S. 75-76.(c) The North Carolina plea-bargaining procedure that was in effect at the time of respondent's arraignment reflected the atmosphere of secrecy that then characterized plea bargaining, whose legitimacy was not finally established until Santobello v. New York, 404 U. S. 257, which was decided not long before respondent's arraignment. There was no transcript of the proceeding, but only a standard printed form, and there is no way of knowing if the trial judge deviated from the form or whether any statements were made regarding promised sentencing concessions; nor is there any record of the sentencing hearing. The form questions did nothing to dispel a defendant's belief that any plea bargain had to be concealed. Particularly, if, as respondent alleged, he was advised by counsel to conceal any plea bargain, his denial that promises had been made might have been mere courtroom ritual. Pp. 431 U. S. 76-78.(d) Though, through such procedures as summary judgment, discovery, or expansion of the record, it may develop that a full evidentiary hearing is not required, respondent is "entitled to careful consideration and plenary processing of [his claim,] including full opportunity for presentation of the relevant facts." Harris v. Nelson, 394 U. S. 286, 394 U. S. 298. Pp. 431 U. S. 80-82.533 F.2d 894, affirmed.STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 431 U. S. 83. BURGER, C.J., concurred in the judgment. REHNQUIST, J., took no part in the consideration or decision of the case. Page 431 U. S. 65

1986_86-108

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Federal Rule of Appellate Procedure 23(c) provides that, when the Government appeals a decision granting a writ of habeas corpus, the habeas petitioner shall be released from custody"unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order."Federal Rule of Appellate Procedure 23(d) states that initial orders issued pursuant to Rule 23(c) shall"govern review in the court of appeals and in the Supreme Court unless for special reasons shown . . . the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made. [Footnote 1]"In this case, we are asked to decide what factors these provisions allow a court to consider in determining whether to release a state prisoner pending appeal of a district court order granting habeas reliefIn January, 1981, respondent Dana Braunskill was convicted in the Superior Court of New Jersey, Law Division, of sexual assault and unlawful possession of a weapon, in violation of N.J.Stat.Ann. §§ 2C:14-2, 2C:39-5(d) (West 1982 and Supp.1986-1987), and was sentenced to eight years' Page 481 U. S. 773 imprisonment. The Appellate Division of the Superior Court affirmed the convictions, and the New Jersey Supreme Court denied review.Respondent then, in 1985, filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. Finding that respondent's Sixth Amendment rights had been violated at his trial, the District Court granted respondent's petition and ordered that "a writ of habeas corpus shall issue unless within 30 days the State of New Jersey shall afford [respondent] a new trial." 629 F. Supp. 511, 526 (1986). Petitioners subsequently moved the District Court to stay its order pending appeal. Relying on Carter v. Rafferty, 781 F.2d 993, 997 (CA3 1986), the District Court determined that it could grant petitioners' request only if they demonstrated that there was risk that respondent would not appear for subsequent proceedings. The court found that petitioners had failed to make such a showing, and denied the motion.Petitioners then filed a motion in the United States Court of Appeals for the Third Circuit, seeking a stay of the District Court's order releasing respondent. The Court of Appeals denied the motion by order dated May 27, 1986. We granted certiorari to review the Court of Appeals' denial of the stay, 479 U.S. 881 (1986), and now vacate and remand the case to the Court of Appeals. [Footnote 2]In Carter v. Rafferty, supra, the authority governing the Court of Appeals decision in this case, [Footnote 3] the court held that Page 481 U. S. 774 federal courts deciding whether to release a successful habeas petitioner pending appeal may consider the petitioner's risk of flight, but not his danger to the community. The court observed that Rule 23(c) creates a presumption that a prisoner who has received habeas relief is entitled to release from custody. Moreover, the Carter court reasoned, the principal interests that a federal court may consider under Rules 23(c) and (d) are those of ensuring the appearance of the prisoner in subsequent federal proceedings and returning the prisoner to state custody if the State prevails on appeal of the award of habeas relief. To conclude otherwise, the court determined, would result in federal court intrusion into matters of traditional State concern.We do not believe that federal courts, in deciding whether to stay pending appeal a district court order granting relief to a habeas petitioner, are as restricted as the Carter court thought. Rule 23(c) undoubtedly creates a presumption of release from custody in such cases, [Footnote 4] but that presumption may be overcome if the judge rendering the decision, or an appellate court or judge, "otherwise orders." Rule 23(d) creates a presumption of correctness for the order of a district court entered pursuant to Rule 23(c), whether that order enlarges the petitioner or refuses to enlarge him, but this presumption may be overcome in the appellate court "for special reasons shown." We think a resort to the history of habeas practice in the federal courts and the traditional standards governing stays of civil judgments in those courts is helpful in illuminating the generality of these terms of Rules 23(c) and (d). Page 481 U. S. 775Federal habeas corpus practice, as reflected by the decisions of this Court, indicates that a court has broad discretion in conditioning a judgment granting habeas relief. Federal courts are authorized, under 28 U.S.C. § 2243, to dispose of habeas corpus matters "as law and justice require." In construing § 2243 and its predecessors, this Court has repeatedly stated that federal courts may delay the release of a successful habeas petitioner in order to provide the State an opportunity to correct the constitutional violation found by the court. See, e.g., Rogers v. Richmond, 365 U. S. 534, 365 U. S. 549 (1961); Dowd v. United States ex rel. Cook, 340 U. S. 206, 340 U. S. 210 (1951); In re Bonner, 151 U. S. 242, 151 U. S. 261-262 (1894). Even in 1894, when this Court's Rule 34 indicated that enlargement of successful habeas petitioners pending the State's appeal was mandatory, see n 4, supra, the Court interpreted the predecessor of § 2243 as vesting a federal court "with the largest power to control and direct the form of judgment to be entered in cases brought up before it on habeas corpus." Id. at 151 U. S. 261. We think it would make little sense if this broad discretion allowed in fashioning the judgment granting relief to a habeas petitioner were to evaporate suddenly when either the district court or the court of appeals turns to consideration of whether the judgment granting habeas relief should be stayed pending appeal. Although the predecessor of Rule 23 apparently required this strange result, see n 4, supra, the language of the current Rule undoubtedly permits a more sensible interpretation.In those instances where a Member of this Court has been confronted with the question whether a prevailing habeas petitioner should be released pending the Court's disposition of the State's petition for certiorari, our approach has been to follow the general standards for staying a civil judgment. See Tate v. Rose, 466 U. S. 1301 (1984) (O'CONNOR, J., in chambers); cf. Sumner v. Mata, 446 U. S. 1302 (1980) (REHNQUIST, J., in chambers). This practice reflects the common-sense notion that a court's denial of enlargement to a Page 481 U. S. 776 successful habeas petitioner pending review of the order granting habeas relief has the same effect as the court's issuance of a stay of that order. Our decisions have consistently recognized that habeas corpus proceedings are civil in nature. See, e.g., Browder v. Director, Illinois Dept. of Corrections, 434 U. S. 257, 434 U. S. 269 (1978). [Footnote 5] It is therefore logical to conclude that the general standards governing stays of civil judgments should also guide courts when they must decide whether to release a habeas petitioner pending the State's appeal; and such a conclusion is quite consistent with the general language contained in Rules 23(c) and (d).Different Rules of Procedure govern the power of district courts and courts of appeals to stay an order pending appeal. See Fed.Rule Civ.Proc. 62(c); Fed.Rule App. Proc. 8(a). Under both Rules, however, the factors regulating the issuance of a stay are generally the same: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. See, e.g., Virginia Petroleum Jobbers Assn. v. FPC, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958); Washington Metropolitan Area Comm'n v. Holiday Tours, Inc., 182 U.S.App.D.C. 220, 221-222, 559 F.2d 841, 842-844 (1977); Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (CA11 1986); Accident Fund v. Baerwaldt, 579 F. Supp. 724, 725 (WD Mich. Page 481 U. S. 777 1984); see generally 11 C. Wright & A. Miller, Federal Practice and Procedure § 2904 (1973).For the reasons stated, we think that a court making an initial custody determination under Rule 23(c) should be guided not only by the language of the Rule itself but also by the factors traditionally considered in deciding whether to stay a judgment in a civil case. There is presumption in favor of enlargement of the petitioner with or without surety, but it may be overcome if the traditional stay factors tip the balance against it. A court reviewing an initial custody determination pursuant to Rule 23(d) must accord a presumption of correctness to the initial custody determination made pursuant to Rule 23(c), whether that order directs release or continues custody, but that presumption, too, may be overcome if the traditional stay factors so indicate. The construction of Rule 23 we here adopt accords both the court making the initial custody determination and the court reviewing that determination considerably more latitude than that apparently thought appropriate by the Court of Appeals for the Third Circuit in this case.Since the traditional stay factors contemplate individualized judgments in each case, the formula cannot be reduced to a set of rigid rules. The Court of Appeals in Carter v. Rafferty, 781 F.2d 993 (CA3 1986), agreed that the possibility of flight should be taken into consideration, and we concur in that determination. We also think that, if the State establishes that there is a risk that the prisoner will pose a danger to the public if released, the court may take that factor into consideration in determining whether or not to enlarge him. The State's interest in continuing custody and rehabilitation pending a final determination of the case on appeal is also a factor to be considered; it will be strongest where the remaining portion of the sentence to be served is long, and weakest where there is little of the sentence remaining to be served.The interest of the habeas petitioner in release pending appeal, always substantial, will be strongest where the factors Page 481 U. S. 778 mentioned in the preceding paragraph are weakest. The balance may depend to a large extent upon determination of the State's prospects of success in its appeal. Where the State establishes that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release. Cf. McSurely v. McClellan, 225 U.S.App.D.C. 67, 75, 697 F.2d 309, 317 (1982); O'Bryan v. Estelle, 691 F.2d 706, 708 (CA5 1982), cert. denied, 465 U.S. 1013 (1984); Ruiz v. Estelle, 650 F.2d 555, 565-566 (CA5 1981). Where the State's showing on the merits falls below this level, the preference for release should control.Respondent contends, and the Court of Appeals apparently agreed, that matters of "traditional state concern" such as the petitioner's danger to the community ought not to be considered in determining whether a successful habeas petitioner should be enlarged pending appeal. Respondent supports his argument by stating that this Court's decisions embody the view that state governments should have the opportunity to vindicate state interests in their own court systems. We do not at all dispute this observation, but note that here we have the Attorney General of New Jersey speaking for that State and seeking a stay of the District Court order enlarging a habeas petitioner pending appeal. Whatever strain on federal-state relations arising as a result of federal habeas jurisdiction comes because of the granting of habeas relief itself, and not the existence of any discretion in habeas courts to refuse enlargement of a successful habeas petitioner pending appeal. Until the final determination of the petitioner's habeas claim, federal courts must decide applications for stay of release using factors similar to those used in deciding whether to stay other federal court judgments.Respondent finally contends that staying the release of a successful habeas petitioner pending appeal because of dangerousness, Page 481 U. S. 779 even when guided by the standards we have enunciated, is"repugnant to the concept of substantive due process, which . . . prohibits the total deprivation of liberty simply as a means of preventing future crimes."United States v. Salerno, 794 F.2d 64, 71-72 (CA2 1986). We have just held, in reversing the judgment of the Court of Appeals for the Second Circuit in Salerno, however, that the quoted language is an incorrect statement of constitutional law. Ante p. 481 U. S. 739. But we also think that a successful habeas petitioner is in a considerably less favorable position than a pretrial arrestee, such as the respondent in Salerno, to challenge his continued detention pending appeal. Unlike a pretrial arrestee, a state habeas petitioner has been adjudged guilty beyond a reasonable doubt by a judge or jury, and this adjudication of guilt has been upheld by the appellate courts of the State. Although the decision of a district court granting habeas relief will have held that the judgment of conviction is constitutionally infirm, that determination itself may be overturned on appeal before the State must retry the petitioner. This being the case, we do not agree that the Due Process Clause prohibits a court from considering, along with the other factors that we previously described, the dangerousness of a habeas petitioner as part of its decision whether to release the petitioner pending appeal.We think that the District Court and the Court of Appeals, in relying on the latter's decision inCarter v. Rafferty, supra, took too limited a view of the discretion allowed to federal courts under Rules 23(c) and (d) in staying pending appeal an order directing the release of a habeas petitioner. We therefore vacate the judgment of the Court of Appeals denying petitioner's application for a stay in this case, and remand the case to that court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtHilton v. Braunskill, 481 U.S. 770 (1987)Hilton v. BraunskillNo. 86-108Argued March 25, 1987Decided May 26, 1987481 U.S. 770SyllabusFederal Rule of Appellate Procedure 23(c) provides that, when a State appeals a federal court decision granting a writ of habeas corpus to a state prisoner, the habeas petitioner shall be released from custody "unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order." Rule 23(d) states that initial orders issued pursuant to Rule 23(c) shall"govern review in the court of appeals and in the Supreme Court unless for special reasons shown . . . the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made."Respondent, a prisoner serving a state court sentence, filed a habeas corpus petition in the Federal District Court, which found that his constitutional rights had been violated at his state court trial and ordered that a writ of habeas corpus "shall issue unless within 30 days" the State granted a new trial. The court subsequently denied petitioners' motion to stay its order pending appeal, basing its denial on Third Circuit authority that, under Rules 23(c) and (d), a federal court deciding whether to release a successful habeas petitioner could consider only the risk that the prisoner would not appear for subsequent proceedings, not his danger to the community, and finding that petitioners had failed to show such risk here. The Court of Appeals denied petitioners' motion for a stay of the District Court's order releasing respondent.Held: In deciding under Rules 23(c) and (d) whether to stay pending appeal a district court order granting relief to a habeas petitioner, federal courts are not restricted to considering only the petitioner's risk of flight. The history of federal habeas corpus practice indicates that a court has broad discretion in conditioning a judgment granting habeas relief, and a court's denial of enlargement to a successful habeas petitioner pending review of the habeas order has the same effect as a stay of that order. Since habeas corpus proceedings are civil in nature, federal courts, in deciding under the Rule whether to release a successful habeas petitioner pending the State's appeal, should be guided by the traditional standards governing stays of civil judgments -- whether the stay applicant has made a strong showing that he is likely to succeed on the merits; Page 481 U. S. 771 whether the applicant will be irreparably injured absent a stay; whether issuance of the stay will substantially injure the other parties interested in the proceeding; and where the public interest lies. Although Rule 23(c) creates a presumption favoring release of a successful habeas petitioner pending appeal, and Rule 23(d) creates a presumption of correctness of the District Court's order, such presumptions may be overcome if so indicated by the traditional stay factors, which contemplate individualized judgments in each case. Thus, consideration may be given to such factors as the possibility of the prisoner's flight; the risk that the prisoner will pose a danger to the public if released; the State's interest in continuing custody and rehabilitation pending a final determination on appeal; and the prisoner's substantial interest in release pending appeal. Respondent's contention that matters of "traditional state concern" such as the prisoner's danger to the community should not be considered in determining whether to release the prisoner pending appeal is unpersuasive. Any strain on federal-state relations that arises from federal habeas jurisdiction comes about because of the granting of habeas relief itself, not the existence of habeas courts' discretion to refuse enlargement of a successful habeas petitioner pending appeal. Nor is there any merit to respondent's contention that staying a successful habeas petitioner's release pending appeal because of dangerousness is repugnant to the concept of substantive due process. Pp. 481 U. S. 774-779.Vacated and remanded.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, POWELL, STEVENS, O'CONNOR, and SCALIA, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 481 U. S. 780. Page 481 U. S. 772

1992_92-5653

relevant; and remove the States' power to structure the consideration of mitigating evidence under, e. g., Boyde. Pp. 366-373.773 S. W. 2d 322, affirmed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, SCALIA, and THOMAS, JJ., joined. SCALIA, J., post, p. 373, and THOMAS, J., post, p. 374, filed concurring opinions. O'CONNOR, J., filed a dissenting opinion, in which BLACKMUN, STEVENS, and SOUTER, JJ., joined, post, p. 374.Michael E. Tigar argued the cause for petitioner. With him on the briefs were Robert C. Owen and Jeffrey J. Pokorak.Dana E. Parker, Assistant Attorney General of Texas, argued the cause for respondent. With her on the brief were Dan Morales, Attorney General, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Michael P. Hodge, Assistant Attorney General. *JUSTICE KENNEDY delivered the opinion of the Court. For the second time this Term, we consider a constitutional challenge to the former Texas capital sentencing system. Like the condemned prisoner in Graham v. Collins, 506 U. S. 461 (1993), the petitioner here claims that the Texas special issues system in effect until 1991 did not allow his jury to give adequate mitigating effect to evidence of his youth. Graham was a federal habeas corpus proceeding where the petitioner had to confront the rule of Teague v. Lane, 489 U. S. 288 (1989), barring the application of new rules of law on federal habeas corpus. In part because the relief sought by Graham would have required a new rule within the meaning of Teague, we denied relief. The instant case comes to us on direct review of petitioner's conviction and sentence, so we consider it without the constraints of Teague, though of course with the customary respect for the* Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.353doctrine of stare decisis. Based upon our precedents, including much of the reasoning in Graham, we find the Texas procedures as applied in this case were consistent with the Eighth and Fourteenth Amendments.IPetitioner, then 19 years of age, and his companion, Amanda Miles, decided to rob Allsup's convenience store in Snyder, Texas, on March 23, 1986. After agreeing that there should be no witnesses to the crime, the pair went to the store to survey its layout and, in particular, to determine the number of employees working in the store that evening. They found that the only employee present during the predawn hours was a clerk, Jack Huddleston. Petitioner and Miles left the store to make their final plans.They returned to Allsup's a short time later. Petitioner, a handgun in his pocket, reentered the store with Miles. After waiting for other customers to leave, petitioner asked Huddleston whether the store had any orange juice in one gallon plastic jugs because there were none on the shelves. Saying he would check, Huddleston went to the store's cooler. Petitioner followed Huddleston there, told Huddleston the store was being robbed, and ordered him to lie on the floor. After Huddleston complied with the order and placed his hands behind his head, petitioner shot him in the back of the neck, killing him. When petitioner emerged from the cooler, Miles had emptied the cash registers of about $160. They each grabbed a carton of cigarettes and fled.In April 1986, a few weeks after this crime, petitioner was arrested for a subsequent robbery and attempted murder of a store clerk in Colorado City, Texas. He confessed to the murder of Jack Huddleston and the robbery of Allsup's and was tried and convicted of capital murder. The homicide qualified as a capital offense under Texas law because petitioner intentionally or knowingly caused Huddleston's death354and the murder was carried out in the course of committing a robbery. Tex. Penal Code Ann. §§ 19.02(a)(1), 19.03(a)(2) (1989).After the jury determined that petitioner was guilty of capital murder, a separate punishment phase of the proceedings was conducted in which petitioner's sentence was determined. In conformity with the Texas capital sentencing statute then in effect, see Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981),1 the trial court instructed the jury that it was to answer two special issues:"[(1)] Was the conduct of the Defendant, Dorsie Lee Johnson, Jr., that caused the death of the deceased, committed deliberately and with the reasonable expectation that the death of the deceased or another would result?"[(2)] Is there a probability that the Defendant, Dorsie Lee Johnson, Jr., would commit criminal acts of violence that would constitute a continuing threat to society?" 2 App. 148-149.The trial court made clear to the jury the consequences of its answers to the special issues:"You are further instructed that if the jury returns affirmative or 'yes' answer [sic] to all the Issues submitted, this Court shall sentence the Defendant to death. If the jury returns a negative or 'no' answer to any Issue submitted, the Court shall sentence the Defendant to life in prison." Id., at 146.1 The Texas Legislature amended the statute in 1991. See Art. 37.071(2) (Vernon Supp. 1992-1993).2 The statute also required that a third special issue, asking whether the defendant's act was "unreasonable in response to the provocation, if any, by the deceased," be submitted to the jury "if raised by the evidence." Art. 37.071(b)(3) (Vernon 1981). Petitioner does not contest the trial court's decision not to submit the third special issue in this case.355The jury was instructed not to consider or discuss the possibility of parole. Id., at 147. The trial court also instructed the jury as follows concerning its consideration of mitigating evidence:"In determining each of these Issues, you may take into consideration all the evidence submitted to you in the trial of this case, whether aggravating or mitigating in nature, that is, all the evidence in the first part of the trial when you were called upon to determine the guilt or innocence of the Defendant and all the evidence, if any, in the second part of the trial wherein you are called upon to determine the answers to the Special Issues." Ibid.Although petitioner's counsel filed various objections to the jury charge, there was no request that a more expansive instruction be given concerning any particular mitigating circumstance, including petitioner's youth.In anticipation of the trial court's instructions, the State during the punishment phase of the proceedings presented numerous witnesses who testified to petitioner's violent tendencies. The most serious evidence related to the April convenience store robbery in Colorado City. Witnesses testified that petitioner had shot that store clerk in the face, resulting in the victim's permanent disfigurement and brain damage. Other witnesses testified that petitioner had fired two shots at a man outside a restaurant in Snyder only six days after the murder of Huddleston, and a sheriff's deputy who worked in the jail where petitioner was being held testified that petitioner had threatened to "get" the deputy when he got out of jail.Petitioner's acts of violence were not limited to strangers.A longtime friend of petitioner, Beverly Johnson, testified that in early 1986 petitioner had hit her, thrown a large rock at her head, and pointed a gun at her on several occasions. Petitioner's girlfriend, Paula Williams, reported that, after356petitioner had become angry with her one afternoon in 1986, he threatened her with an axe. There were other incidents, of less gravity, before 1986. One of petitioner's classmates testified that petitioner cut him with a piece of glass while they were in the seventh grade. Another classmate testified that petitioner also cut him with glass just a year later, and there was additional evidence presented that petitioner had stabbed a third classmate with a pencil.The State established that the crimes committed in 1986 were not petitioner's first experience with the criminal justice system. Petitioner had been convicted in 1985 of a store burglary in Waco, Texas. Petitioner twice violated the terms of probation for that offense by smoking marijuana. Petitioner was still on probation when he committed the Huddleston murder.The defense presented petitioner's father, Dorsie Johnson, Sr., as its only witness. The elder Johnson attributed his son's criminal activities to his drug use and his youth. When asked by defense counsel whether his son at the age of 19 was "a real mature person," petitioner's father answered:"No, no. Age of nineteen? No, sir. That, also, I find to be a foolish age. That's a foolish age. They tend to want to be macho, built-up, trying to step into manhood. You're not mature-lized for it." Id., at 27.At the close of his testimony, Johnson summarized the role that he thought youth had played in his son's crime:"[A]ll I can say is I still think that a kid eighteen or nineteen years old has an undeveloped mind, undeveloped sense of assembling not-I don't say what is right or wrong, but the evaluation of it, how much, you know, that might be-well, he just don't-he just don't evaluate what is worth-what's worth and what's isn't like he should like a thirty or thirty-five year old man would. He would take under consideration a lot of things that a younger person that age wouldn't." Id., at 47.357The father also testified that his son had been a regular churchgoer and his problems were attributable in large part to the death of his mother following a stroke in 1984 and the murder of his sister in 1985. Finally, the senior Johnson testified to his son's remorse over the killing of Huddleston.At the voir dire phase of the proceedings, during which more than 90 prospective jurors were questioned over the course of 15 days, petitioner's counsel asked the venirepersons whether they believed that people were capable of change and whether the venirepersons had ever done things as youths that they would not do now. See, e. g., Tr. of Voir Dire in No. 5575 (132d Jud. Dist. Ct., Scurry County, Tex.), pp. 1526-1529 (Juror Swigert); id., at 1691-1692 (Juror Freeman); id., at 2366 (Juror Witte); id., at 2630-2632 (Juror Raborn).3 Petitioner's counsel returned to this theme in his closing argument:"The question-the real question, I think, is whether you believe that there is a possibility that he can change. You will remember that that was one thing every one of you told me you agreed-every one of you agreed with me that people can change. If you agree that people can change, then that means that Dorsie can change and that takes question two [regarding future dangerousness] out of the realm of probability and into possibility,3 The colloquy on this point between petitioner's counsel and Juror Raborn is illustrative of the discussions had with the other jurors:"Q. Okay. Do you feel that-let me ask you this. Do you feel a person who is-or a young person will do things that they will not do in later years, thirty or forty-"A. I believe that."Q. Do you believe that people can change?"A. Yes, I believe they can. I've known some that have."Q. Do you think that the way a person acts in the present or the past or how he has acted in the past is an absolute indicator of what he will do in the future, thirty or forty years down the road?"A. No, not on down the line. Like I say, you can change." Tr. of Voir Dire, at 2630-2631.358you see, because if he can change, then it is no longer probable that he will do these things, but only possible that he can and will do these things, you see."If people couldn't change, if you could say I know people cannot change, then you could say probably. But every one of you knows in your heart and in your mind that people can and people do change and Dorsie Johnson can change and, therefore, the answer to question two should be no." App.81.Counsel also urged the jury to remember the testimony of petitioner's father. Id., at 73-74.The jury was instructed that the State bore the burden of proving each special issue beyond a reasonable doubt. Id., at 145. A unanimous jury found that the answer to both special issues was yes, and the trial court sentenced petitioner to death, as required by law. Tex. Code Crim. Proc. Ann., Art. 37.071(e) (Vernon 1981).On appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence after rejecting petitioner's seven allegations of error, none of which involved a challenge to the punishment-phase jury instructions. 773 S. W. 2d 322 (1989). Five days after that state court ruling, we issued our opinion in Penry v. Lynaugh, 492 U. S. 302 (1989). Petitioner filed a motion for rehearing in the Texas Court of Criminal Appeals arguing, among other points, that the special issues did not allow for adequate consideration of his youth. Citing Penry, petitioner claimed that a separate instruction should have been given that would have allowed the jury to consider petitioner's age as a mitigating factor. Although petitioner had not requested such an instruction at trial and had not argued the point prior to the rehearing stage on appeal, no procedural bar was interposed. Instead, the Court of Criminal Appeals considered the argument on the merits and rejected it. After noting that it had already indicated in Lackey v. State, 819 S. W. 2d 111, 134 (Tex. Crim. App. 1989), that youth was relevant to the jury's consider-359ation of the second special issue, the court reasoned that "[i]f a juror believed that [petitioner's] violent actions were a result of his youth, that same juror would naturally believe that [petitioner] would cease to behave violently as he grew older." App. 180. The court concluded that "the jury was able to express a reasoned moral response to [petitioner's] mitigating evidence within the scope of the art. 37.071 instructions given to them by the trial court." Id., at 180-181.Petitioner filed a petition for certiorari, which we granted. 506 U. S. 1090 (1993).II AThis is the latest in a series of decisions in which the Court has explained the requirements imposed by the Eighth and Fourteenth Amendments regarding consideration of mitigating circumstances by sentencers in capital cases. The earliest case in the decisional line is Furman v. Georgia, 408 U. S. 238 (1972). At the time of Furman, sentencing juries had almost complete discretion in determining whether a given defendant would be sentenced to death, resulting in a system in which there was "no meaningful basis for distinguishing the few cases in which [death was] imposed from the many cases in which it [was] not." Id., at 313 (WHITE, J., concurring). Although no two Justices could agree on a single rationale, a majority of the Court in Furman concluded that this system was "cruel and unusual" within the meaning of the Eighth Amendment. The guiding principle that emerged from Furman was that States were required to channel the discretion of sentencing juries in order to avoid a system in which the death penalty would be imposed in a "wanto[n]" and "freakis[h]" manner. Id., at 310 (Stewart, J., concurring).Four Terms after Furman, we decided five cases, in opinions issued on the same day, concerning the constitutionality of various capital sentencing systems. Gregg v. Georgia,360428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); Woodson v. North Carolina, 428 U. S. 280 (1976); Roberts v. Louisiana, 428 U. S. 325 (1976). In the wake of Furman, at least 35 States had abandoned sentencing schemes that vested complete discretion in juries in favor of systems that either (i) "specif[ied] the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence," or (ii) "ma[de] the death penalty mandatory for certain crimes." Gregg, supra, at 179-180 (opinion of Stewart, Powell, and STEVENS, JJ.). In the five cases, the controlling joint opinion of three Justices reaffirmed the principle of Furman that "discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." 428 U. S., at 189; accord, Proffitt, supra, at 258 (opinion of Stewart, Powell, and STEVENS, JJ.).Based upon this principle, it might have been thought that statutes mandating imposition of the death penalty if a defendant was found guilty of certain crimes would be consistent with the Constitution. But the joint opinions of Justices Stewart, Powell, and STEVENS indicated that there was a second principle, in some tension with the first, to be considered in assessing the constitutionality of a capital sentencing scheme. According to the three Justices, "consideration of the character and record of the individual offender and the circumstances of the particular offense [is] a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson, supra, at 304 (plurality opinion); accord, Gregg, supra, at 189-190, n. 38 (opinion of Stewart, Powell, and STEVENS, JJ.); Jurek, supra, at 273-274 (opinion of Stewart, Powell, and STEVENS, JJ.); Roberts, supra, at 333 (plurality opinion of Stewart, Powell, and STEVENS, JJ.). Based upon this second principle, the Court struck down mandatory imposition of the death penalty for specified crimes as inconsistent with the requirements of the Eighth and Fourteenth361Amendments. See Woodson, supra, at 305; Roberts, supra, at 335-336.Two Terms later, a plurality of the Court in Lockett v.Ohio, 438 U. S. 586 (1978), refined the requirements related to the consideration of mitigating evidence by a capital sentencer. Unlike the mandatory schemes struck down in Woodson and Roberts in which all mitigating evidence was excluded, the Ohio system at issue in Lockett permitted a limited range of mitigating circumstances to be considered by the sentencer.4 The plurality nonetheless found this system to be unconstitutional, holding that "the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 438 U. S., at 604. A majority of the Court adopted the Lockett rule in Eddings v. Oklahoma, 455 U. S. 104 (1982); accord, Hitchcock v. Dugger, 481 U. S. 393, 398-399 (1987); Skipper v. South Carolina, 476 U. S. 1,4 (1986), and we have not altered the rule's central requirement. "Lockett and its progeny stand only for the proposition that a State may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all." McKoy v. North Carolina, 494 U. S. 433, 456 (1990) (KENNEDY, J., concurring4 Once an Ohio defendant was found guilty of aggravated murder involving at least one of seven aggravating circumstances, the judge was required to sentence the defendant to death unless at least one of three mitigating circumstances was present: (1) the victim induced or facilitated the offense; (2) it is unlikely the crime would have been committed but for the fact that the defendant was acting under duress, coercion, or strong provocation; or (3) the offense was primarily the product of the defendant's psychosis or mental deficiency. See Lockett, 438 U. S., at 607-608.362in judgment); see also Graham, 506 U. S., at 475; Saffle v. Parks, 494 U. S. 484, 490-491 (1990).Although Lockett and Eddings prevent a State from placing relevant mitigating evidence "beyond the effective reach of the sentencer," Graham, supra, at 475, those cases and others in that decisional line do not bar a State from guiding the sentencer's consideration of mitigating evidence. Indeed, we have held that "there is no ... constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence 'in an effort to achieve a more rational and equitable administration of the death penalty,'" Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion)); see also Saffle, supra, at 490.BThe Texas law under which petitioner was sentenced has been the principal concern of four previous opinions in our Court. See Jurek v. Texas, supra; Franklin v. Lynaugh, supra; Penry v. Lynaugh, 492 U. S. 302 (1989); Graham, supra. As we have mentioned, Jurek was included in the group of five cases addressing the post-Furman statutes in 1976.In Jurek, the joint opinion of Justices Stewart, Powell, and STEVENS first noted that there was no constitutional deficiency in the means used to narrow the group of offenders subject to capital punishment, the statute having adopted five different classifications of murder for that purpose. See Jurek, 428 U. S., at 270-271. Turning to the mitigation side of the sentencing system, the three Justices said: "[T]he constitutionality of the Texas procedures turns on whether the enumerated [special issues] allow consideration of particularized mitigating factors." Id., at 272. In assessing the constitutionality of the mitigation side of this scheme, the three Justices examined in detail only the second special issue, which asks whether" 'there is a probability that the defend-363ant would commit criminal acts of violence that would constitute a continuing threat to society.'" Although the statute did not define these terms, the joint opinion noted that the Texas Court of Criminal Appeals had indicated that it would interpret the question in a manner that allowed the defendant to bring all relevant mitigating evidence to the jury's attention:"'In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.' [Jurek v. State,] 522 S. W. 2d [934],939-940 [(Tex. Crim. App. 1975)]." Id., at 272-273.The joint opinion determined that the Texas system satisfied the requirements of the Eighth and Fourteenth Amendments concerning the consideration of mitigating evidence: "By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function." Id., at 276. Three other Justices agreed that the Texas system satisfied constitutional requirements. See id., at 277 (WHITE, J., concurring in judgment).We next considered a constitutional challenge involving the Texas special issues in Franklin v. Lynaugh, supra. Although the defendant in that case recognized that we had364upheld the constitutionality of the Texas system as a general matter in Jurek, he claimed that the special issues did not allow the jury to give adequate weight to his mitigating evidence concerning his good prison disciplinary record and that the jury, therefore, should have been instructed that it could consider this mitigating evidence independent of the special issues. 487 U. S., at 171-172. A plurality of the Court rejected the defendant's claim, holding that the second special issue provided an adequate vehicle for consideration of the defendant's prison record as it bore on his character. Id., at 178. The plurality also noted that Jurek foreclosed the defendant's argument that the jury was still entitled to cast an "independent" vote against the death penalty even if it answered yes to the special issues. 487 U. S., at 180. The plurality concluded that, with its special issues system, Texas had guided the jury's consideration of mitigating evidence while still providing for sufficient jury discretion. See id., at 182. Although JUSTICE O'CONNOR expressed reservations about the Texas scheme for other cases, she agreed that the special issues had not inhibited the jury's consideration of the defendant's mitigating evidence in that case. See id., at 183-186 (opinion concurring in judgment).The third case in which we considered the Texas statute is the pivotal one from petitioner's point of view, for there we set aside a capital sentence because the Texas special issues did not allow for sufficient consideration of the defendant's mitigating evidence. Penry v. Lynaugh, supra. In Penry, the condemned prisoner had presented mitigating evidence of his mental retardation and childhood abuse. We agreed that the jury instructions were too limited for the appropriate consideration of this mitigating evidence in light of Penry's particular circumstances. We noted that "[t]he jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence." 492 U. S., at 320. Absent any definition for the term "delib-365erately," we could not "be sure that the jury was able to give effect to the mitigating evidence ... in answering the first special issue," id., at 323, so we turned to the second special issue, future dangerousness. The evidence in the case suggested that Penry's mental retardation rendered him unable to learn from his mistakes. As a consequence, we decided the mitigating evidence was relevant to the second special issue "only as an aggravating factor because it suggests a 'yes' answer to the question of future dangerousness." Ibid. The Court concluded that the trial court had erred in not instructing the jury that it could "consider and give effect to the mitigating evidence of Penry's mental retardation and abused background by declining to impose the death penalty." Id., at 328. The Court was most explicit in rejecting the dissent's concern that Penry was seeking a new rule, in contravention of Teague v. Lane, 489 U. S. 288 (1989). Indeed, the Court characterized its holding in Penry as a straightforward application of our earlier rulings in Jurek, Lockett, and Eddings, making it clear that these cases can stand together with Penry. See Penry, 492 U. S., at 314-318.We confirmed this limited view of Penry and its scope in Graham v. Collins. There we confronted a claim by a defendant that the Texas system had not allowed for adequate consideration of mitigating evidence concerning his youth, family background, and positive character traits. In rejecting the contention that Penry dictated a ruling in the defendant's favor, we stated that Penry did not "effec[t] a sea change in this Court's view of the constitutionality of the former Texas death penalty statute," 506 U. S., at 474, and we noted that a contrary view of Penry would be inconsistent with the Penry Court's conclusion that it was not creating a "new rule," 506 U. S., at 474. We also did not accept the view that the Lockett and Eddings line of cases, upon which Penry rested, compelled a holding for the defendant in Graham:366"In those cases, the constitutional defect lay in the fact that relevant mitigating evidence was placed beyond the effective reach of the sentencer. In Lockett, Eddings, Skipper, and Hitchcock, the sentencer was precluded from even considering certain types of mitigating evidence. In Penry, the defendant's evidence was placed before the sentencer but the sentencer had no reliable means of giving mitigating effect to that evidence. In this case, however, Graham's mitigating evidence was not placed beyond the jury's effective reach." Graham, 506 U. S., at 475.In addition, we held that Graham's case differed from Penry in that "Graham's evidence-unlike Penry's-had mitigating relevance to the second special issue concerning his likely future dangerousness." 506 U. S., at 475. We concluded that, even with the benefit of the subsequent Penry decision, reasonable jurists at the time of Graham's sentencing "would [not] have deemed themselves compelled to accept Graham's claim." 506 U. S., at 477. Thus, we held that a ruling in favor of Graham would have required the impermissible application of a new rule under Teague. 506 U. S., at 477.IIIToday we are asked to take the step that would have been a new rule had we taken it in Graham. Like Graham, petitioner contends that the Texas sentencing system did not allow the jury to give adequate mitigating effect to the evidence of his youth. Unlike Graham, petitioner comes here on direct review, so Teague presents no bar to the rule he seeks. The force of stare decisis, though, which rests on considerations parallel in many respects to Teague, is applicable here. The interests of the State of Texas, and of the victims whose rights it must vindicate, ought not to be turned aside when the State relies upon an interpretation of the Eighth Amendment approved by this Court, absent demonstration that our earlier cases were themselves a mis-367interpretation of some constitutional command. See, e. g., Vasquez v. Hillery, 474 U. S. 254, 265-266 (1986); Arizona v. Rumsey, 467 U. S. 203, 212 (1984).There is no dispute that a defendant's youth is a relevant mitigating circumstance that must be within the effective reach of a capital sentencing jury if a death sentence is to meet the requirements of Lockett and Eddings. See, e. g., Sumner v. Shuman, 483 U. S. 66, 81-82 (1987); Eddings, 455 U. S., at 115; Lockett, 438 U. S., at 608 (plurality opinion). Our cases recognize that "youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage." Eddings, supra, at 115. A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and illconsidered actions and decisions. A sentencer in a capital case must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence.The question presented here is whether the Texas special issues allowed adequate consideration of petitioner's youth. An argument that youth can never be given proper mitigating force under the Texas scheme is inconsistent with our holdings in Jurek, Graham, and Penry itself. The standard against which we assess whether jury instructions satisfy the rule of Lockett and Eddings was set forth in Boyde v. California, 494 U. S. 370 (1990). There we held that a reviewing court must determine "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Id., at 380. Although the reasonable likelihood standard does not require that the defendant prove that it was more likely than not that the jury was prevented from giving effect to the evidence, the standard requires more than a mere possibility of such a bar.368Ibid. In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would-with a "commonsense understanding of the instructions in the light of all that has taken place at the trial." Id., at 381.We decide that there is no reasonable likelihood that the jury would have found itself foreclosed from considering the relevant aspects of petitioner's youth. Pursuant to the second special issue, the jury was instructed to decide whether there was "a probability that [petitioner] would commit criminal acts of violence that would constitute a continuing threat to society." App. 149. The jury also was told that, in answering the special issues, it could consider all the mitigating evidence that had been presented during the guilt and punishment phases of petitioner's trial. Id., at 147. Even on a cold record, one cannot be unmoved by the testimony of petitioner's father urging that his son's actions were due in large part to his youth. It strains credulity to suppose that the jury would have viewed the evidence of petitioner's youth as outside its effective reach in answering the second special issue. The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. We believe that there is ample room in the assessment of future dangerousness for a juror to take account of the difficulties of youth as a mitigating force in the sentencing determination. As we recognized in Graham, the fact that a juror might view the evidence of youth as aggravating, as opposed to mitigating, does not mean that the rule of Lockett is violated. Graham, 506 U. S., at 475-476. As long as the mitigating evidence is within "the effective reach of the sentencer," the requirements of the Eighth Amendment are satisfied. Ibid.369That the jury had a meaningful basis to consider the relevant mitigating qualities of petitioner's youth is what distinguishes this case from Penry. In Penry, there was expert medical testimony that the defendant was mentally retarded and that his condition prevented him from learning from experience. 492 U. S., at 308-309. Although the evidence of the mental illness fell short of providing Penry a defense to prosecution for his crimes, the Court held that the second special issue did not allow the jury to give mitigating effect to this evidence. Penry's condition left him unable to learn from his mistakes, and the Court reasoned that the only logical manner in which the evidence of his mental retardation could be considered within the future dangerousness inquiry was as an aggravating factor. Id., at 323. Penry remains the law and must be given a fair reading. The evidence of petitioner's youth, however, falls outside Penry's ambit. Unlike Penry's mental retardation, which rendered him unable to learn from his mistakes, the ill effects of youth that a defendant may experience are subject to change and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue.Petitioner does not contest that the evidence of youth could be given some effect under the second special issue. Instead, petitioner argues that the forward-looking perspective of the future dangerousness inquiry did not allow the jury to take account of how petitioner's youth bore upon his personal culpability for the murder he committed. According to petitioner, "[a] prediction of future behavior is not the same thing as an assessment of moral culpability for a crime already committed." Brief for Petitioner 38. Contrary to petitioner's suggestion, however, this forward-looking inquiry is not independent of an assessment of personal culpability. It is both logical and fair for the jury to make its determination of a defendant's future dangerousness by asking the extent to which youth influenced the defendant's conduct. See Skipper, 476 U. S., at 5 ("Consideration of a de-370fendant's past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing"). If any jurors believed that the transient qualities of petitioner's youth made him less culpable for the murder, there is no reasonable likelihood that those jurors would have deemed themselves foreclosed from considering that in evaluating petitioner's future dangerousness. It is true that Texas has structured consideration of the relevant qualities of petitioner's youth, but in so doing, the State still "allow[s] the jury to give effect to [this] mitigating evidence in making the sentencing decision." Saffle, 494 U. S., at 491. Although Texas might have provided other vehicles for consideration of petitioner's youth, no additional instruction beyond that given as to future dangerousness was required in order for the jury to be able to consider the mitigating qualities of youth presented to it.In a related argument, petitioner, quoting a portion of our decision in Penry, supra, at 328, claims that the jurors were not able to make a "reasoned moral response" to the evidence of petitioner's youth because the second special issue called for a narrow factual inquiry into future dangerousness. We, however, have previously interpreted the Texas special issues system as requiring jurors to "exercise a range of judgment and discretion." Adams v. Texas, 448 U. S. 38, 46 (1980). This view accords with a "commonsense understanding" of how the jurors were likely to view their instructions and to implement the charge that they were entitled to consider all mitigating evidence from both the trial and sentencing phases. Boyde, 494 U. S., at 381. The crucial term employed in the second special issue-"continuing threat to society" -affords the jury room for independent judgment in reaching its decision. Indeed, we cannot forget that "a Texas capital jury deliberating over the Special Issues is aware of the consequences of its answers, and is likely to weigh mitigating evidence as it formulates these answers in a manner similar to that employed by capital juries in371'pure balancing' States." Franklin, 487 U. S., at 182, n. 12 (plurality opinion). In Blystone v. Pennsylvania, 494 U. S. 299 (1990), four Members of the Court in dissent used the Texas statute as an example of a capital sentencing system that permitted the exercise of judgment. That opinion stated:"[The two special issues] require the jury to do more than find facts supporting a legislatively defined aggravating circumstance. Instead, by focusing on the deliberateness of the defendant's actions and his future dangerousness, the questions compel the jury to make a moral judgment about the severity of the crime and the defendant's culpability. The Texas statute directs the imposition of the death penalty only after the jury has decided that the defendant's actions were sufficiently egregious to warrant death." Id., at 322 (Brennan, J., dissenting).The Texas Court of Criminal Appeals' view of the future dangerousness inquiry supports our conclusion that consideration of the second special issue is a comprehensive inquiry that is more than a question of historical fact. In reviewing death sentences imposed under the former Texas system, that court has consistently looked to a nonexclusive list of eight factors, which includes the defendant's age, in deciding whether there was sufficient evidence to support a yes answer to the second special issue. See, e. g., Ellason v. State, 815 S. W. 2d 656, 660 (1991); Brasfield v. State, 600 S. W. 2d 288 (1980).There might have been a juror who, on the basis solely of sympathy or mercy, would have opted against the death penalty had there been a vehicle to do so under the Texas special issues scheme. But we have not construed the Lockett line of cases to mean that a jury must be able to dispense mercy on the basis of a sympathetic response to the defendant. Indeed, we have said that "[i]t would be very difficult372to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary." Saffle v. Parks, 494 U. S., at 493; see also California v. Brown, 479 U. S. 538, 542-543 (1987) (permitting an instruction that the jury could not base its sentencing decision on sympathy).For us to find a constitutional defect in petitioner's death sentence, we would have to alter in significant fashion this Court's capital sentencing jurisprudence. The first casualty of a holding in petitioner's favor would be Jurek. The inevitable consequence of petitioner's argument is that the Texas special issues system in almost every case would have to be supplemented by a further instruction. As we said in Graham:"[H]olding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues ... would be to require in all cases that a fourth 'special issue' be put to the jury: '''Does any mitigating evidence before you, whether or not relevant to the above [three] questions, lead you to believe that the death penalty should not be imposed?"'" 506 U. S., at 476 (quoting Franklin, supra, at 180, n. 10).In addition to overruling Jurek, accepting petitioner's arguments would entail an alteration of the rule of Lockett and Eddings. Instead of requiring that a jury be able to consider in some manner all of a defendant's relevant mitigating evidence, the rule would require that a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.The fundamental flaw in petitioner's position is its failure to recognize that "[t]here is a simple and logical difference between rules that govern what factors the jury must be373permitted to consider in making its sentencing decision and rules that govern how the State may guide the jury in considering and weighing those factors in reaching a decision." Saffle, supra, at 490. To rule in petitioner's favor, we would have to require that a jury be instructed in a manner that leaves it free to depart from the special issues in every case. This would, of course, remove all power on the part of the States to structure the consideration of mitigating evidence-a result we have been consistent in rejecting. See, e. g., Boyde, 494 U. S., at 377; Saffle, supra, at 493; Franklin, supra, at 181 (plurality opinion).The reconciliation of competing principles is the function of law. Our capital sentencing jurisprudence seeks to reconcile two competing, and valid, principles in Furman, which are to allow mitigating evidence to be considered and to guide the discretion of the sentencer. Our holding in Jurek reflected the understanding that the Texas sentencing scheme "accommodates both of these concerns." Franklin, supra, at 182 (plurality opinion). The special issues structure in this regard satisfies the Eighth Amendment and our precedents that interpret its force. There was no constitutional infirmity in its application here.The judgment of the Texas Court of Criminal Appeals is affirmed.It is so ordered

OCTOBER TERM, 1992SyllabusJOHNSON v. TEXASCERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS No. 92-5653. Argued April 26, 1993-Decided June 24, 1993A jury found petitioner Johnson guilty of capital murder for a crime he committed when he was 19 years old. In conformity with the Texas capital sentencing statute then in effect, the trial court instructed the jury during the trial's penalty phase to answer two special issues: (1) whether Johnson's conduct was committed deliberately and with the reasonable expectation that death would result, and (2) whether there was a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The jury was also instructed, inter alia, that in determining each of these issues, it could take into consideration all the evidence submitted to it, whether aggravating or mitigating, in either phase of the trial. A unanimous jury answered yes to both special issues, and the trial court sentenced Johnson to death, as required by law. Shortly after the State Court of Criminal Appeals affirmed the conviction and sentence, this Court issued Penry v. Lynaugh, 492 U. S. 302. In denying Johnson's motion for rehearing, the state appellate court rejected his contentions that the special issues did not allow his jury to give adequate mitigating effect to evidence of his youth and that Penry required a separate instruction on the question.Held: The Texas procedures as applied in this case were consistent with the Eighth and Fourteenth Amendments under this Court's precedents. Pp. 359-373.(a) A review of the Court's relevant decisions demonstrates the constitutional requirements regarding consideration of mitigating circumstances by sentencers in capital cases. Although the sentencer cannot be precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the particular offense that the defendant proffers as a basis for a sentence less than death, see, e. g., Lockett v. Ohio, 438 U. S. 586, 604 (plurality opinion); Eddings v. Oklahoma, 455 U. S. 104, States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty, see,(b) The Texas law under which Johnson was sentenced has been the principal concern of a series of opinions in this Court. Although, in Jurek v. Texas, 428 U. S. 262, 276, 277, six Justices agreed that, as a351general matter, the special issues system satisfied the foregoing constitutional requirements, the Court later held, in Penry v. Lynaugh, supra, that the system did not allow for sufficient consideration of the defendant's mitigating evidence of his mental retardation and childhood abuse in light of his particular circumstances, id., at 320-323, and that the trial court erred in not instructing the jury that it could consider and give effect to that mitigating evidence by declining to impose the death penalty, id., at 328. However, the Court concluded that it was not creating a new rule, and characterized its holding as a straightforward application of Jurek, Lockett, and Eddings, making it clear that these cases can stand together with Penry, see 492 U. S., at 314-318. The Court confirmed this limited view of Penry and its scope in Graham v. Collins, 506 U. S. 461, 474, and held that the defendant's mitigating evidence of his youth, family background, and positive character traits was not placed beyond the jury's effective reach by the Texas scheme, id., at 475. Pp. 362-366.(c) The Texas special issues allowed adequate consideration of Johnson's youth. There is no reasonable likelihood, see Boyde, supra, at 380, that Johnson's jury would have found itself foreclosed from considering the relevant aspects of his youth, since it received the second special issue instruction and was told to consider all mitigating evidence. That there is ample room in the future dangerousness assessment for a juror to take account of youth as a mitigating factor is what distinguishes this case from Penry, supra, at 323. There, the second special issue did not allow the jury to give mitigating effect to expert medical testimony that the defendant's mental retardation prevented him from learning from experience, since that evidence could only logically be considered within the future dangerousness inquiry as an aggravating factor. In contrast, youth's ill effects are subject to change as a defendant ages and, as a result, are readily comprehended as a mitigating factor in consideration of the second special issue. Because such consideration is a comprehensive inquiry that is more than a question of historical fact, the Court rejects Johnson's related arguments that the second special issue's forward-looking perspective and narrowness prevented the jury from, respectively, taking account of how his youth bore upon his personal culpability and making a "reasoned moral response" to the evidence of his youth. For the Court to find a constitutional defect in Johnson's sentence, it would have to overrule Jurek by requiring a further instruction whenever a defendant introduced mitigating evidence that had some arguable relevance beyond the special issues; alter the rule of Lockett and Eddings to require that a jury be able to give effect to mitigating evidence in every conceivable manner in which it might be352Full Text of Opinion

1976_76-60

MR. JUSTICE MARSHALL delivered the opinion of the Court.At issue in this case is the construction of § 4 of the Voting Rights Act of 1965, 42 U.S.C. § 1973b (1970 ed. and Supp. V). "The Voting Rights Act was designed by Congress to banish the blight of racial discrimination in voting." South Carolina v. Katzenbach, 383 U. S. 301, 383 U. S. 308 (1966). While the Act has had a dramatic effect in increasing the participation of black citizens in the electoral process, both as voters and elected officials, Congress has not viewed it as an unqualified success. [Footnote 1] Most recently, as part of the 1975 amendments to the Voting Rights Act, 89 Stat. 400, Congress extended the Act's strong protections to cover language minorities -- that is, citizens living in environments where the dominant language is not English. Congress concluded after extensive hearings that there was "overwhelming evidence" showing "the ingenuity and prevalence of discriminatory practices that have been used to dilute the voting strength and otherwise Page 432 U. S. 406 affect the voting righbs of language minorities." [Footnote 2] Concern was particularly expressd over the plight of Mexican-American citizens in Texas, a State that had not been covered by the 1965 Act. [Footnote 3] This case arises out of Texas' efforts to prevent application of the 1975 amendments to it.IPetitioners, the Governor and Secretary of State of Texas, filed suit in the District Court for the District of Columbia against the Attorney General of the United States and the Director of the Census. [Footnote 4] These officials are responsible for Page 432 U. S. 407 determining whether the preconditions for application of the Act to particular jurisdictions are met. See § 4(b) of the Act, 42 U.S.C. § 1973b(b) (1970 ed., Supp. V). [Footnote 5] Petitioners sought interlocutory injunctive relief to restrain official publication of respondents' determinations that Texas was covered by the 1975 amendments, and a "declaratory judgment" determining "how and under what circumstances the determinations . . . should be made." [Footnote 6] Pet. for Cert. 6.Respondents opposed the motion for a preliminary injunction, and moved to dismiss the suit for failure to state a claim upon which relief could be granted and for lack of jurisdiction to review determinations made under § 4(b). The jurisdictional argument was based on the final paragraph of § 4(b), Page 432 U. S. 408 which provides in pertinent part:"A determination or certification of the Attorney General or of the Director of the Census under this section . . . shall not be reviewable in any court. . . . "The District Court ruled, however, that this apparent preclusion of judicial review was not absolute. It found that there was jurisdiction to consider the "pure legal question" whether the Executive officials had correctly interpreted an Act of Congress. Reaching the merits of petitioners' claims, the District Court rejected them all and granted summary judgment for respondents. [Footnote 7]On appeal to the Court of Appeals for the District of Columbia Circuit, respondents discussed, but did not "take issue with," the jurisdictional ruling of the District Court. The Court of Appeals nevertheless considered the issue carefully, concluding:"It is . . . apparent that, even where the intent of Congress was to preclude judicial review, a limited jurisdiction exists in the court to review actions which, on their face, are plainly in excess of statutory authority. . . . The district court in the instant case was careful to note that the actual computations made by the Director of the Census were not within its jurisdiction to review, and that its scope of review was limited to determining whether the Director acted 'consistent with the apparent Page 432 U. S. 409 meaning of the statute.' Narrowly defined in this manner, the jurisdiction of the trial court to consider the Director's determinations is supported by precedent. . . ."Briscoe v. Levi, 175 U.S.App.D.C. 297, 303, 535 F.2d 1259, 1265 (1976). Turning to the merits of petitioners' procedural and statutory construction arguments, the Court of Appeals thoroughly analyzed the statute and the legislative history. It found that respondents had correctly interpreted the Act, and affirmed the judgment of the District Court. [Footnote 8]We granted certiorari sub nom. Briscoe v. Levi, 429 U.S. 997 (1976). Although respondents do not assert before us the jurisdictional objection raised in the District Court, we find that the courts below incorrectly concluded that they had power to review respondents' determinations that Texas was covered by the Act. See Philbrook v. Glodgett, 421 U. S. 707, 421 U. S. 721 (1975), and cases there cited. We therefore order dismissal of the complaint without reaching the merits of petitioners' claims.IISection 4(b) of the Voting Rights Act could hardly prohibit judicial review in more explicit terms. It states that a"determination or certification of the Attorney General or of the Page 432 U. S. 410 Director of the Census under this section . . . shall not be reviewable in any court and shall be effective upon publication in the Federal Register."The language is absolute on its face, and would appear to admit of no exceptions. The purposes and legislative history of the Act strongly support this straightforward interpretation.The Voting Rights Act was conceived by Congress as a stern and powerful remedy to combat"an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution."South Carolina v. Katzenbach, 383 U.S. at 383 U. S. 309. The stringent remedial provisions of the Act [Footnote 9] were based on Congress' finding that"case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered. . . ."Id. at 383 U. S. 328. The intention of the drafters of the Act was "to shift the advantage of time and inertia from the perpetrators of the evil to its victims." Ibid. Reading § 4(b) as completely precluding judicial review thus implements Congress' intention to eradicate the blight of voting discrimination with all possible speed.The drafters' specific comments on § 4(b) further support this view. The House Report stated that the coverage formula "requires certain factual determinations -- determinations that are final when made and not reviewable in court." H.R.Rep. No. 439, 89th Cong., 1st Sess., 25 (1965). The minority report criticized the Act precisely because it went into effect "without evidence, without a judicial proceeding or a Page 432 U. S. 411 hearing of any kind." Id. at 45; see also id. at 43. The Report of the Senate Judiciary Committee sponsors of the Act also described § 4 as requiring "factual determinations . . . that are not reviewable in court." S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, p. 22 (1965).Congress was well aware, however, that the simple formula of § 4(b) might bring within its sweep governmental units not guilty of any unlawful discriminatory voting practices. It afforded such jurisdictions immediately available protection in the form of an action to terminate coverage under § 4(a) of the Act. While this so-called "bailout" suit is subject to narrow procedural and substantive limitations, [Footnote 10] § 4(a) does instruct the Attorney General that, if he "determines that he has no reason to believe that any . . . test or device" has been used for a prohibited purpose during the relevant time period, "he shall consent to the entry of . . . judgment" exempting the jurisdiction. See H.R.Rep. No. 439, supra, at 14-15, 19. [Footnote 11]Although this Court has never considered at length the scope of the § 4(b) preclusion clause, we have indicated that the words of the statute mean what they say. In South Carolina v. Katzenbach, supra, the Court upheld the constitutionality Page 432 U. S. 412 of § 4(b), which the Court stated"bar[red] direct judicial review of the findings by the Attorney General and the Director of the Census which trigger application of the coverage formula."383 U.S. at 383 U. S. 332. The Court recognized that § 4(b) might be "improperly applied," but found that a bailout suit was the only available remedy. 383 U.S. at 383 U. S. 333. The Court noted that "[t]his procedure serves as a partial substitute for direct judicial review." Ibid.Similarly, in Gaston County v. United States, 395 U. S. 285 (1969), we stated that "[t]he coverage formula chosen by Congress was designed to be speedy, objective, and incontrovertible." Id. at 395 U. S. 291-292. A footnote added: "Section 4(b) of the Act makes the determinations by the Attorney General and the Director of the Census unreviewable in any court." Id. at 395 U. S. 292 n. 6. See also id. at 395 U. S. 287. The significant part played by the discretionary authority of the Attorney General in administering the Act is also underlined by Morris v. Gressette, post, p. 432 U. S. 491. There the Court finds no authority to review the Attorney General's failure to object, under § 5 of the Act, to a change in the voting laws of a covered jurisdiction. Although § 5 contains no express preclusion of review, the Court concludes from its structure and purposes that Congress intended no prolonged suspension of the operation of validly enacted state laws to allow judicial review. Since § 4(b) expressly provides that the administrative determinations "shall not be reviewable in any court," and conclusions similar to those in Morris may be drawn from the statutory structure, the case for preclusion is, if anything, stronger here than in Morris.We conclude, then, that the plain meaning and history of § 4(b), the purpose and structure of the Act, as well as this Court's interpretation of it, indicate that judicial review of § 4(b) determinations by the Attorney General and the Director of the Census is absolutely barred. There is in this case"'persuasive reason to believe that such was the purpose Page 432 U. S. 413 of Congress.' Abbott laboratores v. Gardner, 387 U. S. 136, 387 U. S. 140 (1967)."Dunlop v. Bachowski, 421 U. S. 560, 421 U. S. 567 (1975). "[T]he heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review" of this administrative decision has been met with the requisite "clear and convincing evidence.'" Ibid. [Footnote 12]Under these circumstances, the Court of Appeals erred in relying on cases that inferred jurisdiction to review administrative actions where there was no clear showing of preclusion. [Footnote 13] Since different congressional enactments have distinct Page 432 U. S. 414 purposes and use diverse means to achieve them, each case raising an administrative reviewability question must be analyzed on the basis of the specific statutory provisions involved. If the intent of Congress is unmistakable -- and we have no doubt that it is here -- the only remaining issue is whether prohibiting judicial review is constitutionally permissible.On that score, the finality of determinations under § 4(b), like the preclearance requirement of § 5, may well be "an uncommon exercise of congressional power," South Carolina v. Katzenbach, 383 U.S. at 383 U. S. 334; see also Morris v. Gressette, post at 432 U. S. 501. But there can be no question that, in attacking the pervasive evils and tenacious defenders of voting discrimination, Congress acted within its "power to enforce" the Fourteenth Page 432 U. S. 415 and Fifteenth Amendments "by appropriate legislation." South Carolina v. Katzenbach, supra.For the foregoing reasons, we hold that the courts below erred in finding that they had jurisdiction to review petitioners' claims of erroneous application of § 4(b). The only procedure available to Texas to seek termination of Voting Rights Act coverage is a bailout suit under the strict limitations of § 4(a). Accordingly, the decision of the Court of Appeals is vacated, and the case is remanded with instructions to direct the District Court to dismiss the complaint.It is so ordered

U.S. Supreme CourtBriscoe v. Bell, 432 U.S. 404 (1977)Briscoe v. BellNo. 76-60Argued April 20, 1977Decided June 20, 1977432 U.S. 404SyllabusThe provision of § 4(b) of the Voting Rights Act of 1965 that a determination of the Attorney General or Director of the Census that a State is covered by the Act "shall not be reviewable in any court" held absolutely to preclude judicial review of such a determination. Hence the District Court and Court of Appeals erred in holding that they had jurisdiction to review petitioners' claims that the Attorney General and Director of the Census (respondents) had erroneously applied § 4(b) in determining that Texas is covered by the 1975 amendments to the Act extending its protections to language minorities, such as Mexican-Americans. A "bailout" suit under § 4(a) to terminate coverage is Texas' sole remedy. Pp. 432 U. S. 409-415.(a) Such construction of § 4(b) is supported by its language and legislative history and by the Act's structure and its purpose to eradicate voting discrimination with all possible speed, as well as by this Court's interpretations of the Act. See South Carolina v. Katzenbach, 383 U. S. 301; Gaston County v. United States, 395 U. S. 285; Morris v. Gressette, post, p. 432 U. S. 491. Pp. 432 U. S. 410-414.(b) While the finality of determinations under § 4(b) may be "an uncommon exercise of congressional power," South Carolina v. Katzenbach, supra at 383 U. S. 335, nevertheless in attacking the pervasive evils and tenacious defenders of voting discrimination, Congress acted within its "power to enforce" the Fourteenth and Fifteenth Amendments "by appropriate legislation." Pp. 432 U. S. 414-415.175 U.S.App.D.C. 297, 535 F.2d 1259, vacated and remanded.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. POWELL, J., concurred in the judgment. Page 432 U. S. 405

1997_97-1192

REHNQUIST, C. J., delivered the opinion of the Court, in which STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined, post, p.411.James Hamilton, pro se, argued the cause for petitioners.With him on the briefs was Robert v: Zener.Brett M. Kavanaugh argued the cause for the United States. With him on the brief were Kenneth W Starr and Craig S. Lerner. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner James Hamilton, an attorney, made notes of an initial interview with a client shortly before the client's death. The Government, represented by the Office of Independent Counsel, now seeks his notes for use in a criminal investigation. We hold that the notes are protected by the attorney-client privilege.This dispute arises out of an investigation conducted by the Office of the Independent Counsel into whether various individuals made false statements, obstructed justice, or committed other crimes during investigations of the 1993 dismissal of employees from the White House Travel Office. Vincent W. Foster, Jr., was Deputy White House Counsel when the firings occurred. In July 1993, Foster met with petitioner Hamilton, an attorney at petitioner Swidler & Berlin, to seek legal representation concerning possible congressional or other investigations of the firings. During a 2-hour meeting, Hamilton took three pages of*Briefs of amici curiae urging reversal were filed for the American Bar Association by Jerome J. Shestack, William H. Jeffress, Jr., and Scott L. Nelson, Jr.; for the American College of Trial Lawyers by Edward Brodsky and Alan J. Davis; and for the National Association of Criminal Defense Lawyers et al. by Mark I. Levy, Timothy K. Armstrong, Lisa B. Kemler, Steven Alan Bennett, Arthur H. Bryant, and Richard G. Taranto.402handwritten notes. One of the first entries in the notes is the word "Privileged." Nine days later, Foster committed suicide.In December 1995, a federal grand jury, at the request of the Independent Counsel, issued subpoenas to petitioners Hamilton and Swidler & Berlin for, inter alia, Hamilton's handwritten notes of his meeting with Foster. Petitioners filed a motion to quash, arguing that the notes were protected by the attorney-client privilege and by the work-product privilege. The District Court, after examining the notes in camera, concluded they were protected from disclosure by both doctrines and denied enforcement of the subpoenas.The Court of Appeals for the District of Columbia Circuit reversed. In re Sealed Case, 124 F.3d 230 (1997). While recognizing that most courts assume the privilege survives death, the Court of Appeals noted that holdings actually manifesting the posthumous force of the privilege are rare. Instead, most judicial references to the privilege's posthumous application occur in the context of a well-recognized exception allowing disclosure for disputes among the client's heirs. Id., at 231-232. It further noted that most commentators support some measure of posthumous curtailment of the privilege. Id., at 232. The Court of Appeals thought that the risk of posthumous revelation, when confined to the criminal context, would have little to no chilling effect on client communication, but that the costs of protecting communications after death were high. It therefore concluded that the privilege was not absolute in such circumstances, and that instead, a balancing test should apply. Id., at 233234. It thus held that there is a posthumous exception to the privilege for communications whose relative importance to particular criminal litigation is substantial. Id., at 235. While acknowledging that uncertain privileges are disfavored, Jaffee v. Redmond, 518 U. S. 1, 17-18 (1996), the Court of Appeals determined that the uncertainty introduced by its balancing test was insignificant in light of existing excep-403tions to the privilege. 124 F. 3d, at 235. The Court of Appeals also held that the notes were not protected by the work-product privilege.The dissenting judge would have affirmed the District Court's judgment that the attorney-client privilege protected the notes. Id., at 237. He concluded that the common-law rule was that the privilege survived death. He found no persuasive reason to depart from this accepted rule, particularly given the importance of the privilege to full and frank client communication. I d., at 237.Petitioners sought review in this Court on both the attorney-client privilege and the work-product privilege.1 We granted certiorari, 523 U. S. 1045 (1998), and we now reverse.The attorney-client privilege is one of the oldest recognized privileges for confidential communications. Upjohn Co. v. United States, 449 U. S. 383, 389 (1981); Hunt v. Blackburn, 128 U. S. 464, 470 (1888). The privilege is intended to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice." Upjohn, supra, at 389. The issue presented here is the scope of that privilege; more particularly, the extent to which the privilege survives the death of the client. Our interpretation of the privilege's scope is guided by "the principles of the common law ... as interpreted by the courts ... in the light of reason and experience." Fed. Rule Evid. 501; Funk v. United States, 290 U. S. 371 (1933).The Independent Counsel argues that the attorney-client privilege should not prevent disclosure of confidential communications where the client has died and the information is relevant to a criminal proceeding. There is some authority for this position. One state appellate court, Cohen v. Jenkintown Cab Co., 238 Pa. Super. 456, 357 A. 2d 689 (1976),1 Because we sustain the claim of attorney-client privilege, we do not reach the claim of work-product privilege.404and the Court of Appeals below have held the privilege may be subject to posthumous exceptions in certain circumstances. In Cohen, a civil case, the court recognized that the privilege generally survives death, but concluded that it could make an exception where the interest of justice was compelling and the interest of the client in preserving the confidence was insignificant. Id., at 462-464, 357 A. 2d, at 692-693.But other than these two decisions, cases addressing the existence of the privilege after death-most involving the testamentary exception-uniformly presume the privilege survives, even if they do not so hold. See, e. g., Mayberry v. Indiana, 670 N. E. 2d 1262 (Ind. 1996); Morris v. Cain, 39 La. Ann. 712, 1 So. 797 (1887); People v. Modzelewski, 611 N. Y. S. 2d 22, 203 A. 2d 594 (App. Div. 1994). Several State Supreme Court decisions expressly hold that the attorneyclient privilege extends beyond the death of the client, even in the criminal context. See In re John Doe Grand Jury Investigation, 408 Mass. 480, 481-483, 562 N. E. 2d 69, 70 (1990); State v. Doster, 276 S. C. 647, 650-651, 284 S. E. 2d 218, 219 (1981); State v. Macumber, 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976). In John Doe Grand Jury Investigation, for example, the Massachusetts Supreme Judicial Court concluded that survival of the privilege was "the clear implication" of its early pronouncements that communications subject to the privilege could not be disclosed at any time. 408 Mass., at 483, 562 N. E. 2d, at 70. The court further noted that survival of the privilege was "necessarily implied" by cases allowing waiver of the privilege in testamentary disputes. Ibid.Such testamentary exception cases consistently presume the privilege survives. See, e. g., United States v. Osborn, 561 F.2d 1334, 1340 (CA9 1977); DeLoach v. Myers, 215 Ga. 255, 259-260, 109 S. E. 2d 777, 780-781 (1959); Doyle v. Reeves, 112 Conn. 521, 152 A. 882 (1931); Russell v. Jackson, 9 Hare 387, 68 Eng. Rep. 558 (\T. C. 1851). They view testa-405mentary disclosure of communications as an exception to the privilege: "[T]he general rule with respect to confidential communications ... is that such communications are privileged during the testator's lifetime and, also, after the testator's death unless sought to be disclosed in litigation between the testator's heirs." Osborn, 561 F. 2d, at 1340. The rationale for such disclosure is that it furthers the client's intent. Id., at 1340, n. 11.2Indeed, in Glover v. Patten, 165 U. S. 394, 406-408 (1897), this Court, in recognizing the testamentary exception, expressly assumed that the privilege continues after the individual's death. The Court explained that testamentary disclosure was permissible because the privilege, which normally protects the client's interests, could be impliedly waived in order to fulfill the client's testamentary intent. Id., at 407-408 (quoting Blackburn v. Crawfords, 3 Wall. 175 (1866), and Russell v. Jackson, supra).The great body of this case law supports, either by holding or considered dicta, the position that the privilege does survive in a case such as the present one. Given the language of Rule 501, at the very least the burden is on the Independ-2 About half the States have codified the testamentary exception by providing that a personal representative of the deceased can waive the privilege when heirs or devisees claim through the deceased client (as opposed to parties claiming against the estate, for whom the privilege is not waived). See, e. g., Ala. Rule Evid. 502 (1996); Ark. Code Ann. § 16-41101, Rule 502 (Supp. 1997); Neb. Rev. Stat. §27-503, Rule 503 (1995). These statutes do not address expressly the continuation of the privilege outside the context of testamentary disputes, although many allow the attorney to assert the privilege on behalf of the client apparently without temporal limit. See, e. g., Ark. Code Ann. § 16-41-101, Rule 502(c) (Supp. 1997). They thus do not refute or affirm the general presumption in the case law that the privilege survives. California's statute is exceptional in that it apparently allows the attorney to assert the privilege only so long as a holder of the privilege (the estate's personal representative) exists, suggesting the privilege terminates when the estate is wound up. See Cal. Code Evid. Ann. §§ 954, 957 (West 1995). But no other State has followed California's lead in this regard.406ent Counsel to show that "reason and experience" require a departure from this rule.The Independent Counsel contends that the testamentary exception supports the posthumous termination of the privilege because in practice most cases have refused to apply the privilege posthumously. He further argues that the exception reflects a policy judgment that the interest in settling estates outweighs any posthumous interest in confidentiality. He then reasons by analogy that in criminal proceedings, the interest in determining whether a crime has been committed should trump client confidentiality, particularly since the financial interests of the estate are not at stake.But the Independent Counsel's interpretation simply does not square with the case law's implicit acceptance of the privilege's survival and with the treatment of testamentary disclosure as an "exception" or an implied "waiver." And the premise of his analogy is incorrect, since cases consistently recognize that the rationale for the testamentary exception is that it furthers the client's intent, see, e. g., Glover, supra. There is no reason to suppose as a general matter that grand jury testimony about confidential communications furthers the client's intent.Commentators on the law also recognize that the general rule is that the attorney-client privilege continues after death. See, e. g., 8 Wigmore, Evidence § 2323 (McNaughton rev. 1961); Frankel, The Attorney-Client Privilege After the Death of the Client, 6 Geo. J. Legal Ethics 45,78-79 (1992); 1 J. Strong, McCormick on Evidence § 94, p. 348 (4th ed. 1992). Undoubtedly, as the Independent Counsel emphasizes, various commentators have criticized this rule, urging that the privilege should be abrogated after the client's death where extreme injustice would result, as long as disclosure would not seriously undermine the privilege by deterring client communication. See, e. g., C. Mueller & L. Kirkpatrick, 2 Federal Evidence § 199, pp. 380-381 (2d ed. 1994); Restatement (Third) of the Law Governing Lawyers § 127, Comment407d (Proposed Final Draft No.1, Mar. 29, 1996). But even these critics clearly recognize that established law supports the continuation of the privilege and that a contrary rule would be a modification of the common law. See, e. g., Mueller & Kirkpatrick, supra, at 379; Restatement of the Law Governing Lawyers, supra, § 127, Comment c; 24 C. Wright & K. Graham, Federal Practice and Procedure § 5498, p. 483 (1986).Despite the scholarly criticism, we think there are weighty reasons that counsel in favor of posthumous application. Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime.The Independent Counsel suggests, however, that his proposed exception would have little to no effect on the client's willingness to confide in his attorney. He reasons that only clients intending to perjure themselves will be chilled by a rule of disclosure after death, as opposed to truthful clients or those asserting their Fifth Amendment privilege. This is because for the latter group, communications disclosed by the attorney after the client's death purportedly will reveal only information that the client himself would have revealed if alive.The Independent Counsel assumes, incorrectly we believe, that the privilege is analogous to the Fifth Amendment's protection against self-incrimination. But as suggested above, the privilege serves much broader purposes. Clients consult attorneys for a wide variety of reasons, only one of which involves possible criminal liability. Many attorneys408act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed in order to assure sound legal advice. The same is true of owners of small businesses who may regularly consult their attorneys about a variety of problems arising in the course of the business. These confidences may not come close to any sort of admission of criminal wrongdoing, but nonetheless be matters which the client would not wish divulged.The contention that the attorney is being required to disclose only what the client could have been required to disclose is at odds with the basis for the privilege even during the client's lifetime. In related cases, we have said that the loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place. See Jaffee, 518 U. S., at 12; Fisher v. United States, 425 U. S. 391, 403 (1976). This is true of disclosure before and after the client's death. Without assurance of the privilege's posthumous application, the client may very well not have made disclosures to his attorney at all, so the loss of evidence is more apparent than real. In the case at hand, it seems quite plausible that Foster, perhaps already contemplating suicide, may not have sought legal advice from Hamilton if he had not been assured the conversation was privileged.The Independent Counsel additionally suggests that his proposed exception would have minimal impact if confined to criminal cases, or, as the Court of Appeals suggests, if it is limited to information of substantial importance to a particular criminal case.3 However, there is no case authority for the proposition that the privilege applies differently in crimi-3 Petitioners, while opposing wholesale abrogation of the privilege in criminal cases, concede that exceptional circumstances implicating a criminal defendant's constitutional rights might warrant breaching the privilege. We do not, however, need to reach this issue, since such exceptional circumstances clearly are not presented here.409nal and civil cases, and only one commentator ventures such a suggestion, see Mueller & Kirkpatrick, supra, at 380-381. In any event, a client may not know at the time he discloses information to his attorney whether it will later be relevant to a civil or a criminal matter, let alone whether it will be of substantial importance. Balancing ex post the importance of the information against client interests, even limited to criminal cases, introduces substantial uncertainty into the privilege's application. For just that reason, we have rejected use of a balancing test in defining the contours of the privilege. See Upjohn, 449 U. S., at 393; Jaffee, supra, at 17-18.In a similar vein, the Independent Counsel argues that existing exceptions to the privilege, such as the crime-fraud exception and the testamentary exception, make the impact of one more exception marginal. However, these exceptions do not demonstrate that the impact of a posthumous exception would be insignificant, and there is little empirical evidence on this point.4 The established exceptions are con-4 Empirical evidence on the privilege is limited. Three studies do not reach firm conclusions on whether limiting the privilege would discourage full and frank communication. Alexander, The Corporate Attorney Client Privilege: A Study of the Participants, 63 St. John's L. Rev. 191 (1989); Zacharias, Rethinking Confidentiality, 74 Iowa L. Rev. 352 (1989); Comment, Functional Overlap Between the Lawyer and Other Professionals:Its Implications for the Privileged Communications Doctrine, 71 Yale L. J. 1226 (1962). These articles note that clients are often uninformed or mistaken about the privilege, but suggest that a substantial number of clients and attorneys think the privilege encourages candor. Two of the articles conclude that a substantial number of clients and attorneys think the privilege enhances open communication, Alexander, supra, at 244-246, 261, and that the absence of a privilege would be detrimental to such communication, Comment, 71 Yale L. J., supra, at 1236. The third article suggests instead that while the privilege is perceived as important to open communication, limited exceptions to the privilege might not discourage such communication, Zacharias, supra, at 382, 386. Similarly, relatively few court decisions discuss the impact of the privilege's application after death. This may reflect the general assumption that the privilege sur-410sistent with the purposes of the privilege, see Glover, 165 U. S., at 407-408; United States v. Zolin, 491 U. S. 554, 562563 (1989), while a posthumous exception in criminal cases appears at odds with the goals of encouraging full and frank communication and of protecting the client's interests. A "no harm in one more exception" rationale could contribute to the general erosion of the privilege, without reference to common-law principles or "reason and experience."Finally, the Independent Counsel, relying on cases such as United States v. Nixon, 418 U. S. 683, 710 (1974), and Branzburg v. Hayes, 408 U. S. 665 (1972), urges that privileges be strictly construed because they are inconsistent with the paramount judicial goal of truth seeking. But both Nixon and Branzburg dealt with the creation of privileges not recognized by the common law, whereas here we deal with one of the oldest recognized privileges in the law. And we are asked, not simply to "construe" the privilege, but to narrow it, contrary to the weight of the existing body of case law.It has been generally, if not universally, accepted, for well over a century, that the attorney-client privilege survives the death of the client in a case such as this. While the arguments against the survival of the privilege are by no means frivolous, they are based in large part on speculation-thoughtful speculation, but speculation nonethelessas to whether posthumous termination of the privilege would diminish a client's willingness to confide in an attorney. In an area where empirical information would be useful, it is scant and inconclusive.Rule 501's direction to look to "the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience" does not mandate that a rule, once established, should endure for all time. Funk v. United States, 290 U. S. 371, 381 (1933). Butvives-if attorneys were required as a matter of practice to testify or provide notes in criminal proceedings, cases discussing that practice would surely exist.411here the Independent Counsel has simply not made a sufficient showing to overturn the common-law rule embodied in the prevailing case law. Interpreted in the light of reason and experience, that body of law requires that the attorneyclient privilege prevent disclosure of the notes at issue in this case. The judgment of the Court of Appeals isReversed

OCTOBER TERM, 1997SyllabusSWIDLER & BERLIN ET AL. v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 97-1192. Argued June 8, 1998-Decided June 25,1998When various investigations of the 1993 dismissal of White House Travel Office employees were beginning, Deputy White House Counsel Vincent W. Foster, Jr., met with petitioner Hamilton, an attorney at petitioner law firm, to seek legal representation. Hamilton took handwritten notes at their meeting. Nine days later, Foster committed suicide. Subsequently, a federal grand jury, at the Independent Counsel's request, issued subpoenas for, inter alia, the handwritten notes as part of an investigation into whether crimes were committed during the prior investigations into the firings. Petitioners moved to quash, arguing, among other things, that the notes were protected by the attorneyclient privilege. The District Court agreed and denied enforcement of the subpoenas. In reversing, the Court of Appeals recognized that most courts assume the privilege survives death, but noted that such references usually occur in the context of the well-recognized testamentary exception to the privilege allowing disclosure for disputes among the client's heirs. The court declared that the risk of posthumous revelation, when confined to the criminal context, would have little to no chilling effect on client communication, but that the costs of protecting communications after death were high. Concluding that the privilege is not absolute in such circumstances, and that instead, a balancing test should apply, the court held that there is a posthumous exception to the privilege for communications whose relative importance to particular criminal litigation is substantial.Held: Hamilton's notes are protected by the attorney-client privilege.This Court's inquiry must be guided by "the principles of the common law ... as interpreted by the courts ... in light of reason and experience." Fed. Rule Evid. 501. The relevant case law demonstrates that it has been overwhelmingly, if not universally, accepted, for well over a century, that the privilege survives the client's death in a case such as this. While the Independent Counsel's arguments against the privilege's posthumous survival are not frivolous, he has simply not satisfied his burden of showing that "reason and experience" require a departure from the common-law rule. His interpretation-that the testamentary exception supports the privilege's posthumous termination because in practice most cases have refused to apply the privilege posthumously;400that the exception reflects a policy judgment that the interest in settling estates outweighs any posthumous interest in confidentiality; and that, by analogy, the interest in determining whether a crime has been committed should trump client confidentiality, particularly since the estate's financial interests are not at stake-does not square with the case law's implicit acceptance of the privilege's survival and with its treatment of testamentary disclosure as an "exception" or an implied "waiver." And his analogy's premise is incorrect, since cases have consistently recognized that the testamentary exception furthers the client's intent, whereas there is no reason to suppose the same is true with respect to grand jury testimony about confidential communications. Knowing that communications will remain confidential even after death serves a weighty interest in encouraging a client to communicate fully and frankly with counsel; posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime. The Independent Counsel's suggestion that a posthumous disclosure rule will chill only clients intent on perjury, not truthful clients or those asserting the Fifth Amendment, incorrectly equates the privilege against self-incrimination with the privilege here at issue, which serves much broader purposes. Clients consult attorneys for a wide variety of reasons, many of which involve confidences that are not admissions of crime, but nonetheless are matters the clients would not wish divulged. The suggestion that the proposed exception would have minimal impact if confined to criminal cases, or to information of substantial importance in particular criminal cases, is unavailing because there is no case law holding that the privilege applies differently in criminal and civil cases, and because a client may not know when he discloses information to his attorney whether it will later be relevant to a civil or criminal matter, let alone whether it will be of substantial importance. Balancing ex post the importance of the information against client interests, even limited to criminal cases, introduces substantial uncertainty into the privilege's application and therefore must be rejected. The argument that the existence of, e. g., the crime-fraud and testamentary exceptions to the privilege makes the impact of one more exception marginal fails because there is little empirical evidence to support it, and because the established exceptions, unlike the proposed exception, are consistent with the privilege's purposes. Indications in United States v. Nixon, 418 U. S. 683, 710, and Branzburg v. Hayes, 408 U. S. 665, that privileges must be strictly construed as inconsistent with truth seeking are inapposite here, since those cases dealt with the creation of privileges not recognized by the common law, whereas here, the Independent Counsel seeks to narrow a well-established privilege. Pp.403-411.124 F.3d 230, reversed.401Full Text of Opinion

1959_35

MR. JUSTICE BLACK delivered the opinion of the Court.Petitioner Nicholas Stirone was indicted and convicted in a federal court for unlawfully interfering wit interstate commerce in violation of the Hobbs Act. [Footnote 1] The crucial question here is whether he was convicted of an offense not charged in the indictment.So far as relevant to this question the indictment charged the following: from 1951 until 1953, a man by the name of William G. Rider had a contract to supply ready-mixed concrete from his plant in Pennsylvania to be used for the erection of a steel processing plant at Allenport, Pennsylvania. For the purpose of performing this contract, Rider"caused supplies and materials [sand] to move in interstate commerce between various points in the United States and the site of his plant for the manufacture or mixing of ready mixed concrete, and more particularly, from outside the State of Pennsylvania into the State of Pennsylvania."The indictment went on to charge that Stirone, using his influential union position,"did . . . unlawfully obstruct, delay [and] affect interstate commerce between the several states of Page 361 U. S. 214 the United States and the movement of the aforesaid materials and supplies in such commerce, by extortion . . . of $31,274.13 . . . induced by fear and by the wrongful use of threats of labor disputes and threats of the loss of, and obstruction and prevention of, performance of his contract to supply ready mixed concrete."The district judge, over petitioner's objection as to its materiality and relevancy, permitted the Government to offer evidence of an effect on interstate commerce not only in sand brought into Pennsylvania from other States, but also in steel shipments from the steel plant in Pennsylvania into Michigan and Kentucky. Again over petitioner's objection, the trial judge charged the jury that, so far as the interstate commerce aspect of the case was concerned, Stirone's guilt could be rested either on a finding that (1) sand used to make the concrete "had been shipped from another state into Pennsylvania" or (2) "Mr. Rider's concrete was used for constructing a mill which would manufacture articles of steel to be shipped in interstate commerce . . ." from Pennsylvania into other States. On motion of petitioner for arrest of judgment, acquittal or new trial, the District Court held that "[a] sufficient foundation for introduction of both kinds of proof was laid in the indictment." 168 F. Supp. 490, 495. The Court of Appeals affirmed, all the judges agreeing that interference with the sand movements into Pennsylvania was barred by the Hobbs Act. 262 F.2d 571. Judge Hastie and Chief Judge Biggs disagreed with the court's holding that Stirone could be tried and convicted for interference with the possible future shipments of steel from Pennsylvania to Michigan and Kentucky. 262 F.2d at 578, 580. They were of opinion that no interference with interstate steel shipments was charged in the indictment, and that, in any event, it is an unreasonable extension of the Act to make a federal offense out of Page 361 U. S. 215 extortion from a man merely because he is supplying concrete to build a mill which, after construction, will produce steel a part of which may, if processed, move in interstate commerce.We agree with the Court of Appeals that Rider's dependence on shipments of sand from outside Pennsylvania to carry on his ready-mixed concrete business entitled him to the Hobbs Act's protection against interruption or stoppage of his commerce in sand by extortion of the kind that the jury found the petitioner had committed here. That Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence. The Act outlaws such interference "in any way or degree." 18 U.S.C. § 1951(a). Had Rider's business been hindered or destroyed, interstate movements of sand to him would have slackened or stopped. The trial jury was entitled to find that commerce was saved from such a blockage by Rider's compliance with Stirone's coercive and illegal demands. It was to free commerce from such destructive burdens that the Hobbs Act was passed. United States v. Green, 350 U. S. 415, 350 U. S. 420.Whether prospective steel shipments from the new steel mills would be enough, alone, to bring this transaction under the Act is a more difficult question. We need not decide this, however, since we agree with the dissenting judges in the Court of Appeals that it was error to submit that question to the jury, and that the error cannot be dismissed as merely an insignificant variance between allegation and proof, and thus harmless error, as in Berger v. United States, 295 U. S. 78. The crime charged here is a felony, and the Fifth Amendment requires that prosecution be begun by indictment.Ever since Ex parte Bain, 121 U. S. 1, was decided in 1887, it has been the rule that, after an indictment has been Page 361 U. S. 216 returned, its charges may not be broadened through amendment except by the grand jury itself. In that case, the court ordered that some specific and relevant allegations the grand jury had charged be stricken from the indictment so that Bain might be convicted without proof of those particular allegations. [Footnote 2] In holding that this could not be done, Mr. Justice Miller, speaking for the Court, said:"If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the Constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed."121 U. S. 121 U.S. 1, 121 U. S. 10.The Court went on to hold in Bain:"that, after the indictment was changed, it was no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected Page 361 U. S. 217 by the constitutional provision, at the mercy or control of the court or prosecuting attorney. . . ."121 U. S. 121 U.S. 1, 121 U. S. 13. The Bain case, which has never been disapproved, stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him. See also United States v. Norris, 281 U. S. 619, 281 U. S. 622. Cf. Clyatt v. United States, 197 U. S. 207, 197 U. S. 219, 220. Yet the court did permit that in this case. The indictment here cannot fairly be read as charging interference with movements of steel from Pennsylvania to other States, nor does the Court of Appeals appear to have so read it. The grand jury which found this indictment was satisfied to charge that Stirone's conduct interfered with interstate importation of sand. But neither this nor any other court can know that the grand jury would have been willing to charge that Stirone's conduct would interfere with interstate exportation of steel from a mill later to be built with Rider's concrete. And it cannot be said with certainty that, with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned. Although the trial court did not permit a formal amendment of the indictment, the effect of what it did was the same. And the addition charging interference with steel exports here is neither trivial, useless, nor innocuous. Compare Ford v. United States, 273 U. S. 593, 273 U. S. 602; Goto v. Lane, 265 U. S. 393, 265 U. S. 402. While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance, and then dismissed as harmless error. Compare 295 U. S. Page 361 U. S. 218 United States, 295 U. S. 78. The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. [Footnote 3] Thus, the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with interstate commerce which the grand jury did not charge.Here, as the trial court charged the jury, there are two essential elements of a Hobbs Act crime: interference with commerce, and extortion. Both elements have to be charged. Neither is surplusage, and neither can be treated as surplusage. The charge that interstate commerce is affected is critical, since the Federal Government's jurisdiction of this crime rests only on that interference. It follows that, when only one particular kind of commerce is charged to have been burdened, a conviction must rest on that charge, and not another, even though it be assumed that, under an indictment drawn in general terms, a conviction might rest upon a showing that commerce of one kind or another had been burdened. The right Page 361 U. S. 219 to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment. Here, as in the Bain case, we cannot know whether the grand jury would have included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with. Yet, because of the court's admission of evidence and under its charge, this might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This was fatal error. Cf. Cole v. Arkansas, 333 U. S. 196; De Jonge v. Oregon, 299 U. S. 353.Reversed

U.S. Supreme CourtStirone v. United States, 361 U.S. 212 (1960)Stirone v. United StatesNo. 35. Argued November 9-10, 1959Decided January 11, 1960361 U.S. 212SyllabusPetitioner was indicted and convicted in a Federal District Court for interfering with interstate commerce by extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951. The only interstate commerce mentioned in the indictment was the importation into Pennsylvania of sand to be used in building a steel plant there, but the trial judge permitted the introduction of evidence to show interference also with the exportation from Pennsylvania of steel to be manufactured in the new plant, and he instructed the jury that it could base a conviction upon interference with either the importation of sand or the exportation of steel.Held: The conviction is reversed. Pp. 361 U. S. 213-219.(a) Since the indictment did not charge interference with the exportation of steel from the State, it was prejudicial error to submit to the jury the question whether the extortion interfered with the exportation of steel. Pp. 361 U. S. 215-219.(b) The variance between pleading and proof here involved was not insignificant, and may not be dismissed as harmless error, because it deprived petitioner of his substantial right to be tried for a felony only on charges presented in an indictment returned by a grand jury. Pp. 361 U. S. 217-218.(c) Since the jury might have based the conviction on a finding of interference with the exportation of steel, the conviction must be reversed. P. 361 U. S. 219.262 F.2d 571, reversed. Page 361 U. S. 213

1965_5

MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner was brought to trial in the Circuit Court of Jefferson County, Alabama, upon a complaint charging him with violating two sections of the General Code of the City of Birmingham, Alabama. [Footnote 1] After trial without a jury, the court found him "guilty as charged in the Complaint," and imposed a sentence of imprisonment for 180 days at hard labor and an additional 61 days at hard labor in default of a $100 fine and costs. The judgment of conviction was affirmed by the Alabama Court of Appeals, 42 Ala.App. 296, 161 So. 2d 796, and the Supreme Court of Alabama declined review. 276 Ala. 707, 161 So. 2d 799. We granted certiorari to consider the petitioner's claim that, under the Fourteenth Amendment of the United States Constitution, his conviction cannot stand. 380 U.S. 905.The two ordinances which Shuttlesworth was charged with violating are §§ 1142 and 1231 of the Birmingham General City Code. The relevant paragraph of 1142 provides:"It shall be unlawful for any person or any number of persons to so stand, loiter or walk upon any street or sidewalk in the city as to obstruct free passage over, on or along said street or sidewalk. It shall also be unlawful for any person to stand or loiter upon any street or sidewalk of the city after having been requested by any police officer to move on."Section 1231 provides: "It shall be unlawful for any person to refuse or fail to comply with any lawful order, signal or direction of a police officer." The two counts in the complaint were framed in the words of these ordinances. [Footnote 2] Page 382 U. S. 89The evidence was in conflict, but the prosecution's version of the facts can be briefly summarized. On April 4, 1962, at about 10:30 a.m., Patrolman Byars of the Birmingham Police Department observed Shuttlesworth standing on a sidewalk with 10 or 12 companions outside a department store near the intersection of 2d Ave. and 19th St. in the City of Birmingham. After observing the group for a minute or so, Byars walked up and "told them they would have to move on and clear the sidewalk, and not obstruct it for the pedestrians." After some, but not all, of the group began to disperse, Byars repeated this request twice. In response to the second request, Shuttlesworth said, "You mean to say we can't stand here on the sidewalk?" After the third request, he replied, "Do you mean to tell me we can't stand here in front of this store?" By this time, everybody in the group but Shuttlesworth had begun to walk away, and Patrolman Byars told him he was under arrest. Shuttlesworth then responded, "Well, I will go into the store," Page 382 U. S. 90 and walked into the entrance of the adjacent department store. Byars followed and took him into custody just inside the store's entrance. [Footnote 3]IOn its face, the here relevant paragraph of § 1142 sets out two separate and disjunctive offenses. The paragraph makes it an offense to "so stand, loiter or walk upon any street or sidewalk . . . as to obstruct free passage over, on or along said street or sidewalk." The paragraph makes it"also . . . unlawful for any person to stand or loiter upon any street or sidewalk . . . after having been requested by any police officer to move on."(Emphasis added.) The first count of the complaint in this case, tracking the ordinance, charged these two separate offenses in the alternative. [Footnote 4]Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration. [Footnote 5] It"does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat."Cox v. Louisiana, 379 U. S. 536, 379 U. S. 559, 379 U. S. 579 (separate opinion of MR. JUSTICE BLACK). Instinct with Page 382 U. S. 91 its ever-present potential for arbitrarily suppressing First Amendment liberties, that kind of law bears the hallmark of a police state. [Footnote 6]The matter is not one which need be exhaustively pursued, however, because, as the respondent correctly points out, the Alabama Court of Appeals has not read § 1142 literally, but has given to it an explicitly narrowed construction. The ordinance, that court has ruled,"is directed at obstructing the free passage over, on or along a street or sidewalk by the manner in which a person accused stands, loiters or walks thereupon. Our decisions make it clear that the mere refusal to move on after a police officer's requesting that a person standing or loitering should do so is not enough to support the offense. . . . [T]here must also be a showing of the accused's blocking free passage. . . ."Middlebrooks v. City of Birmingham, 42 Ala.App. 525, 527, 170 So. 2d 424, 426.The Alabama Court of Appeals has thus authoritatively ruled that § 1142 applies only when a person who stands, loiters, or walks on a street or sidewalk so as to obstruct free passage refuses to obey a request by an officer to move on. It is our duty, of course, to accept this state judicial construction of the ordinance. Winters v. New York, 333 U. S. 507; United States v. Burnison, 339 U. S. 87; Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U. S. 495. As so construed, we cannot say that the ordinance is unconstitutional, though it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied.The present limiting construction of § 1142 was not given to the ordinance by the Alabama Court of Appeals, Page 382 U. S. 92 however, until its decision in Middlebrooks, supra, two years after the petitioner's conviction in the present case. [Footnote 7] In Middlebrooks, the Court of Appeals stated that it had applied its narrowed construction of the ordinance in affirming Shuttlesworth's conviction, but its opinion in the present case, 42 Ala.App. 296, 161 So. 2d 796, nowhere makes explicit any such construction. In any event, the trial court in the present case was without guidance from any state appellate court as to the meaning of the ordinance.The trial court made no findings of fact and rendered no opinion. For all that appears, that court may have found the petitioner guilty only by applying the literal -- and unconstitutional -- terms of the ordinance. Upon the evidence before him, the trial judge, as finder of the facts, might easily have determined that the petitioner had created an obstruction, but had subsequently moved on. The court might alternatively have found that the petitioner himself had created no obstruction, but had simply disobeyed Patrolman Byars' instruction to move on. In either circumstance, the literal terms of the ordinance would apply; in neither circumstance would the ordinance be applicable as now construed by the Alabama Court of Appeals. Because we are unable to say that the Alabama courts in this case did not judge the petitioner by an unconstitutional construction of the ordinance, the petitioner's conviction under § 1142 cannot stand. Page 382 U. S. 93II.We find the petitioner's conviction under the second count of the complaint, for violation of § 1231 of the General City Code, to be constitutionally invalid for a completely distinct reason. That ordinance makes it a criminal offense for any person "to refuse or fail to comply with any lawful order, signal or direction of a police officer." Like the provisions of § 1142 discussed above, the literal terms of this ordinance are so broad as to evoke constitutional doubts of the utmost gravity. But the Alabama Court of Appeals has confined this ordinance to a relatively narrow scope. In reversing the conviction of the petitioner's codefendant, the court said of § 1231:"This section appears in the chapter regulating vehicular traffic, and provides for the enforcement of the orders of the officers of the police department in directing such traffic."Phifer v. City of Birmingham, 42 Ala.App. 282, 285, 160 So. 2d 898, 901. [Footnote 8]The record contains no evidence whatever that Patrolman Byars was directing vehicular traffic at the time he told the petitioner and his companions to move on. Whatever Patrolman Byars' other generally assigned duties may have been, [Footnote 9] he testified unambiguously that Page 382 U. S. 94 he directed the petitioner's group to move on, to "clear the sidewalk and not obstruct it for the pedestrians." [Footnote 10]Five years ago, this Court decided the case of Thompson v. City of Louisville, 362 U. S. 199. There, we reversed the conviction of a man who had been found guilty in the police court of Louisville, Kentucky, of loitering and disorderly conduct. The proposition for which that case stands is simple and clear. It has nothing to do with concepts relating to the weight or sufficiency of the evidence in any particular case. It goes, rather, to the most basic concepts of due process of law. Its application in Thompson's case turned, as MR. JUSTICE Page 382 U. S. 95 BLACK pointed out "not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all." 362 U.S. at 362 U. S. 199. The Court found there was "no evidence whatever in the record to support these convictions," and held that it was "a violation of due process to convict and punish a man without evidence of his guilt." 362 U.S. at 362 U. S. 206. See also Garner v. Louisiana, 368 U. S. 157.No more need be said in this case with respect to the petitioner's conviction for violating § 1231 of the General Code of the City of Birmingham, Alabama. Quite simply, the petitioner was not in, on, or around any vehicle at the time he was directed to move on or at the time he was arrested. He was a pedestrian. Officer Byars did not issue any direction to the petitioner in the course of directing vehicular traffic, because Officer Byars was not then directing any such traffic. There was thus no evidence whatever in the record to support the petitioner's conviction under this ordinance as it has been authoritatively construed by the Alabama Court of Appeals. It was a violation of due process to convict and punish him without evidence of his guilt.For these reasons, the judgment is reversed and the case is remanded to the Court of Appeals of Alabama for proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtShuttlesworth v. City of Birmingham, 382 U.S. 87 (1965)Shuttlesworth v. City of BirminghamNo. 5Argued October 11, 1965Decided November 15, 1965382 U.S. 87SyllabusPetitioner and a group of companions were standing near a street intersection on a Birmingham, Alabama, sidewalk which a policeman thrice requested them to clear for pedestrian passage. After the third request, all but petitioner, who had been questioning the policeman about his order, had begun to walk away, and the policeman arrested petitioner. Petitioner was tried before a court, without a jury, which, without any factfindings or opinion, convicted him of violating two ordinances, §§ 1142 and 1231, of Birmingham's city code. The Alabama Court of Appeals affirmed. Because of their breadth if read literally, these ordinances present grave constitutional problems. In other decisions subsequent to petitioner's conviction, § 1142 was construed by the Alabama Court of Appeals as applicable only to standing, loitering or walking on a street or sidewalk so as to obstruct free passage, and refusing to obey an officer's request to move on, and § 1231 was confined to the enforcement of the orders of a traffic officer while directing vehicular traffic.Held:1. The conviction under §1142 must be set aside in view of the possibility that it was based upon an unconstitutional construction of the ordinance. Pp. 382 U. S. 90-92.2. Since petitioner, when directed to move on, was a pedestrian not around a vehicle, and the arresting policeman was not directing traffic, the conviction under § 1231 must fall for lack of any evidence to support the alleged violation. Thompson v. City of Louisville, 362 U. S. 199, followed. Pp. 382 U. S. 93-95.42 Ala.App. 296, 161 So. 2d 796, reversed and remanded. Page 382 U. S. 88

1959_152

MR. JUSTICE CLARK delivered the opinion of the Court.Petitioners, when employees of the County of Los Angeles, California, were subpoenaed by and appeared before a Subcommittee of the House Un-American Activities Committee, but refused to answer certain questions concerning subversion. Previously, each petitioner had been ordered by the County Board of Supervisors to answer any questions asked by the Subcommittee relating to his subversive activity, and § 1028.1 of the Government Code of the State of California [Footnote 1] made it the duty of any public Page 362 U. S. 3 employee to give testimony relating to such activity on pain of discharge "in the manner provided by law." Thereafter, the County discharged petitioners on the ground of insubordination and violation of § 1028.1 of the Code. Nelson, a permanent social worker employed by the County's Department of Charities, was, upon his request, given a Civil Service Commission hearing which resulted in a confirmation of his discharge. Globe was a temporary employee of the same department, and was denied a hearing on his discharge on the ground that, as such, he was not entitled to a hearing under the Civil Service Rules adopted pursuant to the County Charter. Petitioners then filed these petitions for mandates seeking Page 362 U. S. 4 reinstatement, contending that the California statute and their discharges violated the Due Process Clause of the Fourteenth Amendment. Nelson's discharge was affirmed by the District Court of Appeal, 163 Cal. App. 2d 607, 329 P.2d 978, and Globe's summary dismissal was likewise affirmed, 163 Cal. App. 2d 595, 329 P.2d 971. A petition for review in each of the cases was denied without opinion by the Supreme Court of California, three judges dissenting. 163 Cal. App. 2d 614, 329 P.2d 983; 163 Cal. App. 2d 606, 329 P.2d 978. We granted certiorari. 360 U.S. 928. The judgment in Nelson's case is affirmed by an equally divided Court, and will not be discussed. We conclude that Globe's dismissal was valid.On April 6, 1956, Globe was served with a subpoena to appear before the Subcommittee at Los Angeles. On the same date, he was served with a copy of an order of the County Board of Supervisors, originally issued February 19, 1952, concerning appearances before the Subcommittee. This order provided, among other things, that it was the duty of any employee to appear before the Subcommittee when so ordered or subpoenaed, and to answer questions concerning subversion. The order specifically stated that any"employee who disobeys the declaration of this duty and order will be considered to have been insubordinate . . . , and that such insubordination shall constitute grounds for discharge. . . . [Footnote 2]"At the appointed time, Globe appeared before the Subcommittee and was interrogated by its counsel concerning his familiarity with the John Reid Club. He claimed that this was a matter which was entirely his "own business," and, upon being Page 362 U. S. 5 pressed for an answer, he stated that the question was"completely out of line as far as my rights as a citizen are concerned, [and] I refuse to answer this question under the First and Fifth Amendments of the Constitution of the United States."On the same grounds, he refused to answer further questions concerning the Club, including one relating to his own membership. Upon being asked if he had observed any Communist activities on the part of members of the Club, Globe refused to answer, and suggested to committee counsel "that you get one of your trained seals up here and ask them." He refused to testify whether he was "a member of the Communist Party now" "on the same grounds" and "as previously stated for previous reasons." On May 2, by letter, Globe was discharged, "without further notice," on "the grounds that [he had] been guilty of insubordination and of violation of Section 1028.1 of the Government Code of the State of California. . . ." The letter recited the fact that Globe had been served with a copy of the Board order relating to his "duty to testify as a County employee . . . before said committee," and that, although appearing as directed, he had refused to answer the question, "Are you a member of the Communist Party now?" Thereafter, Globe requested a hearing before the Los Angeles County Civil Service Commission, but it found that, as a temporary employee, he was not entitled to a hearing under the Civil Service Rules. [Footnote 3] This the petitioner does not dispute. Page 362 U. S. 6However, Globe contends that, despite his temporary status, his summary discharge was arbitrary and unreasonable, and therefore violative of due process. He reasons that his discharge was based on his invocation before the Subcommittee of his rights under the First and Fifth Amendments. But the record does not support even an inference in this regard, and both the order and the statute upon which the discharge was based avoided it. In fact, California's court held to the contrary, saying,"At no time has the cause of petitioner's discharge been alleged to be anything but insubordination and a violation of section 1028.1, nor indeed, under the record before us, could it be."163 Cal. App. 2d at 599, 329 P.2d at 974. Moreover, this finding is buttressed by the language of the order and of California's statute. Both require the employee to answer any interrogation in the field outlined. Failure to answer "on any ground whatsoever any such questions" renders the employee "guilty of insubordination," and requires that he "be suspended and dismissed from his employment in the manner provided by law." California law in this regard, as declared by its court, is that Globe "has no vested right to county employment, and may therefore be discharged summarily." We take this interpretation of California law as binding upon us.We, therefore, reach Globe's contention that his summary discharge was nevertheless arbitrary and unreasonable. In this regard, he places his reliance on Slochower v. Board of Education, 350 U. S. 551 (1956). However, Page 362 U. S. 7 the New York statute under which Slochower was discharged specifically operated"to discharge every city employee who invokes the Fifth Amendment. In practical effect, the questions asked are taken as confessed, and made the basis of the discharge."Id., at 350 U. S. 558. This "built-in" inference of guilt, derived solely from a Fifth Amendment claim, we held to be arbitrary and unreasonable. But the test here, rather than being the invocation of any constitutional privilege, is the failure of the employee to answer. California has not predicated discharge on any "built-in" inference of guilt in its statute, but solely on employee insubordination for failure to give information which we have held that the State has a legitimate interest in securing. See Garner v. Board of Public Works of Los Angeles, 341 U. S. 716 (1951); Adler v. Board of Education, 342 U. S. 485 (1952). Moreover, it must be remembered that here -- unlike Slochower -- the Board had specifically ordered its employees to appear and answer.We conclude that the case is controlled by Beilan v. Board of Education of Philadelphia, 357 U. S. 399 (1958), and Lerner v. Casey, 357 U. S. 468 (1958). It is not determinative that the interrogation here was by a federal body, rather than a state one, as it was in those cases. Globe had been ordered by his employer as well as by California's law to appear and answer questions before the federal Subcommittee. These mandates made no reference to Fifth Amendment privileges. If Globe had simply refused, without more, to answer the Subcommittee's questions, we think that, under the principles of Beilan and Lerner, California could certainly have discharged him. The fact that he chose to place his refusal on a Fifth Amendment claim puts the matter in no different posture, for, as in Lerner, supra, at 357 U. S. 477, California did not employ that claim as the basis for drawing an inference of guilt. Nor do we think that this discharge Page 362 U. S. 8 is vitiated by any deterrent effect that California's law might have had on Globe's exercise of his federal claim of privilege. The State may nevertheless legitimately predicate discharge on refusal to give information touching on the field of security. See Garner and Adler, supra. Likewise, we cannot say as a matter of due process that the State's choice of securing such information by means of testimony before a federal body [Footnote 4] can be denied. Finally, we do not believe that California's grounds for discharge constituted an arbitrary classification. See Lerner, id. at 357 U. S. 478. We conclude that the order of the County Board was not invalid under the Due Process Clause of the Fourteenth Amendment.Nor do we believe that the remand on procedural grounds required in Vitarelli v. Seaton, 359 U. S. 535 (1959), has any bearing here. First, we did not reach the constitutional issues raised in that case. Next, Vitarelli was a Federal Department of Interior employee who "could have been summarily discharged by the Secretary at any time without the giving of a reason." Id. at 359 U. S. 539. The Court held, however, that, since Vitarelli was dismissed on the grounds of national security, rather than by summary discharge, and his dismissal "fell substantially short of the requirements of the applicable departmental regulations," it was "illegal and of no effect." Id. at 359 U. S. 545. But petitioner here raises no such point, and clearly asserts that "whether or not petitioner Globe was accorded a hearing is not the issue here." [Footnote 5] He bases his whole case on the claim"that due process affords petitioner Globe protection against the State's depriving him of employment on this Page 362 U. S. 9 arbitrary ground"of his refusal on federal constitutional grounds to answer questions of the Subcommittee. Having found that, on the record here, the discharge for "insubordination" was not arbitrary, we need go no further.We do not pass upon petitioner's contention as to the Privileges and Immunities Clause of the Fourteenth Amendment, since it was neither raised in nor considered by the California courts. The judgments areAffirmed

U.S. Supreme CourtNelson v. Los Angeles County, 362 U.S. 1 (1960)Nelson v. Los Angeles CountyNo. 152Argued January 13, 1960Decided February 29, 1960362 U.S. 1SyllabusPetitioners, when employees of a California County, were subpoenaed by and appeared before a Subcommittee of the House Un-American Activities Committee, but, in violation of specific orders of the County Board of Supervisors and the requirements of §1028.1 of the Government Code of California, refused to answer certain questions concerning subversion. The County discharged them on grounds of insubordination and violation of §1028.1. Nelson, a permanent employee, was given a Civil Service Commission hearing, which resulted in confirmation of his discharge. Globe, a temporary employee, was denied a hearing, since he was not entitled to it under the applicable rules. Both sued for reinstatement, contending that §1028.1 and their discharges violated the Due Process Clause of the Fourteenth Amendment, but their discharges were affirmed by a California State Court.Held:1. In Nelson's case, the judgment is affirmed by an equally divided Court. P. 362 U. S. 4.2. Globe's discharge did not violate the Due Process Clause of the Fourteenth Amendment, and the judgment in his case is affirmed. Pp. 362 U. S. 4-9.(a) Globe's discharge was not based on his invocation before the Subcommittee of his rights under the First and Fifth Amendments; it was based solely on insubordination and violation of §1028.1. P. 362 U. S. 6. Page 362 U. S. 2(b) Under California law, Globe had no vested right to county employment, and was subject to summary discharge. P. 362 U. S. 6.(c) Globe's discharge was not arbitrary and unreasonable. Slochower v. Board of Education, 350 U. S. 551, distinguished. Beilan v. Board of Education, 357 U. S. 399, and Lerner v. Casey, 357 U. S. 468, followed. Pp. 362 U. S. 6-8.(d) The remand on procedural grounds required in Vitarelli v. Seaton, 359 U. S. 535, has no bearing on this case. Pp. 362 U. S. 8-9.163 Cal. App. 2d 607, 329 P.2d 978, affirmed by an equally divided Court.163 Cal. App. 2d 595, 329 P.2d 971, affirmed.

1983_82-874

JUSTICE MARSHALL delivered the opinion of the Court.This case raises an issue concerning this Court's mandatory jurisdiction. Federal courts of appeals have jurisdiction over appeals from all final decisions of district courts, "except where a direct review may be had in the Supreme Court." 28 U.S.C. § 1291. Section 1252 of Title 28 provides for such a direct appeal from a United States court's judgment, in a civil proceeding to which the Government is a party, holding that an Act of Congress is unconstitutional. The issue before us is whether the Court of Appeals properly dismissed for lack of jurisdiction the Secretary of Health and Human Services' appeal from a proceeding in which a federal statute was declared unconstitutional, but in which the Secretary challenged only the District Court's remedy.IRespondent filed this suit against the Secretary of Health and Human Services in the United States District Court for the Northern District of California in October, 1980. On behalf of a nationwide class of Social Security applicants and recipients, respondent challenged the constitutionality of § 211(a)(5)(A) of the Social Security Act, 64 Stat. 502, as amended, 42 U.S.C. § 411(a)(5)(A), which established a gender-based presumption concerning the allocation of income from family businesses in community property States, [Footnote 1] Page 465 U. S. 873 In pretrial proceedings, the Secretary argued that the constitutional ruling sought by the class was unnecessary, because the Secretary acquiesced in judicial precedents holding the challenged provision unconstitutional. [Footnote 2] Indeed, shortly after respondent's complaint was filed, the Attorney General formally notified Congress that the Executive would not defend the constitutionality of the section. [Footnote 3] The District Court Page 465 U. S. 874 nevertheless rejected the Secretary's claim of mootness, and granted respondent's motion for summary judgment. [Footnote 4] According to the court, although the Secretary "essentially conceded the unconstitutionality of § 411(a)(5)(A)," a ruling on the merits was necessary because the Department was still applying the challenged statutory section. [Footnote 5]Having held the statute unconstitutional, the District Court turned to the issue of relief. The unconstitutional provision had provided that all gross income and deductions derived from a nonpartnership trade or business in community property jurisdictions should be attributed to the husband unless the wife could establish that she exercised substantially all of the management and control of the business, in which case all income would be treated as the wife's. Having struck down this gender-based presumption, the court found the respondent class entitled to an allocation of co-proprietor income between the spouses' earnings accounts on the basis of the relative amount of labor contributed by each. Finding that retroactive application of its holding was appropriate under the tests of Chevron Oil Co. v. Huson, 404 U. S. 97, 404 U. S. 106-107 (1971), the court found that class members "are entitled to a recomputation of their earnings records, extending back to the beginning of Social Security if necessary." Edwards v. Schweiker, No. C-80-3959 (ND Cal., Jan. 22, 1982). The court entered judgment March 23, 1982. Page 465 U. S. 875The following week, the Secretary filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit. [Footnote 6] In the Secretary's docketing statement, filed on May 5, 1982, the Secretary listed only matters concerning the remedy ordered by the District Court, noting that the Government conceded the unconstitutionality of the statute. [Footnote 7] Respondent filed a motion to dismiss the Secretary's appeal, contending that the Court of Appeals did not have jurisdiction under 28 U.S.C. § 1291 "where a direct review may be had in the Supreme Court." Respondent argued that the Secretary had such a right to direct review to the Supreme Court under 28 U.S.C. § 1252, because the District Court had held a statute unconstitutional in a civil action to which a United States officer was a party. In a one-sentence order dated July 27, Page 465 U. S. 876 1982, the Court of Appeals for the Ninth Circuit granted respondent's motion to dismiss for lack of jurisdiction, citing Donovan v. Richland County Assn. for Retarded Citizens, 454 U. S. 389 (1982) (per curiam). The Secretary timely filed a petition for certiorari to the Ninth Circuit seeking our review of this dismissal. Because the petition raised an important question concerning this Court's mandatory docket, we granted certiorari. 459 U.S. 1200 (1983). We conclude that a party does not have a right to direct review in the Supreme Court under 28 U.S.C. § 1252 unless the holding of federal statutory unconstitutionality is in issue. We therefore vacate and remand for reinstatement of the appeal.IIIn the normal course, a party dissatisfied with the judgment of a United States district court must first appeal to the court of appeals, and may then petition for a writ of certiorari in the Supreme Court. Recourse to the court of appeals is a matter of right, 28 U.S.C. § 1291; writs of certiorari are granted at the discretion of the Supreme Court, § 1254(1). The general rule of discretionary Supreme Court review is not without exceptions. Although this Court's mandatory jurisdiction has been minimized through legislation such as the Judge's Bill of 1925 [Footnote 8] and the 1976 repeal of most of the Three Judge District Court Act, [Footnote 9] Congress has identified a narrow group of cases that merit the immediate and mandatory attention of this Court. Section 1252 is such a direct appeal provision. Page 465 U. S. 877When a party has a right to pursue a direct appeal to this Court under § 1252, the normal route for appellate review is blocked, and a court of appeals is without jurisdiction. Donovan v. Richland County Assn. for Retarded Citizens, supra, at 454 U. S. 389-390. Thus, the consequence of an erroneous choice of forum can be to preclude any court's review, because by the time a party discovers its error, appeal to the correct forum may be untimely. To avoid that consequence, litigants ought to be able to apply a clear test to determine whether, as an exception to the general rule of appellate review, they must perfect an appeal directly to the Supreme Court. Such a test, of course, must be crafted "with precision and with fidelity to the terms by which Congress has expressed its wishes" in the jurisdictional statute. Cheng Fan Kwok v. INS, 392 U. S. 206, 392 U. S. 212 (1968).The Secretary and respondent offer different tests. Respondent's position is that, when the "literal requirements of § 1252 are satisfied," only the Supreme Court has jurisdiction. Williams v. Zbaraz, 448 U. S. 358, 448 U. S. 366 (1980); see also INS v. Chadha, 462 U. S. 919, 462 U. S. 929 (1983) ("express requisites for an appeal under § 1252 . . . have been met"). Section 1252 establishes four prerequisites for a direct appeal to the Supreme Court: the order appealed from must issue from an enumerated court; the United States or an agency or officer must be a party; the proceeding must be civil; and the order must hold an Act of Congress unconstitutional. Those prerequisites are met in the present case. Therefore, respondent argues, the Secretary's sole avenue for appellate review of the judgment was by direct appeal to this Court. Because the Secretary did not file a notice of appeal to this Court within 30 days of the District Court's order, 28 U.S.C. § 2101(a), respondent contends that the Secretary has lost her right to appellate review of any aspect of the District Court's orders.The Secretary claims that direct review under § 1252 is available only when the correctness of the constitutional holding Page 465 U. S. 878 is at issue. She argues that a close examination of the statute and its enactment supports the conclusion that the constitutional holding must be raised on appeal, and not merely decided below, before a party must invoke direct review by the Supreme Court. Under this reading, the Secretary sought review in the proper forum because she challenged the scope of the District Court's remedy, and not the correctness of its constitutional ruling. Indeed, by the Secretary's reasoning, had she filed an appeal in this Court, we would have dismissed for lack of jurisdiction.To articulate a test to resolve the present dispute and to provide guidance for litigants and courts in future cases, we begin with the language and structure of the statute itself."Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and any court of record of Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.""A party who has received notice of appeal under this section shall take any subsequent appeal or cross appeal to the Supreme Court. All appeals or cross appeals taken to other courts prior to such notice shall be treated as taken directly to the Supreme Court."28 U.S.C. § 1252. A literal reading of § 1252 tells us that parties have a right to direct appeal from a "judgment, decree or order," and not merely a right to direct appeal of a court's "holding an Act of Congress unconstitutional." Under the literal language, a party not contesting the constitutional holding would seem to be required to proceed directly to this Court for review of other aspects of the court's judgment. That literal reading Page 465 U. S. 879 gains support from the fact that Congress has not limited our review under § 1252 to the federal constitutional issue, but has mandated that, when we have properly asserted jurisdiction under § 1252, the whole case is to come before us. [Footnote 10]Section 1252, however, presents a case in which"to give the surface literal meaning to a jurisdictional provision . . . would not be consistent with the 'sense of the thing' and would confer upon this Court a jurisdiction beyond what 'naturally and properly belongs to it.' [Footnote 11] When Congress created the exceptional right to bypass the court of appeals, it directly linked that right to a lower court's invalidation of an Act of Congress. Although it is in the nature of cases and controversies that the court's judgment may address not only the issue of statutory constitutionality, but other issues as well, such as attorney's fees, remedy, or related state law claims, the natural sense of the jurisdictional provision is that the holding of statutory unconstitutionality, not these other issues, is what Congress wished this Court to review in the first instance. Thus, the sense of the statute and the literal language are at loggerheads."The structure of § 1252 helps resolve this tension, and leads us towards the common-sense view that the constitutional holding must be at issue for direct review in this Court to lie. The first paragraph of § 1252 grants the right of direct appeal from the judgment holding an Act of Congress unconstitutional; the second paragraph brings before us the whole case, including appeals filed before and after the constitutional appeal. [Footnote 12] The clear implication of the second paragraph is that Page 465 U. S. 880 parties may have properly lodged appeals in other courts prior to a § 1252 filing. Only after a party has filed a notice of direct appeal pursuant to § 1252 must all other appeals and cross-appeals in the case be taken here. The necessary corollary is that, in the absence of such notice, other appeals in the case will follow the normal route for appellate review. The conclusion inherent in the structure of § 1252 is that not all appeals in a case in which an Act of Congress has been held unconstitutional must be taken directly to this Court. Because direct review is linked to a court's holding a federal statute unconstitutional, the logical test of which appeals from a judgment must be brought directly to this Court and which, standing alone, must follow the normal route of appellate review, is whether the issue on appeal is the holding of statutory unconstitutionality.The history of the enactment of § 1252's statutory predecessor [Footnote 13] also guides us to a conclusion that Congress considered Page 465 U. S. 881 the jurisdictional predicate for mandatory direct review by the Supreme Court to be appeal from the constitutional holding. [Footnote 14] Three interrelated justifications for expediting final determinations of the constitutionality of federal statutes recur in discussions of the direct appeal provision. First, when a federal judge strikes down an act of a coequal branch of government, the decision implicates separation of powers, [Footnote 15] not only through the original exercise of judicial review, but also through this Court's exercise of discretion to hear such a case. By mandating direct review, Congress asserted its prerogative to define a category of important cases that the Court is not free to ignore. [Footnote 16] Second, Congress justified Page 465 U. S. 882 imposing mandatory jurisdiction on the Supreme Court because of the need for certainty and uniformity in federal government when an Act may have been declared unconstitutional. It is significant that the first paragraph of § 1252 authorizes a direct appeal to this Court only in civil actions "to which the United States or any of its agencies, or any officer or employee thereof, . . . is a party"; no direct appeal lies if there are only nonfederal parties to the suit. That language reveals a congressional purpose to assure an expeditious means of affirming or removing the restraint on the Federal Government's administration of the law when it would be bound by a holding that the law in question is unconstitutional. [Footnote 17]Finally, Congress expressed its sense that declarations of unconstitutionality have ramifications beyond the interests of litigants in the particular case. For this reason, the predecessor statute created the right of intervention by the Attorney General in cases between private parties when the constitutionality of an Act of Congress was drawn into question, [Footnote 18] as well as the right to direct appeal from a holding Page 465 U. S. 883 of unconstitutionality. The Senate Report emphasized that the"decision of the constitutional question may affect the public at large, may be in respect of matters which by the Constitution are entrusted to the care of the Nation, and concerning which the Nation owes a duty to all the citizens of securing to them their common rights."S.Rep. No. 963, 75th Cong., 1st Sess., 4 (1937). [Footnote 19]The first two of these concerns are not implicated in cases in which the Government concedes statutory unconstitutionality by its decision not to appeal that aspect of the district court's judgment. Such cases raise no separation of powers issue, nor do they implicate the need for certainty and uniformity in the administration of federal law. In the present case, for example, the Attorney General, charged with enforcing federal laws, informed the Congress that he agreed with the courts that the challenged provision in the Social Security Act was unconstitutional. [Footnote 20] Furthermore, prior to seeking review of the District Court's judgment, the Secretary had agreed not to enforce the statute anywhere Page 465 U. S. 884 and the District Court's remedial order was in effect nationwide. The decision not to raise the issue of statutory unconstitutionality on appeal obviously was intended to bind the Secretary in her nationwide administration of the Social Security Act. When the court and the affected agency reach the same conclusion, there is no need to resort to direct review under 28 U.S.C. § 1252 in an effort to remove the binding effect on the Executive Branch's administration of the law.The only justification for exerting mandatory jurisdiction in such cases might be the considerable ramifications of district court orders; here, for example, the District Court's remedy provided retroactive relief for a nationwide class. We do not believe that serious consequences alone can support the exercise of our § 1252 jurisdiction. Congress did not enact an open-ended "impact" test for determining which cases should come to this Court for direct review. Although remedial aspects of a case are important, the touchstone of direct appeal under § 1252 is not a party's or our own judgment of the significance of a decision. We exercise that judgment under our discretion to grant certiorari in any civil or criminal case before, as well as after, rendition of judgment. 28 U.S.C. § 1254(1); this Court's Rule 18. In § 1252, Congress mandated direct review not simply for decisions with impact, but rather for decisions whose impact was predicated upon a potentially incorrect exercise of judicial review. See nn. 15 16 supra.Not only are Congress' justifications for creating an expedited method of direct review not present in cases such as this, but a construction of § 1252 that would require us to review collateral issues coming to us as independent matters, rather than as pendent to the holding of statutory unconstitutionality, would undermine the effectiveness of the direct appeal provision. If we were to adopt respondent's construction of the language, this Court would be required to give precedence to issues outside the congressional definition Page 465 U. S. 885 of public importance. We would, for example, be obliged to crowd our docket with appeals concerned solely with attorney's fee awards or pendent claims arising under state law -- matters that would typically fail to meet our criteria for discretionary review. See this Court's Rule 17. Appeals of this sort would almost certainly be better handled by the courts of appeals, which is where they will lie under the interpretation of § 1252 that we adopt today.IIIWe conclude, therefore, that § 1252 does not warrant a construction that would require appeals raising only issues other than statutory unconstitutionality to be taken directly to this Court. If the four prerequisites to direct appeal pursuant to 28 U.S.C. § 1252 are met, and a party seeks review of the court's holding that an Act of Congress is unconstitutional, that party should file a notice of appeal to the Supreme Court. If a party does not contest the holding of statutory unconstitutionality, and seeks review only of another portion of the court's judgment, the party should file a notice of appeal to the appropriate court of appeals. Although the formal prerequisites to direct appeal under § 1252 were met in the present case, the Secretary did not contest the holding of statutory unconstitutionality. Therefore, the Secretary's appeal belonged in the first instance in the Court of Appeals, which should not have dismissed the appeal for lack of jurisdiction. The judgment of the Court of Appeals is therefore vacated, and the cause is remanded for reinstatement of the Secretary's appeal.It is so ordered

U.S. Supreme CourtHeckler v. Edwards, 465 U.S. 870 (1984)Heckler v. EdwardsNo. 82-874Argued November 30, 1983Decided March 21, 1984465 U.S. 870SyllabusTitle 28 U.S.C. § 1291 grants federal courts of appeals jurisdiction over appeals from all final decisions of district courts, "except where a direct review may be had in the Supreme Court." Title 28 U.S.C. § 1252 provides in its first paragraph for such a direct appeal from a district court judgment holding an Act of Congress unconstitutional in any civil action to which the United States or any of its agencies, or an officer or employee thereof, is a party. Section 1252 further provides in its second paragraph that a party who has received notice of an appeal under the section shall take any subsequent appeal to the Supreme Court, and that all appeals taken to other courts prior to such notice shall be treated as taken directly to the Supreme Court. Respondent filed a class action in Federal District Court against petitioner Secretary of Health and Human Services, challenging the constitutionality of § 211(a)(5)(A) of the Social Security Act, which provides that all gross income and deductions derived from a family business in community property States shall be attributed to the husband unless the wife can establish that she exercised substantially all of the management and control of the business, in which case all income would be treated as the wife's. Although petitioner conceded the unconstitutionality of § 211(a)(5)(A)'s gender-based presumption, the District Court nevertheless rejected petitioner's claim of mootness, held the statute unconstitutional, and granted respondent's motion for summary judgment. The court then found the respondent class entitled retroactively to an allocation of co-proprietor income between the spouses' earnings accounts on the basis of labor contributed by each. Petitioner appealed to the Court of Appeals, challenging only the District Court's remedy. The Court of Appeals granted respondent's motion to dismiss the appeal for lack of jurisdiction under § 1291, because direct review could be had in this Court pursuant to § 1252.Held: A party does not have a right to direct review in this Court under § 1252 unless the district court's holding of federal statutory unconstitutionality is in issue, and hence here the Court of Appeals improperly dismissed petitioner's appeal for lack of jurisdiction, since only the District Court's remedy was challenged. Pp. 465 U. S. 876-885.(a) While a literal reading of § 1252 would seem to give a party a right to a direct appeal to this Court under the circumstances of this case, the Page 465 U. S. 871 natural sense of § 1252 is that the holding of statutory unconstitutionality, not other issues such as attorney's fees, remedy, or related state law claims, is what Congress wished this Court to review in the first instance. Pp. 465 U. S. 877-879.(b) Section 1252's structure supports this view. The conclusion inherent in that structure is that not all appeals in a case in which an Act of Congress has been held unconstitutional must be taken directly to this Court, the necessary corollary to the second paragraph of § 1252 being that, in the absence of a notice of appeal under § 1252, other appeals in the case will follow the normal route for appellate review. Because direct review is linked to a court's holding a federal statute unconstitutional, the logical test of which appeals from a judgment must be brought directly to this Court and which, standing alone, must follow the normal route of appellate review, is whether the issue on appeal is the holding of statutory unconstitutionality. Pp. 465 U. S. 879-880.(c) The legislative history also supports the view that Congress considered the jurisdictional predicate for mandatory review by this Court to be appeal from the constitutional holding. Congress' concerns in enacting § 1252's predecessor about the separation of powers and the need for certainty and uniformity in the administration of federal law are not implicated in cases in which the Government concedes statutory unconstitutionality by its decision not to appeal that aspect of the district court's judgment. The only justification for exerting this Court's mandatory jurisdiction in a case such as this might be the considerable ramifications of district court orders, but serious consequences alone cannot support the exercise of such jurisdiction. Although remedial aspects of a case are important, the touchstone of direct appeal under § 1252 is not a party's or this Court's own judgment of the significance of a decision. In § 1252, Congress mandated direct review not simply for decisions with impact, but rather for decisions whose impact was predicated upon a potentially incorrect exercise of judicial review. A construction of § 1252 that would require this Court to review collateral issues as independent matters, rather than as pendent to the holding of statutory unconstitutionality, would undermine the effectiveness of the direct appeal provision. Pp. 465 U. S. 880-885.Vacated and remanded.MARSHALL, J., delivered the opinion for a unanimous Court. Page 465 U. S. 872

1964_2

MR. JUSTICE CLARK delivered the opinion of the Court.These are "sit-in" cases that came here from the highest courts of South Carolina and Arkansas, respectively. Each of those courts affirmed convictions based upon state trespass statutes against petitioners, who are Negroes, for participating in "sit-in" demonstrations in the luncheon facilities of retail stores in their respective States. We granted certiorari in each of the cases, 377 U.S. 988, 989, and consolidated them for argument. The petitioners asserted both in the state courts and here the denial of rights, privileges, and immunities secured by the Fourteenth Amendment; in addition, they claim here that the Civil Rights Act of 1964, 78 Stat. 241, passed subsequent to their convictions and the affirmances thereof in the state courts, abated these actions.1. The Facts.In No. 2, Hamm v. Rock Hill, the petitioner, and a companion who is now deceased, entered McCrory's variety store at Rock Hill, South Carolina. After making purchases in other parts of the store, they proceeded to the lunch counter and sought service. It was refused. The manager asked the petitioner and his associate to leave, and, when they refused, he called the police. They were prosecuted and convicted under § 16-388 of the S.C. Code of Laws, making it an offense for anyone to enter a place of business after having been warned not to do so Page 379 U. S. 308 or to refuse to leave immediately after having entered therein. Petitioner's companion died subsequently. The conviction of petitioner was affirmed by both the Court of General Sessions and the Supreme Court of South Carolina, 241 S.C. 420, 128 S.E.2d 907 (1962).Lupper v. Arkansas, No. 5, involves a group of Negroes who entered the department store of Gus Blass Company in Little Rock. The group went to the mezzanine tea room of the store at the busy luncheon hour, seated themselves, and requested service which was refused. Within a few minutes, the group, including petitioners, was advised that Blass reserved the right to refuse service to anyone, and was not prepared to serve them at that time. Upon being requested to leave, the petitioners refused. The police officers who were summoned located petitioners on the first floor of the store and arrested them. The officers' testimony that petitioners admitted the whole affair was denied. The prosecutions in the Little Rock Municipal Court resulted in convictions of petitioners based upon § 41-1433, Ark.Stat.Ann. (1964 Repl. Vol.), which prohibits a person from remaining on the premises of a business establishment after having been requested to leave by the owner or manager thereof. On appeal to the Pulaski Circuit Court, a trial de novo resulted in verdicts of guilty, and the Arkansas Supreme Court affirmed, 236 Ark. 596, 367 S.W.2d 750 (1963), sub nom. Briggs v. State.We hold that the convictions must be vacated and the prosecutions dismissed. The Civil Rights Act of 1964 forbids discrimination in places of public accommodation, and removes peaceful attempts to be served on an equal basis from the category of punishable activities. Although the conduct in the present cases occurred prior to enactment of the Act, the still-pending convictions are abated by its passage. Page 379 U. S. 3092. Application of Title II of the Civil Rights Act of 1964to the Facts HereWe treat these cases as involving places of public accommodation covered by the Civil Rights Act of 1964. Under that statute, a place of public accommodation is defined to include one which serves or offers to serve interstate travelers. Applying the rules of §§ 201(b)(2), (c), [Footnote 1] we find that each of them offers to serve interstate travelers. In Hamm, it is not denied that the lunch counter was in a McCrory's 5-and-10-cent store, a large variety store at Rock Hill belonging to a national chain, which offers to sell thousands of items to the public; that it invites all members of the public into its premises to do business, and offers to serve all persons except at its lunch counter, which is restricted to white persons only. There is no contention here that it does not come within the Act. Likewise in Lupper, the lunch counter area, called a tea room, is located within and operated by the Gus Blass Company's department store at Little Rock. It is a large department store dealing extensively in interstate commerce. It appears from the record that it also offered to serve all persons coming into its store, but limited its lunch counter service to white persons. On argument, it was frankly admitted that the Page 379 U. S. 310 lunch counter operation "probably would" come under the Act. Finally, neither respondent asks for a remand to determine the facts as to coverage of the respective lunch counters. [Footnote 2] In the light of such a record and the legislative history indicating that Congress intended to cover retail store lunch counters, see 110 Cong.Rec. 1519-1520, we hold that the Act covers both the McCrory and the Blass lunch counter operations.3. The Provisions of the Act.Under the Civil Rights Act, petitioners' conduct could not be the subject of trespass prosecutions, federal or state, if it had occurred after the enactment of the statute.Title II includes several sections, some of which are relevant here, that create federal statutory rights. [Footnote 3] The first is § 201(a), declaring that"[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation,"which as we have found includes the establishments here involved. Next, § 203 provides:"No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive, any person of any right or privilege secured by section 201 or 202, or (b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person with the purpose of interfering with any right or Page 379 U. S. 311 privilege secured by section 201 or 202, or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 or 202."(Emphasis supplied.)On its face, this language prohibits prosecution of any person for seeking service in a covered establishment, because of his race or color. It has been argued, however, that victims of discrimination must make use of the exclusive statutory mechanisms for the redress of grievances, and not resort to extralegal means. Although we agree that the law generally condemns self-help, the language of § 203(c) supports a conclusion that nonforcible attempts to gain admittance to or remain in establishments covered by the Act, are immunized from prosecution, for the statute speaks of exercising or attempting to exercise a "right or privilege" secured by its earlier provisions. The availability of the Act as a defense against punishment is not limited solely to those who pursue the statutory remedies. The legislative history specifically notes that the Act would be a defense to criminal trespass, breach of the peace, and similar prosecutions. Senator Humphrey, floor manager of the bill in the Senate, said in explaining the bill:"This plainly means that a defendant in a criminal trespass, breach of the peace, or other similar case can assert the rights created by 201 and 202, and that State Courts must entertain defenses grounded upon these provisions. . . ."110 Cong.Rec. 9767. In effect, the Act prohibits the application of state laws in a way that would deprive any person of the rights granted under the Act. The Supremacy Clause, Art. VI, cl. 2, requires this result where "there is a clear collision" between state and federal law, Kesler v. Department of Safety, 369 U. S. 153, 369 U. S. 172 (1962), or a conflict between Page 379 U. S. 312 federal law and the application of an otherwise valid state enactment, Hill v. Florida, 325 U. S. 538 (1945). There can be no question that this was the intended result here in light of § 203(c). The present convictions and the command of the Civil Rights Act of 1964 are clearly in direct conflict. The only remaining question is the effect of the Act on judgments rendered, but not finalized, before its passage.4. Effect of the Act upon the Prosecutions.Last Term, in Bell v. Maryland, 378 U. S. 226, we noted the existence of a body of federal and state law to the effect that convictions on direct review at the time the conduct in question is rendered no longer unlawful by statute, must abate. We consider first the effect the Civil Rights Act would have on petitioners' convictions if they had been federal convictions, and then the import of the fact that these are state, and not federal, convictions. We think it is clear that the convictions, if federal, would abate.The doctrine found its earliest expression in Chief Justice Marshall's opinion in United States v. Schooner Peggy, 1 Cranch 103, 5 U. S. 110 (1801):"But if, subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed or its obligation denied. If the law be constitutional . . . , I know of no court which can contest its obligation. It is true that, in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . . . , [the law] ought always to receive a construction conforming to its manifest import. . . . In such a case, the court must decide according to existing laws, and if it Page 379 U. S. 313 be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside."Although the decision in that case arguably rested on the premise that appeals in admiralty were trials de novo, and that prize litigation applied the law of the time of trial, See Yeaton v. United States, 5 Cranch 281, 9 U. S. 283 (1809); Maryland v. Baltimore & O. R. Co., 3 How. 534, 44 U. S. 552 (1845); United States v. Tynen, 11 Wall. 88, 78 U. S. 95 (1871); United States v. Reisinger, 128 U. S. 398, 128 U. S. 401 (1888); United States v. Chambers, 291 U. S. 217, 291 U. S. 222-223 (1934); Massey v. United States, 291 U. S. 608 (1934), the later cases applied the rule in quite different contexts, see United States v. Tynen, supra; United States v. Reisinger, supra. The reason for the rule was stated by Chief Justice Hughes in United States v. Chambers:"Prosecution for crimes is but an application or enforcement of the law, and, if the prosecution continues, the law must continue to vivify it."291 U. S. 291 U.S. 217 at 291 U. S. 226. Although Chambers specifically left open the question of the effect of its rule on cases where final judgment was rendered prior to ratification of the Twenty-first Amendment and petition for certiorari sought thereafter, such an extension of the rule was taken for granted in the per curiam decision in Massey v. United States, supra, handed down shortly after Chambers.It is apparent that the rule exemplified by Chambers does not depend on the imputation of a specific intention to Congress in any particular statute. None of the cases cited drew on any reference to the problem in the legislative history or the language of the statute. Rather, the principle takes the more general form of imputing to Congress an intention to avoid inflicting punishment at a time when it can no longer further any legislative purpose, and would be unnecessarily vindictive. This general principle expressed in the rule is to be read wherever Page 379 U. S. 314 applicable as part of the background against which Congress acts. Thus, we deem it irrelevant that Congress made no allusion to the problem in enacting the Civil Rights Act.Nor do we believe that the provisions of the federal saving statute, 61 Stat. 635, 1 U.S.C. § 109 (1958 ed.), would nullify abatement of a federal conviction. In Chambers, a case where the cause for punishment was removed by a repeal of the constitutional basis for the punitive statute, the Court was quite certain as to this. See 291 U.S. at 291 U. S. 224 and n. 2, involving the identical statute. The federal saving statute was originally enacted in 1871, 16 Stat. 432. It was meant to obviate mere technical abatement such as that illustrated by the application of the rule in Tynen, decided in 1871. There, a substitution of a new statute with a greater schedule of penalties was held to abate the previous prosecution. In contrast, the Civil Rights Act works no such technical abatement. It substitutes a right for a crime. So drastic a change is well beyond the narrow language of amendment and repeal. It is clear therefore that, if the convictions were under a federal statute, they would be abated.We believe the fact that the convictions were under state statutes is, in these cases, a distinction without a difference. [Footnote 4] We cannot believe the Congress, in enacting such a far-reaching and comprehensive scheme, intended the Act to operate less effectively than the "run of Page 379 U. S. 315 the mill" repealer. Since the provisions of the Act would abate all federal prosecutions, it follows that the same rule must prevail under the Supremacy Clause, which requires that a contrary state practice or state statute must give way. Here, the Act intervened before either of the judgments under attack was finalized. Just as in federal cases, abatement must follow in these state prosecutions. Rather than a retroactive intrusion into state criminal law, this is but the application of a longstanding federal rule, namely, that, since the Civil Rights Act substitutes a right for a crime any state statute or its application to the contrary must, by virtue of the Supremacy Clause, give way under the normal abatement rule covering pending convictions arising out of a preenactment activity. The great purpose of the civil rights legislation was to obliterate the effect of a distressing chapter of our history. This demands no less than the application of a normal rule of statutory construction to strike down pending convictions inconsistent with the purposes of the Act.Far from finding a bar to the application of the rule where a state statute is involved, we find that our construction of the effect of the Civil Rights Act is more than statutory. It is required by the Supremacy Clause of the Constitution. See Kesler v. Department of Safety, 369 U. S. 153, 369 U. S. 172 (1962); Hill v. Florida, 325 U. S. 538 (1945). Future state prosecutions under the Act being unconstitutional, and there being no saving clause in the Act itself, convictions for preenactment violations would be equally unconstitutional, and abatement necessarily follows.Nor do we find persuasive reasons for imputing to the Congress an intent to insulate such prosecutions. As we have said, Congress, as well as the two Presidents who recommended the legislation, clearly intended to eradicate an unhappy chapter in our history. The peaceful conduct for which petitioners were prosecuted was on behalf Page 379 U. S. 316 of a principle since embodied in the law of the land. The convictions were based on the theory that the rights of a property owner had been violated. However, the supposed right to discriminate on the basis of race, at least in covered establishments, was nullified by the statute. Under such circumstances, the actionable nature of the acts in question must be viewed in the light of the statute and its legislative purpose.We find yet another reason for applying the Chambers rule of construction. In our view, Congress clearly had the power to extend immunity to pending prosecutions. Some might say that to permit these convictions to stand would have no effect on interstate commerce, which we have held justified the adoption of the Act. But, even if this be true, the principle of abatement is so firmly imbedded in our jurisprudence as to be a necessary and proper part of every statute working a repealer of criminal legislation. Where Congress sets out to regulate a situation within its power, the Constitution affords it a wide choice of remedies. This being true, the only question remaining is whether Congress exercised its power in the Act to abate the prosecutions here. If we held that it did not, we would then have to pass on the constitutional question of whether the Fourteenth Amendment, without the benefit of the Civil Rights Act, operates of its own force to bar criminal trespass convictions where, as here, they are used to enforce a pattern of racial discrimination. As we have noted, some of the Justices joining this opinion believe that the Fourteenth Amendment does so operate; others are of the contrary opinion. Since this point is not free from doubt, and since as we have found Congress has ample power to extend the statute to pending convictions, we avoid that question by favoring an interpretation of the statute which renders a constitutional decision unnecessary. Page 379 U. S. 317In short, now that Congress has exercised its constitutional power in enacting the Civil Rights Act of 1964 and declared that the public policy of our country is to prohibit discrimination in public accommodations as therein defined, there is no public interest to be served in the further prosecution of the petitioners. And, in accordance with the long established rule of our cases, they must be abated, and the judgment in each is therefore vacated, and the charges are ordered dismissed.It is so ordered

U.S. Supreme CourtHamm v. City of Rock Hill, 379 U.S. 306 (1964)Hamm v. City of Rock HillNo. 2Argued October 12, 1964Decided December 14, 1964*379 U.S. 306SyllabusThe petitioners, who are Negroes, were convicted for violations of state trespass statutes for participating in "sit-ins" at lunch counters of retail stores. It was conceded that the lunch counter operations would probably come within the coverage of the Civil Rights Act of 1964, which was passed subsequent to the convictions and the affirmances thereof in the state courts.Held:1. The Act creates federal statutory rights which, under the Supremacy Clause, must prevail over any conflicting state laws. Pp. 379 U. S. 310-312.2. These convictions, being on direct review at the time the Act made the conduct no longer unlawful, must abate. Pp. 379 U. S. 312-317.(a) Had these been federal convictions, they would have abated, Congress presumably having intended to avoid punishment no longer furthering a legislative purpose, and the general federal saving statute being applicable to a statute like this which substitutes a right for what was previously criminal. Pp. 379 U. S. 312-314.(b) Though these were state convictions, their abatement is likewise required not only under the Supremacy Clause, and because the pending convictions are contrary to the legislative purpose of the Act, but also because abatement is a necessary part of every statute which repeals criminal legislation. Pp. 379 U. S. 314-317.241 S.C. 420, 128 S.E.2d 907; 236 Ark. 596, 367 S.W.2d 750, judgments vacated and charges ordered dismissed. Page 379 U. S. 307

1975_74-1529

MR. JUSTICE STEVENS delivered the opinion of the Court.The question presented is whether a defendant may enter a voluntary plea of guilty to a charge of second-degree murder without being informed that intent to cause the death of his victim was an element of the offense.The case arises out of a collateral attack on a judgment entered by a state trial court in Fulton County, N.Y., in 1965. Respondent, having been indicated on a charge of first-degree murder, pleaded guilty to second-degree murder and was sentenced to an indeterminate term of imprisonment of 25 years to life. He did not appeal.In 1970, respondent initiated proceedings in the New York courts seeking to have his conviction vacated on Page 426 U. S. 639 the ground that his plea of guilty was involuntary. [Footnote 1] The state courts denied relief on the basis of the written record. [Footnote 2] Having exhausted his state remedies, [Footnote 3] in 1973, respondent filed a petition for writ of habeas corpus in the United States District Court for the Northern District of New York. [Footnote 4] He alleged that his guilty plea was involuntary because he was not aware (1) of the sentence that might be imposed upon conviction of second-degree murder, or (2) that intent to cause death was an element of the offense. Based on the state court record, the Federal District Court denied relief. The Court of Appeals reversed summarily and directed the District Court"to conduct an evidentiary hearing on the issues raised by petitioner, including whether, at the time of his entry of his guilty plea, he was aware that intent was an essential element of the crime and was advised of the scope of the punishment that might be imposed."Upon remand the District Judge heard the testimony of several witnesses including respondent, the two lawyers who had represented him in 1965, the prosecutor, Page 426 U. S. 640 and respondent's mother. In addition, the transcript of the relevant state court proceedings and certain psychological evaluations of respondent were made a part of the record.At the conclusion of the hearing, the District Court made only two specific findings of fact. [Footnote 5] First, contrary to respondent's testimony, the court expressly found that he was advised that a 25-year sentence would be imposed if he pleaded guilty. Second, the court found that respondent"was not advised by counsel or court, at any time, that an intent to cause the death or a design to effect the death of the victim was an essential element of Murder 2nd degree."On the basis of the latter finding, the District Court held "as a matter of law" that the plea of guilty was involuntary and had to be set aside. [Footnote 6] Page 426 U. S. 641 This holding was affirmed, without opinion, by the Court of Appeals. [Footnote 7]Before addressing the question whether the District Court correctly held the plea invalid as a matter of law, we review some of the facts developed at the evidentiary hearing.IOn April 6, 1965, respondent killed Mrs. Ada Francisco in her home.When he was in seventh grade, respondent was committed to the Rome State School for Mental Defectives where he was classified as "retarded." He was released to become a farm laborer and ultimately went to work on Mrs. Francisco's farm. Following an argument, she threatened to return him to state custody. He then decided to abscond. During the night he entered Mrs. Francisco's bedroom with a knife, intending to collect his earned wages before leaving; she awoke, began to scream, and he stabbed her. [Footnote 8] He took a small amount of money, fled in her car, and became involved in an accident about 80 miles away. The knife was found in the glove compartment of her car. He was promptly arrested and made a statement to the police. He was Page 426 U. S. 642 then 19 years old, and substantially below average intelligence. [Footnote 9]Respondent was indicated for first-degree murder and arraigned on April 15, 1965. Two concededly competent attorneys were appointed to represent him. The indictment, which charged that he "willfully" stabbed his victim, was read in open court. His lawyers requested, and were granted, access to his written statement and to earlier psychiatric reports. A new psychiatric examination was requested and ordered.Respondent was found competent to stand trial. Defense counsel held a series of conferences with the prosecutors, with the respondent, and with members of his family. The lawyers "thought manslaughter first would satisfy the needs of justice." [Footnote 10] They therefore endeavored to have the charge reduced to manslaughter, but the prosecution would agree to nothing less than second-degree murder and a minimum sentence of 25 years. The lawyers gave respondent advice about the different sentences which could be imposed for the different offenses, but, as the District Court found, did not explain the required element of intent.On June 8, 1965, respondent appeared in court with his attorneys and entered a plea of guilty to murder in the second degree in full satisfaction of the first-degree murder charge made in the indictment. In direct colloquy with the trial judge, respondent stated that his plea was based on the advice of his attorneys, that he understood he was accused of killing Mrs. Francisco in Fulton County, that he was waiving his right to a jury trial, and that he would be sent to prison. There was no discussion of the elements of the offense of second-degree Page 426 U. S. 643 murder, no indication that the nature of the offense had ever been discussed with respondent, and no reference of any kind to the requirement of intent to cause the death of the victim.At the sentencing hearing a week later, his lawyers made a statement explaining his version of the offense, particularly noting that respondent "meant no harm to that lady" when he entered her room with the knife. [Footnote 11] The prosecutor disputed defense counsel's version of the matter, but did not discuss it in detail. After studying the probation officer's report, the trial judge pronounced sentence.At the evidentiary hearing in the Federal District Court, respondent testified that he would not have pleaded guilty if he had known that an intent to cause Page 426 U. S. 644 the death of his victim was an element of the offense of second-degree murder. The District Judge did not indicate whether or not he credited this testimony. [Footnote 12]IIPetitioner contends that the District Court applied an unrealistically rigid rule of law. Instead of testing the voluntariness of a plea by determining whether a ritualistic litany of the formal legal elements of an offense was read to the defendant, petitioner argues that the court should examine the totality of the circumstances and determine whether the substance of the charge, as opposed to its technical elements, was conveyed to the accused. We do not disagree with the thrust of petitioner's argument, but we are persuaded that, even under the test which he espouses, this judgment finding respondent guilty of second-degree murder was defective.We assume, as petitioner argues, that the prosecutor had overwhelming evidence of guilt available. We also accept petitioner's characterization of the competence of respondent's counsel and of the wisdom of their advice to plead guilty to a charge of second-degree murder. Nevertheless, such a plea cannot support a judgment of Page 426 U. S. 645 guilt unless it was voluntary in a constitutional sense. [Footnote 13] And clearly the plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Smith v. O'Grady, 312 U. S. 329, 312 U. S. 334.The charge of second-degree murder was never formally made. Had it been made, it necessarily would have included a charge that respondent's assault was "committed with a design to effect the death of the person killed." [Footnote 14] That element of the offense might have been proved by the objective evidence even if respondent's actual state of mind was consistent with innocence [Footnote 15] or manslaughter. [Footnote 16] But even if such a design to effect death would almost inevitably have been inferred from evidence that respondent repeatedly stabbed Mrs. Francisco, it is nevertheless also true that a jury Page 426 U. S. 646 would not have been required to draw that inference. [Footnote 17] The jury would have been entitled to accept defense counsel's appraisal of the incident as involving only manslaughter in the first degree. Therefore, an admission by respondent that he killed Mrs. Francisco does not necessarily also admit that he was guilty of second-degree murder.There is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that respondent had the requisite intent. Defense counsel did not purport to stipulate to that fact; they did not explain to him that his plea would be an admission of that fact; and he made no factual statement or admission necessarily implying that he had such intent. In these circumstances, it is impossible to conclude that his plea to the unexplained charge of second-degree murder was voluntary.Petitioner argues that affirmance of the Court of Appeals will invite countless collateral attacks on judgments entered on pleas of guilty, since frequently the record will not contain a complete enumeration of the Page 426 U. S. 647 elements of the offense to which an accused person pleads guilty. [Footnote 18] We think petitioner's fears are exaggerated.Normally, the record contains either an explanation of the charge by the trial judge or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that, in most cases, defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique, because the trial judge found as a fact that the element of intent was not explained to respondent. Moreover, respondent's unusually low mental capacity provides a reasonable explanation for counsel's oversight; it also forecloses the conclusion that the error was harmless beyond a reasonable doubt, for it lends at least a modicum of credibility to defense counsel's appraisal of the homicide as a manslaughter, rather than a murder.Since respondent did not receive adequate notice of the offense to which he pleaded guilty, his plea was involuntary and the judgment of conviction was entered without due process of law.Affirmed

U.S. Supreme CourtHenderson v. Morgan, 426 U.S. 637 (1976)Henderson v. MorganNo. 74-1529Argued February 24, 1976Decided June 17, 1976426 U.S. 637SyllabusRespondent was indicated for first-degree murder, but, by agreement with the prosecution and on counsel's advice, respondent pleaded guilty to second-degree murder and was sentenced. Subsequently, after exhausting his state remedies in an unsuccessful attempt to have his conviction vacated on the ground that his guilty plea was involuntary, respondent filed a habeas corpus petition in Federal District Court, alleging that his guilty plea was involuntary because, inter alia, he was not aware that intent to cause death was an element of second-degree murder. The District Court ultimately heard the testimony of several witnesses, including respondent and his defense counsel in the original prosecution; and the transcript of the relevant state court proceedings and certain psychological evaluations of respondent, who was substantially below average intelligence, were made part of the record. On the basis of the evidence thus developed, the District Court found that respondent had not been advised by counsel or the state court that an intent to cause death was an essential element of second-degree murder, and, based on this finding, held that the guilty plea was involuntary, and had to be set aside. The Court of Appeals affirmed.Held: Since respondent did not receive adequate notice of the offense to which he pleaded guilty, his plea was involuntary, and the judgment of conviction was entered without due process of law. The plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless respondent received "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Smith v. O'Grady, 312 U. S. 329, 312 U. S. 334. Where the record discloses that defense counsel did not purport to stipulate that respondent had the requisite intent or explain to him that his plea would be admission of that fact, and he made no factual statement or admission necessarily implying that he had such intent, it is impossible Page 426 U. S. 638 to conclude that his plea to the unexplained charge of second-degree murder was voluntary. Pp. 426 U. S. 644-647.516 F.2d 897, affirmed.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. WHITE, J., filed a concurring opinion, in which STEWART, BLACKMUN, and POWELL, JJ., joined, post, p. 426 U. S. 647. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 426 U. S. 652.

1978_78-5066

MR. JUSTICE BRENNAN delivered the opinion of the Court.We decide in this case the question reserved 10 years ago in Morales v. New York, 396 U. S. 102 (1969), namely, "the question of the legality of custodial questioning on less than probable cause for a full-edged arrest." Id. at 396 U. S. 106.IOn March 26, 1971, the proprietor of a pizza parlor in Rochester, N.Y. was killed during an attempted robbery. On August 10, 1971, Detective Anthony Fantigrossi of the Page 442 U. S. 203 Rochester Police was told by another officer that an informant had supplied a possible lead implicating petitioner in the crime. Fantigrossi questioned the supposed source of the lead -- a jail inmate awaiting trial for burglary -- but learned nothing that supplied "enough information to get a warrant" for petitioner's arrest. App. 60. [Footnote 1] Nevertheless, Fantigrossi ordered other detectives to "pick up" petitioner and "bring him in." Id. at 54. Three detectives located petitioner at a neighbor's house on the morning of August 11. Petitioner was taken into custody; although he was not told he was under arrest, he would have been physically restrained if he had attempted to leave. Opinion in People v. Dunaway (Monroe County Ct., Mar. 11, 1977), App. 116, 117. He was driven to police headquarters in a police car and placed in an interrogation room, where he was questioned by officers after being given the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). Petitioner waived counsel, and eventually made statements and drew sketches that incriminated him in the crime. [Footnote 2]At petitioner's jury trial for attempted robbery and felony murder, his motions to suppress the statements and sketches were denied, and he was convicted. On appeal, both the Page 442 U. S. 204 Appellate Division of the Fourth Department and the New York Court of Appeals initially affirmed the conviction without opinion. 42 App.Div.2d 689, 346 N.Y.S.2d 779 (1973), aff'd, 35 N.Y.2d 741, 320 N.E.2d 646 (1974). However, this Court granted certiorari, vacated the judgment, and remanded the case for further consideration in light of the Court's supervening decision in Brown v. Illinois, 422 U. S. 590 (1975). 422 U.S. 1053 (1975). The petitioner in Brown, like petitioner Dunaway, made inculpatory statements after receiving Miranda warnings during custodial interrogation following his seizure -- in that case, a formal arrest -- on less than probable cause. Brown's motion to suppress the statements was also denied, and the statements were used to convict him. Although the Illinois Supreme Court recognized that Brown's arrest was unlawful, it affirmed the admission of the statements on the ground that the giving of Miranda warnings served to break the causal connection between the illegal arrest and the giving of the statements. This Court reversed, holding that the Illinois courts erred in adopting a per se rule that Miranda warnings, in and of themselves, sufficed to cure the Fourth Amendment violation; rather, the Court held that, in order to use such statements, the prosecution must show not only that the statements meet the Fifth Amendment voluntariness standard but also that the causal connection between the statements and the illegal arrest is broken sufficiently to purge the primary taint of the illegal arrest in light of the distinct policies and interests of the Fourth Amendment.In compliance with the remand, the New York Court of Appeals directed the Monroe County Court to make further factual findings as to whether there was a detention of petitioner, whether the police had probable cause,"and, in the event there was a detention and probable cause is not found for such detention, to determine the further question as to whether the making of the confessions was rendered infirm Page 442 U. S. 205 by the illegal arrest (see Brown v. Illinois, 422 U. S. 590, supra)."People v. Dunaway, 38 N.Y.2d 812, 813-814, 345 N.E.2d 583, 584 (1975).The County Court determined after a supplementary suppression hearing that Dunaway's motion to suppress should have been granted. Although reaffirming that there had been "full compliance with the mandate of Miranda v. Arizona," the County Court found that "this case does not involve a situation where the defendant voluntarily appeared at police headquarters in response to a request of the police. . . ." App. 117. The State's attempt to justify petitioner's involuntary investigatory detention on the authority of People v. Morales, 22 N.Y.2d 55, 238 N.E.2d 307 (1968) -- which upheld a similar detention on the basis of information amounting to less than probable cause for arrest -- was rejected on the grounds that the precedential value of Morales was questionable, [Footnote 3] and that the controlling authority was the "strong language" in Brown v. Illinois indicating "disdain for custodial questioning without probable cause to arrest." [Footnote 4] The County Court further held that "the factual predicate in this case did not amount to probable cause sufficient to support the arrest of the defendant," that"the Miranda warnings, by themselves, did not purge the taint of the defendant's Page 442 U. S. 206 illegal seizure[,] Brown v. Illinois, supra, and [that] there was no claim or showing by the People of any attenuation of the defendant's illegal detention,"App. 121. Accordingly petitioner's motion to suppress was granted. Ibid.A divided Appellate Division reversed. Although agreeing that the police lacked probable cause to arrest petitioner, the majority relied on the Court of Appeals' reaffirmation, subsequent to the County Court's decision, that"[l]aw enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual's Fifth and Sixth Amendment rights."61 App.Div.2d 299, 302, 402 N.Y.S.2d 490, 492 (1978), quoting People v. Morales, 42 N.Y.2d 129, 135, 366 N.E.2d 248, 251 (1977). The Appellate Division also held that, even if petitioner's detention were illegal, the taint of his illegal detention was sufficiently attenuated to allow the admission of his statements and sketches. The Appellate Division emphasized that petitioner was never threatened or abused by the police, and purported to distinguish Brown v. Illinois. [Footnote 5] The Court of Appeals dismissed petitioner's application for leave to appeal. App. 134.We granted certiorari, 439 U.S. 979 (1978), to clarify the Fourth Amendment's requirements as to the permissible grounds for custodial interrogation and to review the New York court's application of Brown v. Illinois. We reverse.IIWe first consider whether the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they took petitioner into custody, transported Page 442 U. S. 207 him to the police station, and detained him there for interrogation.The Fourth Amendment, applicable to the States through the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961), provides:"The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause. . . ."There can be little doubt that petitioner was "seized" in the Fourth Amendment sense when he was taken involuntarily to the police station. [Footnote 6] And respondent State concedes that the police lacked probable cause to arrest petitioner before his incriminating statement during interrogation. [Footnote 7] Nevertheless respondent contends that the seizure of petitioner did not amount to an arrest, and was therefore permissible under the Fourth Amendment because the police had a "reasonable suspicion" that petitioner possessed "intimate knowledge about a serious and unsolved crime." Brief for Respondent 10. We disagree.Before Terry v. Ohio, 392 U. S. 1 (1968), the Fourth Page 442 U. S. 208 Amendment's guarantee against unreasonable seizures of persons was analyzed in terms of arrest, probable cause for arrest, and warrants based on such probable cause. The basic principles were relatively simple and straightforward: the term "arrest" was synonymous with those seizures governed by the Fourth Amendment. While warrants were not required in all circumstances, [Footnote 8] the requirement of probable cause, as elaborated in numerous precedents, [Footnote 9] was treated as absolute. [Footnote 10] The "long-prevailing standards" of probable cause embodied "the best compromise that has been found for accommodating [the] often opposing interests" in "safeguard[ing] citizens from rash and unreasonable interferences with privacy" and in "seek[ing] to give fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U. S. 160, 338 U. S. 176 (1949). The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest "reasonable" under the Fourth Amendment. The standard applied to all arrests, without the need to "balance" the interests and circumstances involved in particular situations. Cf. Camara v. Mnicipal Court, 387 U. S. 523 (1967).Terry for the first time recognized an exception to the requirement that Fourth Amendment seizures of persons must Page 442 U. S. 209 be based on probable cause. That case involved a brief, on-the-spot stop on the street and a frisk for weapons, a situation that did not fit comfortably within the traditional concept of an "arrest." Nevertheless, the Court held that even this type of "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat" constituted a "serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment," 392 U.S. at 392 U. S. 20, 392 U. S. 17, and therefore "must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." Id. at 392 U. S. 20. However, since the intrusion involved in a "stop and frisk" was so much less severe than that involved in traditional "arrests," the Court declined to stretch the concept of "arrest" -- and the general rule requiring probable cause to make arrests "reasonable" under the Fourth Amendment -- to cover such intrusions. Instead, the Court treated the stop-and-frisk intrusion as a sui generis "rubric of police conduct," ibid. And to determine the justification necessary to make this specially limited intrusion "reasonable" under the Fourth Amendment, the Court balanced the limited violation of individual privacy involved against the opposing interests in crime prevention and detection and in the police officer's safety. Id. at 392 U. S. 22-27. As a consequence, the Court established"a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime."Id. at 392 U. S. 27. [Footnote 11] Thus, Terry departed from traditional Fourth Amendment analysis in two respects. Page 442 U. S. 210 First, it defined a special category of Fourth Amendment "seizures" so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment "seizures" reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons.Because Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope. Terry itself involved a limited, on-the-street frisk for weapons. [Footnote 12] Two subsequent cases which applied Terry also involved limited weapons frisks. See Adams v. Williams, 407 U. S. 143 (1972) (frisk for weapons on basis of reasonable suspicion); Pennsylvania v. Mimms, 434 U. S. 106 (1977) (order to get out of car is permissible "de minimis" intrusion after car is lawfully detained for traffic violations; frisk for weapons justified after "bulge" observed in jacket). United States v. Brignoni-Ponce, 422 U. S. 873 (1975), applied Terry in the special context of roving border patrols stopping automobiles to check for illegal immigrants. The investigative stops usually consumed Page 442 U. S. 211 less than a minute, and involved "a brief question or two." 422 U.S. at 422 U. S. 880. The Court stated that,"[b]ecause of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest."Ibid. [Footnote 13] See also United States v. Martinez-Fuerte, 428 U. S. 543 (1976) (fixed checkpoint to stop and check vehicles for aliens); Delaware v. Prouse, 440 U. S. 648 (1979) (random checks for drivers' licenses and proper vehicle registration not permitted on less than articulable reasonable suspicion) .Respondent State now urges the Court to apply a balancing test, rather than the general rule, to custodial interrogations, and to hold that "seizures" such as that in this case may be justified by mere "reasonable suspicion." [Footnote 14] Terry and its Page 442 U. S. 212 progeny clearly do not support such a result. The narrow intrusions involved in those cases were judged by a balancing test, rather than by the general principle that Fourth Amendment seizures must be supported by the "long-prevailing standards" of probable cause, Brinegar v. United States, 338 U.S. at 338 U. S. 176, only because these intrusions fell far short of the kind of intrusion associated with an arrest. Indeed, Brignoni-Ponce expressly refused to extend Terry in the manner respondent now urges. The Court there stated:"The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause."422 U.S. at 422 U. S. 881-882 (emphasis added). Accord, United States v. Martinez-Fuerte, supra at 428 U. S. 567.In contrast to the brief and narrowly circumscribed intrusions involved in those cases, the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was "free to go"; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment's requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an "arrest" under state law. The mere facts that petitioner was not told he was under arrest, was not "booked," and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, see Cupp v. Murphy, 412 U. S. 291 (1973), obviously do not make petitioner's Page 442 U. S. 213 seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any "exception" that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are "reasonable" only if based on probable cause.The central importance of the probable cause requirement to the protection of a citizen's privacy afforded by the Fourth Amendment's guarantees cannot be compromised in this fashion. "The requirement of probable cause has roots that are deep in our history." Henry v. United States, 361 U. S. 98, 361 U. S. 100 (1959). Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that "common rumor or report, suspicion, or even strong reason to suspect' was not adequate to support a warrant for arrest." Id. at 361 U. S. 101 (footnotes omitted). The familiar threshold standard of probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the "reasonableness" requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary to the implementation of a workable rule. See Brinegar v. United States, supra at 338 U. S. 175-176.In effect, respondent urges us to adopt a multifactor balancing test of "reasonable police conduct under the circumstances" to cover all seizures that do not amount to technical arrests. [Footnote 15] But the protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases, especially when that balancing may be done in the first instance by police officers engaged in the "often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U. S. 10, 333 U. S. 14 (1948). A single, familiar standard is essential to Page 442 U. S. 214 guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront. [Footnote 16] Indeed, our recognition of these dangers, and our consequent reluctance to depart from the proved protections afforded by the general rule, are reflected in the narrow limitations emphasized in the cases employing the balancing test. For all but those narrowly defined intrusions, the requisite "balancing" has been performed in centuries of precedent, and is embodied in the principle that seizures are "reasonable" only if supported by probable cause.Moreover, two important decisions since Terry confirm the conclusion that the treatment of petitioner, whether or not it is technically characterized as an arrest, must be supported by probable cause. Davis v. Mississippi, 394 U. S. 721 (1969), decided the Term after Terry, considered whether fingerprints taken from a suspect detained without probable cause must be excluded from evidence. The State argued that the detention "was of a type which does not require probable cause," 394 U.S. at 394 U. S. 726, because it occurred during an investigative, rather than accusatory, stage, and because it was for the sole purpose of taking fingerprints. Rejecting the State's first argument, the Court warned:"[T]o argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment. Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our Page 442 U. S. 215 citizenry, whether these intrusions be termed 'arrests' or 'investigatory detentions.'"Id. at 394 U. S. 726-727.The State's second argument in Davis was more substantial, largely because of the distinction between taking fingerprints and interrogation:"Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person's prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions, and is not subject to such abuses as the improper line-up and the 'third degree.' Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time."Id. at 394 U. S. 727. In Davis, however, the Court found it unnecessary to decide the validity of a "narrowly circumscribed procedure for obtaining" the fingerprints of suspects without probable cause -- in part because, as the Court emphasized, "petitioner was not merely fingerprinted during the . . . detention but also subjected to interrogation." Id. at 394 U. S. 728 (emphasis added). The detention therefore violated the Fourth Amendment.Brown v. Illinois, 422 U. S. 590 (1975), similarly disapproved arrests made for "investigatory" purposes on less than probable cause. Although Brown's arrest had more of the trappings of a technical formal arrest than petitioner's, such differences in form must not be exalted over substance. [Footnote 17] Page 442 U. S. 216 Once in the police station, Brown was taken to an interrogation room, and his experience was indistinguishable from petitioner's. Our condemnation of the police conduct in Brown fits equally the police conduct in this case:"The impropriety of the arrest was obvious; awareness of the fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was 'for investigation' or for 'questioning.' . . . The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up."Id. at 422 U. S. 605. See also id. at 422 U. S. 602.These passages from Davis and Brown reflect the conclusion that detention for custodial interrogation -- regardless of its label -- intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. We accordingly hold that the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause, they seized petitioner and transported him to the police station for interrogation.IIIThere remains the question whether the connection between this unconstitutional police conduct and the incriminating statements and sketches obtained during petitioner's illegal detention was nevertheless sufficiently attenuated to permit the use at trial of the statements and sketches. See Wong Sun v. United States, 371 U. S. 471 (1963); Nardone v. United States, 308 U. S. 338 (1939); Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920).The New York courts have consistently held, and petitioner does not contest, that proper Miranda warnings were given and that his statements were "voluntary" for purposes of the Fifth Amendment. But Brown v. Illinois, supra, settled that Page 442 U. S. 217"[t]he exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth,"422 U.S. at 422 U. S. 601, and held, therefore, that"Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation."Ibid."If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. . . . Arrests made without warrant or without probable cause, for questioning or 'investigation,' would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings."Id. at 422 U. S. 602. Consequently, although a confession after proper Miranda warnings may be found "voluntary" for purposes of the Fifth Amendment, [Footnote 18] this type of "voluntariness" is merely a "threshold requirement" for Fourth Amendment analysis, 422 U.S. at 422 U. S. 604. Indeed, if the Fifth Amendment has been violated, the Fourth Amendment issue would not have to be reached.Beyond this threshold requirement, Brown articulated a test designed to vindicate the "distinct policies and interests of the Fourth Amendment." Id. at 422 U. S. 602. Following Wong Sun, the Court eschewed any per se or "but for" rule, and identified the relevant inquiry as "whether Brown's statements were obtained by exploitation of the illegality of his arrest," 422 U.S. at 422 U. S. 600; see Wong Sun v. United States, supra at 371 U. S. 488. Brown's focus on "the causal connection between the illegality and the confession," 422 U.S. at 422 U. S. 603, reflected the two policies behind the use of the exclusionary rule to effectuate Page 442 U. S. 218 the Fourth Amendment. When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts.Brown identified several factors to be considered"in determining whether the confession is obtained by exploitation of an illegal arrest[: t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct. . . . And the burden of showing admissibility rests, of course, on the prosecution."Id. at 422 U. S. 603-604. [Footnote 19] Examining the case before it, the Court readily concluded that the State had failed to sustain its burden of showing the confession was admissible. In the "less than two hours" that elapsed between the arrest and the confession "there was no intervening event of significance whatsoever." Ibid. Furthermore, the arrest without probable cause had a "quality of purposefulness" in that it was an "expedition for evidence" admittedly undertaken "in the hope that something might turn up." Id. at 422 U. S. 605.The situation in this case is virtually a replica of the situation in Brown. Petitioner was also admittedly seized without probable cause in the hope that something might turn up, and confessed without any intervening event of significance. [Footnote 20] Nevertheless, three members of the Appellate Division purported to distinguish Brown on the ground that the police did not threaten or abuse petitioner (presumably putting aside his illegal seizure and detention) and that the police Page 442 U. S. 219 conduct was "highly protective of defendant's Fifth and Sixth Amendment rights." 61 App.Div.2d at 303, 402 N.Y.S.2d at 493. This betrays a lingering confusion between "voluntariness" for purposes of the Fifth Amendment and the "causal connection" test established in Brown. Satisfying the Fifth Amendment is only the "threshold" condition of the Fourth Amendment analysis required by Brown. No intervening events broke the connection between petitioner's illegal detention and his confession. To admit petitioner's confession in such a case would allow"law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the 'procedural safeguards' of the Fifth. [Footnote 21]"Reversed

U.S. Supreme CourtDunaway v. New York, 442 U.S. 200 (1979)Dunaway v. New YorkNo. 78-5066Argued March 21, 1979Decided June 5, 1979442 U.S. 200SyllabusA Rochester, N.Y. police detective questioned a jail inmate, the supposed source of a lead implicating petitioner in an attempted robbery and homicide, but learned nothing that supplied "enough information to get a warrant" for petitioner's arrest. Nevertheless, the detective ordered other detectives to "pick up" petitioner and "bring him in." Petitioner was then taken into custody, and although not told that he was under arrest, he would have been physically restrained if he had attempted to leave. He was driven to police headquarters and placed in an interrogation room, where he was questioned by officers after being given the warnings required by Miranda v. Arizona, 384 U. S. 436. He waived counsel and eventually made statements and drew sketches that incriminated him in the crime. At his state court trial, his motions to suppress the statements and sketches were denied, and he was convicted. The New York appellate courts affirmed the conviction, but this Court vacated the judgment, and remanded for further consideration in light of t.he supervening decision in Brown v. Illinois, 422 U. S. 590, which held that there is no per se rule that Miranda warnings, in and of themselves, suffice to cure a Fourth Amendment violation involved in obtaining inculpatory statements during custodial interrogation following a formal arrest on less than probable cause, and that, in order to use such statements, the prosecution must show not only that the statements meet the Fifth Amendment voluntariness standard, but also that the causal connection between the statements and the illegal arrest is broken sufficiently to purge the primary taint of the illegal arrest in light of t.he distinct policies and interests of the Fourth Amendment. On remand from the New York Court of Appeals, the trial court granted petitioner's motion to suppress, but the Appellate Division of the New York Supreme Court reversed, holding that, although the police lacked probable cause to arrest petitioner, law enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable period of time under carefully controlled conditions which are ample to protect the individual's Fifth and Sixth Amendment rights, and that, even if petitioner's detention were illegal, the taint of such detention was sufficiently attenuated to allow the admission of his statements and sketches. Page 442 U. S. 201Held:1. The Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they seized petitioner and transported him to the police station for interrogation. Pp. 442 U. S. 206-216.(a) Petitioner was "seized" in the Fourth Amendment sense when he was taken involuntarily to the police station, and the State concedes that the police lacked probable cause to arrest him before his incriminating statement during interrogation. P. 442 U. S. 207.(b) Terry v. Ohio, 392 U. S. 1, which held that limited "stop and frisk" searches for weapons are so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment "seizures" reasonable can be replaced by a test balancing the limited violation of individual privacy against the opposing interests in crime prevention and detection and in the police officer's safety, and the Terry case's progeny, do not support the application of a balancing test so as to hold that "seizures" such as that in this case may be justified by mere "reasonable suspicion." The narrow intrusions in Terry and its progeny were judged by a balancing test, rather than the general rule requiring probable cause only because those intrusions fell so far short of the kind of intrusion associated with an arrest. For all but those narrowly defined intrusions, the requisite balancing has been performed in centuries of precedent, and is embodied in the principle that seizures are reasonable only if supported by probable cause. Pp. 442 U. S. 208-214.(c) The treatment of petitioner, whether or not technically characterized as an arrest, was in important respects indistinguishable from a traditional arrest, and must be supported by probable cause. Detention for custodial interrogation -- regardless of its label -- intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. Cf. Davis v. Mississippi, 394 U. S. 721; Brown v. Illinois, supra. Pp. 442 U. S. 214-216.2. The connection between the unconstitutional police conduct and the incriminating statements and sketches obtained during petitioner's illegal detention was not sufficiently attenuated to permit the use at trial of the statements and sketches. Pp. 442 U. S. 216-219.(a) Even though proper Miranda warnings may have been given and petitioner's statements may have been "voluntary" for purposes of the Fifth Amendment,"[t]he exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth."Brown v. Illinois, supra at 422 U. S. 601. While a confession after proper Miranda warnings may be found "voluntary" for Fifth Amendment purposes, this type of "voluntariness" Page 442 U. S. 202 is merely a threshold requirement for Fourth Amendment analysis. Pp. 442 U. S. 216-217.(b) Under Fourth Amendment analysis, which focuses on "the causal connection between the illegality and the confession," Brown v. Illinois, supra at 422 U. S. 603, factors to be considered in determining whether the confession is obtained by exploitation of an illegal arrest include: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. Here, petitioner was admittedly seized without probable cause in the hope that something might turn up, and confessed without any intervening event of significance. Cf. Brown v. Illinois, supra. Pp. 442 U. S. 217-219.61 App.Div.2d 299, 402 N.Y.S.2d 490, reversed.BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., post, p. 442 U. S. 219, and STEVENS, J., post, p. 442 U. S. 220, filed concurring opinions. REHNQUIST, J., filed a dissenting opinion in which BURGER, C.J., joined, post, p. 442 U. S. 221. POWELL, J., took no part in the consideration or decision of the case.

1976_75-1453

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.The issue on appeal is whether the State of New Hampshire may constitutionally enforce criminal sanctions against Page 430 U. S. 707 persons who cover the motto "Live Free or Die" on passenger vehicle license plates because that motto is repugnant to their moral and religious beliefs.(1)Since 1969, New Hampshire has required that noncommercial vehicles bear license plates embossed with the state motto, "Live Free or Die." [Footnote 1] N.H.Rev.Stat.Ann. § 263:1 (Supp. 1975). Another New Hampshire statute makes it a misdemeanor "knowingly [to obscure] . . . the figures or letters on any number plate." N.H.Rev.Stat.Ann. § 262:27-c (Supp. 1975). The term "letters" in this section has been interpreted by the State's highest court to include the state motto. State v. Hoskin, 112 N.H. 332, 295 A.2d 454 (1972).Appellees George Maynard and his wife Maxine are followers of the Jehovah's Witnesses faith. The Maynards consider the New Hampshire State motto to be repugnant to their moral, religious, and political beliefs, [Footnote 2] and therefore assert it objectionable to disseminate this message by displaying it on their automobiles. [Footnote 3] Pursuant to these beliefs, the Page 430 U. S. 708 Maynards began early in 1974 to cover up the motto on their license plates. [Footnote 4]On November 27, 1974, Mr. Maynard was issued a citation for violating § 262:27-c. On December 6, 1974, he appeared pro se in Lebanon, N.H., District Court to answer the charge. After waiving his right to counsel, he entered a plea of not guilty and proceeded to explain his religious objections to the motto. The state trial judge expressed sympathy for Mr. Maynard's situation, but considered himself bound by the authority of State v. Hoskin, supra, to hold Maynard guilty. A $25 fine was imposed, but execution was suspended during "good behavior."On December 28, 1974, Mr. Maynard was again charged with violating § 262:27-c. He appeared in court on January 31, 1975, and again chose to represent himself; he was found guilty, fined $50, and sentenced to six months in the Grafton County House of Corrections. The court suspended this jail sentence, but ordered Mr. Maynard to also pay the $25 fine for the first offense. Maynard informed the court that, as a matter of conscience, he refused to pay the two fines. The court thereupon sentenced him to jail for a period of 15 days. He has served the full sentence.Prior to trial on the second offense, Mr. Maynard was charged with yet a third violation of § 262:27-c on January 3, 1975. He appeared on this complaint on the same day as for the second offense, and was, again, found guilty. This conviction was "continued for sentence," so that Maynard received no punishment in addition to the 15 days. Page 430 U. S. 709(2)On March 4, 1975, appellees brought the present action pursuant to 42 U.S.C. § 1983 in the United States District Court for the District of New Hampshire. They sought injunctive and declaratory relief against enforcement of N.H.Rev.Stat.Ann. §§ 262:27-c, 263:1, insofar as these required displaying the state motto on their vehicle license plates, and made it a criminal offense to obscure the motto. [Footnote 5] On March 11, 1975, the single District Judge issued a temporary restraining order against further arrests and prosecutions of the Maynards. Because the appellees sought an injunction against a state statute on grounds of its unconstitutionality, a three-judge District Court was convened pursuant to 28 U.S.C. § 2281. Following a hearing on the merits, [Footnote 6] the District Court entered an order enjoining the State"from arresting and prosecuting [the Maynards] at any time in the future for covering over that portion of their license plates that contains the motto 'Live Free or Die.' [Footnote 7]"406 F. Supp. 1381 (1976). We noted probable jurisdiction of the appeal. 426 U.S. 946 (1976).(3)Appellants argue that the District Court was precluded from exercising jurisdiction in this case by the principles of Page 430 U. S. 710 equitable restraint enunciated in Younger v. Harris, 401 U. S. 37 (1971). In Younger, the Court recognized that principles of judicial economy, as well as proper state-federal relations, preclude federal courts from exercising equitable jurisdiction to enjoin ongoing state prosecutions. Id. at 401 U. S. 43. However, when a genuine threat of prosecution exists, a litigant is entitled to resort to a federal forum to seek redress for an alleged deprivation of federal rights. See Steffel v. Thompson, 415 U. S. 452 (1974); Doran v. Salem Inn, Inc., 422 U. S. 922, 422 U. S. 930-931 (1975). Younger principles aside, a litigant is entitled to resort to a federal forum in seeking redress under 42 U.S.C. § 1983 for an alleged deprivation of federal rights. Huffman v. Pursue, Ltd., 420 U. S. 592, 420 U. S. 609-610, n. 21 (1975). Mr. Maynard now finds himself placed "between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in [another] criminal proceeding." Steffel v. Thompson, supra at 415 U. S. 462. Mrs. Maynard, as joint owner of the family automobiles, is no less likely than her husband to be subjected to state prosecution. Under these circumstances, he cannot be denied consideration of a federal remedy.Appellants, however, point out that Maynard failed to seek review of his criminal convictions, and cite Huffman v. Pursue, Ltd., supra, for the propositions that"a necessary concomitant of Younger is that a party in appellee's posture must exhaust his state appellate remedies before seeking relief in the District Court,"420 U.S. at 420 U. S. 608, and that"Younger standards must be met to justify federal intervention in a state judicial proceeding as to which a losing litigant has not exhausted his state appellate remedies,"id. at 420 U. S. 609. Huffman, however, is inapposite. There, the appellee was seeking to prevent, by means of federal intervention, enforcement of a state court Page 430 U. S. 711 judgment declaring its theater a nuisance. We held that appellee's failure to exhaust its state appeals barred federal intervention under the principles of Younger:"Federal post-trial intervention, in a fashion designed to annul the results of a state trial . . . deprives the States of a function which quite legitimately is left to them, that of overseeing trial court dispositions of constitutional issues which arise in civil litigation over which they have jurisdiction."Ibid.Here, however, the suit is in no way "designed to annul the results of a state trial," since the relief sought is wholly prospective, to preclude further prosecution under a statute alleged to violate appellees' constitutional rights. Maynard has already sustained convictions, and has served a sentence of imprisonment for his prior offenses. [Footnote 8] He does not seek to have his record expunged, or to annul any collateral effects those convictions may have upon his driving privileges. The Maynards seek only to be free from prosecutions for future violations of the same statutes. Younger does not bar federal jurisdiction.In their complaint, the Maynards sought both declaratory and injunctive relief against the enforcement of the New Hampshire statutes. We have recognized that, although, "[o]rdinarily, . . . the practical effect of [injunctive and declaratory] relief will be virtually identical,'" Doran v. Salem Inn, supra at 422 U. S. 931, quoting Samuels v. Mackell, 401 U. S. 66, 401 U. S. 73 (1971), a"district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger injunctive medicine will be unnecessary."Doran, supra, at 422 U. S. 931. It is correct that, generally, a Page 430 U. S. 712 court will not enjoin. "the enforcement of a criminal statute even though unconstitutional," Spielman Motor Co. v. Dodge, 295 U. S. 89, 295 U. S. 95 (1935), since"[s]uch a result seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger,"Doran, supra at 422 U. S. 931. But this is not an absolute policy, and, in some circumstances, injunctive relief may be appropriate."To justify such interference, there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights."Spielman Motor Co., supra at 295 U. S. 95.We have such a situation here, for, as we have noted, three successive prosecutions were undertaken against Mr. Maynard in the span of five weeks. This is quite different from a claim for federal equitable relief when a prosecution is threatened for the first time. The threat of repeated prosecutions in the future against both him and his wife, and the effect of such a continuing threat on their ability to perform the ordinary tasks of daily life which require an automobile, is sufficient to justify injunctive relief. Cf. Douglas v. City of Jeannette, 319 U. S. 157 (1943). We are therefore unwilling to say that the District Court was limited to granting declaratory relief. Having determined that the District Court was not required to stay its hand as to either appellee, [Footnote 9] we turn to the merits of the Maynards' claim. Page 430 U. S. 713(4)The District Court held that, by covering up the state motto "Live Free or Die" on his automobile license plate, Mr. Maynard was engaging in symbolic speech, and that"New Hampshire's interest in the enforcement of its defacement statute is not sufficient to justify the restriction on [appellee's] constitutionally protected expression."406 F. Supp. at 1389. We find it unnecessary to pass on the "symbolic speech" issue, since we find more appropriate First Amendment grounds to affirm the judgment of the District Court. [Footnote 10] We turn instead to what, in our view, is the essence of appellees' objection to the requirement that they display the motto "Live Free or Die" on their automobile license plates. This is succinctly summarized in the statement made by Mr. Maynard in his affidavit filed with the District Court:"I refuse to be coerced by the State into advertising a slogan which I find morally, ethically, religiously and politically abhorrent."App. 5. We are thus faced with the question of whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. We hold that the State may not do so. Page 430 U. S. 714AWe begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. See Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 633-634 (1943); id. at 319 U. S. 645 (Murphy, J., concurring). A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind." Id. at 319 U. S. 637. This is illustrated by the recent case of Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), where we held unconstitutional a Florida statute placing an affirmative duty upon newspapers to publish the replies of political candidates whom they had criticized. We concluded that such a requirement deprived a newspaper of the fundamental right to decide what to print or omit:"Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. Government-enforced right of access inescapably 'dampens the vigor and limits the variety of public debate,' New York Times Co. v. Sullivan, 376 U.S. [254,] 376 U. S. 279 [(1964)]."Id. at 376 U. S. 257 (footnote omitted).The Court in Barnette, supra, was faced with a state statute which required public school students to participate in daily public ceremonies by honoring the flag both with words and traditional salute gestures. In overruling its prior decision in Minersville District v. Gobitis, 310 U. S. 586 (1940), the Court held that"a ceremony so touching matters of opinion and political attitude may [not] be imposed upon Page 430 U. S. 715 the individual by official authority under powers committed to any political organization under our Constitution."319 U.S. at 319 U. S. 636. Compelling the affirmative act of a flag salute involved a more serious infringement upon personal liberties than the passive act of carrying the state motto on a license plate, but the difference is essentially one of degree. Here, as in Barnette, we are faced with a state measure which forces an individual, as part of his daily life -- indeed, constantly while his automobile is in public view -- to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the State"invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."Id. at 319 U. S. 642.New Hampshire's statute in effect requires that appellees use their private property as a "mobile billboard" for the State's ideological message -- or suffer a penalty, as Maynard already has. As a condition to driving an automobile -- a virtual necessity for most Americans -- the Maynards must display "Live Free or Die" to hundreds of people each day. [Footnote 11] The fact that most individuals agree with the thrust of New Hampshire's motto is not the test; most Americans also find the flag salute acceptable. The First Amendment protects the right of individuals to hold a point of view different from the majority, and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.BIdentifying the Maynards' interests as implicating First Amendment protections does not end our inquiry however. Page 430 U. S. 716 We must also determine whether the State's countervailing interest is sufficiently compelling to justify requiring appellees to display the state motto on their license plates. See, e.g., United States v. O'Brien, 391 U. S. 367, 391 U. S. 376-377 (1968). The two interests advanced by the State are that display of the motto (1) facilitates the identification of passenger vehicles, [Footnote 12] and (2) promotes appreciation of history, individualism, and state pride.The State first points out that passenger vehicles, but not commercial, trailer, or other vehicles are required to display the state motto. Thus, the argument proceeds, officers of the law are more easily able to determine whether passenger vehicles are carrying the proper plates. However, the record here reveals that New Hampshire passenger license plates normally consist of a specific configuration of letters and numbers, which makes them readily distinguishable from other types of plates, even without reference to the state motto. [Footnote 13] Even were we to credit the State's reasons, and"even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the Page 430 U. S. 717 same basic purpose."Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488 (1960) (footnotes omitted).The State's second claimed interest is not ideologically neutral. The State is seeking to communicate to others an official view as to proper appreciation of history, state pride, and individualism. Of course, the State may legitimately pursue such interests in any number of ways. However, where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message. [Footnote 14]We conclude that the State of New Hampshire my not require appellees to display the state motto [Footnote 15] upon their vehicle license plates; and, accordingly, we affirm the judgment of the District Court.Affirmed

U.S. Supreme CourtWooley v. Maynard, 430 U.S. 705 (1977)Wooley v. MaynardNo. 75-1453Argued November 29, 1976Decided April 20, 1977430 U.S. 705SyllabusNew Hampshire statutes require that noncommercial motor vehicles bear license plates embossed with the state motto, "Live Free or Die," and make it a misdemeanor to obscure the motto. Appellees, Maynard and his wife, who are followers of the Jehovah's Witnesses faith, view the motto as repugnant to their moral, religious, and political beliefs, and accordingly they covered up the motto on the license plates of their jointly owned family automobiles. Appellee Maynard was subsequently found guilty in state court of violating the misdemeanor statute on three separate charges, and, upon refusing to pay the fines imposed, was sentenced to, and served, 15 days in jail. Appellees then brought this action in Federal District Court pursuant to 42 U.S.C. § 1983, seeking injunctive and declaratory relief against enforcement of the New Hampshire statutes; a three-judge court enjoined the State from arresting and prosecuting appellees in the future for covering the motto on their license plates.Held:1. The principles of equitable restraint enunciated in Younger v. Harris, 401 U. S. 37, do not preclude the District Court from exercising jurisdiction. Pp. 430 U. S. 709-712.(a) When a genuine threat of state prosecutions exists, a litigant is entitled to resort to a federal forum to seek redress for an alleged deprivation of federal rights, and, aside from Younger principles, may seek such redress under 42 U.S.C. § 1983. Pp. 430 U. S. 709-710.(b) When the relief sought is wholly prospective, i.e., to preclude further prosecution under a statute alleged to violate constitutional rights, failure to seek state appellate review of criminal convictions does not bar relief in federal court. Huffman v. Pursue, Ltd., 420 U. S. 592, distinguished. Pp. 430 U. S. 710-711.(c) The threat of repeated prosecutions in the future against both appellees, and the effect of such a continuing threat on their ability to perform the ordinary tasks of daily life that require an automobile, are sufficient to justify injunctive relief, and hence the District Court was not limited to granting declaratory relief. Pp. 430 U. S. 711-712.2. The State may not constitutionally require an individual to participate Page 430 U. S. 706 in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. Pp. 71717.(a) New Hampshire's statute, by forcing an individual, as part of his daily life -- indeed, constantly while his automobile is in public view -- to be an instrument for advocating public adherence to an ideological point of view he finds unacceptable, "invades the sphere of intellect and spirit which it is the purpose of the First Amendment . . . to reserve from all official control," Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 642. Pp. 430 U. S. 714-715.(b) The State's claimed interests in requiring display of the state motto on license plates (1) so as to facilitate the identification of passenger vehicles, and (2) so as to promote appreciation of history, individualism, and state pride, are not sufficiently compelling to justify infringement of appellees' First Amendment rights. The purpose of the first interest could be achieved by less drastic means, and the second interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for the State's ideological message. Pp. 430 U. S. 715-717.406 F. Supp. 1381, affirmed.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, POWELL, and STEVENS, JJ., joined, and in which WHITE, J., joined, except insofar as it affirms the District Court's issuance of an injunction. WHITE, J., filed a opinion dissenting in part, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 430 U. S. 717. REHNQUIST, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 430 U. S. 719.

1976_75-1510

MR. JUSTICE WHITE delivered the opinion of the Court.The issue here is whether, in the circumstances present in this case, the conduct of an undercover agent for a state law enforcement agency deprived respondent Bursey of his right to the effective assistance of counsel guaranteed him by the Sixth and Fourteenth Amendments of the United States Constitution or deprived him of due process of law in violation of the Fourteenth Amendment.IThis case began when respondent Bursey filed suit under 42 U.S.C. § 1983 against petitioners Weatherford and Strom, respectively an undercover agent for and the head of the South Carolina State Law Enforcement Division, asserting that the defendants had deprived him of certain constitutional rights. The case was tried without a jury. The following facts are taken from the District Court's findings, which were not disturbed by the Court of Appeals.During the early morning hours of March 20, 1970, Bursey and Weatherford, along with two others, vandalized the offices of the Richland County Selective Service in Columbia, S. CPolice were advised of the incident by Weatherford, who, in order to maintain his undercover status and his capability of working on other current matters in that capacity, was arrested and charged along with Bursey. Weatherford was immediately released on bond and, continuing the masquerade, retained an attorney, Frank Taylor, Sr. Bursey, who was later released on bond, retained his own counsel, C. Rauch Wise.On two occasions thereafter and prior to trial, Weatherford met with Bursey and Wise, and the approaching trial Page 429 U. S. 548 was discussed. With respect to these meetings, the District Court found as follows:"On neither of these occasions did the defendant Weatherford seek information from the plaintiff or his attorney, and on neither occasion did he initiate or ask for the meeting. He was brought into the meetings by the plaintiff and plaintiff's attorney in an effort to obtain information, ideas or suggestions as to the plaintiff's defense. From the beginning, Weatherford advised plaintiff and plaintiff's attorney that Weatherford would obtain a severance of his case from that of the plaintiff. This severance was to be upon the ground that Weatherford might be prejudiced in going to trial with Bursey as a codefendant, because of Bursey's reputation and participation in other activities which had been covered by the news media. On no occasion did Bursey or his attorney question the granting of a severance, nor did they seem to concern themselves with whether the prosecutor would consent to a severance, although such consent is quite unusual where codefendants are charged with the same crime and proof will be from the same witnesses based upon identical facts. At those meetings between plaintiff, plaintiff's attorney and defendant Weatherford the plaintiff and his attorney raised the question of a possible informer being used to prove the case, but they never asked Weatherford if he were an informer and he never specifically denied being an informer, since he was never asked or accused."App. 248-249. At no time did Weatherford discuss with or pass on to his superiors or to the prosecuting attorney or any of the attorney's staff"any details or information regarding the plaintiff's trial plans, strategy, or anything having to do with the criminal action pending against plaintiff."Id. at 249. Until the Page 429 U. S. 549 day of trial, the prosecuting attorney did not plan to use Weatherford as a witness. Consequently, until then, Weatherford had not expected to be a witness, and had anticipated continuing his undercover work. However, Weatherford had lost some of his effectiveness as an agent in the weeks preceding trial because he had been seen in the company of police officers, and he was called for the prosecution. He testified as to his undercover activities and gave an eyewitness account of the events of March 20, 1970. Bursey took the stand, was convicted, and then disappeared until apprehended some two years later, at which time he was incarcerated and forced to serve his 18-month sentence.Bursey then began this § 1983 action, alleging that Weatherford had communicated to his superiors and prosecuting officials the defense strategies and plans which he had learned at his meetings with Bursey and Wise, thereby depriving Bursey of the effective assistance of counsel to which he was entitled under the Sixth and Fourteenth Amendments, as well as of his right to a fair trial guaranteed him by the Due Process Clause of the Fourteenth Amendment. The District Court found for the defendants in all respects, and entered judgment accordingly.The Court of Appeals for the Fourth Circuit reversed, 528 F.2d 483 (1975), concluding that, "on the facts as found by the district court, Bursey's rights to effective assistance of counsel and a fair trial were violated." Id. at 486. The Court of Appeals held that,"whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship, the right to counsel is sufficiently endangered to require reversal and a new trial."Ibid. That the intrusion occurred in order to prevent revealing Weatherford's identity as an undercover agent was immaterial. The Court of Appeals thought that Weatherford was himself "a member of the prosecution," id. at 487, and that therefore it was also immaterial that he had not informed other Page 429 U. S. 550 officials about what was said or done in the two meetings with Bursey and Wise.In addition, the Court of Appeals concluded that Bursey had been denied due process of law under Brady v. Maryland, 373 U. S. 83 (1963), by concealment of Weatherford's identity until the day of trial and by Weatherford's statement that he would not be a witness, all of which lulled Bursey into a false sense of security and interfered with his preparations for trial. The judgment of the District Court was reversed, but the remand for further proceedings would have allowed Weatherford and Strom to present a qualified immunity defense under Wood v. Strickland, 420 U. S. 308 (1975).We granted the petition for certiorari filed by Weatherford and Strom, who are represented by the State Attorney General. 426 U.S. 946 (1976). We reverse.IIThe exact contours of the Court of Appeals' per se right to counsel rule are difficult to discern, but, as the Court of Appeals applied the rule in this case, it would appear that, if an undercover agent meets with a criminal defendant who is awaiting trial and with his attorney, and if the forthcoming trial is discused without the agent's revealing his identity, a violation of the defendant's constitutional rights has occurred, whatever was the purpose of the agent in attending the meeting, whether or not he reported on the meeting to his superiors, and whether or not any specific prejudice to the defendant's preparation for or conduct of the trial is demonstrated or otherwise threatened. The Court of Appeals was of the view, 528 F.2d at 486, that this Court "establish[ed] such a per se rule" in Black v. United States, 385 U. S. 26 (1966), and O'Brien v. United States, 386 U. S. 345 (1967). The Court of Appeals also relied on Hoffa v. United States, 385 U. S. 293 (1966). Page 429 U. S. 551We cannot agree that these cases, individually or together, either require or suggest the rule announced by the Court of Appeals and now urged by Bursey. Both Black and O'Brien involved surreptitious electronic surveillance by the Government, which was discovered after trial and conviction and which was plainly illegal under the Fourth Amendment. [Footnote 1] In each case, some, but not all, of the conversations overheard were between the criminal defendant and his counsel during trial preparation. The conviction in each case was set aside and a new trial ordered. The explanatory per curiam in Black, although referring to the overheard conversations with counsel, did not rule that, whenever conversations with counsel are overheard, the Sixth Amendment is violated and a new trial must be had. Indeed, neither the Sixth Amendment nor the right to counsel was even mentioned in the short opinion. The Solicitor General conceded that Black was entitled to a "judicial determination" of whether "the monitoring of conversations between [Black] and his attorney had [any] effect upon his conviction or the fairness of his trial," although the Solicitor General contended that information derived from the overheard conversations was not used in any way by the prosecution. Memorandum for United States in Black v. United States, O.T. 1965, No. 1029, p. 4 (emphasis added). The Court focused on the particular form the "judicial determination" Page 429 U. S. 552 should take, concluding that, on the particular facts of the case, a new trial was the more appropriate means of affording Black "an opportunity to protect himself from the use of evidence that might be otherwise inadmissible." 385 U.S. at 385 U. S. 29 (emphasis added). In O'Brien, the Court wrote nothing further, merely citing the Black per curiam. Once again, the Solicitor General did not oppose further judicial proceedings to determine whether any information from the surveillance had been used at trial, notwithstanding his assertion that the contents of the overheard conversations were never communicated to the prosecuting attorneys. Brief for United States in O'Brien v. United States, O.T. 1966, No. 823, pp. 112.It is difficult to believe that the Court in Black and O'Brien was evolving a definitive construction of the Sixth Amendment without identifying the Amendment it was interpreting, especially in view of the well established Fourth Amendment grounds for excluding the fruits of the illegal surveillance. [Footnote 2] If anything is to be inferred from these two cases with respect to the right to counsel, it is that, when conversations with counsel have been overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial. This is a far cry from the per se rule announced by the Court of Appeals below, for, under that rule, trial prejudice to the defendant is deemed irrelevant. Here, the courts below have already conducted the "judicial determination," lacking in Black and O'Brien, of the effect of the overheard conversations on the defendant's conviction, and there is nothing in their findings or in the record to indicate any "use of evidence that might be otherwise inadmissible."Neither does the Court's decision in Hoffa v. United States, supra, support the proposition urged by respondent. There, an informant sat in on conversations that defendant Hoffa had with his lawyers and with others during the Page 429 U. S. 553 course of Hoffa's trial on a charge of violating the Taft-Hartley Act. The jury at that trial hung. Hoffa was then tried for tampering with that jury. The informer testified at the latter trial with respect to conversations he had overheard in Hoffa's hotel suite during the prior trial, not including, however, the conversations Hoffa had with counsel. The Court sustained Hoffa's jury tampering conviction over his claim, among others, that his Sixth Amendment counsel right had been violated.In doing so, the Court did not hold that the Sixth Amendment right to counsel subsumes a right to be free from intrusion by informers into counsel-client consultations. Nor did it purport to describe the contours of any such right. The Court merely assumed, without deciding, that two cases in the Court of Appeals for the District of Columbia Circuit dealing with the right to counsel, Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879 (1953), and Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951), were correctly decided; [Footnote 3] assumed, without deciding, that had Hoffa been convicted at his first trial, the conviction would have been set aside because the informer had overheard Hoffa and his lawyers conversing and had reported to the authorities the substance of at least some of those conversations; and then held that Hoffa's assumed Sixth Amendment rights had not been violated because the informer's testimony at the jury tampering trial did not touch upon the overheard conversations with counsel, but dealt only with conversations between Hoffa and third parties when his lawyers were not Page 429 U. S. 554 present. 385 U.S. at 385 U. S. 307-308. Neither Black, O'Brien, Hoffa, nor any other case in this Court to which we have been cited furnishes grounds for the interpretation and application of the Sixth and Fourteenth Amendments appearing in the Court of Appeals' opinion and judgment.At the same time, we need not agree with petitioners that, whenever a defendant converses with his counsel in the presence of a third party thought to be a confederate and ally, the defendant assumes the risk and cannot complain if the third party turns out to be an informer for the government who has reported on the conversations to the prosecution and who testifies about them at the defendant's trial. Had Weatherford testified at Bursey's trial as to the conversation between Bursey and Wise; had any of the State's evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from Weatherford, an undercover agent, the details of the Bursey-Wise conversations about trial preparations, Bursey would have a much stronger case. [Footnote 4] Page 429 U. S. 555None of these elements is present here, however. Weatherford's testimony for the prosecution about the events of March and April, 1970 ,revealed nothing said or done at the meetings between Bursey and Wise that he attended. [Footnote 5] None of the State's evidence was obtained as a consequence of Weatherford's participation in those meetings. Nevertheless, it Page 429 U. S. 556 might be argued that Weatherford, a dutiful agent, surely communicated to the prosecutors Bursey's defense plans and strategy and his attorney's efforts to prepare for trial, all of which was inherently detrimental to Bursey, unfairly advantaged the prosecution, and threatened to subvert the adversary system of criminal justice.The argument founders on the District Court's express finding that Weatherford communicated nothing at all to his superiors or to the prosecution about Bursey's trial plans or about the upcoming trial. App. 249, 252. The Court of Appeals did not disturb this finding, but sought to surmount it by declaring Weatherford himself to have been a member of the prosecuting team whose knowledge of Bursey's trial plans was alone enough to violate Bursey's constitutional right to counsel and to vitiate Bursey's conviction. 528 F.2d at 487. Though imaginative, this reasoning is not a realistic assessment of the relationship of Weatherford to the prosecuting staff or of the potential for detriment to Bursey or benefit to the State that Weatherford's uncommunicated knowledge might pose. If the fact was, as found by the District Court, that Weatherford communicated nothing about the two meetings to anyone else, we are quite unconvinced that a constitutional claim under the Sixth and Fourteenth Amendments was made out.This is consistent with the Court's approach in the Hoffa case. There, the informant overheard several conversations between Hoffa and his attorneys, but the Court found it necessary to deal with the Sixth Amendment right to counsel claim only after noting that the informant had reported to the Government about at least some of the activities of Hoffa's defense counsel. 385 U.S. at 385 U. S. 305-306. As long as the information possessed by Weatherford remained uncommunicated, he posed no substantial threat to Bursey's Sixth Amendment rights. Nor do we believe that federal or state prosecutors will be so prone to lie or the difficulties of proof Page 429 U. S. 557 will be so great that we must always assume not only that an informant communicates what he learns from an encounter with the defendant and his counsel, but also that what he communicates has the potential for detriment to the defendant or benefit to the prosecutor's case.Moreover, this is not a situation where the State's purpose was to learn what it could about the defendant's defense plans and the informant was instructed to intrude on the lawyer-client relationship, or where the informant has assumed for himself that task and acted accordingly. Weatherford, the District Court found, did not intrude at all; he was invited to the meeting, apparently not for his benefit but for the benefit of Bursey and his lawyer. App. 248. Weatherford went not to spy, but because he was asked and because the State was interested in retaining his undercover services on other matters, and it was therefore necessary to avoid raising the suspicion that he was in fact the informant whose existence Bursey and Wise already suspected.That the per se rule adopted by the Court of Appeals would operate prophylactically and effectively is very likely true, but it would require the informant to refuse to participate in attorney-client meetings, even though invited, and thus, for all practical purposes, to unmask himself. Our cases, however, have recognized the unfortunate necessity of undercover work, and the value it often is to effective law enforcement. E.g., United States v. Russell, 411 U. S. 423, 411 U. S. 432 (1973); Lewis v. United States, 385 U. S. 206, 385 U. S. 208-209 (1966). We have also recognized the desirability and legality of continued secrecy even after arrest. Roviaro v. United States, 353 U. S. 53, 353 U. S. 59, 353 U. S. 62 (1957). We have no general oversight authority with respect to state police investigations. We may disapprove an investigatory practice only if it violates the Constitution; and, judged in this light, the Court of Appeals' per se rule cuts much too broadly. If, for example, Page 429 U. S. 558 Weatherford, at Bursy's invitation, had attended a meeting between Bursey and Wise, but Wise had become suspicious and the conversation was confined to the weather or other harmless subjects, the Court of Appeals' rule, literally read, would cloud Bursey's subsequent conviction, although there would have been no constitutional violation. The same would have been true if Wise had merely asked whether Weatherford was an informant, Weatherford had denied it, and the meeting then had ended; likewise, if the entire conversation had consisted of Wise's questions and Weatherford's answers about Weatherford's own defense plans. Also, and more cogently for present purposes, unless Weatherford communicated the substance of the Bursey-Wise conversations, and thereby created at least a realistic possibility of injury to Bursey or benefit to the State, there can be no Sixth Amendment violation. Yet, under the Court of Appeals' rule, Bursey's conviction would have been set aside on appeal.There being no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weatherford, there was no violation of the Sixth Amendment insofar as it is applicable to the States by virtue of the Fourteenth Amendment. The proof in this case thus fell short of making out a § 1983 claim, and the judgment of the District Court should have been affirmed in this respect.It is also apparent that neither Weatherford's trial testimony nor the fact of his testifying added anything to the Sixth Amendment claim. Weatherford's testimony for the prosecution related only to events prior to the meetings with Wise and Bursey, and referred to nothing that was said at those meetings. There is no indication that any of this testimony was prompted by or was the product of those meetings. Weatherford's testimony was surely very damaging, but the mere fact that he had met with Bursey and his lawyer prior to trial did not violate Bursey's right to Page 429 U. S. 559 counsel any more than the informant's meetings with Hoffa and Hoffa's lawyers rendered inadmissible the informant's testimony having no connection with those conversations.IIIBecause, under Brady v. Maryland, 373 U. S. 83 (1963), the prosecution has the "duty under the due process clause to insure that criminal trials are fair' by disclosing evidence favorable to the defendant upon request," the Court of Appeals also held that the State was constitutionally forbidden to "conceal the identity of an informant from a defendant during his trial preparation," to permit the informant to "deny up through the day before his appearance at trial that he will testify against the defendant," and then to have the informant "testify with devastating effect." 528 F.2d at 487. This conduct, the Court of Appeals thought, lulled the defendant into a false sense of security and denied him "the opportunity (1) to consider whether plea bargaining might be the best course, (2) to do a background check on Weatherford for purposes of cross-examination, and (3) to attempt to counter the devastating impact of eyewitness identification." Ibid. The Court of Appeals apparently would have arrived at this conclusion whether or not Weatherford had ever met with Wise.Again, we are in disagreement. Brady does not warrant the Court of Appeals' holding. It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably. There is no general constitutional right to discovery in a criminal case, and Brady did not create one; as the Court wrote recently, "the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded. . . ." Wardius v. Oregon, 412 U. S. 470, 412 U. S. 474 (1973). Brady is not implicated here where the only claim is that the State should Page 429 U. S. 560 have revealed that it would present the eyewitness testimony of a particular agent against the defendant at trial.In terms of the defendant's right to a fair trial, the situation is not changed materially by the additional element relied upon by the Court of Appeals, namely, that Weatherford not only concealed his identity but represented he would not be a witness for the prosecution, an assertion that proved to be inaccurate. There are several answers to the contention that the claim of misrepresentation is of crucial importance. The first is that there was no deliberate misrepresentation in this regard: the trial court found that, until the day of trial, Weatherford did not expect to be called as a witness; until then, he did not know that he would testify. Second, as we understand the argument, it is that, once the undercover agent has successfully caused an arrest, he risks causing an unfair trial if he denies his identity when accused or asked. We would hesitate so to construe the Due Process Clause. We are not at all convinced that there is a constitutional difference between the situation where the informant is sufficiently trusted that he is never suspected and never asked about the possibility of his testifying, but nevertheless surprises the defendant by giving devastating testimony, and the situation we have here, where the defendant is suspicious enough to ask and the informant denies that he will testify, but nevertheless does so. Moreover, if the informant must confess his identity when confronted by an arrested defendant, in many cases, the agent, in order to protect himself, will simply disappear pending trial, before the confrontation occurs. In the last analysis, however, the undercover agent who stays in place and continues his deception merely retains the capacity to surprise; and unless the surprise witness or unexpected evidence is, without more, a denial of constitutional rights, Bursey was not denied a fair trial.The Court of Appeals suggested that Weatherford's continued duplicity lost Bursey the opportunity to plea bargain. Page 429 U. S. 561 But there is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial. It is a novel argument that constitutional rights are infringed by trying the defendant, rather than accepting his plea of guilty. Moreover, Wise could have approached the prosecutor before trial, and surely was under no misapprehension about Bursey's plight during trial. It was also suggested by the Court of Appeals that Bursey was deprived of the opportunity to investigate Weatherford in preparation for possible impeachment on cross-examination. But there was no objection at trial to Weatherford's testimony, no request for a continuance, and, even now, no indication of substantial prejudice from this occurrence. As for Bursey's claimed disability to counter Weatherford's "devastating" testimony, the disadvantage was no more than exists in any case where the State presents very damaging evidence that was not anticipated. Wise and Bursey must have realized that, in going to trial, the State was confident of conviction, and that, if any exculpatory evidence or possible defenses existed, it would be extremely wise to have them available. Prudence would have counseled at least as much.The judgment of the Court of Appeals isReversed

U.S. Supreme CourtWeatherford v. Bursey, 429 U.S. 545 (1977)Weatherford v. BurseyNo. 75-1510Argued December 7, 1976Decided February 22, 1977429 U.S. 545SyllabusRespondent and petitioner Weatherford (hereinafter petitioner), an undercover agent, were arrested for a state criminal offense, each thereafter retaining separate counsel. Petitioner had two pretrial meetings with respondent and respondent's counsel, who had sought petitioner's presence for the purpose of securing information or suggestions as to respondent's defense. Petitioner had no discussions concerning respondent's trial strategy or the pending criminal action either with his superiors or with the prosecution. Petitioner (who had told respondent he would not be a prosecution witness) testified for the prosecution, which, on the morning of the trial, decided to call petitioner as a witness because he had been seen in the company of police officers, and had thus lost effectiveness as an undercover agent. Respondent was convicted. After he had served his sentence, he brought this action against petitioner under 42 U.S.C. § 1983, alleging that petitioner's participation in the two meetings had deprived respondent of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments as well as his right to a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment. The District Court found for petitioner. The Court of Appeals, without disturbing the District Court's factual findings, reversed, concluding that"whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship, the right to counsel is sufficiently endangered to require reversal and a new trial,"and that the concealment of petitioner's undercover status lulled respondent into a false sense of security, interfering with his trial preparations and denying him due process of law under Brady v. Maryland, 373 U. S. 83.Held:1. Respondent was not deprived of his right to counsel under the Sixth Amendment, which does not establish a per se rule forbidding an undercover agent to meet with a defendant's counsel. Black v. United States, 385 U. S. 26; O'Brien v. United States, 386 U. S. 345; Hoffa v. United States, 385 U. S. 293, distinguished. Pp. 429 U. S. 550-559. Page 429 U. S. 546(a) As long as the information possessed by petitioner about the two meetings remained uncommunicated, he posed no threat to respondent's Sixth Amendment rights. Pp. 429 U. S. 554-557.(b) Petitioner went to the meetings not to spy, but because he was asked by respondent and his counsel and because the State was interested in maintaining petitioner's status as an informant and not arousing respondent's suspicions. Adoption of the Court of Appeals' per se rule would, for all practical purposes, have required petitioner to unmask himself. Pp. 429 U. S. 557-558.2. The Due Process Clause does not require that the prosecution must reveal before trial the names of undercover agents or other witnesses who will testify unfavorably to the defense. Pp. 429 U. S. 559-561.(a) There is no constitutional right to discovery in a criminal case, and Brady, supra, did not create one. P. 429 U. S. 559.(b) That petitioner not only concealed his identity but represented that he would not be a prosecution witness did not deny respondent a right to a fair trial. The misrepresentation was not deliberate, and there is no constitutional difference between the surprise testimony of an informer who is not suspected and therefore is not asked about testifying for the prosecution and the informer who, like petitioner, is asked by the defendant but denies that he will testify. P. 429 U. S. 560.(c) Though the Court of Appeals also suggested that petitioner' continued duplicity denied respondent the opportunity to plea bargain, there is no constitutional right to plea bargain. Pp. 429 U. S. 560-561.528 F.2d 483, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 429 U. S. 561. Page 429 U. S. 547

1985_84-1905

JUSTICE POWELL delivered the opinion of the Court.Certain provisions of the Social Security Act in effect between 1979 and 1983 authorized payment of survivor's benefits from a wage-earner's account to a widowed spouse who remarried after age 60, but not to a similarly situated divorced widowed spouse. The question in this case is whether those provisions violated the equal protection component of the Due Process Clause of the Fifth Amendment.IThe Social Security Act (Act) originally provided only primary benefits to qualified wage-earners. Congress later provided secondary benefits to wives, widows, dependent children, and surviving parents of the wage-earner. At that time, widows and other secondary beneficiaries would lose their entitlement to survivor's benefits upon a subsequent marriage. In 1950, Congress extended secondary benefits to dependent husbands and widowers, subject to the same restriction. In 1958, Congress created an exception to this remarriage rule so that, if a widow or widower married an individual who received benefits under the Act, neither would forfeit survivor's benefits.Until 1965, divorced wives, including those who had outlived their former spouse (divorced widows), were not eligible for the same benefits provided to wives and widows. In that year, Congress amended § 202(b) of the Act to extend Page 476 U. S. 342 wife's benefits to a divorced wife and survivor's benefits to a divorced widow if the recipient had been married to her former husband for at least 20 years, and had received more than one-half of her support from him or an agreement or court order required him to make substantial contributions to her support. Pub.L. 89-97, § 308(a), 79 Stat. 375-376. [Footnote 1] Divorced wives and divorced widows were also subject to the same remarriage rule that had been applied to widows and widowers. In these amendments, however, Congress changed the remarriage rule as it applied to widows and widowers. The new rule provided that, if a widow or widower over age 60 married someone who was not entitled to receive certain benefits under the Act, she or he would not completely forfeit survivor's benefits. Instead, the benefits were reduced to half of the primary wage-earner's benefits. §§ 333(a)(1) and (b)(1), 79 Stat. 403, 404.In 1977, Congress again relaxed the remarriage provision for widows and widowers, allowing them to receive unreduced survivor's benefits if they remarried after age 60. The effective date of that amendment was 1979. Pub.L. 95-216, §§ 336(a)(3), (b)(3), (c)(1), 91 Stat. 1547. [Footnote 2] But Congress retained until 1983 the provision that generally barred a divorced wife or divorced widow from receiving benefits upon remarriage. See §§ 202(b)(1)(C), (b)(3), §§ 202(e)(1)(A), (e)(1)(F). The present case involves this temporary disparity in benefits received upon remarriage.As a result of a pair of District Court sex discrimination opinions that invalidated portions of the Act, Ambrose v. Califano, CCH Unempl.Ins.Rep. � 17,702 (Ore.1980); Oliver Page 476 U. S. 343 v. Califano, CCH Unempl.Ins.Rep. � 15,244 (ND Cal.1977), the Secretary of Health and Human Services (Secretary) promulgated regulations providing that divorced husbands and divorced widowers would receive husband's benefits and survivor's benefits to the same extent as divorced wives and divorced widows received wife's benefits and survivor's benefits. 44 Fed.Reg. 34480, 34483-34484 (1979); see 20 CFR §§ 404.331, 404.336 (1985). In 1983, Congress amended the Act to incorporate these regulatory changes. Pub.L. 98-21, § 301(b)(1), 97 Stat. 111. In the same bill, Congress provided that divorced widowed spouses who remarry after age 60 are eligible to receive survivor's benefits in the same manner as widows and widowers.IIAppellee Buenta Owens married Russell Judd in 1937, and was divorced from him in 1968. In 1978, when she was 61, she married appellee Kenneth Owens. Judd died on June 19, 1982. On July 30, 1982, Owens applied for widow's benefits on Judd's earnings account as a divorced widow. Her claim was denied on August 27, 1982, because she had remarried. She sought administrative reconsideration, contending that the statutory provision denying benefits because of her remarriage was unconstitutional. Her claim again was denied. Subsequently, Owens and the Secretary entered into an agreement stipulating that the only disputed issue was the constitutionality of the provisions of the Act that at that time denied widow's benefits to divorced widows who remarried. See 42 U.S.C. §§ 402(e)(1)(A), (e)(4). The parties also stipulated that, but for the relevant provisions, Owens' right to the benefits had been established. Based on that agreement, the parties waived any further administrative review. On April 19, 1983, Owens filed this action in the United States District Court for the Central District of California, Page 476 U. S. 344 and sought to represent a nationwide class of divorced widowed spouses. [Footnote 3]On December 23, 1983, the District Court rejected Owens' constitutional challenge. Applying the rational basis standard of review, the court reasoned that Congress was justified in taking one step at a time in extending benefits to spouses who had remarried. While Owens' motion to alter or amend the judgment under Federal Rule of Civil Procedure 59 was pending, the 1983 amendments to the Act went into effect, so that all otherwise eligible members of the class became entitled to receive monthly survivor's benefits beginning in January, 1984. Subsequently, the court certified a nationwide plaintiffs' class consisting of all divorced widowed spouses who remarried after age 60 and who were denied benefits between December, 1978, and January, 1984. [Footnote 4] Page 476 U. S. 345On October 5, 1984, the District Court reversed its prior ruling on the merits and held the challenged provisions unconstitutional. The court agreed with the Secretary that Congress rationally could assume that widowed spouses are generally more dependent on income from the deceased wage-earner than are divorced widowed spouses. It reasoned, however, that, because Congress, in 1977, had chosen to treat surviving divorced spouses and widowed spouses in the same manner upon the death of the wage-earner, there was no logical basis for distinguishing between the two classes of individuals upon their subsequent remarriage. The Secretary appealed directly to this Court pursuant to 28 U.S.C. § 1252. We noted probable jurisdiction, Heckler v. Owens, 474 U.S. 1046 (1985). We now reverse.IIICongress faces an unusually difficult task in providing for the distribution of benefits under the Act. The program is a massive one, and requires Congress to make many distinctions among classes of beneficiaries while making allocations from a finite fund. In that context, our review is deferential."Governmental decisions to spend money to improve the general public welfare in one way and not another are""not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment."Mathews v. De Castro, 429 U. S. 181, 429 U. S. 185 (1976), quoting Helvering v. Davis, 301 U. S. 619, 301 U. S. 640 (1937). As this Court explained in Flemming v. Nestor, 363 U. S. 603, 363 U. S. 611 (1960):"Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as [Social Security], we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification. "Page 476 U. S. 346When the challenged classification in this case is examined in the light of these principles, it cannot be said that the distinctions Congress made were arbitrary or irrational.AWe have previously noted that "[t]he entitlement of any secondary beneficiary is predicated on his or her relationship to a contributing wage-earner." Califano v. Jobst, 434 U. S. 47, 434 U. S. 52 (1977). In determining who is eligible for such benefits, the scope of the program does not allow for "individualized proof on a case-by-case basis." Ibid. Congress "has elected to use simple criteria, such as age and marital status, to determine probable dependency." Ibid. In particular, Congress has used marital status as a general guide to dependency on the wage-earner: "The idea that marriage changes dependency is expressed throughout the Social Security Act." Id. at 434 U. S. 52, n. 8. One example of this assumption is Congress' original decision to terminate the benefits of all secondary beneficiaries, including widowed spouses, who remarried. [Footnote 5] When Congress subsequently made divorced widowed spouses eligible for survivor's benefits, it also imposed on them the rule that remarriage terminated benefits. This remarriage rule was based on the assumption that remarriage altered the status of dependency on the wage-earner. This Court upheld the validity of that general assumption in Jobst. Id. at 434 U. S. 53.Congress was not constitutionally obligated to continue to extend benefits to any remarried secondary beneficiary. It nevertheless chose to do so, but in gradual steps. In 1965, Congress provided that, if a widow or widower remarried after age 60, she or he would receive reduced benefits. In Page 476 U. S. 347 1977, Congress provided that, if a widow or widower remarried after age 60, she or he would continue to receive full survivor's benefits. Finally, in 1983, Congress amended the Act to provide that divorced widowed spouses who remarry after age 60 may receive survivor's benefits in the same manner as widows and widowers. Appellees complain that Congress' failure in 1977 to extend benefits to divorced widowed spouses who had remarried was irrational.This Court consistently has recognized that, in addressing complex problems, a legislature "may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." Williamson v. Lee Optical Co., 348 U. S. 483, 348 U. S. 489 (1955). That is precisely what Congress has done in this case. When Congress decided to create some exceptions to the remarriage rule, it was not required to take an all-or-nothing approach. Instead, it chose to proceed more cautiously. It had valid reasons for doing so.The House version of the 1977 bill contained a complete elimination of the general rule terminating benefits upon a subsequent marriage. H.R.Rep. No. 95-702, pt. 1, pp. 47-48 (1977). The House version would have created in the first year of operation alone 670,000 more beneficiaries than under the pre-1977 system, [Footnote 6] costing $1.3 billion in additional benefits each year. Ibid. [Footnote 7] Faced with these Page 476 U. S. 348 concerns, Congress reasonably could decide to "concentrate limited funds where the need [was] likely to be greatest." Califano v. Boles, 443 U. S. 282, 443 U. S. 296 (1979). It chose only to create an exception for widows and widowers, who presumably were more likely to depend on their spouses for financial support than were divorced widows and widowers. While it may have been feasible to have extended benefits to divorced widowed spouses in 1979, rather than 1983, Congress was not constitutionally obligated to do so.Congress' adjustments of this complex system of entitlements necessarily create distinctions among categories of beneficiaries, a result that could be avoided only by making sweeping changes in the Act, instead of incremental ones. A constitutional rule that would invalidate Congress' attempts to proceed cautiously in awarding increased benefits might deter Congress from making any increases at all. The Due Process Clause does not impose any such "constitutional straitjacket.'" De Castro, 429 U.S. at 429 U. S. 185, quoting Jefferson v. Hackney, 406 U. S. 535, 406 U. S. 546 (1972). As we recognized in Jobst:"Congress could reasonably take one firm step toward the goal of eliminating the hardship caused by the general marriage rule without accomplishing its entire objective in the same piece of legislation. Williamson v. Lee Optical Co., 348 U. S. 483, 348 U. S. 489. Even if it might have been wiser to take a larger step, the step Congress did take was in the right direction, and had no adverse impact on persons like the Jobsts."434 U.S. at 434 U. S. 57-58. Congress drew a reasonable line in a process that soon increased benefits to all relevant beneficiaries.BThe District Court correctly reasoned that, under De Castro and Boles, it was rational for Congress to assume that Page 476 U. S. 349 divorced widowed spouses are generally less dependent upon the resources of their former spouses than are widows and widowers. It held, however, that, because Congress had chosen to treat widowed spouses and divorced widowed spouses identically upon the death of the wage-earner, there was no rational basis for distinguishing between them if they remarried. The logic of the District Court's position depends on a showing that Congress did not distinguish between divorced widowed spouses and widowed spouses prior to remarriage. Apparently the District Court inferred that, because both divorced widowed spouses and widowed spouses were entitled to survivor's benefits, Congress viewed the groups as equally dependent on the wage-earner. Such an inference is belied by the history and provisions of the Act.When Congress first began to make divorced wives eligible for wives' benefits in 1965, it focused on that group of divorced wives whose marriages ended after many years, when they might be "too old to build up a substantial social security earnings record even if [they] can find a job." H.R.Rep. No. 213, 89th Cong., 1st Sess., 107-108 (1965). To that end, divorced wives were eligible for wife's benefits only if they had been married to the wage-earner for 20 years and received substantial support from him. It was not until 1972 that Congress dropped the requirement of showing support from the wage-earner. Even then, Congress retained the 20-year marriage requirement.Congress has made the same distinctions in its treatment of divorced widowed spouses. When they first became eligible for survivor's benefits in 1965, it was under the same basic eligibility rules that applied to divorced spouses. During the relevant time of this lawsuit, divorced spouses and divorced widowed spouses had to have been married to the wage-earner for at least 10 years to receive benefits. That precondition did not have to be met by spouses or widows. Page 476 U. S. 350These eligibility requirements demonstrate that Congress adhered to the general assumption, approved in De Castro, that divorce normally reduces dependency on the wage-earner. The fact that Congress awards benefits to divorced widowed spouses once the eligibility requirements are met does not necessarily mean that their dependency is equivalent to that of widows or widowers. Congress may view the 10-year marriage requirement as a lesser showing of dependency, but still sufficient to justify extension of benefits. Presumably Congress concluded that remarriage sufficiently reduced that lesser dependency to the point where it could conclude that benefits no longer were appropriate. These views would be consistent with the position Congress has taken throughout the history of the Act, that divorced spouses are less dependent on the wage-earner than spouses. Because divorced widowed spouses did not enter into marriage with the same level of dependency on the wage-earner's account as widows or widowers, it was rational for Congress to treat these groups differently after remarriage.The judgment of the District Court is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtBowen v. Owens, 476 U.S. 340 (1986)Bowen v. OwensNo. 84-1905Argued February 26, 1986Decided May 19, 1986476 U.S. 340SyllabusCertain provisions of the Social Security Act in effect between 1979 and 1983 authorized payment of survivor's benefits to a wage-earner's widowed spouse who remarried after age 60, but not to a similarly situated divorced widowed spouse. After being administratively denied survivor's benefits under these provisions because she had remarried, appellee divorced widow filed a class action in Federal District Court, challenging the constitutionality of the provisions. The court upheld the challenge, reasoning that, because Congress in 1977 had chosen to treat surviving divorced spouses and widowed spouses in the same manner upon the wage-earner's death, there was no logical basis for distinguishing between the two classes of individuals upon their subsequent remarriage.Held: The provisions in question did not violate the equal protection component of the Due Process Clause of the Fifth Amendment. Pp. 476 U. S. 345-350.(a) When Congress decided to create some exceptions to the rule under which widowed spouses would lose their entitlement to survivor's benefits upon remarriage, it was not required to take an all-or-nothing approach, but instead had valid reasons for proceeding more cautiously. Faced with concerns about the increase in the benefits that would ensue if the remarriage rule were completely eliminated, Congress reasonably could decide to concentrate limited funds where the need was likely to be greatest. Pp. 476 U. S. 346-348.(b) Because divorced widowed spouses did not enter into remarriage with the same level of dependency on the wage-earner's account as widows or widowers, it was rational for Congress to treat these groups differently after remarriage. Any inference that, because both divorced widowed spouses and widowed spouses were entitled to survivor's benefits, Congress viewed the groups as equally dependent on the wage-earner, is belied by the history and provisions of the Act. Pp. 476 U. S. 348-350.Reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. MARSHALL, Page 476 U. S. 341 J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 476 U. S. 350. BLACKMUN, J., filed a dissenting opinion, post, p. 476 U. S. 364.

1972_71-559

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondents operated a large-scale "cow-calf" ranch near the confluence of the Big Sandy and Bill Williams Rivers in western Arizona. Their activities were conducted on lands consisting of 1,280 acres that they Page 409 U. S. 489 owned in fee simple (fee lands), 12,027 acres leased from the State of Arizona, and 31,461 acres of federal domain held under Taylor Grazing Act permits issued in accordance with § 3 of the Act, 48 Stat. 1270, as amended, 43 U.S.C. § 315b. The Taylor Grazing Act authorizes the Secretary of the Interior to issue permits to livestock owners for grazing their stock on Federal Government lands. These permits are revocable by the Government. The Act provides, moreover, that its provisions "shall not create any right, title, interest, or estate in or to the lands." Ibid.The United States, petitioner here, condemned 920 acres of respondents' fee lands. At the trial in the District Court for the purpose of fixing just compensation for the lands taken, the parties disagreed as to whether the jury might consider value accruing to the fee lands as a result of their actual or potential use in combination with the Taylor Grazing Act "permit" lands. The Government contended that such element of incremental value to the fee lands could neither be taken into consideration by the appraisers who testified for the parties nor considered by the jury. Respondents conceded that their permit lands could not themselves be assigned any value in view of the quoted provisions of the Taylor Grazing Act. They contended, however, that if, on the open market, the value of their fee lands was enhanced because of their actual or potential use in conjunction with permit lands, that element of value of the fee lands could be testified to by appraisers and considered by the jury. The District Court substantially adopted respondents' position, first in a pretrial order and then in its charge to the jury over appropriate objection by the Government.On the Government's appeal, the Court of Appeals for the Ninth Circuit affirmed the judgment and approved the charge of the District Court. 442 F.2d 504. Page 409 U. S. 490 That court followed the earlier case of United States v. Jaramillo, 190 F.2d 300 (CA10 1951), and distinguished our holding in United States v. Rands, 389 U. S. 121 (1967). The dissenting judge in the Ninth Circuit thought the issue controlled by Rands, supra. We granted certiorari. 404 U.S. 1037 (1972).Our prior decisions have variously defined the "just compensation" that the Fifth Amendment requires to be made when the Government exercises its power of eminent domain. The owner is entitled to fair market value, United States v. Miller, 317 U. S. 369, 317 U. S. 374 (1943), but that term is "not an absolute standard nor an exclusive method of valuation." United States v. Virginia Electric & Power Co., 365 U. S. 624, 365 U. S. 633 (1961). The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, United States v. Commodities Trading Corp., 339 U. S. 121, 339 U. S. 124 (1950), as its does from technical concepts of property law.The record shows that several appraiser witnesses for respondents testified that they included as an element of the value that they ascribed to respondents' fee lands the availability of respondents' Taylor Grazing Act permit lands to be used in conjunction with the fee lands. Under the District Court's charge to the jury, the jury was entitled to consider this element of value testified to by the appraisers. This Court has held that, generally, the highest and best use of a parcel may be found to be a use in conjunction with other parcels, and that any increment of value resulting from such combination may be taken into consideration in valuing the parcel taken. Olson v. United States, 292 U. S. 246, 292 U. S. 256 (1934). The question presented by this case is whether there is an exception to that general rule where the parcels to be aggregated with the land taken are themselves owned Page 409 U. S. 491 by the condemnor and used by the condemnee only under revocable permit from the condemnor.To say that this element of value would be considered by a potential buyer on the open market, and is therefore a component of "fair market value," is not the end of the inquiry. In United States v. Miller, supra, this Court held that the increment of fair market value represented by knowledge of the Government's plan to construct the project for which the land was taken was not included within the constitutional definition of "just compensation." The Court there said:"But [respondents] insist that no element which goes to make up value . . . is to be discarded or eliminated. We think the proposition is too broadly stated. . . ."317 U.S. at 317 U. S. 374.United States v. Cors, 337 U. S. 325 (1949), held that the just compensation required to be paid to the owner of a tug requisitioned by the Government in October, 1942, during the Second World War, could not include the appreciation in market value for tugs created by the Government's own increased wartime need for such vessels. The Court said: "That is a value which the government itself created, and hence, in fairness, should not be required to pay." Id. at 337 U. S. 334. A long line of cases decided by this Court dealing with the Government's navigational servitude with respect to navigable waters evidences a continuing refusal to include, as an element of value in compensating for fast lands that are taken, any benefits conferred by access to such benefits as a potential port site or a potential hydro-electric site. United States v. Rands, supra; United States v. Twin City Power Co., 350 U. S. 222 (1956); United States v. Commodore Park, 324 U. S. 386 (1945). Page 409 U. S. 492These cases go far toward establishing the general principle that the Government, as condemnor, may not be required to compensate a condemnee for elements of value that the Government has created, or that it might have destroyed under the exercise of governmental authority other than the power of eminent domain. If, as in Rands, the Government need not pay for value that it could have acquired by exercise of a servitude arising under the commerce power, it would seem a fortiori that it need not compensate for value that it could remove by revocation of a permit for the use of lands that it owned outright.We do not suggest that such a general principle can be pushed to its ultimate logical conclusion. In United States v. Miller, supra, the Court held that "just compensation" did include the increment of value resulting from the completed project to neighboring lands originally outside the project limits, but later brought within them. Nor may the United States "be excused from paying just compensation measured by the value of the property at the time of the taking" because the State in which the property is located might, through the exercise of its lease power, have diminished that value without paying compensation. United States ex rel. TVA v. Powelson, 319 U. S. 266, 319 U. S. 284 (1943)."Courts have had to adopt working rules in order to do substantial justice in eminent domain proceedings." United States v. Miller, supra, at 317 U. S. 375. Seeking as best we may to extrapolate from these prior decisions such a "working rule," we believe that there is a significant difference between the value added to property by a completed public works project, for which the Government must pay, and the value added to fee lands by a revocable permit authorizing the use of neighboring lands that the Government owns. The Government Page 409 U. S. 493 may not demand that a jury be arbitrarily precluded from considering as an element of value the proximity of a parcel to a post office building simply because the Government, at one time, built the post office. But here, respondents rely on no mere proximity to a public building or to public lands dedicated to, and open to, the public at large. Their theory of valuation aggregates their parcel with land owned by the Government to form a privately controlled unit from which the public would be excluded. If, as we held in Rands, a person may not do this with respect to property interests subject to the Government's navigational servitude, he surely may not do it with respect to property owned outright by the Government. The Court's statement in Rands respecting port site value is precisely applicable to respondents' contention here that they may aggregate their fee lands with permit lands owned by the Government for valuation purposes:"[I]f the owner of the fast lands can demand port site value as part of his compensation,""he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. . . . To require the United States to pay for this . . . value would be to create private claims in the public domain."389 U.S. at 389 U. S. 125, quoting United States v. Twin City Power Co., 350 U.S. at 350 U. S. 228. We hold that the Fifth Amendment does not require the Government to pay for that element of value based on the use of respondents' fee lands in combination with the Government's permit lands.The Court of Appeals based its holding in part on its conclusion that, although the Fifth Amendment might not have required the Government to pay compensation Page 409 U. S. 494 of the sort permitted by the trial court's charge to the jury, the history of the Taylor Grazing Act indicated that Congress had intended that such compensation be paid. Congress may, of course, provide in connection with condemnation proceedings that particular elements of value or particular rights be paid for even though, in the absence of such provision, the Constitution would not require payment. United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950). But we do think the factors relied upon by the Court of Appeals fall far short of the direction contained in the Reclamation Act of 1902, 32 Stat. 388, as amended, that payment be made for rights recognized under state law, which was determinative of the outcome in Gerlach. The provisions of the Taylor Grazing Act quoted supra make clear the congressional intent that no compensable property right be created in the permit lands themselves as a result of the issuance of the permit. Given that intent, it would be unusual, we think, for Congress to have turned around and authorized compensation for the value added to fee lands by their potential use in connection with permit lands. We find no such authorization in the applicable congressional enactments.Reversed

U.S. Supreme CourtUnited States v. Fuller, 409 U.S. 488 (1973)United States v. FullerNo. 71-559Argued October 18, 1972Decided January 16, 1973409 U.S. 488SyllabusIn a condemnation proceeding brought by the United States, respondents made a claim, which the District Court and Court of Appeals upheld, to compensation for enhanced value on the open market because of use of the condemned fee lands in conjunction with adjoining federal lands for which respondents held permits under the Taylor Grazing Act.Held: The Fifth Amendment requires no compensation for any value added to the fee lands by the permits, which are revocable and, by the Act's terms, create no property rights. Pp. 409 U. S. 490-494.442 F.2d 504, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and BLACKMUN, JJ., joined. POWELL, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined, post, p. 409 U. S. 494.

1961_56

MR. JUSTICE CLARK delivered the opinion of the Court.The petitioners in these consolidated cases are serving life sentences imposed under West Virginia's habitual criminal statute. This Act provides for a mandatory life sentence upon the third conviction "of a crime punishable by confinement in a penitentiary." [Footnote 1] The increased penalty is to be invoked by an information filed by the prosecuting attorney "immediately upon conviction and before sentence." [Footnote 2] Alleging that this Act had been applied without advance notice and to only a minority of those subject to its provisions, in violation respectively of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the petitioners filed separate petitions for writs of habeas corpus in the Supreme Court of Appeals of West Virginia. Both of their petitions were denied without opinion. Unlike Chewning v. Cunningham, ante, p. 368 U. S. 443, here, each of the petitioners was represented by counsel at the time he was sentenced. Finding the cases representative of the many recidivist cases that have been docketed in this Court the past few Terms, we granted certiorari. 365 U.S. 810. We now affirm the judgment in each case.William Oyler, the petitioner in No. 56, was convicted of murder in the second degree on February 5, 1953, which offense carried a penalty of from 5 to 18 years' imprisonment. Sentence was deferred, and on February 11, his motion for a new trial was overruled. On that same date, Page 368 U. S. 450 the Prosecuting Attorney requested and was granted leave to file an information in writing alleging that Oyler was the same person who had suffered three prior convictions in Pennsylvania which were punishable by confinement in a penitentiary. After being cautioned as to the effect of such information, Oyler, accompanied by his counsel, acknowledged in open court that he was the person named in the information. The court then determined that the defendant had thrice been convicted of crimes punishable by confinement in a penitentiary, and sentenced him to life imprisonment. In so doing, the court indicated that the life sentence was mandatory under the statute, and recommended that Oyler be paroled as soon as he was eligible. In 1960, Oyler filed a habeas corpus application in the Supreme Court of Appeals alleging a denial of due process under the Fourteenth Amendment in that he had not been given advance notice of his prosecution as a recidivist, which prevented him from showing the inapplicability of the habitual criminal law. The statute was alleged to be inapplicable because he had never been sentenced to imprisonment in a penitentiary, although he had been convicted of crimes subjecting him to the possibility of such sentence. [Footnote 3] He also attacked his sentence on the equal protection ground previously set forth.In 1957, Paul Crabtree, the petitioner in No. 57, pleaded guilty to forging a $35 check, which offense carried a penalty of from 2 to 10 years' imprisonment. Sentence was deferred, and, a week later, the Prosecuting Attorney informed the court that Crabtree had suffered two previous felony convictions, one in the State of Washington and one in West Virginia. The trial judge, after cautioning Crabtree of the effect of the information and Page 368 U. S. 451 his rights under it, inquired if he was in fact the accused person. Crabtree, who had been represented by counsel throughout, admitted in open court that he was such person. Upon this admission and the accused's further statement that he had nothing more to say, the court proceeded to sentence him to life imprisonment. In 1960, Crabtree sought habeas corpus relief in the Supreme Court of Appeals, claiming denial of due process because of the absence of notice which prevented him from showing he had never been convicted in Walla Walla County, Washington, as had been alleged in the information. [Footnote 4] Like Oyler, he also raised the equal protection ground.IPetitioners recognize that the constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge; [Footnote 5] however, they contend that, in West Virginia, such penalties are being invoked in an unconstitutional manner. It is petitioners' position that procedural due process under the Fourteenth Amendment requires notice of the habitual criminal accusation before the trial on the third Page 368 U. S. 452 offense, or at least in time to afford a reasonable opportunity to meet the recidivist charge.Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is "essentially independent" of the determination of guilt on the underlying substantive offense. Chandler v. Fretag, 348 U. S. 3, 348 U. S. 8 (1954). Thus, although the habitual criminal issue may be combined with the trial of the felony charge, "it is a distinct issue, and it may appropriately be the subject of separate determination." Graham v. West Virginia, 224 U. S. 616, 224 U. S. 625 (1912). If West Virginia chooses to handle the matter as two separate proceedings, due process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding. [Footnote 6] See Graham v. West Virginia, supra.Nevertheless, a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense. Such requirements are implicit within our decisions in Chewning v. Cunningham, supra; Reynolds v. Cochran, 365 U. S. 525 (1961); Chandler v. Fretag, supra. Although these cases were specifically concerned with the right to assistance of counsel, it would have been an idle accomplishment to say that due process requires counsel, but not the right to reasonable notice and opportunity to be heard.As interpreted by its highest court, West Virginia's recidivist statute does not require the State to notify the Page 368 U. S. 453 defendant prior to trial on the substantive offense that information of his prior convictions will be presented in the event he is found guilty. [Footnote 7] Thus, notice of the State's invocation of the statute is first brought home to the accused when, after conviction on the substantive offense but before sentencing, the information is read to him in open court, as was done here. At this point, petitioners were required to plead to the information. The statute expressly provides for a jury trial on the issue of identity if the accused either denies he is the person named in the information or just remains silent. [Footnote 8]But the petitioners, who were represented by counsel, neither denied they were the persons named nor remained silent. Nor did they object or seek a continuance on the ground that they had not received adequate notice and needed more time to determine how to respond with respect to the issue of their identity. Rather, both petitioners rendered further inquiry along this line unnecessary by their acknowledgments in open court that they were the same persons who had previously been convicted. In such circumstances, the petitioners are in no position now to assert that they were not given a fair opportunity to respond to the allegations as to their identity.They assert, however, that they would have raised other defenses if they had been given adequate notice of the recidivist charges. It is, of course, true that identity is not the only issue presented in a recidivist proceeding, for, as pointed out by Mr. Justice Hughes (later Chief Justice) when this Court first reviewed West Virginia's habitual criminal law, this statute contemplates valid convictions which have not been subsequently nullified. Graham v. West Virginia, supra. A list of the more obvious issues Page 368 U. S. 454 would also include such matters as whether the previous convictions are of the character contemplated by West Virginia's statute and whether the required procedure has been followed in invoking it. Indeed, we may assume that any infirmities in the prior convictions open to collateral attack could have been reached in the recidivist proceedings, either because the state law so permits [Footnote 9] or due process so requires. But this is a question we need not and do not decide, for neither the petitioners nor their counsel attempted during the recidivist proceedings to raise the issues which they now seek to raise or, indeed, any other issues. They were not, therefore, denied the right to do so. The petitioners' claim that they were deprived of due process because of inadequate opportunity to contest the habitual criminal accusation must be rejected in these cases. Each of the petitioners had a lawyer at his side, and neither the petitioners nor their counsel sought in any way to raise any matters in defense or intimated that a continuance was needed to investigate the existence of any possible defense. On the contrary, the record clearly shows that both petitioners personally and through their lawyers conceded the applicability of the law's sanctions to the circumstances of their cases.IIPetitioners also claim they were denied the equal protection of law guaranteed by the Fourteenth Amendment. In his petition for a writ of habeas corpus to the Supreme Court of Appeals of West Virginia, Oyler stated:"Petitioner was discriminated against as an Habitual Criminal in that from January, 1940, to Page 368 U. S. 455 June, 1955, there were six men sentenced in the Taylor County Circuit Court who were subject to prosecution as Habitual offenders, Petitioner was the only man thus sentenced during this period. It is a matter of record that the five men who were not prosecuted as Habitual Criminals during this period, all had three or more felony convictions and sentences as adults, and Petitioner's former convictions were a result of Juvenile Court actions.""* * * *" "#5. The Petitioner was discriminated against by selective use of a mandatory State Statute, in that 904 men who were known offenders throughout the State of West Virginia were not sentenced as required by the mandatory Statutes, Chapter 61, Article 11, Sections 18 and 19 of the Code. Equal Protection and Equal Justice was [sic] denied."Statistical data based on prison records were appended to the petition to support the latter allegation. Crabtree in his petition included similar statistical support and alleged:"The said Statute are [sic] administered and applied in such a manner as to be in violation of Equal Protection and Equal Justice therefor in conflict with the Fourteenth Amendment to the Constitution of the United States."Thus, petitioners' contention is that the habitual criminal statute imposes a mandatory duty on the prosecuting authorities to seek the severer penalty against all persons coming within the statutory standards, but that it is done only in a minority of cases. [Footnote 10] This, petitioners Page 368 U. S. 456 argue, denies equal protection to those persons against whom the heavier penalty is enforced. We note that it is not stated whether the failure to proceed against other three-time offenders was due to lack of knowledge of the prior offenses on the part of the prosecutors or was the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons. The statistics merely show that, according to penitentiary records, a high percentage of those subject to the law have not been proceeded against. There is no indication that these records of previous convictions, which may not have been compiled until after the three-time offenders had reached the penitentiary, were available to the prosecutors. [Footnote 11] Hence ,the allegations set out no more than a failure to prosecute others because of a lack of knowledge of their prior offenses. This does not deny equal protection due petitioners under the Fourteenth Amendment. See Sanders v. Waters, 199 F.2d 317 (C.A. 10th Cir. 1952); Oregon v. Hicks, 213 Or. 619, 325 P.2d 794 (1958).Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore, grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks, supra; cf. Snowden v. Hughes, 321 U. S. 1 (1944); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (by implication).The other points raised by petitioners, such as the misstatement of the Washington county in which Crabtree Page 368 U. S. 457 was convicted and the fact that Oyler actually served in a Pennsylvania correctional home, rather than a penitentiary, all involve state questions with which we are not concerned. Since the highest court of West Virginia handed down no opinion, we do not know what questions its judgment foreclosed. If any remain open, our judgment would not affect a test of them in appropriate state proceedings.Affirmed

U.S. Supreme CourtOyler v. Boles, 368 U.S. 448 (1962)Oyler v. BolesNo. 56Argued December 4, 1961Decided February 19, 1962*368 U.S. 448SyllabusWest Virginia's habitual criminal statute provides for a mandatory life sentence upon the third conviction "of a crime punishable by confinement in a penitentiary." The increased penalty is to be invoked by an information filed by the prosecuting attorney "immediately upon conviction and before sentence." In such proceedings, in which they were represented by counsel and did not request continuances or raise any matters in defense, but did concede the applicability of the statute to the circumstances of their cases, petitioners were sentenced to life imprisonment. Subsequently they petitioned the State Supreme Court for writs of habeas corpus, alleging that the Act had been applied without advance notice and to only a minority of those subject to its provisions, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Their petitions were denied.Held:1. Due process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal accusation. It does require a reasonable opportunity to defend against such an accusation, but the records show that petitioners were not denied such an opportunity. Pp. 368 U. S. 451-454.2. The failure to proceed against other offenders because of a lack of knowledge of prior offenses or because of the exercise of reasonable selectivity in enforcement does not deny equal protection to persons who are prosecuted, and petitioners did not allege that the failure to prosecute others was due to any other reason. Pp. 368 U. S. 454-456.Affirmed. Page 368 U. S. 449

1995_95-8836

REHNQUIST, C. J., delivered the opinion for a unanimous Court. STEVENS, J., filed a concurring opinion, in which SOUTER and BREYER, JJ., joined, post, p. 665. SOUTER, J., filed a concurring opinion, in which STEVENS and BREYER, JJ., joined, post, p. 666.Henry P. Monaghan argued the cause for petitioner.With him on the brief were Stephen C. Bayliss, Mary Elizabeth Wells, and Mark Evan Olive.Susan v: Boleyn, Senior Assistant Attorney General of Georgia, argued the cause for respondent. With her on the briefs were Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, and Paige Reese Whitaker, Assistant Attorney General.Solicitor General Days argued the cause for the United States as amicus curiae. With him on the brief were Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, James A. Feldman, Malcolm L. Stewart, Robert J. Erickson, and David S. Kris. **Briefs of amici curiae urging affirmance were filed for the Washington Legal Foundation et al. by Ronald D. Maines, Paul G. Cassell, Daniel J. Popeo, and Paul D. Kamenar; and for Senator Orrin G. Hatch, pro se, et al.Briefs of amici curiae were filed for the State of Alabama et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Stuart A. Cole, Stuart W Harris, and Jon C. Walden, Assistant Attorneys General, Dan Morales, Attorney General of Texas, Jorge Vega, First Assistant Attorney General, Drew T. Durham, Deputy Attorney General, and Margaret Portman Griffey, John Jacks, and Dana E. Parker, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Donald E. De Nicola, Supervising Deputy Attorney General, and Dane R. Gillette, Senior Assistant Attorney General, Jeff Sessions, Attorney General of Alabama, Grant Woods, Attorney General of Arizona, Gale A. Norton, Attorney General of Colorado, John M. Bailey, Chief State's Attorney of Connecticut, M. Jane Brady, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Margery S. Bronster, Attorney General of Hawaii, Allan G. Lance, Attorney General of Idaho, Jim Ryan, Attorney General of Illinois, A. B. Chandler III, Attorney General of Kentucky, Scott Harshbarger, Attorney General of Massachusetts, Mike Moore, Attorney General of Mississippi, Jeremiah W (Jay) Nixon,654CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (Act) works substantial changes to chapter 153 of Title 28 of the United States Code, which authorizes federal courts to grant the writ of habeas corpus. Pub. L. 104132, 110 Stat. 1217. We hold that the Act does not preclude this Court from entertaining an application for habeas corpus relief, although it does affect the standards governing the granting of such relief. We also conclude that the availability of such relief in this Court obviates any claim by petitioner under the Exceptions Clause of Article III, § 2, of the Constitution, and that the operative provisions of the Act do not violate the Suspension Clause of the Constitution, Art. I, §9.IOn a night in 1976, petitioner approached Jane W. in his car as she got out of hers. Claiming to be lost and looking for a party nearby, he used a series of deceptions to induce Jane to accompany him to his trailer home in town. Peti-Attorney General of Missouri, Joseph P. Mazurek, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Deborah T. Poritz, Attorney General of New Jersey, Dennis C. Vacco, Attorney General of New York, Michael F. Easley, Attorney General of North Carolina, W A. Drew Edmondson, Attorney General of Oklahoma, Theodore R. Kolongoski, Attorney General of Oregon, Thomas W Corbett, Jr., Attorney General of Pennsylvania, Jeffrey B. Pine, Attorney General of Rhode Island, Mark W Barnett, Attorney General of South Dakota, Charles W Burson, Attorney General of Tennessee, Jan Graham, Attorney General of Utah, Christine Q Gregoire, Attorney General of Washington, James E. Doyle, Attorney General of Wisconsin, and William U. Hill, Attorney General of Wyoming; for the American Civil Liberties Union by Steven R. Shapiro; for the Criminal Justice Legal Foundation et al. by Kent S. Scheidegger; and for the N ational District Attorneys Association by Lynn Abraham and Ronald Eisenberg.655tioner forcibly subdued her, raped her, and sodomized her. Jane pleaded with petitioner to let her go, but he said he could not because she would notify the police. She escaped later, when petitioner fell asleep. Jane notified the police, and petitioner was eventually convicted of aggravated sodomy and sentenced to 12 years' imprisonment.Petitioner was paroled four years later. On November 23, 1981, he met Joy Ludlam, a cocktail waitress, at the lounge where she worked. She was interested in changing jobs, and petitioner used a series of deceptions involving offering her a job at "The Leather Shoppe," a business he owned, to induce her to visit him the next day. The last time Joy was seen alive was the evening of the next day. Her dead body was discovered two weeks later in a creek. Forensic analysis established that she had been beaten, raped, and sodomized, and that she had been strangled to death before being left in the creek. Investigators discovered hair resembling petitioner's on Joy's body and clothes, hair resembling Joy's in petitioner's bedroom, and clothing fibers like those in Joy's coat in the hatchback of petitioner's car. One of petitioner's neighbors reported seeing Joy's car at petitioner's house the day she disappeared.A jury convicted petitioner of murder, rape, aggravated sodomy, and false imprisonment. Petitioner was sentenced to death on the murder charge. The Georgia Supreme Court affirmed petitioner's conviction and death sentence, Felker v. State, 252 Ga. 351, 314 S. E. 2d 621, and we denied certiorari, 469 U. S. 873 (1984). A state trial court denied collateral relief, the Georgia Supreme Court declined to issue a certificate of probable cause to appeal the denial, and we again denied certiorari. Felker v. Zant, 502 U. S. 1064 (1992).Petitioner then filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, alleging that (1) the State's evidence was insuffi-656cient to convict him; (2) the State withheld exculpatory evidence, in violation of Brady v. Maryland, 373 U. S. 83 (1963); (3) petitioner's counsel rendered ineffective assistance at sentencing; (4) the State improperly used hypnosis to refresh a witness' memory; and (5) the State violated double jeopardy and collateral estoppel principles by using petitioner's crime against Jane W. as evidence at petitioner's trial for crimes against Joy Ludlam. The District Court denied the petition. The United States Court of Appeals for the Eleventh Circuit affirmed, 52 F.3d 907, extended on denial of petition for rehearing, 62 F.3d 342 (1995), and we denied certiorari, 516 U. S. 1133 (1996).The State scheduled petitioner's execution for the period May 2-9, 1996. On April 29, 1996, petitioner filed a second petition for state collateral relief. The state trial court denied this petition on May 1, and the Georgia Supreme Court denied certiorari on May 2.On April 24, 1996, the President signed the Act into law.Title I of this Act contained a series of amendments to existing federal habeas corpus law. The provisions of the Act pertinent to this case concern second or successive habeas corpus applications by state prisoners. Section 106(b) specifies the conditions under which claims in second or successive applications must be dismissed, amending 28 U. S. C. § 2244(b) to read:"(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed."(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-"(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or657"(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and"(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."Title 28 U. S. C. § 2244(b)(3) (1994 ed., Supp. II) creates a "gatekeeping" mechanism for the consideration of second or successive applications in district court. The prospective applicant must file in the court of appeals a motion for leave to file a second or successive habeas application in the district court. § 2244(b)(3)(A). A three-judge panel has 30 days to determine whether "the application makes a prima facie showing that the application satisfies the requirements of" § 2244(b). § 2244(b)(3)(C); see §§ 2244(b)(3)(B), (D). Section 2244(b)(3)(E) specifies that "[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certi orari."On May 2,1996, petitioner filed in the United States Court of Appeals for the Eleventh Circuit a motion for stay of execution and a motion for leave to file a second or successive federal habeas corpus petition under § 2254. Petitioner sought to raise two claims in his second petition, the first being that the state trial court violated due process by equating guilt "beyond a reasonable doubt" with "moral certainty" of guilt in voir dire and jury instructions. See Cage v. Louisiana, 498 U. S. 39 (1990) (per curiam). He also alleged that qualified experts, reviewing the forensic evidence after his conviction, had established that Joy must have died during a period when petitioner was under police surveillance for Joy's disappearance and thus had a valid658alibi. He claimed that the testimony of the State's forensic expert at trial was suspect because he is not a licensed physician, and that the new expert testimony so discredited the State's testimony at trial that petitioner had a colorable claim of factual innocence.The Court of Appeals denied both motions the day they were filed, concluding that petitioner's claims had not been presented in his first habeas petition, that they did not meet the standards of § 2244(b)(2), and that they would not have satisfied pre-Act standards for obtaining review on the merits of second or successive claims. 83 F.3d 1303 (CAll 1996). Petitioner filed in this Court a pleading styled a "Petition for Writ of Habeas Corpus, for Appellate or Certiorari Review of the Decision of the United States Circuit Court for the Eleventh Circuit, and for Stay of Execution." On May 3, we granted petitioner's stay application and petition for certiorari. We ordered briefing on the extent to which the provisions of Title I of the Act apply to a petition for habeas corpus filed in this Court, whether application of the Act suspended the writ of habeas corpus in this case, and whether Title I of the Act, especially the provision to be codified at § 2244(b)(3)(E), constitutes an unconstitutional restriction on the jurisdiction of this Court. 517 U. S. 1182 (1996).IIWe first consider to what extent the provisions of Title I of the Act apply to petitions for habeas corpus filed as original matters in this Court pursuant to 28 U. S. C. §§ 2241 and 2254. We conclude that although the Act does impose new conditions on our authority to grant relief, it does not deprive this Court of jurisdiction to entertain original habeas petitions.ASection 2244(b)(3)(E) prevents this Court from reviewing a court of appeals order denying leave to file a second ha-659beas petition by appeal or by writ of certiorari. More than a century ago, we considered whether a statute barring review by appeal of the judgment of a circuit court in a habeas case also deprived this Court of power to entertain an original habeas petition. Ex parte Yerger, 8 Wall. 85 (1869). We consider the same question here with respect to § 2244(b)(3)(E).Yerger's holding is best understood in the light of the availability of habeas corpus review at that time. Section 14 of the Judiciary Act of 1789 authorized all federal courts, including this Court, to grant the writ of habeas corpus when prisoners were "in custody, under or by colour of the authority of the United States, or [were] committed for trial before some court of the same." Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82.1 Congress greatly expanded the scope of federal habeas corpus in 1867, authorizing federal courts to grant the writ, "in addition to the authority already conferred by law," "in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Act of Feb. 5, 1867, ch. 28, 14 Stat. 385.2 Before the Act of 1867, the only instances in which a federal court could issue the writ to produce a state prisoner were if the prisoner was "necessary to be brought into court to testify," Act of Sept. 24,1789, ch. 20, § 14,1 Stat. 82, was "committed ... for any act done ... in pursuance of a law of the United States," Act of Mar. 2, 1833, ch. 57, § 7, 4 Stat. 634-635, or was a "subjec[t] or citize[n] of a foreign1 Section 14 is the direct ancestor of 28 U. S. C. § 2241, subsection (a) of which now states in pertinent part: ''Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions."2 This language from the 1867 Act is the direct ancestor of § 2241(c)(3), which states: "The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States."660State, and domiciled therein," and held under state law, Act of Aug. 29, 1842, ch. 257, 5 Stat. 539-540.The Act of 1867 also expanded our statutory appellate jurisdiction to authorize appeals to this Court from the final decision of any circuit court on a habeas petition. 14 Stat. 386. This enactment changed the result of Barry v. Mercein, 5 How. 103 (1847), in which we had held that the Judiciary Act of 1789 did not authorize this Court to conduct appellate review of circuit court habeas decisions. However, in 1868, Congress revoked the appellate jurisdiction it had given in 1867, repealing "so much of the [Act of 1867] as authorizes an appeal from the judgment of the circuit court to the Supreme Court of the United States." Act of Mar. 27, 1868, ch. 34, § 2, 15 Stat. 44.In Yerger, we considered whether the Act of 1868 deprived us not only of power to hear an appeal from an inferior court's decision on a habeas petition, but also of power to entertain a habeas petition to this Court under § 14 of the Act of 1789. We concluded that the 1868 Act did not affect our power to entertain such habeas petitions. We explained that the 1868 Act's text addressed only jurisdiction over appeals conferred under the Act of 1867, not habeas jurisdiction conferred under the Acts of 1789 and 1867. We rejected the suggestion that the Act of 1867 had repealed our habeas power by implication. Yerger, 8 Wall., at 105. Repeals by implication are not favored, we said, and the continued exercise of original habeas jurisdiction was not "repugnant" to a prohibition on review by appeal of circuit court habeas judgments. Ibid.Turning to the present case, we conclude that Title I of the Act has not repealed our authority to entertain original habeas petitions, for reasons similar to those stated in Yerger. No provision of Title I mentions our authority to entertain original habeas petitions; in contrast, § 103 amends the Federal Rules of Appellate Procedure to bar consider-661ation of original habeas petitions in the courts of appeals.3 Although § 2244(b)(3)(E) precludes us from reviewing, by appeal or petition for certiorari, a judgment on an application for leave to file a second habeas petition in district court, it makes no mention of our authority to hear habeas petitions filed as original matters in this Court. As we declined to find a repeal of § 14 of the Judiciary Act of 1789 as applied to this Court by implication then, we decline to find a similar repeal of § 2241 of Title 28-its descendant, n. 1, supra-by implication now.This conclusion obviates one of the constitutional challenges raised. The critical language of Article III, § 2, of the Constitution provides that, apart from several classes of cases specifically enumerated in this Court's original jurisdiction, "[i]n all the other Cases ... the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Previous decisions construing this clause have said that while our appellate powers "are given by the constitution," "they are limited and regulated by the [Judiciary Act of 1789], and by such other acts as have been passed on the subject." Durousseau v. United States, 6 Cranch 307, 314 (1810); see also United States v. More, 3 Cranch 159, 172-173 (1805). The Act does remove our authority to entertain an appeal or a petition for a writ of certiorari to review a decision of a court of appeals exercising its "gatekeeping" function over a second petition. But since it does not repeal our authority to entertain a petition for3 Section 103 of the Act amends Federal Rule of Appellate Procedure 22(a) to read: "An application for a writ of habeas corpus shall be made to the appropriate district court. If application is made to a circuit judge, the application shall be transferred to the appropriate district court. If an application is made to or transferred to the district court and denied, renewal of the application before a circuit judge shall not be permitted. The applicant may, pursuant to section 2253 of title 28, United States Code, appeal to the appropriate court of appeals from the order of the district court denying the writ."662habeas corpus, there can be no plausible argument that the Act has deprived this Court of appellate jurisdiction in violation of Article III, § 2.BWe consider next how Title I affects the requirements a state prisoner must satisfy to show he is entitled to a writ of habeas corpus from this Court. Title I of the Act has changed the standards governing our consideration of habeas petitions by imposing new requirements for the granting of relief to state prisoners. Our authority to grant habeas relief to state prisoners is limited by § 2254, which specifies the conditions under which such relief may be granted to "a person in custody pursuant to the judgment of a State court."4 § 2254(a). Several sections of the Act impose new requirements for the granting of relief under this section, and they therefore inform our authority to grant such relief as well.Section 2244(b) addresses second or successive habeas petitions. Section 2244(b)(3)'s "gatekeeping" system for second petitions does not apply to our consideration of habeas petitions because it applies to applications "filed in the district court." § 2244(b)(3)(A). There is no such limitation, however, on the restrictions on repetitive and new claims imposed by §§ 2244(b)(1) and (2). These restrictions apply without qualification to any "second or successive habeas corpus application under section 2254." §§ 2244(b)(1), (2).4 As originally enacted in 1948, 28 U. S. C. § 2254 specified that "[a]n application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U. S. C. §2254 (1946 ed., Supp. III). The reviser's notes, citing Ex parte Hawk, 321 U. S. 114 (1944) (per curiam), indicated that "[t]his new section is declaratory of existing law as affirmed by the Supreme Court." Reviser's Note following 28 U. S. C. §2254, p. 1109 (1946 ed., Supp. III). Hawk was one of a series of opinions in which we applied the exhaustion requirement first announced in Ex parte Royall, 117 U. S. 241 (1886), to deny relief to applicants seeking writs of habeas corpus from this Court.663Whether or not we are bound by these restrictions, they certainly inform our consideration of original habeas petitions.IIINext, we consider whether the Act suspends the writ of habeas corpus in violation of Article I, § 9, clause 2, of the Constitution. This Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."The writ of habeas corpus known to the Framers was quite different from that which exists today. As we explained previously, the first Congress made the writ of habeas corpus available only to prisoners confined under the authority of the United States, not under state authority. Supra, at 659660; see Ex parte Dorr, 3 How. 103 (1844). The class of judicial actions reviewable by the writ was more restricted as well. In Ex parte Watkins, 3 Pet. 193 (1830), we denied a petition for a writ of habeas corpus from a prisoner "detained in prison by virtue of the judgment of a court, which court possesses general and final jurisdiction in criminal cases." Id., at 202. Reviewing the English common law which informed American courts' understanding of the scope of the writ, we held that "[t]he judgment of the circuit court in a criminal case is of itself evidence of its own legality," and that we could not "usurp that power by the instrumentality of the writ of habeas corpus." Id., at 207.It was not until 1867 that Congress made the writ generally available in "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Supra, at 659. And it was not until well into this century that this Court interpreted that provision to allow a final judgment of conviction in a state court to be collaterally attacked on habeas. See, e. g., Waley v. Johnston, 316 U. S. 101 (1942) (per curiam); Brown v. Allen, 344 U. S. 443 (1953). But we assume,664for purposes of decision here, that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789. See Swain v. Pressley, 430 U. S. 372 (1977); id., at 384 (Burger, C. J., concurring in part and concurring in judgment).The Act requires a habeas petitioner to obtain leave from the court of appeals before filing a second habeas petition in the district court. But this requirement simply transfers from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by 28 U. S. C. § 2254 Rule 9(b). The Act also codifies some of the pre-existing limits on successive petitions, and further restricts the availability of relief to habeas petitioners. But we have long recognized that "the power to award the writ by any of the courts of the United States, must be given by written law," Ex parte Bollman, 4 Cranch 75, 94 (1807), and we have likewise recognized that judgments about the proper scope of the writ are "normally for Congress to make." Lonchar v. Thomas, 517 U. S. 314, 323 (1996).The new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice "abuse of the writ." In McCleskey v. Zant, 499 U. S. 467 (1991), we said that "the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions." Id., at 489. The added restrictions which the Act places on second habeas petitions are well within the compass of this evolutionary process, and we hold that they do not amount to a "suspension" of the writ contrary to Article I, § 9.IVWe have answered the questions presented by the petition for certiorari in this case, and we now dispose of the petition665for an original writ of habeas corpus. Our Rule 20.4(a) delineates the standards under which we grant such writs:"A petition seeking the issuance of a writ of habeas corpus shall comply with the requirements of 28 U. S. C. §§ 2241 and 2242, and in particular with the provision in the last paragraph of § 2242 requiring a statement of the 'reasons for not making application to the district court of the district in which the applicant is held.' If the relief sought is from the judgment of a state court, the petition shall set forth specifically how and wherein the petitioner has exhausted available remedies in the state courts or otherwise comes within the provisions of 28 U. S. C. § 2254(b). To justify the granting of a writ of habeas corpus, the petitioner must show exceptional circumstances warranting the exercise of the Court's discretionary powers and must show that adequate relief cannot be obtained in any other form or from any other court. These writs are rarely granted."Reviewing petitioner's claims here, they do not materially differ from numerous other claims made by successive habeas petitioners which we have had occasion to review on stay applications to this Court. Neither of them satisfies the requirements of the relevant provisions of the Act, let alone the requirement that there be "exceptional circumstances" justifying the issuance of the writ.***The petition for writ of certiorari is dismissed for want of jurisdiction. The petition for an original writ of habeas corpus is denied.It is so ordered

OCTOBER TERM, 1995SyllabusFELKER v. TURPIN, WARDENCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 95-8836 (A-890). Argued June 3, 1996-Decided June 28, 1996After he was convicted of murder and other crimes and sentenced to death by a Georgia state court, petitioner was denied relief on direct appeal, in two rounds of state collateral proceedings, and in a first round of federal habeas corpus proceedings. While he was awaiting execution, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (Act), Title I of which, as here pertinent, requires dismissal of a claim presented in a state prisoner's second or successive federal habeas application if the claim was also presented in a prior application, 28 U. S. C. § 2244(b)(1); compels dismissal of a claim that was not presented in a prior federal application, unless certain conditions apply, § 2244(b)(2); creates a "gatekeeping" mechanism, whereby the prospective applicant files in the court of appeals a motion for leave to file a second or successive habeas application in the district court, and a three-judge panel determines whether the application makes a prima facie showing that it satisfies § 2244(b)'s requirements, § 2244(b)(3); and declares that a panel's grant or denial of authorization to file "shall not be appealable and shall not be the subject of a petition for ... writ of certiorari," § 2244(b)(3)(E). Petitioner filed a motion for leave to file a second federal habeas petition, which the Eleventh Circuit denied on the grounds, inter alia, that the claims to be raised therein had not been presented in his first petition and did not meet § 2244(b)(2)'s conditions. Petitioner then filed in this Court a pleading styled a "Petition for Writ of Habeas Corpus [and] for Appellate or Certiorari Review .... " The Court granted certiorari, ordering briefing on the extent to which Title I's provisions apply to a habeas petition filed in this Court, whether application of the Act suspended habeas in this case, and whether Title I, especially the provision to be codified at § 2244(b)(3)(E), unconstitutionally restricts the Court's jurisdiction.Held:1. The Act does not preclude this Court from entertaining an application for habeas corpus relief, although it does affect the standards governing the granting of such relief. Pp. 658-663.(a) Title I does not deprive this Court of jurisdiction to entertain habeas petitions filed as original matters pursuant to 28 U. S. C. §§ 2241652Syllabusand 2254. No Title I provision mentions the Court's authority to entertain such original petitions; in contrast, § 103 amends the Federal Rules of Appellate Procedure to bar consideration of original habeas petitions in the courts of appeals. Although § 2244(b)(3)(E) precludes the Court from reviewing, by appeal or certiorari, the latter courts' decisions exercising the "gatekeeping" function for second habeas petitions, it makes no mention of the Court's original habeas jurisdiction. Thus, the Court declines to find a repeal of § 2241 by implication. See Ex parte Yerger, 8 Wall. 85, 105. This conclusion obviates any claim by petitioner under the Constitution's Exceptions Clause, Art. III, § 2, which provides, inter alia, that, "[i]n all ... Cases ... the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions ... as the Congress shall make." Since the Act does not repeal the Court's authority to entertain a habeas petition, there can be no plausible argument that it deprives the Court of appellate jurisdiction in violation of that Clause. Pp. 658-662.(b) Title I changes the standards governing this Court's consideration of habeas petitions by imposing new requirements under 28 U. S. C. § 2254(a), which limits the Court's authority to grant relief to state prisoners. Section 2244(b)(3)'s "gatekeeping" system does not apply to the Court because it is limited to applications "filed in the district court." There is no such limitation, however, on the restrictions imposed by §§ 2244(b)(1) and (2), and those restrictions inform the Court's authority to grant relief on original habeas petitions, whether or not the Court is bound by the restrictions. Pp. 662-663.2. The Act does not violate the Constitution's Suspension Clause, Art.I, § 9, cl. 2, which provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended." The new restrictions on successive habeas petitions constitute a modified res judicata rule, a restraint on what is called in habeas practice "abuse of the writ." The doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions. McCleskey v. Zant, 499 U. S. 467, 489. The new restrictions are well within the compass of this evolutionary process and do not amount to a "suspension" of the writ. Pp. 663-664.3. The petition for an original writ of habeas corpus is denied. Petitioner's claims do not satisfy the § 2244(b)(2) requirements, let alone this Court's Rule 20.4(a), which requires that the habeas petitioner show "exceptional circumstances" justifying the issuance of the writ and says that habeas relief is rarely granted. Petitioner's claims here do not materially differ from numerous other claims made by successive habeas petitioners that the Court has had occasion to review on stay applications. Pp. 664-665.Certiorari dismissed for want of jurisdiction; writ of habeas corpus denied.653Full Text of Opinion

1987_86-1145

JUSTICE MARSHALL delivered the opinion of the Court.The question presented in this case is whether the state action doctrine of Parker v. Brown, 317 U. S. 341 (1943), protects physicians in the State of Oregon from federal antitrust liability for their activities on hospital peer review committees.IAstoria, Oregon, where the events giving rise to this lawsuit took place, is a city of approximately 10,000 people Page 486 U. S. 96 located in the northwest corner of the State. The only hospital in Astoria is the Columbia Memorial Hospital (CMH). Astoria also is the home of a private group medical practice called the Astoria Clinic. At all times relevant to this case, a majority of the staff members at the CMH were employees or partners of the Astoria Clinic.Petitioner Timothy Patrick is a general and vascular surgeon. He became an employee of the Astoria Clinic and a member of the CMH's medical staff in 1972. One year later, the partners of the Clinic, who are the respondents in this case, [Footnote 1] invited petitioner to become a partner of the Clinic. Petitioner declined this offer, and instead began an independent practice in competition with the surgical practice of the Clinic. Petitioner continued to serve on the medical staff of the CMH.After petitioner established his independent practice, the physicians associated with the Astoria Clinic consistently refused to have professional dealings with him. Petitioner received virtually no referrals from physicians at the Clinic, even though the Clinic at times did not have a general surgeon on its staff. Rather than refer surgery patients to petitioner, Clinic doctors referred them to surgeons located as far as 50 miles from Astoria. In addition, Clinic physicians showed reluctance to assist petitioner with his own patients. Clinic doctors often declined to give consultations, and Clinic surgeons refused to provide backup coverage for patients under petitioner's care. At the same time, Clinic physicians repeatedly criticized petitioner for failing to obtain outside consultations and adequate backup coverage.In 1979, respondent Gary Boelling, a partner at the Clinic, complained to the executive committee of the CMH's medical staff about an incident in which petitioner had left a patient in the care of a recently hired associate, who then left the Page 486 U. S. 97 patient unattended. The executive committee decided to refer this complaint, along with information about other cases handled by petitioner, to the State Board of Medical Examiners (BOME). Respondent Franklin Russell, another partner at the Clinic, chaired the committee of the BOME that investigated these matters. The members of the BOME committee criticized petitioner's medical practices to the full BOME, which then issued a letter of reprimand that had been drafted by Russell. The BOME retracted this letter in its entirety after petitioner sought judicial review of the BOME proceedings.Two years later, at the request of respondent Richard Harris, a Clinic surgeon, the executive committee of the CMH's medical staff initiated a review of petitioner's hospital privileges. The committee voted to recommend the termination of petitioner's privileges on the ground that petitioner's care of his patients was below the standards of the hospital. Petitioner demanded a hearing, as provided by hospital bylaws, and a five-member ad hoc committee, chaired by respondent Boelling, heard the charges and defense. Petitioner requested that the members of the committee testify as to their personal bias against him, but they refused to accommodate this request. Before the committee rendered its decision, petitioner resigned from the hospital staff rather than risk termination. [Footnote 2]During the course of the hospital peer review proceedings, petitioner filed this lawsuit in the United States District Court for the District of Oregon. Petitioner alleged that the partners of the Astoria Clinic had violated §§ 1 and 2 of the Sherman Act, ch. 647, 26 Stat. 209, 15 U.S.C. §§ 1, 2. Specifically, petitioner contended that the Clinic partners had Page 486 U. S. 98 initiated and participated in the hospital peer review proceedings to reduce competition from petitioner, rather than to improve patient care. Respondents denied this assertion, and the District Court submitted the dispute to the jury with instructions that it could rule in favor of petitioner only if it found that respondents' conduct was the result of a specific intent to injure or destroy competition.The jury returned a verdict against respondents Russell, Boelling, and Harris on the § 1 claim, and against all of the respondents on the § 2 claim. It awarded damages of $650,000 on the two antitrust claims taken together. The District Court, as required by law, see 15 U.S.C. § 15(a), 38 Stat. 731, trebled the antitrust damages.The Court of Appeals for the Ninth Circuit reversed. 800 F.2d 1498 (1986). It found that there was substantial evidence that respondents had acted in bad faith in the peer review process. [Footnote 3] The court held, however, that even if respondents had used the peer review process to disadvantage a competitor, rather than to improve patient care, their conduct in the peer review proceedings was immune from antitrust scrutiny. The court reasoned that the peer review activities of physicians in Oregon fall within the state action exemption from antitrust liability because Oregon has articulated a policy in favor of peer review and actively supervises the peer review process. [Footnote 4] The court therefore Page 486 U. S. 99 reversed the judgment of the District Court as to petitioner's antitrust claims.We granted certiorari, 484 U.S. 814 (1987), to decide whether the state action doctrine protects respondents' hospital peer review activities from antitrust challenge. [Footnote 5] We now reverse.IIIn Parker v. Brown, 317 U. S. 341 (1943), this Court considered whether the Sherman Act prohibits anticompetitive actions of a State. Petitioner in that case was a raisin producer who brought suit against the California Director of Agriculture to enjoin the enforcement of a marketing plan adopted under the State's Agricultural Prorate Act. That statute restricted competition among food producers in the State in order to stabilize prices and prevent economic waste. Relying on principles of federalism and state sovereignty, this Court refused to find in the Sherman Act "an unexpressed purpose to nullify a state's control over its officers and agents." Id. at 317 U. S. 351. The Sherman Act, the Court held, was not intended "to restrain state action or official action directed by a state." Ibid.Although Parker involved a suit against a state official, the Court subsequently recognized that Parker's federalism rationale Page 486 U. S. 100 demanded that the state action exemption also apply in certain suits against private parties. See, e.g., Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U. S. 48 (1985). If the Federal Government or a private litigant always could enforce the Sherman Act against private parties, then a State could not effectively implement a program restraining competition among them. The Court, however, also sought to ensure that private parties could claim state action immunity from Sherman Act liability only when their anticompetitive acts were truly the product of state regulation. We accordingly established a rigorous two-pronged test to determine whether anticompetitive conduct engaged in by private parties should be deemed state action, and thus shielded from the antitrust laws. See California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980). First, "the challenged restraint must be one clearly articulated and affirmatively expressed as state policy.'" Id. at 445 U. S. 105, quoting Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 435 U. S. 410 (1978) (opinion of BRENNAN, J.). Second, the anticompetitive conduct "must be `actively supervised' by the State itself." California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., supra, at 445 U. S. 105, quoting Lafayette v. Louisiana Power & Light Co., supra, at 435 U. S. 410 (opinion of BRENNAN, J.). Only if an anticompetitive act of a private party meets both of these requirements is it fairly attributable to the State.In this case, we need not consider the "clear articulation" prong of the Midcal test, because the "active supervision" requirement is not satisfied. The active supervision requirement stems from the recognition that"[w]here a private party is engaging in the anticompetitive activity, there is a real danger that he is acting to further his own interests, rather than the governmental interests of the State."Hallie v. Eau Claire, 471 U. S. 34, 471 U. S. 47 (1985); see id. at 471 U. S. 45 ("A private party . . . may be presumed to be acting primarily on his or its own behalf"). The requirement is designed to ensure Page 486 U. S. 101 that the state action doctrine will shelter only the particular anticompetitive acts of private parties that, in the judgment of the State, actually further state regulatory policies. Id. at 471 U. S. 46-47. To accomplish this purpose, the active supervision requirement mandates that the State exercise ultimate control over the challenged anticompetitive conduct. Cf. Southern Motor Carriers Rate Conference, Inc. v. United States, supra, at 471 U. S. 51 (noting that state public service commissions "have and exercise ultimate authority and control over all intrastate rates"); Parker v. Brown, supra, at 317 U. S. 352 (stressing that a marketing plan proposed by raisin growers could not take effect unless approved by a state board). The mere presence of some state involvement or monitoring does not suffice. See 324 Liquor Corp. v. Duffy, 479 U. S. 335, 479 U. S. 345, n. 7 (1987) (holding that certain forms of state scrutiny of a restraint established by a private party did not constitute active supervision because they did not "exer[t] any significant control over" the terms of the restraint). The active supervision prong of the Midcal test requires that state officials have and exercise power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy. Absent such a program of supervision, there is no realistic assurance that a private party's anticompetitive conduct promotes state policy, rather than merely the party's individual interests.Respondents in this case contend that the State of Oregon actively supervises the peer review process through the State Health Division, the BOME, and the state judicial system. The Court of Appeals, in finding the active supervision requirement satisfied, also relied primarily on the powers and responsibilities of these state actors. Neither the Court of Appeals nor respondents, however, have succeeded in showing that any of these actors reviews -- or even could review -- private decisions regarding hospital privileges to determine whether such decisions comport with. state regulatory policy and to correct abuses. Page 486 U. S. 102Oregon's Health Division has general supervisory powers over "matters relating to the preservation of life and health," Ore.Rev.Stat. § 431.110(1) (1987), including the licensing of hospitals, see § 441.025, and the enforcement of health laws, see §§ 431.120(1), 431.150, 431.155(1). Hospitals in Oregon are under a statutory obligation to establish peer review procedures and to review those procedures on a regular basis. See §§ 441.055(3)(c), (d). The State Health Division, exercising its enforcement powers, may initiate judicial proceedings against any hospital violating this law. See §§ 431.150, 431.155. In addition, the Health Division may deny, suspend, or revoke a hospital's license for failure to comply with the statutory requirement. See § 441.030(2). Oregon law specifies no other ways in which the Health Division may supervise the peer review process.This statutory scheme does not establish a state program of active supervision over peer review decisions. The Health Division's statutory authority over peer review relates only to a hospital's procedures; [Footnote 6] that authority does not encompass the actual decisions made by hospital peer review committees. The restraint challenged in this case (and in most cases of its kind) consists not in the procedures used to terminate hospital privileges, but in the termination of privileges itself. The State does not actively supervise this restraint unless a state official has and exercises ultimate authority over private privilege determinations. Oregon law does not give the Health Division this authority: under the statutory scheme, the Health Division has no power to review private peer review decisions and overturn a decision that fails to accord with state policy. Thus, the activities of the Health Page 486 U. S. 103 Division under Oregon law cannot satisfy the active supervision requirement of the state action doctrine:Similarly, the BOME does not engage in active supervision over private peer review decisions. The principal function of the BOME is to regulate the licensing of physicians in the State. As respondents note, Oregon hospitals are required by statute to notify the BOME promptly of a decision to terminate or restrict privileges. See Ore.Rev.Stat. § 441.820(1) (1987). Neither this statutory provision nor any other, however, indicates that the BOME has the power to disapprove private privilege decisions. The apparent purpose of the reporting requirement is to give the BOME an opportunity to determine whether additional action on its part, such as revocation of a physician's license, is warranted. [Footnote 7] Certainly, respondents have not shown that the BOME in practice reviews privilege decisions, or that it ever has asserted the authority to reverse them.The only remaining alleged supervisory authority in this case is the state judiciary. Respondents claim, and the Court of Appeals agreed, that Oregon's courts directly review privilege termination decisions, and that this judicial review constitutes active state supervision. This Court has not previously considered whether state courts, acting in their judicial capacity, can adequately supervise private conduct for purposes of the state action doctrine. All of our prior cases concerning state supervision over private parties have involved administrative agencies, see, e.g., 471 U. S. Inc. v. United States, 471 Page 486 U. S. 104 U.S. 48 (1985), or State Supreme Courts with agency-like responsibilities over the organized bar, see Bates v. State Bar of Arizona, 433 U. S. 350 (1977). This case, however, does not require us to decide the broad question whether judicial review of private conduct ever can constitute active supervision, because judicial review of privilege termination decisions in Oregon, if such review exists at all, falls far short of satisfying the active supervision requirement.As an initial matter, it is not clear that Oregon law affords any direct judicial review of private peer review decisions. Oregon has no statute expressly providing for judicial review of privilege terminations. Moreover, we are aware of no case in which an Oregon court has held that judicial review of peer review decisions is available. The two cases that respondents have cited certainly do not hold that a physician whose privileges have been terminated by a private hospital is entitled to judicial review. In each of these cases, the Oregon Supreme Court assumed, but expressly did not decide, that a complaining physician was entitled to the kind of review he requested. See Straube v. Emanuel Lutheran Charity Board, 287 Ore. 375, 383, 600 P.2d 381, 386 (1979) ("We have assumed (but not decided) for the purpose of this case that plaintiff is entitled to fair procedure' as a common law right"); Huffaker v. Bailey, 273 Ore. 273, 275, 540 P.2d 1398, 1399 (1975) ("In view of our conclusion that petitioner cannot prevail even assuming the case is properly before us, we find it unnecessary to decide these interesting questions [of reviewability]. Therefore, we assume, but do not decide, that the hospital's decisions are subject to review by mandamus. . . .").Moreover, the Oregon courts have indicated that, even if they were to provide judicial review of hospital peer review proceedings, the review would be of a very limited nature. The Oregon Supreme Court, in its most recent decision addressing this matter, stated that a court "should [not] decide the merits of plaintiff's dismissal," and that"[i]t would be Page 486 U. S. 105 unwise for a court to do more than to make sure that some sort of reasonable procedure was afforded, and that there was evidence from which it could be found that plaintiff's conduct posed a threat to patient care."Straube v. Emanuel Lutheran Charity Board, supra, at 384, 600 P.2d at 386. This kind of review would fail to satisfy the state action doctrine's requirement of active supervision. Under the standard suggested by the Oregon Supreme Court, a state court would not review the merits of a privilege termination decision to determine whether it accorded with state regulatory policy. Such constricted review does not convert the action of a private party in terminating a physician's privileges into the action of the State for purposes of the state action doctrine.Because we conclude that no state actor in Oregon actively supervises hospital peer review decisions, we hold that the state action doctrine does not protect the peer review activities challenged in this case from application of the federal antitrust laws. In so holding, we are not unmindful of the policy argument that respondents and their amici have advanced for reaching the opposite conclusion. They contend that effective peer review is essential to the provision of quality medical care, and that any threat of antitrust liability will prevent physicians from participating openly and actively in peer review proceedings. This argument, however, essentially challenges the wisdom of applying the antitrust laws to the sphere of medical care, and as such is properly directed to the legislative branch. To the extent that Congress has declined to exempt medical peer review from the reach of the antitrust laws, [Footnote 8] peer review is immune from antitrust scrutiny Page 486 U. S. 106 only if the State effectively has made this conduct its own. The State of Oregon has not done so. Accordingly, we reverse the judgment of the Court of Appeals.It is so ordered

U.S. Supreme CourtPatrick v. Burget, 486 U.S. 94 (1988)Patrick v. BurgetNo. 86-1145Argued February 22, 1988Decided May 16, 1988486 U.S. 94SyllabusPetitioner, an Astoria, Oregon, surgeon, declined an invitation by respondents to join them as a partner in the Astoria Clinic, and instead began an independent practice in competition with the Clinic. Thereafter, petitioner experienced difficulties in his professional dealings with Clinic physicians, culminating in respondents' initiation of, and participation in, peer review proceedings to terminate petitioner's privileges at Astoria's only hospital (a majority of whose staff members were employees or partners of the Clinic), on the ground that his care of his patients was below the hospital's standards. Petitioner filed suit in Federal District Court, alleging that respondents had violated §§ 1 and 2 of the Sherman Act by initiating and participating in the peer review proceedings in order to reduce competition from petitioner, rather than to improve patient care. Ultimately, the court entered a judgment against respondents, but the Court of Appeals reversed on the ground that respondents' conduct was immune from antitrust scrutiny under the state action doctrine of Parker v. Brown, 317 U. S. 341, and its progeny, because Oregon has articulated a policy in favor of peer review and actively supervises the peer review process.Held: The state action doctrine does not protect Oregon physicians from federal antitrust liability for their activities on hospital peer review committees. The "active supervision" prong of the test used to determine whether private parties may claim state action immunity requires that state officials have and exercise power to review such parties' particular anticompetitive acts and disapprove those that fail to accord with state policy. This requirement is not satisfied here, since there has been no showing that the State Health Division, the State Board of Medical Examiners, or the state judiciary reviews -- or even could review -- private decisions regarding hospital privileges to determine whether such decisions comport with state regulatory policy and to correct abuses. The policy argument that effective peer review is essential to the provision of quality medical care, and that any threat of antitrust liability will prevent physicians from participating openly and actively in peer review proceedings, essentially challenges the wisdom of applying the antitrust Page 486 U. S. 95 laws to the sphere of medical care, and as such is properly directed to Congress. Pp. 486 U. S. 99-106.MARSHALL, J., delivered the opinion for the Court, in which all other Members joined, except BLACKMUN, J., who took no part in the consideration or decision of the case.

1962_21

MR. JUSTICE HARLAN delivered the opinion of the Court.In 1955, the California Supreme Court confirmed the award to the respondent taxpayer of a decree of absolute divorce, without alimony, against his wife Dixie Gilmore. [Footnote 1] Gilmore v. Gilmore, 45 Cal. 2d 142, 287 P.2d 769. The case before us involves the deductibility for federal income tax purposes of that part of the husband's legal expense incurred in such proceedings as is attributable to his successful resistance of his wife's claims to certain of his assets asserted by her to be community property under California law. [Footnote 2] The claim to such deduction, which has been upheld by the Court of Claims, 290 F.2d 942, is founded on § 23(a)(2) of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.) § 23(a)(2), which allows as deductions from gross income". . . ordinary and necessary expenses . . . incurred during the taxable year [Footnote 3] . . . for the . . . conservation . . . of property held for the production of income."Because of a conflict of views among the Court of Claims, the Courts of Appeals, and the Tax Court regarding the Page 372 U. S. 41 proper application of this provision, [Footnote 4] and the continuing importance of the question in the administration of the federal income tax laws, we granted certiorari on the Government's petition. 368 U.S. 816. The case was first argued at the last Term and set for reargument at this one. 369 U.S. 835.At the time of the divorce proceedings, instituted by the wife but in which the husband also cross-claimed for divorce, respondent's property consisted primarily of controlling stock interests in three corporations, each of which was a franchised General Motors automobile dealer. [Footnote 5] As president and principal managing officer of the three corporations, he received salaries from them aggregating about $66,800 annually, and in recent years his total annual dividends had averaged about $83,000. His total annual income derived from the corporations was thus approximately $150,000. His income from other sources was negligible. [Footnote 6]As found by the Court of Claims, the husband's overriding concern in the divorce litigation was to protect these assets against the claims of his wife. Those claims had two aspects: first, that the earnings accumulated and retained by these three corporations during the Gilmores' marriage (representing an aggregate increase in corporate net worth of some $600,000) were the product of respondent's personal services, and not the result of accretion in capital values, thus rendering respondent's stockholdings in the enterprises pro tanto community property Page 372 U. S. 42 under California law; [Footnote 7] second, that, to the extent that such stockholdings were community property, the wife, allegedly the innocent party in the divorce proceeding, was entitled under California law to more than a one-half interest in such property. [Footnote 8]The respondent wished to defeat those claims for two important reasons. First, the loss of his controlling stock interests, particularly in the event of their transfer in substantial part to his hostile wife, might well cost him the loss of his corporate positions, his principal means of livelihood. Second, there was also danger that if he were found guilty of his wife's sensational and reputation-damaging charges of marital infidelity, General Motors Corporation might find it expedient to exercise its right to cancel these dealer franchises.The end result of this bitterly fought divorce case was a complete victory for the husband. He, not the wife, was granted a divorce on his cross-claim; the wife's community property claims were denied in their entirety; and she was held entitled to no alimony. 45 Cal. 2d 142, 287 P.2d 769.Respondent's legal expenses in connection with this litigation amounted to $32,537.15 in 1953 and $8,074.21 in 1954 -- a total of $40,611.36 for the two taxable years in question. The Commissioner of Internal Revenue found all of these expenditures "personal" or "family" expenses, and, as such, none of them deductible. 26 U.S.C. (1952 ed.) Page 372 U. S. 43 § 24(a)(1). [Footnote 9] In the ensuing refund suit, however, the Court of Claims held that 80% of such expense (some $32,500) was attributable to respondent's defense against his wife's community property claims respecting his stockholdings, and hence deductible under § 23(a)(2) of the 1939 Code as an expense "incurred . . . for the . . . conservation . . . of property held for the production of income." In so holding the Court of Claims stated:"Of course, it is true that, in every divorce case, a certain amount of the legal expenses are incurred for the purpose of obtaining the divorce and a certain amount are incurred in an effort to conserve the estate, and are not necessarily deductible under section 23(a)(2), but when the facts of a particular case clearly indicate (as here) that the property around which the controversy evolves is held for the production of income, and, without this property, the litigant might be denied not only the property itself but the means of earning a livelihood, then it must come under the provisions of section 23(a)(2). . . . The only question then is the allocation of the expenses to this phase of the proceedings. [Footnote 10]"290 F.2d at 947.The Government does not question the amount or formula for the expense allocation made by the Court of Claims. Its sole contention here is that the court below misconceived the test governing § 23(a)(2) deductions, in that the deductibility of these expenses turns, so it is argued, not upon the consequences to respondent of a Page 372 U. S. 44 failure to defeat his wife's community property claims, but upon the origin and nature of the claims themselves. So viewing Dixie Gilmore's claims, whether relating to the existence or division of community property, it is contended that the expense of resisting them must be deemed nondeductible "personal" or "family" expense under § 24(a)(1), not deductible expense under § 23(a)(2). For reasons given hereafter we think the Government's position is sound, and that it must be sustained.IFor income tax purposes, Congress has seen fit to regard an individual as having two personalities:"one is [as] a seeker after profit who can deduct the expenses incurred in that search; the other is [as] a creature satisfying his needs as a human and those of his family but who cannot deduct such consumption and related expenditures. [Footnote 11]"The Government regards § 23(a)(2) as embodying a category of the expenses embraced in the first of these roles.Initially, it may be observed that the wording of § 23(a)(2) more readily fits the Government's view of the provision than that of the Court of Claims. For, in context, "conservation of property" seems to refer to operations performed with respect to the property itself, such as safeguarding or upkeep, rather than to a taxpayer's retention of ownership in it. [Footnote 12] But more illuminating than the mere language of § 23(a)(2) is the history of the provision.Prior to 1942, § 23 allowed deductions only for expenses incurred "in carrying on any trade or business," the deduction presently authorized by § 23(a)(1). In Higgins v. Commissioner, 312 U. S. 212, this Court gave that provision Page 372 U. S. 45 a narrow construction, holding that the activities of an individual in supervising his own securities investments did not constitute the "carrying on of trade or business," and hence that expenses incurred in connection with such activities were not tax deductible. Similar results were reached in United States v. Pyne, 313 U. S. 127, and City Bank Farmers Trust Co. v. Helvering, 313 U. S. 121. The Revenue Act of 1942 (56 Stat. 798, § 121), by adding what is now § 23(a)(2), sought to remedy the inequity inherent in the disallowance of expense deductions in respect of such profit-seeking activities, the income from which was nonetheless taxable. [Footnote 13]As noted in McDonald v. Commissioner, 323 U. S. 57, 323 U. S. 62, the purpose of the 1942 amendment was merely to enlarge "the category of incomes with reference to which expenses were deductible." And committee reports make clear that deductions under the new section were subject to the same limitations and restrictions that are applicable to those allowable under § 23(a)(1). [Footnote 14] Further, this Court has said that § 23(a)(2) "is comparable and in pari materia with § 23(a)(1)," providing for a class of deductions "coextensive with the business deductions allowed by § 23(a)(1), except for" the requirement that the income-producing activity qualify as a trade or business. Trust of Bingham v. Commissioner, 325 U. S. 365, 325 U. S. 373-374 .A basic restriction upon the availability of a § 23(a)(1) deduction is that the expense item involved must be one that has a business origin. That restriction not only Page 372 U. S. 46 inheres in the language of § 23(a)(1) itself, confining such deductions to "expenses . . . incurred . . . in carrying on any trade or business," but also follows from § 24(a)(1), expressly rendering nondeductible "in any case . . . [p]ersonal, living, or family expenses." See note 9 supra. In light of what has already been said with respect to the advent and thrust of § 23(a)(2), it is clear that the "[p]ersonal . . . or family expenses" restriction of § 24(a)(1) must impose the same limitation upon the reach of § 23(a)(2) -- in other words, that the only kind of expenses deductible under § 23(a)(2) are those that relate to a "business," that is, profit-seeking, purpose. The pivotal issue in this case then becomes: was this part of respondent's litigation costs a "business," rather than a "personal" or "family," expense?The answer to this question has already been indicated in prior cases. In Lykes v. United States, 343 U. S. 118, the Court rejected the contention that legal expenses incurred in contesting the assessment of a gift tax liability were deductible. The taxpayer argued that, if he had been required to pay the original deficiency, he would have been forced to liquidate his stockholdings, which were his main source of income, and that his legal expenses were therefore incurred in the "conservation" of income-producing property, and hence deductible under § 23(a)(2). The Court first noted that the "deductibility [of the expenses] turns wholly upon the nature of the activities to which they relate" (343 U.S. at 343 U. S. 123), and then stated:"Legal expenses do not become deductible merely because they are paid for services which relieve a taxpayer of liability. That argument would carry us too far. It would mean that the expense of defending almost any claim would be deductible by a taxpayer on the ground that such defense was made to help him keep clear of liens whatever income-producing Page 372 U. S. 47 property he might have. For example, it suggests that the expense of defending an action based upon personal injuries caused by a taxpayer's negligence while driving an automobile for pleasure should be deductible. Section 23(a)(2) never has been so interpreted by us. . . .""While the threatened deficiency assessment . . . added urgency to petitioner's resistance of it, neither its size nor its urgency determined its character. It related to the tax payable on petitioner's gifts. . . . The expense of contesting the amount of the deficiency was thus at all times attributable to the gifts, as such, and accordingly was not deductible.""If, as suggested, the relative size of each claim, in proportion to the income-producing resources of a defendant, were to be a touchstone of the deductibility of the expense of resisting the claim, substantial uncertainty and inequity would inhere in the rule. . . . It is not a ground for [deduction] that the claim, if justified, will consume income-producing property of the defendant."343 U.S. at 343 U. S. 125-126.In Kornhauser v. United States, 276 U. S. 145, this Court considered the deductibility of legal expenses incurred by a taxpayer in defending against a claim by a former business partner that fees paid to the taxpayer were for services rendered during the existence of the partnership. In holding that these expenses were deductible even though the taxpayer was no longer a partner at the time of suit, the Court formulated the rule that,"where a suit or action against a taxpayer is directly connected with, or . . . proximately resulted from, his business, the expense incurred is a business expense. . . ."276 U.S. at 276 U. S. 153. Similarly, in a case involving an expense incurred in satisfying an obligation (though not a litigation expense), it was said that "it is the origin of the Page 372 U. S. 48 liability out of which the expense accrues" or "the kind of transaction out of which the obligation arose . . . which [is] crucial and controlling." Deputy v. du Pont, 308 U. S. 488, 308 U. S. 494, 308 U. S. 496.The principle we derive from these cases is that the characterization, as "business" or "personal," of the litigation costs of resisting a claim depends on whether or not the claim arises in connection with the taxpayer's profit-seeking activities. It does not depend on the consequences that might result to a taxpayer's income-producing property from a failure to defeat the claim, for, as Lykes teaches, that "would carry us too far," [Footnote 15] and would not be compatible with the basic lines of expense deductibility drawn by Congress. [Footnote 16] Moreover, such a rule would lead to capricious results. If two taxpayers are each sued for an automobile accident while driving for pleasure, deductibility of their litigation costs would turn on the mere circumstance of the character of the assets each happened to possess, that is, whether the judgments against them stood to be satisfied out of income- or nonincome-producing property. We should be slow to attribute to Congress a purpose producing such unequal treatment among taxpayers, resting on no rational foundation. Page 372 U. S. 49Confirmation of these conclusions is found in the incongruities that would follow from acceptance of the Court of Claims' reasoning in this case. Had this respondent taxpayer conducted his automobile dealer business as a sole proprietorship, rather than in corporate form, and claimed a deduction under § 23(a)(1), [Footnote 17] the potential impact of his wife's claims would have been no different than in the present situation. Yet it cannot well be supposed that § 23(a)(1) would have afforded him a deduction, since his expenditures, made in connection with a marital litigation, could hardly be deemed "expenses . . . incurred . . . in carrying on any trade or business." Thus, under the Court of Claims' view, expenses may be even less deductible if the taxpayer is carrying on a trade or business instead of some other income-producing activity. But it was manifestly Congress' purpose with respect to deductibility to place all income-producing activities on an equal footing. And it would surely be a surprising result were it now to turn out that a change designed to achieve equality of treatment in fact had served only to reverse the inequality of treatment.For these reasons, we resolve the conflict among the lower courts on the question before us ( note 4 supra) in favor of the view that the origin and character of the claim with respect to which an expense was incurred, rather than its potential consequences upon the fortunes of the taxpayer, is the controlling basic test of whether the expense was "business" or "personal," and hence whether it is deductible or not under § 23(a)(2). We find the reasoning underlying the cases taking the "consequences" view unpersuasive.Baer v. Commissioner, 196 F.2d 646, upon which the Court of Claims relied in the present case, is the leading Page 372 U. S. 50 authority on that side of the question. [Footnote 18] There, the Court of Appeals for the Eighth Circuit allowed a § 23(a)(2) expense deduction to a taxpayer husband with respect to attorney's fees paid in a divorce proceeding in connection with an alimony settlement which had the effect of preserving intact for the husband his controlling stock interest in a corporation, his principal source of livelihood. The court reasoned that, since the evidence showed that the taxpayer was relatively unconcerned about the divorce itself,"[t]he controversy did not go to the question of . . . [his] liability [for alimony] [Footnote 19] but to the manner in which [that liability] might be met . . . without greatly disturbing his financial structure;"therefore, the legal services were "for the purpose of conserving and maintaining" his income-producing property. 196 F.2d at 649-650, 651.It is difficult to perceive any significant difference between the "question of liability" and "the manner" of its discharge, for, in both instances, the husband's purpose is to avoid losing valuable property. Indeed, most of the cases which have followed Baer have placed little reliance on that distinction, and have tended to confine the deduction to situations where the wife's alimony claims, if successful, might have completely destroyed the husband's Page 372 U. S. 51 capacity to earn a living. [Footnote 20] Such may be the situation where loss of control of a particular corporation is threatened, in contrast to instances where the impact of a wife's support claims is only upon diversified holdings of income-producing securities. [Footnote 21] But that rationale too is unsatisfactory. For diversified security holdings are no less "property held for the production of income" than a large block of stock in a single company. And, as was pointed out in Lykes, supra, at 343 U. S. 126, if the relative impact of a claim on the income-producing resources of a taxpayer were to determine deductibility, substantial "uncertainty and inequity would inhere in the rule."We turn then to the determinative question in this case: did the wife's claims respecting respondent's stockholdings arise in connection with his profit-seeking activities?IIIn classifying respondent's legal expenses, the court below did not distinguish between those relating to the claims of the wife with respect to the existence of community property and those involving the division of any such property. Supra, p. 372 U. S. 41-42. Nor is such a breakdown necessary for a disposition of the present case. It is enough to say that in both aspects the wife's claims stemmed entirely from the marital relationship, and not, under any tenable view of things, from income-producing activity. This is obviously so as regards the claim to more than an equal division of any community property Page 372 U. S. 52 found to exist. For any such right depended entirely on the wife's making good her charges of marital infidelity on the part of the husband. The same conclusion is no less true respecting the claim relating to the existence of community property. For no such property could have existed but for the marriage relationship. [Footnote 22] Thus, none of respondent's expenditures in resisting these claims can be deemed "business" expenses, and they are therefore not deductible under § 23(a)(2).In view of this conclusion, it is unnecessary to consider the further question suggested by the Government: whether that portion of respondent's payments attributable to litigating the issue of the existence of community property was a capital expenditure or a personal expense. In neither event would these payments be deductible from gross income.The judgment of the Court of Claims is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Gilmore, 372 U.S. 39 (1963)United States v. GilmoreNo. 21Argued March 27-28, 1962Restored to the calendar for reargument April 2, 1962Reargued December 5-6, 1962Decided February 18, 1963372 U.S. 39SyllabusRespondent sued for refund of part of the income taxes paid by him for the years 1953 and 1954, on the ground that legal expenses incurred by him in defending divorce litigation with his former wife were deductible under § 23(a)(2) of the Internal Revenue Code of 1939, as amended, which allots as deductions from gross income "ordinary and necessary expenses . . . incurred . . . for the conservation . . . of property held for the production of income." His gross income was derived almost entirely from his salary as president of three corporations which were franchised automobile dealers and from dividends from his controlling stock in such corporations. His wife had sued for divorce, alimony, and an alleged community property interest in such stock, and he alleged that, had he not succeeded in defeating these claims, he might have lost his stock, his corporate positions, and the dealer franchises, from which nearly all of his income was derived.Held: none of respondent's expenditures in resisting these claims is deductible under § 23(a)(2). Pp. 372 U. S. 40-52.(a) The origin and character of the claim with respect to which an expense was incurred, rather than its potential consequences upon the fortunes of the taxpayer, is the controlling basic test of whether the expense was "business" or "personal," and hence whether or not it is deductible under § 23(a)(2). Pp. 372 U. S. 44-51.(b) The wife's claims stemmed entirely from the marital relationship, and not, under any tenable view of things, from income-producing activity. Therefore, none of respondent's expenditures in resisting these claims can be deemed "business" expenses deductible under § 23(a)(2). Pp. 372 U. S. 51-52.___ Ct. Cl. ___, 290 F.2d 942, reversed and case remanded. Page 372 U. S. 40

1972_71-6742

MR. JUSTICE STEWART delivered the opinion of the Court.The petitioners, citizens of Mexico, entered the United States illegally. To assure their presence as material witnesses at the federal criminal trials of those accused of illegally bringing them into this country, they were required to post bond pursuant to former Rule 46(b) of the Federal Rules of criminal Procedure. Unable to make bail, they were incarcerated. [Footnote 1]The petitioners instituted the present class action in the United States District Court for the Western District of Texas on behalf of themselves and others similarly incarcerated as material witnesses. Their complaint alleged that they and the other members of their class, had been paid only $1 for every day of their confinement; that the statute providing the compensation to be paid witnesses requires payment of a total of $21 per day to material witnesses in custody; and that, alternatively, if the statute be construed to require payment of only $1 per day to detained witnesses, it violates the Fifth Amendment guarantees of just compensation and due process. They did not attack the validity or length of their incarceration as such, but sought monetary damages under the Tucker Act, 28 U.S.C. § 1346(a)(2), for the Page 410 U. S. 580 lost compensation claimed, and equivalent declaratory and injunctive relief.The statute in question, 28 U.S.C. § 1821, provides that a"witness attending in any court of the United States . . . shall receive $20 for each day's attendance and for the time necessarily occupied in going to and returning from the same. . . ."A separate paragraph of the statute entitles "a witness . . . detained in prison for want of security for his appearance, . . . in addition to his subsistence, to a compensation of $1 per day." [Footnote 2] Page 410 U. S. 581The petitioners' complaint was grounded upon the theory that they were "attending in . . . court" throughout the period of their incarceration, since they were prevented from engaging in their normal occupations in order to be ready to testify. They argued that the $20 fee is compensation for the inconvenience and private loss suffered when a witness comes to testify, and that all of these burdens are borne by the incarcerated witness throughout his confinement. Urging that the compensation provisions should be applied as broadly as the problem they were designed to ameliorate, the petitioners argued that they were entitled to the $20 compensation for every day of confinement, in addition to the $1 a day that they viewed as a token payment for small necessities while in jail.While they pressed this broad definition of "attendance," the petitioners also pointed to a narrower and more acute problem in administering the statute. Their amended complaint alleged that nonincarcerated witnesses are paid $20 for each day after they have been summoned to testify -- even for those days they are not needed in court and simply wait in the relative comfort of their hotel rooms to be called. By contrast, witnesses in jail are paid only $1 a day when they are waiting to testify -- even when the trial for which they have been detained is in progress. In short, the amended complaint alleged that the Government has construed the statute to mean that incarcerated witnesses must be physically present in the courtroom before they are eligible for the $20 daily compensation, but that nonincarcerated witnesses need not be similarly present to receive that amount. [Footnote 3] Page 410 U. S. 582In its answer, the Government conceded that each witness detained in custody is paid only $1 for every day of incarceration, and that the witness fee of $20 is paid only when such a witness is actually in attendance in court. The Government defended this practice as required by the literal words of the statute, and argued that the statute, as so construed, is constitutional.In an unreported order, the District Court granted the Government's motion for summary judgment, and the Court of Appeals for the Fifth Circuit affirmed. 452 F.2d 951. The Court of Appeals concluded that the $20 witness fee is properly payable only to those witnesses who are "in attendance" or traveling to and from court, and not to those who are incarcerated to assure their attendance. So interpreted, the court upheld the statute as constitutional. We granted certiorari, 409 U.S. 841, to consider a question of seeming importance in the administration of justice in the federal courts.IBoth the petitioners and the Government adhere to their own quite contrary interpretations of § 1821 -- the petitioners maintaining that they are entitled to a $20 witness fee for every day of incarceration and the Government seeking to limit such payment to those days on which a detained witness is physically "in attendance" in court. We find both interpretations of the statute incorrect -- the petitioners' too expansive, the Government's too restricted. [Footnote 4] Page 410 U. S. 583The statute provides to a "witness attending in any court of the United States" $20 "for each day's attendance." This perforce means that a witness can be eligible for the $20 fee only when two requirements are satisfied -- when there is a court in session that he is to attend and when he is in necessary attendance on that court.The petitioners' interpretation of "attendance" as beginning with the first day of incarceration slights the statutory requirement that attendance be in court. A witness might be detained many days before the case in which he is to testify is called for trial. During that time, there is literally no court in session in which he could conceivably be considered to be in attendance. Over a century and a half ago, Attorney General William Wirt rejected a similar construction of an almost identically worded law. He found that the then-current statute, which provided compensation to a witness "for each day he shall attend in court," [Footnote 5] could not be construed Page 410 U. S. 584 to provide payment to incarcerated witnesses for every day of their detention:"There is no court, except it be a court in session. There are judges; but they do not constitute a court, except when they assemble to administer the law. . . . Now I cannot conceive with what propriety a witness can be said to be attending in court when there is no court, and will be no court for several months.""To consider a witness who has been committed to jail because he cannot give security to attend a future court, to be actually attending the court from the time of his commitment, and this for five months before there is any court in existence, would seem to me to be rather a forced and unnatural construction."1 Op.Atty.Gen. 424, 427.The Government, on the other hand, would place a restrictive gloss on the statute's requirement of necessary attendance; it maintains that the $20 compensation need be paid only for the days a witness is in actual physical attendance in court, and it concludes that a witness confined during the trial need only be paid for those days on which he is actually brought into the courtroom. But § 1821 does not speak in terms of "physical" or "actual" attendance, and we decline to engraft such a restriction upon the statute. Rather, the statute reaches those witnesses who have been summoned and are in necessary attendance on the court, in readiness to testify. There is nothing magic about the four walls of a courtroom. Page 410 U. S. 585 Once a witness has been summoned to testify, whether he waits in a witness room, a prosecutor's office, a hotel room, or the jail, he is still available to testify, and it is that availability that the statute compensates. Nonincarcerated witnesses are compensated under the statute for days on which they have made themselves available to testify, but on which their physical presence in the courtroom is not required -- for example, where the trial is adjourned or where their testimony is only needed on a later day. [Footnote 6] We cannot accept the anomalous conclusion that the same statutory language imposes a requirement of physical presence in the courtroom on witnesses who have been confined. Attorney General Wirt concluded that language similar to that at issue here did not require any such physical presence:"But it was by no means my intention to authorize the inference . . . that, in order to entitle a witness to his per diem allowance under the act of Congress, it was necessary that he should be every day corporeally present within the walls of the courtroom, and that the court must be every day in actual session. Such a puerility never entered my mind. My opinion simply was, and is, that, before compensation could begin to run, the court must have commenced its session; the session must be legally subsisting, and the witness attending on the court -- not necessarily in the courtroom, but within its power, whenever it may require his attendance. . . . I consider Page 410 U. S. 586 a witness as attending on court to the purpose of earning his compensation, so long as he is in the power of the court whensoever it may become necessary to call for his evidence, although he may not have entered the court-room until such call shall have been made; and I consider the court in session from the moment of its commencement until its adjournment since die, notwithstanding its intermediate adjournments de die in diem."1 Op.Atty.Gen., at 426-427.We conclude that a material witness who has been incarcerated is entitled to the $20 compensation for every day of confinement during the trial or other proceeding for which he has been detained. [Footnote 7] On each of those days, Page 410 U. S. 587 the two requirements of the statute are satisfied -- there is a court in session and the witness is in necessary attendance. He is in the same position as a nonincarcerated witness who is summoned to appear on the first day of trial, but on arrival is told by the prosecutor that he is to hold himself ready to testify on a later day in the trial. The Government pays such a witness for every day he is in attendance on the court, and the statute requires it to pay the same per diem compensation to the incarcerated witness. Because the Court of Appeals upheld a construction of the statute that would allow the $20 to be paid to incarcerated witnesses only for those days they actually appear in the courtroom, its judgment must be set aside. [Footnote 8] Page 410 U. S. 588IIThe petitioners argue that, if § 1821 provides incarcerated witnesses only a dollar a day for the period before the trial begins, then the statute is unconstitutional. We cannot agree.As noted at the outset, the petitioners do not attack the constitutionality of incarcerating material witnesses, or the length of such incarceration in any particular case. [Footnote 9] Rather, they say that, when the Government incarcerates material witnesses, it has "taken" their property, and that one dollar a day is not just compensation for this "taking" under the Fifth Amendment. Alternatively, they argue that payment of only one dollar a day before trial, when contrasted with the $20 a day paid to witnesses attending a trial, is a denial of due process of law.But the Fifth Amendment does not require that the Government pay for the performance of a public duty it is already owed. See Monongahela Bridge Co. v. United States, 216 U. S. 177, 216 U. S. 193 (modification of bridge Page 410 U. S. 589 obstructing river); United States v. Hobbs, 450 F.2d 935 (Selective Service Act); United States v. Dillon, 346 F.2d 633, 635 (representation of indigents by court-appointed attorney); Roodenko v. United States, 147 F.2d 752, 754 (alternative service for conscientious objectors); cf. Kunhardt Co. v. United States, 266 U. S. 537, 266 U. S. 540. It is beyond dispute that there is in fact, a public obligation to provide evidence, see United States v. Bryan, 339 U. S. 323, 339 U. S. 331; Blackmer v. United States, 284 U. S. 421, 284 U. S. 438, and that this obligation persists no matter how financially burdensome it may be. [Footnote 10] The financial losses suffered during pretrial detention are an extension of the burdens borne by every witness who testifies. The detention of a material witness, in short, is simply not a "taking" under the Fifth Amendment, and the level of his compensation, therefore, does not, as such, present a constitutional question."[I]t is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide. 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. [Footnote 11] Page 410 U. S. 590Similarly, we are unpersuaded that the classifications drawn by § 1821 as we have construed it are so irrational as to violate the Due Process Clause of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U. S. 497, 347 U. S. 499. The statute provides $20 per diem compensation to a witness who is in necessary attendance on a court, but that fee is payable to any witness, incarcerated or not. During the period that elapses before his attendance on a court, a witness who is not incarcerated gets no compensation whatever from the Government. An incarcerated witness, on the other hand, gets one dollar a day during that period, in addition to subsistence in kind.We cannot say that there is no reasonable basis for distinguishing the compensation paid for pretrial detention from the fees paid for attendance at trial. Pretrial confinement will frequently be longer than the period of attendance on the court, and, throughout that period of confinement, the Government must bear the cost of food, lodging, and security for detained witnesses. Congress could thus reasonably determine that, while some compensation should be provided during the pretrial detention period, a minimal amount was justified, particularly in view of the fact that the witness has a public obligation to testify. As the Court of Appeals correctly observed,[G]overnmental recognition of its interest in having persons appear in court by paying them for that participation in judicial proceedings does not require that it make payment of the same nature and extent to persons who are held available for participation in judicial proceedings should it prove to be necessary. That the government pays for one stage does not require that it pay in like manner for all stages.452 F.2d at 955. Page 410 U. S. 591We do not pass upon the wisdom or ultimate fairness of the compensation Congress has provided for the pretrial detention of material witnesses. We do not decide "that a more just and humane system could not be devised." Dandridge v. Williams, 397 U. S. 471, 397 U. S. 487. Indeed, even though it opposed granting the petition for certiorari in the present case, the Government found it "obvious" that "the situation is not a satisfactory one," and we were informed at oral argument that a legislative proposal to increase the per diem payment to detained witnesses will shortly be submitted by the Department of Justice to the Office of Management and Budget for review. But no matter how unwise or unsatisfactory the present rates might be, the Constitution provides no license to impose the levels of compensation we might think fair and just. That task belongs to Congress, not to us.The judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtHurtado v. United States, 410 U.S. 578 (1973)Hurtado v. United StatesNo. 71-6742Argued January 17, 1973Decided March 5, 1973410 U.S. 578Syllabus1. A material witness who is incarcerated because unable to give bail is entitled under 28 U.S.C. § 1821 to the same $20 per diem compensation as is allowed a nonincarcerated witness during the trial or other proceeding at which he is in "attendance," i.e., has been summoned and is available to testify in a court in session, regardless of whether he is physically present in the courtroom. Pp. 410 U. S. 582-587.2. The $1 statutory per diem plus subsistence in kind for incarcerated witnesses before trial does not violate the Just Compensation Clause, as detention of a material witness is not a "taking" under the Fifth Amendment; and the distinction between compensation for pretrial detention and for trial attendance is not so unreasonable as to violate the Due Process Clause of the Fifth Amendment, since Congress could determine that, in view of the length of pretrial confinement and the costs necessarily borne by the Government, only minimal compensation for pretrial detention is justified, particularly since the witness has a public duty to testify. Pp. 410 U. S. 588-591.452 F.2d 951, vacated and remanded to District Court.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, post, p. 410 U. S. 591. DOUGLAS, J., filed a dissenting opinion, post, p. 410 U. S. 600. Page 410 U. S. 579

1996_96-1671

and indeed both Houses actively oppose their suit. In addition, the conclusion reached here neither deprives Members of Congress of an adequate remedy-since they may repeal the Act or exempt appropriations bills from its reach-nor forecloses the Act from constitutional challenge by someone who suffers judicially cognizable injury resulting from it. Pp. 829-830.956 F. Supp. 25, vacated and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, THOMAS, and GINSBURG, JJ., joined. SOUTER, J., filed an opinion concurring in the judgment, in which GINSBURG, J., joined, post, p. 830. STEVENS, J., post, p. 835, and BREYER, J., post, p. 838, filed dissenting opinions.Acting Solicitor General Dellinger argued the cause for appellants. With him on the briefs were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Douglas N. Letter.Alan B. Morrison argued the cause for appellees. With him on the briefs were Lloyd N. Cutler, Louis R. Cohen, Charles J. Cooper, Michael A. Carvin, David Thompson, and Michael Davidson.*CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.tThe District Court for the District of Columbia declared the Line Item Veto Act unconstitutional. On this direct appeal, we hold that appellees lack standing to bring this suit,*Thomas B. Griffith, Morgan J. Frankel, Steven F. Huefner, Geraldine R. Gennet, Kerry W Kircher, and Michael L. Stern filed a brief for the United States Senate et al. as amici curiae urging reversal.Briefs of amicus curiae urging affirmance were filed for the Association of the Bar of the City of New York by David P. Felsher, Louis A. Craco, Jr., and James F. Parver; and for David Schoenbrod et al. by Mr. Schoenbrod, pro se, and Marci A. Hamilton, pro se.G. William Frick filed a brief for the American Petroleum Institute as amicus curiae.tJUSTICE GINSBURG joins this opinion.814and therefore direct that the judgment of the District Court be vacated and the complaint dismissed.IThe appellees are six Members of Congress, four of whom served as Senators and two of whom served as Congressmen in the 104th Congress (1995-1996).1 On March 27, 1996, the Senate passed a bill entitled the Line Item Veto Act by a vote of 69 to 31. All four appellee Senators voted "nay." 142 Congo Rec. S2995. The next day, the House of Representatives passed the identical bill by a vote of 232 to 177. Both appellee Congressmen voted "nay." Id., at H2986. On April 4, 1996, the President signed the Line Item Veto Act (Act) into law. Pub. L. 104-130, 110 Stat. 1200, codified at 2 U. S. C. § 691 et seq. (1994 ed., Supp. II). The Act went into effect on January 1, 1997. See Pub. L. 104-130, § 5. The next day, appellees filed a complaint in the District Court for the District of Columbia against the two appellants, the Secretary of the Treasury and the Director of the Office of Management and Budget, alleging that the Act was unconstitutional.The provisions of the Act do not use the term "veto." Instead, the President is given the authority to "cancel" certain spending and tax benefit measures after he has signed them into law. Specifically, the Act provides:"[T]he President may, with respect to any bill or joint resolution that has been signed into law pursuant to Article I, section 7, of the Constitution of the United States, cancel in whole-(l) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit; if the President-IThree of the Senators-Robert Byrd, Carl Levin, and Daniel Patrick Moynihan-are still Senators. The fourth-Mark Hatfield-retired at the end of the 104th Congress. The two Congressmen-David Skaggs and Henry Waxman-remain Congressmen.815"(A) determines that such cancellation will-(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest; and"(B) notifies the Congress of such cancellation by transmitting a special message ... within five calendar days (excluding Sundays) after the enactment of the law [to which the cancellation applies]." § 691(a) (some indentations omitted).The President's "cancellation" under the Act takes effect when the "special message" notifying Congress of the cancellation is received in the House and Senate. With respect to dollar amounts of "discretionary budget authority," a cancellation means "to rescind." § 691e(4)(A). With respect to "new direct spending" items or "limited tax benefit[s]," a cancellation means that the relevant legal provision, legal obligation, or budget authority is "prevent[ed] ... from having legal force or effect." §§ 691e(4)(B), (C).The Act establishes expedited procedures in both Houses for the consideration of "disapproval bills," § 691d, bills or joint resolutions which, if enacted into law by the familiar procedures set out in Article I, § 7, of the Constitution, would render the President's cancellation "null and void," § 691b(a). "Disapproval bills" may only be one sentence long and must read as follows after the enacting clause: "That CongressThe Act provides that "[a]ny Member of Congress or any individual adversely affected by [this Act] may bring an action, in the United States District Court for the District of Columbia, for declaratory judgment and injunctive relief on816the ground that any provision of this part violates the Constitution." § 692(a)(1). Appellees brought suit under this provision, claiming that "[t]he Act violates Article I" of the Constitution. Complaint , 17. Specifically, they alleged that the Act "unconstitutionally expands the President's power," and "violates the requirements of bicameral passage and presentment by granting to the President, acting alone, the authority to 'cancel' and thus repeal provisions of federal law." Ibid. They alleged that the Act injured them "directly and concretely ... in their official capacities" in three ways:"The Act ... (a) alter[s] the legal and practical effect of all votes they may cast on bills containing such separately vetoable items, (b) divest[s] the [appellees] of their constitutional role in the repeal of legislation, and (c) alter[s] the constitutional balance of powers between the Legislative and Executive Branches, both with respect to measures containing separately vetoable items and with respect to other matters coming before Congress." Id., , 14.Appellants moved to dismiss for lack of jurisdiction, claiming (among other things) that appellees lacked standing to sue and that their claim was not ripe. Both sides also filed motions for summary judgment on the merits. On April 10, 1997, the District Court (i) denied appellants' motion to dismiss, holding that appellees had standing to bring this suit and that their claim was ripe, and (ii) granted appellees' summary judgment motion, holding that the Act is unconstitutional. 956 F. Supp. 25. As to standing, the court noted that the Court of Appeals for the District of Columbia "has repeatedly recognized Members' standing to challenge measures that affect their constitutionally prescribed lawmaking powers." Id., at 30 (citing, e. g., Michel v. Anderson, 14 F.3d 623,625 (CADC 1994); Moore v. U. S. House of Representatives, 733 F.2d 946, 950-952 (CADC 1984)). See also 956817F. Supp., at 31 ("[T]he Supreme Court has never endorsed the [Court of Appeals'] analysis of standing in such cases"). The court held that appellees' claim that the Act "dilute[d] their Article I voting power" was sufficient to confer Article III standing: "[Appellees'] votes mean something different from what they meant before, for good or ill, and [appellees] who perceive it as the latter are thus 'injured' in a constitutional sense whenever an appropriations bill comes up for a vote, whatever the President ultimately does with it .... Under the Act the dynamic of lawmaking is fundamentally altered. Compromises and trade-offs by individuallawmakers must take into account the President's item-by-item cancellation power looming over the end product." Ibid.The court held that appellees' claim was ripe even though the President had not yet used the "cancellation" authority granted him under the Act: "Because [appellees] now find themselves in a position of unanticipated and unwelcome subservience to the President before and after they vote on appropriations bills, Article III is satisfied, and this Court may accede to Congress' directive to address the constitutional cloud over the Act as swiftly as possible." Id., at 32 (referring to § 692(a)(1), the section of the Act granting Members of Congress the right to challenge the Act's constitutionality in court). On the merits, the court held that the Act violated the Presentment Clause, Art. I, § 7, cl. 2, and constituted an unconstitutional delegation of legislative power to the President. 956 F. Supp., at 33, 35, 37-38.The Act provides for a direct, expedited appeal to this Court. § 692(b) (direct appeal to Supreme Court); § 692(c) ("It shall be the duty of ... the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any [suit challenging the Act's constitutionality] brought under [§ 3(a) of the Act]"). On April 18, eight days after the District Court issued its order, appellants filed a jurisdictional statement asking us to note probable jurisdiction, and on April 21, appellees filed a818memorandum in response agreeing that we should note probable jurisdiction. On April 23, we did so. 520 U. S. 1194 (1997). We established an expedited briefing schedule and heard oral argument on May 27.2 We now hold that appellees have no standing to bring this suit, and therefore direct that the judgment of the District Court be vacated and the complaint dismissed.IIUnder Article III, § 2, of the Constitution, the federal courts have jurisdiction over this dispute between appellants and appellees only if it is a "case" or "controversy." This is a "bedrock requirement." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 471 (1982). As we said in Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976):"No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies."One element of the case-or-controversy requirement is that appellees, based on their complaint, must establish that they have standing to sue. Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992) (plaintiff bears burden of establishing standing). The standing inquiry focuses on whether the plaintiff is the proper party to bring this suit, Simon, supra, at 38, although that inquiry "often turns on the nature and source of the claim asserted," Warth v. Seldin, 422 U. S. 490, 500 (1975). To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 4682 The House Bipartisan Legal Advisory Group (made up of the Speaker, the Majority Leader, the Minority Leader, and the two Whips) and the Senate filed a joint brief as amici curiae urging that the District Court be reversed on the merits. Their brief states that they express no position as to appellees' standing.819u. S. 737, 751 (1984) (emphasis added). For our purposes, the italicized words in this quotation from Allen are the key ones. We have consistently stressed that a plaintiff's complaint must establish that he has a "personal stake" in the alleged dispute, and that the alleged injury suffered is particularized as to him. See, e. g., Lujan, supra, at 560-561, and n. 1 (to have standing, the plaintiff must have suffered a "particularized" injury, which means that "the injury must affect the plaintiff in a personal and individual way"); Bender v. Williamsport Area School Dist., 475 U. S. 534, 543-544 (1986) (school board member who "has no personal stake in the outcome of the litigation" has no standing); Simon, supra, at 39 ("The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement").We have also stressed that the alleged injury must be legally and judicially cognizable. This requires, among other things, that the plaintiff have suffered "an invasion of a legally protected interest which is ... concrete and particularized," Lujan, supra, at 560, and that the dispute is "traditionally thought to be capable of resolution through the judicial process," Flast v. Cohen, 392 U. S. 83, 97 (1968). See also Allen, 468 U. S., at 752 ("Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable ?").We have always insisted on strict compliance with this jurisdictional standing requirement. See, e. g., ibid. (under Article III, "federal courts may exercise power only 'in the last resort, and as a necessity''') (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892)); Muskrat v. United States, 219 U. S. 346, 356 (1911) ("[F]rom its earliest history this [C]ourt has consistently declined to exercise any powers other than those which are strictly judicial in their nature"). And our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one820of the other two branches of the Federal Government was unconstitutional. See, e. g., Bender, supra, at 542; Valley Forge, supra, at 473-474. As we said in Allen, supra, at 752, "the law of Art. III standing is built on a single basic idea-the idea of separation of powers." In the light of this overriding and time-honored concern about keeping the Judiciary's power within its proper constitutional sphere,3 we must put aside the natural urge to proceed directly to the merits of this important dispute and to "settle" it for the sake of convenience and efficiency. Instead, we must carefully inquire as to whether appellees have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable.IIIWe have never had occasion to rule on the question of legislative standing presented here.4 In Powell v. McCormack, 395 U. S. 486, 496, 512-514 (1969), we held that a Member of3 It is settled that Congress cannot erase Article Ill's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing. Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 100 (1979). We acknowledge, though, that Congress' decision to grant a particular plaintiff the right to challenge an Act's constitutionality (as here, see § 692(a)(1), supra, at 815-816) eliminates any prudential standing limitations and significantly lessens the risk of unwanted conflict with the Legislative Branch when that plaintiff brings suit. See, e. g., Bennett v. Spear, 520 U. S. 154, 164-166 (1997).4 Over strong dissent, the Court of Appeals for the District of Columbia Circuit has held that Members of Congress may have standing when (as here) they assert injury to their institutional power as legislators. See, e. g., Kennedy v. Sampson, 511 F.2d 430, 435-436 (CADC 1974); Moore v. United States House of Representatives, 733 F.2d 946, 951 (CADC 1984); id., at 956 (Scalia, J., concurring in result); Barnes v. Kline, 759 F.2d 21, 28-29 (CADC 1985); id., at 41 (Bork, J., dissenting). But see Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (CA2 1973) (Member of Congress has no standing to challenge constitutionality of American military operations in Vietnam war); Harrington v. Schlesinger, 528 F.2d 455, 459 (CA4 1975) (same).821Congress' constitutional challenge to his exclusion from the House of Representatives (and his consequent loss of salary) presented an Article III case or controversy. But Powell does not help appellees. First, appellees have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies. Their claim is that the Act causes a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally. See n. 7, infra. Second, appellees do not claim that they have been deprived of something to which they personally are entitled-such as their seats as Members of Congress after their constituents had elected them. Rather, appellees' claim of standing is based on a loss of political power, not loss of any private right, which would make the injury more concrete. Unlike the injury claimed by Congressman Adam Clayton Powell, the injury claimed by the Members of Congress here is not claimed in any private capacity but solely because they are Members of Congress. See Complaint'14 (purporting to sue "in their official capacities"). If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead. The claimed injury thus runs (in a sense) with the Member's seat, a seat which the Member holds (it may quite arguably be said) as trustee for his constituents, not as a prerogative of personal power. See The Federalist No. 62, p. 378 (J. Madison) (C. Rossiter ed. 1961) ("It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents and prove unfaithful to their important trust").The one case in which we have upheld standing for legislators (albeit state legislators) claiming an institutional injury is Coleman v. Miller, 307 U. S. 433 (1939). Appellees, relying heavily on this case, claim that they, like the state legislators in Coleman, "have a plain, direct and adequate interest822in maintaining the effectiveness of their votes," id., at 438, sufficient to establish standing. In Coleman, 20 of Kansas' 40 State Senators voted not to ratify the proposed "Child Labor Amendment" to the Federal Constitution. With the vote deadlocked 20 to 20, the amendment ordinarily would not have been ratified. However, the State's Lieutenant Governor, the presiding officer of the State Senate, cast a deciding vote in favor of the amendment, and it was deemed ratified (after the State House of Representatives voted to ratify it). The 20 State Senators who had voted against the amendment, joined by a 21st State Senator and three State House Members, filed an action in the Kansas Supreme Court seeking a writ of mandamus that would compel the appropriate state officials to recognize that the legislature had not in fact ratified the amendment. That court held that the members of the legislature had standing to bring their mandamus action, but ruled against them on the merits. See id., at 436-437.This Court affirmed. By a vote of 5-4, we held that the members of the legislature had standing.5 In explaining our holding, we repeatedly emphasized that if these legislators (who were suing as a bloc) were correct on the merits, then their votes not to ratify the amendment were deprived of all validity:"Here, the plaintiffs include twenty senators, whose votes against ratification have been overridden and vir-5 Chief Justice Hughes wrote an opinion styled "the opinion of the Court." Coleman, 307 U. S., at 435. Four Justices concurred in the judgment, partially on the ground that the legislators lacked standing. See id., at 456-457 (opinion of Black, J., joined by Roberts, Frankfurter, and Douglas, JJ.); id., at 460 (opinion of Frankfurter, J., joined by Roberts, Black, and Douglas, JJ.). Two Justices dissented on the merits. See id., at 470 (opinion of Butler, J., joined by McReynolds, J.). Thus, even though there were only two Justices who joined Chief Justice Hughes' opinion on the merits, it is apparent that the two dissenting Justices joined his opinion as to the standing discussion. Otherwise, Justice Frankfurter's opinion denying standing would have been the controlling opinion.823tually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes." Id., at 438 (emphasis added)."[T]he twenty senators were not only qualified to vote on the question of ratification but their votes, if the Lieutenant Governor were excluded as not being a part of the legislature for that purpose, would have been decisive in defeating the ratifying resolution." Id., at 441 (emphasis added)."[WJe find no departure from principle in recognizing in the instant case that at least the twenty senators whose votes, if their contention were sustained, would have been sufficient to defeat the resolution ratifying the proposed constitutional amendment, have an interest in the controversy which, treated by the state court as a basis for entertaining and deciding the federal questions, is sufficient to give the Court jurisdiction to review that decision." Id., at 446 (emphasis added).It is obvious, then, that our holding in Coleman stands (at most, see n. 8, infra) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.66 See also Bender v. Williamsport Area School Dist., 475 U. S. 534,544545, n. 7 (1986) (in dicta, suggesting hypothetically that if state law authorized a school board to take action only by unanimous consent, if a school board member voted against a particular action, and if the board nonetheless took the action, the board member "might claim that he was legally entitled to protect 'the effectiveness of [his] vot[e],' Coleman[, 307 U. S., at 438,] ... [b]ut in that event [he] would have to allege that his vote was diluted or rendered nugatory under state law").824It should be equally obvious that appellees' claim does not fall within our holding in Coleman, as thus understood. They have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated. In the vote on the Act, their votes were given full effect. They simply lost that vote.7 Nor can they allege that the Act will nullify their votes in the future in the same way that the votes of the Coleman legislators had been nullified. In the future, a majority of Senators and Congressmen can pass or reject appropriations bills; the Act has no effect on this process. In addition, a majority of Senators and Congressmen can vote to repeal the Act, or to exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act; again, the Act has no effect on this process. Coleman thus provides little meaningful precedent for appellees' argument.87 Just as appellees cannot show that their vote was denied or nullified as in Coleman (in the sense that a bill they voted for would have become law if their vote had not been stripped of its validity), so are they unable to show that their vote was denied or nullified in a discriminatory manner (in the sense that their vote was denied its full validity in relation to the votes of their colleagues). Thus, the various hypotheticals offered by appellees in their briefs and discussed during oral argument have no applicability to this case. See Reply Brief for Appellees 6 (positing hypothetical law in which "first-term Members were not allowed to vote on appropriations bills," or in which "every Member was disqualified on grounds of partiality from voting on major federal projects in his or her own district"); Tr. of Oral Arg. 17 ("QUESTION: But [Congress] might have passed a statute that said the Senators from Iowa on hog-farming matters should have only a half-a-vote. Would they have standing to challenge that?").8 Since we hold that Coleman may be distinguished from the instant case on this ground, we need not decide whether Coleman may also be distinguished in other ways. For instance, appellants have argued that Coleman has no applicability to a similar suit brought in federal court, since that decision depended on the fact that the Kansas Supreme Court "treated" the senators' interest in their votes "as a basis for entertaining and deciding the federal questions." 307 U. S., at 446. They have also825Nevertheless, appellees rely heavily on our statement in Coleman that the Kansas senators had "a plain, direct and adequate interest in maintaining the effectiveness of their votes." Appellees claim that this statement applies to them because their votes on future appropriations bills (assuming a majority of Congress does not decide to exempt those bills from the Act) will be less "effective" than before, and that the "meaning" and "integrity" of their vote has changed. Brief for Appellees 24, 28. The argument goes as follows. Before the Act, Members of Congress could be sure that when they voted for, and Congress passed, an appropriations bill that included funds for Project X, one of two things would happen: (i) the bill would become law and all of the projects listed in the bill would go into effect, or (ii) the bill would not become law and none of the projects listed in the bill would go into effect. Either way, a vote for the appropriations bill meant a vote for a package of projects that were inextricably linked. After the Act, however, a vote for an appropriations bill that includes Project X means something different. Now, in addition to the two possibilities listed above, there is a third option: The bill will become law and then the President will "cancel" Project X.9Even taking appellees at their word about the change in the "meaning" and "effectiveness" of their vote for appropriations bills which are subject to the Act, we think their argument pulls Coleman too far from its moorings. Appellees'argued that Coleman has no applicability to a similar suit brought by federal legislators, since the separation-of-powers concerns present in such a suit were not present in Coleman, and since any federalism concerns were eliminated by the Kansas Supreme Court's decision to take jurisdiction over the case.9 Although Congress could reinstate Project X through a "disapproval bill," it would assumedly take two-thirds of both Houses to do so, since the President could be expected to veto the Project X "disapproval bilL" But see Robinson, Public Choice Speculations on the Item Veto, 74 Va. L. Rev. 403, 411-412 (1988) (political costs that President would suffer in important congressional districts might limit use of line-item veto).826use of the word "effectiveness" to link their argument to Coleman stretches the word far beyond the sense in which the Coleman opinion used it. There is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution of institutional legislative power that is alleged here. To uphold standing here would require a drastic extension of Coleman. We are unwilling to take that step.Not only do appellees lack support from precedent, but historical practice appears to cut against them as well. It is evident from several episodes in our history that in analogous confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power. The Tenure of Office Act, passed by Congress over the veto of President Andrew Johnson in 1867, was a thorn in the side of succeeding Presidents until it was finally repealed at the behest of President Grover Cleveland in 1887. See generally W. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson 210235, 260-268 (1992). It provided that an official whose appointment to an Executive Branch office required confirmation by the Senate could not be removed without the consent of the Senate. 14 Stat. 430, ch. 154. In 1868, Johnson removed his Secretary of War, Edwin M. Stanton. Within a week, the House of Representatives impeached Johnson. 1 Trial of Andrew Johnson, President of the United States, Before the Senate of the United States on Impeachment by the House of Representatives for High Crimes and Misdemeanors 4 (1868). One of the principal charges against him was that his removal of Stanton violated the Tenure of Office Act. Id., at 6-8. At the conclusion of his trial before the Senate, Johnson was acquitted by one vote. 2 id., at 487, 496-498. Surely Johnson had a stronger claim of diminution of his official power as a result of the Tenure of Office Act than do the appellees in the present case. Indeed, if their827claim were sustained, it would appear that President Johnson would have had standing to challenge the Tenure of Office Act before he ever thought about firing a cabinet member, simply on the grounds that it altered the calculus by which he would nominate someone to his cabinet. Yet if the federal courts had entertained an action to adjudicate the constitutionality of the Tenure of Office Act immediately after its passage in 1867, they would have been improperly and unnecessarily plunged into the bitter political battle being waged between the President and Congress.Succeeding Presidents-Ulysses S. Grant and Grover Cleveland-urged Congress to repeal the Tenure of Office Act, and Cleveland's plea was finally heeded in 1887. 24 Stat. 500, ch. 353. It occurred to neither of these Presidents that they might challenge the Act in an Article III court. Eventually, in a suit brought by a plaintiff with traditional Article III standing, this Court did have the opportunity to pass on the constitutionality of the provision contained in the Tenure of Office Act. A sort of mini-Tenure of Office Act covering only the Post Office Department had been enacted in 1872, 17 Stat. 284, ch. 335, § 2, and it remained on the books after the Tenure of Office Act's repeal in 1887. In the last days of the Woodrow Wilson administration, Albert Burleson, Wilson's Postmaster General, came to believe that Frank Myers, the Postmaster in Portland, Oregon, had committed fraud in the course of his official duties. When Myers refused to resign, Burleson, acting at the direction of the President, removed him. Myers sued in the Court of Claims to recover lost salary. In Myers v. United States, 272 U. S. 52 (1926), more than half a century after Johnson's impeachment, this Court held that Congress could not require senatorial consent to the removal of a Postmaster who had been appointed by the President with the consent of the Senate. Id., at 106-107, 173, 176. In the course of its opinion, the Court expressed the view that the original Tenure of Office Act was unconstitutional. Id., at 176. See also id.,828at 173 ("This Court has, since the Tenure of Office Act, manifested an earnest desire to avoid a final settlement of the question until it should be inevitably presented, as it is here").If the appellees in the present case have standing, presumably President Wilson, or Presidents Grant and Cleveland before him, would likewise have had standing, and could have challenged the law preventing the removal of a Presidential appointee without the consent of Congress. Similarly, in INS v. Chadha, 462 U. S. 919 (1983), the Attorney General would have had standing to challenge the one-House veto provision because it rendered his authority provisional rather than final. By parity of reasoning, President Gerald Ford could have sued to challenge the appointment provisions of the Federal Election Campaign Act which were struck down in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), and a Member of Congress could have challenged the validity of President Coolidge's pocket veto that was sustained in The Pocket Veto Case, 279 U. S. 655 (1929).There would be nothing irrational about a system that granted standing in these cases; some European constitutional courts operate under one or another variant of such a regime. See, e. g., Favoreu, Constitutional Review in Europe, in Constitutionalism and Rights 38, 41 (L. Henkin & A. Rosenthal eds. 1990); Wright Sheive, Central and Eastern European Constitutional Courts and the Antimajoritarian Objection to Judicial Review, 26 Law & Pol'y Int'l Bus. 1201, 1209 (1995); A. Stone, The Birth of Judicial Politics in France 232 (1992); D. Kommers, Judicial Politics in West Germany: A Study of the Federal Constitutional Court 106 (1976). But it is obviously not the regime that has obtained under our Constitution to date. Our regime contemplates a more restricted role for Article III courts, well expressed by Justice Powell in his concurring opinion in United States v. Richardson, 418 U. S. 166 (1974):829"The irreplaceable value of the power articulated by Mr. Chief Justice Marshall [in Marbury v. Madison, 1 Cranch 137 (1803),] lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests." Id., at 192.IVIn sum, appellees have alleged no injury to themselves as individuals (contra, Powell), the institutional injury they allege is wholly abstract and widely dispersed (contra, Coleman), and their attempt to litigate this dispute at this time and in this form is contrary to historical experience. We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.lO See n. 2, supra. We also note that our conclusion neither deprives Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach), nor forecloses the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act). Whether the case would10 Cf. Bender, 475 U. S., at 544 ("Generally speaking, members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take"); United States v. Ballin, 144 U. S. 1,7 (1892) ("The two houses of Congress are legislative bodies representing larger constituencies. Power is not vested in anyone individual, but in the aggregate of the members who compose the body, and its action is not the action of any separate member or number of members, but the action of the body as a whole").830SOUTER, J., concurring in judgmentbe different if any of these circumstances were different we need not now decide.We therefore hold that these individual members of Congress do not have a sufficient "personal stake" in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing.ll The judgment of the District Court is vacated, and the case is remanded with instructions to dismiss the complaint for lack of jurisdiction.It is so ordered

OCTOBER TERM, 1996SyllabusRAINES, DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET, ET AL. v. BYRD ET AL.APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIANo. 96-1671. Argued May 27, 1997-Decided June 26, 1997Appellees, Members of the 104th Congress, voted "nay" when Congress passed the Line Item Veto Act (Act), which gives the President the authority to cancel certain spending and tax benefit measures after he has signed them into law. The day after the Act went into effect, they filed suit against appellants, Executive Branch officials, challenging the Act's constitutionality. The District Court denied appellants' motion to dismiss, finding that appellees' claim that the Act diluted their Article I voting power was sufficient to confer Article III standing; and that their claim was ripe, even though the President had not yet used the Act's cancellation authority, because they found themselves in a position of unanticipated and unwelcome subservience to the President before and after their votes on appropriations bills. The court then granted appellees summary judgment, holding that the Act violated the Presentment Clause, Art. I, § 7, cl. 2, and constituted an unconstitutional delegation of legislative power to the President.Held: Appellees lack standing to bring this suit. Pp. 818-830.(a) The federal courts have jurisdiction over this dispute only if it is a case or controversy. Art. III, § 2. In order to meet the standing element of the case-or-controversy requirement, appellees must allege a personal injury that is particularized, concrete, and otherwise judicially cognizable. Lujan v. Defenders of Wildlife, 504 U. S. 555, 561; Allen v. Wright, 468 U. S. 737, 751. This Court insists on strict compliance with the jurisdictional standing requirement, see, e. g., id., at 752, and its standing inquiry is especially rigorous when reaching the merits of a dispute would force it to decide the constitutionality of an action taken by one of the other two branches of the Federal Government. pp. 818-820.(b) This Court has never had occasion to rule on the legislative standing question presented here. Appellees are not helped by Powell v. McCormack, 395 U. S. 486, 496,512-514, in which the Court held that a Congressman's challenge to the constitutionality of his exclusion from the House of Representatives presented an Article III case or controversy. Appellees have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies, but812Syllabusclaim that the Act causes a type of institutional injury which damages all Members of Congress equally. And their claim is based on a loss of political power, not loss of something to which they are personally entitled, such as their seats as Members of Congress after their constituents elected them. pp.820-821.(c) Appellees' claim also does not fall within the Court's holding in Coleman v. Miller, 307 U. S. 433, the one case in which standing has been upheld for legislators claiming an institutional injury. There, the Court held that state legislators who had been locked in a tie vote that would have defeated the State's ratification of a proposed federal constitutional amendment, and who alleged that their votes were nullified when the Lieutenant Governor broke the tie by casting his vote for ratification, had "a plain, direct and adequate interest in maintaining the effectiveness of their votes." Id., at 438. In contrast, appellees have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated. In the vote on the Act, their votes were given full effect; they simply lost that vote. To uphold standing here would require a drastic extension of Coleman, even accepting appellees' argument that the Act has changed the "meaning" and "effectiveness" of their vote on appropriations bills, for there is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution ofinstitutional power appellees allege. pp.821-826.(d) Historical practice cuts against appellees' position as well. Several episodes in our history show that in analogous confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power. If appellees' claim were sustained, presumably several Presidents would have had standing to challenge the Tenure of Office Act, which prevented the removal of a Presidential appointee without Congress' consent; the Attorney General could have challenged the oneHouse veto provision because it rendered his authority provisional rather than final; President Ford could have challenged the Federal Election Campaign Act's appointment provisions which were struck down in Buckley v. Valeo, 424 U. S. 1; and a Member of Congress could have challenged the validity of President Coolidge's pocket veto that was sustained in The Pocket Veto Case, 279 U. S. 655. While a system granting such standing would not be irrational, our Constitution's regime contemplates a more restrictive role for Article III courts. See United States v. Richardson, 418 U. S. 166, 192 (Powell, J., concurring). Pp.826-829.(e) Some importance must be attached to the fact that appellees have not been authorized to represent their respective Houses in this action,813Full Text of Opinion

2000_99-2071

reality. Section 1409 takes the unremarkable step of ensuring that the opportunity inherent in the event of birth as to the mother-child relationship exists between father and child before citizenship is conferred upon the latter. That interest's importance is too profound to be satisfied by a DNA test because scientific proof of biological paternity does not, by itself, ensure father-child contact during the child's minority. Congress is well within its authority in refusing, absent proof of an opportunity for a relationship to develop, to commit this country to embracing a child as a citizen. Contrary to petitioners' argument, § 1409 does not embody a gender-based stereotype. There is nothing irrational or improper in recognizing that at the moment of birth-a critical event in the statutory scheme and tradition of citizenship law-the mother's knowledge of the child and the fact of parenthood have been established in a way not guaranteed to the unwed father. Pp. 64-68.(3) The means Congress chose substantially relate to its interest in facilitating a parent-child relationship. First, various statutory provisions, in addition to § 1409(a), require that some act linking a child to the United States occur before the child turns 18. Second, petitioners' argument that § 1409(a)(4) reflects a stereotype that women are more likely than men to actually establish the required relationship misconceives both the governmental interest's nature and the equal protection inquiry. As to the former, Congress could have chosen to advance the interest of ensuring a meaningful relationship in every case, but it enacted instead an easily administered scheme to promote the different but still substantial interest of ensuring an opportunity for that relationship to develop. Petitioners' argument confuses the equal protection inquiry's means and ends; § 1409(a)(4) should not be invalidated because Congress elected to advance an interest that is less demanding to satisfy than some alternative. Even if one conceives of Congress' real interest as the establishment of a meaningful relationship, it is almost axiomatic that a policy seeking to foster the opportunity for meaningful parent-child bonds to develop has a close and substantial bearing on the governmental interest in that bond's formation. Here, Congress' means are in substantial furtherance of an important governmental objective, and the fit between the means and that end is exceedingly persuasive. See Virginia, supra, at 533. Pp.68-70.(c) Section 1409(a)(4) imposes a minimal obligation. Only the least onerous of its three options must be satisfied; and it can be satisfied on the day of birth, or the next day, or for the next 18 years. Section 1409(a), moreover, is not the sole means of attaining citizenship for the child, who can seek citizenship in his or her own right, rather than via reliance on parental ties. pp. 70-71.56(d) Because the statute satisfies the equal protection scrutiny applied to gender-based qualifications, this Court need not consider whether it can confer citizenship on terms other than those specified by Congress or assess the implications of statements in earlier cases regarding the wide deference afforded to Congress in exercising its immigration and naturalization power. Pp.71-73.208 F.3d 528, affirmed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, SCALIA, and THOMAS, JJ., joined. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined, post, p. 73. O'CONNOR, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 74.Martha F. Davis argued the cause for petitioners. With her on the briefs were Nancy A. Falgout, Steven R. Shapiro, Lucas Guttentag, Julie Goldscheid, and Sherry J. Leiwant.Deputy Solicitor General Kneedler argued the cause for respondent. With him on the brief were Solicitor General Waxman, Assistant Attorney General Ogden, Austin C. Schlick, Michael Jay Singer, and John S. Koppel.*JUSTICE KENNEDY delivered the opinion of the Court. This case presents a question not resolved by a majority of the Court in a case before us three Terms ago. See Miller v. Albright, 523 U. S. 420 (1998). Title 8 U. S. C. § 1409 governs the acquisition of United States citizenship by persons born to one United States citizen parent and one noncitizen parent when the parents are unmarried and the child is born outside of the United States or its possessions. The statute imposes different requirements for the child's acquisition of citizenship depending upon whether the citizen parent is*Briefs of amici curiae urging reversal were filed for Equality Now et al. by Ogden Northrup Lewis and Jessica Neuwirth; and for the National Women's Law Center et al. by Nancy Duff Campbell, Joan Entmacher, Dina R. Lassow, and Nancy L. Perkins.Moses Silverman and Kenneth Kimerling filed a brief for the Asian American Legal Defense and Education Fund, Inc., as amicus curiae.57the mother or the father. The question before us is whether the statutory distinction is consistent with the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.IPetitioner Tuan Anh Nguyen was born in Saigon, Vietnam, on September 11, 1969, to copetitioner Joseph Boulais and a Vietnamese citizen. Boulais and Nguyen's mother were not married. Boulais always has been a citizen of the United States, and he was in Vietnam under the employ of a corporation. After he and Nguyen's mother ended their relationship, Nguyen lived for a time with the family of Boulais' new Vietnamese girlfriend. In June 1975, Nguyen, then almost six years of age, came to the United States. He became a lawful permanent resident and was raised in Texas by Boulais.In 1992, when Nguyen was 22, he pleaded guilty in a Texas state court to two counts of sexual assault on a child. He was sentenced to eight years in prison on each count. Three years later, the United States Immigration and Naturalization Service (INS) initiated deportation proceedings against Nguyen as an alien who had been convicted of two crimes involving moral turpitude, as well as an aggravated felony. See 8 U. S. C. §§ 1227(a)(2)(A)(ii) and (iii) (1994 ed., Supp. IV). Though later he would change his position and argue he was a United States citizen, Nguyen testified at his deportation hearing that he was a citizen of Vietnam. The Immigration Judge found him deportable.Nguyen appealed to the Board of Immigration Appeals and, in 1998, while the matter was pending, his father obtained an order of parentage from a state court, based on DNA testing. By this time, Nguyen was 28 years old. The Board dismissed Nguyen's appeal, rejecting his claim to United States citizenship because he had failed to establish compliance with 8 U. S. C. § 1409(a), which sets forth the re-58quirements for one who was born out of wedlock and abroad to a citizen father and a noncitizen mother.Nguyen and Boulais appealed to the Court of Appeals for the Fifth Circuit, arguing that § 1409 violates equal protection by providing different rules for attainment of citizenship by children born abroad and out of wedlock depending upon whether the one parent with American citizenship is the mother or the father. The court rejected the constitutional challenge to § 1409(a). 208 F.3d 528, 535 (2000).The constitutionality of the distinction between unwed fathers and mothers was argued in Miller, but a majority of the Court did not resolve the issue. Four Justices, in two different opinions, rejected the challenge to the genderbased distinction, two finding the statute consistent with the Fifth Amendment, see 523 U. S., at 423 (opinion of STEVENS, J., joined by REHNQUIST, C. J.), and two concluding that the court could not confer citizenship as a remedy even if the statute violated equal protection, see id., at 452 (SCALIA, J., joined by THOMAS, J., concurring in judgment). Three Justices reached a contrary result, and would have found the statute violative of equal protection. Id., at 460 (GINSBURG, J., joined by SOUTER and BREYER, JJ., dissenting); id., at 471 (BREYER, J., joined by SOUTER and GINSBURG, JJ., dissenting). Finally, two Justices did not reach the issue as to the father, having determined that the child, the only petitioner in Miller, lacked standing to raise the equal protection rights of his father. Id., at 445 (O'CONNOR, J., joined by KENNEDY, J., concurring in judgment).Since Miller, the Courts of Appeal have divided over the constitutionality of § 1409. Compare 208 F.3d 528 (CA5 2000) (case below) with Lake v. Reno, 226 F.3d 141 (CA2 2000), and United States v. Ahumada-Aguilar, 189 F.3d 1121 (CA9 1999). We granted certiorari to resolve the conflict. 530 U. S. 1305 (2000). The father is before the Court in this case; and, as all agree he has standing to raise the constitutional claim, we now resolve it. We hold that § 1409(a)59is consistent with the constitutional guarantee of equal protection.IIThe general requirement for acquisition of citizenship by a child born outside the United States and its outlying possessions and to parents who are married, one of whom is a citizen and the other of whom is an alien, is set forth in 8 U. S. C. § 1401(g). The statute provides that the child is also a citizen if, before the birth, the citizen parent had been physically present in the United States for a total of five years, at least two of which were after the parent turned 14 years of age.As to an individual born under the same circumstances, save that the parents are unwed, § 1409(a) sets forth the following requirements where the father is the citizen parent and the mother is an alien:"(1) a blood relationship between the person and the father is established by clear and convincing evidence, "(2) the father had the nationality of the United States at the time of the person's birth,"(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and"(4) while the person is under the age of 18 years"(A) the person is legitimated under the law of the person's residence or domicile,"(B) the father acknowledges paternity of the person in writing under oath, or"(C) the paternity of the person is established by adjudication of a competent court."In addition, § 1409(a) incorporates by reference, as to the citizen parent, the residency requirement of § 1401(g).When the citizen parent of the child born abroad and out of wedlock is the child's mother, the requirements for the transmittal of citizenship are described in § 1409(c):60"(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year."Section 1409(a) thus imposes a set of requirements on the children of citizen fathers born abroad and out of wedlock to a noncitizen mother that are not imposed under like circumstances when the citizen parent is the mother. All concede the requirements of §§ 1409(a)(3) and (a)(4), relating to a citizen father's acknowledgment of a child while he is under 18, were not satisfied in this case. We need not discuss § 1409(a)(3), however. It was added in 1986, after Nguyen's birth; and Nguyen falls within a transitional rule which allows him to elect application of either the current version of the statute, or the pre-1986 version, which contained no parallel to § 1409(a)(3). See Immigration and Nationality Act Amendments of 1986, 100 Stat. 3655; note following 8 U. S. C. § 1409; Miller, supra, at 426, n. 3, 432 (opinion of STEVENS, J.). And in any event, our ruling respecting § 1409(a)(4) is dispositive of the case. As an individual seeking citizenship under § 1409(a) must meet all of its preconditions, the failure to satisfy § 1409(a)(4) renders Nguyen ineligible for citizenship.IIIFor a gender-based classification to withstand equal protection scrutiny, it must be established "'at least that the [challenged] classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievement of those objectives."'" United States v. Virginia, 518 U. S. 515, 53361(1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982), in turn quoting Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 150 (1980)). For reasons to follow, we conclude § 1409 satisfies this standard. Given that determination, we need not decide whether some lesser degree of scrutiny pertains because the statute implicates Congress' immigration and naturalization power. See Miller, 523 U. S., at 434, n.11 (explaining that the statute must be subjected to a standard more deferential to the congressional exercise of the immigration and naturalization power, but that "[e]ven if ... the heightened scrutiny that normally governs gender discrimination claims applied in this context," the statute would be sustained (citations omitted)).Before considering the important governmental interests advanced by the statute, two observations concerning the operation of the provision are in order. First, a citizen mother expecting a child and living abroad has the right to reenter the United States so the child can be born here and be a 14th Amendment citizen. From one perspective, then, the statute simply ensures equivalence between two expectant mothers who are citizens abroad if one chooses to reenter for the child's birth and the other chooses not to return, or does not have the means to do so. This equivalence is not a factor if the single citizen parent living abroad is the father. For, unlike the unmarried mother, the unmarried father as a general rule cannot control where the child will be born.Second, although § 1409(a)(4) requires certain conduct to occur before the child of a citizen father, born out of wedlock and abroad, reaches 18 years of age, it imposes no limitations on when an individual who qualifies under the statute can claim citizenship. The statutory treatment of citizenship is identical in this respect whether the citizen parent is the mother or the father. A person born to a citizen parent of either gender may assert citizenship, assuming compliance62with statutory preconditions, regardless of his or her age. And while the conditions necessary for a citizen mother to transmit citizenship under § 1409(c) exist at birth, citizen fathers and/or their children have 18 years to satisfy the requirements of § 1409(a)(4). See Miller, supra, at 435 (opinion of STEVENS, J.).The statutory distinction relevant in this case, then, is that § 1409(a)(4) requires one of three affirmative steps to be taken if the citizen parent is the father, but not if the citizen parent is the mother: legitimation; a declaration of paternity under oath by the father; or a court order of paternity. Congress' decision to impose requirements on unmarried fathers that differ from those on unmarried mothers is based on the significant difference between their respective relationships to the potential citizen at the time of birth. Specifically, the imposition of the requirement for a paternal relationship, but not a maternal one, is justified by two important governmental objectives. We discuss each in turn.AThe first governmental interest to be served is the importance of assuring that a biological parent-child relationship exists. In the case of the mother, the relation is verifiable from the birth itself. The mother's status is documented in most instances by the birth certificate or hospital records and the witnesses who attest to her having given birth.In the case of the father, the uncontestable fact is that he need not be present at the birth. If he is present, furthermore, that circumstance is not incontrovertible proof of fatherhood. See Lehr v. Robertson, 463 U. S. 248, 260, n. 16 (1983) (" 'The mother carries and bears the child, and in this sense her parental relationship is clear. The validity of the father's parental claims must be gauged by other measures'" (quoting Caban v. Mohammed, 441 U. S. 380, 397 (1979) (Stewart, J., dissenting))); Trimble v. Gordon, 43063u. S. 762, 770 (1977) ("The more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers' estates than that required ... under their mothers' estates ... "). Fathers and mothers are not similarly situated with regard to the proof of biological parenthood. The imposition of a different set of rules for making that legal determination with respect to fathers and mothers is neither surprising nor troublesome from a constitutional perspective. Cf. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985) (explaining that the Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike"); F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920). Section 1409(a)(4)'s provision of three options for a father seeking to establish paternity-legitimation, paternity oath, and court order of paternity-is designed to ensure an acceptable documentation of paternity.Petitioners argue that the requirement of § 1409(a)(1), that a father provide clear and convincing evidence of parentage, is sufficient to achieve the end of establishing paternity, given the sophistication of modern DNA tests. Brief for Petitioners 21-24. Section 1409(a)(1) does not actually mandate a DNA test, however. The Constitution, moreover, does not require that Congress elect one particular mechanism from among many possible methods of establishing paternity, even if that mechanism arguably might be the most scientifically advanced method. With respect to DNA testing, the expense, reliability, and availability of such testing in various parts of the world may have been of particular concern to Congress. See Miller, supra, at 437 (opinion of STEVENS, J.). The requirement of § 1409(a)(4) represents a reasonable conclusion by the legislature that the satisfaction of one of several alternatives will suffice to establish the blood link between father and child required as a predicate to the child's acquisition of citizenship. Cf. Lehr, supra,64at 267-268 (upholding New York statutory requirement that gave mothers of children born out of wedlock notice of an adoption hearing, but only extended that right to fathers who mailed a postcard to a "putative fathers registry"). Given the proof of motherhood that is inherent in birth itself, it is unremarkable that Congress did not require the same affirmative steps of mothers.Finally, to require Congress to speak without reference to the gender of the parent with regard to its objective of ensuring a blood tie between parent and child would be to insist on a hollow neutrality. As JUSTICE STEVENS pointed out in Miller, Congress could have required both mothers and fathers to prove parenthood within 30 days or, for that matter, 18 years, of the child's birth. 523 U. S., at 436. Given that the mother is always present at birth, but that the father need not be, the facially neutral rule would sometimes require fathers to take additional affirmative steps which would not be required of mothers, whose names will appear on the birth certificate as a result of their presence at the birth, and who will have the benefit of witnesses to the birth to call upon. The issue is not the use of gender specific terms instead of neutral ones. Just as neutral terms can mask discrimination that is unlawful, gender specific terms can mark a permissible distinction. The equal protection question is whether the distinction is lawful. Here, the use of gender specific terms takes into account a biological difference between the parents. The differential treatment is inherent in a sensible statutory scheme, given the unique relationship of the mother to the event of birth.B 1The second important governmental interest furthered in a substantial manner by § 1409(a)(4) is the determination to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a65relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States. See id., at 438-440 (opinion of STEVENS, J.). In the case of a citizen mother and a child born overseas, the opportunity for a meaningful relationship between citizen parent and child inheres in the very event of birth, an event so often critical to our constitutional and statutory understandings of citizenship. The mother knows that the child is in being and is hers and has an initial point of contact with him. There is at least an opportunity for mother and child to develop a real, meaningful relationship.The same opportunity does not result from the event of birth, as a matter of biological inevitability, in the case of the unwed father. Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father's identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock. One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries. See Department of Defense, Selected Manpower Statistics 48, 74 (1999) (reporting that in 1969, the year in which Nguyen was born, there were 3,458,072 active duty military personnel, 39,506 of whom were female); Department of Defense, Selected Manpower Statistics 29 (1970) (noting that 1,041,094 military personnel were stationed in foreign countries in 1969); Department of Defense, Selected Manpower Statistics 49, 76 (1999) (reporting that in 1999 there were 1,385,703 active duty military personnel, 200,287 of whom were female); id., at 33 (noting that 252,763 military personnel were stationed in foreign countries in 1999).When we turn to the conditions which prevail today, we find that the passage of time has produced additional and even more substantial grounds to justify the statutory dis-66tinction. The ease of travel and the willingness of Americans to visit foreign countries have resulted in numbers of trips abroad that must be of real concern when we contemplate the prospect of accepting petitioners' argument, which would mandate, contrary to Congress' wishes, citizenship by male parentage subject to no condition save the father's previous length of residence in this country. In 1999 alone, Americans made almost 25 million trips abroad, excluding trips to Canada and Mexico. See U. S. Dept. of Commerce, 1999 Profile of U. S. Travelers to Overseas Destinations 1 (Oct. 2000). Visits to Canada and Mexico add to this figure almost 34 million additional visits. See U. S. Dept. of Commerce, U. S. Resident Travel to Overseas Countries, Historical Visitation 1989-1999, p. 1 (Oct. 2000). And the average American overseas traveler spent 15.1 nights out of the United States in 1999. 1999 Profile of U. S. Travelers to Overseas Destinations, supra, at 4.Principles of equal protection do not require Congress to ignore this reality. To the contrary, these facts demonstrate the critical importance of the Government's interest in ensuring some opportunity for a tie between citizen father and foreign born child which is a reasonable substitute for the opportunity manifest between mother and child at the time of birth. Indeed, especially in light of the number of Americans who take short sojourns abroad, the prospect that a father might not even know of the conception is a realistic possibility. See Miller, supra, at 439 (opinion of STEVENS, J.). Even if a father knows of the fact of conception, moreover, it does not follow that he will be present at the birth of the child. Thus, unlike the case of the mother, there is no assurance that the father and his biological child will ever meet. Without an initial point of contact with the child by a father who knows the child is his own, there is no opportunity for father and child to begin a relationship. Section 1409 takes the unremarkable step of ensuring that such an opportunity, inherent in the event of birth as to the67mother-child relationship, exists between father and child before citizenship is conferred upon the latter.The importance of the governmental interest at issue here is too profound to be satisfied merely by conducting a DNA test. The fact of paternity can be established even without the father's knowledge, not to say his presence. Paternity can be established by taking DNA samples even from a few strands of hair, years after the birth. See Federal Judicial Center, Reference Manual on Scientific Evidence 497 (2d ed. 2000). Yet scientific proof of biological paternity does nothing, by itself, to ensure contact between father and child during the child's minority.Congress is well within its authority in refusing, absent proof of at least the opportunity for the development of a relationship between citizen parent and child, to commit this country to embracing a child as a citizen entitled as of birth to the full protection of the United States, to the absolute right to enter its borders, and to full participation in the political process. If citizenship is to be conferred by the unwitting means petitioners urge, so that its acquisition abroad bears little relation to the realities of the child's own ties and allegiances, it is for Congress, not this Court, to make that determination. Congress has not taken that path but has instead chosen, by means of § 1409, to ensure in the case of father and child the opportunity for a relationship to develop, an opportunity which the event of birth itself provides for the mother and child. It should be unobjectionable for Congress to require some evidence of a minimal opportunity for the development of a relationship with the child in terms the male can fulfill.While the INS' brief contains statements indicating the governmental interest we here describe, see Brief for Respondent 38, 41, it suggests other interests as well. Statements from the INS' brief are not conclusive as to the objects of the statute, however, as we are concerned with the objectives of Congress, not those of the INS. We ascertain the68purpose of a statute by drawing logical conclusions from its text, structure, and operation.Petitioners and their amici argue in addition that, rather than fulfilling an important governmental interest, § 1409 merely embodies a gender-based stereotype. Although the above discussion should illustrate that, contrary to petitioners' assertions, § 1409 addresses an undeniable difference in the circumstance of the parents at the time a child is born, it should be noted, furthermore, that the difference does not result from some stereotype, defined as a frame of mind resulting from irrational or uncritical analysis. There is nothing irrational or improper in the recognition that at the moment of birth-a critical event in the statutory scheme and in the whole tradition of citizenship law-the mother's knowledge of the child and the fact of parenthood have been established in a way not guaranteed in the case of the unwed father. This is not a stereotype. See Virginia, 518 U. S., at 533 ("The heightened review standard our precedent establishes does not make sex a proscribed classification .... Physical differences between men and women ... are enduring").2Having concluded that facilitation of a relationship between parent and child is an important governmental interest, the question remains whether the means Congress chose to further its objective-the imposition of certain additional requirements upon an unwed father-substantially relate to that end. Under this test, the means Congress adopted must be sustained.First, it should be unsurprising that Congress decided to require that an opportunity for a parent-child relationship occur during the formative years of the child's minority. In furtherance of the desire to ensure some tie between this country and one who seeks citizenship, various other statutory provisions concerning citizenship and naturalization require some act linking the child to the United States to69occur before the child reaches 18 years of age. See, e. g., 8 U. S. C. § 1431 (child born abroad to one citizen parent and one noncitizen parent shall become a citizen if, inter alia, the noncitizen parent is naturalized before the child reaches 18 years of age and the child begins to reside in the United States before he or she turns 18); § 1432 (imposing same conditions in the case of a child born abroad to two alien parents who are naturalized).Second, petitioners argue that § 1409(a)(4) is not effective.In particular, petitioners assert that, although a mother will know of her child's birth, "knowledge that one is a parent, no matter how it is acquired, does not guarantee a relationship with one's child." Brief for Petitioners 16. They thus maintain that the imposition of the additional requirements of § 1409(a)(4) only on the children of citizen fathers must reflect a stereotype that women are more likely than men to actually establish a relationship with their children. Id., at 17.This line of argument misconceives the nature of both the governmental interest at issue and the manner in which we examine statutes alleged to violate equal protection. As to the former, Congress would of course be entitled to advance the interest of ensuring an actual, meaningful relationship in every case before citizenship is conferred. Or Congress could excuse compliance with the formal requirements when an actual father-child relationship is proved. It did neither here, perhaps because of the subjectivity, intrusiveness, and difficulties of proof that might attend an inquiry into any particular bond or tie. Instead, Congress enacted an easily administered scheme to promote the different but still substantial interest of ensuring at least an opportunity for a parent-child relationship to develop. Petitioners' argument confuses the means and ends of the equal protection inquiry; § 1409(a)(4) should not be invalidated because Congress elected to advance an interest that is less demanding to satisfy than some other alternative.70Even if one conceives of the interest Congress pursues as the establishment of a real, practical relationship of considerable substance between parent and child in every case, as opposed simply to ensuring the potential for the relationship to begin, petitioners' misconception of the nature of the equal protection inquiry is fatal to their argument. A statute meets the equal protection standard we here apply so long as it is '" "substantially related to the achievement of"'" the governmental objective in question. Virginia, supra, at 533 (quoting Hogan, 458 U. S., at 724, in turn quoting Wengler, 446 U. S., at 150). It is almost axiomatic that a policy which seeks to foster the opportunity for meaningful parent-child bonds to develop has a close and substantial bearing on the governmental interest in the actual formation of that bond. None of our gender-based classification equal protection cases have required that the statute under consideration must be capable of achieving its ultimate objective in every instance. In this difficult context of conferring citizenship on vast numbers of persons, the means adopted by Congress are in substantial furtherance of important governmental objectives. The fit between the means and the important end is "exceedingly persuasive." See Virginia, supra, at 533. We have explained that an "exceedingly persuasive justification" is established "by showing at least that the classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives.'" Hogan, supra, at 724 (citations omitted). Section 1409 meets this standard.CIn analyzing § 1409(a)(4), we are mindful that the obligation it imposes with respect to the acquisition of citizenship by the child of a citizen father is minimal. This circumstance shows that Congress has not erected inordinate and unnecessary hurdles to the conferral of citizenship on the71children of citizen fathers in furthering its important objectives. Only the least onerous of the three options provided for in § 1409(a)(4) must be satisfied. If the child has been legitimated under the law of the relevant jurisdiction, that will be the end of the matter. See § 1409(a)(4)(A). In the alternative, a father who has not legitimated his child by formal means need only make a written acknowledgment of paternity under oath in order to transmit citizenship to his child, hardly a substantial burden. See § 1409(a)(4)(B). Or, the father could choose to obtain a court order of paternity. See § 1409(a)(4)(C). The statute can be satisfied on the day of birth, or the next day, or for the next 18 years. In this case, the unfortunate, even tragic, circumstance is that Boulais did not pursue, or perhaps did not know of, these simple steps and alternatives. Any omission, however, does not nullify the statutory scheme.Section 1409(a), moreover, is not the sole means by which the child of a citizen father can attain citizenship. An individual who fails to comply with § 1409(a), but who has substantial ties to the United States, can seek citizenship in his or her own right, rather than via reliance on ties to a citizen parent. See, e. g., 8 U. S. C. §§ 1423, 1427. This option now may be foreclosed to Nguyen, but any bar is due to the serious nature of his criminal offenses, not to an equal protection denial or to any supposed rigidity or harshness in the citizenship laws.IVThe statutory scheme's satisfaction of the equal protection scrutiny we apply to gender-based classifications constitutes a sufficient basis for upholding it. It should be noted, however, that, even were we to conclude that the statute did not meet this standard of review, petitioners would face additional obstacles before they could prevail.The INS urges that, irrespective of whether § 1409(a) is constitutional, the Court cannot grant the relief petitioners request: the conferral of citizenship on terms other than72those specified by Congress. There may well be "potential problems with fashioning a remedy" were we to find the statute unconstitutional. See Miller, 523 U. S., at 451 (O'CONNOR, J., concurring in judgment); cf. id., at 445, n. 26 (opinion of STEVENS, J.) (declining to address the question whether the Court could confer the sought-after remedy). Two Members of to day's majority said in Miller that this argument was dispositive. See id., at 452-459 (SCALIA, J., joined by THOMAS, J., concurring in judgment). Petitioners ask us to invalidate and sever §§ 1409(a)(3) and (a)(4), but it must be remembered that severance is based on the assumption that Congress would have intended the result. See id., at 457 (SCALIA, J., concurring in judgment) (citing New York v. United States, 505 U. S. 144 (1992)). In this regard, it is significant that, although the Immigration and Nationality Act contains a general severability provision, Congress expressly provided with respect to the very subchapter of the United States Code at issue and in a provision entitled "Sole procedure" that "[a] person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this subchapter and not otherwise." 8 U. S. C. § 1421(d); see also Miller, supra, at 457-458 (SCALIA, J., concurring in judgment). Section 1421(d) refers to naturalization, which in turn is defined as "conferring of nationality of a state upon a person after birth." 8 U. S. C. § 1l01(a)(23). Citizenship under § 1409(a) is retroactive to the date of birth, but it is a naturalization under § 1421(d) nevertheless. The conditions specified by § 1409(a) for conferral of citizenship, as a matter of definition, must take place after the child is born, in some instances taking as long as 18 years. Section 1409(a), then, is subject to the limitation imposed by § 1421(d).In light of our holding that there is no equal protection violation, we need not rely on this argument. For the same reason, we need not assess the implications of statements in our earlier cases regarding the wide deference afforded to73Congress in the exercise of its immigration and naturalization power. See, e. g., Fiallo v. Bell, 430 U. S. 787, 792-793, and n. 4 (1977) (quoting Galvan v. Press, 347 U. S. 522, 531 (1954)); 430 u. S., at 792 (quoting Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 339 (1909)). These arguments would have to be considered, however, were it to be determined that § 1409 did not withstand conventional equal protection scrutiny.VTo fail to acknowledge even our most basic biological differences-such as the fact that a mother must be present at birth but the father need not be-risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real. The distinction embodied in the statutory scheme here at issue is not marked by misconception and prejudice, nor does it show disrespect for either class. The difference between men and women in relation to the birth process is a real one, and the principle of equal protection does not forbid Congress to address the problem at hand in a manner specific to each gender.The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 2000SyllabusTUAN ANH NGUYEN ET AL. v. IMMIGRATION AND NATURALIZATION SERVICECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo.99-2071. Argued January 9, 200l-Decided June 11,2001Petitioner Tuan Anh Nguyen was born out of wedlock in Vietnam to a Vietnamese citizen and copetitioner Joseph Boulais, a United States citizen. Nguyen became a lawful permanent United States resident at age six and was raised by Boulais. At age 22, Nguyen pleaded guilty in a Texas state court to two counts of sexual assault on a child. Subsequently, respondent Immigration and Naturalization Service initiated deportation proceedings against him based on his serious criminal offenses. The Immigration Judge ordered him deportable. Boulais obtained an order of parentage from a state court while Nguyen's appeal was pending before the Board of Immigration Appeals, but the Board dismissed the appeal, rejecting Nguyen's citizenship claim because he had not complied with 8 U. S. C. § 1409(a)'s requirements for one born out of wedlock and abroad to a citizen father and a noncitizen mother. On appeal, the Fifth Circuit rejected petitioners' claim that § 1409 violates equal protection by providing different citizenship rules for children born abroad and out of wedlock depending on whether the citizen parent is the mother or the father.Held: Section 1409 is consistent with the equal protection guarantee embedded in the Fifth Amendment's Due Process Clause. Pp. 59-73.(a) A child born abroad and out of wedlock acquires at birth the nationality status of a citizen mother who meets a specified residency requirement. § 1409(c). However, when the father is the citizen parent, inter alia, one of three affirmative steps must be taken before the child turns 18: legitimization, a declaration of paternity under oath by the father, or a court order of paternity. § 1409(a)(4). The failure to satisfy this section renders Nguyen ineligible for citizenship. Pp.59-60.(b) A gender-based classification withstands equal protection scrutiny if it serves important governmental objectives and the discriminatory means employed are substantially related to the achievement of those objectives. United States v. Virginia, 518 U. S. 515, 533. Congress' decision to impose different requirements on unmarried fathers and unmarried mothers is based on the significant difference between their respective relationships to the potential citizen at the time54Syllabusof birth and is justified by two important governmental interests. Pp. 60-71.(1) The first such interest is the importance of assuring that a biological parent-child relationship exists. The mother's relation is verifiable from the birth itself and is documented by the birth certificate or hospital records and the witnesses to the birth. However, a father need not be present at the birth, and his presence is not incontrovertible proof of fatherhood. See Lehr v. Robertson, 463 U. S. 248, 260, n. 16. Because fathers and mothers are not similarly situated with regard to proof of biological parenthood, the imposition of different rules for each is neither surprising nor troublesome from a constitutional perspective. Section 1409(a)(4)'s provision of three options is designed to ensure acceptable documentation of paternity. Petitioners argue that § 1409(a)(1)'s requirement that a father provide clear and convincing evidence of parentage is sufficient to achieve the end of establishing paternity, given the sophistication of modern DNA tests. However, that section does not mandate DNA testing. Moreover, the Constitution does not require that Congress elect one particular mechanism from among many possible methods of establishing paternity, and § 1409(a)(4) represents a reasonable legislative conclusion that the satisfaction of one of several alternatives will suffice to establish the father-child blood link required as a predicate to the child's acquisition of citizenship. Finally, even a facially neutral rule would sometimes require fathers to take additional affirmative steps which would not be required of mothers, whose names will be on the birth certificate as a result of their presence at the birth, and who will have the benefit of witnesses to the birth to call upon. Pp. 62-64.(2) The second governmental interest furthered by § 1409(a)(4) is the determination to ensure that the child and citizen parent have some demonstrated opportunity to develop a relationship that consists of real, everyday ties providing a connection between child and citizen parent and, in turn, the United States. Such an opportunity inheres in the event of birth in the case of a citizen mother and her child, but does not result as a matter of biological inevitability in the case of an unwed father. He may not know that a child was conceived, and a mother may be unsure of the father's identity. One concern in this context has always been with young men on duty with the Armed Forces in foreign countries. Today, the ease of travel and willingness of Americans to visit foreign countries have resulted in numbers of trips abroad that must be of real concern when contemplating the prospect of mandating, contrary to Congress' wishes, citizenship by male parentage subject to no condition other than the father's residence in this country. Equal protection principles do not require Congress to ignore this55Full Text of Opinion

1985_84-1644

JUSTICE BLACKMUN delivered the opinion of the Court.The city of Los Angeles, Cal., refused to renew Golden State Transit Corporation's taxicab franchise after the company's drivers went on strike. We are asked to decide whether, under Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S. 132 (1976), the city's action is preempted by the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq.IIn 1980, Golden State, which operated taxicabs under the Yellow Cab name, applied to the city for a renewal of its operating franchise eventually scheduled to lapse on March 31, 1981. That franchise had first been acquired in 1977. On September 4, 1980, the city's Board of Transportation Commissioners recommended the renewal of Golden State's franchise -- the largest, with approximately 400 cabs, of companies operating in Los Angeles -- along with the franchises of 12 other taxi companies.In October, while the franchise renewal application was pending, Golden State's labor contract with its drivers expired. The company and the drivers, represented by Local Page 475 U. S. 610 572 of the International Brotherhood of Teamsters, signed a short-term contract in order that operations would continue while negotiation and mediation proceeded. This interim contract was to expire at midnight, February 10, 1981, the day before the City Council was scheduled to consider action on the franchise renewals.On February 2, the Council's Transportation and Traffic Committee endorsed franchise renewals recommended by the Board of Transportation Commissioners. The Committee's report stated that Golden State and other companies were "in compliance with all terms and conditions of their franchise[s]." App. 39.On February 11, the drivers struck Golden State, halting its operations. At the Council meeting that day, Teamster representatives argued against renewal of Golden State's franchise because of the pendency of the labor dispute. The Council postponed decision on Golden State's application until February 17, but, with possibly one exception, approved all other franchise renewal applications. At the February 17 meeting, when the union again opposed the renewal, the Council voted to extend Golden State's franchise from March 31 to April 30, but only if the Council expressly found, on or before March 27, that the extension was in the best interests of the city.At its March 23 meeting, the Council held a short public hearing on whether it should grant the limited extension. By this time, the labor dispute and the franchise renewal issue had become clearly intertwined. The Teamsters opposed any extension of the Yellow Cab franchise, stating that such action would simply lengthen the strike and keep the drivers out of work. It preferred to see the franchise terminated, and to have the drivers seek jobs from Golden State's successor or from other franchise holders. As others spoke, the discussion turned to whether there was even a need for Yellow Cab, in light of the services performed by the other 12 franchised taxi companies. There were comments regarding Page 475 U. S. 611 an excess of cabs; the city's policy at the time, however, was not to limit the number of taxi companies or the number of taxis in each fleet. Id. at 81-82.The strike was central to the discussion. One Council member charged Golden State with negotiating unreasonably, id. at 71, while another accused the company of trying to "brea[k] the back of the union." Id. at 66. The sympathies of the Council members who spoke lay with the union. But rather than defeat the renewal outright, the council reached a consensus for rejection of the extension with a possibility for reopening the issue if the parties settled their labor dispute before the franchise expired the following week. Four Council members endorsed this approach, and the Assistant City Attorney said that he clearly had informed the parties that this was the city's position. Id. at 68. The Council President said:"I find that it will be very difficult to get this ordinance past (sic) to extend this franchise if the labor dispute is not settled by the end of this week."Id. at 75. He added: "I just think that this kind of information should be put out in the open, so everybody understands it." Ibid. The Council, by a vote of 11 to 1, defeated the motion to extend the franchise, and it expired by its terms on March 31.IIGolden State filed this action in the United States District Court for the Central District of California, alleging that the city's action was preempted by the NLRA and violated the company's rights to due process and equal protection. It sought declaratory and injunctive relief and damages. The District Court found that it was "undisputed that the sole basis for refusing to extend [Golden State's] franchise was its labor dispute with its Teamster drivers," 520 F. Supp. 191, 193 (1981); that the Council had "threaten[ed] to allow Yellow Cab's franchise to terminate unless it entered into a collective bargaining agreement with the Teamsters," id. at 194; and that the Council had denied the company an essential weapon Page 475 U. S. 612 of economic strength -- the ability to wait out a strike. On the basis of the preemption claim, the District Court granted Golden State's motion for a preliminary injunction to preserve the franchise. Ibid. The Court of Appeals for the Ninth Circuit found "ample evidence" in the record to support the District Court's finding, but nevertheless vacated the injunction. 686 F.2d 758, 759, 762 (1982). The court reasoned that Golden State had little chance of prevailing on its preemption claim or on the other grounds it asserted. This Court denied Golden State's petition for certiorari. 459 U.S. 1105 (1983).Following litigation on unrelated issues, [Footnote 1] and with the company having abandoned its equal protection claim, the District Court granted summary judgment for the city. App. to Pet. for Cert. 11a. Golden State had not moved for summary judgment in its favor. The Court of Appeals affirmed, holding that the city's action was not preempted. 754 F.2d 830 (1985). The court felt that, when the activity regulated is only a peripheral or incidental concern of labor policy, traditional municipal regulation is not preempted. The court found nothing in the record to suggest that the city's nonrenewal decision "was not concerned with transportation." Id. at 833. Moreover to avoid undue restriction of local regulation, "only actions seeking to directly alter the substantive outcome of a labor dispute should be preempted." Here, the city had not attempted to dictate the terms of the agreement, but had "merely insisted upon resolution of the dispute as a condition to franchise renewal." Ibid. The Court of Appeals also rejected Golden State's due Page 475 U. S. 613 process claim. Id. at 833-834. [Footnote 2] Because of our concern about the propriety of the grant of summary judgment for the city in this factual and labor context, we granted certiorari. 472 U.S. 1016 (1985). [Footnote 3]IIIALast Term, in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985), we again noted: "The Court has articulated two distinct NLRA preemption principles." Id. at 471 U. S. 748. See also Belknap, Inc. v. Hale, 463 U. S. 491, 463 U. S. 498-499 (1983). The first, the so-called Garmon preemption, see San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), prohibits States from regulating "activity that the NLRA protects, prohibits, or arguably protects or prohibits." Wisconsin Dept. of Industry v. Gould Inc., ante at 475 U. S. 286. The Garmon rule is intended to preclude state interference with the National Labor Relations Board's interpretation and active enforcement of the "integrated scheme of regulation" established by the NLRA. Page 475 U. S. 614 Ante at 475 U. S. 289. See Metropolitan Life Ins. Co. v. Massachussetts, 471 U.S. at 471 U. S. 748, and n. 26.This case, however, concerns the second preemption principle, the so-called Machinists preemption. [Footnote 4] See Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S. 132 (1976). This precludes state and municipal regulation "concerning conduct that Congress intended to be unregulated." Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. at 471 U. S. 749. [Footnote 5] Although the labor-management relationship is structured by the NLRA, certain areas intentionally have been left "to be controlled by the free play of economic forces.'" Machinists, 427 U.S. at 427 U. S. 140, quoting NLRB v. Nash-Finch Co., 404 U. S. 138, 404 U. S. 144 (1971). The Court recognized in Machinists that "`Congress has been rather specific when it has come to outlaw particular economic weapons,'" 427 U.S. at 427 U. S. 143, quoting NLRB v. Insurance Agents, 361 U. S. 477, 361 U. S. 498 (1960), and that Congress' decision to prohibit certain forms of economic pressure while leaving others unregulated represents an intentional balance "`between the uncontrolled power of management and labor to further their respective interests.'" Machinists, 427 U.S. at 427 U. S. 146, quoting Teamsters v. Morton, 377 U. S. 252, 377 U. S. 258-259 (1964). States are therefore prohibited from imposing additional restrictions on economic weapons of self-help, Page 475 U. S. 615 such as strikes or lockouts, see 427 U.S. at 427 U. S. 147, unless such restrictions presumably were contemplated by Congress."Whether self-help economic activities are employed by employer or union, the crucial inquiry regarding preemption is the same: whether 'the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act's processes.'"Id. at 427 U. S. 147-148, quoting Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 394 U. S. 380 (1969).BThere is no question that the Teamsters and Golden State employed permissible economic tactics. The drivers were entitled to strike -- and to time the strike to coincide with the Council's decision -- in an attempt to apply pressure on Golden State. See NLRB v. Insurance Agents, 361 U.S. at 361 U. S. 491, 361 U. S. 496. And Golden State was entirely justified in using its economic power to withstand the strike in an attempt to obtain bargaining concessions from the union. See Belknap, Inc. v. Hale, 463 U.S. at 463 U. S. 493, 463 U. S. 500 (employer has power to hire replacements during an economic strike); American Ship Building Co. v. NLRB, 380 U. S. 300, 380 U. S. 318 (1965) (at bargaining impasse, employer may use lockout solely to bring economic pressure on union).The parties' resort to economic pressure was a legitimate part of their collective bargaining process. Machinists, 427 U.S. at 427 U. S. 144. But the bargaining process was thwarted when the city in effect imposed a positive durational limit on the exercise of economic self-help. The District Court found that the Council had conditioned the franchise on a settlement of the labor dispute by March 31. We agree with the Court of Appeals that this finding is amply supported by the record. [Footnote 6] The city's insistence on a settlement is preempted Page 475 U. S. 616 if the city "[entered] into the substantive aspects of the bargaining process to an extent Congress has not countenanced.'" Machinists, 427 U.S. at 427 U. S. 149, quoting NLRB v. Insurance Agents, 361 U.S. at 361 U. S. 498.That such a condition -- by a city or the National Labor Relations Board -- contravenes congressional intent is demonstrated by the language of the NLRA and its legislative history. The NLRA requires an employer and a union to bargain in good faith, but it does not require them to reach agreement. § 8(d), as amended, 29 U.S.C. § 158(d) (duty to bargain in good faith "does not compel either party to agree to a proposal or require the making of a concession"); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 45 (1937) ("The theory of the Act is that free opportunity for negotiation . . . may bring about the adjustments and agreements which the Act in itself does not attempt to compel").The Act leaves the bargaining process largely to the parties. See H. K Porter Co. v. NLRB, 397 U. S. 99, 397 U. S. 103 (1970). It does not purport to set any time limits on negotiations or economic struggle. Instead, the Act provides a framework for the negotiations; it "is concerned primarily with establishing an equitable process for determining terms and conditions of employment." Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. at 471 U. S. 753. See also § 1, as amended, of the NLRA, 29 U.S.C. § 151 (Act achieves Page 475 U. S. 617 national policy "by encouraging the practice and procedure of collective bargaining").The legislative history, too, makes clear that the Act and the National Labor Relations Board were intended to facilitate bargaining between the parties. The Senate Report states:"Disputes about wages, hours of work, and other working conditions should continue to be resolved by the play of competitive forces. . . . This bill in no respect regulates or even provides for supervision of wages or hours, nor does it establish any form of compulsory arbitration."S.Rep. No. 573, 74th Cong., 1st Sess., 2 (1935). Senator Wagner, sponsor of the NLRA, said that the Board would not usurp the role of free collective action. See 79 Cong.Rec. 6184 (1935). See also id. at 7574 (Sen. Wagner affirming that the Act encourages "voluntary settlement of industrial disputes").Protecting the free use of economic weapons during the course of negotiations was the rationale for this Court's findings of preemption in Machinists and in its predecessor, Teamsters v. Morton, 377 U. S. 252 (1964). In some areas of labor relations that the NLRA left unregulated, we have concluded that Congress contemplated state regulation. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. at 471 U. S. 754-758; New York Tel. Co. v. New York Labor Dept., 440 U. S. 519, 440 U. S. 540-544 (1979) (plurality opinion); id. at 440 U. S. 547 and 440 U. S. 549 (opinions concurring in result and concurring in judgment). Los Angeles, however, has pointed to no evidence of such congressional intent with respect to the conduct at issue in this case. [Footnote 7]Instead, the city argues that it is somehow immune from labor preemption solely because of the nature of its conduct. [Footnote 8] Page 475 U. S. 618 The city contends it was not regulating labor, but simply exercising a traditional municipal function in issuing taxicab franchises. We recently rejected a similar argument to the effect that a State's spending decisions are not subject to preemption. See Wisconsin Dept. of Industry v. Gould Inc., ante at 475 U. S. 287-288. Cf. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. at 471 U. S. 754-758. Similarly, in the transportation area, a State may not ensure uninterrupted service to the public by prohibiting a strike by the unionized employees of a privately owned local transit company. See Bus Employees v. Missouri, 374 U. S. 74 (1963); cf. Bus Employees v. Wisconsin Employment Relations Board, 340 U. S. 383, 340 U. S. 391-392 (1951). Nor in this case may a city restrict a transportation employer's ability to resist a strike. Although, in each Bus Employees case, the employees' right to strike was protected by § 7, as amended, of the NLRA, 29 U.S.C. § 157, "[r]esort to economic weapons, should more peaceful measures not avail,' is the right of the employer as well as the employee," and "the State may not prohibit the use of such weapons . . . any more than in the case of employees." Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. at 427 U. S. 147, quoting American Ship Building Co. v. NLRB, 380 U.S. at 380 U. S. 317. "[F]ederal law intended to leave the employer and the union free to use their economic weapons against one another." Belknap, Inc. v. Hale, 463 U.S. at 463 U. S. 500. We hold, therefore, that the city was preempted from conditioning Golden State's franchise renewal on the settlement of the labor dispute. Page 475 U. S. 619The city, however, contends that it was in a no-win situation: having not renewed the franchise, and thus permitting it to lapse, it stands accused of favoring the union; had it granted the renewal, it would have been accused of favoring the employer. But the question is not whether the city's action favors one side or the other. Our holding does not require a city to renew or to refuse to renew any particular franchise. We hold only that a city cannot condition a franchise renewal in a way that intrudes into the collective bargaining process.C"Free collective bargaining is the cornerstone of the structure of labor-management relations carefully designed by Congress when it enacted the NLRA."New York Tel. Co. v. New York Labor Dept., 440 U.S. at 440 U. S. 551 (POWELL, J., dissenting). Even though agreement is sometimes impossible, government may not step in and become a party to the negotiations. See H. K. Porter Co. v. NLRB, 397 U.S. at 397 U. S. 103-104. A local government, as well as the National Labor Relations Board, lacks the authority to""introduce some standard of properly balanced' bargaining power" . . . or to define "what economic sanctions might be permitted negotiating parties in an `ideal' or `balanced' state of collective bargaining."" Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. at 427 U. S. 149-150, quoting NLRB v. Insurance Agents, 361 U. S. 477, 361 U. S. 497-500 (1960). The settlement condition imposed by the Los Angeles City Council, as we read the summary judgment record before us, destroyed the balance of power designed by Congress, and frustrated Congress' decision to leave open the use of economic weapons.In this case, the District Court and the Court of Appeals found that the city had conditioned the renewal of Golden State's franchise on the company's reaching a labor agreement with the Teamsters, but held that the city's action was not preempted by Machinists. This was error as a matter of law. Whether summary judgment should have been entered Page 475 U. S. 620 for Golden State is a matter we do not decide, for petitioner made no motion for summary judgment on the issue of preemption.The Court of Appeals' judgment affirming the summary judgment entered for the city is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtGolden State Transit Corp. v. Los Angeles, 475 U.S. 608 (1986)Golden State Transit Corp. v. City of Los AngelesNo. 84-1644Argued December 4, 1985Decided April 1, 1986475 U.S. 608SyllabusWhile petitioner's application to renew its franchise to operate taxicabs in respondent city of Los Angeles was pending, petitioner's drivers went on strike. The City Council then conditioned renewal of the franchise on settlement of the labor dispute by a certain date. When the dispute was not settled by that date, the franchise expired. Petitioner filed suit in Federal District Court, alleging, inter alia, that the city's action was preempted by the National Labor Relations Act (NLRA). The District Court granted summary judgment for the city, and the Court of Appeals affirmed.Held: The city's action in conditioning petitioner's franchise renewal on the settlement of the labor dispute is preempted by the NLRA. Pp. 475 U. S. 613-620.(a) The NLRA preemption principle precluding state and municipal regulation concerning conduct that Congress intended to be unregulated, Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S. 132, is applicable here. Under this principle, States and municipalities are prohibited from imposing restrictions on economic weapons of self-help, unless such restrictions were contemplated by Congress. Pp. 475 U. S. 613-615.(b) Both the language of the NLRA and its legislative history demonstrate that the city's action contravened congressional intent. Pp. 475 U. S. 615-619.(c) The settlement condition imposed by the City Council destroyed the balance of power designed by Congress in the NLRA, and frustrated Congress' decision to leave open the use of economic weapons. Pp. 475 U. S. 619-620.754 F.2d 830, reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. REHNQUIST, J., filed a dissenting opinion, post, p. 475 U. S. 620. Page 475 U. S. 609

1967_178

MR. JUSTICE BLACK delivered the opinion of the Court.In its insurance operations, respondent United Insurance Company uses "debit agents" whose primary functions are collecting premiums from policyholders, preventing the lapsing of policies, and selling such new insurance as time allows. The Insurance Workers International Union, having won a certification election, seeks to represent the debit agents, and the question before us is whether these agents are "employees" who are protected by the National Labor Relations Act or "independent contractors" who are expressly exempted from the Act. [Footnote 1] Respondent company refused to recognize the Union, claiming that its debit agents were independent contractors, rather than employees. In the ensuing unfair labor practice proceeding, the National Labor Relations Board held that these agents were employees, and ordered the company to bargain collectively with the Union. 154 N.L.R.B. 38. On appeal, the Court of Appeals found that the debit agents were independent contractors and refused to enforce the Board's order. 371 F.2d 316 (C.A. 7th Cir.). The importance of the question in the context involved to the administration of the Page 390 U. S. 256 National Labor Relations Act prompted us to grant the petitions of the Board and the Union for certiorari. 389 U.S. 815.At the outset, the critical issue is what standard or standards should be applied in differentiating "employee" from "independent contractor" as those terms are used in the Act. Initially this Court held in NLRB v. Hearst Publications, 322 U. S. 111, that"Whether . . . the term 'employee' includes [particular] workers . . . must be answered primarily from the history, terms and purposes of the legislation."322 U.S. at 322 U. S. 124. Thus, the standard was one of economic and policy considerations within the labor field. Congressional reaction to this construction of the Act was adverse, and Congress passed an amendment specifically excluding "any individual having the status of an independent contractor" from the definition of "employee" contained in § 2(3) of the Act. The obvious purpose of this amendment was to have the Board and the courts apply general agency principles in distinguishing between employees and independent contractors under the Act. [Footnote 2] And both petitioners and respondents agree that the proper standard here is the law of agency. Thus, there is no doubt that we should apply the common law agency test here in distinguishing an employee from an independent contractor.Since agency principles are to be applied, some factual background showing the relationship between the debit agents and respondent company is necessary. These basic facts are stated in the Board's opinion, and will be very briefly summarized here. Respondent has district offices in most States which are run by a manager who usually has several assistant managers under him. Page 390 U. S. 257 Each assistant manager has a staff of four or five debit agents, and the total number of such agents connected with respondent company is approximately 3,300. New agents are hired by district managers, after interviews; they need have no prior experience, and are assigned to a district office under the supervision of an assistant district manager. Once he is hired, a debit agent is issued a debit book which contains the names and addresses of the company's existing policyholders in a relatively concentrated geographic area. This book is company property, and must be returned to the company upon termination of the agent's service. The main job of the debit agents is to collect premiums from the policyholders listed in this book. They also try to prevent the lapsing of policies and sell new insurance when time allows. The company compensates the agents as agreed to in the "Agent's Commission Plan" under which the agent retains 20% of his weekly premium collections on industrial insurance and 10% from holders of ordinary life, and 50% of the first year's premiums on new ordinary life insurance sold by him. The company plan also provides for bonuses and other fringe benefits for the debit agents, including a "vacation with pay" plan and participation in a group insurance and profit-sharing plan. At the beginning of an agent's service, an assistant district manager accompanies the new agent on his rounds to acquaint him with his customers and show him the approved collection and selling techniques. The agent is also supplied with a company "Rate Book," which the agent is expected to follow, containing detailed instructions on how to perform many of his duties. An agent must turn in his collected premiums to the district office once a week, and also file a weekly report. At this time, the agent usually attends staff meetings for the discussion of the latest company sales techniques, company directives, etc. Complaints against an agent are investigated Page 390 U. S. 258 by the manager or assistant manager, and, if well founded, the manager talks with the agent to "set him straight." Agents who have poor production records, or who fail to maintain their accounts properly or to follow company rules, are "cautioned." The district manager submits a weekly report to the home office, specifying, among other things, the agents whose records are below average; the amounts of their debits; their collection percentages, arrears, and production, and what action the district manager has taken to remedy the production "letdown." If improvement does not follow, the company asks such agents to "resign," or exercises its rights under the "Agent's Commission Plan" to fire them "at any time."There are innumerable situations which arise in the common law where it is difficult to say whether a particular individual is an employee or an independent contractor, [Footnote 3] and these cases present such a situation. On the one hand, these debit agents perform their work primarily away from the company's offices and fix their own hours of work and work days, and clearly they are not as obviously employees as are production workers in a factory. On the other hand, however, they do not have the independence, nor are they allowed the initiative and decisionmaking authority, normally associated with an independent contractor. In such a situation as this, there is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed, with no one factor being decisive. What is important is that the total factual context is assessed in light of the pertinent common law agency principles. When this is done, the decisive factors in these cases become the following: Page 390 U. S. 259 the agents do not operate their own independent businesses, but perform functions that are an essential part of the company's normal operations; they need not have any prior training or experience, but are trained by company supervisory personnel; they do business in the company's name with considerable assistance and guidance from the company and its managerial personnel, and ordinarily sell only the company's policies; the "Agent's Commission Plan" that contains the terms and conditions under which they operate is promulgated and changed unilaterally by the company; the agents account to the company for the funds they collect under an elaborate and regular reporting procedure; the agents receive the benefits of the company's vacation plan and group insurance and pension fund, and the agents have a permanent working arrangement with the company under which they may continue as long as their performance is satisfactory. Probably the best summation of what these factors mean in the reality of the actual working relationship was given by the chairman of the board of respondent company in a letter to debit agents about the time this unfair labor practice proceeding arose:"if any agent believes he has the power to make his own rules and plan of handling the company's business, then that agent should hand in his resignation at once, and if we learn that said agent is not going to operate in accordance with the company's plan, then the company will be forced to make the agents final [sic].""The company is going to have its business managed in your district the same as all other company districts in the many states where said offices are located. The other company officials and I have managed the United Insurance Company of America's Page 390 U. S. 260 operations for over 45 years very successfully, and we are going to continue the same successful plan of operation, and we will not allow anyone to interfere with us and our successful plan."The Board examined all of these facts and found that they showed the debit agents to be employees. This was not a purely factual finding by the Board, but involved the application of law to facts -- what do the facts establish under the common law of agency: employee or independent contractor? It should also be pointed out that such a determination of pure agency law involved no special administrative expertise that a court does not possess. On the other hand, the Board's determination was a judgment made after a hearing with witnesses and oral argument had been held, and on the basis of written briefs. Such a determination should not be set aside just because a court would, as an original matter, decide the case the other way. As we said in Universal Camera Corp. v. NLRB, 340 U. S. 474,"Nor does it [the requirement for canvassing the whole record] mean that, even as to matters not requiring expertise, a court may displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo."340 U.S. at 340 U. S. 488. Here, the least that can be said for the Board's decision is that it made a choice between two fairly conflicting views, and, under these circumstances, the Court of Appeals should have enforced the Board's order. It was error to refuse to do so.Reversed

U.S. Supreme CourtNLRB v. United Ins. Co. of America, 390 U.S. 254 (1968)National Labor Relations Board v.United Insurance Co. of AmericaNo. 178Argued January 23-24, 1968Decided March 6, 1968*390 U.S. 254SyllabusPetitioner insurance workers union seeks to represent respondent insurance company's "debit agents." The company refused to recognize the union, claiming that the agents were independent contractors, rather than employees. The National Labor Relations Board (NLRB), in the ensuing unfair labor practice proceeding, determined under the common law of agency that the agents were employees. It found that the agents do not operate their own independent businesses, but perform functions that are an essential part of the company's normal operations; are trained by company supervisory personnel; do business in the company's name and ordinarily sell only the company's policies; operate under terms and conditions established and changed unilaterally by the company; account for funds under strict company procedures; receive the benefit of the company's vacation plan and group insurance and pension fund, and have a permanent working arrangement under which they may continue with the company as long as their performance is satisfactory. The Court of Appeals refused to enforce the NLRB's order.Held: The NLRB's determination that the agents were company employees, and not independent contractors, represented a choice between two fairly conflicting views, and its order should have been enforced by the Court of Appeals. Pp. 390 U. S. 256-260.371 F.2d 316, reversed. Page 390 U. S. 255

1962_16

MR. JUSTICE HARLAN delivered the opinion of the Court.This case is here for the second time in consequence of the remand that was ordered at the 1957 Term. United States v. Shotwell Mfg. Co., 355 U. S. 233.In 1953, petitioners were convicted after a jury trial in the United States District Court for the Northern District of Illinois of willful attempted evasion of federal income taxes of the Shotwell Manufacturing Company for the years 1945 and 1946. Int.Rev.Code of 1939, § 145(b), 53 Stat. 63. The individual petitioners, Cain and Sullivan, were officers of Shotwell, a candy manufacturer. The charge was that the company's tax returns for these years had not reported substantial income, received from one Lubben, on sales of candy above OPA (Office of Price Administration) ceiling prices -- so-called "black market" sales.On appeal, the convictions were reversed and a new trial ordered by a divided Court of Appeals on the ground that the District Court should have ordered suppressed certain evidence, used at the trial, which petitioners had furnished the Government in reliance on the Treasury's then Page 371 U. S. 344 "voluntary disclosure policy." 225 F.2d 394. In substance, that policy amounted to a representation by the Treasury that delinquent taxpayers could escape possible criminal prosecution by disclosing their derelictions to the taxing authorities before any investigation of them had commenced. See 355 U.S. at 355 U. S. 235, note 2; pp. 371 U. S. 348-352, infra.The evidence held subject to suppression consisted of tabulations purporting to show the amount of unreported black market income received by Shotwell from Lubben during the two tax years in question, and offsetting black market payments by Shotwell for the purchase of raw materials which almost matched the black market receipts. Concluding that petitioners' disclosure had been a genuine one (contrary to the District Court's finding), and that it had been made before any investigation of Shotwell's tax returns had started, and was thus timely (a question not reached by the District Court, 355 U.S. at 366 U. S. 236), the Court of Appeals held that the disclosure was valid, and that the Government could not, consistently with the Fifth Amendment, use the disclosed material at petitioners' trial.The matter then came here for review on the Government's petition for certiorari, during the pendency of which the then Solicitor General moved to remand the case to the District Court for further proceedings on the suppression issue -- an issue which both sides recognized had properly been one for the court, and not for the jury. 355 U.S. at 355 U. S. 244; see United States v. Lustig, 163 F.2d 85, 88-89, cert. denied, 332 U.S. 775. The motion was based on the claim that newly discovered evidence in possession of the Government would show that the Court of Appeals' decision as to the bona fides and timeliness of the alleged disclosure was the product of a tainted record, involving an attempt on the part of these petitioners "to perpetrate a fraud upon the courts." 355 Page 371 U. S. 345 U.S. at 355 U. S. 241. Without reaching any of the questions decided by the Court of Appeals, we vacated the judgment of that court and remanded the case to the District Court with instructions to reexamine the disclosure episode in light of the parties' additional evidence and that already in the record, to decide anew the suppression issue, and, depending upon its decision, to enter a new judgment of conviction or an order for a new trial, as the case might be. 355 U.S. at 355 U. S. 245-246.The District Court, after a full evidentiary hearing, again denied suppression, finding that "no honest, bona fide voluntary disclosure" had ever been made, and that fraud had "permeated" the petitioners' disclosure showing at both suppression hearings and at the trial. [Footnote 1] These ultimate findings rested primarily on subsidiary findings that, although Shotwell's black market receipts had not, in themselves, been misrepresented, the claim that they had been almost entirely offset by payments for the purported purchase of black market supplies was false -- the truth being (contrary to what petitioners Cain and Sullivan had testified in the earlier proceedings) that most of Shotwell's black market receipts, "totaling between three and four hundred thousand dollars," had found their way into the pockets of Cain, Sullivan and Huebner, all Shotwell officers. The District Court also denied motions for a new trial, and overruled challenges, made for the first time in July, 1957, to the original grand and petit jury arrays.The Court of Appeals, sustaining these findings and rulings [Footnote 2] and overruling other challenges to the remand Page 371 U. S. 346 and original trial proceedings, has now affirmed these convictions, 287 F.2d 667. The case is again before us on certiorari. 368 U.S. 946. We affirm the judgment below.IThe principal contention is that, notwithstanding the finding that Shotwell's disclosure of black market receipts was fraudulently contrived, the Self-Incrimination Clause of the Fifth Amendment barred the Government's trial use of any of the disclosed material. [Footnote 3]Preliminarily we reject as specious petitioners' suggestion that the District Court's finding of fraud is infirm because the falsity of Shotwell's black market payments, on which that finding principally rested, was an immaterial consideration in view of the Commissioner's then ruling that black market payments were not includible in the cost of goods sold -- in other words, that Shotwell's tax liability would have remained the same whether or not such expenditures were truthfully represented. [Footnote 4] The fact is that, at the time the disclosure was made, the Commissioner's ruling was even then in litigation, and, some six months thereafter, was rejected by the Tax Court, Sullenger v. Commissioner, 11 T.C. 1076, as it also was later by several of the Courts of Appeals. See Commissioner of Internal Revenue v. Weisman, 197 F.2d 221 (C.A.1st Cir.); Commissioner of Internal Revenue v. Guminski, 198 F.2d 265 (C.A.5th Cir.); Commissioner of Internal Revenue v. Gentry, 198 F.2d 267 (C.A.5th Cir.); Jones v. Herber, 198 F.2d 544 (C.A.10th Cir.).Indeed, the record here shows that petitioners, despite the administrative ruling, attempted to negotiate a settlement reflecting a substantial allowance of such expenditures, Page 371 U. S. 347 and that, in making their disclosure, they reserved the right to contest the ruling by way of a suit for refund, in whole or in part, of the additional taxes to be assessed in respect of the unreported black market income. Beyond this, had petitioners been able to convince the Treasury that Shotwell's failure to report the black market receipts had been due to an honest, though mistaken, belief that such income could be offset by black market expenditures, it might well have borne importantly on their liability for civil fraud penalties. Int.Rev.Code, 1939, § 293(b). [Footnote 5] In short, in making their suppression contention, petitioners cannot escape the consequences of the finding that their disclosure was fraudulent.It is, of course, a constitutional principle of long standing that the prosecution"must establish guilt by evidence independently and freely secured, and may not, by coercion, prove its charge against an accused out of his own mouth."Rogers v. Richmond, 365 U. S. 534, 365 U. S. 541. We have no hesitation in saying that this principle also reaches evidence of guilt induced from a person under a governmental promise of immunity, and, where that is the case, such evidence must be excluded under the Self-Incrimination Clause of the Fifth Amendment. See Bram v. United States, 168 U. S. 532, 168 U. S. 542-543; Hardy v. United States, 186 U. S. 224, 186 U. S. 229; Ziang Sung Wan v. United States, 266 U. S. 1, 266 U. S. 14; Smith v. United States, 348 U. S. 147, 348 U. S. 150. The controlling test is that approved in Bram:"a confession, in order to be admissible, must be free and voluntary: that is, . . . not . . . obtained by any direct or implied promises, however slight. . . ."Bram v. United States, supra, at 168 U. S. 542-543. Evidence so procured can no more be regarded Page 371 U. S. 348 as the product of a free act of the accused than that obtained by official physical or psychological coercion. But, in this instance, we find nothing in the circumstances under which the challenged evidence was procured that would run afoul of these jealously guarded constitutional principles.A coerced confession claim, whether founded on a promise of immunity or otherwise, always involves this question: did the governmental conduct complained of "bring about" a confession "not freely self-determined"? Rogers v. Richmond, supra, at 365 U. S. 544. Under any tenable view of the present situation, we think it clearly did not.The inapplicability here of the constitutional principles relied on by petitioners inheres in both the essential character of this offer of immunity and the particular response of these petitioners to that offer. The offer was nothing more than part of a broad administrative policy designed to accomplish the expeditious and economical collection of revenue by enlisting taxpayer cooperation in clearing up as yet undetected underpayments of taxes, thereby avoiding the delays and expense of investigation and litigation. The Treasury's "voluntary disclosure policy," addressed to the public generally, and not to particular individuals, was not an invitation aimed at extracting confessions of guilt from particular known or suspected delinquent taxpayers. Petitioners' position is not like that of a person, accused or suspected of crime, to whom a policeman, a prosecutor, or an investigating agency has made a promise of immunity or leniency in return for a statement. In those circumstances, an inculpatory statement would be the product of inducement, and thus not an act of free will. No such inference, however, is allowable in the context of what happened here. Petitioners' response, it is true, might not have been made in the absence of the Treasury's offer, but that, in itself, is not the test. The voluntary disclosure policy left them wholly Page 371 U. S. 349 free to disclose or not, as they pleased. In choosing to act as they did, petitioners, far from being the victims of that policy, were volunteers for its benefits.Moreover, petitioners were not simply volunteers. Plainly, the offer of immunity contained in the voluntary disclosure policy presupposed, at the very least, that a delinquent taxpayer would make a full "clean breast of things." 355 U.S. at 355 U. S. 235, note 2. Nothing less satisfies the basic reason for the policy -- "taking a sensible step to produce the revenue called for by law with the minimum cost of investigation" [Footnote 6] (emphasis added) -- and its most recent official expression at the time this disclosure was made. [Footnote 7] And the record indeed shows that petitioners could not have understood otherwise. [Footnote 8] Given these factors, the matter then parses down to this: granting that, in deciding whether to disclose or run the risk of prosecution, Page 371 U. S. 350 petitioners were initially justified in relying on the Treasury's general offer of immunity, once a fraudulent disclosure had been determined upon, they must be deemed to have recognized that such offer had, in effect, been withdrawn as to them or, amounting to the same thing, that they were no longer entitled to place reliance on it. Petitioners are thus, in legal effect, left in no better position than they would have been had the Treasury formally withdrawn its offer of immunity before their disclosure figures were furnished. The case, then, is not merely one of volunteers, but also one in which the facts disclosed were deliberately misrepresented. Under no acceptable stretch of the Bram test can petitioners' disclosure in these circumstances be regarded as the product of unlawful inducement. [Footnote 9] Its admission into evidence did not offend the Self-Incrimination Clause of the Fifth Amendment. [Footnote 10] Page 371 U. S. 351Finally, relevant cases in the lower federal courts confirm the view that must be reached on principle. In the comparable situation of a disclosure by a taxpayer made only after he knew an investigation of his tax returns had commenced, such courts have consistently, and correctly, we think, refused to suppress the Government's use of disclosed evidence on the ground that the disclosure could not have been induced by the offer of immunity where the offer had lapsed. United States v. Lustig, 163 F.2d 85, 88-89 (C.A.2d Cir.), cert. denied, 332 U.S. 775; White v. United States, 194 F.2d 215, 217 (C.A.5th Cir.), cert. denied, 343 U.S. 930; Bateman v. United States, 212 F.2d 61, 65-66 (C.A.9th Cir.) (suppression also denied because disclosure not "full and complete"); United States v. Weisman, 78 F. Supp. 979 (D.C.Mass.). Similarly a dishonest disclosure cannot be deemed to have been so induced.Petitioners rely on Rex v. Barker, [1941] 2 K.B. 381, 3 All Eng. 33 (more fully reported there), a decision of the King's Bench Division holding inadmissible in a criminal trial documents, in part fraudulent, which the defendant had produced under a similar British disclosure policy. But that case does not support their position. For, though the defendant there had first made only a partial and misleading disclosure, he had then followed it up with a full and honest one, after further discussions with the Inland Revenue and in reliance on its disclosure policy. In the case before us, no full and honest disclosure was ever made. Page 371 U. S. 352Since no element of coercion or inducement, in any true sense of those terms, attended petitioners' disclosure, no inroad whatever upon constitutional rights is wrought by our rejection of this suppression claim. On the contrary, to sustain the claim would amount to turning an important constitutional principle upside down. For what we have here is not a case of incriminatory evidence having been induced by the Government, but one in which petitioners attempted to hoodwink the Government into what would have been a flagrant misapplication of its voluntary disclosure policy.IIClaiming that it appeared at the second suppression hearing that Lubben, whose transactions with Shotwell formed the basis of the charges in the indictment, had testified falsely at the trial respecting the amount of his black market payments, petitioners contend that the District Court should have ordered a new trial of the entire case. The Court of Appeals made short shrift of this contention (287 F.2d at 675), and we too find no substance in it.The cornerstone of petitioners' argument is a statement made by the District Court in the course of its suppression opinion:". . . that Lubben may have exaggerated the amounts of the payments that he and his confederates made to Shotwell is entirely probable."This statement is sought to be portrayed as a euphemism for a finding that Lubben's trial testimony was perjurious. Were that so, a new trial might well be in order, as the Government acknowledges, for Lubben was undoubtedly a crucial government witness. But the record both demonstrates the hollowness of that contention and affords no other basis for disturbing the conclusions of the two lower courts that these petitioners are not entitled to a new trial. Page 371 U. S. 353Far from constituting a finding of perjury, the District Court's remark respecting Lubben's trial testimony was nothing more than part of a general observation that the passage of time and the absence of any contemporary records of the Shotwell-Lubben transactions made difficult the pinpointing of the exact amount of Shotwell's unreported black market income and the amount thereof that was personally kept by one or another of the Shotwell officers. The suppression record makes clear that the District Court did not initially address itself to the question whether Lubben's trial testimony was perjurious, and that it was not asked to do so until after its opinion denying suppression had come down.To the contrary, the District Court had not considered it important to determine the precise amounts of Lubben's black market payments or of the moneys that were retained by Huebner, Sullivan, and Cain. It was enough that "the evidence is overwhelmingly clear that not only were" some $300,000 to $400,000 of black market payments made to Shotwell by Lubben in the period 1944-1946, but also that "the greater part" of this money "was appropriated by Cain, Huebner and Sullivan for their own personal use." [Footnote 11] Page 371 U. S. 354Petitioners' motion for a new trial, and its denial, followed the filing of the suppression opinion. In their argument before the District Court, defense counsel urged, among other things, that the court had "euphemistically" found Lubben's trial testimony to have been perjurious, and, more broadly, that the second suppression hearing and trial versions of the disclosure episode differed so widely as to entitle petitioners to a new jury trial of the main case. [Footnote 12] In denying the motion, the district judge observed that he had simply said in his suppression opinion Page 371 U. S. 355 "that the amount that Lubben said he paid may have been exaggerated," and that he would grant a new trial if he thought there "was a miscarriage of justice," but that he did "not so find." A careful study of the record satisfies us that the District Court did not abuse its discretion in thus ruling.Petitioners' argument on this score centers largely around the variances they claim to find between the testimony of Huebner (who had not testified in the earlier proceedings) at the second suppression hearing and Lubben's trial testimony as to the amount of Shotwell's black market receipts. Huebner testified to some 16 or 17 occasions on which black market money had been received from Lubben, all of which he said had been divided between himself, Cain, and Sullivan. These payments aggregated $272,000 in 1945 and 1946, the years involved in the indictment, as compared with $454,000, Lubben's total trial figure. [Footnote 13] But the indicated disparity of $182,000 is more apparent than real, for, apart from the fact that Huebner was not the only person in the Shotwell organization who had received Lubben money, and the fact that he was never asked to say whether these were Page 371 U. S. 356 the only Lubben payments he himself had received, there must be added to this $272,000 total some $125,000 to $150,000 that the defense asserted had gone into a "corn box" (safe deposit box), and was actually used for the purchase of black market supplies of corn. [Footnote 14] Hence, viewing things most favorably to the petitioners, the variance of which they make so much is, at best, no more than from $32,000 to $57,000. [Footnote 15]We think the District Court was fully justified in finding that Huebner's testimony"at the supplemental hearing is reasonably consistent and compatible with the testimony given by the government witnesses at the trial regarding these [black market] payments,"and that it "tends to corroborate Lubben's testimony." [Footnote 16] Such findings, made as they were in connection with what, in effect, was a motion for a new trial on newly discovered evidence, must "remain undisturbed except for most extraordinary Page 371 U. S. 357 circumstances." United States v. Johnson, 327 U. S. 106, 327 U. S. 111. We find none here. This is not a case, as were Mesarosh v. United States, 352 U. S. 1, and Communist Party v. Subversive Activities Control Board, 351 U. S. 115, where a conviction may be regarded or is conceded to have rested on perjured testimony. [Footnote 17] To overturn the denial of a new trial in this case by the two lower courts would be tantamount to saying that any subsequently discovered inaccuracy in the testimony of an important trial witness, which might have affected his credibility in the eyes of the jury, would entitle a convicted defendant to a new trial. We cannot so hold.IIIPetitioners next argue that the remand proceedings were the product of fraud and other gross improprieties on the part of the Government, and that they should therefore be held for naught. The contention has three aspects: (1) that the Government did not disclose to this Court that the testimony of three witnesses proffered in support of its motion to remand was contrary in some respects to that which they had given, or failed to give, on previous occasions; (2) that the Government failed to establish on remand that there had been any perjury on the part of the defense at the original suppression hearing, and itself suborned three of its remand witnesses to testify falsely; and (3) that the prosecution utilized the delay occasioned by the motion to remand (355 U.S. 355 U. S. 236-237, note 6) to dragoon witnesses into testifying in support of Page 371 U. S. 358 the Government's view of things. [Footnote 18] We find no truth in any of these serious charges.The most that could possibly be claimed respecting the absence of any reference in the remand papers to prior inconsistent statements by the proffered witnesses [Footnote 19] is that it was a mistake of judgment on the part of the Government not to include such a reference. But, without minimizing the unqualified duty of scrupulous candor that rests upon government counsel in all dealings with this Court, to characterize this episode as amounting to a fraud upon the Court is, to say the least, utterly extravagant.The issue tendered by the motion to remand was, of course, not whether the Government's new evidence was true or false, but whether it warranted a reexamination of the suppression issue by the District Court. The evaluation of this evidence, including the credibility of the three witnesses in question, was, as this Court recognized (355 U.S. at 355 U. S. 241, 355 U. S. 244-245), a matter for the District Court. Page 371 U. S. 359 In these circumstances, it is understandable that the Government might have considered that, if a remand were ordered, the District Court was the appropriate forum in which to make available any impeaching material in its possession. Cf., e.g., Jencks v. United States, 353 U. S. 657; United States v. Zborowski, 271 F.2d 661. In any event, the Government having fully disclosed all such material in the trial court, and that court having taken it into account in making its findings, infra, p. 371 U.S. 360, it would be captious to hold that the failure to advert to it in this Court now vitiates the remand.Finally, as to the Government's alleged dragooning of these witnesses, it appears that, in connection with a new grand jury investigation that was conducted from April, 1956, to February, 1957, into these same black market transactions (resulting in a further indictment against these individual petitioners and others), Graflund, Huebner, and Lima, among some 64 witnesses, were called for questioning Page 371 U. S. 361 on more than one occasion. But there is nothing in this record to indicate that these repetitive appearances were oppressive or that any of their questioning was attended by improper methods of interrogation. [Footnote 22] And the District Court, after elaborate exploration, found the charges of prosecutorial overreaching baseless. [Footnote 23]We now leave the remand proceedings and turn to the only two challenges pressed here with respect to the main case itself.IVIn March, 1958, more than four years after the trial, petitioners filed amended motions attacking the grand and petit jury arrays. These motions, predicated on "newly discovered evidence," alleged that both juries were illegally constituted because the jury commissioner delegated his selection duties to one of his private employees; volunteers were permitted to serve on the juries; and the Page 371 U. S. 362 Clerk of the District Court failed to employ a selection method designed to secure a cross-section of the population.We think, as the two lower courts did, that petitioners have lost these objections by years of inaction. Rule 12(b)(2) of the Federal Rules of Criminal Procedure provides:"Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. . . . Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court, for cause shown, may grant relief from the waiver."Petitioners concede, as they must, that this Rule applies to their objection to the grand jury array, [Footnote 24] but deny that it applies to their objection to the petit jury array. On the latter point, we do not agree. In Frazier v. United States, 335 U. S. 497, 335 U. S. 503, this Court stated that a challenge to the method of selecting the petit jury panel comes too late when not made before trial. And the lower federal courts have uniformly held that an objection to the petit jury array is not timely if it is first raised after verdict. See, e.g., Hanratty v. United States, 218 F.2d 358, 359, cert. denied, 349 U.S. 928; United States v. Klock, 210 F.2d 217, 220; Higgins v. United States, 81 U.S.App.D.C. 371, 160 F.2d 222, 223, cert. denied, 331 U.S. 822; United States v. Peterson, 24 F. Supp. 470.Petitioners have not advanced any reasons for overturning this settled course of decision. Rather they argue that, when public officials violate constitutional rights by actions whose illegality is not readily noticeable Page 371 U. S. 363 by the litigants or their counsel, sufficient cause has been shown to warrant relief from application of the Rule. Ballard v. United States, 329 U. S. 187, is said to stand for the broad proposition that technical rules of procedure do not prevent this Court from considering the merits of a basic challenge to the method of jury selection.In the circumstances of this case, petitioners' contentions are without foundation. In denying the motions, the District Court found that the facts concerning the selection of the grand and petit juries were notorious and available to petitioners in the exercise of due diligence before the trial. The same method of selecting jurors in the district had been followed by the clerk and the jury commissioner for years. Inquiry as to the system employed could have been made at any time. Indeed, the acceptance of volunteers for the juries had received publicity in the newspapers, and their presence on the petit jury could have been ascertained at the time it was constituted. And Ballard lends no support to petitioners' position, for, in that case, the challenge to the jury panel had been timely made and preserved. See 329 U.S. at 329 U. S. 190.Finally, both courts below have found that petitioners were not prejudiced in any way by the alleged illegalities in the selection of the juries. Nor do petitioners point to any resulting prejudice. [Footnote 25] In Ballard, it was said (at p. 329 U. S. 195) that "reversible error does not depend on a showing of prejudice in an individual case." However, where, as here, objection to the jury selection has not been timely raised under Rule 12(b)(2), it is entirely proper to take absence of prejudice into account in determining whether a sufficient showing has been made to warrant relief from the effect of that Rule. Page 371 U. S. 364We need express no opinion on the propriety of the practices attacked. It is enough to say that we find no error in the two lower courts' holding that the objection has been lost.VPetitioner Sullivan contends that he was denied a fair trial in two respects: (1) the only specific evidence against him was an alleged admission which Lubben testified Sullivan made to him -- testimony which Lubben, it is asserted, later recanted; and (2) the trial judge's instructions allowed the jury to consider evidence that had not been admitted against him.At one point in the trial, Lubben testified that, to the best of his recollection, he had a conversation with Sullivan on or about February 14, 1946, concerning the advisability of paying the black market overages by check. According to Lubben, Sullivan asked "Are you sure this [the payment] is not appearing on your books any place?" Sullivan then proceeded to state:"Well, Dave, you know how it is. You have a place in New Jersey, a farm in New Jersey. This money I have been using in my farm. . . . I am getting a new driveway . . . put in. . . . That is the only way I can do it today, with the tax situations the way they are."When the trial resumed the following day, Lubben volunteered a correction of his previous testimony, stating that the conversation had taken place as described, but not on February 14, 1946; it had occurred, he thought, "some time around September or October of 1946." It is apparent, therefore, that the substance of the testimony was not recanted.There was, moreover, additional testimony against this petitioner. Sullivan himself admitted at the trial that he had knowledge of the Shotwell black market receipts, maintaining, however, that the money was used solely for the purchase of black market supplies. But Roeser, Page 371 U. S. 365 comptroller of Shotwell, testified that, when directed, he turned over cash moneys received from Lubben to Cain, Huebner, and Sullivan. Ericson, shipping superintendent of Shotwell in 1945 and 1946, stated that, although his memory was not clear as to the particular officials present when the devious method of shipping black market candy to Lubben was inaugurated, [Footnote 26] he would not have shipped in this way without instructions from Cain, Sullivan, or Huebner. And Sullivan's own answers on cross-examination respecting his knowledge of the necessity for keeping the Lubben black market transactions off Shotwell's books were, to say the least, highly equivocal. [Footnote 27]The foregoing evidence, coupled with Sullivan's status as executive vice-president of Shotwell and his general prominence at the policy level of the company's affairs, was amply sufficient to carry the case as to him to the jury and to support its verdict of guilt. Page 371 U. S. 366The trial judge repeatedly cautioned the jury throughout the trial that certain evidence, particularly the disclosure documents turned over to the Treasury, was not being admitted against Sullivan, and should not be considered against him. It is claimed, however, that the court's instructions nevertheless allowed the jury to consider such evidence. The allegedly erroneous portion of the charge states:"You have heard the testimony regarding Cain's alleged admission as to the falsity or incompleteness of these tax returns, and his explanation as to why, in his opinion at the time he assumed they were false and inaccurate.""There has also been received in evidence worksheets and data compiled by Mr. Busby, and certain data compiled by Mr. Cain with respect to an alleged tentative compilation of the overages, and the disposition of such receipts by Shotwell, for raw materials, and the nature and character of the disposition, which was allegedly made.""All of the testimony should be considered by you, that is, all that testimony should be considered by you in view of the circumstances, and understanding of the parties in so far as it may bear upon any intent of the parties to wilfully violate the income tax laws or their good faith, or lack of good faith in the matter."This instruction must be read in context. Shortly after it was given, the court proceeded to charge:"Any statement or act of any of the defendants not in the presence of another defendant is not binding upon the absent defendants, even though one or more of the defendants were mentioned in the conversation, nor are such matters competent evidence against any other defendant not present. I have Page 371 U. S. 367 limited, you will observe, certain evidence during the trial, from time to time, as being competent only as to certain defendant or defendants, that is, by way of example, what Mr. Huebner, or Mr. Cain may have said or done in the absence of Mr. Sullivan, would not be binding or competent as to Mr. Sullivan."This limiting instruction is clear. It must be presumed that the jury conscientiously observed it. United States v. Harris, 211 F.2d 656, 659, cert. denied, 348 U.S. 822. Surely it would have been impracticable for the trial judge, as he discussed the evidence in his final instructions, to have reminded the jury with respect to each of the many items of proof mentioned that it had been admitted only against certain named defendants and should not be considered against the others. We find no error in the charge.The judgment of the Court of Appeals as to all petitioners must beAffirmed

U.S. Supreme CourtShotwell Mfg. Co. v. United States, 371 U.S. 341 (1963)Shotwell Mfg. Co. v. United StatesNo. 16Argued October 11, 15, 1962Decided January 14, 1963371 U.S. 341SyllabusIn a jury trial in a Federal District Court, petitioners were convicted in 1953 of willfully attempting to evade federal corporate income taxes. They claim that their privilege against self-incrimination was violated by the admission of evidence obtained as a result of voluntary disclosures made by them in good faith in reliance upon the Treasury's then "voluntary disclosure policy," i.e., that delinquent taxpayers could escape possible criminal prosecution by disclosing their derelictions to the tax authorities before any investigation of them had commenced. After remand by this Court, 255 U. S. 233, the District Court held an additional full evidentiary hearing and again denied suppression of such evidence, finding that "no honest bona fide voluntary disclosure" had ever been made and that fraud had "permeated" petitioners' disclosure showing at both suppression hearings and at the trial. The District Court also denied motions for a new trial and overruled challenges, made for the first time in 1957, to the original grand jury and petit jury arrays. The Court of Appeals sustained these findings and rulings, overruled other challenges to the remand and original trial proceedings, and affirmed the convictions.Held: the judgment is affirmed. Pp. 371 U. S. 343-367.1. In view of the facts that no bona fide honest disclosure ever had been made in reliance on the "voluntary disclosure policy," and that the purported disclosure was a further effort to perpetrate a fraud on the Government, admission of the evidence so obtained did not violate petitioners' privilege against self-incrimination. Pp. 371 U. S. 346-352.(a) Rejected as specious is petitioners' suggestion that the District Court's finding of fraud is infirm because the falsity of Shotwell's black market payments, on which that finding principally rested, was an immaterial consideration in view of the Commissioner's then ruling that black market payments were not includible in the cost of goods sold. Pp. 371 U. S. 346-347. Page 371 U. S. 342(b) The Treasury's "voluntary disclosure" policy, addressed to the public generally and not to particular individuals, was not an invitation aimed at extracting confessions of guilt from particular known or suspected delinquent taxpayers, and the privilege against self-incrimination does not apply to disclosures made in reliance on that policy. Pp. 371 U. S. 347-349.(c) Even if petitioners had been initially justified in relying on the Treasury's general offer of immunity, they were no longer entitled to rely upon it when they decided to make a fraudulent disclosure. Pp. 371 U. S. 349-350.(d) What is involved here is not a case of incriminatory evidence having been induced by the Government, but one in which petitioners attempted to hoodwink the Government into what would have been a flagrant misapplication of its voluntary disclosure policy. P. 371 U. S. 352.2. The record does not support petitioners' contention that the District Court should have ordered a new trial because it appeared at the second suppression hearing that an important Government witness had testified falsely at the trial respecting the amount of his black market payments to the corporate petitioner. Pp. 371 U. S. 352-357.3. There is no truth in petitioners' charges that the remand proceedings were the product of fraud and other gross improprieties on the part of the Government, and that they should, therefore, be held for naught. Pp. 371 U. S. 357-361.4. The two lower courts correctly held that petitioners' motions attacking the grand and petit jury arrays, filed more than four years after the trial, were untimely under Federal Rule of Criminal Procedure 12 (b)(2), and their further finding that petitioners were not prejudiced in any way by the alleged illegalities in the selection of the juries supports the conclusion that a sufficient showing had not been made to warrant relief from the effect of that Rule. Pp. 371 U. S. 361-364.5. The record does not sustain the contention of petitioner Sullivan that he was denied a fair trial because (1) the only specific evidence against him was an alleged admission which a government witness testified Sullivan had made to him, and the government witness had later recanted that testimony; and (2) the trial judge's instructions allowed the jury to consider evidence that had not been admitted against him. Pp. 371 U. S. 364-367. Page 371 U. S. 343(a) There was ample evidence in the record to carry the case against Sullivan to the jury and to support its verdict of guilt. Pp. 371 U. S. 364-365.(b) There was no error in the trial judge's instructions to the jury that certain evidence was not being admitted against Sullivan, and should not be considered against him, and it must be presumed that the jury conscientiously observed such instructions. Pp. 371 U. S. 365-367.287 F.2d 667 affirmed.

1983_82-357

JUSTICE POWELL announced the judgment of the Court and delivered an opinion, in which JUSTICE BRENNAN, JUSTICE WHITE, and JUSTICE MARSHALL joined.This case presents questions as to the authority of arson investigators, in the absence of exigent circumstances or consent, to enter a private residence without a warrant to investigate the cause of a recent fire. Page 464 U. S. 289IRespondents, Raymond and Emma Jean Clifford, were arrested and charged with arson in connection with a fire at their private residence. At the preliminary examination held to establish probable cause for the alleged offense, the State introduced various pieces of physical evidence, most of which was obtained through a warrantless and nonconsensual search of the Cliffords' fire-damaged home. Respondents moved to suppress this evidence on the ground that it was obtained in violation of their rights under the Fourth and Fourteenth Amendments. That motion was denied, and respondents were bound over for trial. Before trial, they again moved to suppress the evidence obtained during the search. The trial court conducted an evidentiary hearing and denied the motion on the ground that exigent circumstances justified the search. The court certified its evidentiary ruling for interlocutory appeal, and the Michigan Court of Appeals reversed.That court held that there were no exigent circumstances justifying the search. Instead, it found that the warrantless entry and search of the Clifford residence were conducted pursuant to a policy of the Arson Division of the Detroit Fire Department that sanctioned such searches as long as the owner was not present, the premises were open to trespass, and the search occurred within a reasonable time of the fire. The Court of Appeals held that this policy was inconsistent with Michigan v. Tyler, 436 U. S. 499 (1978), and that the warrantless nonconsensual search of the Cliffords' residence violated their rights under the Fourth and Fourteenth Amendments. We granted certiorari to clarify doubt that appears to exist as to the application of our decision in Tyler. 459 U.S. 1168 (1983).IIIn the early morning hours of October 18, 1980, a fire erupted at the Clifford home. The Cliffords were out of town on a camping trip at the time. The fire was reported to the Detroit Fire Department, and fire units arrived on the Page 464 U. S. 290 scene about 5:40 a.m. The fire was extinguished and all fire officials and police left the premises at 7:04 a.m.At 8 o'clock on the morning of the fire, Lieutenant Beyer, a fire investigator with the arson section of the Detroit Fire Department, received instructions to investigate the Clifford fire. He was informed that the Fire Department suspected arson. Because he had other assignments, Lieutenant Beyer did not proceed immediately to the Clifford residence. He and his partner finally arrived at the scene of the fire about 1 p.m. on October 18.When they arrived, they found a work crew on the scene. The crew was boarding up the house and pumping some six inches of water out of the basement. A neighbor told the investigators that he had called Mr. Clifford and had been instructed to request the Cliffords' insurance agent to send a boarding crew out to secure the house. The neighbor also advised that the Cliffords did not plan to return that day. While the investigators waited for the water to be pumped out, they found a Coleman fuel can in the driveway that was seized and marked as evidence. [Footnote 1]By 1:30 p.m., the water had been pumped out of the basement and Lieutenant Beyer and his partner, without obtaining consent or an administrative warrant, entered the Clifford residence and began their investigation into the cause of the fire. Their search began in the basement, and they quickly confirmed that the fire had originated there beneath the basement stairway. They detected a strong odor of fuel throughout the basement, and found two more Coleman fuel cans beneath the stairway. As they dug through the debris, the investigators also found a crock pot with attached wires leading to an electrical timer that was plugged into an outlet Page 464 U. S. 291 a few feet away. The timer was set to turn on at approximately 3:45 a.m. and to turn back off at approximately 9 a.m. It had stopped somewhere between 4 and 4:30 a.m. All of this evidence was seized and marked.After determining that the fire had originated in the basement, Lieutenant Beyer and his partner searched the remainder of the house. The warrantless search that followed was extensive and thorough. The investigators called in a photographer to take pictures throughout the house. They searched through drawers and closets and found them full of old clothes. They inspected the rooms and noted that there were nails on the walls, but no pictures. They found wiring and cassettes for a videotape machine but no machine.Respondents moved to exclude all exhibits and testimony based on the basement and upstairs searches on the ground that they were searches to gather evidence of arson, that they were conducted without a warrant, consent, or exigent circumstances, and that they therefore were per se unreasonable under the Fourth and Fourteenth Amendments. Petitioner, on the other hand, argues that the entire search was reasonable and should be exempt from the warrant requirement.IIIIn its petition for certiorari, the State does not challenge the state court's finding that there were no exigent circumstances justifying the search of the Clifford home. Instead, it asks us to exempt from the warrant requirement all administrative investigations into the cause and origin of a fire. We decline to do so.In Tyler, we restated the Court's position that administrative searches generally require warrants. 4 36 U.S. at 436 U. S. 504-508. See Marshall v. Barlow's, Inc., 436 U. S. 307 (1978); Camara v. Municipal Court, 387 U. S. 523 (1967); See v. City of Seattle, 387 U. S. 541 (1967). We reaffirm that view again today. Except in certain carefully defined Page 464 U. S. 292 classes of cases, [Footnote 2] the nonconsensual entry and search of property are governed by the warrant requirement of the Fourth and Fourteenth Amendments. The constitutionality of warrantless and nonconsensual entries onto fire-damaged premises, therefore, normally turns on several factors: whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment; whether exigent circumstances justify the government intrusion regardless of any reasonable expectations of privacy; and, whether the object of the search is to determine the cause of fire or to gather evidence of criminal activity.We observed in Tyler that reasonable privacy expectations may remain in fire-damaged premises."People may go on living in their homes or working in their offices after a fire. Even when that is impossible, private effects often remain on the fire-damaged premises."Tyler, 436 U.S. at 436 U. S. 505. Privacy expectations will vary with the type of property, the amount of fire damage, the prior and continued use of the premises, and in some cases the owner's efforts to secure it against intruders. Some fires may be so devastating that no reasonable privacy interests remain in the ash and ruins, regardless of the owner's subjective expectations. The test essentially is an objective one: whether "the expectation [is] one that society is prepared to recognize as reasonable.'" Katz v. United States, 389 U. S. 347, 389 U. S. 361 (1967) (Harlan, J., concurring). See also Smith v. Maryland, 442 U. S. 735, 442 U. S. 739-741 (1979). If reasonable privacy interests remain in Page 464 U. S. 293 the fire-damaged property, the warrant requirement applies, and any official entry must be made pursuant to a warrant in the absence of consent or exigent circumstances.A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze. Moreover, in Tyler, we held that, once in the building, officials need no warrant to remain [Footnote 3] for "a reasonable time to investigate the cause of a blaze after it has been extinguished." 436 U.S. at 436 U. S. 510. Where, however, reasonable expectations of privacy remain in the fire-damaged property, additional investigations begun after the fire has been extinguished and fire and police officials have left the scene generally must be made pursuant to a warrant or the identification of some new exigency.The aftermath of a fire often presents exigencies that will not tolerate the delay necessary to obtain a warrant or to secure the owner's consent to inspect fire-damaged premises. [Footnote 4] Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases. Page 464 U. S. 294CIf a warrant is necessary, the object of the search determines the type of warrant required. If the primary object is to determine the cause and origin of a recent fire, an administrative warrant will suffice. [Footnote 5] To obtain such a warrant, fire officials need show only that a fire of undetermined origin has occurred on the premises, that the scope of the proposed search is reasonable and will not intrude unnecessarily on the fire victim's privacy, and that the search will be executed at a reasonable and convenient time.If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched. If evidence of criminal activity is discovered during the course of a valid administrative search, it may be seized under the "plain view" doctrine. Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 465-466 (1971). This evidence then may be used to establish probable cause to obtain a criminal search warrant. Fire officials may not, however, rely on this evidence to expand the scope of their administrative search without first making a successful showing of probable cause to an independent judicial officer.The object of the search is important even if exigent circumstances exist. Circumstances that justify a warrantless search for the cause of a fire may not justify a search to gather evidence of criminal activity once that cause has been determined. If, for example, the administrative search is justified by the immediate need to ensure against rekindling, the scope of the search may be no broader than reasonably Page 464 U. S. 295 necessary to achieve its end. A search to gather evidence of criminal activity not in plain view must be made pursuant to a criminal warrant upon a traditional showing of probable cause. [Footnote 6]The searches of the Clifford home, at least arguably, can be viewed as two separate ones: the delayed search of the basement area, followed by the extensive search of the residential portion of the house. We now apply the principles outlined above to each of these searches.IVThe Clifford home was a two-and-one-half story brick and frame residence. Although there was extensive damage to the lower interior structure, the exterior of the house and some of the upstairs rooms were largely undamaged by the fire, although there was some smoke damage. The firemen had broken out one of the doors and most of the windows in fighting the blaze. At the time Lieutenant Beyer and his partner arrived, the home was uninhabitable. But personal belongings remained, and the Cliffords had arranged to have the house secured against intrusion in their absence. Under these circumstances, and in light of the strong expectations of privacy associated with a home, we hold that the Cliffords retained reasonable privacy interests in their fire-damaged residence, and that the post-fire investigations were subject to the warrant requirement. Thus, the warrantless and nonconsensual searches of both the basement and the upstairs areas of the house would have been valid only if exigent circumstances had justified the object and the scope of each. Page 464 U. S. 296AAs noted, the State does not claim that exigent circumstances justified its post-fire searches. It argues that we either should exempt post-fire searches from the warrant requirement or modify Tyler to justify the warrantless searches in this case. We have rejected the State's first argument, and turn now to its second.In Tyler, we upheld a warrantless post-fire search of a furniture store, despite the absence of exigent circumstances, on the ground that it was a continuation of a valid search begun immediately after the fire. The investigation was begun as the last flames were being doused, but could not be completed because of smoke and darkness. The search was resumed promptly after the smoke cleared and daylight dawned. Because the post-fire search was interrupted for reasons that were evident, we held that the early morning search was "no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence." 436 U.S. at 436 U. S. 511.As the State conceded at oral argument, this case is distinguishable for several reasons. First, the challenged search was not a continuation of an earlier search. Between the time the firefighters had extinguished the blaze and left the scene and the arson investigators first arrived about 1 p.m. to begin their investigation, the Cliffords had taken steps to secure the privacy interests that remained in their residence against further intrusion. These efforts separate the entry made to extinguish the blaze from that made later by different officers to investigate its origin. Second, the privacy interests in the residence -- particularly after the Cliffords had acted -- were significantly greater than those in the fire-damaged furniture store, making the delay between the fire and the midday search unreasonable absent a warrant, consent, or exigent circumstances. We frequently have noted that privacy interests are especially strong in a private residence. [Footnote 7] Page 464 U. S. 297 These facts -- the interim efforts to secure the burned-out premises and the heightened privacy interests in the home -- distinguish this case from Tyler. At least where a homeowner has made a reasonable effort to secure his fire-damaged home after the blaze has been extinguished and the fire and police units have left the scene, we hold that a subsequent post-fire search must be conducted pursuant to a warrant, consent, or the identification of some new exigency. [Footnote 8] So long as the primary purpose is to ascertain the cause of the fire, an administrative warrant will suffice.BBecause the cause of the fire was then known, the search of the upper portions of the house, described above, could only have been a search to gather evidence of the crime of arson. Absent exigent circumstances, such a search requires a criminal warrant.Even if the midday basement search had been a valid administrative search, it would not have justified the upstairs search. The scope of such a search is limited to that reasonably necessary to determine the cause and origin of a fire, and to ensure against rekindling. As soon as the investigators determined that the fire had originated in the basement and had been caused by the crock pot and timer found beneath Page 464 U. S. 298 the basement stairs, the scope of their search was limited to the basement area. Although the investigators could have used whatever evidence they discovered in the basement to establish probable cause to search the remainder of the house, they could not lawfully undertake that search without a prior judicial determination that a successful showing of probable cause had been made. Because there were no exigent circumstances justifying the upstairs search, and it was undertaken without a prior showing of probable cause before an independent judicial officer, we hold that this search of a home was unreasonable under the Fourth and Fourteenth Amendments, regardless of the validity of the basement search. [Footnote 9]The warrantless intrusion into the upstairs regions of the Clifford house presents a telling illustration of the importance of prior judicial review of proposed administrative searches. If an administrative warrant had been obtained in this case, it presumably would have limited the scope of the proposed investigation, and would have prevented the warrantless intrusion into the upper rooms of the Clifford home. An administrative search into the cause of a recent fire does not give fire officials license to roam freely through the fire victim's private residence.VThe only pieces of physical evidence that have been challenged on this interlocutory appeal are the three empty fuel Page 464 U. S. 299 cans, the electric crock pot, and the timer and attached cord. Respondents also have challenged the testimony of the investigators concerning the warrantless search of both the basement and the upstairs portions of the Clifford home. The discovery of two of the fuel cans, the crock post, the timer and cord -- as well as the investigators' related testimony -- were the product of the unconstitutional post-fire search of the Cliffords' residence. Thus, we affirm that portion of the judgment of the Michigan Court of Appeals that excluded that evidence. One of the fuel cans was discovered in plain view in the Cliffords' driveway. This can was seen in plain view during the initial investigation by the firefighters. It would have been admissible whether it had been seized in the basement by the firefighters or in the driveway by the arson investigators. Exclusion of this evidence should be reversed.It is so ordered

U.S. Supreme CourtMichigan v. Clifford, 464 U.S. 287 (1984)Michigan v. CliffordNo. 82-357Argued October 5, 1983Decided January 11, 1984464 U.S. 287SyllabusRespondents' private residence was damaged by an early morning fire while they were out of town. Firefighters extinguished the blaze at 7:04 a.m., at which time all fire officials and police left the premises. Five hours later, a team of arson investigators arrived at the residence for the first time to investigate the cause of the blaze. They found a work crew on the scene boarding up the house and pumping water out of the basement. The investigators learned that respondents had been notified of the fire and had instructed their insurance agent to send the crew to secure the house. Nevertheless, the investigators entered the residence and conducted an extensive search without obtaining either consent or an administrative warrant. Their search began in the basement, where they found two Coleman fuel cans and a crock pot attached to an electrical timer. The investigators determined that the fire had been caused by the crock pot and timer and had been set deliberately. After seizing and marking the evidence found in the basement, the investigators extended their search to the upper portions of the house, where they found additional evidence of arson. Respondents were charged with arson and moved to suppress all the evidence seized in the warrantless search on the ground that it was obtained in violation of their rights under the Fourth and Fourteenth Amendments. The Michigan trial court denied the motion on the ground that exigent circumstances justified the search. On interlocutory appeal, the Michigan Court of Appeals found that no exigent circumstances existed, and reversed.Held: The judgment is affirmed in part and reversed in part.JUSTICE POWELL, joined by JUSTICE BRENNAN, JUSTICE WHITE, and JUSTICE MARSHALL, concluded that, where reasonable expectations of privacy remain in fire-damaged premises, administrative searches into the cause and origin of a fire are subject to the warrant requirement of the Fourth Amendment absent consent or exigent circumstances. There are especially strong expectations of privacy in a private residence, and respondents here retained significant privacy interests in their fire-damaged home. Because the warrantless search of the basement and upper areas of respondents' home was authorized neither by consent nor by exigent circumstances, the evidence seized in that search was obtained in violation of respondents' rights under the Fourth and Fourteenth Amendments, and must be suppressed. Pp. 464 U. S. 291-299. Page 464 U. S. 288(a) Where a warrant is necessary to search fire-damaged premises, an administrative warrant suffices if the primary object of the search is to determine the cause and origin of the fire, but a criminal search warrant, obtained upon a showing of probable cause, is required if the primary object of the search is to gather evidence of criminal activity. Pp. 464 U. S. 291-295.(b) The search here was not a continuation of an earlier search, and the privacy interests in the residence made the delay between the fire and the midday search unreasonable absent a warrant, consent, or exigent circumstances. Michigan v. Tyler, 436 U. S. 499, distinguished. Because the cause of the fire was known upon search of the basement, the search of the upper portions of the house could only have been a search to gather evidence of arson requiring a criminal warrant absent exigent circumstances. Even if the basement search had been a valid administrative search, it would not have justified the upstairs search, since, as soon as it had been determined that the fire originated in the basement, the scope of the search was limited to the basement area. Pp. 464 U. S. 296-298.JUSTICE STEVENS concluded that the search of respondents' home was unreasonable, in contravention of the Fourth Amendment, because the investigators made no effort to provide fair advance notice of the inspection to respondents. A nonexigent, forceful, warrantless entry cannot be reasonable unless the investigator has made some effort to give the owner sufficient notice to be present while the investigation is made. Pp. 464 U. S. 303-305.POWELL, J., announced the judgment of the Court and delivered an opinion, in which BRENNAN, WHITE, and MARSHALL, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 464 U. S. 299. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN and O'CONNOR, JJ., joined, post, p. 464 U. S. 305.

1971_71-288

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.Respondents brought this class action in the District Court seeking declaratory and injunctive relief on their claim that their rights were being invaded by the Department of the Army's alleged "surveillance of lawful and peaceful civilian political activity." The petitioners in response described the activity as"gathering by lawful means . . . [and] maintaining and using in their intelligence activities . . . information relating to potential or actual civil disturbances [or] street demonstrations."In connection with respondents' motion for a preliminary injunction and petitioners' motion to dismiss the complaint, both parties filed a number of affidavits with the District Court and presented their oral arguments at a hearing on the two motions. On the basis of the pleadings, [Footnote 1] the affidavits before the court, and the oral arguments advanced at the hearing, the Page 408 U. S. 3 District Court granted petitioners' motion to dismiss, holding that there was no justiciable claim for relief.On appeal, a divided Court of Appeals reversed, and ordered the case remanded for further proceedings. We granted certiorari to consider whether, as the Court of Appeals held, respondents presented a justiciable controversy in complaining of a "chilling" effect on the exercise of their First Amendment rights where such effect is allegedly caused not by any"specific action of the Army against them, [but] only [by] the existence and operation of the intelligence gathering and distributing system which is confined to the Army and related civilian investigative agencies."144 U.S.App.D.C. 72, 78, 444 F.2d 947, 953. We reverse.(1)There is in the record a considerable amount of background information regarding the activities of which respondents complained; this information is set out primarily in the affidavits that were filed by the parties in connection with the District Court's consideration of respondents' motion for a preliminary injunction and petitioners' motion to dismiss. See Fed.Rule Civ.Proc. 12(b). A brief review of that information is helpful to an understanding of the issues.The President is authorized by 10 U.S.C. § 331 [Footnote 2] to make use of the armed forces to quell insurrection Page 408 U. S. 4 and other domestic violence if and when the conditions described in that section obtain within one of the States. Pursuant to those provisions, President Johnson ordered Page 408 U. S. 5 federal troops to assist local authorities at the time of the civil disorders in Detroit, Michigan, in the summer of 1967 and during the disturbances that followed the assassination of Dr. Martin Luther King. Prior to the Detroit disorders, the Army had a general contingency plan for providing such assistance to local authorities, but the 1967 experience led Army authorities to believe that more attention should be given to such preparatory planning. The data-gathering system here involved is said to have been established in connection with the development of more detailed and specific contingency planning designed to permit the Army, when called upon to assist local authorities, to be able to respond effectively with a minimum of force. As the Court of Appeals observed,"In performing this type function, the Army is essentially a police force or the back-up of a local police force. To quell disturbances or to prevent further disturbances, the Army needs the same tools and, most importantly, the same information to which local police forces have access. Since the Army is sent into territory almost invariably unfamiliar to most soldiers and their commanders, their need for information is likely to be greater than that of the hometown policeman.""No logical argument can be made for compelling the military to use blind force. When force is employed, Page 408 U. S. 6 it should be intelligently directed, and this depends upon having reliable information -- in time. As Chief Justice John Marshall said of Washington, 'A general must be governed by his intelligence and must regulate his measures by his information. It is his duty to obtain correct information. . . .' So we take it as undeniable that the military, i.e., the Army, need a certain amount of information in order to perform their constitutional and statutory missions."144 U.S.App.D.C. at 77-78, 444 F.2d at 952-953 (footnotes omitted).The system put into operation as a result of the Army's 1967 experience consisted essentially of the collection of information about public activities that were thought to have at least some potential for civil disorder, the reporting of that information to Army Intelligence headquarters at Fort Holabird, Maryland, the dissemination of these reports from headquarters to major Army posts around the country, and the storage of the reported information in a computer data bank located at Fort Holabird. The information itself was collected by a variety of means, but it is significant that the principal sources of information were the news media and publications in general circulation. Some of the information came from Army Intelligence agents who attended meetings that were open to the public and who wrote field reports describing the meetings, giving such data as the name of the sponsoring organization, the identity of speakers, the approximate number of persons in attendance, and an indication of whether any disorder occurred. And still other information was provided to the Army by civilian law enforcement agencies.The material filed by the Government in the District Court reveals that Army Intelligence has field offices in various parts of the country; these offices are staffed in the aggregate with approximately 1,000 agents, 94% Page 408 U. S. 7 of whose time [Footnote 3] is devoted to the organization's principal mission, [Footnote 4] which is unrelated to the domestic surveillance system here involved.By early 1970, Congress became concerned with the scope of the Army's domestic surveillance system; hearings on the matter were held before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary. Meanwhile, the Army, in the course of a review of the system, ordered a significant reduction in its scope. For example, information referred to in the complaint as the "blacklist" and the records in the computer data bank at Fort Holabird were found unnecessary, and were destroyed, along with other related records. One copy of all the material relevant to the instant suit was retained, however, because of the pendency of this litigation. The review leading to the destruction of these records was said at the time the District Court ruled on petitioners' motion to dismiss to be a "continuing" one (App. 82), and the Army's policies at that time were represented as follows in a letter from the Under Secretary of the Army to Senator Sam J. Ervin, Chairman of the Senate Subcommittee on Constitutional Rights:"[R]eports concerning civil disturbances will be limited to matters of immediate concern to the Army -- that is, reports concerning outbreaks of violence or incidents with a high potential for violence beyond the capability of state and local police and Page 408 U. S. 8 the National Guard to control. These reports will be collected by liaison with other Government agencies and reported by teletype to the Intelligence Command. They will not be placed in a computer. . . . These reports are destroyed 60 days after publication or 60 days after the end of the disturbance. This limited reporting system will ensure that the Army is prepared to respond to whatever directions the President may issue in civil disturbance situations and without 'watching' the lawful activities of civilians."(App. 80.)In briefs for petitioners filed with this Court, the Solicitor General has called our attention to certain directives issued by the Army and the Department of Defense subsequent to the District Court's dismissal of the action; these directives indicate that the Army's review of the needs of its domestic intelligence activities has indeed been a continuing one, and that those activities have since been significantly reduced.(2)The District Court held a combined hearing on respondents' motion for a preliminary injunction and petitioners' motion for dismissal, and thereafter announced its holding that respondents had failed to state a claim upon which relief could be granted. It was the view of the District Court that respondents failed to allege any action on the part of the Army that was unlawful in itself, and further failed to allege any injury or any realistic threats to their rights growing out of the Army's actions. [Footnote 5] Page 408 U. S. 9In reversing, the Court of Appeals noted that respondents "have some difficulty in establishing visible injury":"[They] freely admit that they complain of no specific action of the Army against them. . . . There is no evidence of illegal or unlawful surveillance activities. We are not cited to any clandestine intrusion by a military agent. So far as is yet shown, the information gathered is nothing more than a good newspaper reporter would be able to gather by attendance at public meetings and the clipping of articles from publications available on any newsstand."144 U.S.App.D.C. at 78, 444 F.2d at 953. The court took note of petitioners' argument"that nothing [detrimental to respondents] has been done, that nothing is contemplated to be done, and even if some action by the Army against [respondents] were possibly foreseeable, such would not present a presently justiciable controversy."With respect to this argument, the Court of Appeals had this to say:"This position of the [petitioners] does not accord full measure to the rather unique argument advanced by appellants [respondents]. While [respondents] do indeed argue that, in the future, it is possible that Page 408 U. S. 10 information relating to matters far beyond the responsibilities of the military may be misused by the military to the detriment of these civilian [respondents], yet [respondents] do not attempt to establish this as a definitely foreseeable event, or to base their complaint on this ground. Rather, [respondents] contend that the present existence of this system of gathering and distributing information, allegedly far beyond the mission requirements of the Army, constitutes an impermissible burden on [respondents] and other persons similarly situated which exercises a present inhibiting effect on their full expression and utilization of their First Amendment rights. . . ."Id. at 79, 444 F.2d at 954. (Emphasis in original.)Our examination of the record satisfies us that the Court of Appeals properly identified the issue presented, namely, whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose. We conclude, however, that, having properly identified the issue, the Court of Appeals decided that issue incorrectly. [Footnote 6] Page 408 U. S. 11In recent years, this Court has found in a number of cases that constitutional violations may arise from the deterrent, or "chilling," effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. E.g., Baird v. State Bar of Arizona, 401 U. S. 1 (1971); Keyishian v. Board of Regents, 385 U. S. 589 (1967); Lamont v. Postmaster General, 381 U. S. 301 (1965); Baggett v. Bullitt, 377 U. S. 360 (1964). In none of these cases, however, did the chilling effect arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging. For example, the petitioner in Baird v. State Bar of Arizona had been denied admission to the bar solely because of her refusal to answer a question regarding the organizations with which she had been associated in the past. In announcing the judgment of the Court, Page 408 U. S. 12 Mr. Justice Black said that"a State may not inquire about a man's views or associations solely for the purpose of withholding a right or benefit because of what he believes."401 U.S. at 401 U. S. 7. Some of the teachers who were the complainants in Keyishian v. Board of Regents had been discharged from employment by the State, and the others were threatened with such discharge, because of their political acts or associations. The Court concluded that the State's "complicated and intricate scheme" of laws and regulations relating to teacher loyalty could not withstand constitutional scrutiny; it was not permissible to inhibit First Amendment expression by forcing a teacher to "guess what conduct or utterance" might be in violation of that complex regulatory scheme, and might thereby "lose him his position." 385 U.S. at 385 U. S. 604. Lamont v. Postmaster General dealt with a governmental regulation requiring private individuals to make a special written request to the Post Office for delivery of each individual mailing of certain kinds of political literature addressed to them. In declaring the regulation invalid, the Court said: "The addressee carries an affirmative obligation which we do not think the Government may impose on him." 381 U.S. at 381 U. S. 307. Baggett v. Bullitt dealt with a requirement that an oath of vague and uncertain meaning be taken as a condition of employment by a governmental agency. The Court said:"Those with a conscientious regard for what they solemnly swear or affirm, sensitive to the perils posed by the oath's indefinite language, avoid the risk of loss of employment, and perhaps profession, only by restricting their conduct to that which is unquestionably safe. Free speech may not be so inhibited."377 U.S. at 377 U. S. 372.The decisions in these cases fully recognize that governmental action may be subject to constitutional challenge even though it has only an indirect effect on the Page 408 U. S. 13 exercise of First Amendment rights. At the same time, however, these decisions have in no way eroded the"established principle that, to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action, he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action. . . ."Ex parte Levitt, 302 U.S. 633, 634 (1937). The respondents do not meet this test; their claim, simply stated, is that they disagree with the judgments made by the Executive Branch with respect to the type and amount of information the Army needs, and that the very existence of the Army's data-gathering system produces a constitutionally impermissible chilling effect upon the exercise of their First Amendment rights. That alleged "chilling" effect may perhaps be seen as arising from respondents' very perception of the system as inappropriate to the Army's role under our form of government, or as arising from respondents' beliefs that it is inherently dangerous for the military to be concerned with activities in the civilian sector, or as arising from respondents' less generalized yet speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents. [Footnote 7] Allegations of a subjective "chill" Page 408 U. S. 14 are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; "the federal courts established pursuant to Article III of the Constitution do not render advisory opinions." United Public Workers v. Mitchell, 330 U. S. 75, 330 U.S. 89 (1947).Stripped to its essentials, what respondents appear to be seeking is a broad-scale investigation, conducted by themselves as private parties armed with the subpoena power of a federal district court and the power of cross-examination, to probe into the Army's intelligence gathering activities, with the district court determining at the conclusion of that investigation the extent to which those activities may or may not be appropriate to the Army's mission. The following excerpt from the opinion of the Court of Appeals suggests the broad sweep implicit in its holding:"Apparently, in the judgment of the civilian head of the Army, not everything being done in the operation of this intelligence system was necessary to the performance of the military mission. If the Secretary of the Army can formulate and implement such judgment based on facts within his Departmental Page 408 U. S. 15 knowledge, the United States District Court can hear evidence, ascertain the facts, and decide what, if any, further restrictions on the complained-of activities are called for to confine the military to their legitimate sphere of activity and to protect [respondents'] allegedly infringed constitutional rights."144 U.S.App.D.C. at 83, 444 F.2d at 958. (Emphasis added.)Carried to its logical end, this approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the "power of the purse"; it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.We, of course, intimate no view with respect to the propriety or desirability, from a policy standpoint, of the challenged activities of the Department of the Army; our conclusion is a narrow one, namely, that, on this record, the respondents have not presented a case for resolution by the courts.The concerns of the Executive and Legislative Branches in response to disclosure of the Army surveillance activities -- and indeed the claims alleged in the complaint -- reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs. That tradition has deep roots in our history, and found early expression, for example, in the Third Amendment's explicit prohibition against quartering soldiers in private homes without consent, and in the constitutional provisions for civilian control of the military. Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable injury Page 408 U. S. 16 resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation's history or in this Court's decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.Reversed

U.S. Supreme CourtLaird v. Tatum, 408 U.S. 1 (1972)Laird v. TatumNO. 71-288Argued March 27, 1972Decided June 26, 1972408 U.S. 1SyllabusPrior to its being called upon in 1967 to assist local authorities in quelling civil disorders in Detroit, Michigan, the Department of the Army had developed only a general contingency plan in connection with its limited domestic mission under 10 U.S.C. § 331. In response to the Army's experience in the various civil disorders it was called upon to help control during 1967 and 1968, Army Intelligence established a data-gathering system, which respondents describe as involving the "surveillance of lawful civilian political activity."Held: Respondents' claim that their First Amendment rights are chilled due to the mere existence of this data-gathering system does not constitute a justiciable controversy on the basis of the record in this case, disclosing as it does no showing of objective harm or threat of specific future harm. Pp. 408 U. S. 3-16.144 U.S.App.D.C. 72, 444 F.2d 947, reversed.BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion in which MARSHALL, J., joined, post, p. 408 U. S. 16. BRENNAN, J., filed a dissenting opinion in which STEWART and MARSHALL, JJ., joined, post, p. 408 U. S. 38. Page 408 U. S. 2

1963_110

MR. JUSTICE BRENNAN delivered the opinion of the Court.In this case, we are asked to reconsider prior decisions holding that the privilege against self-incrimination is not safeguarded against state action by the Fourteenth Amendment. Twining v. New Jersey, 211 U. S. 78; Adamson v. California, 332 U. S. 46. [Footnote 1] Page 378 U. S. 3The petitioner was arrested during a gambling raid in 1959 by Hartford, Connecticut, police. He pleaded guilty to the crime of pool selling, a misdemeanor, and was sentenced to one year in jail and fined $500. The sentence was ordered to be suspended after 90 days, at which time he was to be placed on probation for two years. About 16 months after his guilty plea, petitioner was ordered to testify before a referee appointed by the Superior Court of Hartford County to conduct an inquiry into alleged gambling and other criminal activities in the county. The petitioner was asked a number of questions related to events surrounding his arrest and conviction. He refused to answer any question "on the grounds it may tend to incriminate me." The Superior Court adjudged him in contempt, and committed him to prison until he was willing to answer the questions. Petitioner's application for a writ of habeas corpus was denied by the Superior Court, and the Connecticut Supreme Court of Errors affirmed. 150 Conn. 220, 187 A.2d 744. The latter court held that the Fifth Amendment's privilege against self-incrimination was not available to a witness in a state proceeding, that the Fourteenth Amendment extended no privilege to him, and that the petitioner had not properly invoked the privilege available under the Connecticut Constitution. We granted certiorari. 373 U.S. 948. We reverse. We hold that the Fourteenth Amendment guaranteed the petitioner the protection of the Fifth Amendment's privilege against self-incrimination and that, under the applicable federal standard, the Connecticut Supreme Court of Errors erred in holding that the privilege was not properly invoked. Page 378 U. S. 4The extent to which the Fourteenth Amendment prevents state invasion of rights enumerated in the first eight Amendments has been considered in numerous cases in this Court since the Amendment's adoption in 1868. Although many Justices have deemed the Amendment to incorporate all eight of the Amendments, [Footnote 2] the view which has thus far prevailed dates from the decision in 1897 in Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, which held that the Due Process Clause requires the States to pay just compensation for private property taken for public use. [Footnote 3] It was on the authority of that decision that the Court said in 1908, in Twining v. New Jersey, supra, that"it is possible that some of the personal rights safeguarded by the first eight Amendments Page 378 U. S. 5 against National action may also be safeguarded against state action because a denial of them would be a denial of due process of law."211 U.S. at 211 U. S. 99.The Court has not hesitated to reexamine past decisions according the Fourteenth Amendment a less central role in the preservation of basic liberties than that which was contemplated by its Framers when they added the Amendment to our constitutional scheme. Thus, although the Court, as late as 1922, said that"neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restrictions about 'freedom of speech' . . . ,"Prudential Ins. Co. v. Cheek, 259 U. S. 530, 259 U. S. 543, three years later, Gitlow v. New York, 268 U. S. 652, initiated a series of decisions which today hold immune from state invasion every First Amendment protection for the cherished rights of mind and spirit -- the freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. [Footnote 4]Similarly, Palko v. Connecticut, 302 U. S. 319, decided in 1937, suggested that the rights secured by the Fourth Amendment were not protected against state action, citing, 302 U.S. at 302 U. S. 324, the statement of the Court in 1914 in Weeks v. United States, 232 U. S. 383, 232 U. S. 398, that "the Fourth Amendment is not directed to individual misconduct of [state] officials." In 1961, however, the Page 378 U. S. 6 Court held that, in the light of later decisions, [Footnote 5] it was taken as settled that". . . the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth. . . ."Mapp v. Ohio, 367 U. S. 643, 367 U. S. 655. Again, although the Court held in 1942 that, in a state prosecution for a noncapital offense, "appointment of counsel is not a fundamental right," Betts v. Brady, 316 U. S. 455, 316 U. S. 471; cf. Powell v. Alabama, 287 U. S. 45, only last Term, this decision was reexamined and it was held that provision of counsel in all criminal cases was "a fundamental right, essential to a fair trial," and thus was made obligatory on the States by the Fourteenth Amendment. Gideon v. Wainwright, 372 U. S. 335, 372 U. S. 343-344. [Footnote 6]We hold today that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States. Decisions of the Court since Twining and Adamson have departed from the contrary view expressed in those cases. We discuss first the decisions which forbid the use of coerced confessions in state criminal prosecutions.Brown v. Mississippi, 297 U. S. 278, was the first case in which the Court held that the Due Process Clause prohibited the States from using the accused's coerced confessions against him. The Court in Brown felt impelled, in light of Twining, to say that its conclusion did not involve the privilege against self-incrimination. "Compulsion by torture to extort a confession is a different matter." 297 U.S. at 297 U. S. 285. But this distinction was soon Page 378 U. S. 7 abandoned, and today the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897, when, in Bram v. United States, 168 U. S. 532, the Court held that,"[i]n criminal trials in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States commanding that no person 'shall be compelled in any criminal case to be a witness against himself.'"Id. at 168 U. S. 542. Under this test, the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was"free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . ."Id. at 168 U. S. 542-543; see also Hardy v. United States, 186 U. S. 224, 186 U. S. 229; Wan v. United States, 266 U. S. 1, 266 U. S. 14; Smith v. United States, 348 U. S. 147, 348 U. S. 150. In other words, the person must not have been compelled to incriminate himself. We have held inadmissible even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until he confessed. Haynes v. Washington, 373 U. S. 503.The marked shift to the federal standard in state cases began with Lisenba v. California, 314 U. S. 219, where the Court spoke of the accused's "free choice to admit, to deny or to refuse to answer." Id. at 314 U. S. 241. See Ashcraft v. Tennessee, 322 U. S. 143; Malinski v. New York, 324 U. S. 401; Spano v. New York, 360 U. S. 315; Lynumn v. Illinois, 372 U. S. 528; Haynes v. Washington, 373 U. S. 503. The shift reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. Rogers v. Richmond, 365 U. S. 534, Page 378 U. S. 8 365 U. S. 541. Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not, by coercion, prove a charge against an accused out of his own mouth. Since the Fourteenth Amendment prohibits the States from inducing a person to confess through "sympathy falsely aroused," Spano v. New York, supra, at 360 U. S. 323, or other like inducement far short of "compulsion by torture," Haynes v. Washington, supra, it follows a fortiori that it also forbids the States to resort to imprisonment, as here, to compel him to answer questions that might incriminate him. The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement -- the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty, as held in Twining, for such silence.This conclusion is fortified by our recent decision in Mapp v. Ohio, 367 U. S. 643, overruling Wolf v. Colorado, 338 U. S. 25, which had held"that, in a prosecution in a State court for a State crime, the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure,"338 U.S. at 338 U. S. 33. Mapp held that the Fifth Amendment privilege against self-incrimination implemented the Fourth Amendment in such cases, and that the two guarantees of personal security conjoined in the Fourteenth Amendment to make the exclusionary rule obligatory upon the States. We relied upon the great case of Boyd v. United States, 116 U. S. 616, decided in 1886, which, considering the Fourth and Fifth Amendments as running "almost into each other," id. at 116 U. S. 630, held that"Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods is within Page 378 U. S. 9 the condemnation of [those Amendments]. . . ."At 116 U. S. 630. We said in Mapp:"We find that, as to the Federal Government, the Fourth and Fifth Amendments, and, as to the States, the freedom from unconscionable invasions of privacy and the freedom from convictions based upon coerced confessions, do enjoy an 'intimate relation' in their perpetuation of 'principles of humanity and civil liberty [secured] . . . only after years of struggle,' Bram v. United States, 168 U. S. 532, 168 U. S. 543-544. . . . The philosophy of each Amendment and of each freedom is complementary to, although not dependent upon, that of the other in its sphere of influence -- the very least that, together, they assure in either sphere is that no man is to be convicted on unconstitutional evidence."367 U.S. at 367 U. S. 656-657. In thus returning to the Boyd view that the privilege is one of the "principles of a free government," 116 U.S. at 116 U. S. 632, [Footnote 7] Mapp necessarily repudiated the Twining concept of the privilege as a mere rule of evidence "best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient." 211 U.S. at 211 U. S. 113.The respondent Sheriff concedes in his brief that, under our decisions, particularly those involving coerced Page 378 U. S. 10 confessions, "the accusatorial system has become a fundamental part of the fabric of our society and, hence, is enforceable against the States." [Footnote 8] The State urges, however, that the availability of the federal privilege to a witness in a state inquiry is to be determined according to a less stringent standard than is applicable in a federal proceeding. We disagree. We have held that the guarantees of the First Amendment, Gitlow v. New York, supra; Cantwell v. Connecticut, 310 U. S. 296; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293, the prohibition of unreasonable searches and seizures of the Fourth Amendment, Ker v. California, 374 U. S. 23, and the right to counsel guaranteed by the Sixth Amendment, Gideon v. Wainwright, supra, are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. In the coerced confession cases, involving the policies of the privilege itself, there has been no suggestion that a confession might be considered coerced if used in a federal, but not a state, tribunal. The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a "watered-down, subjective version of the individual Page 378 U. S. 11 guarantees of the Bill of Rights," Ohio ex rel. Eaton v. Price, 364 U. S. 263, 364 U. S. 275 (dissenting opinion). If Cohen v. Hurley, 366 U. S. 117, and Adamson v. California, supra, suggest such an application of the privilege against self-incrimination, that suggestion cannot survive recognition of the degree to which the Twining view of the privilege has been eroded. What is accorded is a privilege of refusing to incriminate one's self, and the feared prosecution may be by either federal or state authorities. Murphy v. Waterfront Comm'n, post, p. 378 U. S. 52. It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.We turn to the petitioner's claim that the State of Connecticut denied him the protection of his federal privilege. It must be considered irrelevant that the petitioner was a witness in a statutory inquiry, and not a defendant in a criminal prosecution, for it has long been settled that the privilege protects witnesses in similar federal inquiries. Counselman v. Hitchcock, 142 U. S. 547; McCarthy v. Arndstein, 266 U. S. 34; Hoffman v. United States, 341 U. S. 479. We recently elaborated the content of the federal standard in Hoffman:"The privilege afforded not only extends to answers that would in themselves support a conviction . . . , but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute. . . . [I]f the witness, upon interposing his claim, were required to prove the hazard . . . , he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is Page 378 U. S. 12 asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."341 U.S. at 341 U. S. 486-487. We also said that, in applying that test, the judge must be"'perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate."341 U.S. at 341 U. S. 488. The State of Connecticut argues that the Connecticut courts properly applied the federal standards to the facts of this case. We disagree.The investigation in the course of which petitioner was questioned began when the Superior Court in Hartford County appointed the Honorable Ernest A. Inglis, formerly Chief Justice of Connecticut, to conduct an inquiry into whether there was reasonable cause to believe that crimes, including gambling, were being committed in Hartford County. Petitioner appeared on January 16 and 25, 1961, and, in both instances, he was asked substantially the same questions about the circumstances surrounding his arrest and conviction for pool selling in late 1959. The questions which petitioner refused to answer may be summarized as follows: (1) for whom did he work on September 11, 1959; (2) who selected and paid his counsel in connection with his arrest on that date and subsequent conviction; (3) who selected and paid his bondsman; (4) who paid his fine; (5) what was the name of the tenant of the apartment in which he was arrested, and (6) did he know John Bergoti. The Connecticut Supreme Court of Errors ruled that the answers to these questions could not tend to incriminate him, because the defenses of double jeopardy and the running of the one-year statute of limitations on misdemeanors would defeat any prosecution growing out of his answers to the first Page 378 U. S. 13 five questions. As for the sixth question, the court held that petitioner's failure to explain how a revelation of his relationship with Bergoti would incriminate him vitiated his claim to the protection of the privilege afforded by state law.The conclusions of the Court of Errors, tested by the federal standard, fail to take sufficient account of the setting in which the questions were asked. The interrogation was part of a wide-ranging inquiry into crime, including gambling, in Hartford. It was admitted on behalf of the State at oral argument -- and indeed it is obvious from the questions themselves -- that the State desired to elicit from the petitioner the identity of the person who ran the pool-selling operation in connection with which he had been arrested in 1959. It was apparent that petitioner might apprehend that, if this person were still engaged in unlawful activity, disclosure of his name might furnish a link in a chain of evidence sufficient to connect the petitioner with a more recent crime for which he might still be prosecuted. [Footnote 9]Analysis of the sixth question, concerning whether petitioner knew John Bergoti, yields a similar conclusion. In the context of the inquiry, it should have been apparent to the referee that Bergoti was suspected by the State to be involved in some way in the subject matter of the investigation. An affirmative answer to the question Page 378 U. S. 14 might well have either connected petitioner with a more recent crime or at least have operated as a waiver of his privilege with reference to his relationship with a possible criminal. See Rogers v. United States, 340 U. S. 367. We conclude therefore that, as to each of the questions, it was"evident from the implications of the question, in the setting in which it [was] asked, that a responsive answer to the question or an explanation of why it [could not] be answered might be dangerous because injurious disclosure could result,"Hoffman v. United States, 341 U.S. at 341 U. S. 486-487; see Singleton v. United States, 343 U.S. 944.Reversed

U.S. Supreme CourtMalloy v. Hogan, 378 U.S. 1 (1964)Malloy v. HoganNo. 110Argued March 5, 1964Decided June 15, 1964378 U.S. 1SyllabusPetitioner, who was on probation after pleading guilty to a gambling misdemeanor, was ordered to testify before a referee appointed by a state court to investigate gambling and other criminal activities. He refused to answer questions about the circumstances of his arrest and conviction on the ground that the answers might incriminate him. Adjudged in contempt and committed to prison until he answered, he filed an application for writ of habeas corpus, which the highest state court denied. It ruled that petitioner was protected against prosecution growing out of his replies to all but one question, and that, as to that question, his failure to explain how his answer would incriminate him negated his claim to the protection of the privilege under state law.Held:1. The Fourteenth Amendment prohibits state infringement of the privilege against self-incrimination, just as the Fifth Amendment prevents the Federal Government from denying the privilege. P. 378 U. S. 8.2. In applying the privilege against self-incrimination, the same standards determine whether an accused's silence is justified regardless of whether it is a federal or state proceeding at which he is called to testify. P. 378 U. S. 11.3. The privilege is available to a witness in a statutory inquiry as well as to a defendant in a criminal prosecution. P. 378 U. S. 11. Page 378 U. S. 24. Petitioner's claim of privilege as to all the questions should have been upheld, since it was evident from the implication of each question, in the setting in which it was asked, that a response or an explanation why it could not be answered might be dangerous because injurious disclosure would result. Hoffman v. United States, 341 U. S. 479, followed. Pp. 378 U. S. 11-14.150 Conn. 220, 187 A.2d 744, reversed.

1963_88

MR. JUSTICE BRENNAN delivered the opinion of the Court.Under § 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended, [Footnote 1] it is an unfair labor practice for a union "to threaten, coerce, or restrain any person," with the object of"forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer . . . or to cease doing business with any other person. . . ."A proviso excepts, however,"publicity, other than picketing, for the purpose of truthfully advising the public . . . that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services at the establishment of the employer engaged in such distribution."(Italics supplied.) The question in this case is whether the respondent unions violated this section when they limited their secondary picketing of retail stores to an appeal to the customers of the stores not to buy the products of certain firms against which one of the respondents was on strike.Respondent Local 760 called a strike against fruit packers and warehousemen doing business in Yakima, Washington. [Footnote 2] The struck firms sold Washington State Page 377 U. S. 60 apples to the Safeway chain of retail stores in and about Seattle, Washington. Local 760, aided by respondent Joint Council, instituted a consumer boycott against the apples in support of the strike. They placed pickets who walked back and forth before the customers' entrances of 46 Safeway stores in Seattle. The pickets -- two at each of 45 stores and three at the 46th store -- wore placards and distributed handbills which appealed to Safeway customers, and to the public generally, to refrain from buying Washington State apples, which were only one of numerous food products sold in the stores. [Footnote 3] Page 377 U. S. 61 Before the pickets appeared at any store, a letter was delivered to the store manager informing him that the picketing was only an appeal to his customers not to buy Washington State apples, and that the pickets were being expressly instructed"to patrol peacefully in front of the consumer entrances of the store, to stay away from the delivery entrances, and not to interfere with the work of your employees, or with deliveries to or pickups from your store."A copy of written instructions to the pickets -- which included the explicit statement that "you are also forbidden to request that the customers not patronize the store" -- was enclosed with the letter. [Footnote 4] Since it was desired to assure Safeway employees that they were not to cease work, and to avoid any interference with pickups or deliveries, the pickets appeared after the stores opened for business and departed before the stores closed. At all times during the picketing, the store employees continued to work, and no deliveries or pickups were obstructed. Washington State apples were handled in normal course by both Safeway employees and the employees of other employers involved. Ingress and egress by customers and others was not interfered with in any manner.A complaint issued on charges that this conduct violated § 8(b)(4) as amended. [Footnote 5] The case was submitted directly to the National Labor Relations Board on a stipulation of facts and the waiver of a hearing and proceedings before a Trial Examiner. The Board held, following Page 377 U. S. 62 its construction of the statute in Upholsterers Frame & Bedding Workers Twin City Local No. 61, 132 N.L.R.B. 40, that,"by literal wording of the proviso [to Section 8(b)(4)], as well as through the interpretive gloss placed thereon by its drafters, consumer picketing in front of a secondary establishment is prohibited."132 N.L.R.B. 1172, 1177. [Footnote 6] Upon respondents' petition for review and the Board's cross-petition for enforcement, the Court of Appeals for the District of Columbia Circuit set aside the Board's order and remanded. The court rejected the Board's construction, and held that the statutory requirement of a showing that respondents' conduct would "threaten, coerce, or restrain" Safeway could only be satisfied by affirmative proof that a substantial economic impact on Safeway had occurred, or was likely to occur, as a result of the conduct. Under the remand, the Board was left "free to reopen the record to receive evidence upon the issue whether Safeway was, in fact threatened, coerced, or restrained." 113 U.S.App.D.C. 356, 363, 308 F.2d 311, 318. We granted certiorari, 374 U.S. 804.The Board's reading of the statute -- that the legislative history and the phrase "other than picketing" in the proviso reveal a congressional purpose to outlaw all picketing directed at customers at a secondary site -- necessarily rested on the finding that Congress determined that such picketing always threatens, coerces or restrains the secondary employer. We therefore have a special responsibility to examine the legislative history for confirmation that Congress made that determination. Throughout the history of federal regulation of labor relations, Congress has consistently refused to prohibit peaceful picketing except where it is used as a means to achieve specific ends which experience has shown are undesirable."In the sensitive area of peaceful picketing, Congress has Page 377 U. S. 63 dealt explicitly with isolated evils which experience has established flow from such picketing."Labor Board v. Drivers etc. Local Union, 362 U. S. 274, 362 U. S. 284. We have recognized this congressional practice, and have not ascribed to Congress a purpose to outlaw peaceful picketing unless "there is the clearest indication in the legislative history," ibid., that Congress intended to do so as regards the particular ends of the picketing under review. Both the congressional policy and our adherence to this principle of interpretation reflect concern that a broad ban against peaceful picketing might collide with the guarantees of the First Amendment.We have examined the legislative history of the amendments to § 8(b)(4), and conclude that it does not reflect with the requisite clarity a congressional plan to proscribe all peaceful consumer picketing at secondary sites, and, particularly, any concern with peaceful picketing when it is limited, as here, to persuading Safeway customers not to buy Washington State apples when they traded in the Safeway stores. All that the legislative history shows in the way of an "isolated evil" believed to require proscription of peaceful consumer picketing at secondary sites was its use to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer. This narrow focus reflects the difference between such conduct and peaceful picketing at the secondary site directed only at the struck product. In the latter case, the union's appeal to the public is confined to its dispute with the primary employer, since the public is not asked to withhold its patronage from the secondary employer, but only to boycott the primary employer's goods. On the other hand, a union appeal to the public at the secondary site not to trade at all with the secondary employer goes beyond the goods of the primary employer, and seeks the public's assistance in Page 377 U. S. 64 forcing the secondary employer to cooperate with the union in its primary dispute. [Footnote 7] This is not to say that this distinction was expressly alluded to in the debates. It is to say, however, that the consumer picketing carried on in this case is not attended by the abuses at which the statute was directed.The story of the 1959 amendments, which we have detailed at greater length in our opinion filed today in Labor Board v. Servette, Inc., ante, p. 377 U. S. 46, begins with the original § 8(b)(4) of the National Labor Relations Act. Its prohibition, in pertinent part, was confined to the inducing or encouraging of "the employees of any employer to engage in, a strike or a concerted refusal . . . to . . . handle . . . any goods . . ." of a primary employer. This proved to be inept language. Three major loopholes were revealed. Since only inducement of "employees" was proscribed, direct inducement of a supervisor or the secondary employer by threats of labor trouble was not prohibited. Since only a "strike or a concerted refusal" was prohibited, pressure upon a single employee was not forbidden. Finally, railroads, airlines Page 377 U. S. 65 and municipalities were not "employers" under the Act, and therefore inducement or encouragement of their employees was not unlawful.When major labor relations legislation was being considered in 1958, the closing of these loopholes was important to the House and to some members of the Senate. But the prevailing Senate sentiment favored new legislation primarily concerned with the redress of other abuses, and neither the Kennedy-Ives bill, which failed of passage in the House in the Eighty-fifth Congress, nor the Kennedy-Ervin bill, adopted by the Senate in the Eighty-sixth Congress, included any revision of § 8(b)(4). Proposed amendments of § 8(b)(4) offered by several Senators to fill the three loopholes were rejected. The Administration introduced such a bill, and it was supported by Senators Dirksen and Goldwater. [Footnote 8] Senator Goldwater, an insistent proponent of stiff boycott curbs, also proposed his own amendments. [Footnote 9] We think it is especially significant that neither Senator, nor the Secretary of Labor in testifying in support of the Administration's bill, referred to consumer picketing as making the amendments necessary. [Footnote 10] Senator McClellan, who also Page 377 U. S. 66 offered a bill to curb boycotts, mentioned consumer picketing but only such as was "pressure in the form of dissuading customers from dealing with secondary employers." [Footnote 11] (Emphasis supplied.) It was the opponents of the amendments who, in expressing fear of their sweep, suggested that they might proscribe consumer picketing. Senator Humphrey first sounded the warning early in April. [Footnote 12] Many months later, when the Conference bill was before the Senate, Senator Morse, a conferee, would not support the Conference bill on the express ground that it prohibited consumer picketing. [Footnote 13] But we have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach."The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt."Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 341 U. S. 394-395; see also Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, 350 U. S. 288; United States v. Calamaro, 354 U. S. 351, n. 9 at 354 U. S. 358. The silence of the sponsors of amendments is pregnant with significance, Page 377 U. S. 67 since they must have been aware that consumer picketing, as such, had been held to be outside the reach of § 8(b)(4). [Footnote 14] We are faithful to our practice of respecting the congressional policy of legislating only against clearly identified abuses of peaceful picketing when we conclude that the Senate neither specified the kind of picketing here involved as an abuse nor indicated any intention of banning all consumer picketing.The House history is similarly beclouded, but what appears confirms our conclusion. From the outset, the House legislation included provisions concerning secondary boycotts. The Landrum-Griffin bill, [Footnote 15] which was ultimately passed by the House, embodied the Eisenhower Administration's proposals as to secondary boycotts. The initial statement of Congressman Griffin in introducing the bill which bears his name contains no reference to consumer picketing in the list of abuses which he thought required the secondary boycott amendments. [Footnote 16] Later, in the House debates, he did discuss consumer picketing, but only in the context of its abuse when directed against shutting off the patronage of a secondary employer.In the debates before passage of the House bill, he stated that the amendments applied to consumer picketing of customer entrances to retail stores selling goods manufactured by a concern under strike, if the picketing Page 377 U. S. 68 were designed to "coerce or to restrain the employer of [the] second establishment, to get him not to do business with the manufacturer . . . ," and further that,"of course, this bill and any other bill is limited by the constitutional right of free speech. If the purpose of the picketing is to coerce the retailer not to do business with the manufacturer,"then such a boycott could be stopped. [Footnote 17] (Italics supplied.)The relevant changes in former § 8(b)(4) made by the House bill substituted "any individual employed by any person" for the Taft-Hartley wording, "the employees of any employer," deleted the requirement of a "concerted" refusal, and made it an unfair labor practice "to threaten, coerce, or restrain any person" where an object thereof was an end forbidden by the statute, e.g., forcing or requiring a secondary employer to cease handling the products of, or doing business with, a primary employer. There is thus nothing in the legislative history prior to the convening of the Conference Committee which shows any congressional concern with consumer picketing beyond that with the "isolated evil" of its use to cut off the business of a secondary employer as a means of forcing him to stop doing business with the primary employer. When Congress meant to bar picketing per se, it made its meaning clear; for example, § 8(b)(7) makes it an unfair labor practice, "to picket or cause to be picketed . . . any employer. . . ." In contrast, the prohibition of § 8(b)(4) is keyed to the coercive nature of the conduct, whether it be picketing or otherwise. Page 377 U. S. 69Senator Kennedy presided over the Conference Committee. He and Congressman Thompson prepared a joint analysis of the Senate and House bills. This analysis pointed up the First Amendment implications of the broad language in the House revisions of § 8(b)(4) stating,"The prohibition [of the House bill] reaches not only picketing, but leaflets, radio broadcasts and newspaper advertisements, thereby interfering with freedom of speech.""* * * *" ". . . one of the apparent purposes of the amendment is to prevent unions from appealing to the general public as consumers for assistance in a labor dispute. This is a basic infringement upon freedom of expression. [Footnote 18]"This analysis was the first step in the development of the publicity proviso, but nothing in the legislative history of the proviso alters our conclusion that Congress did not clearly express an intention that amended § 8(b)(4) should prohibit all consumer picketing. Because of the sweeping language of the House bill, and its implications for freedom of speech, the Senate conferees refused to accede to the House proposal without safeguards for the right of unions to appeal to the public, even by some conduct which might be "coercive." The result was the addition of the proviso. But it does not follow from the fact that some coercive conduct was protected by the proviso that the exception "other than picketing" indicates that Congress had determined that all consumer picketing was coercive.No Conference Report was before the Senate when it passed the compromise bill, and it had the benefit Page 377 U. S. 70 only of Senator Kennedy's statement of the purpose of the proviso. He said that the proviso preserved"the right to appeal to consumers by methods other than picketing asking them to refrain from buying goods made by nonunion labor and to refrain from trading with a retailer who sells such goods. . . . We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but were able to persuade them to agree that the unions shall be free to conduct informational activity short of picketing. In other words, the union can hand out handbills at the shop . . . and can carry on all publicity short of having ambulatory picketing. . . . [Footnote 19]"(Italics supplied.) This explanation does not compel the conclusion that the Conference Agreement contemplated prohibiting any consumer picketing at a secondary site beyond that which urges the public, in Senator Kennedy's words, to "refrain from trading with a retailer who sells such goods." To read into the Conference Agreement, on the basis of a single statement, an intention to prohibit all consumer picketing at a secondary site would depart from our practice of respecting the congressional policy not to prohibit peaceful picketing except to curb "isolated evils" spelled out by the Congress itself.Peaceful consumer picketing to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer is poles apart from such picketing which only persuades his customers not to buy the struck product. The proviso indicates no more than that the Senate conferees' constitutional doubts led Congress to authorize publicity other than picketing which persuades the customers of a secondary employer to stop all trading with him, but not such publicity which has Page 377 U. S. 71 the effect of cutting off his deliveries or inducing his employees to cease work. On the other hand, picketing which persuades the customers of a secondary employer to stop all trading with him was also to be barred.In sum, the legislative history does not support the Board's finding that Congress meant to prohibit all consumer picketing at a secondary site, having determined that such picketing necessarily threatened, coerced or restrained the secondary employer. Rather, the history shows that Congress was following its usual practice of legislating against peaceful picketing only to curb "isolated evils."This distinction is opposed as "unrealistic" because, it is urged, all picketing automatically provokes the public to stay away from the picketed establishment. The public will, it is said, neither read the signs and handbills nor note the explicit injunction that "this is not a strike against any store or market." Be that as it may, our holding today simply takes note of the fact that Congress has never adopted a broad condemnation of peaceful picketing such as that urged upon us by petitioners, and an intention to do so is not revealed with that "clearest indication in the legislative history" which we require. Labor Board v. Drivers Local Union, supra.We come, then, to the question whether the picketing in this case, confined as it was to persuading customers to cease buying the product of the primary employer, falls within the area of secondary consumer picketing which Congress did clearly indicate its intention to prohibit under § 8(b)(4)(ii). We hold that it did not fall within that area, and therefore did not "threaten, coerce, or restrain" Safeway. While any diminution in Safeway's purchases of apples due to a drop in consumer demand might be said to be a result which causes respondents' picketing to fall literally within the statutory prohibition, Page 377 U. S. 72"it is a familiar rule that a thing may be within the letter of the statute and yet not within the statute because not within its spirit nor within the intention of its makers."Holy Trinity Church v. United States, 143 U. S. 457, 143 U. S. 459. See United States v. American Trucking Ass'ns, 310 U. S. 534, 310 U. S. 543-544. When consumer picketing is employed only to persuade customers not to buy the struck product, the union's appeal is closely confined to the primary dispute. The site of the appeal is expanded to include the premises of the secondary employer, but, if the appeal succeeds, the secondary employer's purchases from the struck firms are decreased only because the public has diminished its purchases of the struck product. On the other hand, when consumer picketing is employed to persuade customers not to trade at all with the secondary employer, the latter stops buying the struck product not because of a falling demand, but in response to pressure designed to inflict injury on his business generally. In such case, the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer. [Footnote 20]We disagree, therefore, with the Court of Appeals that the test of "to threaten, coerce, or restrain" for the purposes of this case is whether Safeway suffered or was likely to suffer economic loss. A violation of § 8(b)(4)(ii)(B) would not be established merely because respondents' picketing was effective to reduce Safeway's Page 377 U. S. 73 sales of Washington State apples, even if this led or might lead Safeway to drop the item as a poor seller.The judgment of the Court of Appeals is vacated, and the case is remanded with direction to enter judgment setting aside the Board's order.It is so ordered

U.S. Supreme CourtLabor Board v. Fruit Packers, 377 U.S. 58 (1964)National Labor Relations Board v. Fruit & Vegetable Packers& Warehousemen, Local 760No. 88Argued February 18-19, 1964Decided April 20, 1964377 U.S. 58SyllabusRespondent union, while on strike, conducted a consumer boycott of the employers' products, pursuant to which it engaged in peaceful picketing and distributed handbills at markets selling such products. The signs and handbills asked the public not to purchase primary employers' products. The National Labor Relations Board held that § 8(b)(4) of the National Labor Relations Act was intended by Congress to prohibit all consumer picketing at secondary establishments. The Court of Appeals rejected that conclusion, holding that the crucial issue is whether the secondary employer is in fact coerced or threatened by the picketing, and remanded for a finding on that issue.Held: Peaceful secondary picketing of retail stores directed solely at appealing to consumers to refrain from buying the primary employer's product is not prohibited by § 8(b)(4). Pp. 377 U. S. 63-73.113 U.S.App.D.C. 356, 308 F.2d 311, judgment vacated and case remanded. Page 377 U. S. 59

1976_75-1578

MR. JUSTICE REHNQUIST delivered the opinion of the Court.We granted certiorari to consider the availability of federal habeas corpus to review a state convict's claim that testimony was admitted at his trial in violation of his rights under Miranda v. Arizona, 384 U. S. 436 (1966), a claim which the Florida courts have previously refused to consider on the merits because of noncompliance with a state contemporaneous objection rule. Petitioner Wainwright, on behalf of the State of Florida, here challenges a decision of the Court of Appeals for the Fifth Circuit ordering a hearing in state court on the merits of respondent's contention.Respondent Sykes was convicted of third-degree murder after a jury trial in the Circuit Court of DeSoto County. He testified at trial that, on the evening of January 8, 1972, he told his wife to summon the police because he had just shot Willie Gilbert. Other evidence indicated that, when the police arrived at respondent's trailer home, they found Gilbert dead of a shotgun wound, lying a few feet from the front porch. Shortly after their arrival, respondent came from across the road and volunteered that he had shot Gilbert, and a few minutes later respondent's wife approached the police and told them the same thing. Sykes was immediately arrested and taken to the police station.Once there, it is conceded that he was read his Miranda rights, and that he declined to seek the aid of counsel and indicated a desire to talk. He then made a statement, which was admitted into evidence at trial through the testimony of the two officers who heard it, [Footnote 1] to the effect that he had shot Gilbert from the front porch of his trailer home; there were several references during the trial to respondent's consumption Page 433 U. S. 75 of alcohol during the preceding day and to his apparent state of intoxication, facts which were acknowledged by the officers who arrived at the scene. At no time during the trial, however, was the admissibility of any of respondent's statements challenged by his counsel on the ground that respondent had not understood the Miranda warnings. [Footnote 2] Nor did the trial judge question their admissibility on his own motion or hold a factfinding hearing bearing on that issue.Respondent appealed his conviction, but apparently did not challenge the admissibility of the inculpatory statements. [Footnote 3] He later filed in the trial court a motion to vacate the conviction and, in the State District Court of Appeals and Supreme Court, petitions for habeas corpus. These filings, apparently for the first time, challenged the statements made to police on grounds of involuntariness. In all of these efforts, respondent was unsuccessful.Having failed in the Florida courts, respondent initiated the present action under 28 U.S.C. § 2254, asserting the inadmissibility of his statements by reason of his lack of understanding of the Miranda warnings. [Footnote 4] The United States District Court for the Middle District of Florida ruled that Jackson v. Denno, Page 433 U. S. 76 378 U. S. 368 (1964), requires a hearing in a state criminal trial prior to the admission of an inculpatory out-of-court statement by the defendant. It held further that respondent had not lost his right to assert such a claim by failing to object at trial or on direct appeal, since only "exceptional circumstances" of "strategic decisions at trial" can create such a bar to raising federal constitutional claims in a federal habeas action. The court stayed issuance of the writ to allow the state court to hold a hearing on the "voluntariness" of the statements.Petitioner warden appealed this decision to the United States Court of Appeals for the Fifth Circuit. That court first considered the nature of the right to exclusion of statements made without a knowing waiver of the right to counsel and the right not to incriminate oneself. It noted that Jackson v. Denno, supra, guarantees a right to a hearing on whether a defendant has knowingly waived his rights as described to him in the Miranda warnings, and stated that, under Florida law "[t]he burden is on the State to secure [a] prima facie determination of voluntariness, not upon the defendant to demand it." 528 F.2d 522, 525 (1976).The court then directed its attention to the effect on respondent's right of Florida Rule Crim.Proc. 3.190(i), [Footnote 5] which it described as "a contemporaneous objection rule" applying to motions to suppress a defendant's inculpatory statements. Page 433 U. S. 77 It focused on this Court's decisions in Henry v. Mississippi, 379 U. S. 443 (1965); Davis v. United States, 411 U. S. 233 (1973); and Fay v. Noia, 372 U. S. 391 (1963), and concluded that the failure to comply with the rule requiring objection at the trial would only bar review of the suppression claim where the right to object was deliberately bypassed for reasons relating to trial tactics. The Court of Appeals distinguished our decision in Davis, supra, (where failure to comply with a rule requiring pretrial objection to the indictment was found to bar habeas review of the underlying constitutional claim absent showing of cause for the failure and prejudice resulting), for the reason that "[a] major tenet of the Davis decision was that no prejudice was shown" to have resulted from the failure to object. It found that prejudice is "inherent" in any situation, like the present one, where the admissibility of an incriminating statement is concerned. Concluding that "[t]he failure to object in this case cannot be dismissed as a trial tactic, and thus a deliberate by-pass," the court affirmed the District Court order that the State hold a hearing on whether respondent knowingly waived his Miranda rights at the time he made the statements.The simple legal question before the Court calls for a construction of the language of 28 U.S.C. § 2254(a), which provides that the federal courts shall entertain an application for a writ of habeas corpus"in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."But, to put it mildly, we do not write on a clean slate in construing this statutory provision. [Footnote 6] Its earliest counterpart, applicable only Page 433 U. S. 78 to prisoners detained by federal authority, is found in the Judiciary Act of 1789. Construing that statute for the Court in Ex parte Watkins, 3 Pet.193, 28 U. S. 202 (1830), Mr. Chief Justice Marshall said:"An imprisonment under a judgment cannot be unlawful unless that judgment be an absolute nullity; and it is not a nullity if the Court has general jurisdiction of the subject, although it should be erroneous."See Ex parte Kearney, 7 Wheat. 38 (1822).In 1867, Congress expanded the statutory language so as to make the writ available to one held in state, as well as federal, custody. For more than a century since the 1867 amendment, this Court has grappled with the relationship between the classical common law writ of habeas corpus and the remedy provided in 28 U.S.C. § 2254. Sharp division within the Court has been manifested on more than one aspect of the perplexing problems which have been litigated in this connection. Where the habeas petitioner challenges a final judgment of conviction rendered by a state court, this Court has been called upon to decide no fewer than four different questions, all to a degree interrelated with one another: (1) What types of federal claims may a federal habeas court properly consider? (2) Where a federal claim is cognizable by a federal habeas court, to what extent must that court defer to a resolution of the claim in prior state proceedings? (3) To what extent must the petitioner who seeks federal habeas exhaust state remedies before resorting to the federal court? (4) In what instances will an adequate and independent state Page 433 U. S. 79 ground bar consideration of otherwise cognizable federal issues on federal habeas review?Each of these four issues has spawned its share of litigation. With respect to the first, the rule laid down in Ex parte Watkins, supra, was gradually changed by judicial decisions expanding the availability of habeas relief beyond attacks focused narrowly on the jurisdiction of the sentencing court. See Ex parte Wells, 18 How. 307 (1856); Ex parte Lange, 18 Wall. 163 (1874). Ex parte Siebold, 100 U. S. 371 (1880), authorized use of the writ to challenge a conviction under a federal statute where the statute was claimed to violate the United States Constitution. Frank v. Mangum, 237 U. S. 309 (1915), and Moore v. Dempsey, 261 U. S. 86 (1923), though in large part inconsistent with one another, together broadened the concept of jurisdiction to allow review of a claim of "mob domination" of what was in all other respects a trial in a court of competent jurisdiction.In Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 463 (1938), an indigent federal prisoner's claim that he was denied the right to counsel at his trial was held to state a contention going to the "power and authority" of the trial court, which might be reviewed on habeas. Finally, in Waley v. Johnston, 316 U. S. 101 (1942), the Court openly discarded the concept of jurisdiction -- by then more a fiction than anything else -- as a touchstone of the availability of federal habeas review, and acknowledged that such review is available for claims of "disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights." Id. at 316 U. S. 104-105. In Brown v. Allen, 344 U. S. 443 (1953), it was made explicit that a state prisoner's challenge to the trial court's resolution of dispositive federal issues is always fair game on federal habeas. Only last Term, in Stone v. Powell, 428 U. S. 465 (1976), the Court removed from the purview of a federal habeas court challenges resting on the Fourth Amendment, where there has been a full and fair opportunity to raise them Page 433 U. S. 80 in the state court. See Schneckloth v. Bustamonte, 412 U. S. 218, 412 U. S. 250 (1973) (POWELL, J., concurring).The degree of deference to be given to a sate court's resolution of a federal law issue was elaborately canvassed in the Court's opinion in Brown v. Allen, supra. Speaking for the Court, Mr. Justice Reed stated:"[Such] state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata."344 U.S. at 344 U. S. 458. The duty of the federal habeas court to hold a factfinding hearing in specific situations, notwithstanding the prior resolution of the issues in state court, was thoroughly explored in this Court's later decision in Townsend v. Sain, 372 U. S. 293 (1963). Congress addressed this aspect of federal habeas in 1966, when it amended § 2254 to deal with the problem treated in Townsend. 80 Stat. 1105. See LaVallee v. Delle Rose, 410 U. S. 690 (1973).The "exhaustion of state remedies" requirement was first articulated by this Court in the case of Ex parte Royall, 117 U. S. 241 (1886). There, a state defendant sought habeas in advance of trial on a claim that he had been indicted under an unconstitutional statute. The writ was dismissed by the District Court, and this Court affirmed, stating that, while there was power in the federal courts to entertain such petitions, as a matter of comity, they should usually stay their hand pending consideration of the issue in the normal course of the state trial. This rule has been followed in subsequent cases, e.g., Cook v. Hart, 146 U. S. 183 (1892); Whitten v. Tomlinson, 160 U. S. 231 (1895); Baker v. Grice, 169 U. S. 284 (1898); Mooney v. Holohan, 294 U. S. 103 (1935), and has been incorporated into the language of § 2254. [Footnote 7] Like other Page 433 U. S. 81 issues surrounding the availability of federal habeas corpus relief, though, this line of authority has not been without historical uncertainties and changes in direction on the part of the Court. See Ex parte Hawk, 321 U. S. 114, 321 U. S. 116-117 (1944); Darr v. Burford, 339 U. S. 200 (1950); Irving v. Dowd, 359 U. S. 394, 359 U. S. 405-406 (1959); Fay v. Noia, 372 U. S. 391, 372 U. S. 435 (1963).There is no need to consider here in greater detail these first three areas of controversy attendant to federal habeas review of state convictions. Only the fourth area -- the adequacy of state grounds to bar federal habeas review -- is presented in this case. The foregoing discussion of the other three is pertinent here only as it illustrates this Court's historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged.As to the role of adequate and independent state grounds, it is a well established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts. Fox Film Corp. v. Muller, 296 U. S. 207 (1935); Murdock v. Memphis, 20 Wall. 590 (1875). The application of this principle in the context of a federal habeas proceeding has therefore excluded from consideration any questions of state substantive law, and thus effectively barred federal habeas review where questions of that sort are either the only ones raised by a petitioner or are, in themselves, dispositive of his case. The area of controversy which has developed has concerned the reviewability of federal claims which the state court has declined to pass on Page 433 U. S. 82 because not presented in the manner prescribed by its procedural rules. The adequacy of such an independent state procedural ground to prevent federal habeas review of the underlying federal issue has been treated very differently than where the state law ground is substantive. The pertinent decisions marking the Court's somewhat tortuous efforts to deal with this problem are: Ex parte Spencer, 228 U. S. 652 (1913); Brown v. Allen, 344 U. S. 443 (1953); Fay v. Noia, supra; Davis v. United States, 411 U. S. 233 (1973); and Francis v. Henderson, 425 U. S. 536 (1976).In Brown, supra, petitioner Daniels' lawyer had failed to mail the appeal papers to the State Supreme Court on the last day provided by law for filing, and hand delivered them one day after that date. Citing the state rule requiring timely filing, the Supreme Court of North Carolina refused to hear the appeal. This Court, relying in part on its earlier decision in Ex parte Spencer, supra, held that federal habeas was not available to review a constitutional claim which could not have been reviewed on direct appeal here because it rested on an independent and adequate state procedural ground. 344 U.S. at 344 U. S. 486-487.In Fay v. Noia, supra, respondent Noia sought federal habeas to review a claim that his state court conviction had resulted from the introduction of a coerced confession in violation of the Fifth Amendment to the United States Constitution. While the convictions of his two codefendants were reversed on that ground in collateral proceedings following their appeals, Noia did not appeal, and the New York courts ruled that his subsequent coram nobis action was barred on account of that failure. This Court held that petitioner was nonetheless entitled to raise the claim in federal habeas, and thereby overruled its decision 10 years earlier in Brown v. Allen, supra:"[T]he doctrine under which state procedural defaults are held to constitute an adequate and independent state Page 433 U. S. 83 law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute."372 U.S. at 372 U. S. 399.As a matter of comity, but not of federal power, the Court acknowledged"a limited discretion in the federal judge to deny relief . . . to an applicant who had deliberately by-passed the orderly procedure of the state courts, and, in so doing, has forfeited his state court remedies."Id. at 372 U. S. 438. In so stating, the Court made clear that the waiver must be knowing and actual -- "an intentional relinquishment or abandonment of a known right or privilege.'" Id. at 372 U. S. 439, quoting Johnson v. Zerbst, 304 U.S. at 304 U. S. 464. Noting petitioner's "grisly choice" between acceptance of his life sentence and pursuit of an appeal which might culminate in a sentence of death, the Court concluded that there had been no deliberate bypass of the right to have the federal issues reviewed through a state appeal. [Footnote 8] Page 433 U. S. 84A decade later, we decided Davis v. United States, supra, in which a federal prisoner's application under 28 U.S.C. § 2255 sought for the first time to challenge the makeup of the grand jury which indicted him. The Government contended that he was barred by the requirement of Fed.Rule Crim.Proc. 12(b)(2) providing that such challenges must be raised "by motion before trial." The Rule further provides that failure to so object constitutes a waiver of the objection, but that "the court for cause shown may grant relief from the waiver." We noted that the Rule"promulgated by this Court and, pursuant to 18 U.S.C. § 3771, 'adopted' by Congress, governs by its terms the manner in which the claims of defects in the institution of criminal proceedings may be waived,"411 U.S. at 411 U. S. 241, and held that this standard contained in the Rule, rather than the Fay v. Noia concept of waiver, should pertain in federal habeas as on direct review. Referring to previous constructions of Rule 12(b)(2), we concluded that review of the claim should be barred on habeas, as on direct appeal, absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation.Last Term, in Francis v. Henderson, supra, the rule of Davis was applied to the parallel case of a state procedural requirement that challenges to grand jury composition be raised before trial. The Court noted that there was power in the federal courts to entertain an application in such a case, but rested its holding on "considerations of comity and concerns for the orderly administration of criminal justice. . . ." 425 U.S. at 425 U. S. 538-539. While there was no counterpart provision of the state rule which allowed an exception upon some showing of cause, the Court concluded that the standard derived from the Federal Rule should nonetheless be applied in that context, since"'[t]here is no reason to . . . give greater preclusive effect to procedural defaults by federal defendants than Page 433 U. S. 85 to similar defaults by state defendants.'"Id. at 425 U. S. 542, quoting Kaufman v. United States, 394 U. S. 217, 394 U. S. 228 (1969). As applied to the federal petitions of state convicts,the Davis "cause and prejudice" standard was thus incorporated directly into the body of law governing the availability of federal habeas corpus review.To the extent that the dicta of Fay v. Noia may be thought to have laid down an all-inclusive rule rendering state contemporaneous objection rules ineffective to bar review of underlying federal claims in federal habeas proceedings -- absent a "knowing waiver" or a "deliberate bypass" of the right to so object -- its effect was limited by Francis, which applied a different rule and barred a habeas challenge to the makeup of a grand jury. Petitioner Wainwright in this case urges that we further confine its effect by applying the principle enunciated in Francis to a claimed error in the admission of a defendant's confession.Respondent first contends that any discussion as to the effect that noncompliance with a state procedural rule should have on the availability of federal habeas is quite unnecessary, because, in his view, Florida did not actually have a contemporaneous objection rule. He would have us interpret Florida Rule Crim.Proc. 3.190(i), [Footnote 9] which petitioner asserts is a traditional "contemporaneous objection rule," to place the burden on the trial judge to raise on his own motion the question of the admissibility of any inculpatory statement. Respondent's approach is, to say the least, difficult to square with the language of the Rule, which, in unmistakable terms and with specified exceptions, requires that the motion to suppress be raised before trial. Since all of the Florida appellate courts refused to review petitioner's federal claim on the merits after his trial, and since their action in so doing is quite consistent with a line of Florida authorities interpreting Page 433 U. S. 86 the rule in question as requiring a contemporaneous objection, we accept the State's position on this point. See Blatch v. State, 216 So. 2d 261, 264 (Fla.App. 1968); Dodd v. State, 232 So. 2d 235, 238 (Fla.App. 1970); Thomas v. State, 249 So. 2d 510, 512 (Fla.App. 1971).Respondent also urges that a defendant has a right under Jackson v. Denno, 378 U. S. 368 (1964), to a hearing as to the voluntariness of a confession, even though the defendant does not object to its admission. But we do not read Jackson as creating any such requirement. In that case, the defendant's objection to the use of his confession was brought to the attention of the trial court, id. at 378 U. S. 374, and n. 4, and nothing in the Court's opinion suggests that a hearing would have been required even if it had not been. To the contrary, the Court prefaced its entire discussion of the merits of the case with a statement of the constitutional rule that was to prove dispositive -- that a defendant has a"right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness. . . ."Id. at 378 U. S. 376-377 (emphasis added). Language in subsequent decisions of this Court has reaffirmed the view that the Constitution does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession. [Footnote 10]We therefore conclude that Florida procedure did, consistently with the United States Constitution, require that respondent's confession be challenged at trial or not at all, and Page 433 U. S. 87 thus his failure to timely object to its admission amounted to an independent and adequate state procedural ground which would have prevented direct review here. See Henry v. Mississippi, 379 U. S. 443 (1965). We thus come to the crux of this case. Shall the rule of Francis v. Henderson, supra, barring federal habeas review absent a showing of "cause" and "prejudice" attendant to a state procedural waiver, be applied to a waived objection to the admission of a confession at trial? [Footnote 11] We answer that question in the affirmative.As earlier noted in the opinion, since Brown v. Allen, 344 U. S. 443 (1953), it has been the rule that the federal habeas petitioner who claims he is detained pursuant to a final judgment of a state court in violation of the United States Constitution is entitled to have the federal habeas court make its own independent determination of his federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings. This rule of Brown v. Allen is in no way changed by our holding today. Rather, we deal only with contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure. We leave open for resolution in future decisions the precise definition of the "cause" and "prejudice" standard, and note here only that it is narrower than the standard set forth in dicta in Fay v. Noia, 372 U. S. 391 (1963), which would make federal habeas review generally available to state convicts absent a knowing and deliberate waiver of the federal constitutional contention. It is the sweeping language of Fay v. Noia, going Page 433 U. S. 88 far beyond the facts of the case eliciting it, which we today reject. [Footnote 12]The reasons for our rejection of it are several. The contemporaneous objection rule itself is by no means peculiar to Florida, and deserves greater respect than Fay gives it, both for the fact that it is employed by a coordinate jurisdiction within the federal system and for the many interests which it serves in its own right. A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question. While the 1966 amendment to § 2254 requires deference to be given to such determinations made by state courts, the determinations themselves are less apt to be made in the first instance if there is no contemporaneous objection to the admission of the evidence on federal constitutional grounds.A contemporaneous objection rule may lead to the exclusion of the evidence objected to, thereby making a major contribution to finality in criminal litigation. Without the evidence claimed to be vulnerable on federal constitutional Page 433 U. S. 89 grounds, the jury may acquit the defendant, and that will be the end of the case; or it may nonetheless convict the defendant, and he will have one less federal constitutional claim to assert in his federal habeas petition. [Footnote 13] If the state trial judge admits the evidence in question after a full hearing, the federal habeas court pursuant to the 1966 amendment to § 2254 will gain significant guidance from the state ruling in this regard. Subtler considerations as well militate in favor of honoring a state contemporaneous objection rule. An objection on the spot may force the prosecution to take a hard look at its hole card, and, even if the prosecutor thinks that the state trial judge will admit the evidence, he must contemplate the possibility of reversal by the state appellate courts or the ultimate issuance of a federal writ of habeas corpus based on the impropriety of the state court's rejection of the federal constitutional claim.We think that the rule of Fay v. Noia, broadly stated, may encourage "sandbagging" on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off. The refusal of federal habeas courts to honor contemporaneous objection rules may also make state courts themselves less stringent in their enforcement. Under the rule of Fay v. Noia, state appellate courts know that a federal constitutional issue raised for the first time in the proceeding before them may well be decided in any event by a federal habeas tribunal. Thus, their choice is between addressing the issue notwithstanding the petitioner's failure to timely object, or else face Page 433 U. S. 90 the prospect that the federal habeas court will decide the question without the benefit of their views.The failure of the federal habeas courts generally to require compliance with a contemporaneous objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible, all issues which bear on this charge should be determined in this proceeding: the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous objection rule surely falls within this classification.We believe the adoption of the Francis rule in this situation will have the salutary effect of making the state trial on the merits the "main event," so to speak, rather than a "tryout on the road" for what will later be the determinative federal habeas hearing. There is nothing in the Constitution or in the language of § 2254 which requires that the state trial on the issue of guilt or innocence be devoted largely to the testimony of fact witnesses directed to the elements of the state crime, while only later will there occur in a federal habeas hearing a full airing of the federal constitutional claims which were not raised in the state proceedings. If a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right, there is every reason for his following state procedure in making known his objection.The "cause" and "prejudice" exception of the Francis rule Page 433 U. S. 91 will afford an adequate guarantee, we think, that the rule will not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who, in the absence of such an adjudication, will be the victim of a miscarriage of justice. Whatever precise content may be given those terms by later cases, we feel confident in holding without further elaboration that they do not exist here. Respondent has advanced no explanation whatever for his failure to object at trial, [Footnote 14] and, as the proceeding unfolded, the trial judge is certainly not to be faulted for failing to question the admission of the confession himself. The other evidence of guilt presented at trial, moreover, was substantial to a degree that would negate any possibility of actual prejudice resulting to the respondent from the admission of his inculpatory statement.We accordingly conclude that the judgment of the Court of Appeals for the Fifth Circuit must be reversed, and the cause remanded to the United States District Court for the Middle District of Florida with instructions to dismiss respondent's petition for a writ of habeas corpus.It is so ordered

U.S. Supreme CourtWainwright v. Sykes, 433 U.S. 72 (1977)Wainwright v. SykesNo. 75-1578Argued March 29, 1977Decided June 23, 1977433 U.S. 72SyllabusDuring respondent's trial for murder, inculpatory statements made by him to police officers were admitted into evidence. No challenge was made on the ground that respondent had not understood warnings read to him pursuant to Miranda v. Arizona, 384 U. S. 436, nor did the trial judge sua sponte question their admissibility or hold a factfinding hearing. Respondent, who was convicted, did not challenge the admissibility of the statements on appeal, though later he did so, unavailingly, in a motion to vacate the conviction and in state habeas corpus petitions. He then brought this federal habeas corpus action under 28 U.S.C. § 2254, asserting the inadmissibility of his statements by reason of his lack of understanding of the Miranda warnings. The District Court ruled that, under Jackson v. Denno, 378 U. S. 368, respondent had a right to a hearing in the state court on the voluntariness of the statements, and that he had not lost that right by failing to assert his claim at trial or on appeal. The Court of Appeals agreed that respondent was entitled to a Jackson v. Denno hearing, and ruled that respondent's failure to comply with Florida's procedural "contemporaneous objection rule" (which, except as specified, requires a defendant to make a motion to suppress evidence prior to trial) would not bar review of the suppression claim unless the right to object was deliberately bypassed for tactical reasons.Held: Respondent's failure to make timely objection under the Florida contemporaneous objection rule to the admission of his inculpatory statements, absent a showing of cause for the noncompliance and some showing of actual prejudice, bars federal habeas corpus review of his Miranda claim. Davis v. United States, 411 U. S. 233; Francis v. Henderson, 425 U. S. 536. Pp. 433 U. S. 77-91.(a) Florida's rule, in unmistakable terms and with specified exceptions, requires that motions to suppress be raised before trial. P. 433 U. S. 85.(b) There is no constitutional requirement in Jackson v. Denno, supra, or later cases that there be a voluntariness hearing absent some contemporaneous challenge to the use of a confession. P. 433 U. S. 86.(c) The sweeping language set forth in Fay v. Noia, 372 U. S. 391, Page 433 U. S. 73 which would render a State's contemporaneous objection rule ineffective to bar review of underlying federal claims in federal habeas corpus proceedings -- absent a "knowing waiver" or a "deliberate bypass" of the right to so object -- is rejected as according too little respect to the state contemporaneous objection rule. Such a rule enables the record to be made with respect to a constitutional claim when witnesses' recollections are freshest; enables the trial judge who observed the demeanor of witnesses to make the factual determinations necessary for properly deciding the federal question; and may, by forcing a trial court decision on the merits of federal constitutional contentions, contribute to the finality of criminal litigation. Conversely, the rule of Fay v. Noia may encourage defense lawyers to take their chances on a verdict of not guilty in a state trial court, intending to raise their constitutional claims in a federal habeas corpus court if their initial gamble fails, and detracts from the perception of the trial of a criminal case as a decisive and portentous event. Pp. 433 U. S. 87-90.(d) Adoption of the "cause" and "prejudice" test of Francis, while giving greater respect than did Fay to the operation of state contemporaneous objection rules, affords an adequate guarantee that federal habeas corpus courts will not be barred from hearing claims involving an actual miscarriage of justice. The procedural history of this case and the evidence as presented at trial indicate that there exist here neither "cause" nor "prejudice" as are necessary to support federal habeas corpus review of the underlying constitutional contention. Pp. 433 U. S. 90-91.528 F.2d 522, reversed and remanded.REHNQUIST, J, delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ., joined. BURGER, C.J., post, p. 433 U. S. 91, and STEVENS, J., post, p. 433 U. S. 94, filed concurring opinions. WHITE, J., filed an opinion concurring in the judgment, post, p. 433 U. S. 97. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 433 U. S. 99. Page 433 U. S. 74

1964_503

MR. JUSTICE BLACK delivered the opinion of the Court.This is a federal estate tax case, raising questions under § 2042(2) of the Internal Revenue Code of 1954, 26 U.S.C. § 2042(2) (1958 ed.), which requires inclusion in the gross estate of a decedent of amounts received by beneficiaries other than the executor from "insurance under policies on the life of the decedent" if the decedent "possessed at his death any of the incidents of ownership, exercisable either alone or in conjunction with any other person. . . ." [Footnote 1] The questions presented in this case are whether certain flight insurance policies payable upon the accidental death of the insured were policies "on the life of the decedent," and whether at his death he had reserved any of the "incidents of ownership" in the policies.These issues emerge from the following facts. Respondent Ruth M. Noel drove her husband from their home to New York International Airport, where he was to take an airplane to Venezuela. Just before taking off, Mr. Noel signed applications for two round-trip flight insurance policies, aggregating $125,000 and naming his wife as beneficiary. Mrs. Noel testified that she paid the premiums of $2.50 each on the policies, and that her husband then instructed the sales clerk to "give them to my Page 380 U. S. 680 wife. They are hers now, I no longer have anything to do with them." The clerk gave her the policies, which she kept. Less than three hours later, Mr. Noel's plane crashed into the Atlantic Ocean, and he and all others aboard were killed. Thereafter, the companies paid Mrs. Noel the $125,000 face value of the policies, which was not included in the estate tax return filed by his executors. The Commissioner of Internal Revenue determined that the proceeds of the policies should have been included, and the Tax Court sustained that determination, holding that the flight accident policies were insurance "on the life of the decedent"; that Mr. Noel had possessed exercisable "incidents of ownership" in the policies at his death; and that the $125,000 paid to Mrs. Noel as beneficiary was therefore includable in the gross estate. 39 T.C. 466. Although agreeing that decedent's reserved right to assign the policies and to change the beneficiary amounted to "exercisable incidents of ownership within the meaning of the statute," the Court of Appeals nevertheless reversed, holding that, given "its ordinary, plain and generally accepted meaning," the statutory phrase "policies on the life of the decedent" does not apply to insurance paid on account of accidental death under policies like those here. 332 F.2d 950. The court's reason for drawing the distinction was that, under a life insurance contract, an insurer "agrees to pay a specified sum upon the occurrence of an inevitable event," whereas accident insurance covers a risk "which is evitable, and not likely to occur." (Emphasis supplied.) 332 F.2d at 952. Because of the importance of an authoritative answer to these questions in the administration of the estate tax laws, we granted certiorari to decide them. 379 U.S. 927.IIn 1929, 36 years ago, the Board of Tax Appeals, predecessor to the Tax Court, held in Ackerman v. Commissioner, Page 380 U. S. 681 15 B.T.A. 635, that "amounts received as accident insurance" because of the death of the insured were includable in the estate of the deceased. [Footnote 2] The Board of Tax Appeals recognized that"there is a distinction between life insurance and accident insurance, the former insuring against death in any event, and the latter . . . against death under certain contingencies. . . ."The Court of Appeals in the case now before us considered this distinction between an "inevitable" and an "evitable" event to be of crucial significance under the statute. The Board of Tax Appeals in Ackerman did not, stating"we fail to see why one is not taken out upon the life of the policyholder as much as the other. In each case, the risk assumed by the insurer is the loss of the insured's life, and the payment of the insurance money is contingent upon the loss of life."This view of the Board of Tax Appeals is wholly consistent with the language of the statute itself, which makes no distinction between "policies on the life of the decedent" which are payable in all events and those payable only if death comes in a certain way or within a certain time. Even were the statutory language less clear, since the Board of Tax Appeals' Ackerman case, it has been the settled and consistent administrative practice to include insurance proceeds for accidental death under policies like these in the estates of decedents. The Treasury Regulations remain unchanged from the time of the Ackerman decision, [Footnote 3] and, from that day to this, Congress Page 380 U. S. 682 has never attempted to limit the scope of that decision or the established administrative construction of § 2042(2), although it has reenacted that section and amended it in other respects a number of times. [Footnote 4] We have held in many cases that such a longstanding administrative interpretation, applying to a substantially reenacted statute, is deemed to have received congressional approval, and has the effect of law. See, e.g., National Lead Co. v. United States, 252 U. S. 140, 252 U. S. 146; United States v. Dakota-Montana Oil Co., 288 U. S. 459, 288 U. S. 466. We hold here that these insurance policies, whether called "flight accident insurance" or "life insurance," were, in effect, insurance taken out on the "life of the decedent" within the meaning of § 2042(2).IIThe executors' second contention is that, even if these were policies "on the life of the decedent," Mrs. Noel owned them completely, and the decedent therefore possessed no exercisable incident of ownership in them at the time of his death so as to make the proceeds includable in his estate. While not clearly spelled out, the contention that the decedent reserved no incident of ownership in the policies rests on three alternative claims: (a) that Mrs. Noel purchased the policies, and therefore owned them; (b) that, even if her husband owned the policies, he gave them to her, thereby depriving himself of power to assign the policies or to change the beneficiary; and (c) even assuming he had contractual power to assign the policies or make a beneficiary change, this power was Page 380 U. S. 683 illusory, as he could not possibly have exercised it in the interval between take-off and the fatal crash in the Atlantic.(a) The contention that Mrs. Noel bought the policies, and therefore owned them, rests solely on her testimony that she furnished the money for their purchase, intending thereby to preserve her right to continue as beneficiary. Accepting her claim that she supplied the money to buy the policies for her own benefit (which the Tax Court did not decide), what she bought nonetheless were policy contracts containing agreements between her husband and the companies. The contracts themselves granted to Mr. Noel the right either to assign the policies or to change the beneficiary without her consent. Therefore, the contracts she bought, by their very terms, rebut her claim that she became the complete, unconditional owner of the policies, with an irrevocable right to remain the beneficiary.(b) The contention that Mr. Noel gave or assigned the policies to her, and therefore was without power thereafter to assign them or to change the beneficiary, stands no better under these facts. The contract terms provided that these policies could not be assigned, nor could the beneficiary be changed without a written endorsement on the policies. No such assignment or change of beneficiary was endorsed on these policies, and consequently the power to assign the policies or change the beneficiary remained in the decedent at the time of his death.(c) Obviously, there was no practical opportunity for the decedent to assign the policies or change the beneficiary between the time he boarded the plane and the time he died. That time was too short, and his wife had the policies in her possession at home. These circumstances disabled him for the moment from exercising those "incidents of ownership" over the policies, which were undoubtedly his. Death intervened before this temporary disability Page 380 U. S. 684 was removed. But the same could be said about a man owning an ordinary life insurance policy who boarded the plane at the same time, or for, that matter, about any man's exercise of ownership over his property while aboard an airplane in the three hours before a fatal crash. It would stretch the imagination to think that Congress intended to measure estate tax liability by an individual's fluctuating, day-by-day, hour-by-hour capacity to dispose of property which he owns. We hold that estate tax liability for policies "with respect to which the decedent possessed at his death any of the incidents of ownership" depends on a general, legal power to exercise ownership, without regard to the owner's ability to exercise it at a particular moment. Nothing we have said is to be taken as meaning that a policyholder is without power to divest himself of all incidents of ownership over his insurance policies by a proper gift or assignment, so as to bar its inclusion in his gross estate under § 2042(2). What we do hold is that no such transfer was made of the policies here involved. The judgment of the Court of Appeals is reversed, and the judgment of the Tax Court is affirmed.It is so ordered

U.S. Supreme CourtCommissioner v. Estate of Noel, 380 U.S. 678 (1965)Commissioner of Internal Revenue v. Estate of NoelNo. 503Argued April 1, 1965Decided April 29, 1965380 U.S. 678SyllabusJust prior to boarding an airplane which later crashed in flight, decedent applied for flight insurance policies, naming his wife as beneficiary. The policies, which granted the insured the right to assign them or to change the beneficiary, were handed to the wife, who was paid their face value following the decedent's death from the crash. The petitioner determined that the proceeds should have been included in the estate tax return pursuant to 26 U.S. C. §2042 (2), which requires inclusion of amounts received by beneficiaries from insurance on the life of the decedent if, at his death, he possessed any of the incidents of ownership. The Tax Court sustained the Commissioner's ruling, but the Court of Appeals reversed, distinguishing life insurance, payable inevitably, from accident insurance, which covers an evitable risk.Held:1. In accordance with longstanding and consistent administrative interpretation deemed to have the effect of law, as applied to this substantially reenacted statute, these insurance policies were on the "life of the decedent" within the meaning of § 2042(2). Ackerman v. Commissioner, 15 B.T.A. 635, followed. Pp. 380 U. S. 680-682.2. For estate tax purposes decedent possessed incidents of ownership at the time of his death, without regard to his ability to exercise them at any given moment, as he had the power of assignment of the policy or to change the beneficiary. Pp. 380 U. S. 682-684.332 F.2d 950, reversed. Page 380 U. S. 679

1962_491

MR. JUSTICE STEWART delivered the opinion of the Court.The two petitioners and a codefendant were convicted in a Federal District Court upon a three-count indictment charging that they had (1) assaulted a Post Office employee with intent to rob in violation of 18 U.S.C. § 2114, (2) put the life of the Post Office employee in jeopardy by the use of a dangerous weapon in violation of 18 U.S.C. § 2114, and (3) conspired together to violate the aforesaid statute in violation of 18 U.S.C. § 371. The district judge sentenced each defendant to concurrent prison terms of 25 years on Count 2 and five years on Count 3. [Footnote 1] None of the defendants was asked before the sentences were imposed whether he had anything to say in his own behalf. On appeal, the convictions were affirmed, but the cases were remanded to the District Court for resentencing on Count 2 on the ground that the trial judge had been in error in thinking that, under the statute, [Footnote 2] he was without power to suspend sentence and grant probation on that count. United States v. Donovan, 242 F.2d 61. Upon remand, the District Court suspended the 25-year sentence which had been imposed on the petitioners' codefendant, but resentenced the two Page 373 U. S. 336 petitioners to 25-year prison terms. Again, neither petitioner was afforded an opportunity to speak in his own behalf before the sentences were imposed. The Court of Appeals reaffirmed the convictions. United States v. Donovan, 252 F.2d 788.The proceedings now before us began when the petitioner Donovan filed a motion in the District Court requesting that his sentence "be vacated and he be resentenced" on the ground that, contrary to Rule 32(a) of the Federal Rules of Criminal Procedure, he had been afforded no opportunity to make a statement in his own behalf either at the time of the original sentence or when the sentence was reimposed. [Footnote 3] The District Court granted the motion and ordered that Donovan "be returned to this district for resentencing." The petitioner Andrews then wrote to Judge Murphy, the district judge who had acted on Donovan's motion, pointing out that "the identical circumstances exist with me," and asking for similar relief. Judge Murphy ordered that Andrews too be returned to the District Court for resentencing. The Government filed a notice of appeal from both orders, and the resentencing of the petitioners was stayed upon the Government's motion. The Court of Appeals ruled that its appellate jurisdiction had been properly invoked, and on the merits reversed the orders of the District Court, holding that, under this Court's decisions in Hill v. United States, 368 U. S. 424, and Machibroda v. United States, 368 U. S. 487, the sentencing court's failure to comply with Rule 32(a) did not constitute a ground for collateral relief. 301 F.2d 376. We granted certiorari, 371 U.S. 812.As to the merits of the issue decided by the Court of Appeals, the petitioners contend that there was here not Page 373 U. S. 337 a mere failure to comply with the formal requirements of Rule 32(a), as in Hill and Machibroda, but that a number of aggravating circumstances accompanied the sentencing court's denial of the petitioners' right of allocution. And the Court's opinions in Hill and Machibroda, say the petitioners, clearly implied that collateral relief would be available in a case where such circumstances were shown to exist. Cf. United States v. Taylor, 303 F.2d 165, 167-168. But the petitioners argue preliminarily that the Government had no right of appeal in these cases. We agree with the petitioners that the Court of Appeals did not have appellate jurisdiction, and accordingly, without reaching the merits, we set aside the judgment of the Court of Appeals and remand the cases to the District Court so that the petitioners may be resentenced in accordance with the District Court's orders.The motion which Donovan filed in the sentencing court was denominated by him as one made under Rule 35 of the Federal Rules of Criminal Procedure. [Footnote 4] Anderson's letter did not mention Rule 35, but, in an affidavit opposing Anderson's request, an Assistant United States Attorney conceded that the "factual and legal posture of this application therefore is identical to the similar motion of Robert L. Donovan." Both applications were filed in the District Court under the docket number of the original criminal case.In view of this treatment of the motions by the parties and the trial court, the Court of Appeals was asked to consider the motions also as filed in the original criminal cases under Rule 35, and to hold that the trial court's rulings could not be appealed by the Government because they did not come within the limited purview of the Criminal Appeals Act. [Footnote 5] This reasoning the Court of Appeals Page 373 U. S. 338 declined to adopt, treating the motions instead as having been brought under the provisions of 28 U.S.C. § 2255.The court was correct in regarding Hill v. United States, supra, as requiring this view, in the case of a prisoner in custody under the sentence he is attacking. Cf. United States v. Morgan, 346 U. S. 502. And in this area of the law, as the Court of Appeals pointed out, "adjudication upon the underlying merits of claims is not hampered by reliance upon the titles petitioners put upon their documents." 301 F.2d at 378. See Heflin v. United States, 358 U. S. 415. Section 2255 explicitly authorizes a prisoner in custody under a sentence imposed by a federal court to attack such a sentence collaterally upon the ground that the sentence "was imposed in violation of the . . . laws of the United States," by moving the trial court "to vacate, set aside or correct the sentence." [Footnote 6]An action under 28 U.S.C. § 2255 is a separate proceeding, independent of the original criminal case. United States v. Hayman, 342 U. S. 205. The Criminal Appeals Act has no applicability to such a proceeding. Instead, § 2255 itself provides that"An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus. "Page 373 U. S. 339We cannot agree with the Court of Appeals, however, that, under this provision, the Government had a right to take appeals at the time it sought to do so in these cases, because we think it clear that the orders were interlocutory, not final. For a federal prisoner, § 2255 can perform the full service of habeas corpus by effecting the immediate and unconditional discharge of the prisoner. Sanders v. United States, 372 U. S. 1 (1963). But the provisions of the statute make clear that, in appropriate cases, a § 2255 proceeding can also be utilized to provide a more flexible remedy. In the present cases, neither of the petitioners ever asked for his unconditional release. What they asked, and were granted, was the vacation of the sentences they were serving so that they might be returned to the trial court to be resentenced in proceedings in which their right to allocution would be accorded them. Such a remedy is precisely authorized by the statute. Under § 2255, a petitioner may "move the court which imposed the sentence to vacate, set aside or correct the sentence." [Footnote 7] And, in response to such a motion, a District Court is expressly authorized to "discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." [Footnote 8] Page 373 U. S. 340 Where, as here, what was appropriately asked and appropriately granted was the resentencing of the petitioners, it is obvious that there could be no final disposition of the § 2255 proceedings until the petitioners were resentenced. Cf. Parr v. United States, 351 U. S. 513, 351 U. S. 518.The long established rule against piecemeal appeals in federal cases and the overriding policy considerations upon which that rule is founded have been repeatedly emphasized by this Court. See, e.g., DiBella v. United States, 369 U. S. 121; Carroll v. United States, 354 U. S. 394; Cobbledick v. United States, 309 U. S. 323. The standards of finality to which the Court has adhered in habeas corpus proceedings have been no less exacting. See, e.g., Collins v. Miller, 252 U. S. 364. There, the Court said that the rule as to finality"requires that the judgment to be appealable should be final not only as to all the parties, but as to the whole subject matter and as to all the causes of action involved."252 U.S. at 252 U. S. 370.The basic reason for the rule against piecemeal interlocutory appeals in the federal system is particularly apparent in the cases before us. Until the petitioners are resentenced, it is impossible to know whether the Government will be able to show any colorable claim of prejudicial error. The District Court may, as before, sentence the petitioners to the same 25 years' imprisonment; it may place one or both of them on probation; it may make some other disposition with respect to their sentences. But until the court acts, none of the parties to this controversy will have had a final adjudication of his claims by the trial court in these § 2255 proceedings.The judgment of the Court of Appeals is set aside, and the cases are remanded to the District Court for the Southern District of New York for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtAndrews v. United States, 373 U.S. 334 (1963)Andrews v. United StatesNo. 491Argued March 25-26, 1963Decided May 20, 1963*373 U.S. 334SyllabusIn a Federal District Court, petitioners were convicted of violating certain federal criminal statutes and were sentenced to imprisonment. Their convictions were affirmed by the Court of Appeals, but their cases were remanded for resentencing. They were resentenced, and the judgments were affirmed by the Court of Appeals. Several years later, petitioners moved in the District Court that their sentences be vacated and that they be resentenced, on the ground that they had not been given an opportunity to make statements in their own behalves, as required by Federal Rule of Criminal Procedure 32(a), either when they were originally sentenced or when they were resentenced. Finding this to be true, the District Court granted their motions and ordered that petitioners be returned to it for resentencing. Without waiting for them to be resentenced, the Government appealed to the Court of Appeals.Held: Petitioners' motions should be considered as having been made in collateral proceedings under 28 U.S.C. § 2255; the District Court's orders were interlocutory, not final; and the Court of Appeals did not have jurisdiction of the Government's appeal. Pp. 373 U. S. 335-340.301 F.2d 376, judgment set aside and cases remanded. Page 373 U. S. 335

1990_89-5867

Chief Justice REHNQUIST delivered the opinion of the Court.In April 1986, petitioner, Shirley Irwin, was fired from his job by respondent Veteran's Administration (VA). Irwin contacted an equal employment opportunity Page 498 U. S. 91 counselor and filed a complaint with the EEOC, alleging that the VA had unlawfully discharged him on the basis of his race and physical disability. The EEOC dismissed Irwin's complaint by a letter dated March 19, 1987. The letter, which was sent to both Irwin and his attorney, expressly informed them that Irwin had the right to file a civil action under Title VII, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., within 30 days of receipt of the EEOC notice. According to Irwin, he did not receive the EEOC's letter until April 7, 1987, and the letter to his attorney arrived at the attorney's office on March 23, 1987, while the attorney was out of the country. The attorney did not learn of the EEOC's action until his return on April 10, 1987.Irwin filed a complaint in the United States District Court for the Western District of Texas on May 6, 1987, 44 days after the EEOC notice was received at his attorney's office, but 29 days after the date on which he claimed he received the letter. The complaint alleged that the VA discriminated against him because of his race, age, and handicap, in violation of 42 U.S.C. § 2000e et seq., 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq., 87 Stat. 390, as amended, 29 U.S.C. § 791 et seq., and the First and Fifth Amendments. Respondent VA moved to dismiss, asserting, inter alia, that the District Court lacked jurisdiction because the complaint was not filed within 30 days of the EEOC's decision, as specified in 42 U.S.C. § 2000e-16(c). The District Court granted the motion.The Court of Appeals for the Fifth Circuit affirmed. 874 F.2d 1092 (1989). The court held that the 30-day period begins to run on the date that the EEOC right-to-sue letter is delivered to the offices of formally designated counsel or to the claimant, even if counsel himself did not actually receive notice until later. Id. at 1094. The Court of Appeals further determined that the 30-day span allotted under § 2000e-16(c) Page 498 U. S. 92 operates as an absolute jurisdictional limit. Id. at 1095. Accordingly, it reasoned that the District Court could not excuse Irwin's late filing, because federal courts lacked jurisdiction over his untimely claim. Ibid. That holding is in direct conflict with the decisions of four other Courts of Appeals. [Footnote 1]We granted certiorari to determine when the 30-day period under § 2000e-16(c) begins to run and to resolve the Circuit conflict over whether late-filed claims are jurisdictionally barred.Section 2000e-16(c) provides that an employment discrimination complaint against the Federal Government under Title VII must be filed "[w]ithin thirty days of receipt of notice of final action taken" by the EEOC. The Court of Appeals determined that a notice of final action is "received" when the EEOC delivers its notice to a claimant or the claimant's attorney, whichever comes first. Id. at 1094. Petitioner argues that the clock does not begin until the claimant himself has notice of his right to sue.We conclude that Irwin's complaint filed in the District Court was untimely. As the Court of Appeals observed, § 2000e-16(c) requires only that the EEOC notification letter be "received"; it does not specify receipt by the claimant, rather than by the claimant's designated representative. There is no question but that petitioner appeared by his attorney in the EEOC proceeding. Under our system of representative litigation,"each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.'"Link v. Wabash R. Co., 370 U. S. 626, 370 U. S. 634 (1962) (quoting Smith v. Ayer, 101 U. S. 320, 101 U. S. 326 (1880)). Congress has endorsed this sensible practice in the analogous provisions of Page 498 U. S. 93 the Federal Rules of Civil Procedure, which provide that"[w]henever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court."Fed.Rule Civ.Proc. 5(b). To read the term "receipt" to mean only "actual receipt by the claimant" would render the practice of notification through counsel a meaningless exercise. If Congress intends to depart from the common and established practice of providing notification through counsel, it must do so expressly. See Decker v. Anheuser-Busch, 632 F.2d 1221, 1224 (CA5 1980).We also reject Irwin's contention that there is a material difference between receipt by an attorney and receipt by that attorney's office for purposes of § 2000e-16(c). The lower federal courts have consistently held that notice to an attorney's office which is acknowledged by a representative of that office qualifies as notice to the client. See Ringgold v. National Maintenance Corp., 796 F.2d 769 (CA5 1986); Josiah-Faeduwor v. Communications Satellite Corp., 251 U.S.App. D.C. 346, 785 F.2d 344 (1986). Federal Rule of Civil Procedure 5(b) also permits notice to a litigant to be made by delivery of papers to the litigant's attorney's office. The practical effect of a contrary rule would be to encourage factual disputes about when actual notice was received, and thereby create uncertainty in an area of the law where certainty is much to be desired.The fact that petitioner did not strictly comply with § 2000e-16(c)'s filing deadline does not, however, end our inquiry. Petitioner contends that, even if he failed to timely file, his error may be excused under equitable tolling principles. The Court of Appeals rejected this argument on the ground that the filing period contained in § 2000e-16(c) is jurisdictional, and therefore the District Court lacked authority to consider his equitable claims. The court reasoned that § 2000e-16(c) applies to suits against the Federal Government, Page 498 U. S. 94 and thus is a condition of Congress' waiver of sovereign immunity. Since waivers of sovereign immunity are traditionally construed narrowly, the court determined that strict compliance with § 2000e-16(c) is a necessary predicate to a Title VII suit.Respondent correctly observes that § 2000e-16(c) is a condition to its waiver of sovereign immunity, and thus must be strictly construed. See Library of Congress v. Shaw, 478 U. S. 310 (1986). But our previous cases dealing with the effect of time limits in suits against the Government have not been entirely consistent, even though the cases may be distinguished on their facts. In United States v. Locke, 471 U. S. 84, 471 U. S. 94, n. 10 (1985), we stated that we were leaving open the general question of whether principles of equitable tolling, waiver, and estoppel apply against the Government when it involves a statutory filing deadline. But, as Justice WHITE points out in his concurring opinion, nearly thirty years earlier, in Soriano v. United States, 352 U. S. 270 (1957), we held the petitioner's claim to be jurisdictionally barred, saying that "Congress was entitled to assume that the limitation period it prescribed meant just that and no more." 352 U.S. at 352 U. S. 276. More recently, in Bowen v. City of New York, 476 U. S. 467, 476 U. S. 479 (1986), we explained that"we must be careful not to 'assume the authority to narrow the waiver that Congress intended,' or construe the waiver 'unduly restrictively.'"(citation omitted).Title 42 U.S.C. § 2000e-16(c) provides in relevant part:"Within thirty days of receipt of notice of final action taken by . . . the Equal Employment Opportunity Commission . . . an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title. . . ."The phraseology of this particular statutory time limit is probably very similar to some other statutory limitations on Page 498 U. S. 95 suits against the Government, but probably not to all of them. In the present statute, Congress said that "within thirty days . . . an employee . . . may file a civil action . . . ." In Soriano, supra, Congress provided that "every claim . . . shall be barred unless the petition . . . is filed . . . within six years . . . ." An argument can undoubtedly be made that the latter language is more stringent than the former, but we are not persuaded that the difference between them is enough to manifest a different congressional intent with respect to the availability of equitable tolling. Thus a continuing effort on our part to decide each case on an ad hoc basis, as we appear to have done in the past, would have the disadvantage of continuing unpredictability without the corresponding advantage of greater fidelity to the intent of Congress. We think that this case affords us an opportunity to adopt a more general rule to govern the applicability of equitable tolling in suits against the Government.Time requirements in lawsuits between private litigants are customarily subject to "equitable tolling," Hallstrom v. Tillamook County, 493 U.S. ___, ___ (1989). Indeed, we have held that the statutory time limits applicable to lawsuits against private employers under Title VII are subject to equitable tolling. [Footnote 2]A waiver of sovereign immunity "cannot be implied, but must be unequivocally expressed.'" United States v. Mitchell, 445 U. S. 535, 445 U. S. 538 (1980) (quoting United States v. King, 395 U. S. 1, 395 U. S. 4 (1969)). Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver. Such a principle is likely to be a realistic assessment of legislative intent, as well as a practically useful principle of interpretation. We therefore hold that the same rebuttable presumption of equitable Page 498 U. S. 96 tolling applicable to suits against private defendants should also apply to suits against the United States. Congress, of course, may provide otherwise if it wishes to do so.But an examination of the cases in which we have applied the equitable tolling doctrine as between private litigants affords petitioner little help. Federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, [Footnote 3] or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. [Footnote 4] We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights. Baldwin County Welcome Center v. Brown, 466 U. S. 147, 466 U. S. 151 (1984). Because the time limits imposed by Congress in a suit against the Government involve a waiver of sovereign immunity, it is evident that no more favorable tolling doctrine may be employed against the Government than is employed in suits between private litigants.Petitioner urges that his failure to file in a timely manner should be excused because his lawyer was absent from his office at the time that the EEOC notice was received, and that he thereafter filed within 30 days of the day on which he personally received notice. But the principles of equitable tolling described above do not extend to what is, at best, a garden variety claim of excusable neglect.The judgment of the Court of Appeals is accordinglyAffirmed

U.S. Supreme CourtIrwin v. Veterans Administration, 498 U.S. 89 (1990)Irwin v. Veterans AdministrationNo. 89-5867Argued Oct. 1, 1990Decided Dec. 3, 1990498 U.S. 89SyllabusPetitioner Irwin filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming that he had been unlawfully fired by respondent Veterans Administration on the basis of his race and disability. The EEOC dismissed the complaint on March 19, 1987, mailing copies of a right-to-sue letter to both Irwin and his attorney. Irwin received the letter on April 7. His attorney received actual notice of the letter on April 10, having been out of the country when it was delivered to his office on March 23. Forty-four days after his attorney's office received the letter and twenty-nine days after Irwin received his copy, he filed an action in the District Court, alleging, inter alia, a violation of Title VII of the Civil Rights Act of 1964. The court dismissed the case for lack of jurisdiction on the ground that the complaint was not filed within the time specified by 42 U.S.C. § 2000e-16(c), which provides that a complaint against the Federal Government must be filed within 30 days "of receipt of notice of final action taken" by the EEOC. The Court of Appeals affirmed, holding that a notice of final action is "received" when the EEOC delivers its notice to a claimant or his attorney's offices, whichever comes first, and that the 30-day span operates as an absolute jurisdictional limit.Held:1. Irwin's complaint was untimely. Section 2000e-16(c) requires that the EEOC's letter be "received," but does not specify that receipt must be by the claimant, rather than by his representative. Congress may depart from the common and established practice of providing notification through counsel only if it does so expressly. Irwin's argument that there is a material difference between receipt by an attorney and receipt by his office for purposes of § 2000e-16(c) is rejected. Lower courts have consistently held that notice to an attorney's office which is acknowledged by a representative of that office qualifies as notice to the client, and the practical effect of a contrary rule would be to create uncertainty by encouraging factual disputes about when actual notice was received. Pp. 498 U. S. 92-93.2. Statutes of limitations in actions against the Government are subject to the same rebuttable presumption of equitable tolling applicable to suits Page 498 U. S. 90 against private defendants. Applying the same rule amounts to little, if any, broadening of a congressional waiver of sovereign immunity. Pp. 498 U. S. 93-96.3. Irwin's failure to file may not be excused under equitable tolling principles. Federal courts have typically extended equitable relief only sparingly in suits against private litigants, allowing tolling where the claimant has actively pursued his judicial remedies by filing a defective pleading or where he has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Such equitable tolling principles do not extend to Irwin's claim that his untimely filing should be excused because his attorney was out of the office when the notice was received and he filed within 30 days of the date he personally received notice, which is at best a garden variety claim of excusable neglect. P. 498 U. S. 96874 F.2d 1092 (CA5 1989), affirmed.REHNQUIST, C.J., delivered the opinion of the Court, in which BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. WHITE, J., filed an opinion concurring in part and concurring in the judgment, in which MARSHALL, J., joined, post, p. 498 U. S. 97. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 498 U. S. 101. SOUTER, J., took no part in the consideration or decision of the case.

1958_51

Opinion of the Court by MR. JUSTICE BLACK, announced by MR. JUSTICE HARLAN.David H. Scull was convicted of contempt in the Circuit Court of Arlington County, Virginia, for refusing to obey a decision of that court ordering him to answer a number of questions put to him by a Legislative Investigative Committee of the Virginia General Assembly. On Page 359 U. S. 345 appeal, the Virginia Supreme Court of Appeals affirmed without opinion. Scull contended at the Committee hearings, in the courts below, and in this Court that the Virginia statute authorizing the investigation, both on its face and as applied, violated the Fourteenth Amendment to the United States Constitution. He claimed, among other things, that: (1) the Committee was"established and given investigative authority, as part of a legislative program of 'massive resistance' to the United States Constitution and the Supreme Court's desegregation decisions, in order to harass, vilify, and publicly embarrass members of the NAACP and others who are attempting to secure integrated public schooling in Virginia."(2) The questions asked him violated his rights of free speech, assembly and petition by constituting an unjustified restraint upon his associations with others in "legal and laudable political and humanitarian causes." (3)"The information sought from [him] was neither intended to, nor could reasonably be expected to, assist the Legislature in any proper legislative function."(4) Despite his requests, repeated at every stage of the proceedings, the Committee failed to inform him "in what respect its questions were pertinent to the subject under inquiry. . . ." We granted certiorari to consider these constitutional challenges to the validity of petitioner's contempt conviction. 357 U.S. 903. After careful consideration, we find it unnecessary to pass on any of these constitutional questions except the last one, because we think the record discloses an unmistakable cloudiness in the testimony of the Committee Chairman as to what was sought of Scull, as well as why it was sought. Scull was therefore not given a fair opportunity, at the peril of contempt, to determine whether he was within his rights in refusing to answer, and consequently his conviction must fall under the procedural requirements of the Fourteenth Amendment. Page 359 U. S. 346Scull is a printer and calendar publisher in Annandale, Virginia, where he has been a long-time resident active in religious, civic, and welfare groups. Soon after this Court's decision in Brown v. Board of Education, 347 U. S. 483, holding segregation in the public schools to be unconstitutional, Scull began to advocate compliance with the requirements of the Brown case. In December of 1954, Scull and a group of other citizens met at a church in Alexandria to consider and discuss"the part which concerned and conscientious citizens can best play in helping to achieve the community adjustments necessary to protect the educational and constitutional rights of all citizens as recently defined and interpreted by the Supreme Court of the United States."The group decided to prepare and publish through a "Citizens Clearing House On Public Education" information about the Virginia educational program, and to report on the progress made by various Parent-Teacher Associations in Northern Virginia in developing programs for "orderly integration."One of the newsletters published by the Clearing House was obtained by the Fairfax Citizens' Council, a group which vigorously opposed any desegregation of Virginia schools. The Council republished a large part of the letter in a pamphlet entitled "The Shocking Truth!" It called attention to the fact that the newsletter was being "disseminated through Box 218, Annandale, Va. (David Scull)," and stated that"communications with the NAACP, Southern Regional Council, Clearing House, B'nai B'rith, Council on Human Relations, American Friends, and many other pro-integration groups are funneled through Box 218, Annandale, Va., and membership is encouraged if not actually suggested by the PTA Federation."The pamphlet came to the attention of Delegate James M. Thomson, Chairman of the Virginia Committee on Page 359 U. S. 347 Law Reform and Racial Activities, who promptly subpoenaed Scull to appear and testify. This group, commonly called the "Thomson Committee," was established a few months after the Virginia General Assembly adopted a resolution attacking the Brown decision and pledging that the Legislature would take all constitutionally available measures to resist desegregation in the public schools. [Footnote 1] The bill setting up the "Thomson Committee" was one of a series relating to segregation passed on the same day. Among these were bills establishing a pupil assignment plan, providing for the withdrawal of state funds from integrated schools, and forbidding barratry, champerty, and maintenance. [Footnote 2] While they did not mention the NAACP by name, Chairman Thomson testified below that, in the course of the "legislative battle" over them, he had stated that, with "this set of bills . . . , we can bust that organization . . . wide open.'"Scull appeared before the Thomson Committee as ordered. He answered several questions about his publishing business, and then was asked whether he belonged "to an organization known as The Fairfax County Council on Human Relations." He replied that,"on advice of counsel, I wish to state that the language of the subpoena delivered to me was so broad and vague . . . that, before going further, I wish to ask you to tell me the specific subject of your inquiry today, so that I may judge which of your questions are pertinent."Chairman Thomson told him that the general subjects under inquiry were "threefold": (1) the tax status of racial organizations and of contributions to them; (2) the effect of integration or its threat on the public schools of Virginia and on the State's general welfare; and (3) the violation of certain statutes Page 359 U. S. 348 against "champerty, barratry, and maintenance, or the unauthorized practice of the law." [Footnote 3] He told Scull, however, that several of these subjects "primarily do not deal with you." Scull then filed a statement of his objections to the questioning, and emphasized that he had not been "properly informed of the subject of inquiry." Without clarifying Chairman Thomson's ambiguous statement or specifying which of the "several" subjects did not apply to Scull, the Committee proceeded to ask the 31 questions listed in the footnote below. [Footnote 4] Page 359 U. S. 349It is difficult to see how some of these questions have any relationship to the subjects the Committee was authorized to investigate, or how Scull could possibly discover any such relationship from the Chairman's statement. [Footnote 5] Page 359 U. S. 350 It does seem that several of the questions asked were aimed at connecting Scull with barratry or champerty, but it was never made wholly clear to Scull, either before or after the questioning, that this was one of the subjects under inquiry as far as he was concerned. Nevertheless, Scull was cited to appear before the Circuit Court to show cause why he should not be compelled to answer.In the Circuit Court, the Chairman sought to explain his ambiguous statements about the scope of the investigation. Far from clarifying the matter, however, his Page 359 U. S. 351 testimony added to the confusion, since he successively ruled out as inapplicable to Scull each of the subjects which the Legislature had authorized the Committee to investigate. On first being asked which of the three subjects applied to Scull, he testified:"For my personal standpoint, I would say that the one dealing with the taxable status does not affect him here, and likewise the one -- I have forgotten whether I stated it or not, but I would think that the integration or the threat of integration on public school systems, on the general welfare, would apply.""Looking at it in retrospect, the other on champerty, barratry, and maintenance would not apply. I don't recall whether I did say or did not say. We did specifically with the third one: champerty, barratry, and maintenance."Later, the following colloquy took place:"Counsel for Scull: Q. Now, is it also correct that you said several which primarily do not deal with you?""Chairman Thomson: A. If the transcript says it there, I said it.""Q. Which of those three were you referring to when you said, 'several which primarily do not deal with you?'""A. I think it is the last mentioned there. [The last mentioned was barratry.]""Q. Would you just state for the record, so that it is clear on the record, which ones you were referring to that did not deal with Mr. Scull?""A. The violation of those statutes dealing with champerty, barratry, and maintenance, and general unauthorized practice of the law.""Q. Those did not deal with Mr. Scull? "Page 359 U. S. 352"A. No, no; I think, in the connection that we are dealing with here, that the ones spoken of first did not apply; only the latter one did apply that I was making.""Q. Now I am confused."Subsequently, Chairman Thomson stated that barratry applied to a certain "section of the testimony," but did not identify which section. Still later, he undertook to specify the section, but, instead of doing so, he made what may have been a general retraction, and said,"The whole statement would be applicable to the entire transcript, and the fact that he was advised of each one of them would be applicable to the entire transcript."The judge who ordered Scull to answer the questions made no clearer statement of their pertinence to the investigation or to basic state interests than had the Committee Chairman. His holding was merely that"the questions are of a preliminary nature, and, in developing the inquiry to secure the information which the Committee is after, appears to the Court to be perfectly proper line of inquiry."He at no time analyzed the individual questions asked, nor explained to Scull what it was that the Committee wanted from him, and how the questions put to him related to these desires.The events leading to Scull's subpoena, as well as the questions asked him, make it unmistakably clear that the Committee's investigation touched an area of speech, press, and association of vital public importance. [Footnote 6] In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 460-466, this Court Page 359 U. S. 353 held that such areas of individual liberty cannot be invaded unless a compelling state interest is clearly shown. [Footnote 7] But we do not reach that question, because the record shows that the purposes of the inquiry, as announced by the Chairman, were so unclear, in fact, conflicting, that Scull did not have an opportunity of understanding the basis for the questions or any justification on the part of the Committee for seeking the information he refused to give. See Watkins v. United States, 354 U. S. 178, 354 U. S. 208-209, 354 U. S. 214-215. To sustain his conviction for contempt under these circumstances would be to send him to jail for a crime he could not with reasonable certainty know he was committing. This Court has often held that fundamental fairness requires that such reasonable certainty exist. See Lanzetta v. New Jersey, 306 U. S. 451, 306 U. S. 453; Jordan v. De George, 341 U. S. 223, 341 U. S. 230; Watkins v. United States, 354 U. S. 178, 354 U. S. 208-209, 354 U. S. 214-215, 354 U. S. 217; Flaxer v. United States, 358 U. S. 147, 358 U. S. 151. Certainty is all the more essential when vagueness might induce individuals to forego their rights of speech, press, and association for fear of violating an unclear law. Winters v. New York, 333 U. S. 507. Such is plainly the case here. The information given to Scull was far too wavering, confused and cloudy to sustain his conviction.The case is reversed and remanded to the Virginia Supreme Court of Appeals for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtScull v. Virginia, 359 U.S. 344 (1959)Scull v. VirginiaNo. 51Argued November 18, 1958Decided May 4, 1959359 U.S. 344SyllabusPetitioner was convicted in a State Court of contempt, and sentenced to fine and imprisonment for refusing to obey an order of that Court to answer certain questions put to him by an Investigating Committee of the State Legislature. The events leading to his subpoena, as well as the questions asked him, made it clear that the Committee's investigation touched the area of free speech, press, and association, and the record showed that the purposes of the inquiry, as announced by the Chairman of the Committee, were so unclear and conflicting that petitioner did not have a fair opportunity of understanding the basis of the questions or any justification on the Committee's part for seeking the information he refused to give.Held: his conviction violated the Due Process Clause of the Fourteenth Amendment, since he was not given a fair opportunity, at the peril of contempt, to determine whether he was within his rights in refusing to answer. He cannot be sent to jail for a crime he could not with reasonable certainty know he was committing. Pp. 359 U. S. 344-353.Reversed.

1987_87-5468

JUSTICE STEVENS delivered the opinion of the Court.In 1982, petitioner was convicted of murder and sentenced to death. The sentence was predicated, in part, on the fact that petitioner had been convicted of a felony in New York in 1963. After the Mississippi Supreme Court affirmed petitioner's death sentence, the New York Court of Appeals reversed the 1963 conviction. Petitioner thereafter unsuccessfully sought postconviction relief from the Mississippi Supreme Court. The question presented to us is whether the state court was correct in concluding that the reversal of the New York conviction did not affect the validity of a death sentence based on that conviction.IOn December 31, 1981, petitioner and three companions were stopped for speeding by a Mississippi highway patrolman. While the officer was searching the car, petitioner stabbed him and, in the ensuing struggle, one of his companions obtained the officer's gun and used it to kill him. Petitioner was apprehended, tried and convicted of murder, and sentenced to death. At the conclusion of the sentencing Page 486 U. S. 581 hearing, the jury found three aggravating circumstances, [Footnote 1] any one of which, as a matter of Mississippi law, would have been sufficient to support a capital sentence. After weighing mitigating circumstances and aggravating circumstances "one against the other," the jury found"that the aggravating circumstances do outweigh the mitigating circumstances, and that the Defendant should suffer the penalty of death."13 Record 2290, 2294; App. 32. The Mississippi Supreme Court affirmed the conviction and sentence, Johnson v. State, 477 So. 2d 196 (1985), and we denied certiorari, 476 U.S. 1109 (1986).The sole evidence supporting the aggravating circumstance that petitioner had been "previously convicted of a felony involving the use or threat of violence to the person of another" consisted of an authenticated copy of petitioner's commitment to Elmira Reception Center in 1963 following his conviction in Monroe County, New York, for the crime of second-degree assault with intent to commit first-degree rape. App. 8-9. The prosecutor repeatedly referred to that evidence in the sentencing hearing, stating in so many words: "I say that, because of having been convicted of second degree assault with intent to commit first degree rape and capital murder, that Samuel Johnson should die." 13 Record 2276; App. 23. [Footnote 2] Page 486 U. S. 582Prior to the assault trial in New York in 1963, the police obtained an incriminating statement from petitioner. Despite petitioner's objection that the confession had been coerced, it was admitted into evidence without a prior hearing on the issue of voluntariness. Moreover, after petitioner was convicted, he was never informed of his right to appeal. He made three efforts to do so without the assistance of counsel, each of which was rejected as untimely. After his Mississippi conviction, however, his attorneys successfully prosecuted a post-conviction proceeding in New York in which they persuaded the Monroe County Court that petitioner had been unconstitutionally deprived of his right to appeal. The County Court then entered a new sentencing order from which petitioner was able to take a direct appeal. In that proceeding, the New York Court of Appeals reversed his conviction. [Footnote 3] People v. Johnson, 69 N.Y.2d 339, 506 N.E.2d 1177 (1987). Page 486 U. S. 583Petitioner filed a motion in the Mississippi Supreme Court seeking postconviction relief from his death sentence on the ground that the New York conviction was invalid and could not be used as an aggravating circumstance. That motion was filed before the New York proceeding was concluded, but it was supplemented by prompt notification of the favorable action taken by the New York Court of Appeals. Nevertheless, over the dissent of three justices, the Mississippi Supreme Court denied the motion. 511 So. 2d 1333 (1987).The majority supported its conclusion with four apparently interdependent arguments. First, it stated that petitioner had waived his right to challenge the validity of the New York conviction because he had not raised the point on direct appeal. [Footnote 4] Second, it expressed concern that Mississippi's capital sentencing procedures would become capricious and standardless if the post-sentencing decision of another State could have the effect of invalidating a Mississippi death sentence. Id. at 1338. Third, it questioned whether the New York proceedings were "truly adversarial." Id. at 1338-1339. Finally, it concluded that the New York conviction provided adequate support for the death penalty even if it was invalid, stating:"The fact remains that Johnson was convicted in 1963 by a New York court of a serious felony involving violence to a female for which he was imprisoned in that state. No New York court extended Johnson relief from his conviction before Johnson paid his debt to the state. If his crime was serious enough for him to be convicted and Page 486 U. S. 584 final enough for him to serve time in a penal institution, it had sufficient finality to be considered as an aggravating circumstance by a jury of this state. No death penalty verdict based upon this conviction need be vitiated by the subsequent relief granted more than twenty years later by the New York Court of Appeals."Id. at 1339. In reaching this conclusion, the court expressly disavowed any reliance on the fact that two of the aggravating circumstances found by the jury did not turn on the evidence of petitioner's prior conviction. Id. at 1338; see n 8, infra. [Footnote 5]We granted certiorari to consider whether the Federal Constitution requires a reexamination of petitioner's death sentence. 484 U.S. 1003 (1988). We conclude that it does.IIThe fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishment gives rise to a special "need for reliability in the determination that death is the appropriate punishment'" in any capital case. See Gardner v. Florida, 430 U. S. 349, 430 U. S. 363-364 (1977) (quoting Woodson v. North Carolina, 428 U. S. 280, 428 U. S. 305 (1976)) (WHITE, J., concurring in judgment). Although we have acknowledged that "there can be `no perfect Page 486 U. S. 585 procedure for deciding in which cases governmental authority should be used to impose death,'" we have also made it clear that such decisions cannot be predicated on mere "caprice" or on "factors that are constitutionally impermissible or totally irrelevant to the sentencing process." Zant v. Stephens, 462 U. S. 862, 462 U. S. 884-885, 462 U. S. 887, n. 24 (1983). The question in this case is whether allowing petitioner's death sentence to stand, although based in part on a reversed conviction, violates this principle. [Footnote 6]In its opinion, the Mississippi Supreme Court drew no distinction between petitioner's 1963 conviction for assault and the underlying conduct that gave rise to that conviction. In Mississippi's sentencing hearing following petitioner's conviction for murder, however, the prosecutor did not introduce any evidence concerning the alleged assault itself; the only evidence relating to the assault consisted of a document establishing that petitioner had been convicted of that offense in 1963. Since that conviction has been reversed, unless and until petitioner should be retried, he must be presumed innocent of that charge. Indeed, even without such a presumption, the reversal of the conviction deprives the prosecutor's sole piece of documentary evidence of any relevance to Mississippi's sentencing decision.Contrary to the opinion expressed by the Mississippi Supreme Court, the fact that petitioner served time in prison Page 486 U. S. 586 pursuant to an invalid conviction does not make the conviction itself relevant to the sentencing decision. The possible relevance of the conduct which gave rise to the assault charge is of no significance here, because the jury was not presented with any evidence describing that conduct -- the document submitted to the jury proved only the facts of conviction and confinement, nothing more. That petitioner was imprisoned is not proof that he was guilty of the offense; indeed, it would be perverse to treat the imposition of punishment pursuant to an invalid conviction as an aggravating circumstance.It is apparent that the New York conviction provided no legitimate support for the death sentence imposed on petitioner. It is equally apparent that the use of that conviction in the sentencing hearing was prejudicial. The prosecutor repeatedly urged the jury to give it weight in connection with its assigned task of balancing aggravating and mitigating circumstances "one against the other." 13 Record 2270; App. 17; see 13 Record 2282-2287; App. 26-30. Even without that express argument, there would be a possibility that the jury's belief that petitioner had been convicted of a prior felony would be "decisive" in the "choice between a life sentence and a death sentence." Gardner v. Florida, supra, at 430 U. S. 359 (plurality opinion).We do not share the Mississippi Supreme Court's concern that its procedures would become capricious if it were to vacate a death sentence predicated on a prior felony conviction when such a conviction is set aside. A similar problem has frequently arisen in Mississippi, as well as in other States, in cases involving sentences imposed on habitual criminals. Thus, in Phillips v. State, 421 So. 2d 476 (Miss.1982), the court held that the reversal of a Kentucky conviction that had provided the basis for an enhanced sentence pursuant to Mississippi's habitual criminal statute justified postconviction relief. A rule that regularly gives a defendant the benefit of such postconviction relief is not even arguably arbitrary or capricious. Cf. 404 U. S. Tucker, Page 486 U. S. 587 404 U. S. 443 (1972); Townsend v. Burke, 334 U. S. 736 (1948). To the contrary, especially in the context of capital sentencing, it reduces the risk that such a sentence will be imposed arbitrarily.Finally, we are not persuaded that the state court's conclusion that, under state law, petitioner is procedurally barred from raising this claim because he failed to attack the validity of the New York conviction on direct appeal bars our consideration of his claim. In its brief before this Court, the State does not rely on the argument that petitioner's claim is procedurally barred because he failed to raise it on direct appeal. Because the State Supreme Court asserted this bar as a ground for its decision, however, we consider whether that bar provides an adequate and independent state ground for the refusal to vacate petitioner's sentence."[W]e have consistently held that the question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question."Henry v. Mississippi, 379 U. S. 443, 379 U. S. 447 (1965)."[A] state procedural ground is not 'adequate' unless the procedural rule is 'strictly or regularly followed.' Barr v. City of Columbia, 378 U. S. 146, 378 U. S. 149 (1964)."Hathorn v. Lovorn, 457 U. S. 255, 457 U. S. 262-263 (1982); see Henry v. Mississippi, 379 U.S. at 379 U. S. 447-448. We find no evidence that the procedural bar relied on by the Mississippi Supreme Court here has been consistently or regularly applied. Rather, the weight of Mississippi law is to the contrary. In Phillips v. State, supra, the Mississippi Supreme Court considered whether defendant could properly attack in a sentencing hearing a prior conviction which the State sought to use to enhance his sentence. The court made it clear that the sentencing hearing was not the appropriate forum for such an attack:"[T]he trial court is not required to go beyond the face of the prior convictions sought to be used in establishing the defendant's status as an habitual offender. If, on its face, the conviction makes a proper showing that a Page 486 U. S. 588 defendant's prior plea of guilty was both knowing and voluntary, that conviction may be used for the enhancement of the defendant's punishment under the Mississippi habitual offender act.""* * * *" "[A]ny such frontal assault upon the constitutionality of a prior conviction should be conducted in the form of an entirely separate procedure solely concerned with attacking that conviction. This role is neither the function nor the duty of the trial judge in a hearing to determine habitual offender status. Likewise, any such proceeding should be brought in the state in which such conviction occurred, pursuant to that state's established procedures. Should such proceeding in the foreign state succeed in overturning the conviction, then relief should be sought in Mississippi by petition for writ of error coram nobis."Id. at 447 U. S. 481-482. The reasoning of Phillips suggests that the direct appeal of a subsequent conviction and concomitant enhanced sentence is not the appropriate forum for challenging a prior conviction that on its face appears valid. In directing that evidence of invalidation of such a conviction in another proceeding could be brought to the court's attention in a collateral attack of the subsequent conviction, the court did not suggest that the failure previously to raise the issue in the inappropriate forum would bar its consideration on collateral attack.The Mississippi Supreme Court has applied its reasoning in Phillips to facts substantially similar to those presented in this case. In Nixon v. State, 533 So. 2d 1078 (1988), the court held that the reasoning of Phillips applied when a defendant in a capital case sought to attack the validity of a prior conviction introduced to support the finding of an aggravating circumstance at sentencing. In light of the Mississippi Supreme Court's decisions in Phillips and Nixon, we cannot conclude that the procedural bar relied on by the Mississippi Page 486 U. S. 589 Supreme Court in this case has been consistently or regularly applied. Consequently, under federal law, it is not an adequate and independent state ground for affirming petitioner's conviction. [Footnote 7]In this Court, Mississippi advances an argument for affirmance that was not relied upon by the State Supreme Court. It argues that the decision of the Mississippi Supreme Court should be affirmed because, when that court conducted its proportionality review of the death sentence on petitioner's initial appeal, it did not mention petitioner's prior conviction in upholding the sentence. Whether it is true, as respondent Page 486 U. S. 590 argues, that, even absent evidence of petitioner's prior conviction, a death sentence would be consistent with Mississippi's practice in other cases, however, is not determinative of this case. First, the Mississippi Supreme Court expressly refused to rely on harmless error analysis in upholding petitioner's sentence, 511 So. 2d at 1338; on the facts of this case, that refusal was plainly justified. [Footnote 8] Second, and more importantly, the error here extended beyond the mere invalidation of an aggravating circumstance supported by evidence that was otherwise admissible. Here the jury was allowed to consider evidence that has been revealed to be materially inaccurate. [Footnote 9]Accordingly, the judgment is reversed and the case is remanded to the Mississippi Supreme Court for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtJohnson v. Mississippi, 486 U.S. 578 (1988)Johnson v. MississippiNo. 87-5468Argued April 25, 1988Decided June 13, 1988486 U.S. 578SyllabusPetitioner was convicted in a Mississippi court of murder. Finding the existence of three aggravating circumstances and that such circumstances outweighed the mitigating circumstances, the jury sentenced petitioner to death. The sole evidence supporting one of the aggravating circumstances -- that petitioner had been "previously convicted of a felony involving the use or threat of violence to [another] person" -- consisted of an authenticated copy of his commitment to prison in 1963 following his New York conviction of second-degree assault with intent to commit first-degree rape. The prosecutor repeatedly referred to the commitment document at the sentencing hearing. After the Mississippi Supreme Court affirmed petitioner's death sentence, the New York Court of Appeals reversed the 1963 conviction. However, the Mississippi Supreme Court denied petitioner's motion for postconviction relief from the death sentence, arguing, inter alia, that (1) petitioner had waived his right to challenge the New York conviction by not raising the point on direct appeal of his death sentence; (2) Mississippi's capital sentencing procedures could be rendered capricious and standardless if the post-sentencing decision of another State could invalidate a Mississippi death sentence; and (3) the New York conviction provided adequate support for the death penalty even if it was invalid, since petitioner had served time on the conviction.Held: By allowing petitioner's death sentence to stand despite the fact that it was based in part on the vacated New York conviction, the Mississippi Supreme Court violated the Eighth Amendment's prohibition against cruel and unusual punishment. Pp. 486 U. S. 584-590.(a) The New York conviction did not provide any legitimate support for petitioner's sentence. Its reversal deprives the prosecutor's sole piece of evidence as to the aggravating circumstance of any relevance to the sentencing decision. The fact that petitioner served time in prison pursuant to an invalid conviction does not make the conviction itself relevant, or prove that petitioner was guilty of the crime. Furthermore, use of the New York conviction in the sentencing hearing was clearly prejudicial, since the prosecutor repeatedly urged the jury to give it Page 486 U. S. 579 weight in connection with its assigned task of balancing aggravating and mitigating circumstances "one against the other." Pp. 486 U. S. 585-586.(b) The state court's concern that its vacatur of the death sentence here would render its capital sentencing procedures capricious is unfounded. That court has itself held that the reversal of a Kentucky conviction supporting an enhanced sentence under Mississippi's habitual criminal statute justified postconviction relief. Phillips v. State, 421 So. 2d 476. A rule that regularly gives a defendant the benefit of such relief is not even arguably arbitrary or capricious and, in fact, reduces the risk that a capital sentence will be imposed arbitrarily. Pp. 486 U. S. 586-587.(c) The state court's conclusion that petitioner's failure to raise his claim on direct appeal constitutes a procedural bar under state law does not prevent this Court from considering the claim. Under federal law, such a bar can constitute an adequate and independent state ground for affirming a sentence only if it has been consistently or regularly applied. The bar raised here has not been so applied in Mississippi. In Phillips v. State, supra, the Mississippi Supreme Court held that collateral attack, rather than direct appeal, was the appropriate means of challenging a prior conviction used to enhance a habitual offender's sentence, and the Mississippi Supreme Court recently has applied that reasoning to facts substantially similar to those presented in this case. See Nixon v. State, 533 So. 2d 1078. Pp. 486 U. S. 587-589.(d) The State's argument that the decision below should be affirmed because the state court did not mention the New York conviction when it conducted its proportionality review of the death sentence on direct appeal is without merit, since the fact that the sentence might be consistent with Mississippi law, even absent evidence of the New York conviction, is not determinative here. The error here extended beyond the mere invalidation of an aggravating circumstance supported by otherwise admissible evidence, since the jury was allowed to consider evidence that has been revealed to be materially inaccurate. Moreover, the state court's express refusal to rely on harmless error analysis in upholding petitioner's sentence was plainly justified on the facts of this case. Pp. 486 U. S. 589-590.511 So. 2d 1333, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 486 U. S. 591. WHITE, J., filed a concurring opinion, in which REHNQUIST, C.J., joined, post, p. 486 U. S. 591. O'CONNOR, J., concurred in the judgment. Page 486 U. S. 580

1992_91-6824

themselves, Garcia and Soto dropped the box and ran into the apartment. The agents entered the apartment in pursuit and found the four petitioners in the living room. The dropped box contained 55 pounds of cocaine. After obtaining a search warrant for the apartment, agents found approximately 16 pounds of cocaine, 25 grams of heroin, and 4 pounds of marijuana inside a suitcase in a closet. Next to the suitcase was a sack containing $22,960 in cash. Police officers also discovered 7 pounds of cocaine in a car parked in Soto's garage.The four petitioners were indicted and brought to trial together. At various points during the proceeding, Garcia and Soto moved for severance, arguing that their defenses were mutually antagonistic. Soto testified that he knew nothing about the drug conspiracy. He claimed that Garcia had asked him for a box, which he gave Garcia, and that he (Soto) did not know its contents until they were arrested. Garcia did not testify, but his lawyer argued that Garcia was innocent: The box belonged to Soto and Garcia was ignorant of its contents.Zafiro and Martinez also repeatedly moved for severance on the ground that their defenses were mutually antagonistic. Zafiro testified that she was merely Martinez's girlfriend and knew nothing of the conspiracy. She claimed that Martinez stayed in her apartment occasionally, kept some clothes there, and gave her small amounts of money. Although she allowed Martinez to store a suitcase in her closet, she testified, she had no idea that the suitcase contained illegal drugs. Like Garcia, Martinez did not testify. But his lawyer argued that Martinez was only visiting his girlfriend and had no idea that she was involved in distributing drugs.The District Court denied the motions for severance. The jury convicted all four petitioners of conspiring to possess cocaine, heroin, and marijuana with the intent to distribute. 21 U. S. C. § 846. In addition, Garcia and Soto were convicted of possessing cocaine with the intent to distribute,537§ 841(a)(1), and Martinez was convicted of possessing cocaine, heroin, and marijuana with the intent to distribute, ibid.Petitioners appealed their convictions. Garcia, Soto, and Martinez claimed that the District Court abused its discretion in denying their motions to sever. (Zafiro did not appeal the denial of her severance motion, and thus, her claim is not properly before this Court.) The Court of Appeals for the Seventh Circuit acknowledged that "a vast number of cases say that a defendant is entitled to a severance when the 'defendants present mutually antagonistic defenses' in the sense that 'the acceptance of one party's defense precludes the acquittal of the other defendant.'" 945 F.2d 881, 885 (1991) (quoting United States v. Keck, 773 F.2d 759, 765 (CA71985)). Noting that "mutual antagonism ... and other ... characterizations of the effort of one defendant to shift the blame from himself to a codefendant neither control nor illuminate the question of severance," 945 F. 2d, at 886, the Court of Appeals found that the defendants had not suffered prejudice and affirmed the District Court's denial of severance. We granted the petition for certiorari, 503 U. S. 935 (1992), and now affirm the judgment of the Court of Appeals.IIRule 8(b) states that "[t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials "playa vital role in the criminal justice system." Richardson v. Marsh, 481 U. S. 200, 209 (1987). They promote efficiency and "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Id., at 210. For these reasons, we repeatedly have approved of joint trials. See ibid.; Opper v. United States, 348 U. S. 84, 95 (1954); United States v. Marchant, 12 Wheat.538480 (1827); cf. 1 C. Wright, Federal Practice and Procedure § 223 (2d ed. 1982) (citing lower court opinions to the same effect). But Rule 14 recognizes that joinder, even when proper under Rule 8(b), may prejudice either a defendant or the Government. Thus, the Rule provides:"If it appears that a defendant or the government is prejudiced by a joinder of ... defendants ... for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."In interpreting Rule 14, the Courts of Appeals frequently have expressed the view that "mutually antagonistic" or "irreconcilable" defenses may be so prejudicial in some circumstances as to mandate severance. See, e. g., United States v. Benton, 852 F.2d 1456, 1469 (CA6), cert. denied, 488 U. S. 993 (1988); United States v. Smith, 788 F.2d 663, 668 (CAlO 1986); Keck, supra, at 765; United States v. Magdaniel-Mora, 746 F.2d 715, 718 (CAll 1984); United States v. Berkowitz, 662 F.2d 1127, 1133-1134 (CA5 1981); United States v. Haldeman, 181 U. S. App. D. C. 254, 294-295, 559 F.2d 31,71-72 (1976), cert. denied, 431 U. S. 933 (1977). Notwithstanding such assertions, the courts have reversed relatively few convictions for failure to grant a severance on grounds of mutually antagonistic or irreconcilable defenses. See, e. g., United States v. Tootick, 952 F.2d 1078 (CA9 1991); United States v. Rucker, 915 F.2d 1511, 1512-1513 (CAll 1990); United States v. Romanello, 726 F.2d 173 (CA5 1984). The low rate of reversal may reflect the inability of defendants to prove a risk of prejudice in most cases involving conflicting defenses.Nevertheless, petitioners urge us to adopt a bright-line rule, mandating severance whenever codefendants have conflicting defenses. See Brief for Petitioners i. We decline to do so. Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 does not require severance even539if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion. See, e. g., United States v. Lane, 474 U. S. 438, 449,We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. See Kotteakos v. United States, 328 U. S. 750, 774-775 (1946). Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice. See Bruton v. United States, 391 U. S. 123 (1968). Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. See, e. g., Tifford v. Wainwright, 588 F.2d 954 (CA5 1979) (per curiam). The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, as we indicated in Richardson v. Marsh, less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. See 481 U. S., at 211.Turning to the facts of this case, we note that petitioners do not articulate any specific instances of prejudice. In-540stead they contend that the very nature of their defenses, without more, prejudiced them. Their theory is that when two defendants both claim they are innocent and each accuses the other of the crime, a jury will conclude (1) that both defendants are lying and convict them both on that basis, or (2) that at least one of the two must be guilty without regard to whether the Government has proved its case beyond a reasonable doubt.As to the first contention, it is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials. See, e. g., United States v. Martinez, 922 F.2d 914, 922 (CA1 1991); United States v. Manner, 281 U. S. App. D. C. 89, 98, 887 F.2d 317, 324 (1989), cert. denied, 493 U. S. 1062 (1990). Rules 8(b) and 14 are designed "to promote economy and efficiency and to avoid a multiplicity of trials, [so long as] these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial." Bruton, 391 U. S., at 131, n. 6 (internal quotation marks omitted). While "[a]n important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence," ibid. (emphasis added), a fair trial does not include the right to exclude relevant and competent evidence. A defendant normally would not be entitled to exclude the testimony of a former codefendant if the district court did sever their trials, and we see no reason why relevant and competent testimony would be prejudicial merely because the witness is also a codefendant.As to the second contention, the short answer is that petitioners' scenario simply did not occur here. The Government argued that all four petitioners were guilty and offered sufficient evidence as to all four petitioners; the jury in turn found all four petitioners guilty of various offenses. Moreover, even if there were some risk of prejudice, here it is of the type that can be cured with proper instructions, and "juries are presumed to follow their instructions." Richard-541son, supra, at 211. The District Court properly instructed the jury that the Government had "the burden of proving beyond a reasonable doubt" that each defendant committed the crimes with which he or she was charged. Tr. 864. The court then instructed the jury that it must "give separate consideration to each individual defendant and to each separate charge against him. Each defendant is entitled to have his or her case determined from his or her own conduct and from the evidence [that] may be applicable to him or to her." Id., at 865. In addition, the District Court admonished the jury that opening and closing arguments are not evidence and that it should draw no inferences from a defendant's exercise of the right to silence. Id., at 862-864. These instructions sufficed to cure any possibility of prejudice. See Schaffer v. United States, 362 U. S. 511, 516 (1960).Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts. Because petitioners have not shown that their joint trial subjected them to any legally cognizable prejudice, we conclude that the District Court did not abuse its discretion in denying petitioners' motions to sever. The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1992SyllabusZAFIRO ET AL. v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 91-6824. Argued November 2, 1992-Decided January 25,1993Petitioners were indicted on federal drug charges and brought to trial together pursuant to Federal Rule of Criminal Procedure S(b), which provides that defendants may be charged together "if they are alleged to have participated ... in the same series of acts or transactions constituting ... offenses." At various points during the proceeding, they each argued that their defenses were mutually antagonistic and moved for severance under Rule 14, which specifies that, "[i]f it appears that a defendant or the government is prejudiced by a joinder of ... defendants ... for trial ... , the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires." The District Court denied the motions, and each petitioner was convicted of various offenses. Although acknowledging other lower court cases saying that a severance is required when defendants present "mutually antagonistic defenses," the Court of Appeals found that petitioners had not suffered prejudice and affirmed the denial of severance.Held: Rule 14 does not require severance as a matter of law when codefendants present "mutually exclusive defenses." While the Rule recognizes that joinder, even when proper under Rule S(b), may prejudice either a defendant or the Government, it does not make mutually exclusive defenses prejudicial per se or require severance whenever prejudice is shown. Rather, severance should be granted only if there is a serious risk that a joint trial would compromise a specific trial right of a properly joined defendant or prevent the jury from making a reliable judgment about guilt or innocence. The risk of prejudice will vary with the facts in each case, and the Rule leaves determination of the risk, and the tailoring of any necessary remedy, to the sound discretion of the district courts. Although separate trials will more likely be necessary when the risk is high, less drastic measures, such as limiting instructions, often will suffice. Because petitioners, who rely on an insupportable bright-line rule, have not shown that their joint trial subjected them to any legally cognizable prejudice, the District Court did not abuse its discretion in denying their motions to sever. Moreover, even if there were some risk of prejudice, here it is of the type that can535be cured with proper instructions, which the District Court gave. Pp. 537-541.945 F.2d 881, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 541.Kenneth L. Cunniff, by appointment of the Court, 504 U. S. 906, argued the cause and filed briefs for petitioners.John F. Manning argued the cause for the United States.With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Kristina L. Ament.JUSTICE O'CONNOR delivered the opinion of the Court. Rule S(b) of the Federal Rules of Criminal Procedure provides that defendants may be charged together "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Rule 14 of the Rules, in turn, permits a district court to grant a severance of defendants if "it appears that a defendant or the government is prejudiced by a joinder." In this case, we consider whether Rule 14 requires severance as a matter of law when codefendants present "mutually antagonistic defenses."IGloria Zafiro, Jose Martinez, Salvador Garcia, and Alfonso Soto were accused of distributing illegal drugs in the Chicago area, operating primarily out of Soto's bungalow in Chicago and Zaftro's apartment in Cicero, a nearby suburb. One day, Government agents observed Garcia and Soto place a large box in Soto's car and drive from Soto's bungalow to Zaftro's apartment. The agents followed the two as they carried the box up the stairs. When the agents identified536Full Text of Opinion

1965_12

MR. JUSTICE STEWART delivered the opinion of the Court.Section 3(4) of the Interstate Commerce Act, as amended, 54 Stat. 902, 49 U.S.C. § 3(4) (1964 ed.), commands that "All carriers subject to the provisions of this chapter . . . shall not discriminate in their rates, fares, and charges between connecting lines. . . ." [Footnote 1] The meaning of the term "connecting lines" is the crucial question in this controversy between the Western Pacific Railroad Company, on the one hand, and the Union Pacific Railroad Company and the Northern Pacific Railway Company, on the other. Western Pacific contends that it is a "connecting line" in relation to these carriers, and that, therefore, it is entitled to invoke against them the provisions of § 3(4) prohibiting discriminatory Page 382 U. S. 239 rates. The Interstate Commerce Commission and the District Court held otherwise.Western Pacific filed a complaint with the Commission, alleging, in part, that Union Pacific and Northern Pacific practice rate discrimination against it. [Footnote 2] The alleged discrimination consists in the refusal of these carriers, except with respect to a few commodities, to enter into joint through rates via Portland, Oregon, with the route of which Western Pacific is part, although they maintain a full line of such rates with a competitor, the Southern Pacific Company. The hearing examiner found in favor of Western Pacific, but Division 2 of the Commission reversed. The Division found both that Western Pacific could not invoke the provisions of § 3(4) because it was not a "connecting line," and that, even if it were, the evidence did not establish the "similarity of circumstances and conditions" that would compel rate treatment equal to that accorded to Southern Pacific. Page 382 U. S. 240 The Division refused to accord Western Pacific "connecting line" status on the ground that it neither physically connects with the allegedly discriminating carriers at the point of discrimination nor participates in existing through routes with them through that point. Western Pacific R. Co. v. Camas Prairie R. Co., 316 I.C.C. 795. When the full Commission denied further hearing, Western Pacific brought this action in the United States District Court for the Northern District of California to set aside the Commission's order. The three-judge court dismissed the complaint solely on the ground that Western Pacific was not a "connecting line." Western Pacific R. Co. v. United States, 230 F. Supp. 852. It agreed with the Commission's limited definition of the term, and said, "Any further liberalization of the present definition will have to come from the Supreme Court." Id. at 855. We noted probable jurisdiction. 379 U.S. 956.Analysis of "connecting line" status in this case is closely tied to the geographical, structural, and economic relationships among the railroads involved. Union Pacific, Northern Pacific, and their short-line connections provide exclusive rail service between many points in the Pacific Northwest and Portland, Oregon. From Portland, the two competitive routes in question descend, at times parallel, at times intertwined, to Southern California. The route closest to the seacoast consists largely of Southern Pacific. To the east of this route lies the so-called Bieber route, whose completion in 1931 was authorized by the Commission to provide competition with Southern Pacific. [Footnote 3] The Bieber route is composed of the end-to-end connections of three different companies: the Great Northern Railway from Portland to Page 382 U. S. 241 Bieber, California; the Western Pacific from Bieber to Stockton; and the Atchison, Topeka & Santa Fe from Stockton to Southern California. Thus, the Bieber route and Southern Pacific both connect with the allegedly discriminating carriers at Portland, where facilities for the interchange of traffic exist.The Bieber route carriers presently enjoy joint through rates among themselves. Moreover, the other two participants in that route have expressed willingness to join with Western Pacific in the joint rates it seeks with Union Pacific and Northern Pacific. Union Pacific and Northern Pacific, for over 50 years, have maintained through routes and a full line of joint rates with Southern Pacific via Portland. They have refused, however, except for a few commodities, to offer through routes and joint rates on traffic moving on the Bieber route through Portland. The joint rates established with Southern Pacific are lower than the combination of local rates that would otherwise apply. Since the Bieber route carriers can offer joint rates only with respect to a few commodities, they cannot match the lower rates offered by Southern Pacific to shippers of most commodities between points in California and points in the Pacific Northwest exclusively served by Union Pacific and Northern Pacific via Portland.The Commission and the District Court held, however, that, even under these circumstances, Western Pacific is not a "connecting line" eligible to complain of the alleged discrimination. In argument here, the Commission and the appellee railroads contend that, to qualify for that status, Western Pacific must show more than that it participates in an established through route that connects with Union Pacific and Northern Pacific, and that all the participants in the route stand willing to cooperate with these carriers in establishing joint through Page 382 U. S. 242 rates. [Footnote 4] We are urged to hold that to qualify under § 3(4) as a complainant "connecting line" a railroad must either itself make a direct connection with the discriminating carrier or be part of a through route that already includes the carrier. We cannot accept such a construction of the statute.The literal meaning of the statute does not require that construction. To be sure, the term "connecting lines" suggests the requirement of an actual physical connection between the complainant and the discriminating carrier. The term "line," however, admits of more than a single meaning limited to the track owned exclusively by one railroad company. It may also be interpreted reasonably to include a functional railroad unit such as the Bieber through route involved here. Moreover, all parties in this litigation recognize that, in Atlantic Coast Line R. Co. v. United States, 284 U. S. 288, this Court rejected the contention that "connecting line" is a term limited to the meaning that the statutory language might initially suggest. Mr. Justice Brandeis, speaking for a unanimous Court, wrote,"There is no warrant for limiting the meaning of 'connecting lines' to those having a direct physical connection. . . . The term is commonly used as referring to all the lines making up a through route."Id. at 284 U. S. 293.There also is no warrant for limiting the meaning of "connecting lines" to the lines making up a through route that already includes the discriminating carrier. We have been referred to no previous judicial or administrative decisions compelling that conclusion. The Atlantic Coast Line case, supra, imposes no such limitation. It established that the term "connecting lines" Page 382 U. S. 243 extends beyond physical connection to encompass lines participating in a through route, but it does not even hint of any limitation on the nature of the through route, much less hold that the through route must already include the discriminating carrier. [Footnote 5] Our subsequent definition of "through route" in Thompson v. United States, 343 U. S. 549, adds no more to an analysis of "connecting line" under § 3(4). In that case, which arose under §§ 15(3) and 15(4) of the Act, we held that the Commission had improperly applied the test of the existence of a through route: " . . . whether the participating carriers hold themselves out as offering through transportation service." 343 U.S. at 343 U. S. 557. Section 3(4) does not use the term "through route." But even if, after Atlantic Coast Line, a carrier may qualify as a "connecting line" if it is one of the "lines making up a through route," Page 382 U. S. 244 284 U.S. at 284 U. S. 293, the Thompson test offers no solution to the problem presented here. It simply does not speak to the question whether the discriminating carrier must be one of the participating carriers offering through service in conjunction with the carrier seeking "connecting line" status.The reason the issue presented in this case has not been decided before now [Footnote 6] may be that discrimination of the sort complained of here is uncommon. In most instances, it is to the advantage of railroads such as Union Pacific and Northern Pacific to encourage the movement of traffic over their lines from as many sources as possible. [Footnote 7] Moreover, when such discrimination does occur, the railroad connecting directly with the discriminating carrier is likely to take the lead as complainant.In the absence of any settled construction of § 3(4), then, its manifest purpose to deprive railroads of discretion to apportion economic advantage among competitors at a common interchange must be the basic guide to decision. Just such discretion would be conferred upon railroads in a position to discriminate if we were to hold that their decisions not to enter through route relationships with connecting through routes could bar nonadjacent participants in such through routes from eligibility to complain. Indeed, such a holding would result in an anomalous set of circumstances clearly illustrated in the present context. No one doubts that Southern Pacific, by virtue of its direct physical connection, Page 382 U. S. 245 would be eligible to complain of rate discrimination if it were practiced in favor of the Bieber route. It is also undisputed that Great Northern would be eligible to complain of the present discrimination, not merely as it affects its segment of the Bieber route, but on behalf of the route as a whole. Moreover, it is clear that, if Union Pacific and Northern Pacific had entered a through route relationship with the Bieber route and then had decided to abandon it, or to set rates somewhat higher than those set for Southern Pacific, any participant in the Bieber route could complain of that discrimination. We cannot, therefore, construe § 3(4) to bar these participants from eligibility to complain solely because they have been put to an even greater competitive disadvantage by the refusal of the allegedly discriminating carriers to enter a through route relationship with them comparable to the one established with Southern Pacific. Hence, we hold that, to qualify as a "connecting line" in the absence of physical connection, a carrier need only show that it participates in an established through route, making connection at the point of common interchange, all of whose participants stand willing to cooperate in the arrangements necessary to eliminate the alleged discrimination.Such a construction of "connecting line" does not interfere with the function of the Commission under § 15(3) of the Act, 54 Stat. 911, 49 U.S.C. § 15(3), (1964 ed.), to require the establishment of through routes and joint rates "in the public interest." [Footnote 8] Section Page 382 U. S. 246 3(4) is applicable only to a narrower range of situations involving discrimination at a common interchange. Moreover, the remedy in § 3(4) situations need not entail the establishment of through routes, joint rates, or indeed any particular form of relief. All that is required is the elimination of discriminatory treatment. See Chicago, Indianapolis & Louisville R. Co. v. United States, 270 U. S. 287, 292-293; United States v. Illinois Central R. Co., 263 U. S. 515, 263 U. S. 520-521. Finally, our holding does no more than to define the characteristics of a carrier eligible to complain. Relief is warranted only if it also appears that differential treatment is not justified by differences in operating conditions that substantially affect the allegedly discriminating carrier. See United States v. Illinois Central R. Co., supra, at p. 263 U. S. 521; Atchison, Topeka & Santa Fe R. Co. v. United States, 218 F. Supp. 359, 369.In the present case, having found that Western Pacific was not eligible to complain, the District Court did not reach the question whether it was entitled to relief. We therefore vacate the judgment and remand this case to the District Court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtWestern Pac. R. Co. v. United States, 382 U.S. 237 (1965)Western Pacific Railroad Co. v. United StatesNo. 12Argued October 19, 1965Decided December 7, 1965382 U.S. 237SyllabusSection 3(4) of the Interstate Commerce Act prohibits carriers from discriminating in their rates between "connecting lines." Appellant Western Pacific Railroad filed a complaint with the Interstate Commerce Commission alleging that certain carriers discriminated against it by refusing to enter into joint through rates via Portland, Oregon, with a multi-railroad route of which Western Pacific is the central portion, although they maintain such joint through rates with a competitor. Division 2 of the Commission refused to accord Western Pacific "connecting line" status on the ground that it did not connect physically with the allegedly discriminating carriers and did not participate in existing through routes with them through the point of discrimination. The Commission denied further hearing and a three-judge federal court dismissed the complaint on the basis that Western Pacific was not a "connecting line."Held:1. The term "connecting lines" does not require a direct physical connection, but refers to all lines making up a through route. Atlantic Coast Line R. Co. v. United States, 284 U. S. 288, followed. Pp. 382 U. S. 242-243.2. To qualify as a "connecting line" in the absence of physical connection, a carrier need only show that it participates in an established through route, making connection at the point of common interchange, all of whose participants stand ready to cooperate in the arrangements needed to remove the alleged discrimination. P. 382 U. S. 245.230 F. Supp. 852, vacated and remanded. Page 382 U. S. 238

1993_92-1402

JUSTICE KENNEDY delivered the opinion of the Court.As solid waste output continues apace and landfill capacity becomes more costly and scarce, state and local governmentsfor the Chemical Manufacturers Association et al. by Theodore L. Garrett; and for the National Solid Wastes Management Association by Bruce L. Thall and Bruce J. Parker.Briefs of amici curiae urging affirmance were filed for the State of New Jersey by Robert J. Del Tufo, Attorney General, Mary C. Jacobson, Assistant Attorney General, and Carla Vivian Bello, Senior Deputy Attorney General; for the State of Ohio et al. by Lee Fisher, Attorney General, and Susan E. Ashbrook and Bryan F. Zima, Assistant Attorneys General; and by the Attorneys General and other officials for their respective jurisdictions as follows: Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Richard Blumenthal, Attorney General of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Robert A. Marks, Attorney General of Hawaii, Roland W Burris, Attorney General of Illinois, Pamela Carter, Attorney General of Indiana, Bonnie J. Campbell, Attorney General of Iowa, Michael E. Carpenter, Attorney General of Maine, Scott Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, and Beverly Connerton and Stephen Shakman, Assistant Attorneys General, Joseph P. Mazurek, Attorney General of Montana, Michael F. Easley, Attorney General of North Carolina, Theodore R. Kulongoski, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Pedro R. Pierluisi, Attorney General of Puerto Rico, T. Travis Medlock, Attorney General of South Carolina, Stephen D. Rosenthal, Attorney General of Virginia, and James E. Doyle, Attorney General of Wisconsin; for the State of New York et al. by Robert Abrams, Attorney General, Jerry Boone, Solicitor General, Andrea Green, Deputy Solicitor General, John J. Sipos and Gordon J. Johnson, Assistant Attorneys General, O. Peter Sherwood, Leonard J. Koerner, and Martin Gold; for Prince George's County, Maryland, et al. by Lewis A. Noonberg, Charles W Thompson, Jr., and Michael P. Whalen; for Rockland County, New York, by Ilan S. Schoenberger, for the County of San Diego, California, by Lloyd M. Harmon, Jr., Diane Bardsley, Scott H. Peters, W Cullen MacDonald, Eric S. Petersen, and Jerome A. Barron; for the City of Indianapolis, Indiana, et al. by Scott M. DuBoff, Pamela K. Akin, Felshaw King, Mary Anne Wood, Michael F. X. Gillin, John D. Pirich, David P. Bobzien, Robert C. Cannon, and Patrick T. Boulden; for the City of Springfield, Missouri, by Stuart H. Newberger, Jeffrey H. How-386are expending significant resources to develop trash control systems that are efficient, lawful, and protective of the environment. The difficulty of their task is evident from the number of recent cases that we have heard involving waste transfer and treatment. See Philadelphia v. New Jersey, 437 U. S. 617 (1978); Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334 (1992); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U. S. 353 (1992); Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., ante, p. 93. The case decided today, while perhaps a small new chapter in that course of decisions, rests nevertheless upon well-settled principles of our Commerce Clause jurisprudence.We consider a so-called flow control ordinance, which requires all solid waste to be processed at a designated transfer station before leaving the municipality. The avowed purpose of the ordinance is to retain the processing fees charged at the transfer station to amortize the cost of the facility. Because it attains this goal by depriving competitors, including out-of-state firms, of access to a local market, we hold that the flow control ordinance violates the Commerce Clause.The town of Clarkstown, New York, lies in the lower Hudson River Valley, just upstream from the Tappan Zee Bridge and by highway minutes from New Jersey. Within the town limits are the village of Nyack and the hamlet of West Nyack. In August 1989, Clarkstown entered into a consentard, and Clifton S. Elgarten; for the Town of Smithtown, New York, et al. by W Cullen MacDonald, Richard L. Sigal, Eric S. Petersen, and Jon A. Gerber; for the Solid Waste Disposal Authority of the city of Huntsville, Alabama, by Charles H. Younger; for the Clarendon Foundation by Ronald D. Maines; for the National Association of Bond Lawyers by C. Baird Brown, Robert B. McKinstry, Jr., and Brendan K. Collins; for the National Association of Counties et al. by Richard Ruda; for Ogden Projects, Inc., by Robert C. Bernius and Jeffrey R. Horowitz; and for the Solid Waste Association of North America et al. by Barry S. Shanoff, B. Richard Marsh, and Robert D. Thorington.387decree with the New York State Department of Environmental Conservation. The town agreed to close its landfill located on Route 303 in West Nyack and build a new solid waste transfer station on the same site. The station would receive bulk solid waste and separate recyclable from nonrecyclable items. Recyclable waste would be baled for shipment to a recycling facility; nonrecyclable waste, to a suitable landfill or incinerator.The cost of building the transfer station was estimated at $1.4 million. A local private contractor agreed to construct the facility and operate it for five years, after which the town would buy it for $1. During those five years, the town guaranteed a minimum waste flow of 120,000 tons per year, for which the contractor could charge the hauler a so-called tipping fee of $81 per ton. If the station received less than 120,000 tons in a year, the town promised to make up the tipping fee deficit. The object of this arrangement was to amortize the cost of the transfer station: The town would finance its new facility with the income generated by the tipping fees.The problem, of course, was how to meet the yearly guarantee. This difficulty was compounded by the fact that the tipping fee of $81 per ton exceeded the disposal cost of unsorted solid waste on the private market. The solution the town adopted was the flow control ordinance here in question, Local Laws 1990, No.9 of the Town of Clarkstown (full text in Appendix). The ordinance requires all nonhazardous solid waste within the town to be deposited at the Route 303 transfer station. Id., § 3.C (waste generated within the town), § 5.A (waste generated outside and brought in). Noncompliance is punishable by as much as a $1,000 fine and up to 15 days in jail. § 7.The petitioners in this case are C & A Carbone, Inc., a company engaged in the processing of solid waste, and various related companies or persons, all of whom we designate Carbone. Carbone operates a recycling center in Clarks-388town, where it receives bulk solid waste, sorts and bales it, and then ships it to other processing facilities-much as occurs at the town's new transfer station. While the flow control ordinance permits recyclers like Carbone to continue receiving solid waste, § 3.C, it requires them to bring the nonrecyclable residue from that waste to the Route 303 station. It thus forbids Carbone to ship the nonrecyclable waste itself, and it requires Carbone to pay a tipping fee on trash that Carbone has already sorted.In March 1991, a tractor-trailer containing 23 bales of solid waste struck an overpass on the Palisades Interstate Parkway. When the police investigated the accident, they discovered the truck was carrying household waste from Carbone's Clarkstown plant to an Indiana landfill. The Clarkstown police put Carbone's plant under surveillance and in the next few days seized six more tractor-trailers leaving the facility. The trucks also contained nonrecyclable waste, originating both within and without the town, and destined for disposal sites in Illinois, Indiana, West Virginia, and Florida.The town of Clarkstown sued Carbone in New York Supreme Court, Rockland County, seeking an injunction requiring Carbone to ship all nonrecyclable waste to the Route 303 transfer station. Carbone responded by suing in United States District Court to enjoin the flow control ordinance. On July 11, the federal court granted Carbone's injunction, finding a sufficient likelihood that the ordinance violated the Commerce Clause of the United States Constitution. C. & A. Carbone, Inc. v. Clarkstown, 770 F. Supp. 848 (SDNY 1991).Four days later, the New York court granted summary judgment to respondent. The court declared the flow control ordinance constitutional and enjoined Carbone to comply with it. The federal court then dissolved its injunction.The Appellate Division affirmed. 182 App. Div. 2d 213, 587 N. Y. S. 2d 681 (2d Dept. 1992). The court found that the389ordinance did not discriminate against interstate commerce because it "applies evenhandedly to all solid waste processed within the Town, regardless of point of origin." Id., at 222, 587 N. Y. S. 2d, at 686. The New York Court of Appeals denied Carbone's motion for leave to appeal. 80 N. Y. 2d 760, 605 N. E. 2d 874 (1992). We granted certiorari, 508 U. S. 938 (1993), and now reverse.At the outset we confirm that the flow control ordinance does regulate interstate commerce, despite the town's position to the contrary. The town says that its ordinance reaches only waste within its jurisdiction and is in practical effect a quarantine: It prevents garbage from entering the stream of interstate commerce until it is made safe. This reasoning is premised, however, on an outdated and mistaken concept of what constitutes interstate commerce.While the immediate effect of the ordinance is to direct local transport of solid waste to a designated site within the local jurisdiction, its economic effects are interstate in reach. The Carbone facility in Clarkstown receives and processes waste from places other than Clarkstown, including from out of State. By requiring Carbone to send the nonrecyclable portion of this waste to the Route 303 transfer station at an additional cost, the flow control ordinance drives up the cost for out-of-state interests to dispose of their solid waste. Furthermore, even as to waste originant in Clarkstown, the ordinance prevents everyone except the favored local operator from performing the initial processing step. The ordinance thus deprives out-of-state businesses of access to a local market. These economic effects are more than enough to bring the Clarkstown ordinance within the purview of the Commerce Clause. It is well settled that actions are within the domain of the Commerce Clause if they burden interstate commerce or impede its free flow. NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 31 (1937).The real question is whether the flow control ordinance is valid despite its undoubted effect on interstate commerce.390For this inquiry, our case law yields two lines of analysis: first, whether the ordinance discriminates against interstate commerce, Philadelphia, 437 U. S., at 624; and second, whether the ordinance imposes a burden on interstate commerce that is "clearly excessive in relation to the putative local benefits," Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). As we find that the ordinance discriminates against interstate commerce, we need not resort to the Pike test.The central rationale for the rule against discrimination is to prohibit state or municipal laws whose object is local economic protectionism, laws that would excite those jealousies and retaliatory measures the Constitution was designed to prevent. See The Federalist No. 22, pp. 143-145 (C. Rossiter ed. 1961) (A. Hamilton); Madison, Vices of the Political System of the United States, in 2 Writings of James Madison 362-363 (G. Hunt ed. 1901). We have interpreted the Commerce Clause to invalidate local laws that impose commercial barriers or discriminate against an article of commerce by reason of its origin or destination out of State. See, e. g., Philadelphia, supra (striking down New Jersey statute that prohibited the import of solid waste); Hughes v. Oklahoma, 441 U. S. 322 (1979) (striking down Oklahoma law that prohibited the export of natural minnows).Clarkstown protests that its ordinance does not discriminate because it does not differentiate solid waste on the basis of its geographic origin. All solid waste, regardless of origin, must be processed at the designated transfer station before it leaves the town. Unlike the statute in Philadelphia, says the town, the ordinance erects no barrier to the import or export of any solid waste but requires only that the waste be channeled through the designated facility.Our initial discussion of the effects of the ordinance on interstate commerce goes far toward refuting the town's contention that there is no discrimination in its regulatory scheme. The town's own arguments go the rest of the way. As the town itself points out, what makes garbage a profit-391able business is not its own worth but the fact that its possessor must pay to get rid of it. In other words, the article of commerce is not so much the solid waste itself, but rather the service of processing and disposing of it.With respect to this stream of commerce, the flow control ordinance discriminates, for it allows only the favored operator to process waste that is within the limits of the town. The ordinance is no less discriminatory because in-state or in-town processors are also covered by the prohibition. In Dean Milk Co. v. Madison, 340 U. S. 349 (1951), we struck down a city ordinance that required all milk sold in the city to be pasteurized within five miles of the city lines. We found it "immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce." Id., at 354, n. 4. Accord, Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U. S., at 361 ("[O]ur prior cases teach that a State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself").In this light, the flow control ordinance is just one more instance of local processing requirements that we long have held invalid. See Minnesota v. Barber, 136 U. S. 313 (1890) (striking down a Minnesota statute that required any meat sold within the State, whether originating within or without the State, to be examined by an inspector within the State); Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928) (striking down a Louisiana statute that forbade shrimp to be exported unless the heads and hulls had first been removed within the State); Johnson v. Haydel, 278 U. S. 16 (1928) (striking down analogous Louisiana statute for oysters); Toomer v. Wits ell, 334 U. S. 385 (1948) (striking down South Carolina statute that required shrimp fishermen to unload, pack, and stamp their catch before shipping it to another State); Pike v. Bruce Church, Inc., supra (striking down392Arizona statute that required all Arizona-grown cantaloupes to be packaged within the State prior to export); SouthCentral Timber Development, Inc. v. Wunnicke, 467 U. S. 82 (1984) (striking down an Alaska regulation that required all Alaska timber to be processed within the State prior to export). The essential vice in laws of this sort is that they bar the import of the processing service. Out-of-state meat inspectors, or shrimp hullers, or milk pasteurizers, are deprived of access to local demand for their services. Put another way, the offending local laws hoard a local resourcebe it meat, shrimp, or milk-for the benefit of local businesses that treat it.The flow control ordinance has the same design and effect.It hoards solid waste, and the demand to get rid of it, for the benefit of the preferred processing facility. The only conceivable distinction from the cases cited above is that the flow control ordinance favors a single local proprietor. But this difference just makes the protectionist effect of the ordinance more acute. In Dean Milk, the local processing requirement at least permitted pasteurizers within five miles of the city to compete. An out-of-state pasteurizer who wanted access to that market might have built a pasteurizing facility within the radius. The flow control ordinance at issue here squelches competition in the waste-processing service altogether, leaving no room for investment from outside.Discrimination against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest. Maine v. Taylor, 477 U. S. 131 (1986) (upholding Maine's ban on the import of baitfish because Maine had no other way to prevent the spread of parasites and the adulteration of its native fish species). A number of amici contend that the flow control ordinance fits into this narrow class. They suggest that as landfill space393diminishes and environmental cleanup costs escalate, measures like flow control become necessary to ensure the safe handling and proper treatment of solid waste.The teaching of our cases is that these arguments must be rejected absent the clearest showing that the unobstructed flow of interstate commerce itself is unable to solve the local problem. The Commerce Clause presumes a national market free from local legislation that discriminates in favor of local interests. Here Clarkstown has any number of nondiscriminatory alternatives for addressing the health and environmental problems alleged to justify the ordinance in question. The most obvious would be uniform safety regulations enacted without the object to discriminate. These regulations would ensure that competitors like Carbone do not underprice the market by cutting corners on environmental safety.Nor may Clarkstown justify the flow control ordinance as a way to steer solid waste away from out-of-town disposal sites that it might deem harmful to the environment. To do so would extend the town's police power beyond its jurisdictional bounds. States and localities may not attach restrictions to exports or imports in order to control commerce in other States. Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935) (striking down New York law that prohibited the sale of milk unless the price paid to the original milk producer equaled the minimum required by New York).The flow control ordinance does serve a central purpose that a nonprotectionist regulation would not: It ensures that the town-sponsored facility will be profitable, so that the local contractor can build it and Clarkstown can buy it back at nominal cost in five years. In other words, as the most candid of amici and even Clarkstown admit, the flow control ordinance is a financing measure. By itself, of course, revenue generation is not a local interest that can justify discrimination against interstate commerce. Otherwise States could impose discriminatory taxes against solid waste origi-394nating outside the State. See Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334 (1992) (striking down Alabama statute that imposed additional fee on all hazardous waste generated outside the State and disposed of within the State); Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., ante, p. 93 (striking down Oregon statute that imposed additional fee on solid waste generated outside the State and disposed of within the State).Clarkstown maintains that special financing is necessary to ensure the long-term survival of the designated facility. If so, the town may subsidize the facility through general taxes or municipal bonds. New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 278 (1988). But having elected to use the open market to earn revenues for its project, the town may not employ discriminatory regulation to give that project an advantage over rival businesses from out of State.Though the Clarkstown ordinance may not in explicit terms seek to regulate interstate commerce, it does so nonetheless by its practical effect and design. In this respect the ordinance is not far different from the state law this Court found invalid in Buck v. Kuykendall, 267 U. S. 307 (1925). That statute prohibited common carriers from using state highways over certain routes without a certificate of public convenience. Writing for the Court, Justice Brandeis said of the law: "Its primary purpose is not regulation with a view to safety or to conservation of the highways, but the prohibition of competition. It determines not the manner of use, but the persons by whom the highways may be used. It prohibits such use to some persons while permitting it to others for the same purpose and in the same manner." Id., at 315-316.State and local governments may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities. We reverse the395judgment and remand the case for proceedings not inconsistent with this decision.It is so ordered

OCTOBER TERM, 1993SyllabusC & A CARBONE, INC., ET AL. v. TOWN OF CLARKSTOWN, NEW YORKCERTIORARI TO THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK, SECOND JUDICIAL DEPARTMENTNo. 92-1402. Argued December 7, 1993-Decided May 16, 1994Respondent town agreed to allow a private contractor to construct within town limits a solid waste transfer station to separate recyclable from nonrecyclable items and to operate the facility for five years, at which time the town would buy it for one dollar. To finance the transfer station's cost, the town guaranteed a minimum waste flow to the facility, for which the contractor could charge the hauler a tipping fee which exceeded the disposal cost of unsorted solid waste on the private market. In order to meet the waste flow guarantee, the town adopted a flow control ordinance, requiring all nonhazardous solid waste within the town to be deposited at the transfer station. While recyclers like petitioners (collectively Carbone) may receive solid waste at their own sorting facilities, the ordinance requires them to bring nonrecyclable residue to the transfer station, thus forbidding them to ship such waste themselves and requiring them to pay the tipping fee on trash that has already been sorted. After discovering that Carbone was shipping nonrecyclable waste to out-of-state destinations, the town filed suit in state court, seeking an injunction requiring that this residue be shipped to the transfer station. The court granted summary judgment to the town, finding the ordinance constitutional, and the Appellate Division affirmed.Held: The flow control ordinance violates the Commerce Clause.Pp. 389-395.(a) The ordinance regulates interstate commerce. While its immediate effect is to direct local transport of solid waste to a designated site within the local jurisdiction, its economic effects are interstate in reach. By requiring Carbone to send the nonrecyclable portion of waste it receives from out of State to the transfer station at an additional cost, the ordinance drives up the cost for out-of-state interests to dispose of their solid waste. It also deprives out-of-state businesses of access to the local market, by preventing everyone except the favored local operator from performing the initial processing step. P. 389.(b) The ordinance discriminates against interstate commerce, and thus is invalid. See Philadelphia v. New Jersey, 437 U. S. 617, 624. Although the ordinance erects no barrier to the import or export of any384Syllabussolid waste, the article of commerce here is not so much the waste itself, but rather the service of processing and disposing of it. With respect to this stream of commerce, the ordinance discriminates, for it allows only the favored operator to process waste that is within the town's limits. It is no less discriminatory because in-state or in-town processors are also covered by the prohibition. Cf., e. g., Dean Milk Co. v. Madison, 340 U. S. 349. Favoring a single local proprietor makes the ordinance's protectionist effect even more acute, for it squelches competition in the waste-processing service altogether, leaving no room for outside investment. Pp. 389-392.(c) The town does not lack other means to advance a legitimate local interest. It could address alleged health and safety problems through nondiscriminatory alternatives, such as uniform safety regulations that would ensure that competitors do not underprice the market by cutting corners on environmental safety. Justifying the ordinance as a way to steer solid waste away from out-of-town disposal sites that the town might deem harmful to the environment would extend its police power beyond its jurisdictional boundaries. Moreover, the ordinance's revenue generating purpose by itself is not a local interest that can justify discrimination against interstate commerce. If special financing is needed to ensure the transfer station's long-term survival, the town may subsidize the facility through general taxes or municipal bonds, but it may not employ discriminatory regulation to give the project an advantage over rival out-of-state businesses. Pp. 392-395.182 App. Div. 2d 213, 587 N. Y. S. 2d 681, reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SCALIA, THOMAS, and GINSBURG, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 401. SOUTER, J., filed a dissenting opinion, in which REHNQUIST, C. J., and BLACKMUN, J., joined, post, p. 410.Betty Jo Christian argued the cause for petitioners.With her on the briefs were Paul J. Ondrasik, Jr., David Silverman, Kenneth Resnik, and Charles G. Cole.William C. Brashares argued the cause for respondent.With him on the brief were Murray N. Jacobson and Richard A. Glickel.**Briefs of amici curiae urging reversal were filed for Incorporated Villages of Westbury, Mineola, and New Hyde Park et al. by Lawrence W Boes, Jerome F. Matedero, John M. Spellman, and Donna M. C. Giliberto;385Full Text of Opinion

1970_655

Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR. JUSTICE STEWART.Petitioner, the Secretary of Labor, instituted this action under § 402(b) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 534, 29 U.S.C. § 482(b), against Local 6799, United Steelworkers of America, to set aside a general election of officers conducted by the union. [Footnote 1] The lawsuit arose after Nicholas Hantzis, an unsuccessful candidate for president of the local, protested the election to both the local and international union organizations. His protest concerned several matters, including the use of union facilities to prepare campaign materials for the incumbent president, who was reelected. [Footnote 2]After failing to obtain relief through the internal procedures of either union organization, Hantzis filed a complaint with the Secretary of Labor pursuant to § 402(a) of the Act, 29 U.S.C. § 482(a). The complaint repeated the charge that union facilities had been used to promote the candidacy of the incumbent president and raised, for the first time, an additional objection concerning a meeting attendance requirement imposed as a condition of candidacy for union office. [Footnote 3] At no time during his Page 403 U. S. 335 internal union protests did Hantzis challenge the attendance requirement.Following an investigation of the complaint, the Secretary concluded that union facilities had been used improperly to aid the reelection of the incumbent president in violation of § 401(g) of the Act, 29 U.S.C. § 481(g). The Secretary also concluded that § 401(e) had been violated because the meeting attendance requirement had not been uniformly administered and because the requirement itself was not a reasonable qualification on the right of union members to hold office. Respondents were advised of these conclusions and were asked to take voluntary remedial action. When they failed to comply with the request, the Secretary brought this proceeding in the District Court for the Central District of California.The District Court held that § 401(g) had been violated by the use of union facilities for the benefit of the incumbent president's campaign and ordered a new election for the office of president. [Footnote 4] The District Court also held, however, that the meeting attendance rule was reasonable and that Local 6799 had not violated § 401(e) by imposing the rule as a qualification on candidacies for union office.On appeal, the Court of Appeals for the Ninth Circuit affirmed without reaching the question whether the attendance requirement was reasonable. In the court's view, Hantzis' failure to challenge the requirement during his pursuit of internal union remedies precluded the Secretary from later raising the issue. The court Page 403 U. S. 336 reasoned that, since the Act requires that union members protesting the conduct of elections exhaust their internal union remedies before complaining to the Secretary, Congress intended to empower the Secretary to assert only "those violations that are fairly apparent from a member's protest to the union. . . ." 426 F.2d 969, 971.Because the case presents an important issue concerning the scope of the Secretary's authority under the Act, we granted certiorari, 400 U.S. 940. We conclude that Hantzis' failure to object to the attendance rule during pursuit of his internal union remedies bars the Secretary from later challenging the rule in a § 402(b) action. We therefore affirm the decision of the Court of Appeals.Section 402(b) provides that, once a member challenging an election has exhausted his internal union remedies and filed a complaint with the Secretary of Labor, the Secretary"shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization. . . . [Footnote 5]"At Page 403 U. S. 337 the outset, petitioner contends that the language of the section empowers the Secretary to investigate and litigate any and all violations that may ave affected the outcome of an election once a union member has exhausted his internal union remedies concerning any violation that occurred during that election. Emphasis is placed on the fact that the Secretary is authorized to act if his investigation uncovers "a violation" -- this, it is Page 403 U. S. 338 said, means that the Secretary is not limited to seeking redress only in respect of the claims earlier presented by the union member to his union. However, the statutory language is not so devoid of ambiguity that it alone can bear the weight of the Secretary's expansive view of his authority. While the words "a violation" might mean "any violation whatever revealed by the investigation," the words are susceptible of other readings. In particular, they can fairly be read to mean, "any of the violations raised by the union member during his internal union election protest." In Wirtz v. Laborers' Union, 389 U. S. 477 (1968), this Court noted that the range of the Secretary's authority under § 402(b) must be determined "by inference since there is lacking an explicit provision regarding the permissible scope of the Secretary's complaint," 389 U.S. at 389 U. S. 481. We must, therefore, examine the legislative history and statutory policies behind § 402 and the rest of the Act to decide the issue presented by this case.Examination of the relevant legislative materials reveals a clear congressional concern for the need to remedy abuses in union elections without departing needlessly from the longstanding congressional policy against unnecessary governmental interference with internal union affairs, Wirtz v. Glass Bottle Blowers Assn., 389 U. S. 463, 389 U. S. 470-471 (1968). The introduction to the Senate report accompanying the Act summarizes the general objectives of Congress:"A strong independent labor movement is a vital part of American institutions. The shocking abuses revealed by recent investigations have been confined to a few unions. The overwhelming majority are honestly and democratically run. In providing remedies for existing evils, the Senate should be careful neither to undermine self-government within the labor movement nor to weaken unions in their role Page 403 U. S. 339 as the bargaining representatives of employees."S.Rep. No. 187, 86th Cong., 1st Sess., 5 (1959). The requirement of 402(a), that a union member first seek redress of alleged election violations within the union before enlisting the aid of the Secretary, was similarly designed to harmonize the need to eliminate election abuses with a desire to avoid unnecessary governmental intervention. The same Senate Report in reference to Title IV of the Act and to the exhaustion requirement, states:"In filing a complaint, the member must show that he has pursued any remedies available to him within the union and any parent body in a timely manner. This rule preserves a maximum amount of independence and self-government by giving every international union the opportunity to correct improper local elections."Id. at 21. Plainly, Congress intended to foster a situation in which the unions themselves could remedy as many election violations as possible without the Government's ever becoming involved. Achieving this objective would not only preserve and strengthen unions as self-regulating institutions, but also avoid unnecessary expenditure of the limited resources of the Secretary of Labor.Petitioner contends that the congressional concerns underpinning the exhaustion requirement were, in fact, adequately served in this case, because the election in question was actually protested by a union member within the union, and because the union was later given a chance to remedy specific violations before being taken to court by the Secretary. In this view, it is irrelevant that Hantzis himself did not focus his election challenge on the attendance requirement when seeking internal union remedies. In sum, the Secretary urges that § 402(b) empowers him to act so long as a union member objects Page 403 U. S. 340 in any way to an election and so long as the union is given the opportunity to remedy voluntarily any violations that the Secretary determines may have affected the outcome of that election, regardless whether the member objected to the violations during his protest to the union.However, under petitioner's limited view of congressional objectives, the exhaustion requirement of § 402(a) is left with virtually no purpose or part to play in the statutory scheme. "Exhaustion" would be accomplished given any sort of protest within the union, no matter how remote the complaint made there from the alleged violation later litigated. The obvious purpose of an exhaustion requirement is not met when the union, during "exhaustion," is given no notice of the defects to be cured. Indeed, the primary objective of the exhaustion requirement is to preserve the vitality of internal union mechanisms for resolving election disputes -- mechanisms to decide complaints brought by members of the union themselves. To accept petitioner's contention that a union member, who is aware of the facts underlying an alleged violation, need not first protest this violation to his union before complaining to the Secretary would be needlessly to weaken union self-government. Plainly petitioner's approach slights the interest in protecting union self-regulation, and is out of harmony with the congressional purpose reflected in § 402(a).Of course, any interpretation of the exhaustion requirement must reflect the needs of rank and file union members -- those people the requirement is designed ultimately to serve. We are not unmindful that union members may use broad or imprecise language in framing their internal union protests, and that members will often lack the necessary information to be aware of the existence or scope of many election violations. Union democracy is far too important to permit these deficiencies to foreclose Page 403 U. S. 341 relief from election violations; and, in determining whether the exhaustion requirement of § 402(a) has been satisfied, courts should impose a heavy burden on the union to show that it could not in any way discern that a member was complaining of the violation in question. [Footnote 6] But when a union member is aware of the facts supporting an alleged election violation, the member must, in some discernible fashion, indicate to his union his dissatisfaction with those facts if he is to meet the exhaustion requirement.In this case, it is clear that the protesting member knew of the existence of the meeting attendance provision, and that his election protests to the local and international unions concerned matters wholly unrelated to the rule. We therefore hold that internal union remedies were not properly exhausted, and that the Secretary was barred from litigating the claim. Given this holding, we do not reach the question whether the meeting attendance rule itself is reasonable.The judgment isAffirmed

U.S. Supreme CourtHodgson v. Steelworkers, 403 U.S. 333 (1971)Hodgson v. Local Union 6799, United Steelworkersof America, AFL-CIONo. 655Argued March 23, 1971Decided June 14, 1971403 U.S. 333SyllabusFailure of labor union member's election complaint to include an objection to meeting attendance rule during his pursuit of internal union remedies when the member was aware of the existence of the rule bars the Secretary of Labor from later challenging that rule in an action under § 402 of the Labor-Management Reporting and Disclosure Act, which provides that, once a member challenging an election has exhausted his internal union remedies and filed a complaint with the Secretary of Labor, the Secretary"shall investigate such complaint and, if he finds probable cause to believe that a violation . . . has occurred and has not been remedied, he shall . . . bring a civil action against the labor organization."Pp. 403 U. S. 336-341.426 F.2d 969, affirmed.MARSHALL, J., wrote the opinion of the Court, in which BURGER, C.J., and BLACK, DOUGLAS, HARLAN, STEWART, and BLACKMUN, JJ., joined. BRENNAN, J., post, p. 403 U. S. 341, and WHITE, J., post, p. 403 U. S. 343, filed dissenting opinions. Page 403 U. S. 334

2000_99-9073

all those that are "related" to one another. USSG § 4B1.2(c), and comment., n. 3; § 4A1.2(a)(2). And they advise (in an application note) that prior convictions are "related" to one another when, inter alia, they "were consolidated for ... sentencing." § 4A1.2, comment., n. 3.The Seventh Circuit has refined this "prior conviction" doctrine yet further. It has held that two prior convictions might have been "consolidated for sentencing," and hence "related," even if the sentencing court did not enter any formal order of consolidation. See United States v. Joseph, 50 F. 3d 401,404, cert. denied, 516 U. S. 847 (1995). In such an instance, the Circuit has said, a court should decide whether the convictions were nonetheless "functionally consolidated," which means that the convictions were "factually or logically related, and sentencing was joint." 201 F.3d 937, 940 (2000) (emphasis added).BThis case concerns "functional consolidation." Paula Buford pleaded guilty to armed bank robbery, a crime of violence, in federal court. The federal sentencing judge had to decide whether Buford's five 1992 Wisconsin state-court convictions were "related" to one another, and consequently counted as one single prior conviction, or whether they should count as more than one.The Government conceded that four of the five prior convictions were "related" to one another. These four involved a series of gas station robberies. All four had been the subject of a single criminal indictment, and Buford had pleaded guilty to all four at the same time in the same court. See USSG § 4A1.2, comment., n. 3 (prior offenses are "related" if "consolidated for trial or sentencing").The Government did not concede, however, that the fifth conviction, for a drug crime, was "related" to the other four. The drug crime (possession of, with intent to deliver, cocaine) had taken place about the same time as the fourth62robbery, and Buford claimed that the robberies had been motivated by her drug addiction. But the only evidentiary link among the crimes was that the police had discovered the cocaine when searching Buford's house after her arrest for the robberies. Moreover, no formal order of consolidation had been entered. The State had charged the drug offense in a separate indictment and had assigned a different prosecutor to handle the drug case. A different judge had heard Buford plead guilty to the drug charge in a different hearing held on a different date; two different state prosecutors had appeared before the sentencing court, one discussing drugs, the other discussing the robberies; and the sentencing court had entered two separate judgments.Buford, without denying these facts, nonetheless pointed to other circumstances that, in her view, showed that the drug crime conviction had been "consolidated" with the robbery convictions for sentencing, rendering her drug conviction and robbery convictions "related." She pointed out that the State had sent the four robbery cases for sentencing to the very same judge who had heard and accepted her plea of guilty to the drug charge; that the judge had heard arguments about sentencing in all five cases at the same time in a single proceeding; that the judge had issued sentences for all five crimes at the same time; and that the judge, having imposed three sentences for the five crimes (6 years for the drug crime, 12 years for two robberies, and 15 years for the other two), had ordered all three to run concurrently.The District Court, placing greater weight on the former circumstances than on the latter, decided that the drug case and the robbery cases had not been consolidated for sentencing, either formally or functionally. Buford appealed. The Court of Appeals found the "functional consolidation" question a close one, and wrote that "the standard of appellate review may be dispositive." 201 F. 3d, at 940. It decided to review the District Court's decision "deferentially" rather63than "de novo." Id., at 942. And it affirmed that decision. Ibid.Buford sought certiorari. In light of the different Circuits' different approaches to the problem, we granted the writ. Compare United States v. Irons, 196 F.3d 634, 638 (CA6 1999) (relatedness decision reviewed for clear error); United States v. Wiseman, 172 F.3d 1196, 1219 (CAlO) (same), cert. denied, 528 U. S. 889 (1999); United States v. Mapp, 170 F.3d 328, 338 (CA2) (same), cert. denied, 528 U. S. 901 (1999); United States v. Maza, 93 F.3d 1390, 1400 (CA8 1996) (same), cert. denied, 519 U. S. 1138 (1997); United States v. Mullens, 65 F.3d 1560, 1565 (CAll 1995), cert. denied, 517 U. S. 1112 (1996) (same), with United States v. Garcia, 962 F.2d 479, 481 (CA5) (relatedness determination reviewed de novo), cert. denied, 506 U. S. 902 (1992); United States v. Davis, 922 F.2d 1385, 1388 (CA9 1991) (same).IIIn arguing for de novo review, Buford points out that she has not contested any relevant underlying issue of fact. She disagrees only with the District Court's legal conclusion that a legallabel-"functional consolidation"-failed to fit the undisputed facts. She concedes, as she must, that this circumstance does not dispose of the standard of review question. That is because the relevant federal sentencing statute requires a reviewing court not only to "accept" a district court's "findings of fact" (unless "clearly erroneous"), but also to "give due deference to the district court's application of the guidelines to the facts." 18 U. S. C. § 3742(e) (emphasis added). And that is the kind of determination-application of the Guidelines to the facts-that is at issue here. Hence the question we must answer is what kind of "deference" is "due." And, as we noted in Koon v. United States, 518 U. S. 81, 98 (1996), the "deference that is due depends on the nature of the question presented."64Buford argues that the nature of the question presented here-applying a Sentencing Guidelines term to undisputed facts-demands no deference at all. That is to say, the deference "due" is no deference; hence the Court of Appeals should have reviewed the trial court's decision de novo. Buford points out that, because the underlying facts are not in dispute, witness credibility is not important. She adds that de novo appellate review will help clarify and make meaningful the consolidation-related legal principles at issue. And she says that de novo review will help avoid inconsistent trial court determinations about consolidation, thereby furthering the Guidelines' effort to bring consistency to sentencing law.Despite these arguments, we believe that the appellate court was right to review this trial court decision deferentially rather than de novo. In Koon, we based our selection of an abuse-of-discretion standard of review on the relative institutional advantages enjoyed by the district court in making the type of determination at issue. See id., at 98-99; cf. Miller v. Fenton, 474 U. S. 104, 114 (1985) (deference may depend on whether "one judicial actor is better positioned than another to decide the issue in question"). We concluded there that the special competence of the district court helped to make deferential review appropriate. And that is true here as well. That is to say, the district court is in a better position than the appellate court to decide whether a particular set of individual circumstances demonstrates "functional consolidation."That is so because a district judge sees many more "consolidations" than does an appellate judge. As a trial judge, a district judge is likely to be more familiar with trial and sentencing practices in general, including consolidation procedures. And as a sentencing judge who must regularly review and classify defendants' criminal histories, a district judge is more likely to be aware of which procedures the relevant state or federal courts typically follow. Experience with trials, sentencing, and consolidations will help that65judge draw the proper inferences from the procedural descriptions provided.In addition, factual nuance may closely guide the legal decision, with legal results depending heavily upon an understanding of the significance of case-specific details. See Koon v. United States, supra, at 98-99 (District Court's detailed understanding of the case before it and experience with other sentencing cases favored deferential review); Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 403-404 (1990) (fact-intensive nature of decision whether to impose sanctions under Federal Rule of Civil Procedure 11 made deferential review appropriate); Pierce v. Underwood, 487 U. S. 552, 560 (1988) (District Court's familiarity with facts of case warranted deferential review of determination whether Government's legal position was "substantially justified"). In a case like this one, for example, under Seventh Circuit doctrine, the District Judge usefully might have considered the factual details of the crimes at issue in order to determine whether factual connections among those crimes, rather than, say, administrative convenience, led Wisconsin to sentence Buford simultaneously and concurrently for the robbery and drug offenses. See United States v. Joseph, 50 F. 3d, at 404; United States v. Russell, 2 F.3d 200, 204 (CA71993).Nor can we place determinative weight upon the heightened uniformity benefits that Buford contends will result from de novo review. The legal question at issue is a minor, detailed, interstitial question of sentencing law, buried in a judicial interpretation of an application note to a Sentencing Guideline. That question is not a generally recurring, purely legal matter, such as interpreting a set of legal words, say, those of an individual guideline, in order to determine their basic intent. Nor is that question readily resolved by reference to general legal principles and standards alone. Rather, the question at issue grows out of, and is bounded by, case-specific detailed factual circumstances. And the66fact-bound nature of the decision limits the value of appellate court precedent, which may provide only minimal help when other courts consider other procedural circumstances, other state systems, and other crimes. In any event, the Sentencing Commission itself gathers information on the sentences imposed by different courts, it views the sentencing process as a whole, it has developed a broad perspective on sentencing practices throughout the Nation, and it can, by adjusting the Guidelines or the application notes, produce more consistent sentencing results among similarly situated offenders sentenced by different courts. Insofar as greater uniformity is necessary, the Commission can provide it. Cf. Braxton v. United States, 500 U. S. 344, 347-348 (1991) (Congress intended Sentencing Commission to play primary role in resolving conflicts over interpretation of Guidelines).IIIIn light of the fact-bound nature of the legal decision, the comparatively greater expertise of the District Court, and the limited value of uniform court of appeals precedent, we conclude that the Court of Appeals properly reviewed the District Court's "functional consolidation" decision deferentially. The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 2000SyllabusBUFORD v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 99-9073. Argued January 8, 200l-Decided March 20, 2001The United States Sentencing Guidelines, as relevant here, define a career offender as one with at least two prior felony convictions for violent or drug-related crimes and provide that a sentencing judge must count as a single prior conviction all "related" convictions, advising that they are "related" when, inter alia, they were consolidated for sentencing. The Seventh Circuit has held that because two prior convictions might have been consolidated for sentencing, and hence related, even if a sentencing court did not enter a formal consolidation order, a court should decide whether such convictions were nonetheless functionally consolidated, meaning that they were factually or logically related and sentencing was joint. Petitioner Buford pleaded guilty to armed bank robbery. At sentencing, the Government conceded that her four prior robbery convictions were related, but did not concede that her prior drug conviction was related to the robberies. The District Court decided that the drug and robbery cases had not been consolidated, either formally or functionally, and the Seventh Circuit affirmed, reviewing the District Court's decision deferentially rather than de novo.Held: Deferential review is appropriate when an appeals court reviews a trial court's Sentencing Guideline determination as to whether an offender's prior convictions were consolidated for sentencing. The relevant federal sentencing statute requires a reviewing court not only to "accept" a district court's "findings of fact" (unless "clearly erroneous"), but also to "give due deference to the court's application of the guidelines to the facts." 18 U. S. C. § 3742(e) (emphasis added). The "deference that is due depends on the nature of the question presented." Koon v. United States, 518 U. S. 81, 98. Although Buford argues that the nature of the question here-applying a Guideline term to undisputed facts-demands no deference at all, the district court is in a better position than the appellate court to decide whether individual circumstances demonstrate functional consolidation. Experience with trials, sentencing, and consolidation procedures will help a district judge draw the proper inferences from the procedural descriptions provided. In addition, factual nuance may closely guide the legal decision, with legal results depending heavily upon an understanding of the significance of case-specific details. And the decision's fact-bound nature limits the60value of appellate court precedent, which may provide only minimal help when other courts consider other procedural circumstances, state systems, and crimes. Insofar as greater uniformity is necessary, the Sentencing Commission can provide it. Pp. 63-66.201 F.3d 937, affirmed.BREYER, J., delivered the opinion for a unanimous Court.Dean A. Strang argued the cause for petitioner. With him on the briefs were Brian P. Mullins and Robert A. Kagen.Paul R. Q. Wolfson argued the cause for the United States. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben.JUSTICE BREYER delivered the opinion of the Court.This case raises a narrow question of sentencing law.What standard of review applies when a court of appeals reviews a trial court's Sentencing Guideline determination as to whether an offender's prior convictions were consolidated, hence "related," for purposes of sentencing? In particular, should the appeals court review the trial court's decision deferentially or de novo? We conclude, as did the Court of Appeals, that deferential review is appropriate, and we affirm.I AThe trial court decision at issue focused on one aspect of the United States Sentencing Guidelines' treatment of "career offenders," a category of offender subject to particularly severe punishment. The Guidelines define a "career offender" as an offender with "at least two prior felony convictions" for violent or drug-related crimes. United States Sentencing Commission, Guidelines Manual § 4B1.1 (Nov. 2000) (USSG). At the same time, they provide that a sentencing judge must count as a single prior felony conviction61Full Text of Opinion

1980_79-935

JUSTICE STEWART delivered the opinion of the Court.At a hearing before his criminal trial in a Missouri court, the respondent, Willie McCurry, invoked the Fourth and Fourteenth Amendments to suppress evidence that had been seized by the police. The trial court denied the suppression motion in part, and McCurry was subsequently convicted after a jury trial. The conviction was later affirmed on appeal. State v. McCurry, 587 S.W.2d 337 (Mo.App. 1979). Because he did not assert that the state courts had denied him a "full and fair opportunity" to litigate his seizure claim, McCurry was barred by this Court's decision in Stone v. Powell, 428 U. S. 465, from seeking a writ of habeas corpus in a federal district court. Nevertheless, he sought federal court redress for the alleged constitutional violation by bringing a damages suit under 42 U.S.C. § 1983 against the officers who had entered his home and seized the evidence in question. We granted certiorari to consider whether the unavailability of federal habeas corpus prevented the police officers from raising the state courts' partial rejection of McCurry's constitutional claim as a collateral estoppel defense to the § 1983 suit against them for damages. 444 U.S. 1070. Page 449 U. S. 92IIn April, 1977, several undercover police officers, following an informant's tip that McCurry was dealing in heroin, went to his house in St. Louis, Mo., to attempt a purchase. [Footnote 1] Two officers, petitioners Allen and Jacobsmeyer, knocked on the front door, while the other officers hid nearby. When McCurry opened the door, the two officers asked to buy some heroin "caps." McCurry went back into the house and returned soon thereafter, firing a pistol at and seriously wounding Allen and Jacobsmeyer. After a gun battle with the other officers and their reinforcements, McCurry retreated into the house; he emerged again when the police demanded that he surrender. Several officers then entered the house without a warrant, purportedly to search for other persons inside. One of the officers seized drugs and other contraband that lay in plain view, as well as additional contraband he found in dresser drawers and in auto tires on the porch.McCurry was charged with possession of heroin and assault with intent to kill. At the pretrial suppression hearing, the trial judge excluded the evidence seized from the dresser drawers and tires, but denied suppression of the evidence found in plain view. McCurry was convicted of both the heroin and assault offenses.McCurry subsequently filed the present § 1983 action for $ 1 million in damages against petitioners Allen and Jacobsmeyer, other unnamed individual police officers, and the city of St. Louis and its police department. The complaint alleged a conspiracy to violate McCurry's Fourth Amendment rights, an unconstitutional seizure of his house, and an assault on him by unknown police officers after he had been arrested and handcuffed. The petitioners moved for summary judgment. The District Court apparently understood Page 449 U. S. 93 the gist of the complaint to be the allegedly unconstitutional seizure, and granted summary judgment, holding that collateral estoppel prevented McCurry from relitigating the search and seizure question already decided against him in the state courts. 466 F. Supp. 514 (ED Mo.1978). [Footnote 2]The Court of Appeals reversed the judgment and remanded the case for trial. 606 F.2d 795 (CA8 1979). [Footnote 3] The appellate court said it was not holding that collateral estoppel was generally inapplicable in a § 1983 suit raising issues determined against the federal plaintiff in a state criminal trial. Id. at 798. But noting that Stone v. Powell, supra, barred McCurry from federal habeas corpus relief, and invoking "the special role of the federal courts in protecting civil rights," 606 F.2d at 799, the court concluded that the § 1983 suit was McCurry's only route to a federal forum for his Page 449 U. S. 94 constitutional claim and directed the trial court to allow him to proceed to trial unencumbered by collateral estoppel. [Footnote 4]IIThe federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel. Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Cromwell v. County of Sac, 94 U. S. 351, 94 U. S. 352. Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. Montana v. United States, 440 U. S. 147, 440 U. S. 153. [Footnote 5] As this Court and other courts have often recognized, res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication. Id. at 440 U. S. 153-154.In recent years, this Court has reaffirmed the benefits of collateral estoppel in particular, finding the policies underlying it to apply in contexts not formerly recognized at common law. Thus, the Court has eliminated the requirement of mutuality in applying collateral estoppel to bar relitigation Page 449 U. S. 95 of issues decided earlier in federal court suits, Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, and has allowed a litigant who was not a party to a federal case to use collateral estoppel "offensively" in a new federal suit against the party who lost on the decided issue in the first case, Parklane Hosiery Co. v. Shore, 43 U. S. 322. [Footnote 6] But one general limitation the Court has repeatedly recognized is that the concept of collateral estoppel cannot apply when the party against whom the earlier decision is asserted did not have a "full and fair opportunity" to litigate that issue in the earlier case. Montana v. United States, supra, at 440 U. S. 153; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, at 402 U. S. 328-329. [Footnote 7]The federal courts generally have also consistently accorded preclusive effect to issues decided by state courts. E.g., Montana v. United States, supra; Angel v. Bullington, 330 U. S. 183. Thus, res judicata and collateral estoppel not only reduce unnecessary litigation and foster reliance on adjudication, Page 449 U. S. 96 but also promote the comity between state and federal courts that has been recognized as a bulwark of the federal system. See Younger v. Harris, 401 U. S. 37, 401 U. S. 43-45.Indeed, though the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state court judgments whenever the courts of the State from which the judgments emerged would do so:"[J]udicial proceedings [of any court of any State] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State. . . ."28 U.S.C. § 1738. [Footnote 8] Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U. S. 183, 312 U. S. 193; Davis v. Davis, 305 U. S. 32, 305 U. S. 40. It is against this background that we examine the relationship of § 1983 and collateral estoppel, and the decision of the Court of Appeals in this case.IIIThis Court has never directly decided whether the rules of res judicata and collateral estoppel are generally applicable to § 1983 actions. But in Preiser v. Rodriguez, 411 U. S. 475, 411 U. S. 497, the Court noted with implicit approval the view of other federal courts that res judicata principles fully apply to civil rights suits brought under that statute. See also Huffman v. Pursue, Ltd., 420 U. S. 592, 420 U. S. 606, n. 18; Wolff v. Page 449 U. S. 97 McDonnell, 418 U. S. 539, 418 U. S. 554, n. 12. [Footnote 9] And the virtually unanimous view of the Courts of Appeals since Preiser has been that § 1983 presents no categorical bar to the application of res judicata and collateral estoppel concepts. [Footnote 10] These federal appellate court decisions have spoken with little explanation or citation in assuming the compatibility of § 1983 and rules of preclusion, but the statute and its legislative history clearly support the courts' decisions.Because the requirement of mutuality of estoppel was still alive in the federal courts until well into this century, see Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra at 402 U. S. 322-323, the drafters of the 1871 Civil Rights Act, of which § 1983 is a part, may have had less reason to concern themselves with rules of preclusion than a modern Congress would. Nevertheless, in 1871 res judicata and collateral estoppel could certainly have applied in federal suits following state court litigation between the same parties or their privies, and nothing in the language of § 1983 remotely expresses any congressional intent to contravene the common law rules of preclusion or to repeal the express statutory Page 449 U. S. 98 requirements of the predecessor of 28 U.S.C. § 1738, see n 8, supra. Section 1983 creates a new federal cause of action. [Footnote 11] It says nothing about the preclusive effect of state court judgments. [Footnote 12]Moreover, the legislative history of § 1983 does not in any clear way suggest that Congress intended to repeal or restrict the traditional doctrines of preclusion. The main goal of the Act was to override the corrupting influence of the Ku Klux Klan and its sympathizers on the governments and law enforcement agencies of the Southern States, see Monroe v. Pape, 365 U. S. 167, 365 U. S. 174, and of course the debates show that one strong motive behind its enactment was grave congressional concern that the state courts had been deficient in Page 449 U. S. 99 protecting federal rights, Mitchum v. Foster, 407 U. S. 225, 407 U. S. 241-242; Monroe v. Pape, supra at 365 U. S. 180. [Footnote 13] But in the context of the legislative history as a whole, this congressional concern lends only the most equivocal support to any argument that, in cases where the state courts have recognized the constitutional claims asserted and provided fair procedures for determining them, Congress intended to override § 1738 or the common law rules of collateral estoppel and res judicata. Since repeals by implication are disfavored, Radzanower v. Touche Ross & Co., 426 U. S. 148, 426 U. S. 154, much clearer support than this would be required to hold that § 1738 and the traditional rules of preclusion are not applicable to § 1983 suits.As the Court has understood the history of the legislation, Congress realized that, in enacting § 1983, it was altering the balance of judicial power between the state and federal courts. See Mitchum v. Foster, supra, at 407 U. S. 241. But in doing so, Congress was adding to the jurisdiction of the federal courts, not subtracting from that of the state courts. See Monroe v. Pape, supra at 365 U. S. 183 ("The federal remedy is supplementary to the state remedy." . . .). [Footnote 14] The debates contain several references to the concurrent jurisdiction of the state courts over federal questions, [Footnote 15] and numerous suggestions Page 449 U. S. 100 that the state courts would retain their established jurisdiction so that they could, when the then current political passions abated, demonstrate a new sensitivity to federal rights. [Footnote 16]To the extent that it did intend to change the balance of power over federal questions between the state and federal courts, the 42d Congress was acting in a way thoroughly consistent with the doctrines of preclusion. In reviewing the legislative history of § 1983 in Monroe v. Pape, supra, the Court inferred that Congress had intended a federal remedy in three circumstances: where state substantive law was facially unconstitutional, where state procedural law was Page 449 U. S. 101 inadequate to allow full litigation of a constitutional claim, and where state procedural law, though adequate in theory, was inadequate in practice. 365 U.S. at 365 U. S. 173-174. In short, the federal courts could step in where the state courts were unable or unwilling to protect federal rights. Id. at 365 U. S. 176. This understanding of § 1983 might well support an exception to res judicata and collateral estoppel where state law did not provide fair procedures for the litigation of constitutional claims, or where a state court failed to even acknowledge the existence of the constitutional principle on which a litigant based his claim. Such an exception, however, would be essentially the same as the important general limit on rules of preclusion that already exists: collateral estoppel does not apply where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court. See supra at 449 U. S. 95. But the Court's view of § 1983 in Monroe lends no strength to any argument that Congress intended to allow relitigation of federal issues decided after a full and fair hearing in a state court simply because the state court's decision may have been erroneous. [Footnote 17] Page 449 U. S. 102The Court of Appeals in this case acknowledged that every Court of Appeals that has squarely decided the question has held that collateral estoppel applies when § 1983 plaintiffs attempt to relitigate in federal court issues decided against them in state criminal proceedings. [Footnote 18] But the court noted that the only two federal appellate decisions invoking collateral estoppel to bar relitigation of Fourth Amendment claims decided adversely to the § 1983 plaintiffs in state court came before this Court's decision in Stone v. Powell, 428 U. S. 465. [Footnote 19] It also noted that some of the decisions holding Page 449 U. S. 103 collateral estoppel applicable to § 1983 actions were based at least in part on the estopped party's access to another federal forum through habeas corpus. [Footnote 20] The Court of Appeals thus concluded that, since Stone v. Powell had removed McCurry's right to a hearing of his Fourth Amendment claim in federal habeas corpus, collateral estoppel should not deprive him of a federal judicial hearing of that claim in a § 1983 suit.Stone v. Powell does not provide a logical doctrinal source for the court's ruling. This Court in Stone assessed the costs and benefits of the judge-made exclusionary rule within the boundaries of the federal courts' statutory power to issue writs of habeas corpus, and decided that the incremental deterrent effect that the issuance of the writ in Fourth Amendment cases might have on police conduct did not justify the cost the writ imposed upon the fair administration of criminal justice. 428 U.S. at 428 U. S. 489-496. The Stone decision concerns only the prudent exercise of federal court jurisdiction under 28 U.S.C. § 2254. It has no bearing on § 1983 suits or on the question of the preclusive effect of state court judgments.The actual basis of the Court of Appeals' holding appears to be a generally framed principle that every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district court, regardless of the legal posture in which the federal claim arises. But the authority for this principle is difficult to discern. It cannot lie in the Constitution, which makes no such guarantee, but leaves the scope of the jurisdiction of the federal district courts to the wisdom of Congress. [Footnote 21] And no such authority is to be found in § 1983 itself. For reasons already discussed at length, nothing in the language or legislative history of Page 449 U. S. 104 § 1983 proves any congressional intent to deny binding effect to a state court judgment or decision when the state court, acting within its proper jurisdiction, has given the parties a full and fair opportunity to litigate federal claims, and thereby has shown itself willing and able to protect federal rights. And nothing in the legislative history of § 1983 reveals any purpose to afford less deference to judgments in state criminal proceedings than to those in state civil proceedings. [Footnote 22] There is, in short, no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court simply because the issue arose in a state proceeding in which he would rather not have been engaged at all. [Footnote 23]Through § 1983, the 42d Congress intended to afford an opportunity for legal and equitable relief in a federal court for certain types of injuries. It is difficult to believe that the drafters of that Act considered it a substitute for a federal writ of habeas corpus, the purpose of which is not to redress civil injury, but to release the applicant from unlawful physical confinement, Preiser v. Rodriguez, 411 U.S. at 411 U. S. 484; Fay v. Noia, 372 U. S. 391, 372 U. S. 399, n. 5, [Footnote 24] particularly in light of the Page 449 U. S. 105 extremely narrow scope of federal habeas relief for state prisoners in 1871.The only other conceivable basis for finding a universal right to litigate a federal claim in a federal district court is hardly a legal basis at all, but rather a general distrust of the capacity of the state courts to render correct decisions on constitutional issues. It is ironic that Stone v. Powell provided the occasion for the expression of such an attitude in the present litigation, in view of this Court's emphatic reaffirmation in that case of the constitutional obligation of the state courts to uphold federal law, and its expression of confidence in their ability to do so. 428 U.S. at 428 U. S. 493-494, n. 35; see Robb v. Connolly, 111 U. S. 624, 111 U. S. 637 (Harlan, J.).The Court of Appeals erred in holding that McCurry's inability to obtain federal habeas corpus relief upon his Fourth Amendment claim renders the doctrine of collateral estoppel inapplicable to his § 1983 suit. [Footnote 25] Accordingly, the judgment is reversed, and the case is remanded to the Court of Appeals for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtAllen v. McCurry, 449 U.S. 90 (1980)Allen v. McCurryNo. 79-935Argued October 8, 1980Decided December 9, 1980449 U.S. 90SyllabusAt a hearing before respondent's criminal trial, a Missouri court denied, in part, respondent's motion to suppress, on Fourth and Fourteenth Amendment grounds, certain evidence that had been seized by the police. Respondent was subsequently convicted, and the conviction was affirmed on appeal. Because he did not assert that the state courts had denied him a "full and fair opportunity" to litigate his search and seizure claim, respondent was barred by Stone v. Powell, 428 U. S. 465, from seeking a writ of habeas corpus in a federal district court. Nevertheless, he sought federal court redress for the alleged constitutional violation by bringing a suit for damages under 42 U.S.C. § 1983 against the officers who had seized the evidence in question. The Federal District Court granted summary judgment for the defendants, holding that collateral estoppel prevented respondent from relitigating the search and seizure question already decided against him in the state courts. The Court of Appeals reversed and remanded, noting that Stone v. Powell, supra, barred respondent from federal habeas corpus relief, and that the § 1983 suit was, therefore, respondent's only route to a federal forum for his constitutional claim, and directed the trial court to allow him to proceed to trial unencumbered by collateral estoppel.Held: The Court of Appeals erred in holding that respondent's inability to obtain federal habeas corpus relief upon his Fourth Amendment claim renders the doctrine of collateral estoppel inapplicable to his § 1983 suit. Nothing in the language or legislative history of § 1983 discloses any congressional intent to deny binding effect to a state court judgment or decision when the state court, acting within its proper jurisdiction, has given the parties a full and fair opportunity to litigate federal claims, and thereby has shown itself willing and able to protect federal rights. Nor does anything in § 1983's legislative history reveal any purpose to afford less deference to judgments in state criminal proceedings than to those in state civil proceedings. Pp. 449 U. S. 94-105.606 F.2d 795, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and STEVENS, JJ., joined. BLACKMUN, Page 449 U. S. 91 J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post p. 449 U. S. 105.

1988_88-192

Justice BRENNAN delivered the opinion of the Court.Petitioner McKesson Corporation brought this action in Florida state court, alleging that Florida's liquor excise tax violated the Commerce Clause of the United States Constitution. The Florida Supreme Court agreed with petitioner that the tax scheme unconstitutionally discriminated against interstate commerce because it provided preferences for distributors of certain local products. Although the court enjoined the State from giving effect to those preferences in the future, the court also refused to provide petitioner a refund or any other form of relief for taxes it had already paid.Our precedents establish that, if a State penalizes taxpayers for failure to remit their taxes in timely fashion, thus requiring them to pay first and obtain review of the tax's validity later in a refund action, the Due Process Clause requires the State to afford taxpayers a meaningful opportunity to secure postpayment relief for taxes already paid pursuant to a tax scheme ultimately found unconstitutional. We therefore agree with petitioner that the state court's decision denying such relief must be reversed.IFor several decades until 1985, Florida's liquor excise tax scheme, which imposes taxes on manufacturers, distributors, and in some cases vendors of alcoholic beverages, provided Page 496 U. S. 23 for preferential treatment of beverages that were manufactured from certain "Florida-grown" citrus and other agricultural crops and then bottled in-state. See, e.g., Fla.Stat. §§ 564.02, 564.06, 565.12, 565.14 (1983). After this Court held in Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984), that a similar preference scheme employed by the State of Hawaii violated the Commerce Clause [Footnote 1] (because it had both the purpose and effect of discriminating in favor of local products), the Florida Legislature revised its excise tax scheme and enacted the statutory provisions at issue in this litigation. See Fla.Stat. §§ 564.06, 565.12 (1985) (hereafter Liquor Tax). The legislature deleted the previous express preferences for "Florida-grown" products and replaced them with special rate reductions for certain specified citrus, grape, and sugarcane products, all of which are commonly grown in Florida and used in alcoholic beverages produced there. [Footnote 2]Petitioner McKesson Corporation is a licensed wholesale distributor of alcoholic beverages whose products did not qualify for the rate reductions. [Footnote 3] Petitioner paid the applicable Page 496 U. S. 24 taxes every month as required after the revised Liquor Tax went into effect, but in June 1986, petitioner filed an application with the Florida Office of the Comptroller seeking a refund on the ground that the tax scheme was unlawful. In September, after the Comptroller denied its application, petitioner (along with other distributors not present here) brought suit in Florida state court against respondents Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, and Officer of the Comptroller. Petitioner challenged the constitutionality of the tax under the Commerce Clause as well as under various other provisions of the United States and Florida Constitutions, and petitioner sought both declaratory and injunctive relief against the continued enforcement of the discriminatory tax scheme. Pursuant to Florida's "Repayment of Funds" statute, which provides for a refund of "[a]n overpayment of any tax, license or account due" and "[a]ny payment made into the State Treasury in error," Fla.Stat. §§ 215.26(1)(a), (c) (1985), and in apparent compliance with the statutory requisites for preserving a claim thereunder, [Footnote 4] petitioner also sought a refund in the amount of Page 496 U. S. 25 the excess taxes it had paid as a result of its disfavored treatment.On petitioner's motion for partial summary judgment, the Florida trial court invalidated the discriminatory tax scheme on Commerce Clause grounds because the revised "legislation failed to surmount the constitutional violations addressed in Bacchus [Imports, supra]." App. 263. The trial court enjoined future enforcement of the preferential rate reductions, leaving all distributors subject to the Liquor Tax's nonpreferred rates. The court, however, declined to order a refund or any other form of relief for the taxes previously paid and timely challenged under the discriminatory scheme. The court's order of prospective relief was stayed pending respondents' appeal of the Commerce Clause ruling to the Florida Supreme Court. [Footnote 5]Petitioner McKesson cross-appealed the trial court's ruling, arguing that, as a matter of both federal and state law, it was entitled at least to "a refund of the difference between the disfavored product's tax rate and the favored product's tax rate." 524 So. 2d 1000, 1009 (1988). The State Supreme Page 496 U. S. 26 Court affirmed the trial court's ruling that the Liquor Tax unconstitutionally discriminated against interstate commerce, and upheld the trial court's order that the preferential rate reductions be given no future operative effect. The Supreme Court also affirmed the trial court's refusal to order a tax refund, declaring that "the prospective nature of the rulings below was proper in light of the equitable considerations present in this case." Id. at 1010. The court noted that the Division of Alcoholic Beverages and Tobacco had collected the liquor tax in "good faith reliance on a presumptively valid statute." Ibid. Moreover, the court suggested that, "if given a refund, [petitioner] would in all probability receive a windfall, since the cost of the tax has likely been passed on to [its] customers." Ibid.After petitioner's request for rehearing was denied, petitioner filed a petition for writ of certiorari in this Court, presenting the question whether federal law entitles it to a partial tax refund. We granted the petition, 488 U.S. 954 (1988), and consolidated the case with American Trucking Assns., Inc. v. Smith, 496 U. S. 167, which we also decide today. [Footnote 6]IIRespondents first ask us to hold that, though the Florida courts accepted jurisdiction over this suit which sought monetary relief from various state entities, the Eleventh Amendment [Footnote 7] nevertheless precludes our exercise of appellate jurisdiction in this case. We reject respondents' suggestion. Almost 170 years ago, Chief Justice Marshall, writing for the Court, rejected a State's Eleventh Amendment challenge to Page 496 U. S. 27 this Court's power on writ of error to review the judgment of a state court involving an issue of federal law. See Cohens v. Virginia, 6 Wheat. 264, 19 U. S. 412. Although Cohens involved a proceeding commenced in the first instance by the State itself against a citizen, such that the Court's holding might be read as limited to that circumstance, the decision has long been understood as supporting a broader proposition:"[I]t was long ago settled that a writ of error to review the final judgment of a state court, even when a State is a formal party [defendant] and is successful in the inferior court, is not a suit within the meaning of the Amendment."General Oil Co. v. Crain, 209 U. S. 211, 209 U. S. 233 (1908) (Harlan, J., concurring); See also Charles River Bridge v. Warren Bridge, 11 Pet. 420, 36 U. S. 585 (1837) (Story, J., dissenting). Our consistent practice since Cohens confirms this broader understanding. We have repeatedly and without question accepted jurisdiction to review issues of federal law arising in suits brought against States in state court; indeed, we frequently have entertained cases analogous to this one, where a taxpayer who had brought a refund action in state court against the State asked us to reverse an adverse state judicial decision premised upon federal law. [Footnote 8] Page 496 U. S. 28Respondents correctly note that, since Cohens, the effect of the Eleventh Amendment on this Court's appellate jurisdiction over cases arising in state court has only infrequently been discussed in our cases. But those discussions uniformly reveal an understanding that the Amendment does not circumscribe our appellate review of state-court judgments. [Footnote 9] Moreover, that this Court has had little occasion to discuss the issue merely reflects the extent to which States, though frequently interjecting Eleventh Amendment objections to suits initiated against them in federal court, have understood the time-honored practice of appellate review of state-court judgments to be consistent with this Court's role in our federal system."[I]t is plain that the framers of the constitution did contemplate that cases within the judicial cognizance of the United States not only might but would arise in the state courts, in the exercise of their ordinary jurisdiction."Martin v. Hunter's Lessee, 1 Wheat. 304, 14 U. S. 340 (1816). [Footnote 10] To Page 496 U. S. 29 secure state court compliance with and national uniformity of federal law, the exercise of jurisdiction by state courts over cases encompassing issues of federal law is subject to two conditions: state courts must interpret and enforce faithfully the "supreme Law of the Land," [Footnote 11] and their decisions are subject to review by this Court. [Footnote 12] Whereas the Eleventh Page 496 U. S. 30 Amendment has been construed so that a State retains immunity from original suit in federal court, see Atascadero State Hospital v. Scanlon, 473 U. S. 234, 473 U. S. 237-240 (1985), it is "inherent in the constitutional plan," Monaco v. Mississippi, 292 U. S. 313, 292 U. S. 329 (1934), that, when a state court takes cognizance of a case, the State assents to appellate review by this Court of the federal issues raised in the case "whoever may be the parties to the original suit, whether private persons, or the state itself." [Footnote 13] We recognize what has long been implicit Page 496 U. S. 31 in our consistent practice and uniformly endorsed in our cases: the Eleventh Amendment does not constrain the appellate jurisdiction of the Supreme Court over cases arising from state courts. Accordingly, we turn to the merits of petitioner's claim.IIIIt is undisputed that the Florida Supreme Court, after holding that the Liquor Tax unconstitutionally discriminated against interstate commerce because of its preferences for liquor made from "crops which Florida is adapted to growing,'" 524 So. 2d at 1008, acted correctly in awarding petitioner declaratory and injunctive relief against continued enforcement of the discriminatory provisions. The question before us is whether prospective relief, by itself, exhausts the requirements of federal law. The answer is no: if a State places a taxpayer under duress promptly to pay a tax when due and relegates him to a postpayment refund action in which he can challenge the tax's legality, the Due Process Clause of the Fourteenth Amendment [Footnote 14] obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivation. [Footnote 15] Page 496 U. S. 32AWe have not had occasion in recent years to explain the scope of a State's obligation to provide retrospective relief as part of its postdeprivation procedure in cases such as this.' [Footnote 16] Our approach today, however, is rooted firmly in precedent dating back to at least early this century. Atchison, T. & S.F.R. Co. v. O'Connor, 223 U. S. 280 (1912), involved a suit by a railroad company to recover taxes it had paid under protest, alleging that the tax scheme violated the Commerce Clause because most of the franchise tax was apportioned to business conducted wholly outside the State. The Court agreed that the franchise tax was unconstitutional, and concluded that the railroad company was entitled to a refund of the portion of the tax imposed on out-of-state activity. Justice Holmes explained:"It is reasonable that a man who denies the legality of a tax should have a clear and certain remedy. The rule being established that, apart from special circumstances, he cannot interfere by injunction with the State's collection of its revenues, an action at law to recover back what he has paid is the alternative left. Of course we are speaking of those cases where the State is not put to an action if the citizen refuses to pay. In these latter, he can interpose his objections by way of defence, but when, as is common, the State has a more summary remedy, such as distress, and the party indicates by protest that he is yielding to what he cannot prevent, courts sometimes perhaps have been a little too slow to recognize the implied duress under which payment is made. Page 496 U. S. 33 But even if the State is driven to an action, if at the same time the citizen is put at a serious disadvantage in the assertion of his legal, in this case of his constitutional, rights, by defence in the suit, justice may require that he should be at liberty to avoid those disadvantages by paying promptly and bringing suit on his side."Id. at 223 U. S. 285-286. After finding that the railroad company's tax payment "was made under duress," id. at 223 U. S. 287, the Court issued a judgment entitling the company to a "refunding of the tax." Ibid. Thus was the taxpayer provided a "clear and certain remedy" for the State's unlawful extraction of tax moneys under duress.In Ward v. Love County Board of Comm'rs, 253 U. S. 17 (1920), we reversed the Oklahoma Supreme Court's refusal to award a refund for an unlawful tax. A subdivision of the State sought to tax lands allotted by Congress to members of the Choctaw and Chickasaw Indian Tribes despite a provision of the allotment treaty making the "lands allotted . . . nontaxable while the title remains in the original allottee, but not to exceed twenty-one years from date of patent.'" Id. at 253 U. S. 19, quoting Act of June 28, 1898, § 29, 30 Stat. 495, 507. To avoid a distress sale of its lands, the Choctaw Tribe paid the taxes under protest and then brought suit in state court to obtain a refund. We observed that "it is certain that the lands were nontaxable" by the State and its subdivisions under the allotment treaty and, therefore, the taxes were assessed in violation of federal law. 253 U.S. at 253 U. S. 21. After finding that the Tribe paid the taxes under duress, id. at 253 U. S. 23, we ordered a refund. We explained the State's duty to remit the tax as follows:"To say that the county could collect these unlawful taxes by coercive means and not incur any obligation to pay them back is nothing short of saying that it could take or appropriate the property of these Indian allottees arbitrarily and without due process of law. Of Page 496 U. S. 34 course this would be in contravention of the Fourteenth Amendment, which binds the county as an agency of the State."Id. at 253 U. S. 24. See also Carpenter v. Shaw, 280 U. S. 363, 280 U. S. 369 (1930) (holding, in a case analogous to Ward, that "a denial by a state court of a recovery of taxes in violation of the laws or Constitution of the United States by compulsion is itself in contravention of the Fourteenth Amendment").In Montana National Bank of Billings v. Yellowstone County, 276 U. S. 499 (1928), we applied the same due process analysis to a tax that was unlawful because it was discriminatory, though otherwise within the State's power to impose. Montana officials had imposed a tax on shares of banks incorporated under federal law but not on shares of state-incorporated banks, relying on a Montana Supreme Court decision interpreting state law to preclude such taxation of state bank shares. The Montana National Bank of Billings paid its tax under protest, and then brought suit for a refund. The bank contended that the different tax treatment violated § 5219 of the Revised Statutes, a federal statute requiring equal taxation of the shares of state and national banks. On appeal, the Montana Supreme Court overruled its previous interpretation of state law and held that thereafter shares of state banks could also be taxed, thus enabling state officials to comply with § 5219. Montana National Bank of Billings v. Yellowstone County, 78 Mont. 62, 252 P. 876 (1926). The court declined, however, to order a refund of the taxes that the Montana National Bank of Billings had paid during the period when state officials had exempted state banks in reliance on the court's earlier decision. Id. at 86, 252 P. at 883. On writ of error, this Court acknowledged that the Montana Supreme Court's decision to overrule its previous interpretation of state law ensured for the future the equal treatment demanded by federal law. The Court noted, however, that prospective relief alone "d[id] not cure the mischief which had been done under the Page 496 U. S. 35 earlier construction." 276 U.S. at 276 U. S. 504. We held that the Montana National Bank of Billings"c[ould not] be deprived of its legal right to recover the amount of the tax unlawfully exacted of it by the later [Montana Supreme Court] decision which, while repudiating the construction under which the unlawful exaction was made, le[ft] the monies thus exacted in the public treasury,"id. at 276 U. S. 504-505, and therefore the bank enjoyed "an undoubted right to recover" the moneys it had paid. Id. at 276 U. S. 504.The Court in Montana National Bank recognized that the federal mandate of equal treatment could have been satisfied by collecting back taxes from state banks rather than by granting a refund to national banks. Id. at 276 U. S. 505. But as to this possibility, the Court remarked:"[I]t is unnecessary to say more than that it nowhere appears that these [taxing] officers, if they possess the power [to assess back taxes], have undertaken to exercise it or that they have any intention of ever doing so. It will be soon enough to invite consideration of this purely speculative suggestion when, if ever, the taxing officials shall have put it into practical effect."Ibid. Montana National Bank thus held that one forced to pay a discriminatorily high tax in violation of federal law is entitled, in addition to prospective relief, to a refund of the excess tax paid -- at least unless the disparity is removed in some other manner.We again applied this analysis to a discriminatory tax in Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239 (1931). The Court held unanimously that the State of Iowa's taxation of the shares of state and national banks at a higher rate than those of competing domestic corporations violated the Equal Protection Clause. Id. at 284 U. S. 245-246. With respect to the banks' claim for a refund of excess taxes paid, Justice Brandeis explained: Page 496 U. S. 36"The [banks'] rights were violated, and the causes of action arose, when taxes at the lower rate were collected from their competitors. It may be assumed that all ground for a claim for refund would have fallen if the State, promptly upon discovery of the discrimination, had removed it by collecting the additional taxes from the favored competitors. By such collection the [banks'] grievances would have been redressed, for these are not primarily overassessment. The right invoked is that to equal treatment, and such treatment will be attained if either their competitors' taxes are increased or their own reduced."Id. at 284 U. S. 247. But the State did not elect to set matters right by collecting additional taxes from the banks' competitors for the four tax years encompassed by the suit. And the Court found it "well settled" that the banks could not be "remitted to the necessity of awaiting such action by the state officials upon their own initiative." Ibid. The Court held, therefore, that the banks were "entitled to obtain in these suits refund of the excess of taxes exacted from them." Ibid.BThese cases demonstrate the traditional legal analysis appropriate for determining Florida's constitutional duty to provide relief to petitioner McKesson for its payment of an unlawful tax. Because exaction of a tax constitutes a deprivation of property, the State must provide procedural safeguards against unlawful exactions in order to satisfy the commands of the Due Process Clause. [Footnote 17] The State may choose to provide a form of "predeprivation process," for example, by authorizing taxpayers to bring suit to enjoin imposition of a Page 496 U. S. 37 tax prior to its payment, or by allowing taxpayers to withhold payment and then interpose their objections as defenses in a tax enforcement proceeding initiated by the State. However, whereas"[w]e have described 'the root requirement' of the Due Process Clause as being 'that an individual be given an opportunity for a hearing before he is deprived of any significant property interest,'"Cleveland Board of Education v. Loudermill, 470 U. S. 532, 470 U. S. 542 (1985) (citation omitted), it is well established that a State need not provide predeprivation process for the exaction of taxes. [Footnote 18] Allowing taxpayers to litigate their tax liabilities prior to payment might threaten a government's financial security, both by creating unpredictable interim revenue shortfalls against which the State cannot easily prepare and by making the ultimate collection of validly imposed taxes more difficult. [Footnote 19] To protect government's exceedingly strong interest in financial stability in this context, we have long held that a State may employ various financial sanctions and summary remedies such as distress sales in order to encourage taxpayers to make timely payments prior to resolution of any dispute over the validity of the tax assessment. Page 496 U. S. 38Florida has availed itself of this approach, establishing various sanctions and summary remedies designed so that liquor distributors tender tax payments before their objections are entertained and resolved. [Footnote 20] As a result, Florida does not purport to provide taxpayers like petitioner with a meaningful opportunity to withhold payment and to obtain a predeprivation determination of the tax assessment's validity; [Footnote 21] rather, Florida requires taxpayers to raise their objections to Page 496 U. S. 39 the tax in a postdeprivation refund action. To satisfy the requirements of the Due Process Clause, therefore, in this refund action the State must provide taxpayers with, not only a fair opportunity to challenge the accuracy and legal validity of their tax obligation, [Footnote 22] but also a "clear and certain remedy," O'Connor, 223 U.S. at 223 U. S. 285, for any erroneous or unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful one.Had the Florida courts declared the Liquor Tax invalid either because (other than its discriminatory nature) it was beyond the State's power to impose, as was the unapportioned tax in O'Connor, or because the taxpayers were absolutely immune from the tax, as were the Indian Tribes in Ward and Carpenter, no corrective action by the State could cure the invalidity of the tax during the contested tax period. The State would have had no choice but to "undo" the unlawful deprivation by refunding the tax previously paid under duress, because allowing the State to"collect these unlawful taxes by coercive means and not incur any obligation to pay them back . . . would be in contravention of the Fourteenth Amendment."Ward, 253 U.S. at 253 U. S. 24; see also Carpenter, 280 U.S. at 280 U. S. 369.Here, however, the Florida courts did not invalidate the Liquor Tax in its entirety; rather, they declared the tax scheme unconstitutional only insofar as it operated in a manner that discriminated against interstate commerce. The State may, of course, choose to erase the property deprivation itself by providing petitioner with a full refund of its tax payments. But as both Montana National Bank and Bennett illustrate, a State found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this Page 496 U. S. 40 determination. Florida may reformulate and enforce the Liquor Tax during the contested tax period in any way that treats petitioner and its competitors in a manner consistent with the dictates of the Commerce Clause. Having done so, the State may retain the tax appropriately levied upon petitioner pursuant to this reformulated scheme because this retention would deprive petitioner of its property pursuant to a tax scheme that is valid under the Commerce Clause. In the end, the State's postdeprivation procedure would provide petitioner with all of the process it is due: an opportunity to contest the validity of the tax and a "clear and certain remedy" designed to render the opportunity meaningful by preventing any permanent unlawful deprivation of property.More specifically, the State may cure the invalidity of the Liquor Tax by refunding to petitioner the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its competitors actually received. Cf. Montana National Bank and Bennett (curing discrimination through such refunds). Alternatively, to the extent consistent with other constitutional restrictions, the State may assess and collect back taxes from petitioner's competitors who benefited from the rate reductions during the contested tax period, calibrating the retroactive assessment to create in hindsight a nondiscriminatory scheme. Cf. Bennett, 284 U.S. at 284 U. S. 247 (suggesting State could erase the unconstitutional discrimination by "collecting the additional taxes from the favored competitors"). [Footnote 23] Finally, Page 496 U. S. 41 a combination of a partial refund to petitioner and a partial retroactive assessment of tax increases on favored competitors, so long as the resultant tax actually assessed during the contested tax period reflects a scheme that does not discriminate against interstate commerce, would render petitioner's resultant deprivation lawful, and therefore satisfy the Due Process Clause's requirement of a fully adequate postdeprivation procedure.Respondents suggest that, in order to redress fully petitioner's unconstitutional deprivation, the State need not actually impose a constitutional tax scheme retroactively on all distributors during the contested tax period. Rather, they claim, the State need only place petitioner in the same tax position that petitioner would have been placed by such a hypothetical scheme. Specifically, respondents contend that the State, had it known that the Liquor Tax would be declared unconstitutional, would have imposed the higher flat tax rate on all distributors. Because petitioner would have paid the same tax under this hypothetical scheme as it did under the Liquor Tax, respondents claim that petitioner is not entitled to any retrospective relief (at least in the form of a refund); Page 496 U. S. 42 such relief would confer a "windfall" on petitioner by leaving it with a smaller tax burden than it would have borne were there no Commerce Clause violation in the first place.We implicitly rejected this line of reasoning in Montana National Bank and Bennett, and we expressly do so today. Even aside from the contrived and self-serving nature of the baseline against which respondents propose to measure petitioner's "deprivation," [Footnote 24] respondents' approach is inconsistent with the nature of the State's due process obligation. The deprivation worked by the Liquor Tax violated the Commerce Clause because the tax scheme's purpose and effect was to impose a relative disadvantage on a category of distributors (those dealing with nonpreferred products) largely composed of out-of-state companies, not because its treatment of this category of distributors diverged from some fixed substantive norm. [Footnote 25] Hence, the salient feature of the position petitioner "should have occupied" absent any Commerce Clause violation is its equivalence to the position actually occupied by petitioner's favored competitors. Page 496 U. S. 43But the State's offer to restore petitioner only to the same absolute tax position it would have enjoyed if taxed according to a "hypothetical" nondiscriminatory scheme does not in hindsight avoid the unlawful deprivation: it still in fact treats petitioner worse than distributors using the favored local products, thereby perpetuating the Commerce Clause violation during the contested tax period. Respondents are therefore correct that petitioner's "claim for a refund thus asks for much more than prompt injunctive relief would have achieved" [Footnote 26] only in the narrow sense that petitioner's absolute tax burden might be lower after the refund than if the tax preferences had immediately been enjoined such that all distributors were taxed at the higher rates. However, only an actual refund (or other retroactive adjustment of the tax burdens borne by petitioner and/or its favored competitors during the contested tax period) can bring about the nondiscrimination that "prompt injunctive relief would have achieved." If, through the State's own choice of relief, petitioner ends up paying a smaller tax than it would have paid if the State initially had imposed the highest rate on everyone, petitioner would not enjoy an unpalatable "windfall." Rather, petitioner would merely be protected from the comparative economic disadvantage proscribed by the Commerce Clause. Hence, the State's duty under the Due Process Clause to provide a "clear and certain remedy" requires it to ensure that the tax as actually imposed on petitioner and its competitors during the contested tax period does not deprive petitioner of tax moneys in a manner that discriminates against interstate commerce. [Footnote 27] Page 496 U. S. 44CThe Florida Supreme Court cites two "equitable considerations" as grounds for providing petitioner only prospective relief, but neither is sufficient to override the constitutional requirement that Florida provide retrospective relief as part of its postdeprivation procedure. The Florida court first mentions that "the tax preference scheme [was] implemented by the [Division of Alcoholic Beverages and Tobacco] in good faith reliance on a presumptively valid statute." 524 So. 2d at 1010. This observation bespeaks a concern that a State's obligation to provide refunds for what later turns out to he an unconstitutional tax would undermine the State's ability to engage in sound fiscal planning. However, leaving aside the Page 496 U. S. 45 fact that the State might avoid any such disruption by choosing (consistent with constitutional limitations) to collect back taxes from favored distributors rather than to offer refunds, we do not find this concern weighty in these circumstances. A State's freedom to impose various procedural requirements on actions for postdeprivation relief sufficiently meets this concern with respect to future cases. The State might, for example, provide by statute that refunds will be available only to those taxpayers paying under protest or providing some other timely notice of complaint; execute any refunds on a reasonable installment basis; enforce relatively short statutes of limitation applicable to such actions; [Footnote 28] refrain from collecting taxes pursuant to a scheme that has been declared invalid by a court or other competent tribunal pending further review of such declaration on appeal; and/or place challenged tax payments into an escrow account or employ other accounting devices such that the State can predict with greater accuracy the availability of undisputed treasury funds. The State's ability in the future to invoke such procedural protections suffices to secure the State's interest in stable fiscal planning when weighed against its constitutional obligation to provide relief for an unlawful tax.And in the present case, Florida's failure to avail itself of certain of these methods of self-protection weakens any "equitable" justification for avoiding its constitutional obligation to provide relief. [Footnote 29] Moreover, even were we to assume that Page 496 U. S. 46 the State's reliance on a "presumptively valid statute" was a relevant consideration to Florida's obligation to provide relief for its unconstitutional deprivation of property, we would disagree with the Florida court's characterization of the Liquor Tax as such a statute. The Liquor Tax reflected only cosmetic changes from the prior version of the tax scheme that itself was virtually identical to the Hawaii scheme invalidated in Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984). See App. 263 (trial court held that the revised "legislation failed to surmount the constitutional violations addressed in Bacchus [Imports]"). The State can hardly claim surprise at the Florida courts' invalidation of the scheme.The Florida Supreme Court also speculated that "if given a refund, [petitioner] would in all probability receive a windfall, since the cost of the tax has likely been passed on to [its] customers." 524 So. 2d at 1010. The court's premise seems to be that the State, faced with an obligation to cure its discrimination during the contested tax period and choosing to meet that obligation through a refund, could legitimately choose to avoid generating a "windfall" for petitioner by refunding only that portion of the tax payment not "passed on" to customers (or even suppliers). Even were we to accept this premise, the State could not refuse to provide a refund based on sheer speculation that a "pass-on" occurred. [Footnote 30] Page 496 U. S. 47 We repeatedly have recognized that determining whether a particular business cost has in fact been passed on to customers or suppliers entails a highly sophisticated theoretical and factual inquiry; a court certainly cannot withhold part of a refund otherwise required to rectify an unconstitutional deprivation without first satisfactorily engaging in this inquiry. [Footnote 31]In any event, however, we reject respondents' premise that "equitable considerations" justify a State's attempt to avoid bestowing this so-called "windfall" when redressing a tax that is unconstitutional because discriminatory. In United States v. Jefferson Electric Mfg. Co., 291 U. S. 386 (1934), we enforced a statutorily created pass-on defense in a refund action designed to redress a tax overassessment. Comparing such an action to one in assumpsit for "money had and received," we affirmed the Federal Government's power in this equitable action to withhold the amount that the taxpayer had already passed on to others, on the theory that the taxpayer ought not be "unjustly enriched" by his recovery from the Government after he has already "recovered" his losses through the pass-on. We observed that, if the taxpayer "has shifted the [economic] burden [of the tax] to the purchasers, they and not he have been the actual sufferers, Page 496 U. S. 48 and are the real parties in interest," id. at 291 U. S. 402, and he ought not receive a windfall for their injury.But petitioner does not challenge here a tax assessment that merely exceeded the amount authorized by statute; petitioner's complaint was that the Florida tax scheme unconstitutionally discriminated against interstate commerce. The tax injured petitioner not only because it left petitioner poorer in an absolute sense than before (a problem that might be rectified to the extent petitioner passed on the economic incidence of the tax to others), but also because it placed petitioner at a relative disadvantage in the marketplace vis-a-vis competitors distributing preferred local products. See n 25, supra; see also Bacchus Imports, supra, 468 U.S. at 468 U. S. 267 ("[E]ven if the tax [was] completely and successfully passed on, it increase[d] the price of [petitioner's] products as compared to the exempted beverages"). To whatever extent petitioner succeeded in passing on the economic incidence of the tax through higher prices to its customers, it most likely lost sales to the favored distributors, or else incurred other costs (e.g., for advertising) in an effort to maintain its market share. [Footnote 32] The State cannot persuasively claim that "equity" entitles it to retain tax moneys taken unlawfully from petitioner due to its pass-on of the tax where the pass-on itself furthers the very competitive disadvantage constituting the Commerce Clause violation that rendered the deprivation unlawful Page 496 U. S. 49 in the first place. [Footnote 33] We thus reject respondents' reliance on a pass-on defense in this context. [Footnote 34]DRespondents assert that requiring the State to rectify its unconstitutional discrimination during the contested tax period "would plainly cause serious economic and administrative Page 496 U. S. 50 dislocation for the State." Brief for Respondents on Rearg. 20. We agree that, within our due process jurisprudence, state interests traditionally have and may play some role in shaping the contours of the relief that the State must provide to illegally or erroneously deprived taxpayers, just as such interests play a role in shaping the procedural safeguards that the State must provide in order to ensure the accuracy of the initial determination of illegality or error. See generally Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 347-348 (1976). We have already noted that States have a legitimate interest in sound fiscal planning, and that this interest is sufficiently weighty to allow States to withhold predeprivation relief for allegedly unlawful tax assessments, providing postdeprivation relief only. See supra at 496 U. S. 37. But even if a State chooses to provide partial refunds as a means of curing the unlawful discrimination (as opposed to increasing the tax assessment of those previously favored), the State's interest in financial stability does not justify a refusal to provide relief. As noted earlier, see supra at 496 U. S. 46, the State here does not and cannot claim that the Florida courts' invalidation of the Liquor Tax was a surprise, and even after the trial court found a Commerce Clause violation the State failed to take reasonable precautions to reduce its ultimate exposure for the unconstitutional tax. And in the future, States may avail themselves of a variety of procedural protections against any disruptive effects of a tax scheme's invalidation, such as providing by statute that refunds will be available to only those taxpayers paying under protest, or enforcing relatively short statutes of limitation applicable to refund actions. See supra at 496 U. S. 45. Such procedural measures would sufficiently protect States' fiscal security when weighed against their obligation to provide meaningful relief for their unconstitutional taxation.Respondents also observe that the State's choice of relief may entail various administrative costs (apart from the "cost" Page 496 U. S. 51 of any refund itself [Footnote 35]). Cf. Mathews, supra at 424 U. S. 348 ("[T]he Government's interest . . . in conserving scarce fiscal and administrative resources is a factor that must be weighed" when determining precise contours of process due). The State may, of course, consider such costs when choosing between the various avenues of relief open to it. Because the Florida Supreme Court did not recognize in its refund proceeding the State's obligation under the Due Process Clause to rectify the invalidity of its deprivation of petitioner's property, the court did not consider how any administrative costs might influence the selection and fine-tuning of the relief afforded petitioner. We leave this to the state court on remand.IVWhen a State penalizes taxpayers for failure to remit their taxes in timely fashion, thus requiring them to pay first before obtaining review of the tax's validity, federal due process principles long recognized by our cases require the State's postdeprivation procedure to provide a "clear and certain remedy," O'Connor, 223 U.S. at 223 U. S. 285, for the deprivation of tax moneys in an unconstitutional manner. In this case, Florida may satisfy this obligation through any form of relief, ranging from a refund of the excess taxes paid by petitioner to an offsetting charge to previously favored distributors, that will cure any unconstitutional discrimination against interstate commerce during the contested tax period. The State is free to choose which form of relief it will provide, so long as that relief satisfies the minimum federal requirements Page 496 U. S. 52 we have outlined. [Footnote 36] The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtMcKesson Corp. v. Div. of AB & T, 496 U.S. 18 (1990)McKesson Corporation v. Division of Alcoholic Beverages andTobacco, Department of Business Regulation of FloridaNo. 88-192Argued March 22, 1989Reargued Dec. 6, 1989Decided June 4, 1990496 U.S. 18SyllabusAfter Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, held that Hawaii's liquor excise tax scheme -- which allowed tax preferences for alcoholic beverages manufactured from certain products grown in the State -- violated the Commerce Clause because it had the purpose and effect of discriminating against interstate commerce, Florida revised its similar tax preference scheme to provide special rate reductions for specified products commonly grown in that State and used in alcoholic beverages produced there. Petitioner McKesson Corporation, a wholesale liquor distributor whose products did not qualify for the rate reductions, paid the applicable taxes for a number of months. McKesson then filed suit in state court against respondent taxing authorities, seeking, inter alia, a refund in the amount of the excess taxes it had paid as a result of its disfavored treatment. The trial court invalidated the tax scheme under Bacchus Imports, enjoining future enforcement of the preferential rate reductions, but declined to order a refund or any other form of relief for taxes McKesson had already paid. The court's order was stayed pending appeal, and the State continued to collect taxes with the local preferences still in effect. The Florida Supreme Court ultimately affirmed in all respects, ruling that the refusal to order a refund was proper in light of "equitable considerations."Held:1. The Eleventh Amendment -- which provides in part that the federal "[j]udicial power . . . shall not . . . extend to any suit . . . commenced or prosecuted against one of the United States by Citizens" -- does not preclude the Supreme Court's exercise of appellate jurisdiction over cases brought against States that arise from state courts. This view has been implicit in the Court's consistent practice and uniformly endorsed in its cases, including cases involving state tax refund actions brought in state court, for almost 170 years. See, e.g., 19 U. S. Virginia, 6 Wheat. 264, 19 U. S. 412; General Oil Co. v. Crain, 209 U. S. 211, 209 U. S. 233; Davis v. Michigan Dept. of Treasury, 489 U. S. 803. Pp. 496 U. S. 26-31.2. If a State penalizes taxpayers for failure to remit their taxes in a timely fashion, thus requiring them to pay first and obtain review of the Page 496 U. S. 19 tax's validity later in a refund action, the Due Process Clause of the Fourteenth Amendment requires the State to afford them meaningful postpayment relief for taxes already paid pursuant to a tax scheme ultimately found unconstitutional. Pp. 496 U. S. 31-52.(a) This Court's precedents demonstrate the traditional legal analysis appropriate for determining Florida's constitutional duty to provide retrospective relief to McKesson for its payment of an unlawful tax. Atchison, T. & S.F.R. Co. v. O'Connor, 223 U. S. 280, 223 U. S. 285-286; Ward v. Love County Board of Comm'rs, 253 U. S. 17, 253 U. S. 24; Carpenter v. Shaw, 280 U. S. 363, 280 U. S. 369; Montana National Bank of Billings v. Yellowstone County, 276 U. S. 499, 504, 276 U. S. 505; Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 284 U. S. 247. Pp. 496 U. S. 32-36.(b) Under these cases, a State must provide procedural safeguards against an unlawful tax exaction because such exaction constitutes a deprivation of property under the Due Process Clause. A State may do so either by providing a form of predeprivation process -- e.g., by authorizing taxpayers to sue to enjoin imposition of the tax prior to its payment or to withhold payment and then interpose their objections as defenses in a state-initiated tax enforcement proceeding -- or by providing retrospective relief as part of its postdeprivation procedure. Since Florida has established various financial sanctions and summary remedies to encourage liquor distributors to tender tax payments before resolution of any dispute over the tax's validity, the State does not provide a meaningful opportunity for predeprivation relief. Thus, in a postdeprivation refund action, the State must provide distributors not only a fair opportunity to challenge the accuracy and legal validity of their tax obligation but also a "clear and certain remedy," O'Connor, supra, 223 U.S. at 223 U. S. 285, for any erroneous or unlawful tax collection. Because the state courts did not invalidate Florida's liquor excise tax scheme in its entirety, but declared it unconstitutional only insofar as it discriminated against interstate commerce, the State is free to choose among several alternative courses in providing a meaningful remedy. It may refund to McKesson the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions as its competitors. Cf. Montana National Bank, supra, and Bennett, supra. The State may also, to the extent consistent with other constitutional restrictions, assess and collect back taxes from McKesson's competitors who benefited from the rate reductions during the contested tax period, calibrating the retroactive assessment to create in hindsight a nondiscriminatory scheme. Cf. id., 284 U.S. at 284 U. S. 247. Furthermore, the State may implement a combination of a partial refund to McKesson and a partial retroactive assessment of tax increases on favored competitors, so long as the resultant tax actually assessed during the contested period reflects a Page 496 U. S. 20 nondiscriminatory scheme. However, the State may not, as respondents contend, deny McKesson retrospective relief on the theory that the highest tax rate would have been imposed on all distributors had the State known that the tax scheme actually enacted would be declared unconstitutional, such that McKesson would have paid the same tax in any event. Since this approach in fact treats McKesson worse than distributors of the favored local products, it is inconsistent with the requirement of due process: to place McKesson in a position equivalent to that actually occupied by the competitors so as to render valid the tax actually assessed. If, through the State's own choice of relief, McKesson ends up paying a smaller tax than it would have paid had the State initially imposed the highest rate on everyone, McKesson will not enjoy any unpalatable "windfall," but will merely be protected from the competitive economic disadvantage proscribed by the Commerce Clause. Pp. 496 U. S. 36-43.(c) Neither of the "equitable considerations" cited by the State Supreme Court is sufficient to override the constitutional requirement of retrospective relief. First, the court's observation that "the tax preference scheme [was] implemented . . . in good faith reliance on a presumptively valid statute" bespeaks a concern that an obligation to provide refunds for taxes collected pursuant to what later turns out to be an unconstitutional tax scheme would undermine the State's ability to engage in sound fiscal planning. But that ability is adequately secured by the State's freedom to impose various procedural requirements designed to allow it to predict with greater accuracy the availability of undisputed treasury funds; for example, it may specify by statute that refunds will be available only to those taxpayers paying under protest or providing some other timely notice of complaint, or it may refrain from collecting taxes pursuant to a scheme declared invalid by a competent tribunal pending further review. Florida's failure to avail itself of such methods of self-protection weakens any "equitable" justification for avoiding its constitutional obligation. Moreover, Florida's tax scheme could hardly be said to be a "presumptively valid statute," since it reflected only cosmetic changes from the prior tax scheme that itself was virtually identical to the one struck down in Bacchus Imports. Second, the state court's speculation that a refund would result in a "windfall" for McKesson, which has "likely passed on" the cost of the tax to its customers, is rejected in the context of this case. The tax injured McKesson not only because it left it poorer in an absolute sense than before (a problem that might be rectified to the extent the economic incidence of the tax was passed on to others), but also because it increased the price of McKesson's products as compared to the preferred local products, such that McKesson most likely lost sales to the favored distributors or else incurred other costs (e.g., for advertising) in an effort to maintain its market Page 496 U. S. 21 share. The State cannot persuasively claim that "equity" entitles it to retain tax moneys taken unlawfully from McKesson due to its pass-on of the tax where the pass-on itself furthers the very competitive disadvantage constituting the Commerce Clause violation that rendered the deprivation unlawful in the first place. United States v. Jefferson Electric Mfg. Co., 291 U. S. 386, 291 U. S. 402, distinguished. Pp. 496 U. S. 44-49.(d) The State's interests in avoiding serious economic and administrative dislocation and additional administrative costs may play a role in choosing the form of and fine-tuning the relief to be provided McKesson, though Florida's interest in financial stability does not justify a refusal to provide relief. Pp. 496 U. S. 49-51.524 So. 2d 1000 (Fla.1988), reversed and remanded.BRENNAN, J., delivered the opinion for a unanimous Court. Page 496 U. S. 22

1974_73-1363

MR. JUSTICE BRENNAN delivered the opinion of the Court.The National Labor Relations Board held in this case that respondent employer's denial of an employee's request that her union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action constituted an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act, [Footnote 1] as amended, 61 Stat. 140, because it interfered with, restrained, and coerced the individual right of the employee, protected by § 7 of the Act, "to engage in . . . concerted activities for . . . mutual aid or protection. . . . ," [Footnote 2] 202 N.L.R.B. 446 (1973). Page 420 U. S. 253 The Court of Appeals for the Fifth Circuit held that this was an impermissible construction of § 7, and refused to enforce the Board's order that directed respondent to cease and desist from requiring any employee to take part in an investigatory interview without union representation if the employee requests representation and reasonably fears disciplinary action. 485 F.2d 1135 (1973). [Footnote 3] We granted certiorari and set the case for oral argument with No. 7765, Garment Workers v. Quality Mfg. Co., post, p. 420 U. S. 276. 416 U.S. 969 (1974). We reverse. Page 420 U. S. 254IRespondent operates a chain of some 100 retail stores with lunch counters at some, and so-called lobby food operations at others, dispensing food to take out or eat on the premises. Respondent's sales personnel are represented for collective bargaining purposes by Retail Clerks Union, Local 455. Leura Collins, one of the sales personnel, worked at the lunch counter at Store No. 2 from 1961 to 1970, when she was transferred to the lobby operation at Store No. 98. Respondent maintains a company-wide security department staffed by "Loss Prevention Specialists" who work undercover in all stores to guard against loss from shoplifting and employee dishonesty. In June, 1972, "Specialist" Hardy, without the knowledge of the store manager, spent two days observing the lobby operation at Store No. 98 investigating a report that Collins was taking money from a cash register. When Hardy's surveillance of Collins at work turned up no evidence to support the report, Hardy disclosed his presence to the store manager and reported that he could find nothing wrong. The store manager then told him that a fellow lobby employee of Collins had just reported that Collins had purchased a box of chicken that sold for $2.98, but had placed only $1 in the cash register. Collins was summoned to an interview with Specialist Hardy and the store manager, and Hardy questioned her. The Board found that, several times during the questioning, she asked the store manager to call the union shop steward or some other union representative to the interview, and that her requests were denied. Collins admitted that she had purchased some chicken, a loaf of bread, and some cake which she said she paid for and donated to her church for a church dinner. She explained that she purchased four pieces of chicken for which the price was $1, but that, because the lobby department Page 420 U. S. 255 was out of the small-size boxes in which such purchases were usually packaged, she put the chicken into the larger box normally used for packaging larger quantities. Specialist Hardy left the interview to check Collins' explanation with the fellow employee who had reported Collins. This employee confirmed that the lobby department had run out of small boxes and also said that she did not know how many pieces of chicken Collins had put in the larger box. Specialist Hardy returned to the interview, told Collins that her explanation had checked out, that he was sorry if he had inconvenienced her, and that the matter was closed.Collins thereupon burst into tears and blurted out that the only thing she had ever gotten from the store without paying for it was her free lunch. This revelation surprised the store manager and Hardy because, although free lunches had been provided at Store No. 2 when Collins worked at the lunch counter there, company policy was not to provide free lunches at stores operating lobby departments. In consequence, the store manager and Specialist Hardy closely interrogated Collins about violations of the policy in the lobby department at Store No. 98. Collins again asked that a shop steward be called to the interview, but the store manager denied her request. Based on her answers to his questions, Specialist Hardy prepared a written statement which included a computation that Collins owed the store approximately $160 for lunches. Collins refused to sign the statement. The Board found that Collins, as well as most, if not all, employees in the lobby department of Store No. 98, including the manager of that department, took lunch from the lobby without paying for it, apparently because no contrary policy was ever made known to them. Indeed, when company headquarters advised Specialist Hardy by telephone during the interview that Page 420 U. S. 256 headquarters itself was uncertain whether the policy against providing free lunches at lobby departments was in effect at Store No. 98, he terminated his interrogation of Collins. The store manager asked Collins not to discuss the matter with anyone because he considered it a private matter between her and the company, of no concern to others. Collins, however, reported the details of the interview fully to her shop steward and other union representatives, and this unfair labor practice proceeding resulted. [Footnote 4]IIThe Board's construction that § 7 creates a statutory right in an employee to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline was announced in its decision and order of January 28, 1972, in Quality Mfg. Co., 195 N.L.R.B.197, considered in Garment Workers v. Quality Mfg. Co., post, p. 420 U. S. 276. In its opinions in that case and in Mobil Oil Corp., 196 N.L.R.B. 1052, decided May 12! 1972, three months later, the Board shaped the contours and limits of the statutory right."First, the right inheres in § 7's guarantee of the right of employees to act in concert for mutual aid and protection. In Mobil Oil, the Board stated:""An employee's right to union representation upon request is based on Section 7 of the Act, which guarantees the right of employees to act in concert for Page 420 U. S. 257 'mutual aid and protection.' The denial of this right has a reasonable tendency to interfere with, restrain, and coerce employees in violation of Section 8 ()(1) of the Act. Thus, it is a serious violation of the employee's individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee's request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy. Such a dilution of the employee's right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action."Ibid.Second, the right arises only in situations where the employee requests representation. In other words, the employee may forgo his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative.Third, the employee's right to request representation as a condition of participation in an interview is limited to situations where the employee reasonably believes the investigation will result in disciplinary action. [Footnote 5] Thus, the Board stated in Quality:"We would not apply the rule to such run-of-the-mill Page 420 U. S. 258 shop floor conversations as, for example, the giving of instructions or training or needed corrections of work techniques. In such cases, there cannot normally be any reasonable basis for an employee to fear that any adverse impact may result from the interview, and thus we would then see no reasonable basis for him to seek the assistance of his representative."195 N.L.R.B. at 199.Fourth, exercise of the right may not interfere with legitimate employer prerogatives. The employer has no obligation to justify his refusal to allow union representation, and, despite refusal, the employer is free to carry on his inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative or having no interview and forgoing any benefits that might be derived from one. As stated in Mobil Oil:"The employer may, if it wishes, advise the employee that it will not proceed with the interview unless the employee is willing to enter the interview Page 420 U. S. 259 unaccompanied by his representative. The employee may then refrain from participating in the interview, thereby protecting his right to representation, but at the same time relinquishing any benefit which might be derived from the interview. The employer would then be free to act on the basis of information obtained from other sources"196 N.L.R.B. at 1052. The Board explained in Quality:"This seems to us to be the only course consistent with all of the provisions of our Act. It permits the employer to reject a collective course in situations such as investigative interviews where a collective course is not required, but protects the employee's right to protection by his chosen agents. Participation in the interview is then voluntary, and, if the employee has reasonable ground to fear that the interview will adversely affect his continued employment, or even his working conditions, he may choose to forego it unless he is afforded the safeguard of his representative's presence. He would then also forego whatever benefit might come from the interview. And, in that event, the employer would, of course, be free to act on the basis of whatever information he had, and without such additional facts as might have been gleaned through the interview."195 N.L.R.B. at 198-199.Fifth, the employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview. The Board said in Mobil,"we are not giving the Union any particular rights with respect to pre-disciplinary discussions which it otherwise was not able to secure during collective bargaining negotiations."196 N.L.R.B. at 1052 n. 3. The Board thus adhered to its decisions distinguishing between disciplinary Page 420 U. S. 260 and investigatory interviews, imposing a mandatory affirmative obligation to meet with the union representative only in the case of the disciplinary interview. Texaco, Inc., Houston Producing Division, 168 N.L.R.B. 361 (1967); Chevron Oil Co., 168 N.L.R.B. 574 (1967); Jacobe-Pearson Ford, Inc., 172 N.L.R.B. 594 (1968). The employer has no duty to bargain with the union representative at an investigatory interview."The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them. The employer, however, is free to insist that he is only interested, at that time, in hearing the employee's own account of the matter under investigation."Brief for Petitioner 22.IIIThe Board's holding is a permissible construction of "concerted activities for . . . mutual aid or protection" by the agency charged by Congress with enforcement of the Act, and should have been sustained.The action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer clearly falls within the literal wording of § 7 that "[e]mployees shall have the right . . . to engage in . . concerted activities for the purpose of . . . mutual aid or protection." Mobil Oil Corp. v. NLRB, 482 F.2d 842, 847 (CA7 1973). This is true even though the employee alone may have an immediate stake in the outcome; he seeks "aid or protection" against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment Page 420 U. S. 261 unjustly. [Footnote 6] The representative's presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview. Concerted activity for mutual aid or protection is therefore as present here as it was held to be in NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 505-506 (CA2 1942), cited with approval by this Court in Houston Contractors Assn. v. NLRB, 386 U. S. 664, 386 U. S. 668-669 (1967):""When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a concerted activity' for `mutual aid or protection,' although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that, by their action, each of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is `mutual aid' in the most literal sense, as nobody doubts."" The Board's construction plainly effectuates the most fundamental purposes of the Act. In § 1, 29 U.S.C. § 151, the Act declares that it is a goal of national labor policy to protect"the exercise by workers of full freedom Page 420 U. S. 262 of association, self-organization, and designation of representatives of their own choosing, for the purpose of . . . mutual aid or protection."To that end, the Act is designed to eliminate the "inequality of bargaining power between employees . . . and employers." Ibid. Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate, and bars recourse to the safeguards the Act provided "to redress the perceived imbalance of economic power between labor and management." American Ship Building Co. v. NLRB, 380 U. S. 300, 380 U. S. 316 (196). Viewed in this light, the Board's recognition that § 7 guarantees an employee's right to the presence of a union representative at an investigatory interview in which the risk of discipline reasonably inheres is within the protective ambit of the section "read in the light of the mischief to be corrected and the end to be attained.'" NLRB v. Hearst Publications, Inc., 322 U. S. 111, 322 U. S. 124 (1944).The Board's construction also gives recognition to the right when it is most useful to both employee and employer. [Footnote 7] A single employee confronted by an employer Page 420 U. S. 263 investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. Certainly his presence need not transform the interview into an adversary contest. Respondent suggests nonetheless that union representation at this stage is unnecessary, because a decision as to employee culpability or disciplinary action can be corrected after the decision to impose discipline has become final. In other words, respondent would defer representation until the filing of a formal grievance challenging the employer's determination of guilt after the employee has been discharged or otherwise disciplined. [Footnote 8] At that point, however, it becomes increasingly difficult for the employee to vindicate himself, and the Page 420 U. S. 264 value of representation is correspondingly diminished. The employer may then be more concerned with justifying his actions than reexamining themIVThe Court of Appeals rejected the Board's construction as foreclosed by that court's decision four years earlier in Texaco, Inc., Houston Producing Division v. NLRB, 408 F.2d 142 (1969), and by "a long line of Board decisions, each of which indicates -- either directly or indirectly -- that no union representative need be present" at an investigatory interview. 485 F.2d at 1137.The Board distinguishes Texaco as presenting not the question whether the refusal to allow the employee to have his union representative present constituted a violation of § 8(a)(1), but rather the question whether § 8(a)(5) precluded the employer from refusing to deal with the union. We need not determine whether Texaco is distinguishable. Insofar as the Court of Appeals there held that an employer does not violate § 8(a)(1) if he denies an employee's request for union representation at an investigatory interview, and requires him to attend the interview alone, our decision today reversing the Court of Appeals' judgment based upon Texaco supersedes that holding.In respect of its own precedents, the Board asserts that, even though some "may be read as reaching a contrary conclusion," they should not be treated as impairing the validity of the Board's construction, because "[t]hese decisions do not reflect a considered analysis of the issue." Brief for Petitioner 25. [Footnote 9] In that circumstance, and in the Page 420 U. S. 265 light of significant developments in industrial life believed by the Board to have warranted a reappraisal of the question, [Footnote 10] the Board argues that the case is one where"[t]he nature of the problem, as revealed by unfolding variant situations, inevitably involves an evolutionary process for its rational response, not quick, definitive formula as a comprehensive answer. And so it is not surprising that the Board has more or less felt its way . . . , and has modified and reformed its standards on the basis of accumulating experience."Electrical Workers v. NLRB, 366 U. S. 667, 366 U. S. 674 (1961).We agree that its earlier precedents do not impair the validity of the Board's construction. That construction in no wise exceeds the reach of § 7, but falls well within the scope of the rights created by that section. The use by an administrative agency of the evolutional approach is particularly fitting. To hold that the Board's earlier decisions froze the development of this important aspect Page 420 U. S. 266 of the national labor law would misconceive the nature of administrative decisionmaking."'Cumulative experience' begets understanding and insight by which judgments . . . are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process."NLRB v. Seven-Up Co., 344 U. S. 344, 344 U. S. 349 (1953).The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board. The Court of Appeals impermissibly encroached upon the Board's function in determining for itself that an employee has no "need" for union assistance at an investigatory interview."While a basic purpose of section 7 is to allow employees to engage in concerted activities for their mutual aid and protection, such a need does not arise at an investigatory interview."485 F.2d at 1138. It is the province of the Board, not the courts, to determine whether or not the "need" exists in light of changing industrial practices and the Board's cumulative experience in dealing with labor-management relations. For the Board has the "special function of applying the general provisions of the Act to the complexities of industrial life," NLRB v. Erie Resistor Corp., 373 U. S. 221, 373 U. S. 236 (1963); see Republic Aviation Corp. v. NLRB, 324 U. S. 793, 324 U. S. 798 (1945); Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 313 U. S. 196-197 (1941), and its special competence in this field is the justification for the deference accorded its determination. American Ship Building Co. v. NLRB, 380 U.S. at 380 U. S. 316. Reviewing courts are, of course, not "to stand aside and rubber stamp" Board determinations that run contrary to the language or tenor of the Act, NLRB v. Brown, 380 U. S. 278, 380 U. S. 291 (1965). But the Board's construction here, while it may not be required by the Act, is at least permissible Page 420 U. S. 267 under it, and, insofar as the Board's application of that meaning engages in the "difficult and delicate responsibility" of reconciling conflicting interests of labor and management, the balance struck by the Board is "subject to limited judicial review." NLRB v. Truck Drivers, 353 U. S. 87, 353 U. S. 96 (1957). See also NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956); NLRB v. Brown, supra; Republic Aviation Corp. v. NLRB, supra. In sum, the Board has reached a fair and reasoned balance upon a question within its special competence, its newly arrived at construction of § 7 does not exceed the reach of that section, and the Board has adequately explicated the basis of its interpretation.The statutory right confirmed today is in full harmony with actual industrial practice. Many important collective bargaining agreements have provisions that accord employees rights of union representation at investigatory interviews. [Footnote 11] Even where such a right is not explicitly provided in the agreement a "well established current of arbitral authority" sustains the right of union representation at investigatory interviews which the employee reasonably believes may result in disciplinary action against him. Chevron Chemical Co., 60 Lab.Arb. 1066, 1071 (1973). [Footnote 12] Page 420 U. S. 268The judgment is reversed and the case is remanded with directions to enter a judgment enforcing the Board's order.It is so ordered

U.S. Supreme CourtNLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)National Labor Relations Board v. J. Weingarten, Inc.No. 73-1363Argued November 18, 1974Decided February 19, 1975420 U.S. 251SyllabusDuring the course of an investigatory interview at which an employee of respondent was being interrogated by a representative of respondent about reported thefts at respondent's store, the employee asked for but was denied the presence at the interview of her union representative. The union thereupon filed an unfair labor practice charge with the National Labor Relations Board (NLRB). In accordance with its construction in Mobil Oil Corp., 196 N.L.R.B. 1052, enforcement denied, 482 F.2d 842, and Quality Mfg. Co., 195 N.L.R.B.197, enforcement denied, 481 F.2d 1018, rev'd, post, p. 420 U. S. 276, the NLRB held that the employer had committed an unfair labor practice and issue a cease and desist order which, however, the Court of Appeals subsequently refused to enforce, concluding that an employee has no "need" for union assistance at an investigatory interview.Held: The employer violated § 8(a)(1) of the National Labor Relations Act because it interfered with, restrained, and coerced the individual right of an employee, protected by § 7, "to engage in . . . concerted activities for . . . mutual aid or protection . . . ," when it denied the employee's request for the presence of her union representative at the investigatory interview that the employee reasonably believed would result in disciplinary action. Pp. 420 U. S. 256-268.(a) The NLRB's holding is a permissible construction of "concerted activities for . . . mutual aid or protection" by the agency charged by Congress with enforcement of the Act. Pp. 420 U. S. 260-264.(b) The NLRB has the "special function of applying the general provisions of the Act to the complexities of industrial life," NLRB v. Erie Resistor Corp., 373 U. S. 221, 373 U. S. 236, and its special competence in this field is the justification for the deference accorded its determination. Pp. 420 U. S. 264-267.485 F.2d 1135, reversed and remanded. Page 420 U. S. 252BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. BURGER, C.J., filed a dissenting opinion, post, p. 420 U. S. 268. POWELL, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 420 U. S. 269.

1994_93-1128

of Veterans' Appeals denied Gardner's claim for benefits, on the ground that § 1151, as interpreted by 38 CFR § 3.358(c)(3) (1993), only covers an injury if it "proximately resulted [from] carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault" on the part of the VA, or from the occurrence during treatment or rehabilitation of an "accident," defined as an "unforeseen, untoward" event. The Court of Veterans Appeals reversed, holding that § 1151 neither imposes nor authorizes adoption of the fault-or-accident requirement set out in § 3.358(c)(3), Gardner v. Derwinski, 1 Vet. App. 584 (1991), and the Court of Appeals for the Federal Circuit affirmed, 5 F.3d 1456 (1993). We granted certiorari, 511 U. S. 1017, and now affirm.IIDespite the absence from the statutory language of so much as a word about fault2 on the part of the VA, the Government proposes two interpretations in attempting to reveal a fault requirement implicit in the text of § 1151, the first being that fault inheres in the concept of compensable "injury." We think that no such inference can be drawn in this instance, however. Even though "injury" can of course carry a fault connotation, see Webster's New International Dictionary 1280 (2d ed. 1957) (an "actionable wrong"), it just as certainly need not do so, see ibid. ("[d]amage or hurt done to or suffered by a person or thing"). The most, then, that the Government could claim on the basis of this term is the existence of an ambiguity to be resolved in favor of a fault requirement (assuming that such a resolution would be possi-2 "Fault" is shorthand for fault-or-accident, the test imposed by the regulation. Section 3.358(c)(3) leaves the additional burden imposed by the "accident" requirement unclear, defining the term to mean simply an "unforeseen, untoward" event. Although the appropriate scope of the "accident" requirement is not before us, on one plausible reading of the regulation some burden additional to the statutory obligation would be imposed as an alternative to fault.118ble after applying the rule that interpretive doubt is to be resolved in the veteran's favor, see King v. St. Vincent's Hospital, 502 U. S. 215, 220-221, n. 9 (1991)). But the Government cannot plausibly make even this claim here. Ambiguity is a creature not of definitional possibilities but of statutory context, see id., at 221 ("[T]he meaning of statutory language, plain or not, depends on context"), and this context negates a fault reading. Section 1151 provides compensability not only for an "injury," but for an "aggravation of an injury" as well. "Injury" as used in this latter phrase refers to a condition prior to the treatment in question, and hence cannot carry with it any suggestion of fault attributable to the VA in causing it. Since there is a presumption that a given term is used to mean the same thing throughout a statute, Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932), a presumption surely at its most vigorous when a term is repeated within a given sentence, it is virtually impossible to read "injury" as laden with fault in the sentence quoted.Textual cross-reference confirms this conclusion. "Injury" is employed elsewhere in the veterans' benefits statutes as an instance of the neutral term "disability," appearing within a series whose other terms exemplify debility free from any fault connotation. See 38 U. S. C. § 1701(1) (1988 ed., Supp. V) ("The term 'disability' means a disease, injury, or other physical or mental defect"). The serial treatment thus indicates that the same fault-free sense should be attributed to the term "injury" itself. Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961) ("[A] word is known by the company it keeps"). Moreover, in analogous statutes dealing with service-connected injuries the term "injury" is again used without any suggestion of fault, as the administrative regulation applicable to these statutes confirms by its failure to impose any fault requirement. Compare 38 U. S. C. § 1110 (1988 ed., Supp. V) ("disability resulting from personal injury suffered or disease contracted in line of duty,119or for aggravation of a preexisting injury suffered or disease contracted in line of duty, ... during a period of war," is compensable) and 38 U. S. C. § 1131 (1988 ed., Supp. V) ("disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, ... during other than a period of war," is compensable) with 38 CFR § 3.310(a) (1993) ("Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition").In a second attempt to impose a VA-fault requirement, the Government suggests that the "as a result of" language of § 1151 signifies a proximate cause requirement that incorporates a fault test. Once again, we find the suggestion implausible. This language is naturally read simply to impose the requirement of a causal connection between the "injury" or "aggravation of an injury" and "hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation." Assuming that the connection is limited to proximate causation so as to narrow the class of compensable cases, that narrowing occurs by eliminating remote consequences, not by requiring a demonstration of fault.3 See generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 42 (5th ed. 1984). The eccentricity of reading a fault requirement into the "result3We do not, of course, intend to cast any doubt on the regulations insofar as they exclude coverage for incidents of a disease's or injury's natural progression, occurring after the date of treatment. See 38 CFR § 3.358(b)(2) (1993). VA action is not the cause of the disability in these situations. Nor do we intend to exclude application of the doctrine volenti non fit injuria. See generally M. Bigelow, Law of Torts 39-43 (8th ed. 1907). It would be unreasonable, for example, to believe that Congress intended to compensate veterans for the necessary consequences of treatment to which they consented (i. e., compensating a veteran who consents to the amputation of a gangrenous limb for the loss of the limb).120of" language is underscored by the incongruity of applying it to the fourth category for which compensation is available under § 1151, cases of injury resulting from a veteran's "pursuit of vocational rehabilitation." If Congress had meant to require a showing of VA fault, it would have been odd to refer to "the pursuit [by the veteran] of vocational rehabilitation" rather than to "the provision [by the VA] of vocational rehabilitation."The poor fit of this language with any implicit requirement of VA fault is made all the more obvious by the statute's express treatment of a claimant's fault. The same sentence of § 1151 that contains the terms "injury" and "as a result of" restricts compensation to those whose additional disability was not the result of their "own willful misconduct." This reference to claimant's fault in a statute keeping silent about any fault on the V Ns part invokes the rule that "[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." Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted). Without some mention of the VNs fault, it would be unreasonable to read the text of § 1151 as imposing a burden of demonstrating it upon seeking compensation for a further disability.In sum, the text and reasonable inferences from it give a clear answer against the Government, and that, as we have said, is "'the end of the matter.'" Good Samaritan Hospital v. Shalala, 508 U. S. 402, 409 (1993) (quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984)). Thus this clear textually grounded conclusion in Gardner's favor is fatal to the remaining principal arguments advanced against it.The Government contends that Congress ratified the V Ns practice of requiring a showing of fault when it reenacted the predecessor of § 1151 in 1934, or, alternatively, that Con-121gress's legislative silence as to the VNs regulatory practice over the last 60 years serves as an implicit endorsement of its fault-based policy. There is an obvious trump to the reenactment argument, however, in the rule that "[w]here the law is plain, subsequent reenactment does not constitute an adoption of a previous administrative construction." Demarest v. Manspeaker, 498 U. S. 184, 190 (1991). See also Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States, 377 U. S. 235, 241-242 (1964) (congressional reenactment has no interpretive effect where regulations clearly contradict requirements of statute). But even without this sensible rule, the reenactment would not carry the day. Setting aside the disputed question whether the VA used a fault rule in 1934,4 the record of congressional discussion preceding reenactment makes no reference to the VA regulation, and there is no other evidence to suggest that Congress was even aware of the VNs interpretive position. "In such circumstances we consider the ... re-enactment to be without significance." United States v. Calamaro, 354 U. S. 351, 359 (1957).Congress's post-1934 legislative silence on the VNs fault approach to § 1151 is likewise unavailing to the Government. As we have recently made clear, congressional silence "'lacks persuasive significance,'" Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 187 (1994) (quoting Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990)), particularly where administrative regulations are inconsistent with the controlling statute, see Patterson v. McLean Credit Union, 491 U. S. 164, 175, n. 1 (1989) ("Congressional inaction cannot amend a duly enacted statute"). See also Zuber v. Allen, 396 U. S. 168, 185-186, n. 21 (1969) ("The verdict of quiescent years cannot be invoked to baptize a statutory gloss that is4 At the time of the 1934 reenactment, the regulation in effect precluded compensation for the "'usual after[ - ]results of approved medical care and treatment properly administered.''' See Brief for Respondent 31.122otherwise impermissible .... Congressional inaction frequently betokens unawareness, preoccupation, or paralysis").Finally, we dispose of the Government's argument that the VNs regulatory interpretation of § 1151 deserves judicial deference due to its undisturbed endurance for 60 years. A regulation's age is no antidote to clear inconsistency with a statute, and the fact, again, that § 3.358(c)(3) flies against the plain language of the statutory text exempts courts from any obligation to defer to it. Dole v. Steelworkers, 494 U. S. 26, 42-43 (1990); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., supra, at 842-843. But even if this were a close case, where consistent application and age can enhance the force of administrative interpretation, see Zenith Radio Corp. v. United States, 437 U. S. 443, 450 (1978), the Government's position would suffer from the further factual embarrassment that Congress established no judicial review for VA decisions until 1988, only then removing the VA from what one congressional Report spoke of as the agency's "splendid isolation." H. R. Rep. No. 100-963, pt. 1, p. 10 (1988). As the Court of Appeals for the Federal Circuit aptly stated: "Many VA regulations have aged nicely simply because Congress took so long to provide for judicial review. The length of such regulations' unscrutinized and unscrutinizable existence" could not alone, therefore, enhance any claim to deference. 5 F. 3d, at 1463-1464.IIIAccordingly, the judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1994SyllabusBROWN, SECRETARY OF VETERANS AFFAIRS v.GARDNERCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUITNo. 93-1128. Argued October 31, 1994-Decided December 12,1994After respondent veteran had back surgery in a Department of Veterans Affairs facility for a condition unrelated to his military service, he developed pain and weakness in his left leg, which he alleged was the result of the surgery. He claimed disability benefits under 38 U. S. C. § 1151, which requires the VA to compensate for "an injury, or an aggravation of an injury," that occurs "as the result of" VA treatment. The VA and the Board of Veterans' Appeals denied the claim on the ground that § 1151, as interpreted by 38 CFR § 3.358(c)(3), only covers an injury if it resulted from negligent treatment by the VA or an accident occurring during treatment. The Court of Veterans Appeals reversed, holding that § 1151 neither imposes nor authorizes adoption of § 3.358(c)(3)'s fault-or-accident requirement. The Court of Appeals for the Federal Circuit affirmed.Held: Section 3.358(c)(3) is not consistent with the plain language of § 1151, which contains not a word about fault-or-accident. The statutory text and reasonable inferences from it give a clear answer against the Government's arguments that a fault requirement is implicit in the terms "injury" and "as a result of." This clear textually grounded conclusion is also fatal to the Government's remaining principal arguments: that Congress ratified the VA's practice of requiring a showing offault when it reenacted the predecessor of § 1151 in 1934, or, alternatively, that the post-1934 legislative silence serves as an implicit endorsement of the fault-based policy; and that the policy deserves judicial deference due to its undisturbed endurance. Pp. 117-122.5 F.3d 1456, affirmed.SOUTER, J., delivered the opinion for a unanimous Court.Edward C. DuMont argued the cause for petitioner.With him on the briefs were Solicitor General Days, Deputy Solicitor General Bender, and Tresa M. Schlecht.116Joseph M. Hannon, Jr., argued the cause for respondent.With him on the briefs was William S. Mailander. *JUSTICE SOUTER delivered the opinion of the Court.In this case we decide whether a regulation of the Department of Veterans Affairs, 38 CFR § 3.358(c)(3) (1993), requiring a claimant for certain veterans' benefits to prove that disability resulted from negligent treatment by the VA or an accident occurring during treatment, is consistent with the controlling statute, 38 U. S. C. § 1151 (1988 ed., Supp. V). We hold that it is not.IFred P. Gardner, a veteran of the Korean conflict, received surgical treatment in a VA facility for a herniated disc unrelated to his prior military service. Gardner then had pain and weakness in his left calf, ankle, and foot, which he alleged was the result of the surgery. He claimed disability benefits under § 1151,1 which provides that the VA will compensate for "an injury, or an aggravation of an injury," that occurs "as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation" provided under any of the laws administered by the VA, so long as the injury was "not the result of such veteran's own willful misconduct .... " The VA and the Board*Briefs of amici curiae urging affirmance were filed for the State of Texas by Dan Morales, Attorney General, and Jorge Vega, First Assistant Attorney General; for the National Veterans Legal Services Project by Ronald S. Flagg and Gershon M. Ratner; and for the Paralyzed Veterans of America et al. by Robert L. Nelson, Lawrence B. Hagel, and Irving R. M. Panzer.1 Section 1151 is invoked typically to provide benefits to veterans for nonservice related disabilities, although it is not so limited by its terms. See Pet. for Cert. 6, n. 3. The statute's history begins in 1924 when Congress enacted § 213 of the World War Veterans' Act, 1924, ch. 320, 43 Stat. 623. Section 213 was repealed in 1933, as part of the Economy Act of 1933, ch. 3, Tit. I, § 17,48 Stat. 11-12, and reenacted in nearly the same form in 1934, Act of Mar. 28, 1934, ch. 102, Tit. III, § 31, 48 Stat. 526.117Full Text of Opinion

1972_71-863

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court (Parts I, II, and IV), together with an opinion (Part III), in which MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST joined.We granted the writs of certiorari in these cases to consider whether a broadcast licensee's general policy of not selling advertising time to individuals or groups wishing to speak out on issues they consider important violates the Federal Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq., or the First Amendment.In two orders announced the same day, the Federal Communications Commission ruled that a broadcaster who meets his public obligation to provide full and fair coverage of public issues is not required to accept editorial advertisements. Democratic National Committee, 25 F.C.C.2d 216; Business Executives' Move for Vietnam Peace, 25 F.C.C.2d 242. A divided Court of Appeals reversed the Commission, holding that a broadcaster's fixed policy of refusing editorial advertisements violates the First Amendment; the court remanded the cases to the Commission to develop procedures and guidelines for administering a First Amendment right of access. Business Executives' Move For Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 450 F.2d 642 (1971).The complainants in these actions are the Democratic Page 412 U. S. 98 National Committee (DNC) and the Business Executives' Move for Vietnam Peace (BEM), a national organization of businessmen opposed to United States involvement in the Vietnam conflict. In January, 1970, BEM filed a complaint with the Commission charging that radio station WTOP in Washington, D.C., had refused to sell it time to broadcast a series of one-minute spot announcements expressing BEM views on Vietnam. WTOP, in common with many, but not all, broadcasters, followed a policy of refusing to sell time for spot announcements to individuals and groups who wished to expound their views on controversial issues. WTOP took the position that, since it presented full and fair coverage of important public questions, including the Vietnam conflict, it was justified in refusing to accept editorial advertisements. WTOP also submitted evidence showing that the station had aired the views of critics of our Vietnam policy on numerous occasions. BEM challenged the fairness of WTOP's coverage of criticism of that policy, but it presented no evidence in support of that claim.Four months later, in May, 1970, DNC filed with the Commission a request for a declaratory ruling:"That, under the First Amendment to the Constitution and the Communications Act, a broadcaster may not, as a general policy, refuse to sell time to responsible entities, such as the DNC, for the solicitation of funds and for comment on public issues."DNC claimed that it intended to purchase time from radio and television stations and from the national networks in order to present the views of the Democratic Party, and to solicit funds. Unlike BEM, DNC did not object to the policies of any particular broadcaster, but claimed that its prior"experiences in this area make it Page 412 U. S. 99 clear that it will encounter considerable difficulty -- if not total frustration of its efforts -- in carrying out its plans in the event the Commission should decline to issue a ruling as requested."DNC cited Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969), as establishing a limited constitutional right of access to the airwaves.In two separate opinions, the Commission rejected respondents' claims that "responsible" individuals and groups have a right to purchase advertising time to comment on public issues without regard to whether the broadcaster has complied with the Fairness Doctrine. The Commission viewed the issue as one of major significance in administering the regulatory scheme relating to the electronic media, one going "to the heart of the system of broadcasting which has developed in this country. . . ." 25 F.C.C.2d at 221. After reviewing the legislative history of the Communications Act, the provisions of the Act itself, the Commission's decisions under the Act, and the difficult problems inherent in administering a right of access, the Commission rejected the demands of BEM and DNC.The Commission also rejected BEM's claim that WTOP had violated the Fairness Doctrine by failing to air views such as those held by members of BEM; the Commission pointed out that BEM had made only a "general allegation" of unfairness in WTOP's coverage of the Vietnam conflict, and that the station had adequately rebutted the charge by affidavit. The Commission did, however, uphold DNC's position that the statute recognized a right of political parties to purchase broadcast time for the purpose of soliciting funds. The Commission noted that Congress has accorded special consideration for access by political parties, see 47 U.S.C. § 315(a), and that solicitation of funds by political parties is both Page 412 U. S. 100 feasible and appropriate in the short space of time generally allotted to spot advertisements. [Footnote 1]A majority of the Court of Appeals reversed the Commission, holding that "a flat ban on paid public issue announcements is in violation of the First Amendment, at least when other sorts of paid announcements are accepted." 146 U.S.App.D.C. at 185, 450 F.2d at 646. Recognizing that the broadcast frequencies are a scarce resource inherently unavailable to all, the court nevertheless concluded that the First Amendment mandated an "abridgeable" right to present editorial advertisements. The court reasoned that a broadcaster's policy of airing commercial advertisements but not editorial advertisements constitutes unconstitutional discrimination. The court did not, however, order that either BEM's or DNC's proposed announcements must be accepted by the broadcasters; rather, it remanded the cases to the Commission to develop "reasonable procedures and regulations determining which and how many editorial advertisements' will be put on the air." Ibid.Judge McGowan dissented; in his view, the First Amendment did not compel the Commission to undertake the task assigned to it by the majority:"It is presently the obligation of a licensee to advance the public's right to know by devoting a substantial amount of time to the presentation of controversial views on issues of public importance, striking a balance which is always subject to redress by reference to the fairness doctrine. Failure to do so puts continuation of the license at risk -- a sanction of tremendous potency, and one which the Commission is under increasing pressure to employ. "Page 412 U. S. 101"This is the system which Congress has, wisely or not, provided as the alternative to public ownership and operation of radio and television communications facilities. This approach has never been thought to be other than within the permissible limits of constitutional choice."146 U.S.App.D.C. at 205, 450 F.2d at 666. Judge McGowan concluded that the court's decision to overrule the Commission and to remand for development and implementation of a constitutional right of access put the Commission in a "constitutional straitjacket" on a highly complex and far-reaching issue.IMR. JUSTICE WHITE's opinion for the Court in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969), makes clear that the broadcast media pose unique and special problems not present in the traditional free speech case. Unlike other media, broadcasting is subject to an inherent physical limitation. Broadcast frequencies are a scarce resource; they must be portioned out among applicants. All who possess the financial resources and the desire to communicate by television or radio cannot be satisfactorily accommodated. The Court spoke to this reality when, in Red Lion, we said"it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish."Id. at 395 U. S. 388.Because the broadcast media utilize a valuable and limited public resource, there is also present an unusual order of First Amendment values. Red Lion discussed at length the application of the First Amendment to the broadcast media. In analyzing the broadcasters' claim that the Fairness Doctrine and two of its component rules violated their freedom of expression, we Page 412 U. S. 102 held that"[n]o one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because 'the public interest' requires it 'is not a denial of free speech.'"Id. at 395 U. S. 389. Although the broadcaster is not without protection under the First Amendment, United States v. Paramount Pictures, Inc., 334 U. S. 131, 334 U. S. 166 (1948),"[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC."Red Lion, supra, at 395 U. S. 390.Balancing the various First Amendment interests involved in the broadcast media and determining what best serves the public's right to be informed is a task of a great delicacy and difficulty. The process must necessarily be undertaken within the framework of the regulatory scheme that has evolved over the course of the past half century. For, during that time, Congress and its chosen regulatory agency have established a delicately balanced system of regulation intended to serve the interests of all concerned. The problems of regulation are rendered more difficult because the broadcast industry is dynamic in terms of technological change; solutions adequate a decade ago are not necessarily so now, and those acceptable today may well be outmoded 10 years hence.Thus, in evaluating the First Amendment claims of respondents, we must afford great weight to the decisions of Congress and the experience of the Commission. Professor Chafee aptly observed:"Once we get away from the bare words of the [First] Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. Page 412 U. S. 103 The [First] Amendment should be interpreted so as not to cripple the regular work of the government. A part of this work is the regulation of interstate and foreign commerce, and this has come, in our modern age, to include the job of parceling out the air among broadcasters, which Congress has entrusted to the FCC. Therefore, every free speech problem in the radio has to be considered with reference to the satisfactory performance of this job, as well as to the value of open discussion. Although free speech should weigh heavily in the scale in the event of conflict, still the Commission should be given ample scope to do its job."2 Z. Chafee, Government and Mass Communications 640-641 (1947). The judgment of the Legislative Branch cannot be ignored or undervalued simply because one segment of the broadcast constituency casts its claims under the umbrella of the First Amendment. That is not to say we "defer" to the judgment of the Congress and the Commission on a constitutional question, or that we would hesitate to invoke the Constitution should we determine that the Commission has not fulfilled its task with appropriate sensitivity to the interests in free expression. The point is, rather, that, when we face a complex problem with many hard questions and few easy answers, we do well to pay careful attention to how the other branches of Government have addressed the same problem. Thus, before confronting the specific legal issues in these cases, we turn to an examination of the legislative and administrative development of our broadcast system over the last half century.IIThis Court has, on numerous occasions, recounted the origins of our modern system of broadcast regulation. See, e.g., Red Lion, supra, at 395 U. S. 375-386; National Broadcasting Page 412 U. S. 104 Co. v. United States, 319 U. S. 190, 319 U. S. 210-217 (1943); FCC v. Sanders Brothers Radio Station, 309 U. S. 470, 309 U. S. 474 (1940); FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 309 U. S. 137-138 (1940). We have noted that, prior to the passage of the Radio Act of 1927, 44 Stat. 1162, broadcasting was marked by chaos. The unregulated and burgeoning private use of the new media in the 1920's had resulted in an intolerable situation demanding congressional action:"It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard."Red Lion, supra, at 395 U. S. 376. But, once it was accepted that broadcasting was subject to regulation, Congress was confronted with a major dilemma: how to strike a proper balance between private and public control. Cf. Farmers Union v. WDAY, 360 U. S. 525, 360 U. S. 528 (1959).One of the earliest and most frequently quoted statements of this dilemma is that of Herbert Hoover, when he was Secretary of Commerce. While his Department was making exploratory attempts to deal with the infant broadcasting industry in the early 1920's, he testified before a House Committee:"We cannot allow any single person or group to place themselves in [a] position where they can censor the material which shall be broadcasted to the public, nor do I believe that the Government should ever be placed in the position of censoring this material."Hearings on H.R. 7357 before the House Committee on the Merchant Marine and Fisheries, 68th Cong., 1st Sess., 8 (1924). Page 412 U. S. 105 That statement foreshadowed the "tightrope" aspects of Government regulation of the broadcast media, a problem the Congress, the Commission, and the courts have struggled with ever since. Congress appears to have concluded, however, that of these two choices -- private or official censorship -- Government censorship would be the most pervasive, the most self-serving, the most difficult to restrain, and hence the one most to be avoided.The legislative history of the Radio Act of 1927, the model for our present statutory scheme, see FCC v. Pottsville Broadcasting Co., supra, at 309 U. S. 137, reveals that, in the area of discussion of public issues, Congress chose to leave broad journalistic discretion with the licensee. Congress specifically dealt with -- and firmly rejected -- the argument that the broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues. Some members of Congress -- those whose views were ultimately rejected -- strenuously objected to the unregulated power of broadcasters to reject applications for service. See, e.g., H.R.Rep. No. 404, 69th Cong., 1st Sess., 18 (minority report). They regarded the exercise of such power to be "private censorship," which should be controlled by treating broadcasters as public utilities. [Footnote 2] The provision that came closest to imposing an unlimited right of access to broadcast time was part of the bill reported to the Senate by the Committee on Interstate Commerce. The Page 412 U. S. 106 bill that emerged from the Committee contained the following provision:"[I]f any licensee shall permit a broadcasting station to be used . . . by a candidate or candidates for any public office, or for the discussion of any question affecting the public, he shall make no discrimination as to the use of such broadcasting station, and with respect to said matters the licensee shall be deemed a common carrier in interstate commerce: Provided, that such licensee shall have no power to censor the material broadcast."67 Cong.Rec. 12503 (1926) (emphasis added). When the bill came to the Senate floor, the principal architect of the Radio Act of 1927, Senator Dill, offered an amendment to the provision to eliminate the common carrier obligation and to restrict the right of access to candidates for public office. Senator Dill explained the need for the amendment:"When we recall that broadcasting today is purely voluntary, and the listener-in pays nothing for it, that the broadcaster gives it for the purpose of building up his reputation, it seemed unwise to put the broadcaster under the hampering control of being a common carrier and compelled to accept anything and everything that was offered him so long as the price was paid."67 Cong.Rec. 12502. The Senators were also sensitive to the problems involved in legislating "equal opportunities" with respect to the discussion of public issues. Senator Dill stated:"['Public questions'] is such a general term that there is probably no question of any interest whatsoever that could be discussed but that the other side of it could demand time; and thus, a radio station Page 412 U. S. 107 would be placed in the position that the Senator from Iowa mentions about candidates, namely, that they would have to give all their time to that kind of discussion, or no public question could be discussed."Id. at 12504.The Senate adopted Senator Dill's amendment. The provision finally enacted, § 18 of the Radio Act of 1927, 44 Stat. 1170, was later reenacted as § 315(a) of the Communications Act of 1934, [Footnote 3] but only after Congress rejected another proposal that would have imposed a limited obligation on broadcasters to turn over their microphones to persons wishing to speak out on certain Page 412 U. S. 108 public issues. [Footnote 4] Instead, Congress, after prolonged consideration, adopted § 3(h), which specifically provides that "a person engaged in radio broadcasting shall not, Page 412 U. S. 109 insofar as such person is so engaged, be deemed a common carrier." [Footnote 5]Other provisions of the 1934 Act also evince a legislative desire to preserve values of private journalism under a regulatory scheme which would insure fulfillment of certain public obligations. Although the Commission was given the authority to issue renewable three-year licenses to broadcasters [Footnote 6] and to promulgate rules and regulations governing the use of those licenses, [Footnote 7] both consistent Page 412 U. S. 110 with the "public convenience, interest, or necessity," § 326 of the Act specifically provides that:"Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication."47 U.S.C. § 326.From these provisions, it seems clear that Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligations. Only when the interests of the public are found to outweigh the private journalistic interests of the broadcasters will government power be asserted within the framework of the Act. License renewal proceedings, in which the listening public can be heard, are a principal means of such regulation. See Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994 (1966), and 138 U.S.App.D.C. 112, 425 F.2d 543 (1969).Subsequent developments in broadcast regulation illustrate how this regulatory scheme has evolved. Of particular importance, in light of Congress' flat refusal to impose a "common carrier" right of access for all persons wishing to speak out on public issues, is the Commission's "Fairness Doctrine," which evolved gradually over the years spanning federal regulation of the broadcast media. [Footnote 8] Formulated under the Commission's power to Page 412 U. S. 111 issue regulations consistent with the "public interest," the doctrine imposes two affirmative responsibilities on the broadcaster: coverage of issues of public importance must be adequate, and must fairly reflect differing viewpoints. See Red Lion, 395 U.S. at 395 U. S. 377. In fulfilling the Fairness Doctrine obligations, the broadcaster must provide free time for the presentation of opposing views if a paid sponsor is unavailable, Cullman Broadcasting Co., 25 P & F Radio Reg. 895 (1963), and must initiate programming on public issues if no one else seeks to do so. See John J. Dempsey, 6 P & F Radio Reg. 615 (1950); Red Lion, supra, at 395 U. S. 378.Since it is physically impossible to provide time for all viewpoints, however, the right to exercise editorial judgment was granted to the broadcaster. The broadcaster, therefore, is allowed significant journalistic discretion in deciding how best to fulfill the Fairness Doctrine obligations, [Footnote 9] although that discretion is bounded by rules designed to assure that the public interest in fairness is furthered. In its decision in the instant cases, the Commission described the boundaries as follows:"The most basic consideration in this respect is that the licensee cannot rule off the air coverage of important issues or views because of his private ends or beliefs. As a public trustee, he must present Page 412 U. S. 112 representative community views and voices on controversial issues which are of importance to his listeners. . . . This means also that some of the voices must be partisan. A licensee policy of excluding partisan voices and always itself presenting views in a bland, inoffensive manner would run counter to 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. 254, 376 U. S. 270 (1964); see also Red Lion Broadcasting Co., Inc. v. F.C.C. 395 U. S. 367, 395 U. S. 392 (n. 18) (1969). . . ."25 F.C.C.2d at 222-223.Thus, under the Fairness Doctrine broadcasters are responsible for providing the listening and viewing public with access to a balanced presentation of information on issues of public importance. [Footnote 10] The basic principle underlying that responsibility is"the right of the public to be informed, rather than any right on the part of the Page 412 U. S. 113 Government, any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter. . . ."Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249 (1949). Consistent with that philosophy, the Commission on several occasions has ruled that no private individual or group has a right to command the use of broadcast facilities. [Footnote 11] See, e.g., Dowie A. Crittenden, 18 F.C.C.2d 499 (1969); Margaret Z. Scherbina, 21 F.C.C.2d 141 (1969); Boalt Hall Student Assn., 20 F.C.C.2d 612 (1969); Madalyn Murray, 40 F.C.C. 647 (1965); Democratic State Central Committee of California, 19 F.C.C.2d 833 (1968); U.S. Broadcasting Corp., 2 F.C.C. 208 (1935). Congress has not yet seen fit to alter that policy, although, since 1934, it has amended the Act on several occasions [Footnote 12] and considered various Page 412 U. S. 114 proposals that would have vested private individuals with a right of access. [Footnote 13]With this background in mind, we next proceed to consider whether a broadcaster's refusal to accept editorial advertisements is governmental action violative of the First Amendment.IIIThat "Congress shall make no law . . . abridging the freedom of speech, or of the press" is a restraint on government action, not that of private persons. Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 461 (1952). The Court has not previously considered whether the action of a broadcast licensee such as that challenged here is "governmental action" for purposes of the First Page 412 U. S. 115 Amendment. The holding under review thus presents a novel question, and one with far-reaching implications. See Jaffe, The Editorial Responsibility of the Broadcaster: Reflections on Fairness and Access, 85 Harv.L.Rev. 768, 782-787 (1972).The Court of Appeals held that broadcasters are instrumentalities of the Government for First Amendment purposes, relying on the thesis, familiar in other contexts, that broadcast licensees are granted use of part of the public domain and are regulated as "proxies" or "fiduciaries' of the people." 146 U.S.App.D.C. at 191, 450 F.2d at 652. These characterizations are not without validity for some purposes, but they do not resolve the sensitive constitutional issues inherent in deciding whether a particular licensee action is subject to First Amendment restraints. [Footnote 14]In dealing with the broadcast media, as in other contexts, the line between private conduct and governmental action cannot be defined by reference to any general formula unrelated to particular exercises of governmental authority. When governmental action is alleged, there must be cautious analysis of the quality and degree of Government relationship to the particular acts in question."Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance."Burton v. Wilmington Parking Authority, 365 U. S. 715, 365 U. S. 722 (1961). Page 412 U. S. 116In deciding whether the First Amendment encompasses the conduct challenged here, it must be kept in mind that we are dealing with a vital part of our system of communication. The electronic media have swiftly become a major factor in the dissemination of ideas and information. More than 7,000 licensed broadcast stations undertake to perform this important function. To a large extent, they share with the printed media the role of keeping people informed.As we have seen, with the advent of radio a half century ago, Congress was faced with a fundamental choice between total Government ownership and control of the new medium -- the choice of most other countries -- or some other alternative. Long before the impact and potential of the medium was realized, Congress opted for a system of private broadcasters licensed and regulated by Government. The legislative history suggests that this choice was influenced not only by traditional attitudes toward private enterprise, but by a desire to maintain for licensees, so far as consistent with necessary regulation, a traditional journalistic role. The historic aversion to censorship led Congress to enact § 326 of the Act, which explicitly prohibits the Commission from interfering with the exercise of free speech over the broadcast frequencies. Congress pointedly refrained from divesting broadcasters of their control over the selection of voices; § 3(h) of the Act stands as a firm congressional statement that broadcast licensees are not to be treated as common carriers, obliged to accept whatever is tendered by members of the public. Both these provisions clearly manifest the intention of Congress to maintain a substantial measure of journalistic independence for the broadcast licensee. [Footnote 15] Page 412 U. S. 117The regulatory scheme evolved slowly, but very early the licensee's role developed in terms of a "public trustee" charged with the duty of fairly and impartially informing the public audience. In this structure, the Commission acts, in essence, as an "overseer," but the initial and primary responsibility for fairness, balance, and objectivity rests with the licensee. This role of the Government as an "overseer" and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic "free agent" call for a delicate balancing of competing interests. The maintenance of this balance for more than 40 years has called on both the regulators and the licensees to walk a "tightrope" to preserve the First Amendment values written into the Radio Act and its successor, the Communications Act.The tensions inherent in such a regulatory structure emerge more clearly when we compare a private newspaper with a broadcast licensee. The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers -- and hence advertisers -- to assure financial success, and, second, the journalistic integrity of its editors and publishers. A broadcast licensee has a large measure of journalistic freedom, but not as large as that exercised by Page 412 U. S. 118 a newspaper. A licensee must balance what it might prefer to do as a private entrepreneur with what it is required to do as a "public trustee." To perform its statutory duties, the Commission must oversee without censoring. This suggests something of the difficulty and delicacy of administering the Communications Act -- a function calling for flexibility and the capacity to adjust and readjust the regulatory mechanism to meet changing problems and needs.The licensee policy challenged in this case is intimately related to the journalistic role of a licensee for which it has been given initial and primary responsibility by Congress. The licensee's policy against accepting editorial advertising cannot be examined as an abstract proposition, but must be viewed in the context of its journalistic role. It does not help to press on us the idea that editorial ads are "like" commercial ads, for the licensee's policy against editorial spot ads is expressly based on a journalistic judgment that 10- to 60-second spot announcements are ill-suited to intelligible and intelligent treatment of public issues; the broadcaster has chosen to provide a balanced treatment of controversial questions in a more comprehensive form. Obviously, the licensee's evaluation is based on its own journalistic judgment of priorities and newsworthiness.Moreover, the Commission has not fostered the licensee policy challenged here; it has simply declined to command particular action because it fell within the area of journalistic discretion. The Commission explicitly emphasized that "there is, of course, no Commission policy thwarting the sale of time to comment on public issues." 25 F.C.C.2d at 226. The Commission's reasoning, consistent with nearly 40 years of precedent, is that, so long as a licensee meets its "public trustee" obligation to provide balanced coverage of issues and events, it has broad discretion to decide how that obligation will be Page 412 U. S. 119 met. We do not reach the question whether the First Amendment or the Act can be read to preclude the Commission from determining that in some situations the public interest requires licensees to reexamine their policies with respect to editorial advertisements. The Commission has not yet made such a determination; it has, for the present at least, found the policy to be within the sphere of journalistic discretion which Congress has left with the licensee.Thus, it cannot be said that the Government is a "partner" to the action of the broadcast licensee complained of here, nor is it engaged in a "symbiotic relationship" with the licensee, profiting from the invidious discrimination of its proxy. Compare Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 407 U. S. 174-177 (1972), with Burton v. Wilmington Parking Authority, 365 U.S. at 365 U. S. 723-724. The First Amendment does not reach acts of private parties in every instance where the Congress or the Commission has merely permitted or failed to prohibit such acts.Our conclusion is not altered merely because the Commission rejected the claims of BEM and DNC and concluded that the challenged licensee policy is not inconsistent with the public interest. It is true that, in Public Utilities Comm'n v. Pollak, 343 U. S. 451 (1952), we found governmental action sufficient to trigger First Amendment protections on a record involving agency approval of the conduct of a public utility. Though we held that the decision of a District of Columbia bus company to install radio receivers in its public buses was within the reach of the First Amendment, there Congress had expressly authorized the agency to undertake plenary intervention into the affairs of the carrier and it was pursuant to that authorization that the agency investigated the challenged policy and approved it on public interest standards. Id. at 343 U. S. 462. Page 412 U. S. 120Here, Congress has not established a regulatory scheme for broadcast licensees as pervasive as the regulation of public transportation in Pollak. More important, as we have noted, Congress has affirmatively indicated in the Communications Act that certain journalistic decisions are for the licensee, subject only to the restrictions imposed by evaluation of its overall performance under the public interest standard. In Pollak, there was no suggestion that Congress had considered worthy of protection the carrier's interest in exercising discretion over the content of communications forced on passengers. A more basic distinction, perhaps, between Pollak and this case is that Pollak was concerned with a transportation utility that itself derives no protection from the First Amendment. See United States v. Paramount Pictures, Inc., 334 U. S. 131, 334 U. S. 166 (1948).Were we to read the First Amendment to spell out governmental action in the circumstances presented here, few licensee decisions on the content of broadcasts or the processes of editorial evaluation would escape constitutional scrutiny. In this sensitive area, so sweeping a concept of governmental action would go far in practical effect to undermine nearly a half century of unmistakable congressional purpose to maintain -- no matter how difficult the task -- essentially private broadcast journalism held only broadly accountable to public interest standards. To do this, Congress, and the Commission as its agent, must remain in a posture of flexibility to chart a workable "middle course" in its quest to preserve a balance between the essential public accountability and the desired private control of the media.More profoundly, it would be anomalous for us to hold, in the name of promoting the constitutional guarantees of free expression, that the day-to-day editorial decisions of broadcast licensees are subject to the kind of restraints urged by respondents. To do so in the name Page 412 U. S. 121 of the First Amendment would be a contradiction. Journalistic discretion would, in many ways, be lost to the rigid limitations that the First Amendment imposes on Government. Application of such standards to broadcast licensees would be antithetical to the very ideal of vigorous, challenging debate on issues of public interest. Every licensee is already held accountable for the totality of its performance of public interest obligations.The concept of private, independent broadcast journalism, regulated by Government to assure protection of the public interest, has evolved slowly and cautiously over more than 40 years, and has been nurtured by processes of adjudication. That concept of journalistic independence could not coexist with a reading of the challenged conduct of the licensee as governmental action. Nor could it exist without administrative flexibility to meet changing needs and swift technological developments. We therefore conclude that the policies complained of do not constitute governmental action violative of the First Amendment. See McIntire v. William Penn Broadcasting Co., 151 F.2d 597, 601 (CA3 1945), cert. denied, 327 U.S. 779 (1946); Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (CA1 1950); Post v. Payton, 323 F. Supp. 799, 803 (EDNY 1971).IVThere remains for consideration the question whether the "public interest" standard of the Communications Act requires broadcasters to accept editorial advertisements or whether, assuming governmental action, broadcasters are required to do so by reason of the First Amendment. In resolving those issues, we are guided by the"venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong. . . ."Red Lion, 395 U.S. at 395 U. S. 381. Whether Page 412 U. S. 122 there are "compelling indications" of error in these cases must be answered by a careful evaluation of the Commission's reasoning in light of the policies embodied by Congress in the "public interest" standard of the Act. Many of those policies, as the legislative history makes clear, were drawn from the First Amendment itself; the "public interest" standard necessarily invites reference to First Amendment principles. Thus, the question before us is whether the various interests in free expression of the public, the broadcaster, and the individuals require broadcasters to sell commercial time to persons wishing to discuss controversial issues. In resolving that issue, it must constantly be kept in mind that the interest of the public is our foremost concern. With broadcasting, where the available means of communication are limited in both space and time, the admonition of Professor Alexander Meiklejohn that "[w]hat is essential is not that everyone shall speak, but that everything worth saying shall be said," is peculiarly appropriate. Political Freedom 26 (1948).At the outset, we reiterate what was made clear earlier -- that nothing in the language of the Communications Act or its legislative history compels a conclusion different from that reached by the Commission. As we have seen, Congress has time and again rejected various legislative attempts that would have mandated a variety of forms of individual access. That is not to say that Congress' rejection of such proposals must be taken to mean that Congress is opposed to private rights of access under all circumstances. Rather, the point is that Congress has chosen to leave such questions with the Commission, to which it has given the flexibility to experiment with new ideas as changing conditions require. In this case, the Commission has decided that, on balance, the undesirable effects of the right of access urged by respondents would outweigh the asserted benefits. The Court of Page 412 U. S. 123 Appeals failed to give due weight to the Commission's judgment on these matters.The Commission was justified in concluding that the public interest in providing access to the marketplace of "ideas and experiences" would scarcely be served by a system so heavily weighted in favor of the financially affluent, or those with access to wealth. Cf. Red Lion, supra, at 395 U. S. 392. Even under a first come, first served system proposed by the dissenting Commissioner in these cases, [Footnote 16] the views of the affluent could well prevail over those of others, since they would have it within their power to purchase time more frequently. Moreover, there is the substantial danger, as the Court of Appeals acknowledged, 146 U.S.App.D.C. at 203, 450 F.2d at 664, that the time allotted for editorial advertising could be monopolized by those of one political persuasion.These problems would not necessarily be solved by applying the Fairness Doctrine, including the Cullman doctrine, to editorial advertising. If broadcasters were required to provide time, free when necessary, for the discussion of the various shades of opinion on the issue discussed in the advertisement, the affluent could still determine in large part the issues to be discussed. Thus, the very premise of the Court of Appeals' holding -- that a right of access is necessary to allow individuals and groups the opportunity for self-initiated speech -- would have little meaning to those who could not afford to purchase time in the first instance. [Footnote 17] Page 412 U. S. 124If the Fairness Doctrine were applied to editorial advertising, there is also the substantial danger that the effective operation of that doctrine would be jeopardized. To minimize financial hardship and to comply fully with its public responsibilities, a broadcaster might well be forced to make regular programming time available to those holding a view different from that expressed in an editorial advertisement; indeed, BEM has suggested as much in its brief. The result would be a further erosion of the journalistic discretion of broadcasters in the coverage of public issues, and a transfer of control over the treatment of public issues from the licensees, who are accountable for broadcast performance to private individuals, who are not. The public interest would no longer be "paramount," but, rather, subordinate to private whim, especially since, under the Court of Appeals' decision, a broadcaster would be largely precluded from rejecting editorial advertisements that dealt with matters trivial or insignificant or already fairly covered by the broadcaster. 146 U.S.App.D.C. at 196 n. 36, 197, 450 F.2d at 657 n. 36, 658. If the Fairness Doctrine and the Cullman doctrine were suspended to alleviate these problems, as respondents suggest might be appropriate, the question arises whether we would have abandoned more than we have gained. Under such a regime, the congressional objective of balanced coverage of public issues would be seriously threatened.Nor can we accept the Court of Appeals' view that every potential speaker is "the best judge" of what the listening public ought to hear or indeed the best judge of the merits of his or her views. All journalistic tradition and experience is to the contrary. For better or worse, editing is what editors are for, and editing is selection and choice of material. That editors -- newspaper or broadcast -- can and do abuse this power is beyond doubt, but that is no reason to deny the discretion Congress Page 412 U. S. 125 provided. Calculated risks of abuse are taken in order to preserve higher values. The presence of these risks is nothing new; the authors of the Bill of Rights accepted the reality that these risks were evils for which there was no acceptable remedy other than a spirit of moderation and a sense of responsibility -- and civility -- on the part of those who exercise the guaranteed freedoms of expression.It was reasonable for Congress to conclude that the public interest in being informed requires periodic accountability on the part of those who are entrusted with the use of broadcast frequencies, scarce as they are. In the delicate balancing historically followed in the regulation of broadcasting, Congress and the Commission could appropriately conclude that the allocation of journalistic priorities should be concentrated in the licensee, rather than diffused among many. This policy gives the public some assurance that the broadcaster will be answerable if he fails to meet its legitimate needs. No such accountability attaches to the private individual, whose only qualifications for using the broadcast facility may be abundant funds and a point of view. To agree that debate on public issues should be "robust, and wide-open" does not mean that we should exchange "public trustee" broadcasting, with all its limitations, for a system of self-appointed editorial commentators.The Court of Appeals discounted those difficulties by stressing that it was merely mandating a "modest reform," requiring only that broadcasters be required to accept some editorial advertising. 146 U.S.App.D.C. at 202, 450 F.2d at 663. The court suggested that broadcasters could place an "outside limit on the total amount of editorial advertising they will sell," and that the Commission and the broadcasters could develop "reasonable regulations' designed to prevent domination by a few groups or a few viewpoints." Id. at 202, Page 412 U. S. 126 203, 450 F.2d at 663, 664. If the Commission decided to apply the Fairness Doctrine to editorial advertisements, and, as a result, broadcasters suffered financial harm, the court thought the "Commission could make necessary adjustments." Id. at 203, 450 F.2d at 664. Thus, without providing any specific answers to the substantial objections raised by the Commission and the broadcasters, other than to express repeatedly its "confidence" in the Commission's ability to overcome any difficulties, the court remanded the cases to the Commission for the development of regulations to implement a constitutional right of access.By minimizing the difficult problems involved in implementing such a right of access, the Court of Appeals failed to come to grips with another problem of critical importance to broadcast regulation and the First Amendment -- the risk of an enlargement of Government control over the content of broadcast discussion of public issues. See, e.g., Fowler v. Rhode Island, 345 U. S. 67 (1953); Niemotko v. Maryland, 340 U. S. 268 (1951). This risk is inherent in the Court of Appeals' remand requiring regulations and procedures to sort out requests to be heard -- a process involving the very editing that licensees now perform as to regular programming. Although the use of a public resource by the broadcast media permits a limited degree of Government surveillance, as is not true with respect to private media, see National Broadcasting Co. v. United States, 319 U.S. at 319 U. S. 216-219, the Government's power over licensees, as we have noted, is by no means absolute, and is carefully circumscribed by the Act itself. [Footnote 18]Under a constitutionally commanded and Government supervised right-of-access system urged by respondents and mandated by the Court of Appeals, the Commission Page 412 U. S. 127 would be required to oversee far more of the day-to-day operations of broadcasters' conduct, deciding such questions as whether a particular individual or group has had sufficient opportunity to present its viewpoint and whether a particular viewpoint has already been sufficiently aired. Regimenting broadcasters is too radical a therapy for the ailment respondents complain of.Under the Fairness Doctrine the Commission's responsibility is to judge whether a licensee's overall performance indicates a sustained good faith effort to meet the public interest in being fully and fairly informed. [Footnote 19] The Commission's responsibilities under a right-of-access system would tend to draw it into a continuing case-by-case determination of who should be heard and when. Indeed, the likelihood of Government involvement is so great that it has been suggested that the accepted constitutional principles against control of speech content would need to be relaxed with respect to editorial advertisements. [Footnote 20] To sacrifice First Amendment protections for so speculative a gain is not warranted, and it was well within the Commission's discretion to construe the Act so as to avoid such a result. [Footnote 21]The Commission is also entitled to take into account the reality that, in a very real sense, listeners and viewers constitute a "captive audience." Cf. Public Utilities Comm'n v. Pollak, 343 U.S. at 343 U. S. 463; Kovacs v. Cooper, 336 U. S. 77 (1949). The "captive" nature of the broadcast audience was recognized as early as 1924, Page 412 U. S. 128 when Commerce Secretary Hoover remarked at the Fourth National Radio Conference that"the radio listener does not have the same option that the reader of publications has -- to ignore advertising in which he is not interested -- and he may resent its invasion of his set. [Footnote 22]"As the broadcast media became more pervasive in our society, the problem has become more acute. In a recent decision upholding the Commission's power to promulgate rules regarding cigarette advertising, Judge Bazelon, writing for a unanimous Court of Appeals, noted some of the effects of the ubiquitous commercial:"Written messages are not communicated unless they are read, and reading requires an affirmative act. Broadcast messages, in contrast, are 'in the air.' In an age of omnipresent radio, there scarcely breathes a citizen who does not know some part of a leading cigarette jingle by heart. Similarly, an ordinary habitual television watcher can avoid these commercials only by frequently leaving the room, changing the channel, or doing some other such affirmative act. It is difficult to calculate the subliminal impact of this pervasive propaganda, which may be heard even if not listened to, but it may reasonably be thought greater than the impact of the written word."Banzhaf v. FCC, 132 U.S.App.D.C. 14, 32-33, 405 F.2d 1082, 1100-1101 (1968), cert. denied, 396 U.S. 842 (1969). It is no answer to say that, because we tolerate pervasive commercial advertisements, we can also live with its political counterparts.The rationale for the Court of Appeals' decision imposing a constitutional right of access on the broadcast media was that the licensee impermissibly discriminates Page 412 U. S. 129 by accepting commercial advertisements while refusing editorial advertisements. The court relied on decisions holding that state supported school newspapers and public transit companies were prohibited by the First Amendment from excluding controversial editorial advertisements in favor of commercial advertisements. [Footnote 23] The court also attempted to analogize this case to some of our decisions holding that States may not constitutionally ban certain protected speech while at the same time permitting other speech in public areas. Cox v. Louisiana, 379 U. S. 536 (1965); Fowler v. Rhode Island, 345 U. S. 67 (1953); Niemotko v. Maryland, 340 U. S. 268 (1951). This theme of "invidious discrimination" against protected speech is echoed in the briefs of BEM and DNC to this Court. Respondents also rely on our recent decisions in Grayned v. City of Rockford, 408 U. S. 104 (1972), and Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972), where we held unconstitutional city ordinances that permitted "peaceful picketing of any school involved in a labor dispute," id. at 408 U. S. 93, but prohibited demonstrations for any other purposes on the streets and sidewalks within 150 feet of the school.Those decisions provide little guidance, however, in resolving the question whether the First Amendment requires the Commission to mandate a private right of access to the broadcast media. In none of those cases did the forum sought for expression have an affirmative and independent statutory obligation to provide full and fair coverage of public issues, such as Congress has imposed on Page 412 U. S. 130 all broadcast licensees. In short, there is no "discrimination" against controversial speech present in this case. The question here is not whether there is to be discussion of controversial issues of public importance on the broadcast media, but rather who shall determine what issues are to be discussed by whom, and when.The opinion of the Court of Appeals asserted that the Fairness Doctrine, insofar as it allows broadcasters to exercise certain journalistic judgments over the discussion of public issues, is inadequate to meet the public's interest in being informed. The present system, the court held,"conforms . . . to a paternalistic structure in which licensees and bureaucrats decide what issues are 'important,' and how 'fully' to cover them, and the format, time and style of the coverage."146 U.S.App.D.C. at 195, 450 F.2d at 656. The forced sale of advertising time for editorial spot announcements would, according to the Court of Appeals majority, remedy this deficiency. That conclusion was premised on the notion that advertising time, as opposed to programming time, involves a "special and separate mode of expression" because advertising content, unlike programming content, is generally prepared and edited by the advertiser. Thus, that court concluded, a broadcaster's policy against using advertising time for editorial messages "may well ignore opportunities to enliven and enrich the public's overall information." Id. at 197, 450 F.2d at 658. The Court of Appeals' holding would serve to transfer a large share of responsibility for balanced broadcasting from an identifiable, regulated entity -- the licensee -- to unregulated speakers who could afford the cost.We reject the suggestion that the Fairness Doctrine permits broadcasters to preside over a "paternalistic" regime. See Red Lion, 395 U.S. at 395 U. S. 390. That doctrine admittedly has not always brought to the public perfect or, indeed, even consistently high-quality treatment of all Page 412 U. S. 131 public events and issues; but the remedy does not lie in diluting licensee responsibility. The Commission stressed that, while the licensee has discretion in fulfilling its obligations under the Fairness Doctrine, it is required to "present representative community views and voices on controversial issues which are of importance to [its] listeners," and it is prohibited from "excluding partisan voices and always itself presenting views in a bland, inoffensive manner. . . ." 25 F.C.C.2d at 222. A broadcaster neglects that obligation only at the risk of losing his license.Conceivably, at some future date, Congress or the Commission -- or the broadcasters -- may devise some kind of limited right of access that is both practicable and desirable. Indeed, the Commission noted in these proceedings that the advent of cable television will afford increased opportunities for the discussion of public issues. In its proposed rules on cable television, the Commission has provided that cable systems in major television markets"shall maintain at least one specially designated, noncommercial public access channel available on a first-come, nondiscriminatory basis. The system shall maintain and have available for public use at least the minimal equipment and facilities necessary for the production of programming for such a channel."37 Fed Reg. 3289, § 76.251(a)(4).For the present, the Commission is conducting a wide-ranging study into the effectiveness of the Fairness Doctrine to see what needs to be done to improve the coverage and presentation of public issues on the broadcast media. Notice of Inquiry in Docket 19260, 30 F.C.C.2d 26, 36 Fed.Reg. 11825. Among other things, the study will attempt to determine whether "there is any feasible method of providing access for discussion of public issues Page 412 U. S. 132 outside the requirements of the fairness doctrine." 30 F.C.C.2d at 33. The Commission made it clear, however, that it does not intend to discard the Fairness Doctrine or to require broadcasters to accept all private demands for air time. [Footnote 24] The Commission's inquiry on this score was announced prior to the decision of the Court of Appeals in this case, and hearings are under way.The problems perceived by the Court of Appeals majority are by no means new; as we have seen, the history of the Communications Act and the activities of the Commission over a period of 40 years reflect a continuing search for means to achieve reasonable regulation compatible with the First Amendment rights of the public and the licensees. The Commission's pending hearings are but one step in this continuing process. At the very least, courts should not freeze this necessarily dynamic process into a constitutional holding. See American Commercial Lines, Inc. v. Louisville & N. R. Co., 392 U. S. 571, 392 U. S. 590-593 (1968).The judgment of the Court of Appeals isReversed

U.S. Supreme CourtCBS v. Democratic Nat'l Committee, 412 U.S. 94 (1973)Columbia Broadcasting System, Inc. v.Democratic National CommitteeNo. 71-863Argued October 16, 1972Decided May 29, 1973*412 U.S. 94SyllabusThe Democratic National Committee requested a declaratory ruling from the Federal Communications Commission (FCC) that the Communications Act or the First Amendment precluded a licensee from having a general policy of refusing to sell time to "responsible entities" to present their views on public issues. The Business Executives' Move for Vietnam Peace filed a complaint with the FCC, alleging that a broadcaster had violated the First Amendment by refusing to sell it time to broadcast spot announcements expressing the group's views on the Vietnam conflict, and that the station's coverage of anti-war views did not meet the requirements of the Fairness Doctrine. The FCC rejected the Fairness Doctrine challenge, and ruled that a broadcaster was not prohibited from having a policy of refusing to accept paid editorial advertisements by individuals and organizations like respondents. The Court of Appeals reversed, holding that "a flat ban on paid public issue announcements is in violation of the First Amendment, at least when other sorts of paid announcements are accepted," and remanded the causes to the FCC to develop regulations governing which, and how many, editorial announcements would be aired.Held: Neither the Communications Act nor the First Amendment requires broadcasters to accept paid editorial advertisements. Pp. 412 U. S. 101-114; 412 U. S. 121-170.146 U.S.App.D.C. 181, 450 F.2d 642, reversed.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court with respect to Parts I, II, and IV, finding that:1. The basic criterion governing use of broadcast frequencies is the right of the public to be informed; the manner by which this Page 412 U. S. 95 interest is best served is dispositive of the respondents' statutory and First Amendment contentions. Pp. 412 U. S. 101-114.(a) In evaluating respondents' claims, great weight must be afforded the decisions of Congress and the experience of the FCC. Pp. 412 U. S. 101-103.(b) Congress has consistently rejected efforts to impose on broadcasters a "common carrier" right of access for all persons wishing to speak out on public issues. Instead, it reposed in the FCC regulatory authority by which the Fairness Doctrine was evolved to require that the broadcaster's coverage of important public issues must be adequate and must fairly reflect differing viewpoints; thus, no private individual or group has a right to command the use of broadcast facilities. Pp. 412 U. S. 103-114.2. The "public interest" standard of the Communications Act, which incorporates First Amendment principles, does not require broadcasters to accept editorial advertisements. Pp. 412 U. S. 121-131.(a) The FCC was justified in concluding that the public interest, in having access to the marketplace of "ideas and experiences," would not be served by ordering a right of access to advertising time. There is substantial risk that such a system would be monopolized by those who could and would pay the costs, that the effective operation of the Fairness Doctrine itself would be undermined, and that the public accountability which now rests with the broadcaster would be diluted. Pp. 412 U. S. 121-125.(b) The difficult problems involved in implementing an absolute right of access would inevitably implicate the FCC in a case-by-case determination of who should be heard and when, thus enlarging the involvement of the Government in broadcasting operations. The FCC could properly take into account the fact that listeners and viewers constitute a kind of "captive audience," and that the public interest requires that a substantial degree of journalistic discretion must remain with broadcasters. Pp. 412 U. S. 126-130.THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST, concluded, in Part III, that a broadcast licensee's refusal to accept a paid editorial advertisement does not constitute "governmental action" for First Amendment purposes. The Government is neither a "partner" to the action complained of nor engaged in a "symbiotic relationship" with the licensee. Pp. 412 U. S. 114-121.(a) Under the Communications Act, a broadcast licensee is vested with substantial journalistic discretion in deciding how to meet its statutory obligations as a "public trustee." Pp. 412 U. S. 114-117. Page 412 U. S. 96(b) The licensee's policy against accepting editorial advertising is compatible with the Communications Act and with the broadcaster's obligation to provide a balanced treatment of controversial questions. Pp. 412 U. S. 118-121.(c) The FCC has not fostered the licensee policy against accepting editorial advertisements; it has merely declined to command acceptance because the subject was a matter within the area of journalistic discretion. P. 412 U. S. 118.BURGER, C.J., announced the Court's judgment and delivered an opinion of the Court with respect to Parts I, II, and IV, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in which as to Parts I, II, and III STEWART and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in Parts I, II, and III, post, p. 412 U. S. 132. WHITE, J., filed an opinion concurring in Parts I, II, and IV, post, p. 412 U. S. 146. BLACKMUN, J., filed an opinion concurring in Parts I, II, and IV, in which POWELL, J., joined, post p. 412 U. S. 147. DOUGLAS, J., filed an opinion concurring in the judgment, post, p. 412 U.S. 148. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 412 U. S. 170. Page 412 U. S. 97

1983_82-1608

JUSTICE WHITE 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 JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS joined. Page 467 U. S. 84We granted certiorari in this case to review a decision of the Court of Appeals for the Ninth Circuit that held that Alaska's requirement that timber taken from state lands be processed within the State prior to export was "implicitly authorized" by Congress, and therefore does not violate the Commerce Clause. 464 U.S. 890 (1983). We hold that it was not authorized, and reverse the judgment of the Court of Appeals.IIn September, 1980, the Alaska Department of Natural Resources published a notice that it would sell approximately 49 million board-feet of timber in the area of Icy Cape, Alaska, on October 23, 1980. The notice of sale, the prospectus, and the proposed contract for the sale all provided, pursuant to 11 Alaska Admin. Code § 76.130 (1974), that "[p]rimary manufacture within the State of Alaska will be required as a special provision of the contract." [Footnote 1] App. 35a. Under the primary manufacture requirement, the successful bidder must partially process the timber prior to shipping it outside of the State. [Footnote 2] The requirement is imposed by contract and Page 467 U. S. 85 does not limit the export of unprocessed timber not owned by the State. The stated purpose of the requirement is to"protect existing industries, provide for the establishment of new industries, derive revenue from all timber resources, and manage the State's forests on a sustained yield basis."Governor's Policy Statement, App. 28a. When it imposes the requirement, the State charges a significantly lower price for the timber than it otherwise would. Brief for Respondents 6-7.The major method of complying with the primary manufacture requirement is to convert the logs into cants, which are logs slabbed on at least one side. In order to satisfy the Alaska requirement, cants must be either sawed to a maximum thickness of 12 inches or squared on four sides along their entire length. [Footnote 3]Petitioner, South-Central Timber Development, Inc., is an Alaska corporation engaged in the business of purchasing standing timber, logging the timber, and shipping the logs into foreign commerce, almost exclusively to Japan. [Footnote 4] It Page 467 U. S. 86 does not operate a mill in Alaska, and customarily sells unprocessed logs. When it learned that the primary manufacture requirement was to be imposed on the Icy Cape sale, it brought an action in Federal District Court seeking an injunction, arguing that the requirement violated the negative implications of the Commerce Clause. [Footnote 5] The District Court Page 467 U. S. 87 agreed and issued an injunction. South-Central Timber Development, Inc. v. LeResche, 511 F. Supp. 139 (Alaska 1981). The Court of Appeals for the Ninth Circuit reversed, finding it unnecessary to reach the question whether, standing alone, the requirement would violate the Commerce Clause, because it found implicit congressional authorization in the federal policy of imposing a primary manufacture requirement on timber taken from federal land in Alaska. South-Central Timber Development, Inc. v. LeResche, 693 F.2d 890 (1982).We must first decide whether the court was correct in concluding that Congress has authorized the challenged requirement. If Congress has not, we must respond to respondents' submission that we should affirm the judgment on two grounds not reached by the Court of Appeals: (1) whether, in the absence of congressional approval, Alaska's requirement is permissible because Alaska is acting as a market participant, rather than as a market regulator; and (2), if not, whether the local processing requirement is forbidden by the Commerce Clause.IIAlthough the Commerce Clause is by, its text, an affirmative grant of power to Congress to regulate interstate and foreign commerce, the Clause has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce. See Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 447 U. S. 35 (1980); Hughes v. Oklahoma, 441 U. S. 322, 441 U. S. 326 (1979); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 336 U. S. 534-538 (1949); Cooley v. Board of Wardens, 12 How. 299 (1852). It is equally clear that Congress may "redefine the distribution of power over interstate commerce" by "permit[ting] the Page 467 U. S. 88 states to regulate the commerce in a manner which would otherwise not be permissible." Southern Pacific Co. v. Arizona, 325 U. S. 761, 325 U. S. 769 (1945). See also Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941, 458 U. S. 958-960 (1982); New England Power Co. v. New Hampshire, 455 U. S. 331 (1982); Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U. S. 648, 451 U. S. 652-655 (1981); Prudential Insurance Co. v. Benjamin, 328 U. S. 408 (1946). The Court of Appeals held that Congress had done just that by consistently endorsing primary manufacture requirements on timber taken from federal land. 693 F.2d at 893. Although the court recognized that cases of this Court have spoken in terms of express approval by Congress, it stated:"But such express authorization is not always necessary. There will be instances, like the case before us, where federal policy is so clearly delineated that a state may enact a parallel policy without explicit congressional approval, even if the purpose and effect of the state law is to favor local interests."Ibid. We agree that federal policy with respect to federal land is "clearly delineated," but the Court of Appeals was incorrect in concluding either that there is a clearly delineated federal policy approving Alaska's local processing requirement or that Alaska's policy with respect to its timber lands is authorized by the existence of a "parallel" federal policy with respect to federal lands.Since 1928, the Secretary of Agriculture has restricted the export of unprocessed timber cut from National Forest lands in Alaska. The current regulation, upon which the State places heavy reliance, provides:"Unprocessed timber from National Forest System lands in Alaska may not be exported from the United States or shipped to other States without prior approval of the Regional Forester. This requirement is necessary Page 467 U. S. 89 to ensure the development and continued existence of adequate wood processing capacity in that State for the sustained utilization of timber from the National Forests which are geographically isolated from other processing facilities."36 CFR § 223. 10(c) (1983).From 1969 to 1973, Congress imposed a maximum export limitation of 350 million board-feet of unprocessed timber from federal lands lying west of the 100th meridian (a line running from central North Dakota through central Texas). 16 U.S.C. § 617(a). Beginning in 1973, Congress imposed, by way of a series of annual riders to appropriation Acts, a complete ban on foreign exports of unprocessed logs from western lands except those within Alaska. See, e.g., Pub.L. 96-126, Tit. III, § 301, 93 Stat. 979. These riders limit only foreign exports, and do not require in-state processing before the timber may be sold in domestic interstate commerce. The export limitation with respect to federal land in Alaska, rather than being imposed by statute, was imposed by the above-quoted regulation, and applies to exports to other States, as well as to foreign exports.Alaska argues that federal statutes and regulations demonstrate an affirmative expression of approval of its primary manufacture requirement for three reasons: (1) federal timber export policy has, since 1928, treated federal timber land in Alaska differently from that in other States; (2) the Federal Government has specifically tailored its policies to ensure development of wood-processing capacity for utilization of timber from the National Forests; and (3) the regulation forbidding without prior approval the export from Alaska of unprocessed timber or its shipment to other States demonstrates that it is the Alaska wood-processing industry in particular, not the domestic wood-processing industry generally, that has been the object of federal concern.Acceptance of Alaska's three factual propositions does not mandate acceptance of its conclusion. Neither South-Central Page 467 U. S. 90 nor the United States [Footnote 6] challenges the existence of a federal policy to restrict the out-of-state shipment of unprocessed Alaska timber from federal lands. They challenge only the derivation from that policy of an affirmative expression of federal approval of a parallel policy with respect to state timber. They argue that our cases dealing with congressional authorization of otherwise impermissible state interference with interstate commerce have required an "express" statement of such authorization, and that no such authorization may be implied.It is true that most of our cases have looked for an express statement of congressional policy prior to finding that state regulation is permissible. For example, in Sporhase v. Nebraska e rel. Douglas, supra, the Court declined to find congressional authorization for state-imposed burdens on interstate commerce in ground water despite 37 federal statutes and a number of interstate compacts that demonstrated Congress' deference to state water law. We noted that, on those occasions in which consent has been found, congressional intent and policy to insulate state legislation from Commerce Clause attack have been "expressly stated." 458 U.S. at 458 U. S. 960. Similarly, in New England Power Co. v. New Hampshire, 455 U. S. 331 (1982), we rejected a claim by the State of New Hampshire that its restriction on the interstate flow of privately owned and produced electricity was authorized by § 201(b) of the Federal Power Act. That section provides that the Act"shall not . . . deprive a State or State commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line."16 U.S.C. § 824(b). We found nothing in the statute or legislative history "evinc[ing] a congressional intent to alter the limits of state power otherwise imposed by the Commerce Clause.'" 455 U.S. at 455 U. S. 341 Page 467 U. S. 91 (quoting United States v. Public Utilities Comm'n of California, 345 U. S. 295, 345 U. S. 304 (1953)).Alaska relies in large part on this Court's recent opinion in White v. Massachusetts Council of Construction Employers, Inc., 460 U. S. 204 (1983), for its "implicit approval" theory. At issue in White was an executive order issued by the Mayor of Boston requiring all construction projects funded by the city or by funds that the city had authority to administer to be performed by a workforce consisting of at least 50% residents of the city. A number of the projects were funded in part with federal Urban Development Action Grants. The Court held that, insofar as the city expended its own funds on the projects, it was a market participant unconstrained by the dormant Commerce Clause; insofar as the city expended federal funds, "the order was affirmatively sanctioned by the pertinent regulations of those programs." Id. at 460 U. S. 215. Alaska relies on the Court's statements in White that the federal regulations "affirmatively permit" and "affirmatively sanctio[n]" the executive order, and that the order "sounds a harmonious note" with the federal regulations, and it finds significance in the fact that the Court did not use the words "expressly stated."Rather than supporting the position of the State, we believe that White undermines it. If approval of state burdens on commerce could be implied from parallel federal policy, the Court would have had no reason to rely upon the market participant doctrine to uphold the executive order. Instead, the order could have been upheld as being in harmony with federal policy as expressed in regulations governing the expenditure of federal funds.There is no talismanic significance to the phrase "expressly stated," however; it merely states one way of meeting the requirement that, for a state regulation to be removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably clear. The requirement that Congress affirmatively contemplate otherwise invalid state legislation Page 467 U. S. 92 is mandated by the policies underlying dormant Commerce Clause doctrine. It is not, as Alaska asserts, merely a wooden formalism. The Commerce Clause was designed "to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation." Hughes v. Oklahoma, 441 U. S. 322, 441 U. S. 325 (1979). Unrepresented interests will often bear the brunt of regulations imposed by one State having a significant effect on persons or operations in other States. Thus,"when the regulation is of such a character that its burden falls principally upon those without the state, legislative action is not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state."South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U. S. 177, 303 U. S. 185, n. 2 (1938); see also Southern Pacific Co. v. Arizona, 325 U.S. at 325 U. S. 767-768, n. 2. On the other hand, when Congress acts, all segments of the country are represented, and there is significantly less danger that one State will be in a position to exploit others. Furthermore, if a State is in such a position, the decision to allow it is a collective one. A rule requiring a clear expression of approval by Congress ensures that there is, in fact, such a collective decision and reduces significantly the risk that unrepresented interests will be adversely affected by restraints on commerce. [Footnote 7] The fact that the state policy in this case appears to be consistent with federal policy -- or even that state policy furthers the goals we might believe that Congress had in mind -- is an insufficient indicium of congressional intent. Congress acted only with respect to federal lands; we cannot infer from that fact that it intended to authorize a similar policy with respect Page 467 U. S. 93 to state lands. [Footnote 8] Accordingly, we reverse the contrary judgment of the Court of Appeals.IIIWe now turn to the issues left unresolved by the Court of Appeals. The first of these issues is whether Alaska's restrictions on export of unprocessed timber from state-owned lands are exempt from Commerce Clause scrutiny under the "market-participant doctrine."Our cases make clear that, if a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities. See White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. at 460 U. S. 206-208; Reeves, Inc. v. Stake, 447 U. S. 429, 447 U. S. 436-437 (1980); Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 426 U. S. 810 (1976). The precise contours of the market participant doctrine have yet to be established, however, the doctrine having been applied in only three cases of this Court to date.The first of the cases, Hughes v. Alexandria Scrap Corp., supra, involved a Maryland program designed to reduce the number of junked automobiles in the State. A "bounty" was established on Maryland-licensed junk cars, and the State imposed more stringent documentation requirements on out-of-state Page 467 U. S. 94 scrap processors than on in-state ones. The Court rejected a Commerce Clause attack on the program, although it noted that, under traditional Commerce Clause analysis, the program might well be invalid because it had the effect of reducing the flow of goods in interstate commerce. Id. at 426 U. S. 805. The Court concluded that Maryland's action was not "the kind of action with which the Commerce Clause is concerned," ibid., because"[n]othing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others."Id. at 426 U. S. 810 (footnote omitted).In Reeves, Inc. v. Stake, supra, the Court upheld a South Dakota policy of restricting the sale of cement from a state-owned plant to state residents, declaring that"[t]he basic distinction drawn in Alexandria Scrap between States as market participants and States as market regulators makes good sense and sound law."Id. at 447 U. S. 436. The Court relied upon"'the long-recognized right of trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.'"Id. at 447 U. S. 438-439 (quoting United States v. Colgate & Co., 250 U. S. 300, 250 U. S. 307 (1919)). In essence, the Court recognized the principle that the Commerce Clause places no limitations on a State's refusal to deal with particular parties when it is participating in the interstate market in goods.The most recent of this Court's cases developing the market participant doctrine is White v. Massachusetts Council of Construction Employers, Inc., supra, in which the Court sustained against a Commerce Clause challenge an executive order of the Mayor of Boston that required all construction projects funded in whole or in part by city funds or city-administered funds to be performed by a workforce of at least 50% city residents. The Court rejected the argument that the city was not entitled to the protection of the doctrine because the order had the effect of regulating employment contracts between public contractors and their employees. Id. Page 467 U. S. 95 at 460 U. S. 211, n. 7. Recognizing that"there are some limits on a state or local government's ability to impose restrictions that reach beyond the immediate parties with which the government transacts business,"the Court found it unnecessary to define those limits because "[e]veryone affected by the order [was], in a substantial if informal sense, working for the city.'" Ibid. The fact that the employees were "working for the city" was "crucial" to the market participant analysis in White. United Building and Construction Trades Council v. Mayor of Camden, 465 U. S. 208, 465 U. S. 219 (1984).The State of Alaska contends that its primary manufacture requirement fits squarely within the market participant doctrine, arguing that"Alaska's entry into the market may be viewed as precisely the same type of subsidy to local interests that the Court found unobjectionable in Alexandria Scrap."Brief for Respondents 24. However, when Maryland became involved in the scrap market, it was as a purchaser of scrap; Alaska, on the other hand, participates in the timber market, but imposes conditions downstream in the timber processing market. Alaska is not merely subsidizing local timber processing in an amount"roughly equal to the difference between the price the timber would fetch in the absence of such a requirement and the amount the state actually receives."Ibid. If the State directly subsidized the timber processing industry by such an amount, the purchaser would retain the option of taking advantage of the subsidy by processing timber in the State or forgoing the benefits of the subsidy and exporting unprocessed timber. Under the Alaska requirement, however, the choice is made for him: if he buys timber from the State, he is not free to take the timber out of state prior to processing.The State also would have us find Reeves controlling. It states that "Reeves made it clear that the Commerce Clause imposes no limitation on Alaska's power to choose the terms on which it will sell its timber." Brief for Respondents 25. Such an unrestrained reading of Reeves is unwarranted. Although the Court in Reeves did strongly endorse the right of Page 467 U. S. 96 a State to deal with whomever it chooses when it participates in the market, it did not -- and did not purport to -- sanction the imposition of any terms that the State might desire. For example, the Court expressly noted in Reeves that "Commerce Clause scrutiny may well be more rigorous when a restraint on foreign commerce is alleged," 447 U.S. at 447 U. S. 438, n. 9; that a natural resource "like coal, timber, wild game, or minerals," was not involved, but instead the cement was "the end product of a complex process whereby a costly physical plant and human labor act on raw materials," id. at 447 U. S. 443-444; and that South Dakota did not bar resale of South Dakota cement to out-of-state purchasers, id. at 447 U. S. 444, n. 17. In this case, all three of the elements that were not present in Reeves -- foreign commerce, a natural resource, and restrictions on resale -- are present.Finally, Alaska argues that, since the Court in White upheld a requirement that reached beyond "the boundary of formal privity of contract," 460 U.S. at 460 U. S. 211, n. 7, then, a fortiori, the primary manufacture requirement is permissible, because the State is not regulating contracts for resale of timber or regulating the buying and selling of timber, but is instead "a seller of timber, pure and simple." Brief for Respondents 28. Yet it is clear that the State is more than merely a seller of timber. In the commercial context, the seller usually has no say over, and no interest in, how the product is to be used after sale; in this case, however, payment for the timber does not end the obligations of the purchaser, for, despite the fact that the purchaser has taken delivery of the timber and has paid for it, he cannot do with it as he pleases. Instead, he is obligated to deal with a stranger to the contract after completion of the sale. [Footnote 9] Page 467 U. S. 97That privity of contract is not always the outer boundary of permissible state activity does not necessarily mean that the Commerce Clause has no application within the boundary of formal privity. The market participant doctrine permits a State to influence "a discrete, identifiable class of economic activity in which [it] is a major participant." White v. Massachusetts Council of Construction Workers, Inc., 460 U.S. at 460 U. S. 211, n. 7. Contrary to the State's contention, the doctrine is not carte blanche to impose any conditions that the State has the economic power to dictate, and does not validate any requirement merely because the State imposes it upon someone with whom it is in contractual privity. See Tr. of Oral Arg. 35.The limit of the market participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further. The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market. [Footnote 10] Unless the Page 467 U. S. 98 "market" is relatively narrowly defined, the doctrine has the potential of swallowing up the rule that States may not impose substantial burdens on interstate commerce even if they act with the permissible state purpose of fostering local industry.At the heart of the dispute in this case is disagreement over the definition of the market. Alaska contends that it is participating in the processed timber market, although it acknowledges that it participates in no way in the actual processing. Id. at 34. South-Central argues, on the other hand, that although the State may be a participant in the timber market, it is using its leverage in that market to exert a regulatory effect in the processing market, in which it is not a participant. We agree with the latter position.There are sound reasons for distinguishing between a State's preferring its own residents in the initial disposition of goods, when it is a market participant, and a State's attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands. First, simply as a matter of intuition, a state market participant has a greater interest as a "private trader" in the immediate transaction than it has in what its purchaser does with the goods after the State no longer has an interest in them. The common law recognized such a notion in the doctrine of restraints on alienation. See Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, 220 U. S. 404 (1911); but cf. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 433 U. S. 53, n. 21 (1977). Similarly, the antitrust laws place limits on vertical restraints. It is no defense in an action charging vertical trade restraints that the same end could be achieved through vertical integration; if it were, there would be virtually no antitrust scrutiny of vertical arrangements. We reject the contention that a State's action as a market regulator may be upheld against Commerce Clause challenge on the ground that the State could Page 467 U. S. 99 achieve the same end as a market participant. We therefore find it unimportant for present purposes that the State could support its processing industry by selling only to Alaska processors, by vertical integration, or by direct subsidy. See Tr. of Oral Arg. 34, 37, 45.Second, downstream restrictions have a greater regulatory effect than do limitations on the immediate transaction. Instead of merely choosing its own trading partners, the State is attempting to govern the private, separate economic relationships of its trading partners; that is, it restricts the post-purchase activity of the purchaser, rather than merely the purchasing activity. In contrast to the situation in White, this restriction on private economic activity takes place after the completion of the parties' direct commercial obligations, rather than during the course of an ongoing commercial relationship in which the city retained a continuing proprietary interest in the subject of the contract. [Footnote 11] In sum, the State may not avail itself of the market participant doctrine to immunize its downstream regulation of the timber processing market in which it is not a participant.IVFinally, the State argues that, even if we find that Congress did not authorize the processing restriction, and even if we conclude that its actions do not qualify for the market participant exception, the restriction does not substantially burden interstate or foreign commerce under ordinary Commerce Clause principles. We need not labor long over that contention.Viewed as a naked restraint on export of unprocessed logs, there is little question that the processing requirement cannot survive scrutiny under the precedents of the Court. For Page 467 U. S. 100 example, in Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), we invalidated a requirement of the State of Arizona that all Arizona cantaloupes be packed within the State. The Court noted that the State's purpose was "to protect and enhance the reputation of growers within the State," a purpose we described as "surely legitimate." Id. at 397 U. S. 143. We observed:"[T]he Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal. Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1; Johnson v. Haydel, 278 U. S. 16; Toomer v. Witsell, 334 U. S. 385."Id. at 397 U. S. 145. We held that, if the Commerce Clause forbids a State to require work to be done within the State for the purpose of promoting employment, then, a fortiori, it forbids a State to impose such a requirement to enhance the reputation of its producers. Because of the protectionist nature of Alaska's local processing requirement and the burden on commerce resulting therefrom, we conclude that it falls within the rule of virtual per se invalidity of laws that "bloc[k] the flow of interstate commerce at a State's borders." City of Philadelphia v. New Jersey, 437 U. S. 617, 437 U. S. 624 (1978).We are buttressed in our conclusion that the restriction is invalid by the fact that foreign commerce is burdened by the restriction. It is a well-accepted rule that state restrictions burdening foreign commerce are subjected to a more rigorous and searching scrutiny. It is crucial to the efficient execution of the Nation's foreign policy that "the Federal Government . . . speak with one voice when regulating commercial relations with foreign governments." Michelin Tire Corp. v. Wages, 423 U. S. 276, 423 U. S. 285 (1976); see also Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434 (1979). In light of the substantial attention given by Congress to the subject of Page 467 U. S. 101 export restrictions on unprocessed timber, it would be peculiarly inappropriate to permit state regulation of the subject. See Prohibit Export of Unprocessed Timber: Hearing on H.R. 639 before the Subcommittee on Forests, Family Farms, and Energy of the House Committee on Agriculture, 97th Cong., 1st Sess. (1981).The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with the opinion of this Court.It is so ordered

U.S. Supreme CourtSouth-Central Timber v. Wunnicke, 467 U.S. 82 (1984)South-Central Timber Development, Inc. v. WunnickeNo. 82-1608Argued February 29, 1984Decided May 22, 1984467 U.S. 82SyllabusPursuant to an Alaska statute, the Alaska Department of Natural Resources published a notice that it would sell certain timber from state lands under a contract requiring "primary manufacture" (partial processing) of the timber within Alaska before the successful bidder could ship it outside of the State. Petitioner, an Alaska corporation engaged in the business of purchasing timber and shipping the logs into foreign commerce, does not operate a mill in Alaska and customarily sells unprocessed logs. When it learned that the primary manufacture requirement was to be imposed on the sale of state-owned timber involved here, petitioner filed an action in Federal District Court seeking an injunction on the ground that the requirement violated the negative implications of the Commerce Clause under which States may not enact laws imposing substantial burdens on interstate and foreign commerce unless authorized by Congress. The District Court agreed and issued an injunction, but the Court of Appeals reversed. That court found it unnecessary to reach the question whether, standing alone, the requirement would violate the Commerce Clause, because it found implicit congressional authorization in the federal policy of imposing a primary manufacture requirement on timber taken from federal land in Alaska.Held: The judgment is reversed, and the case is remanded.693 F.2d 890, reversed and remanded.JUSTICE WHITE delivered the opinion of the Court with respect to Parts I and II, concluding that the Court of Appeals erred in holding that Congress has authorized Alaska's primary manufacture requirement. Although there is a clearly delineated federal policy, endorsed by Congress, imposing primary manufacture requirements as to timber taken from federal lands in Alaska for export from the United States or for shipment to other States, in order for a state regulation to be removed from the reach of the dormant Commerce Clause as being authorized by Congress, congressional intent must be unmistakably clear. The requirement that Congress affirmatively contemplate otherwise invalid state legislation is mandated by the policies underlying dormant Commerce Page 467 U. S. 83 Clause doctrine. The fact that Alaska's policy appears to be consistent with federal policy -- or even that state policy furthers the goals that Congress had in mind -- is an insufficient indicium of congressional intent. Congress acted only with respect to federal lands; it cannot be inferred from that fact that it intended to authorize a similar policy with respect to state lands. Pp. 467 U. S. 87-93.WHITE, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which BURGER, C.J., and BRENNAN, BLACKMUN, POWELL, and STEVENS, JJ., joined, and an opinion with respect to Parts III and IV, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 467 U. S. 101. POWELL, J., filed an opinion concurring in part and concurring in the judgment, in which BURGER, C.J., joined, post, p. 467 U. S. 101. REHNQUIST, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 467 U. S. 101. MARSHALL, J., took no part in the decision of the case.

1987_86-2000

JUSTICE O'CONNOR delivered the opinion of the Court.This case concerns the scope of two criminal statutes enacted by Congress to enforce the Thirteenth Amendment. Title 18 U.S.C. § 241 prohibits conspiracy to interfere with an individual's Thirteenth Amendment right to be free from "involuntary servitude." Title 18 U.S.C. § 1584 makes it a crime knowingly and willfully to hold another person "to involuntary servitude." We must determine the meaning of "involuntary servitude" under these two statutes.IIn 1983, two mentally retarded men were found laboring on a Chelsea, Michigan, dairy farm in poor health, in squalid conditions, and in relative isolation from the rest of society. The operators of the farm -- Ike Kozminski, his wife Margarethe, and their son John -- were charged with violating 18 U.S.C. § 241 by conspiring to "injure, oppress, threaten, or intimidate" the two men in the free exercise and enjoyment of their federal right to be free from involuntary servitude. The Kozminskis were also charged with knowingly holding, or aiding and abetting in the holding of, the two men to involuntary servitude in violation of 18 U.S.C. § 1584 and § 2. [Footnote 1] The case was tried before a jury in the United States District Court for the Eastern District of Michigan. The Government's evidence is summarized below.The victims, Robert Fulmer and Louis Molitoris, have intelligence quotients of 67 and 60 respectively. Though chronologically in their 60's during the period in question, Page 487 U. S. 935 they viewed the world and responded to authority as would someone of 8 to 10 years. Margarethe Kozminski picked Fulmer up one evening in 1967 while he was walking down the road, and brought him to work at one of the Kozminski farms. He was working on another farm at the time, but Mrs. Kozminski simply left a note telling his former employer that he had gone. Molitoris was living on the streets of Ann Arbor, Michigan, in the early 1970's when Ike Kozminski brought him to work on the Chelsea farm. He had previously spent several years at a state mental hospital.Fulmer and Molitoris worked on the Kozminskis' dairy farm seven days a week, often 17 hours a day, at first for $15 per week and eventually for no pay. The Kozminskis subjected the two men to physical and verbal abuse for failing to do their work, and instructed herdsmen employed at the farm to do the same. The Kozminskis directed Fulmer and Molitoris not to leave the farm, and on several occasions when the men did leave, the Kozminskis or their employees brought the men back and discouraged them from leaving again. On one occasion, John Kozminski threatened Molitoris with institutionalization if he did not do as he was told.The Kozminskis failed to provide Fulmer and Molitoris with adequate nutrition, housing, clothing, or medical care. They directed the two men not to talk to others, and discouraged the men from contacting their relatives. At the same time, the Kozminskis discouraged relatives, neighbors, farm hands, and visitors from contacting Fulmer and Molitoris. Fulmer and Molitoris asked others for help in leaving the farm, and eventually a herdsman hired by the Kozminskis was concerned about the two men and notified county officials of their condition. County officials assisted Fulmer and Molitoris in leaving the farm, and placed them in an adult foster care home.In attempting to persuade the jury that the Kozminskis held their victims in involuntary servitude, the Government did not rely solely on evidence regarding their use or threatened Page 487 U. S. 936 use of physical force or the threat of institutionalization. Rather, the Government argued that the Kozminskis had used various coercive measures -- including denial of pay, subjection to substandard living conditions, and isolation from others -- to cause the victims to believe they had no alternative but to work on the farm. The Government argued that Fulmer and Molitoris were "psychological hostages" whom the Kozminskis had "brainwash[ed]" into serving them. Tr. 15, 23. [Footnote 2]At the conclusion of the evidence, the District Court instructed the jurors that, in order to convict the Kozminskis of conspiracy under § 241, they must find (1) the existence of a conspiracy including the Kozminskis, (2) that the purpose of the conspiracy was to injure, oppress, threaten, or intimidate a United States citizen in the free exercise or enjoyment of a federal right to be free from involuntary servitude, and (3) that one of the conspirators knowingly committed an overt act in furtherance of that purpose. The Court further instructed the jury that § 1584 required the Government to prove (1) that the Kozminskis held the victims in involuntary servitude, (2) that they acted knowingly or willfully, and (3) that their actions were a necessary cause of the victims' decision to continue working for them. The Court delivered the following instruction on the meaning of involuntary servitude under both statutes:"Involuntary servitude consists of two terms.""Involuntary means 'done contrary to or without choice' -- 'compulsory' -- 'not subject to control of the will.' "Page 487 U. S. 937"Servitude means '[a] condition in which a person lacks liberty especially to determine one's course of action or way of life' -- 'slavery' -- 'the state of being subject to a master.'""Involuntary servitude involves a condition of having some of the incidents of slavery.""It may include situations in which persons are forced to return to employment by law.""It may also include persons who are physically restrained by guards from leaving employment.""It may also include situations involving either physical and other coercion, or a combination thereof, used to detain persons in employment.""* * * *" "In other words, based on all the evidence it will be for you to determine if there was a means of compulsion used, sufficient in kind and degree, to subject a person having the same general station in life as the alleged victims to believe they had no reasonable means of escape and no choice except to remain in the service of the employer."App. to Pet. for Cert. 109a-1 10a.So instructed, the jury found Ike and Margarethe Kozminski guilty of violating both statutes. John Kozminski was convicted only on the § 241 charge. Each of the Kozminskis was placed on probation for two years. In addition, Ike Kozminski was fined $20,000 and was ordered to pay $6,190.80 in restitution to each of the victims. John Kozminski was fined $10,000.A divided panel of the Court of Appeals for the Sixth Circuit affirmed the convictions. App. to Pet. for Cert. 72a. After rehearing the case en banc, however, the Court of Appeals reversed the convictions and remanded the case for a new trial. 821 F.2d 1186 (1987). The majority concluded that the District Court's definition of involuntary servitude, which would bring cases involving general psychological coercion Page 487 U. S. 938 within the reach of § 241 and § 1584, was too broad. The Court held that involuntary servitude exists only when"(a) the servant believes that he or she has no viable alternative but to perform service for the master (b) because of (1) the master's use or threatened use of physical force, or (2) the master's use or threatened use of state-imposed legal coercion (i.e., peonage), or (3) the master's use of fraud or deceit to obtain or maintain services where the servant is a minor, an immigrant or one who is mentally incompetent."821 F.2d at 1192 (footnote omitted).The dissenting judges charged that the majority had "rewritten, rather than interpreted," § 1584. 821 F.2d at 1213. They argued that involuntary servitude may arise from whatever means the defendant intentionally uses to subjugate the will of the victim so as to render the victim "incapable of making a rational choice.'" Id. at 1212-1213 (quoting United States v. Shackney, 333 F.2d 475, 488 (CA2 1964) (Dimock, J., concurring)).The Court of Appeals' definition of involuntary servitude conflicts with the definitions adopted by other Courts of Appeals. Writing for the Second Circuit in United States v. Shackney, supra, Judge Friendly reasoned that"a holding in involuntary servitude means to us action by the master causing the servant to have, or to believe he has, no way to avoid continued service or confinement, . . . not a situation where the servant knows he has a choice between continued service and freedom, even if the master has led him to believe that the choice may entail consequences that are exceedingly bad."Id. at 486. Accordingly, Judge Friendly concluded that § 1584 prohibits only "service compelled by law, by force or by the threat of continued confinement of some sort." Id. at 487. See also United States v. Harris, 701 F.2d 1095, 1100 (CA4 1983) (involuntary Page 487 U. S. 939 servitude exists under § 241 and § 1584 where labor is coerced by "threat of violence or confinement, backed sufficiently by deeds"); United States v. Bibbs, 564 F.2d 1165, 1168 (CA5 1977) (involuntary servitude exists under § 1584 where the defendant places the victim "in such fear of physical harm that the victim is afraid to leave"). The Ninth Circuit, in contrast, has not limited the reach of § 1584 to cases involving physical force or legal sanction, but has concluded that"[a] holding in involuntary servitude occurs when an individual coerces another into his service by improper or wrongful conduct that is intended to cause, and does cause, the other person to believe that he or she has no alternative but to perform labor."United States v. Mussry, 726 F.2d 1448, 1453 (1984). See also United States v. Warren, 772 F.2d 827, 833-834 (CA11 1985) ("Various forms of coercion may constitute a holding in involuntary servitude. The use, or threatened use, of physical force to create a climate of fear is the most grotesque example of such coercion").We granted the Government's petition for a writ of certiorari, 484 U.S. 894 (1987), to resolve this conflict among the Courts of Appeals on the meaning of involuntary servitude for the purpose of criminal prosecution under § 241 and § 1584.IIFederal crimes are defined by Congress, and so long as Congress acts within its constitutional power in enacting a criminal statute, this Court must give effect to Congress' expressed intention concerning the scope of conduct prohibited. See Dowling v. United States, 473 U. S. 207, 473 U. S. 213, 473 U. S. 214 (1985) (citing United States v. Wiltberger, 5 Wheat. 76, 18 U. S. 95 (1820)). Congress' power to enforce the Thirteenth Amendment by enacting § 241 and § 1584 is clear and undisputed. See U.S.Const., Amdt. 13, § 2 ("Congress shall have power to enforce Page 487 U. S. 940 this article by appropriate legislation"); Griffin v. Breckenridge, 403 U. S. 88, 403 U. S. 105 (1971). The scope of conduct prohibited by these statutes is therefore a matter of statutory constructionThe Court of Appeals reached its conclusions regarding the meaning of involuntary servitude under both § 241 and § 1584 based solely on its analysis of the language and history of § 1584. A reading of these statutes, however, reveals an obvious difference between them. Unlike § 1584, which by its terms prohibits holding to involuntary servitude, § 241 prohibits conspiracies to interfere with rights secured "by the Constitution or laws of the United States," and thus incorporates the prohibition of involuntary servitude contained in the Thirteenth Amendment. See United States v. Price, 383 U. S. 787, 383 U. S. 805 (1966). The indictment in this case, which was read to the jury, specifically charged the Kozminskis with conspiring to interfere with the"right and privilege secured . . . by the Constitution and laws of the United States to be free from involuntary servitude as provided by the Thirteenth Amendment of the United States Constitution."App. 177 (emphasis added). Thus, the indictment clearly specified a conspiracy to violate the Thirteenth Amendment. The indictment cannot be read to charge a conspiracy to violate § 1584, rather than the Thirteenth Amendment, because the criminal sanction imposed by § 1584 does not create any individual "right or privilege" as those words are used in § 241. The Government has not conceded that the definition of involuntary servitude as used in the Thirteenth Amendment is limited by the meaning of the same phrase in § 1584. To the contrary, the Government argues (1) that the Thirteenth Amendment should be broadly construed, and (2) that Congress did not intend § 1584 to have a narrower scope. Brief for United States 22-32. The District Court defined involuntary servitude broadly under both § 241 and § 1584. The Court of Appeals reversed the convictions under both counts because it concluded that the definition Page 487 U. S. 941 of involuntary servitude given for each count was erroneous. Since the proper interpretation of each statute is squarely before us, we construe each statute separately to ascertain the conduct it prohibits.ASection 241 authorizes punishment when"two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same."This Court interpreted the purpose and effect of § 241 over 20 years ago in United States v. Guest, 383 U. S. 745 (1966), and United States v. Price, supra. Section 241 creates no substantive rights, but prohibits interference with rights established by the Federal Constitution or laws and by decisions interpreting them. Guest, supra, at 383 U. S. 754-755; Price, supra, at 383 U. S. 803. Congress intended the statute to incorporate by reference a large body of potentially evolving federal law. This Court recognized, however, that a statute prescribing criminal punishment must be interpreted in a manner that provides a definite standard of guilt. The Court resolved the tension between these two propositions by construing § 241 to prohibit only intentional interference with rights made specific either by the express terms of the Federal Constitution or laws or by decisions interpreting them. Price, supra, at 383 U. S. 806, n. 20; Guest, supra, at 383 U. S. 754-755. Cf. Screws v. United States, 325 U. S. 91, 325 U. S. 102 (1945).The Kozminskis were convicted under § 241 for conspiracy to interfere with the Thirteenth Amendment guarantee against involuntary servitude. Applying the analysis set out in Price and Guest, our task is to ascertain the precise definition of that crime by looking to the scope of the Thirteenth Amendment prohibition of involuntary servitude specified in our prior decisions. Page 487 U. S. 942The Thirteenth Amendment declares that"[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."The Amendment is "self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances," Civil Rights Cases, 109 U. S. 3, 109 U. S. 20 (1883), and thus establishes a constitutional guarantee that is protected by § 241. See Price, supra, at 383 U. S. 805. The primary purpose of the Amendment was to abolish the institution of African slavery as it had existed in the United States at the time of the Civil War, but the Amendment was not limited to that purpose; the phrase "involuntary servitude" was intended to extend"to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results."Butler v. Perry, 240 U. S. 328, 240 U. S. 332 (1916). See also Robertson v. Baldwin, 165 U. S. 275, 165 U. S. 282 (1897); 83 U. S. 16 Wall. 36, 83 U. S. 69 (1873).While the general spirit of the phrase "involuntary servitude" is easily comprehended, the exact range of conditions it prohibits is harder to define. The express exception of involuntary servitude imposed as a punishment for crime provides some guidance. The fact that the drafters felt it necessary to exclude this situation indicates that they thought involuntary servitude includes at least situations in which the victim is compelled to work by law. Moreover, from the general intent to prohibit conditions "akin to African slavery," see Butler v. Perry, supra, at 240 U. S. 332-333, as well as the fact that the Thirteenth Amendment extends beyond state action, compare U.S.Const., Amdt. 14, § 1, we readily can deduce an intent to prohibit compulsion through physical coercion.This judgment is confirmed when we turn to our previous decisions construing the Thirteenth Amendment. Looking behind the broad statements of purpose to the actual holdings, Page 487 U. S. 943 we find that, in every case in which this Court has found a condition of involuntary servitude, the victim had no available choice but to work or be subject to legal sanction. In Clyatt v. United States, 197 U. S. 207 (1905), for example, the Court recognized that peonage -- a condition in which the victim is coerced by threat of legal sanction to work off a debt to a master -- is involuntary servitude under the Thirteenth Amendment. Id. at 197 U. S. 215, 197 U. S. 218. Similarly, in United States v. Reynolds, 235 U. S. 133 (1914), the Court held that "[c]ompulsion of . . . service by the constant fear of imprisonment under the criminal laws" violated "rights intended to be secured by the Thirteenth Amendment." Id. at 235 U. S. 146, 235 U. S. 150. In that case, the Court struck down a criminal surety system under which a person fined for a misdemeanor offense could contract to work for a surety who would, in turn, pay the convict's fine to the State. The critical feature of the system was that breach of the labor contract by the convict was a crime. The convict was thus forced to work by threat of criminal sanction. The Court has also invalidated state laws subjecting debtors to prosecution and criminal punishment for failing to perform labor after receiving an advance payment. Pollock v. Williams, 322 U. S. 4 (1944); Taylor v. Georgia, 315 U. S. 25 (1942); Bailey v. Alabama, 219 U. S. 219 (1911). The laws at issue in these cases made failure to perform services for which money had been obtained prima facie evidence of intent to defraud. The Court reasoned that"the State could not avail itself of the sanction of the criminal law to supply the compulsion [to enforce labor] any more than it could use or authorize the use of physical force."Bailey, supra, at 219 U. S. 244.Our precedents reveal that not all situations in which labor is compelled by physical coercion or force of law violate the Thirteenth Amendment. By its terms, the Amendment excludes involuntary servitude imposed as legal punishment for a crime. Similarly, the Court has recognized that the prohibition against involuntary servitude does not prevent the Page 487 U. S. 944 State or Federal Governments from compelling their citizens, by threat of criminal sanction, to perform certain civic duties. See Hurtado v. United States, 410 U. S. 578, 410 U. S. 589, n. 11 (1973) (jury service); Selective Draft Law Cases, 245 U. S. 366, 245 U. S. 390 (1918) (military service); Butler v. Perry, 240 U. S. 328 (1916) (roadwork). Moreover, in Robertson v. Baldwin, 165 U. S. 275 (1897), the Court observed that the Thirteenth Amendment was not intended to apply to "exceptional" cases well established in the common law at the time of the Thirteenth Amendment, such as "the right of parents and guardians to the custody of their minor children or wards," id. at 165 U. S. 282, or laws preventing sailors who contracted to work on vessels from deserting their ships. Id. at 165 U. S. 288.Putting aside such exceptional circumstances, none of which are present in this case, our precedents clearly define a Thirteenth Amendment prohibition of involuntary servitude enforced by the use or threatened use of physical or legal coercion. The guarantee of freedom from involuntary servitude has never been interpreted specifically to prohibit compulsion of labor by other means, such as psychological coercion. We draw no conclusions from this historical survey about the potential scope of the Thirteenth Amendment. Viewing the Amendment, however, through the narrow window that is appropriate in applying § 241, it is clear that the Government cannot prove a conspiracy to violate rights secured by the Thirteenth Amendment without proving that the conspiracy involved the use or threatened use of physical or legal coercion.BSection 1584 authorizes criminal punishment of"[w]hoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude any other person for any term."This is our first occasion to consider the reach of this statute. The pivotal phrase, "involuntary servitude," clearly was borrowed Page 487 U. S. 945 from the Thirteenth Amendment. Congress' use of the constitutional language in a statute enacted pursuant to its constitutional authority to enforce the Thirteenth Amendment guarantee makes the conclusion that Congress intended the phrase to have the same meaning in both places logical, if not inevitable. In the absence of any contrary indications, we therefore give effect to congressional intent by construing "involuntary servitude" in a way consistent with the understanding of the Thirteenth Amendment that prevailed at the time of § 1584's enactment. See United States v. Shackney, 333 F.2d 475 (CA2 1964) (Friendly, J.).Section 1584 was enacted as part of the 1948 revision to the Criminal Code. At that time, all of the Court's decisions identifying conditions of involuntary servitude had involved compulsion of services through the use or threatened use of physical or legal coercion. See, e.g., Clyatt v. United States, supra; United States v. Reynolds, supra; Pollock v. Williams, supra; Bailey v. Alabama, supra. By employing the constitutional language, Congress apparently was focusing on the prohibition of comparable conditions.The legislative history of § 1584 confirms this conclusion and undercuts the Government's claim that Congress had a broader concept of involuntary servitude in mind. No significant legislative history accompanies the 1948 enactment of § 1584; the statute was adopted as part of a general revision of the Criminal Code. The 1948 version of § 1584 was a consolidation, however, of two earlier statutes: the Slave Trade statute, as amended in 1909, formerly 18 U.S.C. § 423 (1940 ed.), and the 1874 Padrone statute, formerly 18 U.S.C. § 446 (1940 ed.). There are some indications that § 1584 was intended to have the same substantive reach as these statutes. See, e.g., A. Holtzoff, Preface to Title 18 U.S.C.A. (1969) ("In general, with a few exceptions, the Code does not attempt to change existing law"); Revision of Titles 18 and 28 of the United States Code: Hearings on H.R. 1600 and H.R. 2055 before Subcommittee No. 1 of the Page 487 U. S. 946 House Committee on the Judiciary, 80th Cong., 1st Sess., 13-14 (1947) (statement of advisory committee member Justin Miller). But see United States v. Shackney, 333 F.2d at 482 (viewing changes made in the course of consolidation as significant and § 1584 as positive law). Whether or not § 1584 was intended to track these earlier statutes exactly, it was most assuredly not intended to work a radical change in the law. We therefore review the legislative history of the Slave Trade statute and the Padrone statute to inform our construction of § 1584.The original Slave Trade statute authorized punishment of persons who"hold, sell, or otherwise dispose of any . . . negro, mulatto, or person of colour, so brought [into the United States] as a slave, or to be held to service or labour."Act of Apr. 20, 1818, ch. 91, § 6, 3 Stat. 452. This statute was one of several measures passed in the early 19th century for the purpose of ending the African slave trade. A 1909 amendment removed the racial restriction, extending the statute to the holding of "any person" as a slave. This revision, however, left unchanged that portion of the statute describing the condition under which such persons were held. See 42 Cong.Rec. 1114 (1908). The Government attempts to draw a contrary conclusion from a comment by Senator Heyburn to the effect that the 1909 amendment was intended to protect vulnerable people who were brought into the United States for labor or for immoral purposes. Id. at 1115. This comment is inconclusive, however. Other Senators expressly disagreed with the view that the elimination of the racial restriction changed the meaning of the word "slavery." See id. at 1114-1115. Moreover, the 1909 reenactment of the Slave Trade statute was part of a general codification of the federal penal laws, which Senator Heyburn himself stated was "in no instance to change the practice of the law." Id. at 2226. Thus, we conclude that nothing in the history of the Slave Trade statute suggests that it was intended to extend Page 487 U. S. 947 to conditions of servitude beyond those applied to slaves, i.e., physical or legal coercion.The other precursor of § 1584, the Padrone statute, reflects a similarly limited scope. The "padrones" were men who took young boys away from their families in Italy, brought them to large cities in the United States, and put them to work as street musicians or beggars. Congress enacted the Padrone statute in 1874 "to prevent [this] practice of enslaving, buying, selling, or using Italian children." 2 Cong.Rec. 4443 (1874) (Rep. Cessna). The statute provided that"whoever shall knowingly and wilfully bring into the United States . . . any person inveigled or forcibly kidnapped in any other country, with intent to hold such person . . . in confinement or to any involuntary service, and whoever shall knowingly and wilfully sell, or cause to be sold, into any condition of involuntary servitude, any other person for any term whatever, and every person who shall knowingly and wilfully hold to involuntary service any person so sold and bought, shall be deemed guilty of a felony."Act of June 23, 1874, ch. 464. 18 Stat. 251.This statute, too, was aimed only at compulsion of service through physical or legal coercion. To be sure, use of the term "inveigled" indicated that the statute was intended to protect persons brought into this country by other means. But the statute drew a careful distinction between the manner in which persons were brought into the United States and the conditions in which they were subsequently held, which are expressly identified as "confinement" or "involuntary servitude." Our conclusion that Congress believed these terms to be limited to situations involving physical or legal coercion is confirmed when we examine the actual physical conditions facing the victims of the padrone system. These young children were literally stranded in large, hostile cities in a foreign country. They were given no education or other assistance toward self-sufficiency. Without such assistance, Page 487 U. S. 948 without family, and without other sources of support, these children had no actual means of escaping the padrones' service; they had no choice but to work for their masters or risk physical harm. The padrones took advantage of the special vulnerabilities of their victims, placing them in situations where they were physically unable to leave.The history of the Padrone statute reflects Congress' view that a victim's age or special vulnerability may be relevant in determining whether a particular type or a certain degree of physical or legal coercion is sufficient to hold that person to involuntary servitude. For example, a child who is told he can go home late at night in the dark through a strange area may be subject to physical coercion that results in his staying, although a competent adult plainly would not be. Similarly, it is possible that threatening an incompetent with institutionalization or an immigrant with deportation could constitute the threat of legal coercion that induces involuntary servitude, even though such a threat made to an adult citizen of normal intelligence would be too implausible to produce involuntary servitude. But the Padrone statute does not support the Court of Appeals' conclusion that involuntary servitude can exist absent the use or threatened use of physical or legal coercion to compel labor. Moreover, far from broadening the definition of involuntary servitude for immigrants, children, or mental incompetents, § 1584 eliminated any special distinction among, or protection of, special classes of victims.Thus, the language and legislative history of § 1584 both indicate that its reach should be limited to cases involving the compulsion of services by the use or threatened use of physical or legal coercion. Congress chose to use the language of the Thirteenth Amendment in § 1584, and this was the scope of that constitutional provision at the time § 1584 was enacted. Page 487 U. S. 949CThe Government has argued that we should adopt a broad construction of "involuntary servitude," which would prohibit the compulsion of services by any means that, from the victim's point of view, either leaves the victim with no tolerable alternative but to serve the defendant or deprives the victim of the power of choice. Under this interpretation, involuntary servitude would include compulsion through psychological coercion as well as almost any other type of speech or conduct intentionally employed to persuade a reluctant person to work.This interpretation would appear to criminalize a broad range of day-to-day activity. For example, the Government conceded at oral argument that, under its interpretation, § 241 and § 1584 could be used to punish a parent who coerced an adult son or daughter into working in the family business by threatening withdrawal of affection. Tr. of Oral Arg. 12. It has also been suggested that the Government's construction would cover a political leader who uses charisma to induce others to work without pay or a religious leader who obtains personal services by means of religious indoctrination. See Brief in Opposition 4; Brief for the International Society for Krishna Consciousness of California, Inc., as Amicus Curiae 25. As these hypotheticals suggest, the Government's interpretation would delegate to prosecutors and juries the inherently legislative task of determining what type of coercive activities are so morally reprehensible that they should be punished as crimes. It would also subject individuals to the risk of arbitrary or discriminatory prosecution and conviction.Moreover, as the Government would interpret the statutes, the type of coercion prohibited would depend entirely upon the victim's state of mind. Under such a view, the statutes would provide almost no objective indication of the conduct or condition they prohibit, and thus would fail to provide fair notice to ordinary people who are required to conform Page 487 U. S. 950 their conduct to the law. The Government argues that any such difficulties are eliminated by a requirement that the defendant harbor a specific intent to hold the victim in involuntary servitude. But in light of the Government's failure to give any objective content to its construction of the phrase "involuntary servitude," this specific intent requirement amounts to little more than an assurance that the defendant sought to do "an unknowable something." Screws v. United States, 325 U.S. at 325 U. S. 105.In short, we agree with Judge Friendly's observation that"[t]he most ardent believer in civil rights legislation might not think that cause would be advanced by permitting the awful machinery of the criminal law to be brought into play whenever an employee asserts that his will to quit has been subdued by a threat which seriously affects his future welfare, but as to which he still has a choice, however painful."United States v. Schackney, 333 F.2d at 487. Accordingly, we conclude that Congress did not intend § 1584 to encompass the broad and undefined concept of involuntary servitude urged upon us by the Government.JUSTICE BRENNAN would hold that § 1584 prohibits not only the use or threatened use of physical or legal coercion, but also any means of coercion "that actually succeeds in reducing the victim to a condition of servitude resembling that in which slaves were held before the Civil War." Post at 487 U. S. 962. This formulation would be useful if it were accompanied by a recognition that the use or threat of physical or legal coercion was a necessary incident of pre-Civil War slavery, and thus of the "slave-like' conditions of servitude Congress most clearly intended to eradicate." Post at 487 U. S. 961. Instead, finding no objective factor to be necessary to a "slave-like condition," JUSTICE BRENNAN would delegate to prosecutors and juries the task of determining what working conditions are so oppressive as to amount to involuntary servitude. Page 487 U. S. 951Such a definition of involuntary servitude is theoretically narrower than that advocated by the Government, but it suffers from the same flaws. The ambiguity in the phrase "slave-like conditions" is not merely a question of degree, but instead concerns the very nature of the conditions prohibited. Although we can be sure that Congress intended to prohibit "slave-like' conditions of servitude," we have no indication that Congress thought that conditions maintained by means other than by the use or threatened use of physical or legal coercion were "slave-like." Whether other conditions are so intolerable that they, too, should be deemed to be involuntary is a value judgment that we think is best left for Congress.JUSTICE STEVENS concludes that Congress intended to delegate to the judiciary the inherently legislative task of defining "involuntary servitude" through case-by-case adjudication. Post at 487 U. S. 965. Neither the language nor the legislative history of § 1584 provides an adequate basis for such a conclusion. Reference to the Sherman Act does not advance JUSTICE STEVENS' argument, for that Act does not authorize courts to develop standards for the imposition of criminal punishment. To the contrary, this Court determined that the objective standard to be used in deciding whether conduct violates the Sherman Act -- the rule of reason -- was evinced by the language and the legislative history of the Act. Standard Oil Co. v. United States, 221 U. S. 1, 221 U. S. 60 (1911). It is one thing to recognize that some degree of uncertainty exists whenever judges and juries are called upon to apply substantive standards established by Congress; it would be quite another thing to tolerate the arbitrariness and unfairness of a legal system in which the judges would develop the standards for imposing criminal punishment on a case-by-case basis.Sound principles of statutory construction lead us to reject the amorphous definitions of involuntary servitude proposed by the Government and by JUSTICES BRENNAN and STEVENS. Page 487 U. S. 952 By construing § 241 and § 1584 to prohibit only compulsion of services through physical or legal coercion, we adhere to the time-honored interpretive guideline that uncertainty concerning the ambit of criminal statutes should be resolved in favor of lenity. See, e.g., McNally v. United States, 483 U. S. 350 (1987); Dowling v. United States, 473 U. S. 207, 473 U. S. 229 (1985); Liparota v. United States, 471 U. S. 419, 471 U. S. 427 (1985); Rewis v. United States, 401 U. S. 808, 401 U. S. 812 (1971). The purposes underlying the rule of lenity -- to promote fair notice to those subject to the criminal laws, to minimize the risk of selective or arbitrary enforcement, and to maintain the proper balance between Congress, prosecutors, and courts -- are certainly served by its application in this case.IIIAbsent change by Congress, we hold that, for purposes of criminal prosecution under § 241 or § 1584, the term "involuntary servitude" necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process. This definition encompasses those cases in which the defendant holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion. Our holding does not imply that evidence of other means of coercion, or of poor working conditions, or of the victim's special vulnerabilities is irrelevant in a prosecution under these statutes. As we have indicated, the vulnerabilities of the victim are relevant in determining whether the physical or legal coercion or threats thereof could plausibly have compelled the victim to serve. In addition, a trial court could properly find that evidence of other means of coercion or of extremely poor working conditions is relevant to corroborate disputed evidence regarding the use or threatened use of physical or legal coercion, the defendant's intention in using such means, or the causal effect of such conduct. We hold only that the jury Page 487 U. S. 953 must be instructed that compulsion of services by the use or threatened use of physical or legal coercion is a necessary incident of a condition of involuntary servitude.The District Court's instruction on involuntary servitude, which encompassed other means of coercion, may have caused the Kozminskis to be convicted for conduct that does not violate either statute. Accordingly, we agree with the Court of Appeals that the convictions must be reversed and the case remanded for a new trial.We disagree with the Court of Appeals to the extent it determined that a defendant could violate § 241 or § 1584 by means other than the use or threatened use of physical or legal coercion where the victim is a minor, an immigrant, or one who is mentally incompetent. But because we believe the record contains sufficient evidence of physical or legal coercion to enable a jury to convict the Kozminskis even under the stricter standard of involuntary servitude that we announce today, we agree with the Court of Appeals that a judgment of acquittal is unwarranted.The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Kozminski, 487 U.S. 931 (1988)United States v. KozminskiNo. 86-2000Argued February 23, 1988Decided June 29, 1988487 U.S. 931SyllabusAfter two mentally retarded men were found laboring on respondents' farm in poor health, in squalid conditions, and in relative isolation from the rest of society, respondents were charged with violating 18 U.S.C. § 241 by conspiring to prevent the men from exercising their Thirteenth Amendment right to be free from involuntary servitude, and with violating 18 U.S.C. § 1584 by knowingly holding the men in involuntary servitude. At respondents' trial in Federal District Court, the Government's evidence indicated, inter alia, that the two men worked on the farm seven days a week, often 17 hours a day, at first for $15 per week and eventually for no pay, and that, in addition to actual or threatened physical abuse and a threat to reinstitutionalize one of the men if he did not do as he was told, respondents had used various forms of psychological coercion to keep the men on the farm. The court instructed the jury that, under both statutes, involuntary servitude may include situations involving any"means of compulsion . . . sufficient in kind and degree to subject a person having the same general station in life as the alleged victims to believe they had no reasonable means of escape and no choice except to remain in the service of the employer."The jury found respondents guilty, and the court imposed sentences. However, the Court of Appeals reversed and remanded for a new trial, concluding that the trial court's definition of involuntary servitude was too broad, in that it included general psychological coercion. The court held that involuntary servitude exists only when the master subjects the servant to (1) threatened or actual physical force, (2) threatened or actual state-imposed legal coercion, or (3) fraud or deceit where the servant is a minor or an immigrant or is mentally incompetent.Held: For purposes of criminal prosecution under § 241 or § 1584, the term "involuntary servitude" necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury or by the use or threat of coercion through law or the legal process. This definition encompasses cases in which the defendant holds the victim in servitude by placing him or her in fear of such physical restraint or injury or legal coercion. Pp. 487 U. S. 939-953.(a) The Government cannot prove a § 241 conspiracy to violate rights secured by the Thirteenth Amendment without proving that the conspiracy Page 487 U. S. 932 involved the use or threatened use of physical or legal coercion. The fact that the Amendment excludes from its prohibition involuntary servitude imposed "as a punishment for crime whereof the party shall have been duly convicted" indicates that the Amendment's drafters thought that involuntary servitude generally includes situations in which the victim is compelled to work by law. Moreover, the facts that the phrase "involuntary servitude" was intended "to cover those forms of compulsory labor akin to African slavery," Butler v. Perry, 240 U. S. 328, 240 U. S. 332, and that the Amendment extends beyond state action, cf. U.S.Const., Amdt. 14, § 1, imply an intent to prohibit compulsion through physical coercion. These assessments are confirmed by this Court's decisions construing the Amendment, see, e.g., Clyatt v. United States, 197 U. S. 207, which have never interpreted the guarantee of freedom from involuntary servitude to specifically prohibit compulsion of labor by other means, such as psychological coercion. Pp. 487 U. S. 941-944.(b) The language and legislative history of § 1584 and its statutory progenitors indicate that its reach should be limited to cases involving the compulsion of services by the use or threatened use of physical or legal coercion. That is the understanding of the Thirteenth Amendment's "involuntary servitude" phrase that prevailed at the time of § 1584's enactment and, since Congress clearly borrowed that phrase in enacting § 1584, the phrase should have the same meaning in both places absent any contrary indications. Section 1584's history undercuts the contention that Congress had a broader concept of involuntary servitude in mind when it enacted the statute, and does not support the Court of Appeals' conclusion that immigrants, children, and mental incompetents are entitled to any special protection. Pp. 487 U. S. 944-948.(c) The Government's broad construction of "involuntary servitude" -- which would prohibit the compulsion of services by any type of speech or intentional conduct that, from the victim's point of view, either leaves the victim with no tolerable alternative but to serve the defendant or deprives the victim of the power of choice -- could not have been intended by Congress. That interpretation would appear to criminalize a broad range of day-to-day activity; would delegate to prosecutors and juries the inherently legislative task of determining what type of coercive activities are so morally reprehensible that they should be punished as crimes; would subject individuals to the risk of arbitrary or discriminatory prosecution and conviction; and would make the type of coercion prohibited depend entirely on the victim's state of mind, thereby depriving ordinary people of fair notice of what is required of them. These defects are not cured by the Government's ambiguous specific intent requirement. JUSTICE BRENNAN's position -- that § 1584 prohibits any means of coercion that actually succeeds in reducing the victim to a condition Page 487 U. S. 933 of servitude resembling that in which antebellum slaves were held -- although theoretically narrower than the Government's interpretation, suffers from the same flaws. JUSTICE STEVENS' conclusion that Congress intended to delegate to the judiciary the task of defining "involuntary servitude" on a case-by-case basis is unsupported, and could lead to the arbitrary and unfair imposition of criminal punishment. The purposes underlying the rule of lenity for interpreting ambiguous statutory provisions are served by construing § 241 and § 1584 to prohibit only compulsion of services through physical or legal coercion. Pp. 487 U. S. 949-952.(d) The latter construction does not imply that evidence of other means of coercion, or of extremely poor working conditions, or of the victim's special vulnerabilities, is irrelevant. The victim's vulnerabilities are relevant in determining whether the physical or legal coercion or threats thereof could plausibly have compelled the victim to serve. Moreover, a trial court could properly find that evidence of other means of coercion or of poor working conditions is relevant to corroborate disputed evidence regarding the use or threats of physical or legal coercion, the defendant's intent in using such means, or the causal effect of such conduct. Pp. 487 U. S. 952-953.(e) Since the District Court's jury instructions encompassed means of coercion other than actual or threatened physical or legal coercion, the instructions may have caused respondents to be convicted for conduct that does not violate § 241 or § 1584. The convictions must therefore be reversed. Because the record contains sufficient evidence of physical or legal coercion to permit a conviction, however, a judgment of acquittal is unwarranted, and the case is remanded for further proceedings consistent with this opinion. P. 487 U. S. 953.821 F.2d 1186, affirmed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 487 U. S. 953. STEVENS, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 487 U. S. 965. Page 487 U. S. 934

1979_79-838

MR. JUSTICE BRENNAN delivered the opinion of the Court.The case presents two related questions arising under 42 U.S.C. §§1983 and 1988. Respondents brought this suit in the Maine Superior Court alleging that petitioners, the State of Maine and its Commissioner of Human Services, violated §1983 by depriving respondents of welfare benefits Page 448 U. S. 3 to which they were entitled under the federal Social Security Act, specifically 42 U.S.C. § 602(a)(7). The petitioners present two issues: (1) whether §1983 encompasses claims based on purely statutory violations of federal law, and (2) if so, whether attorney's fees under §1988 may be awarded to the prevailing party in such an action. [Footnote 1]IRespondents, Lionel and Joline Thiboutot, are married and have eight children, three of whom are Lionel's by a previous marriage. The Maine Department of Human Services notified Lionel that, in computing the Aid to Families with Dependent Children (AFDC) benefits to which he was entitled for the three children exclusively his, it would no longer make allowance for the money spent to support the other five children, even though Lionel is legally obligated to support them. Respondents, challenging the State's interpretation of 42 U.S.C. § 602(a)(7), exhausted their state administrative remedies, and then sought judicial review of the administrative action in the State Superior Court. By amended complaint, respondents also claimed relief under § 1983 for themselves and others similarly situated. The Superior Court's judgment enjoined petitioners from enforcing the challenged rule and ordered them to adopt new regulations, to notify class members of the new regulations, and to pay the correct amounts retroactively to respondents and prospectively to eligible class members. [Footnote 2] The court, however, denied respondents' motion for attorney's fees. The Supreme Judicial Court of Maine, 405 A.2d 230 (1979), concluded that respondents Page 448 U. S. 4 had no entitlement to attorney's fees under state law, but were eligible for attorney's fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988. [Footnote 3] We granted certiorari. 444 U.S. 1042 (1980). We affirm.IISection 1983 provides:"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."(Emphasis added.) The question before us is whether the phrase "and laws," as used in § 1983, means what it says, or whether it should be limited to some subset of laws. Given that Congress attached no modifiers to the phrase, the plain language of the statute undoubtedly embraces respondents' claim that petitioners violated the Social Security Act.Even were the language ambiguous, however, any doubt as to its meaning has been resolved by our several cases suggesting, explicitly or implicitly, that the § 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law. Rosado v. Wyman, 397 U. S. 397 (1970), for example,"held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States."Edelman v. Jordan, 415 U. S. 651, 415 U. S. 675 (1974). Monell v. New York Page 448 U. S. 5 City Dept. of Social Services, 436 U. S. 658, 436 U. S. 700-701 (1978), as support for its conclusion that municipalities are "persons" under § 1983, reasoned that"there can be no doubt that § 1 of the Civil Rights Act [of 1871] was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights."Similarly, Owen v. City of Independence, 445 U. S. 622, 445 U. S. 649 (1980), in holding that the common law immunity for discretionary functions provided no basis for according municipalities a good faith immunity under § 1983, noted that a court "looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes." Mitchum v Foster, 407 U. S. 225, 407 U. S. 240, n. 30 (1972), and Lynch v. Household Finance Corp., 405 U. S. 538, 405 U. S. 543, n. 7 (1972), noted that § 1983's predecessor "was enlarged to provide protection for rights, privileges, or immunities secured by federal law." Greenwood v. Peacock, 384 U. S. 808, 384 U. S. 829-830 (1966), observed that, under § 1983, state"officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well."The availability of this alternative sanction helped support the holding that 28 U.S.C. § 1443(1) did not permit removal to federal court of a state prosecution in which the defense was that the state law conflicted with the defendants' federal rights. As a final example, Mr. Justice Stone, writing in Hague v. CIO, 307 U. S. 496, 307 U. S. 525-526 (1939), expressed the opinion that § 1983 was the product of an "exten[sion] to include rights, privileges and immunities secured by the laws of the United States as well as by the Constitution."While some might dismiss as dictum the foregoing statements, numerous and specific as they are, our analysis in several § 1983 cases involving Social Security Act (SSA) claims has relied on the availability of a § 1983 cause of action for statutory claims. Constitutional claims were also raised Page 448 U. S. 6 in these cases, providing a jurisdictional base, but the statutory claims were allowed to go forward, and were decided on the merits, under the court's pendent jurisdiction. In each of the following cases, § 1983 was necessarily the exclusive statutory cause of action because, as the Court held in Edelman v. Jordan, 415 U.S. at 415 U. S. 673-674; id. at 415 U. S. 690 (MARSHALL, J., dissenting), the SSA affords no private right of action against a State. Miller v. Youakim, 440 U. S. 125, 440 U. S. 132, and n. 13 (1979) (state foster care program inconsistent with SSA); Quern v. Mandley, 436 U. S. 725, 436 U. S. 729, and n. 3 (1978) (state emergency assistance program consistent with SSA); Van Lare v. Hurley, 421 U. S. 338 (1975) (state shelter allowance provisions inconsistent with SSA); Townsend v. Swank, 404 U. S. 282 (1971) (state prohibition against AFDC aid for college students inconsistent with SSA); King v. Smith, 392 U. S. 309, 392 U. S. 311 (1968) (state cohabitation prohibition inconsistent with SSA). Cf. Hagans v. Lavine, 415 U. S. 528, 415 U. S. 532-533, 415 U. S. 543 (1974) (District Court had jurisdiction to decide whether state recoupment provisions consistent with SSA); Carter v. Stanton, 405 U. S. 669, 405 U. S. 670 (1972) (District Court had jurisdiction to decide whether state absent-spouse rule consistent with SSA).In the face of the plain language of § 1983 and our consistent treatment of that provision, petitioners nevertheless persist in suggesting that the phrase "and laws" should be read as limited to civil rights or equal protection laws. [Footnote 4] Petitioners suggest that, when § 1 of the Civil Rights Act of 1871, 17 Stat. 13, which accorded jurisdiction and a remedy for deprivations of rights secured by "the Constitution of the United States," was divided by the 1874 statutory revision into a remedial section, Rev.Stat. § 1979, and jurisdictional Page 448 U. S. 7 sections, Rev.Stat. §§ 563(12) and 629(16), Congress intended that the same change made in § 629(16) be made as to each of the new sections as well. Section 629(16), the jurisdictional provision for the circuit courts and the model for the current jurisdictional provision, 28 U.S.C. § 1343(3), applied to deprivations of rights secured by "the Constitution of the United States, or of any right secured by any law providing for equal rights." On the other hand, the remedial provision, the predecessor of § 1983, was expanded to apply to deprivations of rights secured by "the Constitution and laws," and § 563(12), the provision granting jurisdiction to the district courts, to deprivations of rights secured by "the Constitution of the United States, or of any right secured by any law of the United States."We need not repeat at length the detailed debate over the meaning of the scanty legislative history concerning the addition of the phrase "and laws." See Chapman v. Houston Welfare Rights Organization, 441 U. S. 600 (1979); id. at 441 U. S. 623 (POWELL, J., concurring); id. at 441 U. S. 646 (WHITE, J., concurring in judgment); id. at 441 U. S. 672 (STEWART, J., dissenting). One conclusion which emerges clearly is that the legislative history does not permit a definitive answer. Id. at 441 U. S. 610-611; id. at 441 U. S. 674 (STEWART, J., dissenting). There is no express explanation offered for the insertion of the phrase "and laws." On the one hand, a principal purpose of the added language was to"ensure that federal legislation providing specifically for equality of rights would be brought within the ambit of the civil action authorized by that statute."Id. at 448 U. S. 637 (POWELL, J., concurring). On the other hand, there are no indications that that was the only purpose, and Congress' attention was specifically directed to this new language. Representative Lawrence, in a speech to the House of Representatives that began by observing that the revisers had very often changed the meaning of existing statutes, 2 Cong.Rec. 825 (1874), referred to the civil rights statutes as "possibly [showing] verbal Page 448 U. S. 8 modifications bordering on legislation," id. at 827. He went on to read to Congress the original and revised versions. In short, Congress was aware of what it was doing, and the legislative history does not demonstrate that the plain language was not intended. [Footnote 5] Petitioners' arguments amount to the claim that, had Congress been more careful, and had it fully thought out the relationship among the various sections, [Footnote 6] it might have acted differently. That argument, however, can best be addressed to Congress, which, it is important to note, has remained quiet in the face of our many pronouncements on the scope of § 1983. Cf. TVA v. Hill, 437 U. S. 153 (1978).IIIPetitioners next argue that, even if this claim is within § 1983, Congress did not intend statutory claims to be covered by the Civil Rights Attorney's Fees Awards Act of 1976, Page 448 U. S. 9 which added the following sentence to 42 U.S.C. § 1988 (emphasis added):"In any action or proceeding to enforce a provision of sections 1981, 1982, 198, 1985, and 1986 of this title, title IX of Public Law 9318 [20 U.S.C. 1681 et seq.] or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."Once again, given our holding in 448 U. S. supra, the plain language provides an answer. The statute states that fees are available in any § 1983 action. Since we hold that this statutory action is properly brought under § 1983, and since § 1988 makes no exception for statutory § 1983 actions, § 1988 plainly applies to this suit. [Footnote 7]The legislative history is entirely consistent with the plain language. As was true with § 1983, a major purpose of the Civil Rights Attorney's Fees Awards Act was to benefit those claiming deprivations of constitutional and civil rights. Principal sponsors of the measure in both the House and the Senate, however, explicitly stated during the floor debates that the statute would make fees available more broadly. Representative Page 448 U. S. 10 Drinan explained that the Act would apply to § 1983, and that § 1983"authorizes suits against State and local officials based upon Federal statutory, as well as constitutional, rights. For example, Blue against Craig, 505 F.2d 830 (4th Cir.1974)."122 Cong.Rec. 35122 (1976). [Footnote 8] Senator Kennedy also included an SSA case as an example of the cases "enforc[ing] the rights promised by Congress or the Constitution" which the Act would embrace. [Footnote 9] Id. at 33314. [Footnote 10] In short, there can be no question that Congress passed the Fees Act anticipating that it would apply to statutory § 1983 claims.Several States, participating as amici curiae, argue that, even if § 1988 applies to § 1983 claims alleging deprivations of statutory rights, it does not apply in state courts. There is no merit to this argument. [Footnote 11] As we have said above, Martinez Page 448 U. S. 11 v. California, 444 U. S. 277 (1980), held that § 1983 actions may be brought in state courts. Representative Drinan described the purpose of the Civil Rights Attorney's Fees Awards Act as "authoriz[ing] the award of a reasonable attorney's fee in actions brought in State or Federal courts." 122 Cong.Rec. 35122 (1976). And Congress viewed the fees authorized by § 1988 as "an integral part of the remedies necessary to obtain" compliance with § 1983. S.Rep. No. 94-1011, p. 5 (1976). It follows from this history and from the Supremacy Clause that the fee provision is part of the § 1983 remedy whether the action is brought in federal or state court. [Footnote 12]Affirmed

U.S. Supreme CourtMaine v. Thiboutot, 448 U.S. 1 (1980)Maine v. ThiboutotNo. 79-838Argued April 22, 1980Decided June 25, 1980448 U.S. 1SyllabusHeld:1. Title 42 U.S.C. §1983 -- which provides that anyone who, under color of state statute, regulation, or custom deprives another of any rights, privileges, or immunities "secured by the Constitution and laws" shall be liable to the injured party -- encompasses claims based on purely statutory violations of federal law, such as respondents' state court claim that petitioners had deprived them of welfare benefits to which they were entitled under the federal Social Security Act. Given that Congress attached no modifiers to the phrase "and laws," the plain language of the statute embraces respondents' claim, and even were the language ambiguous, this Court's earlier decisions, including cases involving Social Security Act claims, explicitly or implicitly suggest that the §1983 remedy broadly encompasses violations of federal statutory as well as constitutional law. Cf., e.g., Rosado v. Wyman, 397 U. S. 397; Edelman v. Jordan, 415 U. S. 651; Monell v. New York City Dept. of Social Services, 436 U. S. 658. Pp. 448 U. S. 4-8.2. In view of its plain language and legislative history, the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. §1988 -- which provides that attorney's fees may be awarded to the prevailing party (other than the United States) in "any action . . . to enforce" a provision of §1983, inter alia, and which makes no exception for statutory §1983 actions -- authorizes the award of attorney's fees in such actions. Page 448 U. S. 2 Moreover, it follows from the legislative history and from the Supremacy Clause that the fee provision is part of the §1983 remedy whether the action is brought in a federal court or, as was the instant action, in a state court. Pp. 448 U. S. 11.405 A.2d 230, affirmed.BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 448 U. S. 11.

1971_70-113

MR. JUSTICE DOUGLAS delivered the opinion of the Court.This is a direct appeal under § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29, from a judgment of the District Court (286 F. Supp. 407, 315 F.Supp. 372), holding that Ford Motor Co. (Ford) violated § 7 Of the Celler-Kefauver Antimerger Act [Footnote 1] by acquiring certain assets from Electric Autolite Co. (Autolite). The assets included the Autolite trade name, Autolite's only Page 405 U. S. 565 spark plug plant in this country (located at New Fostoria, Ohio), a battery plant, and extensive rights to its nationwide distribution organization for spark plugs and batteries. The present appeal [Footnote 2] is limited to that portion of the judgment relating to spark plugs and ordering Ford to divest the Autolite name and the spark plug plant. The ancillary injunctive provisions are also here for review.IFord, the second-leading producer of automobiles, General Motors, and Chrysler together account for 90% of the automobile production in this country. Though Ford makes a substantial portion of its parts, prior to its acquisition of the assets of Autolite, it did not make spark plugs or batteries, but purchased those parts from independent companies.The original equipment of new cars, insofar as spark plugs are concerned, is conveniently referred to as the OE tie. The replacement market is referred to as the aftermarket. The independents, including Autolite, furnished the auto manufacturers with OE plugs at cost or less, about six cents a plug, and they continued to sell at that price even when their costs increased threefold. The independents sought to recover their losses on OE sales by profitable sales in the aftermarket, where the requirement of each vehicle during its lifetime is about five replacement plug sets. By custom and practice among mechanics, the aftermarket plug is usually the same brand as the OE plug. See generally Hansen & Smith, The Champion Case: What Is Competition?, 29 Harv.Bus.Rev. 89 (1961).Ford was anxious to participate in this aftermarket, and, after various efforts not relevant to the present case, concluded that its effective participation in the aftermarket Page 405 U. S. 566 required"an established distribution system with a recognized brand name, a full line of high volume service parts, engineering experience in replacement designs, low volume production facilities and experience, and the opportunity to capitalize on an established car population."Ford concluded it could develop such a division of its own, but decided that course would take from five to eight years and be more costly than an acquisition. To make a long story short, it acquired certain assets of Autolite in 1961.General Motors had previously entered the spark plug manufacturing field, making the AC brand. The two other major domestic producers were independents -- Autolite and Champion. When Ford acquired Autolite, whose share of the domestic spark plug market was about 15%, only one major independent was left and that was Champion, whose share of the domestic market declined from just under 50% in 1960 to just under 40% in 1964 and to about 33% in 1966. At the time of the acquisition, General Motors' market share was about 30%. There were other small manufacturers of spark plugs, but they had no important share of the market. [Footnote 3]The District Court held that the acquisition of Autolite violated § 7 of the Celler-Kefauver Antimerger Act Page 405 U. S. 567 because its effect "may be substantially to lessen competition." [Footnote 4] It gave two reasons for its decision.First, prior to 1961, when Ford acquired Autolite it had a "pervasive impact on the aftermarket," 315 F. Supp. at 375, in that it was a moderating influence on Champion and on other companies derivatively. It explained that reason as follows:"An interested firm on the outside has a twofold significance. It may someday go in and set the stage for noticeable deconcentration. While it merely stays near the edge, it is a deterrent to current competitors. United States v. Penn-Olin Chemical Co., 378 U. S. 158 . . . (1964). This was Ford uniquely, as both a prime candidate to manufacture and the major customer of the dominant member of the oligopoly. Given the chance that Autolite would have been doomed to oblivion by defendant's grass-roots entry, which also would have destroyed Ford's soothing influence over replacement prices, Ford may well have been more useful as a potential than it Page 405 U. S. 568 would have been as a real producer, regardless how it began fabrication. Had Ford taken the internal expansion route, there would have been no illegality; not, however, because the result necessarily would have been commendable, but simply because that course has not been proscribed."286 F. Supp. at 441. See also FTC v. Procter & Gamble Co., 386 U. S. 568; United States v. Penn-Olin Chemical Co., 378 U. S. 158. Second, the District Court found that the acquisition marked "the foreclosure of Ford as a purchaser of about ten per cent of total industry output." 315 F. Supp. at 375. The District Court added:"In short, Ford's entry into the spark plug market by means of the acquisition of the factory in Fostoria and the trade name 'Autolite' had the effect of raising the barriers to entry into that market, as well as removing one of the existing restraints upon the actions of those in the business of manufacturing spark plugs.""It will also be noted that the number of competitors in the spark plug manufacturing industry closely parallels the number of competitors in the automobile manufacturing industry, and the barriers to entry into the auto industry are virtually insurmountable at present, and will remain so for the foreseeable future. Ford's acquisition of the Autolite assets, particularly when viewed in the context of the original equipment (OE) tie and of GM's ownership of AC, has the result of transmitting the rigidity of the oligopolistic structure of the automobile industry to the spark plug industry, thus reducing the chances of future deconcentration of the spark plug market by forces at work within that market."Ibid. Page 405 U. S. 569 See also FTC v. Consolidated Food Corp., 380 U. S. 592; Brown Shoe Co. v. United States, 370 U. S. 294; United States v. Du Pont & Co., 353 U. S. 586.We see no answer to that conclusion if the letter and spirit of the Celler-Kefauver Antimerger Act [Footnote 5] are to be honored. See United States v. Philadelphia National Bank, 374 U. S. 321, 374 U. S. 362-363; United States v. Penn-Olin Chemical Co., 378 U.S. at 378 U. S. 170-171; Brown Shoe Co. v. United States, 370 U.S. at 370 U. S. 311-323.It is argued, however, that the acquisition had some beneficial effect in making Autolite a more vigorous and Page 405 U. S. 570 effective competitor against Champion and General Motors than Autolite had been as an independent. But what we said in United States v. Philadelphia National Bank, supra, disposes of that argument. A merger is not saved from illegality under § 7, we said,"because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial. A value choice of such magnitude is beyond the ordinary limits of judicial competence, and, in any event, has been made for us already by Congress when it enacted the amended § 7. Congress determined to preserve our traditionally competitive economy. It therefore proscribed anticompetitive mergers, the benign and the malignant alike, fully aware, we must assume, that some price might have to be paid."374 U.S. at 374 U. S. 371.Ford argues that the acquisition left the marketplace with a greater number of competitors. To be sure, after Autolite sold its New Fostoria plant to Ford, it constructed another in Decatur, Alabama, which, by 1964, had 1.6% of the domestic business. Prior to the acquisition, however, there were only two major independent producers and only two significant purchasers of original equipment spark plugs. The acquisition thus aggravated an already oligopolistic market.As we indicated in Brown Shoe Co. v. United States, 370 U.S. at 370 U. S. 323-324:"The primary vice of a vertical merger or other arrangement tying a customer to a supplier is that, by foreclosing the competitors of either party from a segment of the market otherwise open to them, the arrangement may act as a 'clog on competition,' Standard Oil Co. of California v. United States, 337 U. S. 293, 337 U. S. 314, which 'deprive[s] . . . rivals of a fair opportunity to compete.' H.R.Rep. No. 1191, Page 405 U. S. 571 81st Cong., 1st Sess. 8. Every extended vertical arrangement, by its very nature, for at least a time, denies to competitors of the supplier the opportunity to compete for part or all of the trade of the customer-party to the vertical arrangement."Moreover, Ford made the acquisition in order to obtain a foothold in the aftermarket. Once established, it would have every incentive to perpetuate the OE tie, and thus maintain the virtually insurmountable barriers to entry to the aftermarket.IIThe main controversy here has been over the nature and degree of the relief to be afforded.During the year following the District Court's finding of a § 7 violation, the parties were unable to agree upon appropriate relief. The District Court then held nine days of hearings on the remedy and, after full consideration, concluded that divestiture and other relief were necessary.The OE tie, it held, was in many respects the key to the solution, since the propensity of the mechanic in a service station or independent garage is to select as a replacement the spark plug brand that the manufacturer installed in the car. The oligopolistic structure of the spark plug manufacturing industry encourages the continuance of that system. Neither GM nor Autolite sells private label plugs. It is obviously in the self-interest of OE plug manufacturers to discourage private brand sales and to encourage the OE tie. There are findings that the private brand sector of the spark plug market will grow substantially in the next decade because mass merchandisers are entering this market in force. They not only sell all brands over the counter, but also have service bays where many carry only spark plugs of their own proprietary brand. It is anticipated that, by 1980, Page 405 U. S. 572 the total private brand portion of the spark plug market may then represent 17% of the total aftermarket. The District Court added:"To the extent that the spark [plug] manufacturers are not owned by the auto makers, it seems clear that they will be more favorably disposed toward private brand sales and will compete more vigorously for such sales. Also, the potential entrant continues to have the chance to sell not only the private brand customer, but the auto maker as well."315 F. Supp. at 378.Accordingly, the decree(1) enjoined Ford for 10 years from manufacturing spark plugs,(2) ordered Ford for five years to purchase one-half of its total annual requirement of spark plugs from the divested plant under the "Autolite" name,(3) prohibited Ford for the same period from using its own trade names on plugs,(4) protected New Fostoria, the town where the Autolite plant is located, by requiring Ford to continue for 10 years its policy of selling spark plugs to its dealers at prices no less than its prevailing minimum suggested jobbers' selling price, [Footnote 6](5) protected employees of the New Fostoria plant by ordering Ford to condition its divestiture sale on the purchaser's assuming the existing wage and pension obligations and to offer employment to any employee displaced by a transfer of nonplug operations from the divested plant. [Footnote 7] Page 405 U. S. 573The relief in an antitrust case must be "effective to redress the violations" and "to restore competition." [Footnote 8] United States v. Du Pont & Co., 366 U. S. 316, 366 U. S. 326. The District Court is clothed with "large discretion" to fit the decree to the special needs of the individual case. International Salt Co. v. United States, 332 U. S. 392, 332 U. S. 401; United States v. Du Pont & Co., 353 U.S. at 353 U. S. 608; United States v. Crescent Amusement Co., 323 U. S. 173, 323 U. S. 185.Complete divestiture is particularly appropriate where asset or stock acquisitions violate the antitrust laws. United States v. Du Pont & Co., supra, at 366 U. S. 328-335; United States v. Crescent Amusement Co., supra, at 323 U. S. 189; Schine Chain Theatres v. United States, 334 U. S. 110, 334 U. S. 128; United States v. El Paso Gas Co., 376 U. S. 651.Divestiture is a start toward restoring the pre-acquisition situation. Ford once again will then stand as a large industry customer at the edge of the market with Page 405 U. S. 574 a renewed interest in securing favorable terms for its substantial plug purchases. Since Ford will again be a purchaser, it is expected that the competitive pressures that existed among other spark plug producers to sell to Ford will be re-created. The divestiture should also eliminate the anticompetitive consequences in the aftermarket flowing from the second largest automobile manufacturer's entry through acquisition into the spark plug manufacturing business.The divested plant is given an incentive to provide Ford with terms which will not only satisfy the 50% requirement provided for five years by the decree, but which, even after that period, may keep at least me of Ford's ongoing purchases. The divested plant is awarded at least a foothold in the lucrative aftermarket, and is provided an incentive to compete aggressively for that market.As a result of the acquisition of Autolite, the structure of the spark plug industry changed drastically, as already noted. Ford, which, before the acquisition, was the largest purchaser of spark plugs from the independent manufacturers, became a major manufacturer. The result was to foreclose to the remaining independent spark plug manufacturers the substantial segment of the market previously open to competitive selling, and to remove the significant procompetitive effects in the concentrated spark plug market that resulted from Ford's position on the edge of the market as a potential entrant.To permit Ford to retain the Autolite plant and name and to continue manufacturing spark plugs would perpetuate the anticompetitive effects of the acquisition. [Footnote 9] Page 405 U. S. 575The District Court rightly concluded that only divestiture would correct the condition caused by the unlawful acquisition.A word should be said about the other injunctive provisions. They are designed to give the divested plant an opportunity to establish its competitive position. The divested company needs time so it can obtain a foothold in the industry. The relief ordered should "cure the ill effects of the illegal conduct, and assure the public freedom from its continuance," United States v. United States Gypsum Co., 340 U. S. 76, 340 U. S. 88, and it necessarily must "fit the exigencies of the particular case." International Salt Co. v. United States, 332 U.S. at 332 U. S. 401. Moreover,"it is well settled that, once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor."United States v. Du Pont & Co., 366 U.S. at 366 U. S. 334.Ford concedes that,"[i]f New Fostoria is to survive, it must for the foreseeable future become and remain the OE supplier to Ford and secure and retain the benefits of such OE status in sales of replacement plugs."The ancillary measures ordered by the District Court are designed to allow Autolite to reestablish itself in the OE and replacement markets and to maintain it as a viable competitor until such time as forces already at work within the marketplace weaken the OE tie. Thus, Ford is prohibited for 10 years from manufacturing its own plugs. [Footnote 10] But, in five years, it can buy its plugs from any source and use its name on OE plugs. Page 405 U. S. 576But, prior to that time, Ford cannot use or market plugs bearing the Ford trade name. In view of the importance of the OE tie, if Ford were permitted to use its own brand name during the initial five-year period, there would be a tendency to impose the oligopolistic structure of the automotive industry on the replacement parts market, and the divested enterprise might well be unable to become a strong competitor. Ford argues that any prohibition against the use of its name is permissible only where the name deceives or confuses the public. [Footnote 11] But this is not an unfair competition case. The temporary ban on the use of the Ford name is designed to restore the pre-acquisition competitive structure of the market.The requirement that, for five years, Ford purchase at Page 405 U. S. 577 least half of its spark plug requirements from the divested company under the Autolite label is to give the divested enterprise an assured customer while it struggles to be reestablished as an effective, independent competitor.It is suggested, however, that"the District Court's orders assured that Ford could not begin to have brand name success in the replacement market for at least 10 to 13 years."Post at 405 U. S. 591. This conclusion distorts the effect of the District Court decree and the nature of the spark plug industry. Ford's own studies indicate that it would take five to eight years for it to develop a spark plug division internally. A major portion of this period would be devoted to the development of a viable position in the aftermarket. The five-year prohibition on the use of its own name and the 10-year limitation on its own manufacturing mesh neatly to allow Ford to establish itself in the aftermarket prior to becoming a manufacturer while, at the same time, giving Autolite the opportunity to reestablish itself by providing a market for its production. Thus, the District Court's decree delays for only two to five years the date on which Ford may become a manufacturer with an established share of the aftermarket. Given the normal five-to-eight-year lead time on entry through internal expansion, the District Court's decree does not significantly lessen Ford's moderating influence as a potential entrant on the edge of the market. Moreover, in light of the interim benefits this ancillary relief will have on the reestablishment of Autolite as a viable competitor and of Ford as a major purchaser, we cannot agree with the characterization of the relief as "harshly restrictive," post at 405 U. S. 595, or the assertion that the decree, in any practical and significant sense, "prohibit[s] Ford from entering the market through internal expansion." Post at 405 U. S. 592.Antitrust relief should unfetter a market from anticompetitive conduct and "pry open to competition a Page 405 U. S. 578 market that has been closed by defendants' illegal restraints." International Salt Co. v. United States, 332 U.S. at 332 U. S. 401. The temporary elimination of Ford as a manufacturer of spark plugs lowers a major barrier to entry to this industry. See C. Kaysen & D. Turner, Antitrust Policy -- An Economic and Legal Analysis 116 (1959). Forces now at work in the marketplace may bring about a deconcentrated market structure, and may weaken the onerous OE tie. The District Court concluded that the forces of competition must be nurtured to correct for Ford's illegal acquisition. We view its decree as a means to that end. [Footnote 12]The thorough and thoughtful way the District Court considered all aspects of this case, including the nature of the relief, is commendable. The drafting of such a decree involves predictions and assumptions concerning future economic and business events. Both public and private interests are involved, and we conclude that the District Court, with a single eye to the requirements of § 7 and the violation that was clearly established, made a reasonable judgment on the means needed to restore and encourage the competition adversely affected by the acquisition.Affirmed

U.S. Supreme CourtFord Motor Co. v. United States, 405 U.S. 562 (1972)Ford Motor Co. v. United StatesNo. 70-113Argued November 18, 1971Decided March 29, 1972405 U.S. 562SyllabusIn this divestiture action under § 7 of the Celler-Kefauver Antimerger Act, the Government challenged the acquisition by appellant, Ford, the second largest automobile manufacturer, of certain assets of Electric Autolite Co. (Autolite), an independent manufacturer of spark plugs and other automotive parts. The acquisition included the Autolite trade name, Autolite's only domestic spark plug plant, and extensive rights to its nationwide distribution organization for spark plugs and batteries. The brand used in the spark plug replacement market (aftermarket) has historically been the same as the original equipment (OE) brand. Autolite and other independents had furnished manufacturers with OE plugs at or below cost, seeking to recoup their losses by profitable aftermarket sales. Ford, which previously had bought all its spark plugs from independents and was the largest purchaser from that source, made the Autolite acquisition in 1961 for the purpose of participating in the aftermarket. At about that time, General Motors (GM) had about 30% of the domestic spark plug market. Autolite had 15%, and Champion, the only other major independent, had 50% (which declined to 40% in 1964, and 33% in 1966). The District Court found that the industry's oligopolistic structure encouraged maintenance of the OE tie, and that spark plug manufacturers, to the extent that they are not owned by auto makers, will compete more vigorously for private brand sales in the aftermarket. The court held that the acquisition of Autolite violated § 7, since its effect "may be substantially to lessen competition" in automotive spark plugs because: (1) "as both a prime candidate to manufacture and the major customer of the dominant member of the oligopoly," Ford's pre-acquisition position was a moderating influence on the independent companies, and (2) the acquisition significantly foreclosed to independent spark plug manufacturers access to the purchaser of a substantial share of the total industry output. After hearings, the court ordered the divestiture of the Autolite plant and trade name because of the industry's oligopolistic structure, which encouraged Page 405 U. S. 563 maintenance of the OE tie. The court stressed that it was in the self-interest of the OE spark plug manufacturers to discourage private brand sales, but noted that changes in marketing methods indicated a substantial growth in the private brand sector of the spark plug market, which, if allowed to develop without unlawful restraint, may account for 17% of the total aftermarket by 1980. Additionally, the court enjoined Ford for 10 years from manufacturing spark plugs; ordered it for five years to buy one-half its annual requirements from the divested plant under the "Autolite" name, during which time it was prohibited from using its own name on spark plugs; and, for 10 years, ordered it to continue its policy of selling to its dealers at prices no less than its prevailing minimum suggested jobbers' selling price. In contesting divestiture, Ford argued that under its ownership Autolite became a more effective competitor against Champion and GM than it had been as an independent, and that other benefits resulted from the acquisition.Held:1. The District Court correctly held that the effect of Ford's acquisition of the Autolite spark plug assets and trade name may be substantially to lessen competition in the spark plug business, and thus to violate § 7 of the Celler-Kefauver Antimerger Act; and that the alleged beneficial effects of the merger did not save it from illegality under that provision, United States v. Philadelphia National Bank, 374 U. S. 321. Pp. 405 U. S. 569-571.2. The relief ordered by the District Court was proper. Pp. 405 U. S. 571-578.(a) Divestiture is necessary to restore the pre-acquisition market structure, in which Ford was the leading purchaser from independent sources, and in which a substantial segment of the market was open to competitive selling. After the divestiture, with Ford again as a purchaser of spark plugs, competitive pressures for its business will be generated and the anti-competitive consequences of its entry as a manufacturer will be eliminated. Pp. 405 U. S. 573-575.(b) The ancillary injunctive provisions are necessary to give the divested plant an opportunity to reestablish its competitive position and to nurture the competitive forces at work in the marketplace. Pp. 405 U. S. 575-578.286 F. Supp. 407, 315 F. Supp. 372, affirmed.DOUGLAS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, and MARSHALL, JJ., joined and in which (as to Part I Page 405 U. S. 564 and part of Part II) BLACKMUN, J., joined. STEWART, J., filed an opinion concurring in the result, post, p. 405 U. S. 579. BURGER, C.J., post, p. 405 U. S. 582, and BLACKMUN, J., post, p. 405 U. S. 595, filed opinions concurring in part and dissenting in part. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

1982_82-256

JUSTICE O'CONNOR delivered the opinion of the Court.In Terry v. Ohio, 392 U. S. 1 (1968), we upheld the validity of a protective search for weapons in the absence of probable cause to arrest because it is unreasonable to deny a police officer the right "to neutralize the threat of physical harm," id. at 392 U. S. 24, when he possesses an articulable suspicion that an individual is armed and dangerous. We did not, however, expressly address whether such a protective search for weapons could extend to an area beyond the person in the absence of probable cause to arrest. In the present case, respondent David Long was convicted for possession of marihuana found by police in the passenger compartment and trunk of the Page 463 U. S. 1035 automobile that he was driving. The police searched the passenger compartment because they had reason to believe that the vehicle contained weapons potentially dangerous to the officers. We hold that the protective search of the passenger compartment was reasonable under the principles articulated in Terry and other decisions of this Court. We also examine Long's argument that the decision below rests upon an adequate and independent state ground, and we decide in favor of our jurisdiction.IDeputies Howell and Lewis were on patrol in a rural area one evening when, shortly after midnight, they observed a car traveling erratically and at excessive speed. [Footnote 1] The officers observed the car turning down a side road, where it swerved off into a shallow ditch. The officers stopped to investigate. Long, the only occupant of the automobile, met the deputies at the rear of the car, which was protruding Page 463 U. S. 1036 from the ditch onto the road. The door on the driver's side of the vehicle was left open.Deputy Howell requested Long to produce his operator's license, but he did not respond. After the request was repeated, Long produced his license. Long again failed to respond when Howell requested him to produce the vehicle registration. After another repeated request, Long, who Howell thought "appeared to be under the influence of something," 413 Mich. 461, 469, 320 N.W.2d 866, 868 (1982), turned from the officers and began walking toward the open door of the vehicle. The officers followed Long, and both observed a large hunting knife on the floorboard of the driver's side of the car. The officers then stopped Long's progress and subjected him to a Terry protective patdown, which revealed no weapons.Long and Deputy Lewis then stood by the rear of the vehicle while Deputy Howell shined his flashlight into the interior of the vehicle, but did not actually enter it. The purpose of Howell's action was "to search for other weapons." 413 Mich., at 469, 320 N.W.2d at 868. The officer noticed that something was protruding from under the armrest on the front seat. He knelt in the vehicle and lifted the armrest. He saw an open pouch on the front seat, and upon flashing his light on the pouch, determined that it contained what appeared to be marihuana. After Deputy Howell showed the pouch and its contents to Deputy Lewis, Long was arrested for possession of marihuana. A further search of the interior of the vehicle, including the glovebox, revealed neither more contraband nor the vehicle registration. The officers decided to impound the vehicle. Deputy Howell opened the trunk, which did not have a lock, and discovered inside it approximately 75 pounds of marihuana.The Barry County Circuit Court denied Long's motion to suppress the marihuana taken from both the interior of the car and its trunk. He was subsequently convicted of possession of marihuana. The Michigan Court of Appeals affirmed Long's conviction, holding that the search of the passenger Page 463 U. S. 1037 compartment was valid as a protective search under Terry, supra, and that the search of the trunk was valid as an inventory search under South Dakota v. Opperman, 428 U. S. 364 (1976). See 94 Mich.App. 338, 288 N.W.2d 629 (1979). The Michigan Supreme Court reversed. The court held that "the sole justification of the Terry search, protection of the police officers and others nearby, cannot justify the search in this case." 413 Mich. at 472, 320 N.W.2d at 869. The marihuana found in Long's trunk was considered by the court below to be the "fruit" of the illegal search of the interior, and was also suppressed. [Footnote 2]We granted certiorari in this case to consider the important question of the authority of a police officer to protect himself by conducting a Terry-type search of the passenger compartment of a motor vehicle during the lawful investigatory stop of the occupant of the vehicle. 459 U.S. 904 (1982).IIBefore reaching the merits, we must consider Long's argument that we are without jurisdiction to decide this case because the decision below rests on an adequate and independent state ground. The court below referred twice to the State Constitution in its opinion, but otherwise relied exclusively on federal law. [Footnote 3] Long argues that the Michigan Page 463 U. S. 1038 courts have provided greater protection from searches and seizures under the State Constitution than is afforded under the Fourth Amendment, and the references to the State Constitution therefore establish an adequate and independent ground for the decision below.It is, of course,"incumbent upon this Court . . . to ascertain for itself . . . whether the asserted nonfederal ground independently and adequately supports the judgment."Abie State Bank v. Bryan, 282 U. S. 765, 282 U. S. 773 (1931). Although we have announced a number of principles in order to help us determine whether various forms of references to state law constitute adequate and independent state grounds, [Footnote 4] we openly admit that we have thus far not developed a satisfying and consistent approach for resolving this vexing issue. In some instances, we have taken the strict view that, if the ground of decision was at all unclear, we would dismiss the case. See, e.g., Lynch v. New York ex rel. Pierson, 293 U. S. 52 (1934). In other instances, we have vacated, Page 463 U. S. 1039 see, e.g., Minnesota v. National Tea Co., 309 U. S. 551 (1940), or continued a case, see, e.g., Herb v. Pitcairn, 324 U. S. 117 (1945), in order to obtain clarification about the nature of a state court decision. See also California v. Krivda, 409 U. S. 33 (1972). In more recent cases, we have ourselves examined state law to determine whether state courts have used federal law to guide their application of state law or to provide the actual basis for the decision that was reached. See Texas v. Brown, 460 U. S. 730, 460 U. S. 732-733, n. 1 (1983) (plurality opinion). Cf. South Dakota v. Neville, 459 U. S. 553, 459 U. S. 569 (1983) (STEVENS, J., dissenting). In Oregon v. Kennedy, 456 U. S. 667, 456 U. S. 670-671 (1982), we rejected an invitation to remand to the state court for clarification even when the decision rested in part on a case from the state court, because we determined that the state case itself rested upon federal grounds. We added that,"[e]ven if the case admitted of more doubt as to whether federal and state grounds for decision were intermixed, the fact that the state court relied to the extent it did on federal grounds requires us to reach the merits."Id. at 456 U. S. 671.This ad hoc method of dealing with cases that involve possible adequate and independent state grounds is antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved. Moreover, none of the various methods of disposition that we have employed thus far recommends itself as the preferred method that we should apply to the exclusion of others, and we therefore determine that it is appropriate to reexamine our treatment of this jurisdictional issue in order to achieve the consistency that is necessary.The process of examining state law is unsatisfactory because it requires us to interpret state laws with which we are generally unfamiliar, and which often, as in this case, have not been discussed at length by the parties. Vacation and continuance for clarification have also been unsatisfactory, both because of the delay and decrease in efficiency of judicial Page 463 U. S. 1040 administration, see Dixon v. Duffy, 344 U. S. 143 (1952), [Footnote 5] and, more important, because these methods of disposition place significant burdens on state courts to demonstrate the presence or absence of our jurisdiction. See Philadelphia Newspapers, Inc. v. Jerome, 434 U. S. 241, 434 U. S. 244 (1978) (REHNQUIST, J., dissenting); Department of Motor Vehicles v. Rios, 410 U. S. 425, 410 U. S. 427 (973) (Douglas, J., dissenting). Finally, outright dismissal of cases is clearly not a panacea, because it cannot be doubted that there is an important need for uniformity in federal law, and that this need goes unsatisfied when we fail to review an opinion that rests primarily upon federal grounds and where the independence of an alleged state ground is not apparent from the four corners of the opinion. We have long recognized that dismissal is inappropriate "where there is strong indication . . . that the federal constitution as judicially construed controlled the decision below." National Tea Co., supra, at 309 U. S. 556.Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court's refusal to decide cases where there is an adequate and independent state ground. It is precisely because of this respect for state courts, and this desire to avoid advisory opinions, that we do not wish to continue to decide issues of state law that go beyond the opinion that we review, or to require state courts to reconsider cases to clarify the grounds of their decisions. Accordingly, when, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible Page 463 U. S. 1041 state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.This approach obviates in most instances the need to examine state law in order to decide the nature of the state court decision, and will at the same time avoid the danger of our rendering advisory opinions. [Footnote 6] It also avoids the unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this Court. We believe that such an approach will provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law."It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action."National Tea Co., supra, at 309 U. S. 557.The principle that we will not review judgments of state courts that rest on adequate and independent state grounds Page 463 U. S. 1042 is based, in part, on "the limitations of our own jurisdiction." Herb v. Pitcairn, 324 U. S. 117, 324 U. S. 125 (1945). [Footnote 7] The jurisdictional concern is that we not"render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion."Id. at 324 U. S. 126. Our requirement of a "plain statement" that a decision rests upon adequate and independent state grounds does not in any way authorize the rendering of advisory opinions. Rather, in determining, as we must, whether we have jurisdiction to review a case that is alleged to rest on adequate and independent state grounds, see Abie State Bank v. Bryan, 282 U.S. at 282 U. S. 773, we merely assume that there are no such grounds when it is not clear from the opinion itself that the state court relied upon an adequate and independent state ground and when it fairly appears that the state court rested its decision primarily on federal law. [Footnote 8] Page 463 U. S. 1043Our review of the decision below under this framework leaves us unconvinced that it rests upon an independent state ground. Apart from its two citations to the State Constitution, the court below relied exclusively on its understanding of Terry and other federal cases. Not a single state case was cited to support the state court's holding that the search of the passenger compartment was unconstitutional. [Footnote 9] Indeed, Page 463 U. S. 1044 the court declared that the search in this case was unconstitutional because "[t]he Court of Appeals erroneously applied the principles of Terry v. Ohio . . . to the search of the interior of the vehicle in this case." 413 Mich. at 471, 320 N.W.2d at 869. The references to the State Constitution in no way indicate that the decision below rested on grounds in any way independent from the state court's interpretation of federal law. Even if we accept that the Michigan Constitution has been interpreted to provide independent protection for certain rights also secured under the Fourth Amendment, it fairly appears in this case that the Michigan Supreme Court rested its decision primarily on federal law.Rather than dismissing the case, or requiring that the state court reconsider its decision on our behalf solely because of a mere possibility that an adequate and independent ground supports the judgment, we find that we have jurisdiction in the absence of a plain statement that the decision below rested on an adequate and independent state ground. It appears to us that the state court "felt compelled by what it understood to be federal constitutional considerations to construe . . . its own law in the manner it did." Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 433 U. S. 568 (1977). [Footnote 10] Page 463 U. S. 1045IIIThe court below held, and respondent Long contends, that Deputy Howell's entry into the vehicle cannot be justified under the principles set forth in Terry, because "Terry authorized only a limited pat-down search of a person suspected of criminal activity," rather than a search of an area. 413 Page 463 U. S. 1046 Mich. at 472, 320 N.W.2d at 869 (footnote omitted). Brief for Respondent 10. Although Terry did involve the protective frisk of a person, we believe that the police action in this case is justified by the principles that we have already established in Terry and other cases.In Terry, the Court examined the validity of a "stop and frisk" in the absence of probable cause and a warrant. The police officer in Terry detained several suspects to ascertain their identities after the officer had observed the suspects for a brief period of time and formed the conclusion that they were about to engage in criminal activity. Because the officer feared that the suspects were armed, he patted down the outside of the suspects' clothing and discovered two revolvers.Examining the reasonableness of the officer's conduct in Terry, [Footnote 11] we held that there is"'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'"392 U.S. at 392 U. S. 21 (quoting Camara v. Municipal Court, 387 U. S. 523, 387 U. S. 536-537 (1967)). Although the conduct of the officer in Terry involved a "severe, though brief, intrusion upon cherished personal security," 392 U.S. at 392 U. S. 24-25, Page 463 U. S. 1047 we found that the conduct was reasonable when we weighed the interest of the individual against the legitimate interest in "crime prevention and detection," id. at 392 U. S. 22, and the"need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest."Id. at 392 U. S. 24. When the officer has a reasonable belief"that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm."Ibid.Although Terry itself involved the stop and subsequent patdown search of a person, we were careful to note that"[w]e need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective search and seizure for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases."Id. at 392 U. S. 29. Contrary to Long's view, Terry need not be read as restricting the preventative search to the person of the detained suspect. [Footnote 12]In two cases in which we applied Terry to specific factual situations, we recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers. In Pennsylvania v. Mimms, 434 U. S. 106 (1977), we held that police may order persons out of Page 463 U. S. 1048 an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous. Our decision rested in part on the "inordinate risk confronting an officer as he approaches a person seated in an automobile." Id. at 434 U. S. 110. In Adams v. Williams, 407 U. S. 143 (1972), we held that the police, acting on an informant's tip, may reach into the passenger compartment of an automobile to remove a gun from a driver's waistband even where the gun was not apparent to police from outside the car and the police knew of its existence only because of the tip. Again, our decision rested in part on our view of the danger presented to police officers in "traffic stop" and automobile situations. [Footnote 13]Finally, we have also expressly recognized that suspects may injure police officers and others by virtue of their access to weapons, even though they may not themselves be armed. In the Term following Terry, we decided Chimel v. California, 395 U. S. 752 (1969), which involved the limitations imposed on police authority to conduct a search incident to a valid arrest. Relying explicitly on Terry, we held that, when an arrest is made, it is reasonable for the arresting officer to search"the arrestee's person and the area 'within his immediate control' -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."395 U.S. at 395 U. S. 763. We reasoned that"[a] gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested."Ibid. In New York v. Belton, 453 U. S. 454 (1981), we determined that the lower courts"have found no workable definition of 'the area within the immediate control of the arrestee' when Page 463 U. S. 1049 that area arguably includes the interior of an automobile and the arrestee is its recent occupant."Id. at 453 U. S. 460. In order to provide a "workable rule," ibid., we held that"articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon.' . . ."Ibid. (quoting Chimel, supra, at 395 U. S. 763). We also held that the police may examine the contents of any open or closed container found within the passenger compartment, "for if the passenger compartment is within the reach of the arrestee, so will containers in it be within his reach." 453 U.S. at 453 U. S. 460 (footnote omitted). See also Michigan v. Summers, 452 U. S. 692, 452 U. S. 702 (1981).Our past cases indicate, then, that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. [Footnote 14] See Terry, 392 Page 463 U. S. 1050 U.S. at 392 U. S. 21."[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."Id. at 392 U. S. 27. If a suspect is "dangerous," he is no less dangerous simply because he is not arrested. If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 465 (1971); Michigan v. Tyler, 436 U. S. 499, 436 U. S. 509 (1978); Texas v. Brown, 460 U.S. at 460 U. S. 739 (plurality opinion by REHNQUIST, J.); id. at 460 U. S. 746 (POWELL, J., concurring in judgment).The circumstances of this case clearly justified Deputies Howell and Lewis in their reasonable belief that Long posed a danger if he were permitted to reenter his vehicle. The hour was late, and the area rural. Long was driving his automobile at excessive speed, and his car swerved into a ditch. The officers had to repeat their questions to Long, who appeared to be "under the influence" of some intoxicant. Long was not frisked until the officers observed that there was a large knife in the interior of the car into which Long was about to reenter. The subsequent search of the car was restricted to those areas to which Long would generally have immediate control, and that could contain a weapon. The trial court determined that the leather pouch containing Page 463 U. S. 1051 marihuana could have contained a weapon. App. 64a. [Footnote 15] It is clear that the intrusion was "strictly circumscribed by the exigencies which justifi[ed] its initiation." Terry, supra, at 392 U. S. 26.In evaluating the validity of an officer's investigative or protective conduct under Terry, the"[t]ouchstone of our analysis . . . is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'"Pennsylvania v. Mimms, 434 U.S. at 434 U. S. 108-109 (quoting Terry, supra, at 392 U. S. 19). In this case, the officers did not act unreasonably in taking preventive measures to ensure that there were no other weapons within Long's immediate grasp before permitting him to reenter his automobile. Therefore, the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous.The Michigan Supreme Court appeared to believe that it was not reasonable for the officers to fear that Long could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile. See 413 Mich. at 472, 320 N.W.2d at 869. This reasoning is mistaken in several respects. During any investigative detention, the suspect is "in the control" of the officers in the sense that he "may be briefly detained against his will. . . ." Terry, supra, at 392 U. S. 34 (WHITE, J., concurring). Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect in Long's position break away from police control and retrieve a weapon from his automobile. See United State v. Rainone, 586 F.2d 1132 1134 (CA7 1978), cert. denied, 440 U.S. 980 (1979). In addition, Page 463 U. S. 1052 if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside. United States v. Powless, 546 F.2d 792, 795-796 (CA8), cert. denied, 430 U.S. 910 (1977). Or, as here, the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons. In any event, we stress that a Terry investigation, such as the one that occurred here, involves a police investigation "at close range," Terry, 392 U.S. at 392 U. S. 24, when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a "quick decision as to how to protect himself and others from possible danger. . . ." Id. at 392 U. S. 28. In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter. [Footnote 16] Page 463 U. S. 1053IVThe trial court and the Court of Appeals upheld the search of the trunk as a valid inventory search under this Court's decision in South Dakota v. Opperman, 428 U. S. 364 (1976). The Michigan Supreme Court did not address this holding, and instead suppressed the marihuana taken from the trunk as a fruit of the illegal search of the interior of the automobile. Our holding that the initial search was justified under Terry makes it necessary to determine whether the trunk search was permissible under the Fourth Amendment. However, we decline to address this question, because it was not passed upon by the Michigan Supreme Court, whose decision we review in this case. See Cardinale v. Louisiana, 394 U. S. 437, 394 U. S. 438 (1969). We remand this issue to the court below, to enable it to determine whether the trunk search was permissible under Opperman, supra, or other decisions of this Court. See, e.g., United States v. Ross, 456 U. S. 798 (1982). [Footnote 17]The judgment of the Michigan Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtMichigan v. Long, 463 U.S. 1032 (1983)Michigan v. LongNo. 82-256Argued February 23, 1983Decided July 6, 1983463 U.S. 1032SyllabusTwo police officers, patrolling in a rural area at night, observed a car traveling erratically and at excessive speed. When the car swerved into a ditch, the officers stopped to investigate and were met by respondent, the only occupant of the car, at the rear of the car. Respondent, who "appeared to be under the influence of something," did not respond to initial requests to produce his license and registration, and when he began walking toward the open door of the car, apparently to obtain the registration, the officers followed him and saw a hunting knife on the floorboard of the driver's side of the car. The officers then stopped respondent and subjected him to a patdown search, which revealed no weapons. One of the officers shined his flashlight into the car, saw something protruding from under the armrest on the front seat, and, upon lifting the armrest, saw an open pouch that contained what appeared to be marihuana. Respondent was then arrested for possession of marihuana. A further search of the car's interior revealed no more contraband, but the officers decided to impound the vehicle, and more marihuana was found in the trunk. The Michigan state trial court denied respondent's motion to suppress the marihuana taken from both the car's interior and its trunk, and he was convicted of possession of marihuana. The Michigan Court of Appeals affirmed, holding that the search of the passenger compartment was valid as a protective search under Terry v. Ohio, 392 U. S. 1, and that the search of the trunk was valid as an inventory search under South Dakota v. Opperman, 428 U. S. 364. However, the Michigan Supreme Court reversed, holding that Terry did not justify the passenger compartment search, and that the marihuana found in the trunk was the "fruit" of the illegal search of the car's interior.Held:1. This Court does not lack jurisdiction to decide the case on the asserted ground that the decision below rests on an adequate and independent state ground. Because of respect for the independence of state courts and the need to avoid rendering advisory opinions, this Court, in determining whether state court references to state law constitute adequate and independent state grounds, will no longer look beyond the opinion under review, or require state courts to reconsider cases to clarify the grounds of their decisions. Accordingly, when a state court decision fairly appears to rest primarily on federal law, or to be interwoven Page 463 U. S. 1033 with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, this Court will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent state grounds, this Court will not undertake to review the decision. In this case, apart from two citations to the State Constitution, the court below relied exclusively on its understanding of Terry and other federal cases. Even if it is accepted that the Michigan Constitution has been interpreted to provide independent protection for certain rights also secured under the Fourth Amendment, it fairly appears that the Michigan Supreme Court rested its decision primarily on federal law. Pp. 463 U. S. 1037-1044.2. The protective search of the passenger compartment of respondent's car was reasonable under the principles articulated in Terry and other decisions of this Court. Although Terry involved the stop and subsequent patdown search for weapons of a person suspected of criminal activity, it did not restrict the preventive search to the person of the detained suspect. Protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger. Roadside encounters between police and suspects are especially hazardous, and danger may arise from the possible presence of weapons in the area surrounding a suspect. Thus, the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and the suspect may gain immediate control of weapons. If, while conducting a legitimate Terry search of an automobile's interior, the officer discovers contraband other than weapons, he cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. The circumstances of this case justified the officers in their reasonable belief that respondent posed a danger if he were permitted to reenter his vehicle. Nor did they act unreasonably in taking preventive measures to ensure that there were no other weapons within respondent's immediate grasp before permitting him to reenter his automobile. The fact that respondent was under the officers' control during the investigative stop does not render unreasonable their belief that he could injure them. Pp. 463 U. S. 1045-1052.3. Because the Michigan Supreme Court suppressed the marihuana taken from the trunk as a fruit of what it erroneously held was an illegal Page 463 U. S. 1034 search of the car's interior, the case is remanded to enable it to determine whether the trunk search was permissible under Opperman, supra, or other decisions of this Court. P. 463 U. S. 1053.413 Mich. 461, 320 N.W.2d 866, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined, and in Parts I, III, IV, and V of which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 463 U. S. 1054. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 463 U. S. 1054. STEVENS, J., filed a dissenting opinion, post, p. 463 U. S. 1065.

2002_02-215

quantum meruit. In re: Managed Care Litigation, 132Of particular concern here, PacifiC are and United moved the District Court to compel arbitration, arguing that provisions in their contracts with respondents required arbitration of these disputes, including those arising under RICO. Ibid. Respondents opposed the motion on the ground that, because the arbitration provisions prohibit an award of punitive damages, see App. 107, 147, 168,212, respondents could not obtain "meaningful relief" in arbitration for their claims under the RICO statute, which authorizes treble damages, 18 U. S. C. § 1964(c). See Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054, 1062 (CA111998) (holding that where a remedial limitation in an arbitration agreement prevents a plaintiff from obtaining "meaningful relief" for a statutory claim, the agreement to arbitrate is unenforceable with respect to that claim).The District Court denied petitioners' request to compel arbitration of the RICO claims. 132 F. Supp. 2d, at 1007. The court concluded that given the remedial limitations in the relevant contracts, it was, indeed, "faced with a potential Paladino situation ... , where the plaintiff may not be able to obtain meaningful relief for allegations of statutory violations in an arbitration forum." Id., at 1005. Accordingly, it found the arbitration agreements unenforceable with respect to respondents' RICO claims. Id., at 1007. The Eleventh Circuit affirmed "for the reasons set forth in [the District Court's] comprehensive opinion," In re: Humana Inc. Managed Care Litigation, 285 F.3d 971, 973 (2002), and we granted certiorari, 537 U. S. 946 (2002).IIPetitioners argue that whether the remedial limitations render their arbitration agreements unenforceable is not a question of "arbitrability," and hence should have been decided by an arbitrator, rather than a court, in the first in-404stance. They also claim that even if this question is one of arbitrability, and is therefore properly within the purview of the courts at this time, the remedial limitations at issue do not require invalidation of their arbitration agreements. Either way, petitioners contend, the lower courts should have compelled arbitration. We conclude that it would be premature for us to address these questions at this time.Our decision in Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer, 515 U. S. 528 (1995), supplies the analytic framework for assessing the ripeness of this dispute. In Vimar, we dealt with a bill of lading concerning a shipment of goods from Morocco to Massachusetts. Upon receipt of the goods, the purchaser discovered that they had been damaged, and, along with its insurer (Vimar), filed suit against the shipper. The shipper sought to compel arbitration, relying on choiceof-law and arbitration clauses in the bill of lading under which disputes arising out of the parties' agreement were to be governed by Japanese law and resolved through arbitration before the Tokyo Maritime Arbitration Commission. Vimar countered by arguing that the arbitration clause violated the Carriage of Goods by Sea Act (COGSA), 46 U. S. C. App. § 1300 et seq., and hence was unenforceable. 515 U. S., at 531-532. In particular, Vi mar claimed that "there is no guarantee foreign arbitrators will apply COGSA"; that the foreign arbitrator was likely to apply rules of Japanese law under which respondents' liability might be less than what it would be under COGSA; and that this would violate "[t]he central guarantee of [COGSA] § 3(8) ... that the terms of a bill of lading may not relieve the carrier of obligations or diminish the legal duties specified by the Act." Id., at 539.Notwithstanding Vimar's insistence that the arbitration agreement violated federal policy as embodied in COGSA, we declined to reach the issue and held that the arbitration clause was, at least initially, enforceable. "At this interlocutory stage," we explained, "it is not established what law the arbitrators will apply to petitioner's claims or that petitioner405will receive diminished protection as a result. The arbitrators may conclude that COGSA applies of its own force or that Japanese law does not apply so that, under another clause of the bill of lading, COGSA controls." Id., at 540. We further emphasized that "mere speculation that the foreign arbitrators might apply Japanese law which, depending on the proper construction of COGSA, might reduce respondents' legal obligations, does not in and of itself lessen liability under COGSA § 3(8)," nor did it provide an adequate basis upon which to declare the relevant arbitration agreement unenforceable. Id., at 541 (emphases added). We found that "[w]hatever the merits of petitioner's comparative reading of COGSA and its Japanese counterpart, its claim is premature." Id., at 540.The case at bar arrives in a similar posture. Two of the four arbitration agreements at issue provide that "punitive damages shall not be awarded [in arbitration]," App. 107, 147; one provides that "[t]he arbitrators ... shall have no authority to award any punitive or exemplary damages," id., at 212; and one provides that "[t]he arbitrators ... shall have no authority to award extra contractual damages of any kind, including punitive or exemplary damages ... ," id., at 168. Respondents insist, and the District Court agreed, 132 F. Supp. 2d, at 1000-1001, 1005, that these provisions preclude an arbitrator from awarding treble damages under RICO. We think that neither our precedents nor the ambiguous terms of the contracts make this clear.Our cases have placed different statutory treble-damages provisions on different points along the spectrum between purely compensatory and strictly punitive awards. Thus, in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 784 (2000), we characterized the treble-damages provision of the False Claims Act, 31 U. S. C. §§ 3729-3733, as "essentially punitive in nature." In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485 (1977), on the other hand, we explained that the treble-406damages provision of § 4 of the Clayton Act, 15 U. s. C. § 15, "is in essence a remedial provision." Likewise in American Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U. S. 556, 575 (1982), we noted that "the antitrust private action [which allows for treble damages] was created primarily as a remedy for the victims of antitrust violations." (Emphasis added.) And earlier this Term, in Cook County v. United States ex rel. Chandler, ante, at 130, we stated that "it is important to realize that treble damages have a compensatory side, serving remedial purposes in addition to punitive objectives." Indeed, we have repeatedly acknowledged that the treble-damages provision contained in RICO itself is remedial in nature. In Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 151 (1987), we stated that "[b]oth RICO and the Clayton Act are designed to remedy economic injury by providing for the recovery of treble damages, costs, and attorney's fees." (Emphasis added.) And in Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 241 (1987) we took note of the "remedial function" of RICO's treble-damages provision.In light of our case law's treatment of statutory treble damages, and given the uncertainty surrounding the parties' intent with respect to the contractual term "punitive," 1 the application of the disputed language to respondents' RICO claims is, to say the least, in doubt. And Vimar instructs that we should not, on the basis of "mere speculation" that an arbitrator might interpret these ambiguous agreements1 Contrary to respondents' contention, the prohibition in Dr. Manual Porth's contract against an arbitrator's awarding "extracontractual" damages is likewise ambiguous. This language might mean, as respondents would have it, that an arbitrator is prohibited from awarding any damages other than for breach of contract. Brief for Respondents 20-21. But it might only mean that an arbitrator cannot award noneconomic damages such as punitive or mental-anguish damages. See 3 D. Dobbs, Law of Remedies: Damages-Equity-Restitution § 12.1(1), p. 8 (2d ed. 1993) ("Punitive damages and mental anguish damages are thus considered 'extracontractual,' and usually denied in pure contract cases").407in a manner that casts their enforceability into doubt, take upon ourselves the authority to decide the antecedent question of how the ambiguity is to be resolved.2 515 U. S., at 541. In short, since we do not know how the arbitrator will construe the remedial limitations, the questions whether they render the parties' agreements unenforceable and whether it is for courts or arbitrators to decide enforceability in the first instance are unusually abstract. As in Vimar, the proper course is to compel arbitration. 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, 2002SyllabusPACIFICARE HEALTH SYSTEMS, INC., ET AL. v.BOOK ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 02-215. Argued February 24, 2003-Decided April 7, 2003Respondent physicians filed suit alleging that managed-health-care organizations, including petitioners, violated, inter alia, the Racketeer Influenced and Corrupt Organizations Act (RICO) by failing to reimburse them for health-care services that they had provided to patients covered by the organizations' plans. Petitioners moved to compel arbitration. The District Court refused to compel arbitration of the RICO claims on the ground that the arbitration clauses in the parties' agreements prohibited awards of "punitive damages," and hence an arbitrator lacked authority to award treble damages under RICO. Accordingly, the court deemed the arbitration agreements unenforceable with respect to those claims. The Eleventh Circuit affirmed.Held: It is unclear whether the agreements actually prevent an arbitrator from awarding treble damages under RICO. This Court's cases have placed different statutory treble damages provisions on different points along the spectrum between purely compensatory and strictly punitive awards. In particular, the Court has repeatedly acknowledged that RICO's treble-damages provision is remedial in nature, and it is not clear that the parties intended the term "punitive" to encompass claims for treble damages under RICO. Since the Court does not know how the arbitrator will construe the remedial limitations, the questions whether they render the parties' agreement unenforceable and whether it is for courts or arbitrators to decide enforceability in the first instance are unusually abstract. It would be premature for the Court to address them; the proper course is to compel arbitration. Pp. 403-407.285 F.3d 971, reversed and remanded.SCALIA, J., delivered the opinion of the Court, in which all other Members joined, except THOMAS, J., who took no part in the consideration or decision of the case.William E. Grauer argued the cause for petitioners.With him on the briefs were Christopher R. J. Pace, James W Quinn, Jeffrey S. Klein, Edward Soto, and Gregory S. Coleman.402Joe R. Whatley, Jr., argued the cause for respondents.With him on the brief were Charlene P. Ford and James B. Tilghman, Jr. *JUSTICE SCALIA delivered the opinion of the Court.In this case, we are asked to decide whether respondents can be compelled to arbitrate claims arising under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. § 1961 et seq., notwithstanding the fact that the parties' arbitration agreements may be construed to limit the arbitrator's authority to award damages under that statute.IRespondents are members of a group of physicians who filed suit against managed-health-care organizations including petitioners PacifiC are Health Systems, Inc., and PacifiCare Operations, Inc. (collectively, PacifiCare), and UnitedHealthcare, Inc., and UnitedHealth Group Inc. (collectively, United). These physicians alleged that the defendants unlawfully failed to reimburse them for health-care services that they had provided to patients covered by defendants' health plans. They brought causes of action under RICO, the Employee Retirement Income Security Act of 1974 (ERISA), and federal and state prompt-pay statutes, as well as claims for breach of contract, unjust enrichment, and in*Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Evan M. Tager, Miriam R. Nemetz, and Robin S. Conrad; for the National Association of Manufacturers et al. by Miguel A. Estrada, Andrew S. Tulumello, Jan S. Amundson, Quentin Riegel, and Stephanie Kanwit; and for the Washington Legal Foundation by Christopher Landau, Ashley C. Parrish, Daniel J. Popeo, and Richard A. Samp.Briefs of amici curiae urging affirmance were filed for the National Association of Consumer Advocates by Craig Jordan; for Public Citizen, Inc., by Scott L. Nelson and Brian Wolfman; and for Trial Lawyers for Public Justice by F. Paul Bland, Jr.403Full Text of Opinion

1990_89-1541

Justice MARSHALL delivered the opinion of the Court.In this case, we consider the question to whom should a reviewing court defer when the Secretary of Labor and the Occupational Safety and Health Review Commission furnish reasonable but conflicting interpretations of an ambiguous regulation promulgated by the Secretary under the Occupational Safety and Health Act of 1970, 84 Stat. 1590, as amended, 29 U.S.C. § 651 et seq. The Court of Appeals Page 499 U. S. 147 concluded that it should defer to the Commission's interpretation under such circumstances. We reverse.IAThe Occupational Safety and Health Act of 1970 (OSH Act or Act) establishes a comprehensive regulatory scheme designed "to assure so far as possible . . . safe and healthful working conditions" for "every working man and woman in the Nation." 29 U.S.C. § 651(b). See generally Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U. S. 442, 430 U. S. 444-445 (1977). To achieve this objective, the Act assigns distinct regulatory tasks to two independent administrative actors: the Secretary of Labor (Secretary); and the Occupational Safety and Health Review Commission (Commission), a three-member board appointed by the President with the advice and consent of the Senate. 29 U.S.C. §§ 651(b)(3), 661.The Act charges the Secretary with responsibility for setting and enforcing workplace health and safety standards. See Cuyahoga Valley R. Co. v. United Transp. Union, 474 U. S. 3, 474 U. S. 6-7 (1985) (per curiam ). The Secretary establishes these standards through the exercise of rulemaking powers. See 29 U.S.C. § 665. If the Secretary (or the Secretary's designate) determines upon investigation that an employer is failing to comply with such a standard, the Secretary is authorized to issue a citation and to assess the employer a monetary penalty. §§ 658-659, 666. [Footnote 1]The Commission is assigned to "carr[y] out adjudicatory functions" under the Act. § 651(b)(3). If an employer Page 499 U. S. 148 wishes to contest a citation, the Commission must afford the employer an evidentiary hearing and "thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty." § 659(c). Initial decisions are made by an administrative law judge (ALJ), whose ruling becomes the order of the Commission unless the Commission grants discretionary review. § 661(j). Both the employer and the Secretary have the right to seek review of an adverse Commission order in the court of appeals, which must treat as "conclusive" Commission findings of fact that are "supported by substantial evidence." § 660(a) (b).BThis case arises from the Secretary's effort to enforce compliance with OSH Act standards relating to coke oven emissions. Promulgated pursuant to the Secretary's rulemaking powers, these standards establish maximum permissible emissions levels and require the use of employee respirators in certain circumstances. See 29 CFR § 1910.1029 (1990). An investigation by one of the Secretary's compliance officers revealed that respondent CF & I Steel Corporation (CF & I) had equipped 28 of its employees with respirators that failed an "atmospheric test" designed to determine whether a respirator provides a sufficiently tight fit to protect its wearer from carcinogenic emissions. As a result of being equipped with these loose-fitting respirators, some employees were exposed to coke oven emissions exceeding the regulatory limit. Based on these findings, the compliance officer issued a citation to CF & I and assessed it a $10,000 penalty for violating 29 CFR § 1910.1029(g)(3) (1990), which requires an employer to "institute a respiratory protection program in accordance with [29 CFR] § 1910.134." CF & I contested the citation.The ALJ sided with the Secretary, but the full Commission subsequently granted review and vacated the citation. See CF & I, 12 OSHC 2067 (1986). In the Commission's view, the "respiratory protection program" referred to in Page 499 U. S. 149 § 1910.1029(g)(3) expressly requires only that an employer train employees in the proper use of respirators; [Footnote 2] the obligation to assure proper fit of an individual employee's respirator, the Commission noted, was expressly stated in another regulation, namely, § 1910.1029(g)(4)(i). [Footnote 3] See 12 OSHC at 2077-2078. Reasoning, inter alia, that the Secretary's interpretation of § 1910.1029(g)(3) would render § 1910.1029(g)(4) superfluous, the Commission concluded that the facts alleged in the citation and found by the ALJ did not establish a violation of § 1910.1029(g)(3). See 12 OSHC at 2078-2079. Because § 1910.1029(g)(3) was the only asserted basis for liability, the Commission vacated the citation. See id. at 2079.The Secretary petitioned for review in the Court of Appeals for the Tenth Circuit, which affirmed the Commission's order. See Dole v. Occupational Safety and Health Review Commission, 891 F.2d 1495 (1989). The court concluded that the relevant regulations were ambiguous as to the employer's obligation to assure proper fit of an employee's respirator. The court thus framed the issue before it as whose reasonable interpretation of the regulations, the Secretary's or the Commission's, merited the court's deference. See id. at 1497. The court held that the Commission's interpretation Page 499 U. S. 150 was entitled to deference under such circumstances, reasoning that Congress had intended to delegate to the Commission "the normal complement of adjudicative powers possessed by traditional administrative agencies" and that "[s]uch an adjudicative function necessarily encompasses the power to declare' the law." Id. at 1498. Although the court determined that it would "certainly [be] possible to reach an alternate interpretation of the ambiguous regulatory language," the court nonetheless concluded that the Commission's interpretation was a reasonable one. Id. at 1500. The court therefore deferred to the Commission's interpretation without assessing the reasonableness of the Secretary's competing view. See ibid.The Secretary thereafter petitioned this Court for a writ of certiorari. We granted the petition in order to resolve a conflict among the Circuits on the question whether a reviewing court should defer to the Secretary or to the Commission when these actors furnish reasonable but conflicting interpretations of an ambiguous regulation under the OSH Act. [Footnote 4] 497 U.S. 1002 (1990).IIIt is well established "that an agency's construction of its own regulations is entitled to substantial deference." Lyng v. Payne, 476 U. S. 926, 476 U. S. 939 (1986); accord, Udall v. Tallman, 380 U. S. 1, 380 U. S. 16-17 (1965). In situations in which "the meaning of [regulatory] language is not free from doubt," the reviewing court should give effect to the agency's interpretation so long as it is "reasonable," Ehlert v. United States, 402 U. S. 99, Page 499 U. S. 151 402 U. S. 105 (1971), that is, so long as the interpretation "sensibly conforms to the purpose and wording of the regulations," Northern Indiana Pub. Serv. Co. v. Porter County Chapter of Izaak Walton League of America, Inc., 423 U. S. 12, 423 U. S. 15 (1975). Because applying an agency's regulation to complex or changing circumstances calls upon the agency's unique expertise and policymaking prerogatives, we presume that the power authoritatively to interpret its own regulations is a component of the agency's delegated lawmaking powers. See Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 444 U. S. 566, 568 (1980). The question before us in this case is to which administrative actor -- the Secretary or the Commission -- did Congress delegate this "interpretive" lawmaking power under the OSH Act. [Footnote 5]To put this question in perspective, it is necessary to take account of the unusual regulatory structure established by the Act. Under most regulatory schemes, rulemaking, enforcement, and adjudicative powers are combined in a single administrative authority. See, e.g., 15 U.S.C. § 41 et seq. (Federal Trade Commission); 15 U.S.C. §§ 77s-77u (Securities and Exchange Commission); 47 U.S.C. § 151 et seq. (Federal Communications Commission). Under the OSH Act, however, Congress separated enforcement and rulemaking powers from adjudicative powers, assigning these respective functions to two independent administrative authorities. The purpose of this "split enforcement" structure was to achieve a greater separation of functions than exists within the traditional "unitary" agency, which under the Administrative Procedure Act (APA) generally must divide enforcement and adjudication between separate personnel, see 5 U.S.C. § 554(d). See generally Johnson, The Split-Enforcement Model: Some Conclusions from the OSHA and MSHA Experiences, 39 Admin.L.Rev. 315, 317-319 (1987). Page 499 U. S. 152This is not the first time that we have been called upon to resolve an OSH Act "jurisdictional" dispute between the Secretary and the Commission. See Cuyahoga Valley R. Co. v. United Transp. Union, 474 U.S. at 474 U. S. 3. At issue in Cuyahoga Valley was whether the Commission could conduct an administrative adjudication notwithstanding the Secretary's motion to vacate the citation. We held that the Commission had no such power. We noted "that enforcement of the Act is the sole responsibility of the Secretary," and concluded that "[a] necessary adjunct of that power is the authority to withdraw a citation and enter into settlement discussions with the employer." Id. at 474 U. S. 6-7. The Commission's role as "neutral arbiter," we explained, "plainly does not extend to overturning the Secretary's decision not to issue or to withdraw a citation." Id. at 474 U. S. 7.Although the Act does not expressly address the issue, we now infer from the structure and history of the statute, see id. at 474 U. S. 6-7, that the power to render authoritative interpretations of OSH Act regulations is a "necessary adjunct" of the Secretary's powers to promulgate and to enforce national health and safety standards. The Secretary enjoys readily identifiable structural advantages over the Commission in rendering authoritative interpretations of OSH Act regulations. Because the Secretary promulgates these standards, the Secretary is in a better position than is the Commission to reconstruct the purpose of the regulations in question. Moreover, by virtue of the Secretary's statutory role as enforcer, the Secretary comes into contact with a much greater number of regulatory problems than does the Commission, which encounters only those regulatory episodes resulting in contested citations. Cf. Note, Employee Participation in Occupational Safety and Health Review Commission Proceedings, 85 Colum.L.Rev. 1317, 1331 and n. 90 (1985) (reporting small percentage of OSH Act citations contested between 1979 and 1985). Consequently, the Secretary is more likely to develop the expertise relevant to assessing the effect Page 499 U. S. 153 of a particular regulatory interpretation. Because historical familiarity and policymaking expertise account in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency, rather than to the reviewing court, see, e.g., Mullins Coal Co. v. Director, OWCP, 484 U. S. 135, 484 U. S. 159 (1987); Ford Motor Credit Co. v. Milhollin, supra, 444 U.S. at 444 U. S. 566; INS v. Stanisic, 395 U. S. 62, 395 U. S. 72 (1969), we presume here that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes.The legislative history of the OSH Act supports this conclusion. The version of the Act originally passed by the House of Representatives vested adjudicatory power in the Commission and rulemaking power in an independent standards board, leaving the Secretary with only enforcement power. 116 Cong.Rec. 38716 (1970), reprinted in Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, Pub.L. 91-596) (Committee Print prepared by the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare), pp. 1094-1096 (1970) (Legislative History). The Senate version dispensed with the standards board and established the division of responsibilities that survives in the enacted legislation. The Senate Committee Report explained that combining legislative and enforcement powers in the Secretary would result in "a sounder program" because it would make a single administrative actor responsible both for "formulat[ing] rules . . . and for seeing that they are workable and effective in their day-to-day application," and would allow Congress to hold a single administrative actor politically "accountable for the overall implementation of that program." S.Rep. No. 91-1282, p. 8 (1970), U.S.Code Cong. & Admin.News 1970, pp. 5175, 5184, 5185, reprinted in Legislative History 148. Because dividing the power to promulgate and enforce OSH Act standards from the power to make law by interpreting them would make two administrative actors ultimately responsible for implementing Page 499 U. S. 154 the Act's policy objectives, we conclude that Congress did not expect the Commission to possess authoritative interpretive powers.For the same reason, we reject the Court of Appeals' inference that Congress intended "to endow the Commission with the normal complement of adjudicative powers possessed by traditional administrative agencies." 891 F.2d at 1498 (emphasis added). Within traditional agencies -- that is, agencies possessing a unitary structure -- adjudication operates as an appropriate mechanism not only for factfinding, but also for the exercise of delegated lawmaking powers, including lawmaking by interpretation. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 416 U. S. 292-294 (1974); SEC v. Chenery Corp., 332 U. S. 194, 332 U. S. 201-203 (1947). But in these cases, we concluded that agency adjudication is a generally permissible mode of law- and policymaking only because the unitary agencies in question also had been delegated the power to make law and policy through rulemaking. See Bell Aerospace, supra, 416 U.S. at 416 U. S. 292-294; Chenery Corp., supra, 332 U.S. at 332 U. S. 202-203. See generally Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv.L.Rev. 921 (1965). Insofar as Congress did not invest the Commission with the power to make law or policy by other means, we cannot infer that Congress expected the Commission to use its adjudicatory power to play a policymaking role. Moreover, when a traditional, unitary agency uses adjudication to engage in lawmaking by regulatory interpretation, it necessarily interprets regulations that it has promulgated. This, too, cannot be said of the Commission's power to adjudicate.Consequently, we think the more plausible inference is that Congress intended to delegate to the Commission the type of nonpolicymaking adjudicatory powers typically exercised by a court in the agency-review context. Under this conception of adjudication, the Commission is authorized to review the Secretary's interpretations only for consistency Page 499 U. S. 155 with the regulatory language and for reasonableness. In addition, of course, Congress expressly charged the Commission with making authoritative findings of fact and with applying the Secretary's standards to those facts in making a decision. See 29 U.S.C. § 660(a) (Commission's factual findings "shall be conclusive" so long as "supported by substantial evidence"). The Commission need be viewed as possessing no more power than this in order to perform its statutory role as "neutral arbiter." See Cuyahoga Valley, 474 U.S. at 474 U. S. 7.CF & I draws a different conclusion from the history and structure of the Act. Congress, CF & I notes, established the Commission in response to concerns that combining rulemaking, enforcement, and adjudicatory power in the Secretary would leave employers unprotected from regulatory bias. Construing the Act to separate enforcement and interpretive powers is consistent with this purpose, CF & I argues, because it protects regulated employers from biased prosecutorial interpretations of the Secretary's regulations. Indeed, interpretations furnished in the course of administrative penalty actions, according to CF & I, are mere "litigating positions," undeserving of judicial deference under our precedents. See, e.g., Bowen v. Georgetown University Hospital, 488 U. S. 204, 488 U. S. 212 (1988).Although we find these concerns to be important, we think that they are overstated. It is clear that Congress adopted the split-enforcement structure in the OSH Act in order to achieve a greater separation of functions than exists in a conventional unitary agency. See S.Rep. No. 91-1282, supra, at 56, U.S.Code Cong. & Admin. News 1970, p. 5220, reprinted in Legislative History 195 (individual views of Sen. Javits) (noting that adjudication by independent panel goes beyond division of functions under the APA but defending split-enforcement structure as "more closely [in] accor[d] with traditional notions of due process"). But the conclusion that the Act should therefore be understood to separate enforcement powers from authoritative interpretive powers Page 499 U. S. 156 begs the question just how much Congress intended to depart from the unitary model. Sponsors of the Commission purported to be responding to the traditional objection that an agency head's participation in or supervision of agency investigations results in biased review of the decisions of the hearing officer, notwithstanding internal separations within the agency. See ibid. See generally 3 K. Davis, Administrative Law Treatise § 18.8, pp. 369-370 (2nd ed. 1980). Vesting authoritative factfinding and ALJ review powers in the Commission, an administrative body wholly independent of the administrative enforcer, dispels this concern.We harbor no doubt that Congress also intended to protect regulated parties from biased interpretations of the Secretary's regulations. But this objective is achieved when the Commission, and ultimately the court of appeals, review the Secretary's interpretation to assure that it is consistent with the regulatory language and is otherwise reasonable. Giving the Commission the power to substitute its reasonable interpretations for the Secretary's might slightly increase regulated parties' protection from overzealous interpretations. But it would also clearly frustrate Congress' intent to make a single administrative actor "accountable for the overall implementation" of the Act's policy objectives by combining legislative and enforcement powers in the Secretary. S.Rep. No. 91-1282, p. 8, U.S.Code Cong. & Admin.News 1970, p. 5185, reprinted in Legislative History 148.We are likewise unpersuaded by the contention that the Secretary's regulatory interpretations will necessarily appear in forms undeserving of judicial deference. Our decisions indicate that agency "litigating positions" are not entitled to deference when they are merely appellate counsel's "post hoc rationalizations" for agency action, advanced for the first time in the reviewing court. See Bowen v. Georgetown University Hospital, supra, at 212; Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 371 U. S. 168 (1962). Because statutory and regulatory interpretations furnished in this setting occur after agency proceedings have terminated, they do not Page 499 U. S. 157 constitute an exercise of the agency's delegated lawmaking powers. The Secretary's interpretation of OSH Act regulations in an administrative adjudication, however, is agency action, not a post hoc rationalization of it. Moreover, when embodied in a citation, the Secretary's interpretation assumes a form expressly provided for by Congress. See 29 U.S.C. § 658. Under these circumstances, the Secretary's litigating position before the Commission is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of a workplace health and safety standard.In addition, the Secretary regularly employs less formal means of interpreting regulations prior to issuing a citation. These include the promulgation of interpretive rules, see, e.g., Marshall v. W and W Steel Co., 604 F.2d 1322, 1325-1326 (CA10 1979); cf. Whirlpool Corp. v. Marshall, 445 U. S. 1, 445 U. S. 11 (1980), and the publication of agency enforcement guidelines, see United States Department of Labor, OSHA Field Operations Manual (3d ed. 1989). See generally S. Bokat & H. Thompson, Occupational Safety and Health Law 658-660 (1988). Although not entitled to the same deference as norms that derive from the exercise of the Secretary's delegated lawmaking powers, these informal interpretations are still entitled to some weight on judicial review. See Batterton v. Francis, 432 U. S. 416, 432 U. S. 425-426, and n. 9 (1977); Skidmore v. Swift & Co., 323 U. S. 134, 323 U. S. 140 (1944); Whirlpool, supra, 445 U.S. at 445 U. S. 11. A reviewing court may certainly consult them to determine whether the Secretary has consistently applied the interpretation embodied in the citation, a factor bearing on the reasonableness of the Secretary's position. See Ehlert v. United States, 402 U.S. at 402 U. S. 105.IIIWe emphasize the narrowness of our holding. We deal in this case only with the division of powers between the Secretary and the Commission under the OSH Act. We conclude from the available indicia of legislative intent that Congress Page 499 U. S. 158 did not intend to sever the power authoritatively to interpret OSH Act regulations from the Secretary's power to promulgate and enforce them. Subject only to constitutional limits, Congress is free, of course, to divide these powers as it chooses, and we take no position on the division of enforcement and interpretive powers within other regulatory schemes that conform to the split-enforcement structure. Nor should anything we say today be understood to bear on whether particular divisions of enforcement and adjudicative power within a unitary agency comport with § 554(d) of the APA.In addition, although we hold that a reviewing court may not prefer the reasonable interpretations of the Commission to the reasonable interpretations of the Secretary, we emphasize that the reviewing court should defer to the Secretary only if the Secretary's interpretation is reasonable. The Secretary's interpretation of an ambiguous regulation is subject to the same standard of substantive review as any other exercise of delegated lawmaking power. See 6 U.S.C. § 706(2)(A); Batterton v. Francis, supra, 432 U.S. at 432 U. S. 426. As we have indicated, the Secretary's interpretation is not undeserving of deference merely because the Secretary advances it for the first time in an administrative adjudication. But as the Secretary's counsel conceded in oral argument, Tr. of Oral Arg. 18-19, 20-21, the decision to use a citation as the initial means for announcing a particular interpretation may bear on the adequacy of notice to regulated parties, see Bell Aerospace, 416 U.S. at 416 U. S. 295; Bowen v. Georgetown University Hospital, 488 U.S. at 488 U. S. 220 (SCALIA, J., concurring), the quality of the Secretary's elaboration of pertinent policy considerations, see Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins Co., 463 U. S. 29, 463 U. S. 43 (1983), and other factors relevant to the reasonableness of the Secretary's exercise of delegated lawmaking powers. Page 499 U. S. 159CF & I urges us to hold that the Secretary unreasonably interpreted 29 CFR § 1910.1029(g)(3) in this case. However, because the Court of Appeals deferred to the Commission's interpretation, it had no occasion to address the reasonableness of the Secretary's interpretation. Rather than consider this issue for the first time ourselves, we leave the issue for resolution on remand.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 CourtMartin v. OSH Rev. Comm'n, 499 U.S. 144 (1991)Martin v. Occupational Safety and Health Review CommissionNo. 89-1541Argued Nov. 27, 1990Decided March 20, 1991499 U.S. 144SyllabusThe Occupational Safety and Health Act of 1970 assigns distinct regulatory tasks to two independent administrative actors: petitioner Secretary of Labor is charged with setting and enforcing workplace health and safety standards, and respondent Occupational Safety and Health Review Commission is responsible for carrying out adjudicatory functions. The Act also requires a court of appeals reviewing a Commission order to treat as "conclusive" Commission findings of fact that are "supported by substantial evidence." In this case, having found that respondent CF & I Steel Corporation had equipped some of its employees with loose-fitting respirators that exposed them to impermissible coke oven emission levels, the Secretary issued a citation to CF & I and assessed a monetary penalty against it for violating a regulation promulgated by the Secretary requiring an employer to institute a respiratory protection program. The Commission vacated the citation, ruling that the facts did not establish a violation of that regulation, which was the sole asserted basis for liability, since the regulation expressly requires only that an employer train employees in the proper use of respirators, whereas another regulation expressly states the employer's obligation to assure a proper fit. The Court of Appeals affirmed, holding that where, as here, the relevant regulations are ambiguous, a reviewing court must defer to the Commission's reasonable interpretation rather than the Secretary's interpretation, since Congress intended to delegate to the Commission the normal complement of adjudicative powers possessed by traditional administrative agencies, including the power to "declare' the law." Concluding that the Commission's interpretation was a reasonable one, the court did not assess the reasonableness of the Secretary's competing view.Held: A reviewing court should defer to the Secretary when the Secretary and the Commission furnish reasonable but conflicting interpretations of an ambiguous regulation promulgated by the Secretary under the Act. Pp. 499 U. S. 150-159.(a) It must be inferred from the Act's unusual "split enforcement" structure and from its legislative history that the power to render authoritative interpretations of the Secretary's regulations is a necessary adjunct of the Secretary's rulemaking and enforcement powers. The Page 499 U. S. 145 Secretary, as the promulgator of standards, is in a better position than the Commission to reconstruct the purpose of particular regulations. Moreover, since the Secretary, as enforcer, comes into contact with a much greater number of regulatory problems than does the Commission, the Secretary is more likely to develop the expertise relevant to assessing the effect of a particular regulatory interpretation. Furthermore, dividing the power to make and enforce standards from the power to make law by interpreting them would make two administrative actors ultimately responsible for implementing the Act's policy objectives, an outcome inconsistent with Congress' intent in combining legislative and enforcement powers in the Secretary. It must also be concluded that Congress did not intend to endow the Commission with the normal adjudicative powers possessed by a traditional, unitary agency. Such an agency permissibly uses adjudication to engage in lawmaking and policymaking only because it also has been delegated the power to make law and policy through rulemaking, and necessarily interprets regulations that it has promulgated. The more plausible inference is that the Commission was meant to have the type of nonpolicymaking adjudicatory powers typically exercised by a court in the agency-review context, such that the Commission is authorized to review the Secretary's interpretations only for consistency with the regulatory language and for reasonableness, and possesses no more power than is necessary to make authoritative findings of fact and to apply the Secretary's standards to those facts in making a decision. Although the Commission was established in response to concerns that combining rulemaking, enforcement, and adjudicatory power in the Secretary would leave employers unprotected from prosecutorial bias, such concerns are dispelled by the vesting of authoritative factfinding and review powers in a body wholly independent of the administrative enforcer; regulated parties are protected from biased interpretations when the Commission and ultimately the court of appeals review the Secretary's interpretation for reasonableness. Nor is such an interpretation, when furnished in the course of an administrative adjudication, a mere "litigating position" undeserving of judicial deference under this Court's precedents. Since such an interpretation is agency action, not a post hoc rationalization of it, and assumes a form expressly provided for by Congress when embodied in a citation, the Secretary's litigating position before the Commission is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of health and safety standards. Pp. 499 U. S. 150-157.(b) The reviewing court should defer to the Secretary only if the Secretary's interpretation of an ambiguous regulation is reasonable. That interpretation is subject to the same Administrative Procedure Act standard of substantive review that applies to any other exercise of delegated Page 499 U. S. 146 lawmaking power. Moreover, the decision to use a citation as the initial means for announcing a particular interpretation may bear on the adequacy of notice to regulated parties, the quality of the Secretary's elaboration of pertinent policy considerations, and other factors relevant to the reasonableness of the Secretary's exercise of delegated lawmaking powers. Since the Court of Appeals did not address the reasonableness of the Secretary's interpretation, it, rather than this Court, must do so in the first instance on remand. Pp. 499 U. S. 157-159.891 F.2d 1495 (CA10 1989), reversed and remanded.MARSHALL, J., delivered the opinion for a unanimous Court.

1970_515

MR. JUSTICE BRENNAN delivered the opinion of the Court.In 1951, the Southern Ute Tribe or Band of Indians, a part of the Confederated Bands of Utes, brought this claim before the Indian Claims Commission. [Footnote 1] The claim asserted that the United States had violated its fiduciary duty to respondent by (1) disposing of 220,000 acres of land as "free homesteads" although obligated by 21 Stat. Page 402 U. S. 160 203-204 (1880) and 28 Stat. 678 (1895) to sell the acreage for the respondent's benefit; and (2) by failing to account for the proceeds of 82,000 acres of land, which proceeds were, under the same Acts, to be held for the respondent's benefit. The Government's basic defense was res judicata by reason of Court of Claims consent judgments entered in 1950 between the United States and the Confederated Bands of Utes, including the respondent. [Footnote 2] Confederated Bands of Ute Indians v. United States, 117 Ct.Cl. 433 (1950). The Indian Claims Commission rejected the defense, 17 Ind.Cl.Comm. 28 (1966), but the Court of Claims, in an unpublished order, App. 57-58, remanded for the taking of additional evidence. On remand, the Commission again rejected the defense, 21 Ind.Cl.Comm. 268 (1969), and the Court of Claims affirmed, two judges dissenting. 191 Ct.Cl. 1, 423 F.2d 346 (1970). We granted certiorari. 400 U.S. 915 (1970). We reverse.The consent judgment entered in the Court of Claims gave effect to a settlement agreement which recited a stipulation of the parties that:"[A] judgment . . . shall be entered in this cause as full settlement and payment for the complete extinguishment of plaintiffs' right, title, interest, estate, claims and demands of whatsoever nature in and to the land and property in western Colorado ceded by plaintiffs to defendant by the Act of June 16, 1880 (21 Stat. 199), which (a) the United States sold Page 402 U. S. 161 for cash . . .(b) disposed of as free homesteads . . . and (c) set aside for public purposes [between 1910 and 1938]. . . . There is filed herewith and made a part of this stipulation Schedule 1, which contains the legal descriptions of [lands] . . . disposed of by defendant as free homesteads and the remaining . . . acres . . . set aside by the defendant for public purposes. . . . However, the judgment to be entered in this case is res judicata not only as to the land described in Schedule 1, but . . . also as to any land formerly owned or claimed by the plaintiffs in western Colorado, ceded to defendant by the Act of June 16, 1880. . . ."117 Ct.Cl. at 43437 (emphasis added). The lands involved in the present suit were not included in Schedule 1; rather, the Government relies upon the clause that the consent judgment was "res judicata . . . also as to any land . . . ceded to defendant by the Act of June 15, 1880. . . ."Both the Indian Claims Commission and the Court of Claims rejected the Government's res judicata defense on the ground that the claim concerning the lands involved in this action was not compromised by the 1950 settlement, because those lands were not among the lands "ceded to defendant by the Act of June 15, 1880."Decision of this case turns, then, upon the proper interpretation of the agreement, embodied in the Act of 1880, between the United States and the Ute Indians as it relates to the settlement agreement, reduced to judgment in 1950, between the same parties. The determination of that interpretation requires a somewhat lengthy factual recitation.In the latter half of the 19th century, what is now the Confederated Bands of Utes, composed of the Uncompahgre Utes, the White River Utes, and the Southern Page 402 U. S. 162 Utes, exchanged their aboriginal lands in New Mexico, Utah, and Colorado for a reservation of approximately 15.7 million acres lying wholly within Colorado. 13 Stat. 673 (1864); 15 Stat. 619 (1868). Although the acreage was undivided, the White River Utes lived in the northern portion of the reservation, the Uncompahgre Utes inhabited the central part, and the Southern Utes occupied the southern region. The reservation, however, survived little longer than a decade in this form. In 1874, the Utes approved the Brunot Cession of 3.7 million acres of the east-central portion of the reservation after valuable mineral deposits had been discovered there. 18 Stat. 36 (1874). [Footnote 3] The result of the cession was almost to sever the reservation, leaving the Southern Utes wedged between the southern boundary line of the Brunot Cession and the New Mexico border, at the southernmost part of the reservation on a strip of land 15 miles wide and 110 miles long. This strip, which includes the lands at issue here, is referred to by the parties as Royce Area 617, and the remainder of the reservation after the Brunot Cession is referred to as Royce Area 616. [Footnote 4]Within eight years, only the Southern Utes remained in Colorado: the White River Utes and the Uncompahgre Utes departed for Utah before 1882 as a consequence of the massacre in 1879 of Indian Agent Meeker and others at White River station. The public outcry over this incident led to negotiations with the Confederated Bands which produced the Act of 1880. Page 402 U. S. 163The central feature of the Act of 1880 was the termination of tribal ownership in the reservation lands, and the limitation of Indian ownership to such lands as might be allotted in severalty to individual Indians. The purposes of that provision were to destroy the tribal structure and to change the nomadic ways of the Utes by forcibly converting them from a pastoral to an agricultural people. See 10 Cong.Rec. 2059, 2066 (1880). The Act recited that it was enacted to accept "the agreement submitted by the confederated bands of Ute Indians in Colorado, for the sale of their reservation in said State. . . ." 21 Stat. 19 (1880). Thus, it was provided that the Confederated Bands "cede to the United States all the territory of the present Ute Reservation in Colorado, except as hereinafter provided for their settlement." 21 Stat. 200 (1880). The settlement provisions stipulated that the White River Utes would leave Colorado "and settle upon agricultural lands on the Uintah Reservation in Utah," ibid., and that"[t]he Uncompahgre Utes agree to remove to and settle upon agricultural lands on Grand River, near the mouth of the Gunnison River, in Colorado,"ibid., or if insufficient agricultural land was found there, go to Utah (which they soon did). The Southern Utes were to"remove to and settle upon the unoccupied agricultural lands on the La Plata River, in Colorado; and if there should not be a sufficiency of such lands on the La Plata River and in its vicinity in Colorado, then upon such other unoccupied agricultural lands as may be found on the La Plata River or in its vicinity in New Mexico."Ibid. Finally, it was provided that"all the lands not so allotted, the title to which is, by the said agreement of the confederated bands of the Ute Indians, and this acceptance by the United States, released and conveyed to the United States, shall be held and deemed to be public lands of the United Page 402 U. S. 164 States and subject to disposal,"but only for the financial benefit of the Utes. 21 Stat. 203-204 (1880).The plain wording of the Act cedes to the United States all of the nonallotted acreage of the reservation, including that in the 15-mile strip (Royce Area 617) occupied by the Southern Utes. The Court of Claims' opinion acknowledges this, stating that:"The most significant aspects to be gleaned from this [1880] Act . . . is that the Confederated Bands (Southern Utes included) seemed to cede their entire Colorado reservation -- Royce Area 616 and 617 -- and moreover promised to accept allotments in severalty in various sectors within and beyond reservation boundaries. As sole consideration for these promises, the Bands were to receive shares in the proceeds of unallotted land sales remaining after certain Government reimbursements. The Southern Utes were apportioned a one-third share, and, like their confederates, understood that such monies would be held by defendant in trust for their benefit."191 Ct.Cl. at 10, 423 F.2d at 350 (1970) (emphasis in original). Thus, if inquiry were to end with the wording of the 1880 Act, the consent judgment barred respondent's claim. The Commission and the Court of Claims did not, however, end their inquiry with the wording of the Act of 1880. Both of those tribunals considered the conduct of the United States in relation to respondent tribe in the years subsequent to passage of the Act of 1880. Even so, the basis of their rejection of the res judicata defense does not emerge from their opinions with complete clarity. The Court of Claims read the Commission's first opinion, 17 Ind.Cl.Comm. 28 (1966), as holding that the Southern Utes expressly withheld the southern strip from the lands ceded by the 1880 Act: "The Commission found that the Act of 1880 reserved' Royce Area 617 for the Southern Page 402 U. S. 165 Utes." 191 Ct.Cl. at 10, 423 F.2d at 350. Some language at that point of the opinion suggested that the Court of Claims was in agreement with that view --"the following sequence of events . . . support the conclusion that plaintiffs, at any rate, did not cede their reservation (Royce Area 617) under the agreement of 1880."Ibid. However, the opinion later turns the decision on a different theory:"The more tenable theory, in our estimation, is that Congress recognized that, by its protracted acquiescence in the Southern Ute occupation, Government rights to the land had somehow lapsed, or the agreement, not being executed for so long a time, was rescinded and dead. It may be that the obligation to deal justly and honorably with the Indian wards did not allow insistence on full implementation of the apparent terms of the 1880 agreement. On the other hand, the Southern Utes obviously did not see themselves as mere squatters. The Congress therefore decided that, if the land was going to be acquired free and clear, new consideration was necessary. Hence, we find section 5 of the 1895 agreement to be an explicit waiver of the Government's rights created in the 1880 agreement, whatever they were. It follows then that the Southern Ute lands in controversy were ceded in 1895, not 1880."Id. at 1920, 423 F.2d at 356.This reasoning implies that the holding that the lands in suit were not ceded in 1880 rests upon application of the doctrines of estoppel, or waiver, or a compound of those doctrines. We disagree that the history relied on supports any of those bases for decision, even assuming (and we have serious doubts) that the plain words of the Act of 1880 can thus be varied to except the lands in suit from the phrase "any land . . . ceded" in the consent Page 402 U. S. 166 judgment. We turn, then, seriatim to the events relied upon below.Even before 1880, the Southern Utes had experienced hardship in living on the southern strip. Essentially, they were a pastoral people, and the strip was so narrow that it was difficult to keep their animals within it. In addition, the white population to the north and south of the strip was increasing, and the resulting lines of commerce cut across the strip."The Indian Bureau, realizing that this strip, by reason of its narrowness and of its remoteness from the other portion of the reservation, was entirely unsuited to the use of the Indians, suggested that negotiations be entered into with them for the cession of that strip. In accordance with this, in 1878, Congress passed an act authorizing such negotiations (U.S.Stat.L., vol. 20, p. 48), and, under this authority, a commission . . . was appointed, and during the same year, they negotiated an agreement with the Indians whereby they agreed to exchange this strip for another reservation."S.Rep. No. 279, 53d Cong., 2d Sess., 1 (1894). But before the bill was acted upon by Congress, the Meeker Massacre occurred. [Footnote 5] The outcry following that incident caused Congress to adopt the solution in the Act of 1880 affecting all of the Ute tribes. Contrary to the apparent view of the Commission and Court of Claims, this segment of history does not show an intention Page 402 U. S. 167 to treat the Southern Utes differently from the other Utes; rather, it demonstrates a congressional decision to treat the Southern Utes as the White River and Uncompahgre Utes were being treated, save that the White River Utes were being completely banished from Colorado.The Act of 1880 provided that"a commission shall be sent to superintend the removal and settlement of the Utes, and to see that they are well provided with agricultural and pastoral lands sufficient for their future support. . . ."21 Stat. 201 (1880). The Commission visited the Southern Utes to carry out that mandate, and, in 1881, its chairman reported to Congress:"During my stay on the reservation, I took occasion . . . to talk to the leading men . . . on the subject of their location in severalty. In these conversations, I called their attention to the fact that the work the surveyors were doing was the preliminary step to such location [in severalty]. . . . I did not find one who desired a house, or would agree to dwell in one if built for him on his own land. It will take time and careful management to induce these Indians to abandon their present [way of living] and adopt the new mode of life contemplated by the agreement. ""In the meantime, and while the change is going on, they must be protected from annoyance. . . . To prevent intrusion and guarantee proper order and protection, I can see no other way than to so modify the [1880] agreement . . . as to maintain the exterior lines of the strip of land one hundred miles long and fifteen wide, and preserve all the land within these lines for an indefinite period as an Indian reservation. . . . Then the land selected, and upon which the Indians are to be located, can be kept free Page 402 U. S. 168 from intruders."H.R. Exec. Doc. No. 1, pt. 5, Vol. 2, 47th Cong., 1st Sess., 393 (1882).But Congress did not create the recommended reservation. Instead, Congress took action consistent with adherence to the plan of the Act of 1880. There had been great pressure to open Royce Areas 616 and 617 to homesteading after the Act of 1880 had resulted in the removal of the Uncompahgre and White River Utes. The Southern Utes were, however, still occupying the southern strip, Royce Area 617. The apparent result was the Act of July 28, 1882, 22 Stat. 178, which declared that all of the northern portions of the reservation formerly occupied by the Uncompahgre and White River Utes, Royce Area 616, were now public lands to be disposed of for the benefit of the Utes in accordance with the Act of 1880. Section 2 of that statute provided that the Secretary of the Interior "shall, at the earliest practicable day, ascertain and establish the line between" the two Royce Areas. 22 Stat. 178 (1882). We find nothing in the legislative history of that statute to support a finding that it evidenced a congressional conclusion that the southern strip had not been ceded by the Act of 1880. On the contrary, the thrust of the legislative history is that the line was drawn to assure that there would be no interference with the land in Royce Area 617 available for allotment to the Southern Utes under the Act of 1880. H.R.Rep. No. 799, 53d Cong., 2d Sess., 2 (1894); S.Rep. No. 279, 53d Cong., 2d Sess., 2, 3-4 (1894). [Footnote 6] Page 402 U. S. 169The Court of Claims also found support for its conclusion in what was said to a congressional committee by Ute spokesman for the Southern Utes at a meeting in the District of Columbia in 1886. The spokesman stated that the delegation had come"to see if we cannot exchange our reservation for another. . . . The present reservation is narrow and long, and we want to go west and see if we can't sell it."S.Rep. No. 836, 49th Cong., 1st Sess., 1 (1886). The Court of Claims viewed this as demonstrating that "the Southern Utes were still in possession of their part of their old reservation under claim of right." 191 Ct.Cl. at 14, 423 F.2d at 353. We do not doubt that the Southern Utes regarded the lands they occupied as "our reservation," but we fail to see how this nullifies the conveyance of the strip made by the Act of 1880. On the contrary, there is cogent evidence that the United States totally rejected the Indians' claim that the strip was "our reservation." After two bills to effectuate the removal of the Southern Utes failed to pass, Congress enacted 25 Stat. 133 (1888) empowering"[t]he Secretary of the Interior . . . to appoint a commission . . . with authority to negotiate with the band of Ute Indians of southern Colorado for such modification of their treaty and other rights, and such exchange of their reservation, as may be deemed desirable by said Indians and the Secretary of the Interior. . . ."Ibid. Despite the reference to "their reservation," the premise of this statute was obviously that amelioration of the plight of the Southern Utes would require "modification of their treaty and other rights" as they had been fixed in the Act of 1880. Even the Court of Claims thought the Act of 1888 little support for the respondents' contention:"Although the language of this act tends to favor plaintiffs' position it is by no means conclusive. It Page 402 U. S. 170 merely authorized the establishment of a commission to engage the Southern Utes in negotiations for the purpose of persuading them to do belatedly what the Uncompahgre and White River Utes had done some years earlier, namely, to vacate their reservation and move elsewhere. A reasonable explanation for the act's exclusive terms is that the Southern Utes were the only band of the confederation as to whom the 1880 agreement was still executory."191 Ct.Cl. at 15, 423 F.2d at 353-354.The Commission formed pursuant to the Act of 1888 did succeed in negotiating n agreement with the Southern Utes, under which the Southern Utes would have been moved to a reservation in San Juan County, Utah. The Court of Claims observed that, in such case,"[p]resumably, their evacuated reservation lands would then be sold in accordance with the Act of 1880, and the proceeds would be held for the collective benefit of the Confederated Bands in the prescribed proportions, that is, the consideration visualized in the 1880 agreement as accruing to the Southern Utes would still accrue."191 Ct.Cl. at 16, 423 F.2d at 354. In other words, the treatment of the Southern Utes would be precisely that accorded the Uncompahgre and White River Utes when they left Colorado. But this event only serves to furnish still more proof that the Government remained firm in its position that the strip was ceded by the Act of 1880.This is confirmed by the congressional reaction when the agreement was submitted for approval -- nothing happened for six years, and the agreement was again introduced in 1894. The opinion of the Court of Claims depicts the situation:"Conceding the 'anomalous position [of the Southern Utes] of having ceded their reservation and yet remaining on it,' the Senate Committee on Indian Affairs favored ratification (Sen.Rep. No. 279, 53d Page 402 U. S. 171 Cong., 2d Sess. 2-3 (1894)). Its House counterpart, although concurring in the view that the Southern Utes presented an anomalous situation, did not assent to ratification (H.R.Rep. No. 799, 53d Cong., 2d Sess. 2-3 (1894)). It believed that the proposed reservation was too large for the Southern Utes, and hence would encourage their nomadic ways. Therefore, instead, the House Committee recommended enactment of a pending bill which was eventually passed as the Act of February 20, 1895 (28 Stat. 677). The stated purpose of this Act was to annul the agreement of 1888 and enforce the treaty of 1880 which sought to settle the Indians in severalty."191 Ct.Cl. at 16, 423 F.2d at 354. This recital refutes, rather than supports, the notion that the United States followed a pattern or course of conduct after 1880 that regarded the Southern Utes, rather than the United States, as the owners of Royce Area 617.Finally, we cannot agree with the Court of Claims that § 5 of the Act of 1895 is "an explicit waiver of the Government's rights created in the 1880 agreement, whatever they were." 191 Ct.Cl. at 19-20, 423 F.2d at 356. The Act of 1895, in addition to annulling the 1888 agreement, expressly confirmed the Act of 1880 and directed the Secretary of the Interior to proceed with allotments in severalty to the Southern Utes "in accordance with the provisions of the Act of [1880]." 28 Stat. 677 (1895). It went on to settle the grievances of those Southern Utes who wanted their own reservation, rather than allotments in severalty, by providing that "there shall be . . . set apart and reserved all that portion of their present reservation lying west of" a defined line in the strip. Id. at 678. We do not see how the United States could have "set apart and reserved" a portion of the strip for a reservation unless the strip belonged to it. The remainder of the strip to the east of the new reservation Page 402 U. S. 172 was to be available for allotments in severalty to individual Southern Utes, and the land not allotted was to "be and become a part of the public domain," to be sold for the benefit of said Utes. Ibid. Section 5 allocated the proceeds from sales of the land opened to public settlement. We look in vain for anything in that section to support the conclusion of the Court of Claims that it contains an "explicit waiver" by the United States of its rights under the Act of 1880 and that "[i]t follows then that the Southern Ute lands in controversy were ceded in 1895, not 1880." 191 Ct.Cl. at 20, 423 F.2d at 356. The Senate Report recommending passage of the Act of 1895 belies that conclusion. The report repeats, once again, the previously stated position of the Congress that,"[o]n March 6, 1880, [the Utes] . . . ceded the whole of their reservation in Colorado to the United States, except such lands, if any, as might be allotted to them in severalty."S.Rep. No. 279, supra, at 2. We discern nothing in § 5 save some revision of the formula for allocation of the proceeds of the sales of the unallotted lands in the portion of the strip east of the reservation. [Footnote 7] We find absolutely Page 402 U. S. 173 no language that the Southern Utes made any cession thereby, and indeed, we are convinced that the wording is consistent only with the fact that they had no land to cede. [Footnote 8] The Act of 1895 simply resolved the impasse over the allotments in severalty which had existed for 15 years because of the Southern Utes' reluctance to accept them. The United States created a new reservation for them, while still permitting allotments to those Southern Utes willing and qualified to engage in farming. This plan was clearly constructed in reliance Page 402 U. S. 174 upon, not in derogation of, the cession made under the Act of 1880.We therefore hold that the claim in this case is res judicata under the 1950 consent judgment enforcing the settlement agreement "as to any land . . . ceded to defendant by the Act of June 15, 1880." [Footnote 9]Reversed

U.S. Supreme CourtUnited States v. Southern Ute Indians, 402 U.S. 159 (1971)United States v. Southern Ute Tribe or Band of IndiansNo. 515Argued March 1, 1971Decided April 26, 1971402 U.S. 159SyllabusRespondent's claims for compensation and accounting are barred by res judicata, since they relate to land "formerly owned or claimed by [the Confederated Bands of Utes] in western Colorado, ceded to [the United States] by the Act of June 15, 1880," and thus were subject to a final settlement reduced to a consent judgment, to which respondent was a party, made in 1950. Pp. 402 U. S. 161-174.191 Ct.Cl. 1, 423 F.2d 34, reversed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACK, HARLAN, STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS J., filed a dissenting opinion, post, p. 402 U. S. 174.

1995_94-1785

JUSTICE O'CONNOR delivered the opinion of the Court.In this case, we consider the "look-back" period for obtaining a refund of overpaid taxes in the United States Tax Court under 26 U. S. C. § 6512(b)(3)(B), and decide whether the Tax Court can award a refund of taxes paid more than two years prior to the date on which the Commissioner of Internal Revenue mailed the taxpayer a notice of deficiency, when, on the date the notice of deficiency was mailed, the taxpayer had not yet filed a return. We hold that in these circumstances the 2-year look-back period set forth in § 6512(b)(3)(B) applies, and the Tax Court lacks jurisdiction to award a refund.IDuring 1987, respondent Robert F. Lundy and his wife had $10,131 in federal income taxes withheld from their wages. This amount was substantially more than the $6,594 the Lundys actually owed in taxes for that year, but the Lundys did not file their 1987 tax return when it was due, nor did they file a return or claim a refund of the overpaid taxes in the succeeding 21/2 years. On September 26, 1990, the Commissioner of Internal Revenue mailed Lundy a notice of deficiency, informing him that he owed $7,672 in additional taxes and interest for 1987 and that he was liable for substantial penalties for delinquent filing and negligent underpayment of taxes. See 26 U. S. C. §§ 6651(a)(1) and 6653(1).Lundy and his wife mailed their joint tax return for 1987 to the Internal Revenue Service (IRS) on December 22, 1990. This return indicated that the Lundys had overpaid their income taxes for 1987 by $3,537 and claimed a refund in that amount. Six days after the return was mailed, Lundy filed a timely petition in the Tax Court seeking a redetermination of the claimed deficiency and a refund of the couple's overpaid taxes. The Commissioner filed an answer generally denying the allegations in Lundy's petition. Thereafter, the parties negotiated towards a settlement of the claimed deficiency and refund claim. On March 17, 1992, the Commis-238sioner filed an amended answer acknowledging that Lundy had filed a tax return and that Lundy claimed to have overpaid his 1987 taxes by $3,537.The Commissioner contended in this amended pleading that the Tax Court lacked jurisdiction to award Lundy a refund. The Commissioner argued that if a taxpayer does not file a tax return before the IRS mails the taxpayer a notice of deficiency, the Tax Court can only award the taxpayer a refund of taxes paid within two years prior to the date the notice of deficiency was mailed. See 26 U. S. C. § 6512(b)(3)(B). Under the Commissioner's interpretation of § 6512(b)(3)(B), the Tax Court lacked jurisdiction to award Lundy a refund because Lundy's withheld taxes were deemed paid on the date that his 1987 tax return was due (April 15, 1988), see § 6513(b)(1), which is more than two years before the date the notice was mailed (September 26, 1990).The Tax Court agreed with the position taken by the Commissioner and denied Lundy's refund claim. Citing an unbroken line of Tax Court cases adopting a similar interpretation of § 6512(b)(3)(B), e. g., Allen v. Commissioner, 99 T. C. 475,479-480 (1992); Galuska v. Commissioner, 98 T. C. 661, 665 (1992); Berry v. Commissioner, 97 T. C. 339, 344-345 (1991); White v. Commissioner, 72 T. C. 1126, 1131-1133 (1979) (renumbered statute); Hosking v. Commissioner, 62 T. C. 635, 642-643 (1974) (renumbered statute), the Tax Court held that if a taxpayer has not filed a tax return by the time the notice of deficiency is mailed, and the notice is mailed more than two years after the date on which the taxes are paid, the look-back period under § 6512(b)(3)(B) is two years and the Tax Court lacks jurisdiction to award a refund. 65 TCM 3011, 3014-3015 (1993), , 93,278 RIA Memo TC.The Court of Appeals for the Fourth Circuit reversed, finding that the applicable look-back period in these circumstances is three years and that the Tax Court had juris-239diction to award Lundy a refund. 45 F.3d 856, 861 (1995). Every other Court of Appeals to have addressed the question has affirmed the Tax Court's interpretation of § 6512(b)(3)(B). See Davison v. Commissioner, 9 F.3d 1538 (CA2 1993) (judgt. order); Allen v. Commissioner, 23 F.3d 406 (CA6 1994) (judgt. order); Galuska v. Commissioner, 5 F.3d 195, 196 (CA7 1993); Richards v. Commissioner, 37 F. 3d 587, 589 (CAlO 1994); see also Rossman v. Commissioner, 46 F.3d 1144 (CA91995) (judgt. order) (aff'g on other grounds). We granted certiorari to resolve the conflict, 515 U. S. 1102 (1995), and now reverse.IIA taxpayer seeking a refund of overpaid taxes ordinarily must file a timely claim for a refund with the IRS under 26 U. S. C. § 6511.1 That section contains two separate pro vi-1 In relevant part, § 6511 provides:"(a) Period of limitation on filing claim"Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Claim for credit or refund of an overpayment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid."(b) Limitation on allowance of credits and refunds "(1) Filing of claim within prescribed period"No credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in subsection (a) for the filing of a claim for credit or refund, unless a claim for credit or refund is filed by the taxpayer within such period."(2) Limit on amount of credit or refund"(A) Limit where claim filed within 3-year period"If the claim was filed by the taxpayer during the 3-year period prescribed in subsection (a), the amount of the credit or refund shall not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to 3 years plus the period of any extension of240sions for determining the timeliness of a refund claim. It first establishes a filing deadline: The taxpayer must file a claim for a refund "within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid." § 6511(b)(1) (incorporating by reference § 6511(a)). It also defines two "look-back" periods: If the claim is filed "within 3 years from the time the return was filed," ibid., then the taxpayer is entitled to a refund of "the portion of the tax paid within the 3 years immediately preceding the filing of the claim." § 6511(b)(2)(A) (incorporating by reference § 6511(a)). If the claim is not filed within that 3-year period, then the taxpayer is entitled to a refund of only that "portion of the tax paid during the 2 years immediately preceding the filing of the claim." § 6511(b)(2)(B) (incorporating by reference § 6511(a)).Unlike the provisions governing refund suits in United States District Court or the United States Court of Federal Claims, which make timely filing of a refund claim a jurisdictional prerequisite to bringing suit, see 26 U. S. C. § 7422(a); Martin v. United States, 833 F.2d 655, 658-659 (CA7 1987), the restrictions governing the Tax Court's authority to award a refund of overpaid taxes incorporate only the lookback period and not the filing deadline from § 6511. See 26time for filing the return. If the tax was required to be paid by means of a stamp, the amount of the credit or refund shall not exceed the portion of the tax paid within the 3 years immediately preceding the filing of the claim."(B) Limit where claim not filed within 3-year period"If the claim was not filed within such 3-year period, the amount of the credit or refund shall not exceed the portion of the tax paid during the 2 years immediately preceding the filing of the claim."(C) Limit if no claim filed"If no claim was filed, the credit or refund shall not exceed the amount which would be allowable under subparagraph (A) or (B), as the case may be, if claim was filed on the date the credit or refund is allowed."241u. S. C. § 6512(b)(3).2 Consequently, a taxpayer who seeks a refund in the Tax Court, like respondent, does not need to actually file a claim for refund with the IRS; the taxpayer need only show that the tax to be refunded was paid during the applicable look-back period.In this case, the applicable look-back period is set forth in § 6512(b)(3)(B), which provides that the Tax Court cannot award a refund of any overpaid taxes unless it first determines that the taxes were paid:"within the period which would be applicable under section 6511(b)(2) ... if on the date of the mailing of the2 In relevant part, § 6512(b) provides: "(1) Jurisdiction to determine"Except as provided by paragraph (3) and by section 7463, if the Tax Court finds that there is no deficiency and further finds that the taxpayer has made an overpayment of income tax for the same taxable year ... in respect of which the Secretary determined the deficiency, or finds that there is a deficiency but that the taxpayer has made an overpayment of such tax, the Tax Court shall have jurisdiction to determine the amount of such overpayment, and such amount shall, when the decision of the Tax Court has become final, be credited or refunded to the taxpayer."(3) Limit on amount of credit or refund"No such credit or refund shall be allowed or made of any portion of the tax unless the Tax Court determines as part of its decision that such portion was paid-"(A) after the mailing of the notice of deficiency,"(B) within the period which would be applicable under section 6511(b)(2), (c), or (d), if on the date of the mailing of the notice of deficiency a claim had been filed (whether or not filed) stating the grounds upon which the Tax Court finds that there is an overpayment, or"(C) within the period which would be applicable under section 6511(b)(2), (c), or (d), in respect of any claim for refund filed within the applicable period specified in section 6511 and before the date of the mailing of the notice of deficiency-"(i) which had not been disallowed before that date,"(ii) which had been disallowed before that date and in respect of which a timely suit for refund could have been commenced as of that date, or "(iii) in respect of which a suit for refund had been commenced before that date and within the period specified in section 6532."242notice of deficiency a claim had been filed (whether or not filed) stating the grounds upon which the Tax Court finds that there is an overpayment."The analysis dictated by § 6512(b)(3)(B) is not elegant, but it is straightforward. Though some courts have adverted to the filing of a "deemed claim," see Galuska, 5 F. 3d, at 196; Richards, 37 F. 3d, at 589, all that matters for the proper application of § 6512(b)(3)(B) is that the "claim" contemplated in that section be treated as the only mechanism for determining whether a taxpayer can recover a refund. Section 6512(b)(3)(B) defines the look-back period that applies in Tax Court by incorporating the look-back provisions from § 6511(b)(2), and directs the Tax Court to determine the applicable period by inquiring into the timeliness of a hypothetical claim for refund filed "on the date of the mailing of the notice of deficiency."To this end, § 6512(b)(3)(B) directs the Tax Court's attention to § 6511(b)(2), which in turn instructs the court to apply either a 3-year or a 2-year look-back period. See §§ 6511(b)(2)(A) and (B) (incorporating by reference § 6511(a)); see supra, at 240. To decide which of these lookback periods to apply, the Tax Court must consult the filing provisions of § 6511(a) and ask whether the claim described by § 6512(b)(3)(B)-a claim filed "on the date of the mailing of the notice of deficiency" -would be filed "within 3 years from the time the return was filed." See § 6511(b)(2)(A) (incorporating by reference § 6511(a)). If a claim filed on the date of the mailing of the notice of deficiency would be filed within that 3-year period, then the look-back period is also three years and the Tax Court has jurisdiction to award a refund of any taxes paid within three years prior to the date of the mailing of the notice of deficiency. §§ 6511(b)(2)(A) and 6512(b)(3)(B). If the claim would not be filed within that 3-year period, then the period for awarding a refund is only two years. §§ 6511(b)(2)(B) and 6512(b)(3)(B).243In this case, we must determine which of these two lookback periods to apply when the taxpayer fails to file a tax return when it is due, and the Commissioner mails the taxpayer a notice of deficiency before the taxpayer gets around to filing a late return. The Fourth Circuit held that a taxpayer in this situation is entitled to a 3-year look-back period if the taxpayer actually files a timely claim at some point in the litigation, see infra, at 246, and respondent offers additional reasons for applying a 3-year look-back period, see infra, at 249-252. We think the proper application of § 6512(b)(3)(B) instead requires that a 2-year look-back period be applied.We reach this conclusion by following the instructions set out in § 6512(b)(3)(B). The operative question is whether a claim filed "on the date of the mailing of the notice of deficiency" would be filed "within 3 years from the time the return was filed." See § 6512(b)(3)(B) (incorporating §§ 6511(b)(2) and 6511(a)). In the case of a taxpayer who does not file a return before the notice of deficiency is mailed, the claim described in § 6512(b)(3)(B) could not be filed "within 3 years from the time the return was filed." No return having been filed, there is no date from which to measure the 3-year filing period described in § 6511(a). Consequently, the claim contemplated in § 6512(b)(3)(B) would not be filed within the 3-year window described in § 6511(a), and the 3-year look-back period set out in § 6511(b)(2)(A) would not apply. The applicable look-back period is instead the default 2-year period described in § 6511(b)(2)(B), which is measured from the date of the mailing of the notice of deficiency, see § 6512(b)(3)(B). The taxpayer is entitled to a refund of any taxes paid within two years prior to the date of the mailing of the notice of deficiency.Special rules might apply in some cases, see, e. g., § 6511(c) (extension of time by agreement); § 6511(d) (special limita-244tions periods for designated items), but in the case where the taxpayer has filed a timely tax return and the IRS is claiming a deficiency in taxes from that return, the interplay of §§ 6512(b)(3)(B) and 6511(b)(2) generally ensures that the taxpayer can obtain a refund of any taxes against which the IRS is asserting a deficiency. In most cases, the notice of deficiency must be mailed within three years from the date the tax return is filed. See 26 U. S. C. §§ 6501(a) and 6503(a)(1); Badaracco v. Commissioner, 464 U. S. 386, 389, 392 (1984). Therefore, if the taxpayer has already filed a return (albeit perhaps a faulty one), any claim filed "on the date of the mailing of the notice of deficiency" would necessarily be filed within three years from the date the return is filed. In these circumstances, the applicable look-back period under § 6512(b)(3)(B) would be the 3-year period defined in § 6511(b)(2)(A), and the Tax Court would have jurisdiction to award a refund.Therefore, in the case of a taxpayer who files a timely tax return, § 6512(b)(3)(B) usually operates to toll the filing period that might otherwise deprive the taxpayer of the opportunity to seek a refund. If a taxpayer contesting the accuracy of a previously filed tax return in Tax Court discovers for the first time during the course of litigation that he is entitled to a refund, the taxpayer can obtain a refund from the Tax Court without first filing a timely claim for refund with the IRS. It does not matter, as it would in district court, see § 7422 (incorporating § 6511), that the taxpayer has discovered the entitlement to a refund well after the period for filing a timely refund claim with the IRS has passed, because § 6512(b)(3)(B) applies "whether or not [a claim is] filed," and the look-back period is measured from the date of the mailing of the notice of deficiency. Ibid. Nor does it matter, as it might in a refund suit, see 26 CFR § 301.64022(b)(1) (1995), whether the taxpayer has previously apprised the IRS of the precise basis for the refund claim, because 26 U. S. C. § 6512(b)(3)(B) posits the filing of a hypothetical claim245"stating the grounds upon which the Tax Court finds that there is an overpayment."Section 6512(b)(3)(B) treats delinquent filers of income tax returns less charitably. Whereas timely filers are virtually assured the opportunity to seek a refund in the event they are drawn into Tax Court litigation, a delinquent filer's entitlement to a refund in Tax Court depends on the date of the mailing of the notice of deficiency. Section 6512(b)(3)(B) tolls the limitations period, in that it directs the Tax Court to measure the look-back period from the date on which the notice of deficiency is mailed and not the date on which the taxpayer actually files a claim for refund. But in the case of delinquent filers, § 6512(b)(3)(B) establishes only a 2-year look-back period, so the delinquent filer is not assured the opportunity to seek a refund in Tax Court: If the notice of deficiency is mailed more than two years after the taxes were paid, the Tax Court lacks jurisdiction to award the taxpayer a refund.The Tax Court properly applied this 2-year look-back period to Lundy's case. As of September 26, 1990 (the date the notice was mailed), Lundy had not filed a tax return. Consequently, a claim filed on that date would not be filed within the 3-year period described in § 6511(a), and the 2year period from § 6511(b)(2)(B) applies. Lundy's taxes were withheld from his wages, so they are deemed paid on the date his 1987 tax return was due (April 15, 1988), see § 6513(b)(1), which is more than two years prior to the date the notice of deficiency was mailed (September 26, 1990). Lundy is therefore seeking a refund of taxes paid outside the applicable look-back period, and the Tax Court lacks jurisdiction to award such a refund.IIIIn deciding Lundy's case, the Fourth Circuit adopted a different approach to interpreting § 6512(b)(3)(B) and applied a 3-year look-back period. Respondent supports the Fourth246Circuit's rationale, but also offers an argument for applying a uniform 3-year look-back period under § 6512(b)(3)(B). We find neither position persuasive.The Fourth Circuit held:"[T]he Tax Court, when applying the limitation provision of § 6511(b)(2) in light of § 6512(b)(3)(B), should substitute the date of the mailing of the notice of deficiency for the date on which the taxpayer filed the claim for refund, but only for the purpose of determining the benchmark date for measuring the limitation period and not for the purpose of determining whether the twoyear or three-year limitation period applies." 45 F. 3d, at 861.In other words, the Fourth Circuit held that the look-back period is measured from the date of the mailing of the notice of deficiency (i. e., the taxpayer is entitled to a refund of any taxes paid within either two or three years prior to that date), but that that date is irrelevant in calculating the length of the look-back period itself. The look-back period, the Fourth Circuit held, must be defined in terms of the date that the taxpayer actually filed a claim for refund. Ibid. ("[T]he three-year limitation period applies because Lundy filed his claim for refund ... within three years of filing his tax return"). Thus, under the Fourth Circuit's view, Lundy was entitled to a 3-year look-back period because Lundy's late-filed 1987 tax return contained a claim for refund, and that claim was filed within three years from the filing of the return. Ibid. (taxpayer entitled to same look-back period that would apply in district court).Contrary to the Fourth Circuit's interpretation, the fact that Lundy actually filed a claim for a refund after the date on which the Commissioner mailed the notice of deficiency has no bearing in determining whether the Tax Court has jurisdiction to award Lundy a refund. See supra, at 240241. Once a taxpayer files a petition with the Tax Court,247the Tax Court has exclusive jurisdiction to determine the existence of a deficiency or to award a refund, see 26 U. S. C. § 6512(a), and the Tax Court's jurisdiction to award a refund is limited to those circumstances delineated in § 6512(b)(3). Section 6512(b)(3)(C) is the only provision that measures the look-back period based on a refund claim that is actually filed by the taxpayer, and that provision is inapplicable here because it only applies to refund claims filed "before the date of the mailing of the notice of deficiency." § 6512(b)(3)(C). Under § 6512(b)(3)(B), which is the provision that does apply, the Tax Court is instructed to consider only the timeliness of a claim filed "on the date of the mailing of the notice of deficiency," not the timeliness of any claim that the taxpayer might actually file.The Fourth Circuit's rule also leads to a result that Congress could not have intended, in that it subjects the timely, not the delinquent, filer to a shorter limitations period in Tax Court. Under the Fourth Circuit's rule, the availability of a refund turns entirely on whether the taxpayer has in fact filed a claim for refund with the IRS, because it is the date of actual filing that determines the applicable look-back period under § 6511(b)(2) (and, by incorporation, § 6512(b)(3)(B)). See 45 F. 3d, at 861; supra, at 246. This rule might "eliminat[e] the inequities resulting" from adhering to the 2-year look-back period, 45 F. 3d, at 863, but it creates an even greater inequity in the case of a taxpayer who dutifully files a tax return when it is due, but does not initially claim a refund. We think our interpretation of the statute achieves an appropriate and reasonable result in this case: The taxpayer who files a timely income tax return could obtain a refund in the Tax Court under § 6512(b)(3)(B), without regard to whether the taxpayer has actually filed a timely claim for refund. See supra, at 244-245.If it is the actual filing of a refund claim that determines the length of the look-back period, as the Fourth Circuit held, the filer of a timely income tax return might be out of248luck. If the taxpayer does not file a claim for refund with his tax return, and the notice of deficiency arrives shortly before the 3-year period for filing a timely claim expires, see §§ 6511(a) and (b)(l), the taxpayer might not discover his entitlement to a refund until well after the commencement of litigation in the Tax Court. But having filed a timely return, the taxpayer would be precluded by the passage of time from filing an actual claim for refund "within 3 years from the time the return was filed," as § 6511(b) (2)(A) requires. § 6511(b)(2)(A) (incorporating by reference § 6511(a)). The taxpayer would therefore be entitled only to a refund of taxes paid within two years prior to the mailing of the notice of deficiency. See § 6511(b)(2)(B); 45 F. 3d, at 861-862 (taxpayer entitled to same look-back period as would apply in district court, and look-back period is determined based on date of actual filing). It is unlikely that Congress intended for a taxpayer in Tax Court to be worse off for having filed a timely return, but that result would be compelled under the Fourth Circuit's approach.Lundy offers an alternative reading of the statute that avoids this unreasonable result, but Lundy's approach is similarly defective. The main thrust of Lundy's argument is that the "claim" contemplated in § 6512(b)(3)(B) could be filed "within 3 years from the time the return was filed," such that the applicable look-back period under § 6512(b)(3)(B) would be three years, if the claim were itself filed on a tax return. Lundy in fact argues that Congress must have intended the claim described in § 6512(b)(3)(B) to be a claim filed on a return, because there is no other way to file a claim for refund with the IRS. Brief for Respondent 28, 30 (citing 26 CFR § 301.6402-3(a)(1) (1995)). Lundy therefore argues that § 6512(b)(3)(B) incorporates a uniform 3-year look-back period for Tax Court cases: If the taxpayer files a timely return, the notice of deficiency (and the "claim" under § 6512(b)(3)(B)) will necessarily be filed within three years of the return and the look-back period is three years; if the249taxpayer does not file a return, then the claim contemplated in § 6512(b)(3)(B) is deemed to be a claim filed with, and thus within three years of, a return and the look-back period is again three years.Like the Fourth Circuit's approach, Lundy's reading of the statute has the convenient effect of ensuring that taxpayers in Lundy's position can almost always obtain a refund if they file in Tax Court, but we are bound by the terms Congress chose to use when it drafted the statute, and we do not think that the term "claim" as it is used in § 6512(b)(3)(B) is susceptible of the interpretation Lundy has given it. The Internal Revenue Code does not define the term "claim for refund" as it is used in § 6512(b)(3)(B), cf. 26 U. S. C. § 6696(e)(2) ("For purposes of sections 6694 and 6695 ... [t]he term 'claim for refund' means a claim for refund of, or credit against, any tax imposed by subtitle N'), but it is apparent from the language of § 6512(b)(3)(B) and the statute as a whole that a claim for refund can be filed separately from a return. Section 6512(b)(3)(B) provides that the Tax Court has jurisdiction to award a refund to the extent the taxpayer would be entitled to a refund "if on the date of the mailing of the notice of deficiency a claim had been filed." (Emphasis added.) It does not state, as Lundy would have it, that a taxpayer is entitled to a refund if on that date "a claim and a return had been filed."Perhaps the most compelling evidence that Congress did not intend the term "claim" in § 6512 to mean a "claim filed on a return" is the parallel use of the term "claim" in § 6511(a). Section 6511(a) indicates that a claim for refund is timely if it is "filed by the taxpayer within 3 years from the time the return was filed," and it plainly contemplates that a claim can be filed even "if no return was filed." If a claim could only be filed with a return, as Lundy contends, these provisions of the statute would be senseless, cf. 26 U. S. C. § 6696 (separately defining "claim for refund" and "return"), and we have been given no reason to believe that Congress250meant the term "claim" to mean one thing in § 6511 but to mean something else altogether in the very next section of the statute. The interrelationship and close proximity of these provisions of the statute "presents a classic case for application of the 'normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.'" Sullivan v. Stroop, 496 U. S. 478, 484 (1990) (quoting Sorenson v. Secretary of Treasury, 475 U. S. 851, 860 (1986) (internal quotation marks omitted)).The regulation Lundy cites in support of his interpretation, 26 CFR § 301.6402-3(a)(1) (1995), is consistent with our interpretation of the statute. That regulation states only that a claim must "[i]n general" be filed on a return, ibid., inviting the obvious conclusion that there are some circumstances in which a claim and a return can be filed separately. We have previously recognized that even a claim that does not comply with federal regulations might suffice to toll the limitations periods under the Tax Code, see, e. g., United States v. Kales, 314 U. S. 186, 194 (1941) ("notice fairly advising the Commissioner of the nature of the taxpayer's claim" tolls the limitations period, even if "it does not comply with formal requirements of the statute and regulations"), and we must assume that if Congress had intended to require that the "claim" described in § 6512(b)(3)(B) be a "claim filed on a return," it would have said so explicitly.IVLundy offers two policy-based arguments for applying a 3-year look-back period under § 6512(b)(3)(B). He argues that the application of a 2-year period is contrary to Congress' broad intent in drafting § 6512(b)(3)(B), which was to preserve, not defeat, a taxpayer's claim to a refund in Tax Court, and he claims that our interpretation creates an incongruity between the limitations period that applies in Tax Court litigation and the period that would apply in a refund251suit filed in district court or the Court of Federal Claims. Even if we were inclined to depart from the plain language of the statute, we would find neither of these arguments persuasive.Lundy correctly argues that Congress intended § 6512(b) (3)(B) to permit taxpayers to seek a refund in Tax Court in circumstances in which they might otherwise be barred from filing an administrative claim for refund with the IRS. This is in fact the way § 6512(b)(3)(B) operates in a large number of cases. See supra, at 244-245. But that does not mean that Congress intended that § 6512(b)(3)(B) would always preserve taxpayers' ability to seek a refund. Indeed, it is apparent from the face of the statute that Congress also intended § 6512(b)(3)(B) to act sometimes as a bar to recovery. To this end, the section incorporates both the 2-year and the 3-year look-back periods from § 6511(b)(2), and we must assume (contrary to Lundy's reading, which provides a uniform 3-year period, see supra, at 248-249) that Congress intended for both those look-back periods to have some effect. Cf. Badaracco, 464 U. S., at 405 (STEVENS, J., dissenting) ("Whatever the correct standard for construing a statute of limitations ... surely the presumption ought to be that some limitations period is applicable"). (Emphasis deleted.)Lundy also suggests that our interpretation of the statute creates a disparity between the limitations period that applies in Tax Court and the periods that apply in refund suits filed in district court or the Court of Federal Claims. In this regard, Lundy argues that the claim for refund he filed with his tax return on December 28 would have been timely for purposes of district court litigation because it was filed "within 3 years from the time the return was filed," § 6511(b)(1) (incorporating by reference § 6511(a)); see also Rev. Rul. 76-511, 1976-2 Cum. Bull. 428, and within the 3year look-back period that would apply under § 6511(b)(2)(A). Petitioner disagrees that there is any disparity, arguing that Lundy's interpretation of the statute is wrong and that252Lundy's claim for refund would not have been considered timely in district court. See Brief for Petitioner 12, 29-30, and n. 11 (citing Miller v. United States, 38 F.3d 473, 475 (CA9 1994)).We assume without deciding that Lundy is correct, and that a different limitations period would apply in district court, but nonetheless find in this disparity no excuse to change the limitations scheme that Congress has crafted. The rules governing litigation in Tax Court differ in many ways from the rules governing litigation in the district court and the Court of Federal Claims. Some of these differences might make the Tax Court a more favorable forum, while others may not. Compare 26 U. S. C. § 6213(a) (taxpayer can seek relief in Tax Court without first paying an assessment of taxes) with Flora v. United States, 362 U. S. 145, 177 (1960) (28 U. S. C. § 1346(a)(1) requires full payment of the tax assessment before taxpayer can file a refund suit in district court); and compare 26 U. S. C. § 6512(b)(3)(B) (Tax Court must assume that the taxpayer has filed a claim "stating the grounds upon which the Tax Court" intends to award a refund) with 26 CFR § 301.6402-2(b)(1) (1995) (claim for refund in district court must state grounds for refund with specificity). To the extent our interpretation of § 6512(b) (3)(B) reveals a further distinction between the rules that apply in these forums, it is a distinction compelled by the statutory language, and it is a distinction Congress could rationally make. As our discussion of § 6512(b)(3)(B) demonstrates, see supra, at 244-245, all a taxpayer need do to preserve the ability to seek a refund in the Tax Court is comply with the law and file a timely return.We are bound by the language of the statute as it is written, and even if the rule Lundy advocates might "accor[d] with good policy," we are not at liberty "to rewrite [the] statute because [we] might deem its effects susceptible of improvement." Badaracco, supra, at 398. Applying § 6512(b)(3)(B) as Congress drafted it, we find that253the applicable look-back period in this case is two years, measured from the date of the mailing of the notice of deficiency. Accordingly, we find that the Tax Court lacked jurisdiction to award Lundy a refund of his overwithheld taxes. The judgment is reversed.It is so ordered

OCTOBER TERM, 1995SyllabusCOMMISSIONER OF INTERNAL REVENUE v.LUNDYCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 94-1785. Argued November 6, 1995-Decided January 17, 1996Respondent Lundy and his wife withheld from their 1987 wages substantially more in federal income taxes than they actually owed for that year, but they did not file their 1987 tax return when it was due, nor did they file a return or claim a refund of the overpaid taxes in the succeeding 21/2 years. On September 26, 1990, the Commissioner of Internal Revenue mailed Lundy a notice of deficiency for 1987. Some three months later, the Lundys filed their joint 1987 tax return, which claimed a refund of their overpaid taxes, and Lundy filed a timely petition in the Tax Court seeking a redetermination of the claimed deficiency and a refund. The Tax Court held that where, as here, a taxpayer has not filed a tax return by the time a notice of deficiency is mailed, and the notice is mailed more than two years after the date on which the taxes are paid, a 2-year "look-back" period applies under 26 U. S. C. § 6512(b)(3)(B), and the court lacks jurisdiction to award a refund. The Fourth Circuit reversed, finding that the applicable lookback period in these circumstances is three years and that the Tax Court had jurisdiction to award a refund.Held: The Tax Court lacks jurisdiction to award a refund of taxes paid more than two years prior to the date on which the Commissioner mailed the taxpayer a notice of deficiency, if, on the date that the notice was mailed, the taxpayer had not yet filed a return. In these circumstances, the applicable look-back period under § 6512(b)(3)(B) is two years. Pp. 239-253.(a) Section 6512(b)(3)(B) forbids the Tax Court to award a refund unless it first determines that the taxes were paid "within the [look-back] period which would be applicable under section 6511(b)(2) ... if on the date of the mailing of the notice of deficiency a claim [for refund] had been filed." Section 6511(b)(2)(A) in turn instructs the court to apply a 3-year look-back period if a refund claim is filed, as required by § 6511(a), "within 3 years from the time the return was filed," while § 6511(b)(2)(B) specifies a 2-year look-back period if the refund claim is not filed within that 3-year period. The Tax Court properly applied the 2-year lookback period to Lundy's case because, as of September 26, 1990 (the date the notice of deficiency was mailed), Lundy had not filed a tax return,236Syllabusand, consequently, a claim filed on that date would not be filed within the 3-year period described in § 6511 (a). Lundy's taxes were withheld from his wages, so they are deemed paid on the date his 1987 tax return was due (April 15, 1988), which is more than two years prior to the date the notice of deficiency was mailed. Lundy is therefore seeking a refund of taxes paid outside the applicable look-back period, and the Tax Court lacks jurisdiction to award a refund. Pp. 239-245.(b) Lundy suggests two alternative interpretations of § 6512(b)(3)(B), neither of which is persuasive. Lundy first adopts the Fourth Circuit's view, which is that the applicable look-back period is determined by reference to the date that the taxpayer actually filed a claim for refund, and argues that he is entitled to a 3-year look-back period because his late-filed 1987 tax return contained a refund claim that was filed within three years from the filing of the return itself. This interpretation is contrary to the requirements of the statute and leads to a result that Congress could not have intended, as it in some circumstances subjects a timely filer of a return to a shorter limitations period in Tax Court than a delinquent filer. Lundy's second argument, that the "claim" contemplated by § 6512(b)(3)(B) can only be a claim filed on a tax return, such that a uniform 3-year look-back period applies under that section, is similarly contrary to the language of the statute. Pp. 245-250.(c) This Court is bound by § 6512(b)(3)(B)'s language as it is written, and even if the Court were persuaded by Lundy's policy-based arguments for applying a 3-year look-back period, the Court is not free to rewrite the statute simply because its effects might be susceptible of improvement. Pp. 250-253.45 F.3d 856, reversed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 253. THOMAS, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 253.Kent L. Jones argued the cause for petitioner. With him on the briefs were Solicitor General Days, Assistant Attorney General Argrett, Deputy Solicitor General Wallace, Richard Farber, and Regina S. Moriarty.Glenn P. Schwartz argued the cause for respondent.With him on the brief was Lawrence J. Ross. ** David M. Kirsch, pro se, filed a brief as amicus curiae urging affirmance.237Full Text of Opinion

1967_309

MR. JUSTICE BRENNAN delivered the opinion of the Court.This action for injunctive relief and treble damages alleging violations of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § § 1 and 2, was brought in the District Court for the Southern District of New York against the petitioners in No. 309, American Federation of Musicians and its Local 802. [Footnote 1] The question is whether union practices of the petitioners affecting orchestra leaders violate the Sherman Act as activities in combination with a "non-labor" group, or are exempted by the Norris-LaGuardia Act as activities affecting a "labor" group which is party to a "labor dispute." [Footnote 2] After a Page 391 U. S. 102 five-week trial without a jury, the District Court dismissed the action on the merits, holding that all of the petitioners' practices brought in question "come within the definition of the term labor dispute' . . . , and are exempt from the antitrust laws." 241 F. Supp. 865, 894. The Court of Appeals for the Second Circuit reversed on the issue of alleged price-fixing, but in all other respects affirmed the dismissal. 372 F.2d 155. Both parties sought certiorari, in No. 309 the petitioners from the reversal of the dismissal in respect of alleged price-fixing, and in No. 310, the respondents from the affirmance of the dismissal in the other respects. We granted both petitions, 389 U.S. 817. We hold that the District Court properly dismissed the action on the merits, and that the Court of Appeals should have affirmed the District Court judgment in its entirety.IThe petitioners are labor unions of professional musicians. The union practices questioned here are mainly those applied to "club date" engagements of union members. These are one-time engagements of orchestras to provide music, usually for only a few hours, at such social events as weddings, fashion shows, commencements, and the like. [Footnote 3] The purchaser of the music, e.g., the father of the bride, the chairman of the events, etc., makes arrangements with a musician, or with a musician's booking agent, for an orchestra of a conductor and a given number Page 391 U. S. 103 of instrumentalists, or "sidemen," at a specified time and place. The musician in such cases assumes the role of "leader" of the orchestra, obtains the "sidemen" and attends to the bookkeeping and other details of the engagement. Usually the "leader" performs with the orchestra, sometimes only conducting, but often also playing an instrument. When he does not personally appear, he designates a "subleader" who conducts for him and often also plays an instrument.A musician performing "club dates" may perform in different capacities on the same day or during the same week, at times as leader and other times as subleader or sideman. The four respondents, however, are musicians who usually act as leaders and maintain offices and employ personnel to solicit engagements through advertising and personal contacts. When two or more engagements are accepted for the same time, each of the respondents will conduct, and, except respondent Peterson, sometimes play, at one and designate a subleader to perform the functions of leader at the other. [Footnote 4]The four respondents were members of the petitioner Federation and Local 802 when this suit was filed. [Footnote 5] Virtually all musicians in the United States and the great Page 391 U. S. 104 majority of the orchestra leaders are union members. There are no collective bargaining agreements in the club date field. [Footnote 6] Club-date engagements are rigidly regulated by unilaterally adopted union bylaws and regulations. Under these bylaws and regulations,(1) Petitioners enforce a closed shop and exert various pressures upon orchestra leaders to become union members.(2) Orchestra leaders must engage a minimum number of sidemen for club date engagements.(3) Orchestra leaders must charge purchasers of music minimum prices prescribed in a "Price List Booklet." The prices are the total of (a) the minimum wage scales for sidemen, (b) a "leader's fee" which is double the sideman's scale when four or more musicians compose the orchestra, and (c) an additional 8% to cover social security, unemployment insurance, and other expenses. When the leader does not personally appear at an engagement, but designates a subleader and four or more musicians perform, the leader must pay the subleader one and one-half times the wage scale out of his "leader's fee."(4) Orchestra leaders are required to use a form of contract, called the Form B contract, for all engagements. In the club date field, however, Local 802 accepts assurances that the terms of club date engagements comply with all union regulations and provide for payment of the minimum wage. Union business agents police compliance. Page 391 U. S. 105(5) Additional regulations apply to traveling engagements. The leader of a traveling orchestra must charge 10% more than the minimum price of either the home local or of the local in whose territory the orchestra is playing, whichever is greater.(6) Orchestra leaders are prohibited from accepting engagements from or making any payments to caterers.(7) Orchestra leaders may accept engagements made by booking agents only if the booking agents have been licensed by the unions under standard forms of license agreements provided by the unions.The District Court assumed, and the Court of Appeals held, that orchestra leaders in the club date field are employers and independent contractors. [Footnote 7] Respondents argue that petitioners' involvement of the orchestra leaders in the promulgation and enforcement of the challenged regulations and bylaws creates a combination or conspiracy with a "non-labor" group which violates the Sherman Act. Allen Bradley Co. v. Union, 325 U. S. 797, 325 U. S. 800; Los Angeles Meat & Provision Drivers Union v. United States, 371 U. S. 94; Mine Workers v. Pennington, 381 U. S. 657. But the Court of Appeals concurred in the finding of the District Court that such orchestra leaders, although deemed to be employers and independent contractors, constitute not a "non-labor" group, but a "labor" group. 372 F.2d at 168. [Footnote 8]The criterion applied by the District Court in determining that the orchestra leaders were a "labor" group Page 391 U. S. 106 and parties to a "labor dispute" was the"presence of a job or wage competition or some other economic interrelationship affecting legitimate union interests between the union members and the independent contractors. If such a relationship existed, the independent contractors were a 'labor group' and party to a labor dispute under the Norris-LaGuardia Act."241 F. Supp. at 887. The Court of Appeals held, and we agree, that this is a correct statement of the applicable principles. The Norris-LaGuardia Act took all "labor disputes" as therein defined outside the reach of the Sherman Act and established that the allowable area of union activity was not to be restricted to an immediate employer-employee relation. United States v. Hutcheson, 312 U. S. 219, 312 U. S. 229-236; Allen Bradley Co. v. Union, supra, at 325 U. S. 805-806; Los Angeles Meat & Provision Drivers Union v. United States, supra, at 371 U. S. 103; Milk Wagon Drivers' Union v. Lake Valley Farm Prods., 311 U. S. 91."This Court has recognized that a legitimate aim of any national labor organization is to obtain uniformity of labor standards and that a consequence of such union activity may be to eliminate competition based on differences in such standards."Mine Workers v. Pennington, 381 U. S. 657, 381 U. S. 666. The District Court found that the orchestra leaders performed work and functions which actually or potentially affected the hours, wages, job security, and working conditions of petitioners' members. [Footnote 9] These findings have substantial support in the evidence, and, in the light of the job and wage competition thus established, both courts correctly held that it was lawful for petitioners to pressure the orchestra leaders to become union members, Page 391 U. S. 107 Los Angeles Meat Drivers, supra, and Milk Wagon Drivers', supra, to insist upon a closed shop, United States v. American Federation of Musicians, 318 U.S. 741, affirming 47 F. Supp. 304, to refuse to bargain collectively with the leaders, see Hunt v. Crumboch, 325 U. S. 821, to impose the minimum employment quotas complained of, United States v. American Federation of Musicians, supra, to require the orchestra leaders to use the Form B contract, see Teamsters Union v. Oliver, 362 U. S. 605 (Oliver II), and to favor local musicians by requiring that higher wages be paid to musicians from outside a local's jurisdiction, Rambusch Decorating Co. v. Brotherhood of Painters, 105 F.2d 134.The District Court also sustained the legality of the "Price List," stating,"In view of the competition between leaders and sidemen and subleaders which underlies the finding that the leaders are a labor group, the union has a legitimate interest in fixing minimum fees for a participating leader and minimum engagement prices equal to the total minimum wages of the sidemen and the participating leader."241 F. Supp. at 890. The Court of Appeals, one judge dissenting, disagreed that the "Price List" was within the labor exemption, stating that "the unions' establishment of price floors on orchestral engagements constitutes a per se violation of the Sherman Act." 372 F.2d at 165. The premise of the majority's conclusion was that the "Price List" was disqualified for the exemption because its concern is "prices," and not "wages." But this overlooks the necessity of inquiry beyond the form. MR. JUSTICE WHITE's opinion in Meat Cutters v. Jewel Tea, 381 U. S. 676, 381 U. S. 690, n. 5, emphasized that "[t]he crucial determinant is not the form of the agreement -- e.g., prices or wages -- but its relative impact on the product market and the interests of union members." It is therefore not dispositive of the question that petitioners' regulation in form establishes price floors. Page 391 U. S. 108 The critical inquiry is whether the price floors in actuality operate to protect the wages of the subleader and sidemen. The District Court found that the price floors were expressly designed to, and did, function as a protection of sidemen's and subleaders' wage scales against the job and wage competition of the leaders. The Court said:"As a consequence of this relationship, the practices of [orchestra leaders] when they lead and play must have a vital effect on the working conditions of the non-leader members of the union. If they undercut the union wage scale or do not adhere to union regulations regarding hours or other working conditions when they perform, they will undermine these union standards. They would put pressure on the union members they compete with to correspondingly lower their own demands."241 F. Supp. at 888. The Court of Appeals itself expressed a similar view in saying:"even those orchestra leaders who, as employers in club dates, lead but never perform as players, are proper subjects for membership because they are in job competition with union sub-leaders; each time a non-union orchestra leader performs, he displaces a 'union job' with a 'non-union job.'"372 F.2d at 168. And, of particular significance, the Court of Appeals noted that, where the leader performs"the services of a sub-leader would not be required and the leader may in this way save the wages he would otherwise have to pay. Consequently, he could make the services of his orchestra available at a lower price than could a non-performing leader."372 F.2d at 166. Page 391 U. S. 109Thus, the price floors, including the minimums for leaders, are simply a means for coping with the job and wage competition of the leaders to protect the wage scales of musicians who respondents concede are employees on club dates, namely sidemen and subleaders. As such, the provisions of the "Price List" establishing those floors are indistinguishable in their effect from the collective bargaining provisions in Teamsters Union v. Oliver, 358 U. S. 283 (Oliver I), which we held governed not prices, but the mandatory bargaining subject of wages. The precise issue in Oliver I was whether Article XXXII of a multi-employer, multi-state collective bargaining agreement between the Teamsters Union and a bargaining organization of motor carriers dealt with a mandatory subject of bargaining. Article XXXII provided that drivers who own and drive their own vehicles should be paid, in addition to the prescribed driver's wage, not less than a prescribed minimum rental for the use of their vehicles. We held that the article was a wage, and not a price, provision, saying:"The inadequacy of a rental which means that the owner makes up his excess costs from his driver's wages not only clearly bears a close relation to labor's efforts to improve working conditions but is, in fact, of vital concern to the carrier's employed drivers; an inadequate rental might mean the progressive curtailment of jobs through withdrawal of more and more carrier-owned vehicles from service. . . ."358 U.S. at 358 U. S. 294.We disagree with the Court of Appeals that"[t]he circumstances constituting a possible threat to the employment of sub-leaders or the displacement of a sideman . . . are not at all comparable,"372 F.2d at 166. The price floors here serve the identical ends served by Article XXXII in Oliver I. The Price List has in common with Page 391 U. S. 110 Article XXXII the objective to protect employees' job opportunities and wages from job and wage competition of other union members -- in the case of the Article, drivers when they drive their own vehicles, and in the case of the Price List, musicians on the occasions they are leaders, and play a role as employers. Like the Article, the Price List is therefore "a direct and frontal attack upon a problem thought to threaten the maintenance of the basic wage structure. . . ." 358 U.S. at 358 U. S. 294. [Footnote 10]The majority of the Court of Appeals apparently regarded Meat Cutters v. Jewel Tea, supra, as militating against this conclusion. The majority read the opinions of MR. JUSTICE WHITE and Mr. Justice Goldberg in that case as requiring a holding that "mandatory subjects of collective bargaining carry with them an exemption . . . ," but that "[o]n matters outside of the mandatory area . . . , no such considerations govern. . . ." 372 F.2d at 165. Even if only mandatory subjects of bargaining enjoy the exemption -- a question not in this case and upon which we express no view -- nothing MR. JUSTICE WHITE or Mr. Justice Goldberg said remotely suggests that the distinction between mandatory and nonmandatory subjects turns on the form of the method taken to protect a wage scale, here a price floor. To the Page 391 U. S. 111 contrary, we pointed out above that MR. JUSTICE WHITE's opinion emphasized that the "crucial determinant is not the form of the agreement . . . ," and cited Oliver I as settling that proposition. 381 U.S. at 381 U. S. 690, n. 5.The reasons which entitle the Price List to the exemption embrace the provision fixing the minimum price for a club date engagement when the orchestra leader does not perform, and does not displace an employee-musician. [Footnote 11] That regulation is also justified as a means of preserving the scale of the sidemen and subleaders. There was evidence that, when the leader does not collect from the purchaser of the music an amount sufficient to make up the total of his out-of-pocket expenses, including the sum of his wage-scale wages and the scale wages of the sidemen, [Footnote 12] he will, in fact, not pay the sidemen the prescribed scale. The District Court found:"It is unquestionably true that skimping on the part of the person who sets up the engagement [the leader] so that his costs are not covered is likely to have an adverse effect on the fees paid to the participating musicians. By fixing a reasonable amount over the sum of the minimum wages of the musicians participating in an engagement to cover these Page 391 U. S. 112 expenses, the union insures that 'no part of the labor costs paid to a [leader] would be diverted by him for overhead or other non-labor costs.'"241 F. Supp. at 891. In other words, the price of the product -- here, the price for an orchestra for a club date -- represents almost entirely the scale wages of the sidemen and the leader. Unlike most industries, except for the 8% charge, there are no other costs contributing to the price. Therefore, if leaders cut prices, inevitably wages must be cut.The analyses of MR. JUSTICE WHITE and Mr. Justice Goldberg in Jewel Tea support our conclusion. Jewel Tea did not hold that an agreement respecting marketing hours would always come within the labor exemption. Rather, that case held that such an agreement was lawful because it was found that the marketing hours restriction had a substantial effect on hours worked by the union members. Similarly, the price list requirement is brought within the labor exemption under the finding that the requirement is necessary to assure that scale wages will be paid to the sidemen and the leader. If the union may not require that the full-time leader charge the purchaser of the music an amount sufficient to compensate him for the time he spends selecting musicians and performing the other musical functions involved in leading, the full-time leader may compete with other union members who seek the same jobs through price differentiation in the product market based on differences in a labor standard. His situation is identical to that of a truck owner in Oliver I who does not charge an amount sufficient to compensate him for the value of his labor services in driving the truck, and is a situation which the union can prevent consistent with its antitrust exemption. There can be no differentiation between the leader who appears with his orchestra and Page 391 U. S. 113 the one who on occasion hires a subleader. In either case, part of the union-prescribed "leader's fee" is attributable to service rendered in either conducting or playing and part to the service rendered in selecting musicians, bookkeeping, etc. The only difference is that, in the former situation, the leader keeps the entire fee, while, in the latter, he is required to pay that part of it attributable to playing or conducting to the subleader. In this respect, we agree with the view espoused by Judge Friendly in his separate opinion, 372 F.2d at 168-170.We think also that the caterer and booking agent restrictions "are at least as intimately bound up with the subject of wages," Oliver II, supra, at 362 U. S. 606, as the price floors. The District Court found that the booking agent regulations were adopted because of experience that "many booking agents charged exorbitant fees to members and booked engagements for musicians at wages which were below union scale." 241 F. Supp. at 881-882. On the basis of these findings, the District Court concluded:"Because the activities of the booking agents here have and had a direct and substantial effect on the wages of the members of [the unions], I find that they are in an economic interrelationship with the members . . . such that the [unions] are justified in regulating their activities. . . . Furthermore, I find the regulations to be reasonably related to their interest in maintaining observance of union scale wages and working conditions."241 F. Supp. at 893.The finding concerning the caterer regulations was to the same effect."The evidence discloses that caterers took advantage of their position before the union adopted its regulations to, in effect, book orchestras and they Page 391 U. S. 114 continue to do so, at least to some extent. Caterers recommend orchestras to customers and receive commissions from orchestra leaders. These practices actually or potentially affect the wages of the musicians involved.""I believe that this constitutes an economic interrelationship which permits the defendants to regulate and prohibit the booking activities of the caterers without violating the Sherman Act."241 F. Supp. at 893.The judgment of the Court of Appeals is vacated, and the cases are remanded with direction to enter a judgment affirming the judgment of the District Court in its entirety.It is so ordered

U.S. Supreme CourtAmerican Fed'n of Musicians v. Carroll, 391 U.S. 99 (1968)American Federation of Musicians v. CarrollNo. 309Argued March 4, 1968Decided May 20, 1968*391 U.S. 99SyllabusRespondents in No. 309, four orchestra leaders, brought this action for injunctive relief and treble damages, alleging that petitioners in No. 309, an international musicians union and one of its locals, violated §§ 1 and 2 of the Sherman Act. The challenged practices mainly concerned "club date" engagements where an orchestra, through arrangement with the purchaser of the music made by a musician or booking agent, plays for a special occasion. The musician making the arrangements assumes the role of "leader," performs himself (or designates a "subleader"), and engages a number of instrumentalists ("sidemen"). Petitioners' practices result from unilaterally adopted union bylaws and regulations whereby petitioners, with respect to orchestra leaders: pressure them to become union members; insist upon a closed shop; refuse to bargain collectively; impose minimum employment quotas; require them to use a special ("Form B") contract or (where Local 802 is concerned) to agree to all union regulations and pay minimum wages; require them to favor local musicians by making them pay higher wages to musicians from outside a local's jurisdiction; require them to charge music purchasers minimum prices prescribed in a "Price List Booklet" (which are the total of: the minimum wage scales for sidemen, a "leader's fee" which is double the sideman's scale when four or more musicians compose the orchestra, and an additional 8%, and a subleader with four or more musicians must be paid 1 1/2 times the wage scale out of the leader's fee); prevent them from accepting engagements from or making payments to caterers, and allow them to accept engagements by booking agents only if union-licensed. Respondents contended that petitioners' involvement of the orchestra leaders in these practices created a conspiracy with a "non-labor" group. Page 391 U. S. 100 The District Court dismissed the action on the merits, holding that the challenged practices "come within the definition of the term labor dispute' and are exempt from the antitrust laws" under the Norris-LaGuardia Act. The Court of Appeals, though otherwise affirming the dismissal, reversed on the alleged price-fixing issue, holding that the "Price List" was not within the labor exemption and that its establishment of price floors constituted a per se violation of the Sherman Act.Held: Petitioners' involvement of the orchestra leaders in the promulgation and enforcement of the challenged regulations and bylaws does not create a combination or conspiracy in violation of the Sherman Act, but falls within the exemption of the Norris-LaGuardia Act, since the orchestra leaders were a "labor" group and parties to a "labor dispute." Pp. 391 U. S. 102, 391 U. S. 105-114.(a) The District Court correctly stated the criterion for determining that the orchestra leaders were a "labor" group and parties to a "labor dispute" as the"presence of a job or wage competition or some other economic relationship affecting legitimate union interests between the union members and the independent contractors. If such a relationship existed the independent contractors were a 'labor group' and party to a labor dispute under the Norris-LaGuardia Act."241 F. Supp. at 887. Pp. 391 U. S. 105-106.(b) The allowable area of union activity under the Norris-LaGuardia Act is not restricted to an immediate employer-employee relation. P. 391 U. S. 106.(c) With respect to petitioners' practices (other than those described in (d) and (e), infra), the District Court found that the orchestra leaders performed work and functions actually or potentially affecting the hours, wages, job security, and working conditions of petitioners' members, and these findings, which were substantially supported by the evidence, warranted the conclusion that such practices were lawful. Pp. 391 U. S. 106-107.(d) The "Price List" was lawful, since its price floors were expressly designed to and did function as a protection of the wage scales of sidemen and subleaders, who are employees on club dates, against the job and wage competition of the leaders. Teamsters Union v. Oliver, 358 U. S. 283. Pp. 391 U. S. 107-113.(e) The caterer and booking agent restrictions, which were as closely connected with the subject of wages as were the price floors, were also lawful. Pp. 391 U. S. 113-114.372 F.2d 155, vacated and remanded. Page 391 U. S. 101

1986_85-1385

JUSTICE MARSHALL delivered the opinion of the Court.The issue in this case is whether an accrual-basis taxpayer providing medical benefits to its employees may deduct at the close of the taxable year an estimate of its obligation to pay for medical care obtained by employees or their qualified dependents during the final quarter of the year, claims for which have not been reported to the employer. Page 481 U. S. 241ITaxpayers, respondents herein, are the General Dynamics Corporation and several of its wholly owned subsidiaries (General Dynamics). [Footnote 1] General Dynamics uses the accrual method of accounting for federal tax purposes; its fiscal year is the same as the calendar year. From 1962 until October 1, 1972, General Dynamics purchased group medical insurance for its employees and their qualified dependents from two private insurance carriers. Beginning in October, 1972, General Dynamics became a self-insurer with regard to its medical care plans. Instead of continuing to purchase insurance from outside carriers, it undertook to pay medical claims out of its own funds, while continuing to employ private carriers to administer the medical care plans.To receive reimbursement of expenses for covered medical services, respondent's employees submit claims forms to employee benefits personnel, who verify that the treated persons were eligible under the applicable plan as of the time of treatment. Eligible claims are then forwarded to the plan's administrators. Claims processors review the claims and approve for payment those expenses that are covered under the plan.Because the processing of claims takes time, and because employees do not always file their claims immediately, there is a delay between the provision of medical services and payment by General Dynamics. To account for this time lag, General Dynamics established reserve accounts to reflect its liability for medical care received, but still not paid for, as of December 31, 1972. It estimated the amount of those reserves with the assistance of its former insurance carriers.Originally, General Dynamics did not deduct any portion of this reserve in computing its tax for 1972. In 1977, however, Page 481 U. S. 242 after the Internal Revenue Service (IRS) began an audit of its 1972 tax return, General Dynamics filed an amended return, claiming it was entitled to deduct its reserve as an accrued expense, and seeking a refund. The IRS disallowed the deduction, and General Dynamics sought relief in the Claims Court.The Claims Court sustained the deduction, holding that it satisfied the "all events" test embodied in Treas.Reg. § 1.4611(a)(2), 26 CFR § 1.461-1(a)(2) (1986), since "all events" which determined the fact of liability had taken place when the employees received covered services, and the amount of liability could be determined with reasonable accuracy. Thus, the court held that General Dynamics was entitled to a refund. 6 Cl.Ct. 250 (1984). The Court of Appeals for the Federal Circuit affirmed, largely on the basis of the Claims Court opinion. 773 F.2d 1224, 1226 (1985).The United States sought review of the question whether all the events necessary to fix liability had occurred. [Footnote 2] We granted certiorari, 476 U.S. 1181 (1986). We reverse.IIAs we noted in United States v. Hughes Properties, Inc., 476 U. S. 593, 476 U. S. 600 (1986), whether a business expense has been "incurred" so as to entitle an accrual-basis taxpayer to deduct it under § 162(a) of the Internal Revenue Code, 26 U.S.C. § 162(a), is governed by the "all events" test that originated in United States v. Anderson, 269 U. S. 422, 269 U. S. 441 (1926). In Anderson, the Court held that a taxpayer was obliged to deduct from its 1916 income a tax on profits from munitions sales that took place in 1916. Although the tax would not be assessed, and therefore would not formally be due until 1917, all the events which fixed the amount of the tax and determined the taxpayer's liability to pay it Page 481 U. S. 243 had occurred in 1916. The test is now embodied in Treas.Reg. § 1.461-1(a)(2), 26 CFR § 1.461-1(a)(2) (1986), which provides that"[u]nder an accrual method of accounting, an expense is deductible for the taxable year in which all the events have occurred which determine the fact of the liability and the amount thereof can be determined with reasonable accuracy. [Footnote 3]"It is fundamental to the "all events" test that, although expenses may be deductible before they have become due and payable, liability must first be firmly established. This is consistent with our prior holdings that a taxpayer may not deduct a liability that is contingent, see Lucas v. American Code Co., 280 U. S. 445, 280 U. S. 452 (1930), or contested, see Security Flour Mills Co. v. Commissioner of Internal Revenue, 321 U. S. 281, 321 U. S. 284 (1944). Nor may a taxpayer deduct an estimate of an anticipated expense, no matter how statistically certain, if it is based on events that have not occurred by the Page 481 U. S. 244 close of the taxable year. Brown v. Helvering, 291 U. S. 193, 291 U. S. 201 (1934); cf. American Automobile Assn. v. United States, 367 U. S. 687, 367 U. S. 693 (1961).We think that this case, like Brown, involves a mere estimate of liability based on events that had not occurred before the close of the taxable year, and therefore the proposed deduction does not pass the "all events" test. We disagree with the legal conclusion of the courts below that the last event necessary to fix the taxpayer's liability was the receipt of medical care by covered individuals. [Footnote 4] A person covered by a plan could only obtain payment for medical services by filling out and submitting a health expense benefits claim form. App. 23. Employees were informed that submission of satisfactory proof of the charges claimed would be necessary to obtain payment under the plans. Id. at 58. General Dynamics was thus liable to pay for covered medical services only if properly documented claims forms were filed. [Footnote 5] Some covered individuals, through oversight, procrastination, confusion over the coverage provided, or fear of disclosure to the employer of the extent or nature of the services received, might not file claims for reimbursement to which they are plainly entitled. Such filing is not a mere technicality. It is crucial to the establishment of liability on the part of the taxpayer. Nor does the failure to file a claim represent the type of "extremely remote and speculative possibility" that we Page 481 U. S. 245 held in Hughes, 476 U.S. at 476 U. S. 601, did not render an otherwise fixed liability contingent. Cf. Lucas v. North Texas Lumber Co., 281 U. S. 11, 281 U. S. 13 (1930) (where executory contract of sale was created in 1916 but papers necessary to effect transfer were not prepared until 1917, unconditional liability for the purchase price was not created in 1916, and the gain from the sale was therefore not realized until 1917). Mere receipt of services for which, in some instances, claims will not be submitted does not, in our judgment, constitute the last link in the chain of events creating liability for purposes of the "all events" test.The parties stipulated in this case that, as of December 31, 1972, the taxpayer had not received all claims for medical treatment services rendered in 1972, and that some claims had been filed for services rendered in 1972 that had not been processed. App. 26. The record does not reflect which portion of the claims against General Dynamics for medical care had been filed but not yet processed and which portion had not even been filed at the close of the 1972 tax year. The taxpayer has the burden of proving its entitlement to a deduction. Helvering v. Taylor, 293 U. S. 507, 293 U. S. 514 (1935). Here, respondent made no showing that, as of December 31, 1972, it knew of specific claims which had been filed but which it had not yet processed. Because the taxpayer failed to demonstrate that any of the deducted reserve represented claims for which its liability was firmly established as of the close of 1972, all the events necessary to establish liability were not shown to have occurred, and therefore no deduction was permissible.This is not to say that the taxpayer was unable to forecast how many claims would be filed for medical care received during this period, and estimate the liability that would arise from those claims. Based on actuarial data, General Dynamics may have been able to make a reasonable estimate of how many claims would be filed for the last quarter of 1972. But that alone does not justify a deduction. In Brown, supra, Page 481 U. S. 246 the taxpayer, a general agent for insurance companies, sought to take a deduction for a reserve representing estimated liability for premiums to be returned on the percentage of insurance policies it anticipated would be cancelled in future years. The agent may well have been capable of estimating with a reasonable degree of accuracy the ratio of cancellation refunds to premiums already paid, and establishing its reserve accordingly. Despite the "strong probability that many of the policies written during the taxable year" would be cancelled, 291 U.S. at 291 U. S. 201, the Court held that"no liability accrues during the taxable year on account of cancellations which it is expected may occur in future years, since the events necessary to create the liability do not occur during the taxable year."Id. at 291 U. S. 200. A reserve based on the proposition that a particular set of events is likely to occur in the future may be an appropriate conservative accounting measure, but does not warrant a tax deduction. See American Automobile Assn. v. United States, supra, at 367 U. S. 692; Lucas v. American Code Co., 280 U.S. at 280 U. S. 452.That these estimated claims were not intended to fall within the "all events" test is further demonstrated by the fact that the Internal Revenue Code specifically permits insurance companies to deduct additions to reserves for such "incurred but not reported" (IBNR) claims. See 26 U.S.C. § 832(b)(5) (providing that an insurance company may treat as losses incurred "all unpaid losses outstanding at the end of the taxable year"); § 832(c)(4) (permitting deduction of losses incurred as defined in § 832(b)(5)). [Footnote 6] If the "all events" test permitted the deduction of an estimated reserve representing claims that were actuarially likely but not yet reported, Congress would not have needed to maintain an Page 481 U. S. 247 explicit provision that insurance companies could deduct such reserves. [Footnote 7]General Dynamics did not show that its liability as to any medical care claims was firmly established as of the close of the 1972 tax year, and is therefore entitled to no deduction. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtUnited States v. General Dynamics, 481 U.S. 239 (1987)United States v. General DynamicsNo. 85-1385Argued January 13, 1987Decided April 22, 1987481 U.S. 239SyllabusUnder the "all events" test, as embodied in Treasury Regulations, an accrual-basis taxpayer is entitled to deduct a business expense for the taxable year in which all events have occurred which determine the fact of the taxpayer's liability, and in which the amount of that liability can be determined with reasonable accuracy. In the year at issue, a consolidated federal income tax return was filed by General Dynamics Corporation and several of its wholly owned subsidiaries (hereafter respondent). Respondent is an accrual-basis taxpayer whose fiscal year is the calendar year. Beginning in 1972, it became a self-insurer with regard to its employee medical care plan. To receive medical payment reimbursements, employees must submit claims forms to employee benefits personnel, who verify eligibility and forward worthy claims to the plan's administrators, whose claims processors review the claims and approve covered expenses for payment. To account for the delay between the provision of medical services and the payment of claims, respondent established reserve accounts reflecting its liability for medical care received, but still not paid for, as of December 31, 1972. On its amended 1972 tax return, respondent sought a refund based on its claimed deduction of its reserve as an accrued expense. The Internal Revenue Service disallowed the deduction, but the Claims Court sustained it, holding that "all events" which determined the fact of respondent's liability had taken place when its employees received covered services, and that the amount of liability could be determined with reasonable accuracy. The Court of Appeals affirmed.Held: Where the filing of claims is a condition precedent to liability, an accrual-basis taxpayer providing medical benefits to its employees cannot deduct at the close of the taxable year an estimate of its obligation to pay for medical care obtained by employees or their qualified dependents during the final quarter of the year, claims for which have not been reported to the employer. Pp. 481 U. S. 242-247.(a) The proposed deduction fails the "all events" test, because it depends on a mere estimate of respondent's liability based on events that had not occurred before the close of the 1972 taxable year. The last event necessary to fix respondent's liability was not the receipt of medical Page 481 U. S. 240 care by covered individuals, but the filing of properly documented claims forms. Such filing is not a mere technicality, nor is the possibility that some employees might not file claims after receiving services "extremely remote and speculative." Pp. 481 U. S. 242-245.(b) Respondent has not demonstrated that its liability as to any medical care claims was firmly established as of the close of the 1972 taxable year. Although the parties stipulated that respondent had not received claims for all services rendered during the year by the year's end, and that some claims received had not been processed at that time, respondent failed to show what portion of the claims had been filed by the end of the year, or even that it knew of specific claims that had been filed, but not yet processed. The fact that respondent may have been able to make a reasonably accurate actuarial estimate of how many claims would be filed for the last quarter of 1972 cannot justify a deduction. If the "all events" test permitted such a deduction, Congress would not have retained 26 U.S.C. § 832(b)(5), which allows insurance companies to deduct additions to reserves for "incurred but not reported" claims. Pp. 481 U. S. 245-247.773 F.2d 1224, reversed.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, POWELL, and SCALIA, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 481 U. S. 247.

1999_99-312

Gregory S. Coleman, Solicitor General of Texas, argued the cause for the State of Texas et al. as amici curiae urging reversal. With him on the brief were John Cornyn, Attorney General of Texas, Andy Taylor, First Assistant Attorney General, and Linda E. Eads, Deputy Attorney General, Bill Pryor, Attorney General of Alabama, D. Michael Fisher, Attorney General of Pennsylvania, Charlie Condon, Attorney General of South Carolina, and Norman N. Hill.Thomas C. Goldstein argued the cause for respondent.With him on the briefs were Pamela R. O'Dwyer and Brian Wolfman.Patricia A. Millett argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Douglas N. Letter, Michael E. Robinson, Nancy E. McFadden, Paul M. Geier, Dale C. Andrews, Edward v: A. Kussy, and S. Mark Lindsey. **Briefs of amici curiae urging reversal were filed for the Association of American Railroads by Daniel Saphire; and for the Product Liability Advisory Council, Inc., by Kenneth S. Geller and Charles Rothfeld.Briefs of amici curiae urging affirmance were filed for the State of North Carolina et al. by Michael F. Easley, Attorney General of North Carolina, and Amy R. Gillespie, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Ken Salazar of Colorado, James E. Ryan of Illinois, Carla J. Stovall of Kansas, Mike Hatch of Minnesota, Jeremiah W (Jay) Nixon of Missouri, Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New Mexico, W A. Drew Edmondson of Oklahoma, Sheldon Whitehouse of Rhode Island, and Darrell V. McGraw, Jr., of West Virginia; for the Angels on Track Foundation et al. by Robert L. Pottroff; for the Association of Trial Lawyers of America by Dale Haralson; and for the United Transportation Union by Lawrence M. Mann and Clinton Miller III.William C. Hopkins II and David V. Scott filed a brief for Kenneth W. Heathington et al. as amici curiae.347JUSTICE O'CONNOR delivered the opinion of the Court. This case involves an action for damages against a railroad due to its alleged failure to maintain adequate warning devices at a grade crossing in western Tennessee. After her husband was killed in a crossing accident, respondent brought suit against petitioner, the operator of the train involved in the collision. Respondent claimed that the warning signs posted at the crossing, which had been installed using federal funds, were insufficient to warn motorists of the danger posed by passing trains. The specific issue we must decide is whether the Federal Railroad Safety Act of 1970, 84 Stat. 971, as amended, 49 U. S. C. § 20101 et seq., in conjunction with the Federal Highway Administration's regulation addressing the adequacy of warning devices installed with federal funds, pre-empts state tort actions such as respondent's. We hold that it does.I AIn 1970, Congress enacted the Federal Railroad Safety Act (FRSA) "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U. S. C. § 20101. The FRSA grants the Secretary of Transportation the authority to "prescribe regulations and issue orders for every area of railroad safety," § 20103(a), and directs the Secretary to "maintain a coordinated effort to develop and carry out solutions to the railroad grade crossing problem," § 20134(a). The FRSA also contains an express pre-emption provision, which states:"Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or348issues an order covering the subject matter of the State requirement." § 20106.Although the pre-emption provision contains an exception, see ibid., it is inapplicable here.Three years after passing the FRSA, Congress enacted the Highway Safety Act of 1973, § 203, 87 Stat. 283, which, among other things, created the Federal Railway-Highway Crossings Program (Crossings Program), see 23 U. S. C. § 130. That program makes funds available to States for the "cost of construction of projects for the elimination of hazards of railway-highway crossings." § 130(a). To participate in the Crossings Program, all States must "conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose." § 130(d). That schedule must, "[a]t a minimum, ... provide signs for all railway-highway crossings." Ibid.The Secretary, through the Federal Highway Administration (FHW A), has promulgated several regulations implementing the Crossings Program. One of those regulations, 23 CFR § 646.214(b) (1999), addresses the design of grade crossing improvements. More specifically, §§ 646.214(b)(3) and (4) address the adequacy of warning devices installed under the program.* According to § 646.214(b)(3), "[a]de-*Sections 646.214(b)(3) and (4) provide in full:"(3)(i) Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:"(A) Multiple main line railroad tracks."(E) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing."(C) High Speed train operation combined with limited sight distance at either single or multiple track crossings.349quate warning devices ... on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals" if any of several conditions are present. Those conditions include (A) "[m]ultiple main line railroad tracks," (B) multiple tracks in the vicinity such that one train might "obscure the movement of another train approaching the crossing," (C) high speed trains combined with limited sight distances, (D) a "combination of high speeds and moderately high volumes of highway and railroad traffic," (E) the use of the crossing by "substantial numbers of schoolbuses or trucks carrying hazardous materials," or (F) when a "diagnostic team recommends them." § 646.214(b)(3)(i). Subsection (b)(4) states that "[f]or crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA." Thus, at crossings where any of the conditions listed in (b)(3) exist, adequate warning devices, if installed using federal funds, are automatic gates and flashing lights. And where the (b)(3) conditions are not present, the decision of what devices to install is subject to FHW A approval."(D) A combination of high speeds and moderately high volumes of highway and railroad traffic."(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions."(F) A diagnostic team recommends them."(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable."(4) For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA."350BShortly after 5 a.m. on October 3, 1993, Eddie Shanklin drove his truck eastward on Oakwood Church Road in Gibson County, Tennessee. App. to Pet. for Cert. 28a. As Shanklin crossed the railroad tracks that intersect the road, he was struck and killed by a train operated by petitioner. Ibid. At the time of the accident, the Oakwood Church Road crossing was equipped with advance warning signs and reflectorized crossbucks, id., at 34a, the familiar black-andwhite, X-shaped signs that read "RAILROAD CROSSING," see U. S. Dept. of Transportation, Federal Highway Administration, Manual on Uniform Traffic Control Devices § 8B-2 (1988) (MUTCD). The Tennessee Department of Transportation (TDOT) had installed the signs in 1987 with federal funds received under the Crossings Program. App. to Pet. for Cert. 3a. The TDOT had requested the funds as part of a project to install such signs at 196 grade crossings in 11 Tennessee counties. See App. 128-131. That request contained information about each crossing covered by the project, including the presence or absence of several of the factors listed in § 646.214(b)(3). See id., at 134. The FHW A approved the project, App. to Pet. for Cert. 34a, and federal funds accounted for 99% of the cost of installing the signs at the crossings, see App. 133. It is undisputed that the signs at the Oakwood Church Road crossing were installed and fully compliant with the federal standards for such devices at the time of the accident.Following the accident, Mr. Shanklin's widow, respondent Dedra Shanklin, brought this diversity wrongful death action against petitioner in the United States District Court for the Western District of Tennessee. Id., at 29-34. Respondent's claims were based on Tennessee statutory and common law. Id., at 31-33. She alleged that petitioner had been negligent in several respects, including by failing to maintain adequate warning devices at the crossing. Ibid. Petitioner moved for summary judgment on the ground that the FRSA351pre-empted respondent's suit. App. to Pet. for Cert. 28a. The District Court held that respondent's allegation that the signs installed at the crossing were inadequate was not preempted. Id., at 29a-37a. Respondent thus presented her inadequate warning device claim and three other allegations of negligence to a jury, which found that petitioner and Mr. Shanklin had both been negligent. App. 47. The jury assigned 70% responsibility to petitioner and 30% to Mr. Shanklin, and it assessed damages of $615,379. Ibid. The District Court accordingly entered judgment of $430,765.30 for respondent. Id., at 48.The Court of Appeals for the Sixth Circuit affirmed, holding that the FRSA did not pre-empt respondent's claim that the devices at the crossing were inadequate. 173 F.3d 386 (1999). It reasoned that federal funding alone is insufficient to trigger pre-emption of state tort actions under the FRSA and §§ 646.214(b)(3) and (4). Id., at 394. Instead, the railroad must establish that § 646.214(b)(3) or (4) was "applied" to the crossing at issue, meaning that the FHW A affirmatively approved the particular devices installed at the crossing as adequate for safety. Id., at 397. The court concluded that, because the TDOT had installed the signs for the purpose of providing "minimum protection" at the Oakwood Church Road crossing, there had been no such individualized determination of adequacy.We granted certiorari, 528 U. S. 949 (1999), to resolve a conflict among the Courts of Appeals as to whether the FRSA, by virtue of 23 CFR §§ 646.214(b)(3) and (4) (1999), pre-empts state tort claims concerning a railroad's failure to maintain adequate warning devices at crossings where federal funds have participated in the installation of the devices. Compare Ingram v. CSX Transp., Inc., 146 F.3d 858 (CAll 1998) (holding that federal funding of crossing improvement triggers pre-emption under FRSA); Armijo v. Atchison, Topeka & Santa Fe R. Co., 87 F.3d 1188 (CAlO 1996) (same); Elrod v. Burlington Northern R. Co., 68 F.3d 241 (CA8 1995)352(same); Hester v. CSX Transp., Inc., 61 F.3d 382 (CA5 1995) (same), cert. denied, 516 U. S. 1093 (1996), with 173 F.3d 386 (CA6 1999) (case below); Shots v. CSX Transp., Inc., 38 F. 3d 304 (CA7 1994) (no pre-emption until representative of Federal Government has determined that devices installed are adequate for safety).IIWe previously addressed the pre-emptive effect of the FHW A's regulations implementing the Crossings Program in CSX Transp., Inc. v. Easterwood, 507 U. S. 658 (1993). In that case, we explained that the language of the FRSA's pre-emption provision dictates that, to pre-empt state law, the federal regulation must "cover" the same subject matter, and not merely" 'touch upon' or 'relate to' that subject matter." Id., at 664; see also 49 U. S. C. § 20106. Thus, "preemption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." Easterwood, supra, at 664. Applying this standard, we concluded that the regulations contained in 23 CFR pt. 924 (1999), which "establish the general terms of the bargain between the Federal and State Governments" for the Crossings Program, are not pre-emptive. 507 U. S., at 667. We also held that § 646.214(b)(1), which requires that all traffic control devices installed under the program comply with the MUTCD, does not pre-empt state tort actions. Id., at 668670. The MUTCD "provides a description of, rather than a prescription for, the allocation of responsibility for grade crossing safety between Federal and State Governments and between States and railroads," and hence "disavows any claim to cover the subject matter of that body of law." Id., at 669-670.With respect to §§ 646.214(b)(3) and (4), however, we reached a different conclusion. Because those regulations "establish requirements as to the installation of particular warning devices," we held that "when they are applicable, state tort law is pre-empted." Id., at 670. Unlike the other353regulations, "§§ 646.214(b)(3) and (4) displace state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained." Ibid. As a result, those regulations "effectively set the terms under which railroads are to participate in the improvement of crossings." Ibid.In Easterwood itself, we ultimately concluded that the plaintiff's state tort claim was not pre-empted. Ibid. As here, the plaintiff brought a wrongful death action alleging that the railroad had not maintained adequate warning devices at a particular grade crossing. Id., at 661. We held that §§ 646.214(b)(3) and (4) were not applicable because the warning devices for which federal funds had been obtained were never actually installed at the crossing where the accident occurred. Id., at 671-673. Nonetheless, we made clear that, when they do apply, §§ 646.214(b)(3) and (4) "cover the subject matter of state law which, like the tort law on which respondent relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings." Id., at 671. The sole question in this case, then, is whether §§ 646.214(b)(3) and (4) "are applicable" to all warning devices actually installed with federal funds.We believe that Easterwood answers this question as well. As an original matter, one could plausibly read §§ 646.214(b)(3) and (4) as being purely definitional, establishing a standard for the adequacy of federally funded warning devices but not requiring that all such devices meet that standard. Easterwood rejected this approach, however, and held that the requirements spelled out in (b)(3) and (4) are mandatory for all warning devices installed with federal funds. "[F]or projects that involve grade crossings ... in which 'Federal-aid funds participate in the installation of the [warning] devices,' regulations specify warning devices that must be installed." Id., at 666 (emphasis added). Once it is accepted that the regulations are not merely definitional, their scope is plain: They apply to "any project where354Federal-aid funds participate in the installation of the devices." 23 CFR § 646.214(b)(3)(i) (1999).Sections 646.214(b)(3) and (4) therefore establish a standard of adequacy that "determine[s] the devices to be installed" when federal funds participate in the crossing improvement project. Easterwood, 507 U. S., at 671. If a crossing presents those conditions listed in (b)(3), the State must install automatic gates and flashing lights; if the (b)(3) factors are absent, (b)(4) dictates that the decision as to what devices to install is subject to FHW A approval. See id., at 670-671. In either case, § 646.214(b)(3) or (4) "is applicable" and determines the type of warning device that is "adequate" under federal law. As a result, once the FHW A has funded the crossing improvement and the warning devices are actually installed and operating, the regulation "displace[s] state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained." Id., at 670.Importantly, this is precisely the interpretation of §§ 646.214(b)(3) and (4) that the FHWA endorsed in Easterwood. Appearing as amicus curiae, the Government explained that § 646.214(b) "establishes substantive standards for what constitutes adequate safety devices on grade crossing improvement projects financed with federal funds." Brief for United States as Amicus Curiae in CSX Transp., Inc. v. Easterwood, O. T. 1992, Nos. 91-790 and 91-1206, p. 23. As a result, §§ 646.214(b)(3) and (4) "cover the subject matter of adequate safety devices at crossings that have been improved with the use of federal funds." Ibid. More specifically, the Government stated that § 646.214(b)"requires gate arms in certain circumstances, and requires FHW A approval of the safety devices in all other circumstances. Thus, the warning devices in place at a crossing improved with the use of federal funds have, by definition, been specifically found to be adequate under a regulation issued by the Secretary. Any state rule that355more or different crossing devices were necessary at a federally funded crossing is therefore preempted." Id., at 24.Thus, Easterwood adopted the FHWA's own understanding of the application of §§ 646.214(b)(3) and (4), a regulation that the agency had been administering for 17 years.Respondent and the Government now argue that §§ 646.214(b)(3) and (4) are more limited in scope and only apply where the warning devices have been selected based on diagnostic studies and particularized analyses of the conditions at the crossing. See Brief for Respondent 16, 24; Brief for United States as Amicus Curiae 22 (hereinafter Brief for United States). They contend that the Crossings Program actually comprises two distinct programs-the "minimum protection" program and the "priority" or "hazard" program. See Brief for Respondent 1-7; Brief for United States 15-21. Under the "minimum protection" program, they argue, States obtain federal funds merely to equip crossings with advance warning signs and reflectorized crossbucks, the bare minimum required by the MUTCD, without any judgment as to whether the signs are adequate. See Brief for Respondent 5-7,30-36; Brief for United States 15-21. Under the "priority" or "hazard" program, in contrast, diagnostic teams conduct individualized assessments of particular crossings, and state or FHWA officials make specific judgments about the adequacy of the warning devices using the criteria set out in § 646.214(b)(3). See Brief for Respondent 5-7, 34-35; Brief for United States 18-21. They therefore contend that (b)(3) and (4) only apply to devices installed under the "priority" or "hazard" program, when a diagnostic team has actually applied the decisional process mandated by (b)(3). See Brief for Respondent 16; Brief for United States 18-25. Only then has the regulation prescribed a federal standard for the adequacy of the warning devices that displaces state law covering the same subject.356This construction, however, contradicts the regulation's plain text. Sections 646.214(b)(3) and (4) make no distinction between devices installed for "minimum protection" and those installed under a so-called "priority" or "hazard" program. Nor does their applicability depend on any individualized determination of adequacy by a diagnostic team or an FHW A official. Rather, as the FHW A itself explained in its Easterwood brief, §§ 646.214(b)(3) and (4) have a "comprehensive scope." Brief for United States in CSX Transp., Inc. v. Easterwood, O. T. 1992, Nos. 91-790 and 91-1206, at 12. Section 646.214(b)(3) states that its requirements apply to "any project where Federal-aid funds participate in the installation of the devices." 23 CFR § 646.214(b)(3)(i) (1999) (emphasis added). And § 646.214(b)(4) applies to all federally funded crossings that do not meet the criteria specified in (b)(3). Either way, the federal standard for adequacy applies to the crossing improvement and "substantially subsume[s] the subject matter of the relevant state law." Easterwood, 507 U. S., at 664.Thus, contrary to the Government's position here, §§ 646.214(b)(3) and (4) "specify warning devices that must be installed" as a part of all federally funded crossing improvements. Id., at 666. Although generally "an agency's construction of its own regulations is entitled to substantial deference," Lyng v. Payne, 476 U. S. 926, 939 (1986), no such deference is appropriate here. Not only is the FHWA's interpretation inconsistent with the text of §§ 646.214(b)(3) and (4), see Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 359 (1989), but it also contradicts the agency's own previous construction that this Court adopted as authoritative in Easterwood, cf. Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116, 131 (1990) ("Once we have determined a statute's clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency's later interpretation of the statute against our prior determination of the statute's meaning").357The dissent contends that, under our holding, state law is pre-empted even though "[n]o authority, federal or state, has found that the signs in place" are "adequate to protect safety." Post, at 360 (opinion of GINSBURG, J.). This presupposes that States have not fulfilled their obligation to comply with §§ 646.214(b)(3) and (4). Those subsections establish a standard for adequacy that States are required to follow in determining what devices to install when federal funds are used. The dissent also argues that Easterwood did not hold that federal funding of the devices is "sufficient" to effect pre-emption, and that "any statement as to the automatic preemptive effect of federal funding should have remained open for reconsideration in a later case." Post, at 361. But Easterwood did not, in fact, leave this question open. Instead, at the behest of the FHW A, the Court clearly stated that §§ 646.214(b)(3) and (4) pre-empt state tort claims concerning the adequacy of all warning devices installed with the participation of federal funds.Respondent also argues that pre-emption does not lie in this particular case because the Oakwood Church Road crossing presented several of the factors listed in § 646.214(b)(3), and because the TDOT did not install pavement markings as required by the MUTCD. See Brief for Respondent 20-22, 36; Brief in Opposition 6-8. This misconceives how pre-emption operates under these circumstances. When the FHW A approves a crossing improvement project and the State installs the warning devices using federal funds, §§ 646.214(b)(3) and (4) establish a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject. At that point, the regulation dictates "the devices to be installed and the means by which railroads are to participate in their selection." Easterwood, supra, at 671. It is this displacement of state law concerning the devices' adequacy, and not the State's or the FHW A's adherence to the standard set out in §§ 646.214(b)(3) and (4) or to the requirements of the358MUTCD, that pre-empts state tort actions. Whether the State should have originally installed different or additional devices, or whether conditions at the crossing have since changed such that automatic gates and flashing lights would be appropriate, is immaterial to the pre-emption question.It should be noted that nothing prevents a State from revisiting the adequacy of devices installed using federal funds. States are free to install more protective devices at such crossings with their own funds or with additional funding from the FHW A. What States cannot do-once they have installed federally funded devices at a particular crossingis hold the railroad responsible for the adequacy of those devices. The dissent objects that this bestows on railroads a "double windfall": The Federal Government pays for the installation of the devices, and the railroad is simultaneously absolved of state tort liability. Post, at 360-361. But the same is true of the result urged by respondent and the Government. Respondent and the Government acknowledge that §§ 646.214(b)(3) and (4) can pre-empt state tort law, but they argue that pre-emption only occurs when the State has installed the devices pursuant to a diagnostic team's analysis of the crossing in question. Under this reading, railroads would receive the same "double windfall"-federal funding of the devices and pre-emption of state tort law-so long as a diagnostic team has evaluated the crossing. The supposed conferral of a "windfall" on the railroads therefore casts no doubt on our construction of the regulation.Sections 646.214(b)(3) and (4) "cover the subject matter" of the adequacy of warning devices installed with the participation of federal funds. As a result, the FRSA pre-empts respondent's state tort claim that the advance warning signs and reflectorized crossbucks installed at the Oakwood Church Road crossing were inadequate. Because the TDOT used federal funds for the signs' installation, §§ 646.214(b)(3) and (4) governed the selection and installation of the devices. And because the TDOT determined that warning devices359other than automatic gates and flashing lights were appropriate, its decision was subject to the approval of the FHW A. See § 646.214(b)(4). Once the FHWA approved the project and the signs were installed using federal funds, the federal standard for adequacy displaced Tennessee statutory and common law addressing the same subject, thereby preempting respondent's claim.The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1999SyllabusNORFOLK SOUTHERN RAILWAY CO. v. SHANKLIN, INDIVIDUALLY AND AS NEXT FRIEND OF SHANKLINCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 99-312. Argued March 1, 2000-Decided April 17, 2000The Federal Railroad Safety Act of 1970 (FRSA) authorizes the Secretary of Transportation to promulgate regulations and issue orders for railroad safety, and it requires the Secretary to maintain a coordinated effort to solve railroad grade crossing problems. The FRSA also has an express pre-emption provision. One regulation promulgated by the Secretary, through the Federal Highway Administration (FHWA), addresses the adequacy of warning devices installed under the Federal Railway-Highway Crossings Program (Crossings Program). That program provides funds to States for the construction of such devices pursuant to the Highway Safety Act of 1973. According to the regulation, adequate warning devices installed using federal funds, where any of several conditions are present, are automatic gates and flashing lights. 23 CFR § 646.214(b)(3). For crossings where those conditions are not present, a State's decision about what devices to install is subject to FHWA approval. § 646.214(b)(4). Respondent's husband was killed when petitioner's train hit his vehicle at a crossing with advance warning signs and reflectorized crossbucks that the Tennessee Department of Transportation (TDOT) had installed using federal funds under the Crossings Program. The signs were installed and fully compliant with applicable federal standards. Respondent brought a diversity wrongful death action in federal court, alleging that petitioner was negligent in, among other things, failing to maintain adequate warning devices at the crossing. The District Court denied petitioner's summary judgment motion, holding that the FRSA did not pre-empt respondent's inadequate warning device claim. After a trial, the jury awarded respondent damages on this and other negligence issues. The Sixth Circuit affirmed.Held: The FRSA, in conjunction with §§ 646.214(b)(3) and (4), pre-empts state tort claims concerning a railroad's failure to maintain adequate warning devices at crossings where federal funds have participated in the devices' installation. In CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 670, this Court held that, because §§ 646.214(b)(3) and (4) "establish requirements as to the installation of particular warning devices," "when they are applicable, state tort law is pre-empted." Thus,345the sole question here is whether they "are applicable" to all warning devices actually installed with federal funds. Easterwood answers this question as well, because it held that the requirements in (b)(3) and (4) are mandatory for all such devices. Id., at 666. They establish a standard of adequacy that determines the type of warning device to be installed when federal funds participate in the crossing improvement project. Once the FHWA has approved and funded the improvement and the devices are installed and operating, the regulation displaces state and private decisionmaking authority with a federal-law requirement. Importantly, this is precisely the interpretation of §§ 646.214(b)(3) and (4) that the FHWA endorsed in Easterwood. The Government's position here-that (b)(3) and (4) only apply where the warning devices have been selected based on diagnostic studies and particularized analyses of a crossing's conditions-is not entitled to deference, because it contradicts the regulation's plain text as well as the FHWA's own previous construction that the Court adopted as authoritative in Easterwood. Respondent's argument that pre-emption does not apply here because this crossing presented several (b)(3) factors, and because the TDOT did not install pavement markings required by the FHWA's Manual on Uniform Traffic Control Devices, misconceives how pre-emption operates under these circumstances. If they are applicable, §§ 646.214(b)(3) and (4) establish a federal standard for adequacy that displaces state tort law addressing the same subject. Whether the State should have originally installed different or additional devices, or whether conditions at the crossing have since changed such that different devices would be appropriate, is immaterial. Nothing prevents a State from revisiting the adequacy of devices installed using federal funds, or from installing more protective devices at such crossings with their own funds or additional FHWA funding, but the State cannot hold the railroad responsible for the adequacy of those devices. pp. 352-359.173 F.3d 386, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion, post, p. 359. GINSBURG, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 360.Carter G. Phillips argued the cause for petitioner. With him on the briefs were G. Paul Moates, Stephen B. Kinnaird, Everett B. Gibson, and Wiley G. Mitchell, Jr.346Full Text of Opinion

1972_71-1051

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.Petitioners are two Atlanta, Georgia, movie theaters and their owners and managers, operating in the Page 413 U. S. 51 style of "adult" theaters. On December 28, 1970, respondents, the local state district attorney and the solicitor for the local state trial court, filed civil complaints in that court alleging that petitioners were exhibiting to the public for paid admission two allegedly obscene films, contrary to Georgia Code Ann. § 26-2101. [Footnote 1] The two films in question, "Magic Mirror" and "It All Comes Out in the End," depict sexual conduct characterized Page 413 U. S. 52 by the Georgia Supreme Court as "hard core pornography" leaving "little to the imagination."Respondents' complaints, made on behalf of the State of Georgia, demanded that the two films be declared obscene and that petitioners be enjoined from exhibiting the films. The exhibition of the films was not enjoined, but a temporary injunction was granted ex parte by the local trial court, restraining petitioners from destroying the films or removing them from the jurisdiction. Petitioners were further ordered to have one print each of the films in court on January 13, 1971, together with the proper viewing equipment.On January 13, 1971, 15 days after the proceedings began, the films were produced by petitioners at a jury-waived trial. Certain photographs, also produced at trial, were stipulated to portray the single entrance to both Paris Adult Theatre I and Paris Adult Theatre II as it appeared at the time of the complaints. These photographs show a conventional, inoffensive theater entrance, without any pictures, but with signs indicating that the theaters exhibit "Atlanta's Finest Mature Feature Films." On the door itself is a sign saying: "Adult Theatre -- You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter."The two films were exhibited to the trial court. The only other state evidence was testimony by criminal investigators that they had paid admission to see the films and that nothing on the outside of the theater indicated the full nature of what was shown. In particular, nothing indicated that the films depicted -- as they did -- scenes of simulated fellatio, cunnilingus, and group sex intercourse. There was no evidence presented that minors had ever entered the theaters. Nor was there evidence presented that petitioners had a systematic policy of barring minors, apart from posting signs at the entrance. On April 12, 1971, the trial judge dismissed Page 413 U. S. 53 respondents' complaints. He assumed "that obscenity is established," but stated:"It appears to the Court that the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible."On appeal, the Georgia Supreme Court unanimously reversed. It assumed that the adult theaters in question barred minors and gave a full warning to the general public of the nature of the films shown, but held that the films were without protection under the First Amendment. Citing the opinion of this Court in United States v. Reidel, 402 U. S. 351 (1971), the Georgia court stated that "the sale and delivery of obscene material to willing adults is not protected under the first amendment." The Georgia court also held Stanley v. Georgia, 394 U. S. 557 (1969), to be inapposite, since it did not deal with "the commercial distribution of pornography, but with the right of Stanley to possess, in the privacy of his home, pornographic films." 228 Ga. 343, 345, 185 S.E.2d 768, 769 (1971). After viewing the films, the Georgia Supreme Court held that their exhibition should have been enjoined, stating:"The films in this case leave little to the imagination. It is plain what they purport to depict, that is, conduct of the most salacious character. We hold that these films are also hard core pornography, and the showing of such films should have been enjoined, since their exhibition is not protected by the first amendment."Id. at 347, 185 S.E.2d at 770.IIt should be clear from the outset that we do not undertake to tell the States what they must do, but Page 413 U. S. 54 rather to define the area in which they may chart their own course in dealing with obscene material. This Court has consistently held that obscene material is not protected by the First Amendment as a limitation on the state police power by virtue of the Fourteenth Amendment. Miller v. California, ante at 413 U. S. 225; Kois v. Wisconsin, 408 U. S. 229, 408 U. S. 230 (1972); United States v. Reidel, supra, at 402 U. S. 354; Roth v. United States, 354 U. S. 476, 354 U. S. 485 (1957).Georgia case law permits a civil injunction of the exhibition of obscene materials. See 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). While this procedure is civil in nature, and does not directly involve the state criminal statute proscribing exhibition of obscene material, [Footnote 2] the Georgia case law permitting civil injunction does adopt the definition of "obscene materials" used by the criminal statute. [Footnote 3] Today, in Miller v. California, supra, we have Page 413 U. S. 55 sought to clarify the constitutional definition of obscene material subject to regulation by the States, and we vacate and remand this case for reconsideration in light of Miller.This is not to be read as disapproval of the Georgia civil procedure employed in this case, assuming the use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment. On the contrary, such a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation. [Footnote 4] See Kingsley Books, Inc. v. Brown, 354 U. S. 436, 354 U. S. 441-444 (1957). Here, Georgia imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected. [Footnote 5] Thus, the standards of Blount v. Rizzi, 400 U. S. 410, 400 U. S. 417 (1971); Teitel Film Corp. v. Cusack, 390 U. S. 139, 390 U. S. 141-142 (1968); Freedman v. Maryland, 380 U. S. 51, 380 U. S. 559 (1965), and Kingsley Books, Inc. v. Brown, supra, at 354 U. S. 443-445, were met. Cf. United States v. Thirty-seven Photographs, 402 U. S. 363, 402 U. S. 367-369 (1971) (opinion of WHITE, J.). Page 413 U. S. 56Nor was it error to fail to require "expert" affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. United States v. Groner, 479 F.2d 577, 579-586 (CA5 1973); id. at 586-588 (Ainsworth, J., concurring); id. at 586-589 (Clark, J., concurring); United States v. Wild, 422 1.2d 34, 35-36 (CA2 1969), cert. denied, 402 U.S. 986 (1971); Kahm v. United States, 300 F.2d 78, 84 (CA5), cert. denied, 369 U.S. 859 (1962); State v. Amato, 49 Wis.2d 638, 645, 183 N.W.2d 29, 32 (1971), cert. denied sub nom. Amato v. Wisconsin, 404 U.S. 1063 (1972). See Smith v. California, 361 U. S. 147, 361 U. S. 172 (1959) (Harlan, J., concurring and dissenting); United States v. Brown, 328 F. Supp. 196, 199 (ED Va.1971). The films, obviously, are the best evidence of what they represent. [Footnote 6]"In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question."Ginzburg v. United States, 383 U. S. 463, 383 U. S. 465 (1966). Page 413 U. S. 57IIWe categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. This holding was properly rejected by the Georgia Supreme Court. Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsenting adults, see Miller v. California, ante at 413 U. S. 18-20; Stanley v. Georgia, 394 U.S. at 394 U. S. 567; Redrup v. New York, 386 U. S. 767, 386 U. S. 769 (1967), this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material. The States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions. See United States v. Thirty-seven Photographs, supra, at 402 U. S. 376-377 (opinion of WHITE, J.); United States v. Reidel, 402 U.S. at 402 U. S. 354-356. Cf. United States v. Thirty-seven Photographs, supra, at 402 U. S. 378 (STEWART, J., concurring)."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.' [Near v. Minnesota, 283 U. S. 697, 283 U. S. 716 (1931)]."Kingsley Books, Inc. v. Brown, supra, at 354 U. S. 440.In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. [Footnote 7] Page 413 U. S. 58 Rights and interests "other than those of the advocates are involved." Breard v. Alexandria, 341 U. S. 622, 341 U. S. 642 (1951). These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The Hill-Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime. [Footnote 8] Quite Page 413 U. S. 59 apart from sex crimes, however, there remains one problem of large proportions aptly described by Professor Bickel:"It concerns the tone of the society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently there. . . . We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places -- discreet, if you will, but accessible to all -- with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not."22 The Public Interest 25-26 (Winter 1971). [Footnote 9] (Emphasis added.) As Mr. Chief Justice Warren stated, there is a "right of the Nation and of the States to maintain a decent society . . . ," Page 413 U. S. 60 Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 199 (1964) (dissenting opinion). [Footnote 10] See Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 457 (1966) (Harlan, J., dissenting); Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 256-257 (1952); Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 86-88 (1949).But, it is argued, there are no scientific data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society. It is urged on behalf of the petitioners that, absent such a demonstration, any kind of state regulation is "impermissible." We reject this argument. It is not for us to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself. [Footnote 11] MR. JUSTICE BRENNAN, speaking for the Court in Ginsberg v. New York, 390 U. S. 629, 390 U. S. 642-643 (1968), said: "We do not demand of legislatures scientifically certain criteria of legislation.' Noble State Bank v. Haskell, 219 U. S. 104, 219 U. S. 110." Although there is no conclusive proof of a connection between antisocial behavior Page 413 U. S. 61 and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect "the social interest in order and morality." Roth v. United States, 354 U.S. at 354 U. S. 485, quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 572 (1942) (emphasis added in Roth). [Footnote 12]From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs. See Ferguson v. Skrupa, 372 U. S. 726, 372 U. S. 730 (1963); Breard v. Alexandria, 341 U.S. at 341 U. S. 632-633, 341 U. S. 641-645; Lincoln Federal Labor Union v. Northwestern Iron Metal Co., 335 U. S. 525, 335 U. S. 536-537 (1949). The same is true of the federal securities and antitrust laws and a host of federal regulations. See SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 375 U. S. 186-195 (1963); American Power & Light Co. v. SEC, 329 U. S. 90, 329 U. S. 99-103 (1946); North American Co. v. SEC, 327 U. S. 686, 327 U. S. 705-707 (1946), and cases cited. See also Brooks v. United States, 267 U. S. 432, 267 U. S. 436-437 (1925), and Hoke v. United States, 227 U. S. 308, 227 U. S. 322 (1913). On the basis of these assumptions both Congress and state legislatures have, for example, drastically restricted associational rights by adopting antitrust laws, and have strictly regulated public expression by issuers of and dealers in securities, profit sharing "coupons," and "trading stamps," Page 413 U. S. 62 commanding what they must and must not publish and announce. See Sugar Institute, Inc. v. United States, 297 U. S. 553, 297 U. S. 597-602 (1936); Merrick v. N.W. Halsey & Co., 242 U. S. 568, 242 U. S. 584-589 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559, 242 U. S. 567-568 (1917); Hall v. Geiger-Jones Co., 242 U. S. 539, 242 U. S. 548-552 (1917); Tanner v. Little, 240 U. S. 369, 240 U. S. 383-386 (1916); Rast v. Van Deman Lewis Co., 240 U. S. 342, 240 U. S. 363-368 (1916). Understandably those who entertain an absolutist view of the First Amendment find it uncomfortable to explain why rights of association, speech, and press should be severely restrained in the marketplace of goods and money, but not in the marketplace of pornography.Likewise, when legislatures and administrators act to protect the physical environment from pollution and to preserve our resources of forests, streams, and parks, they must act on such imponderables as the impact of a new highway near or through an existing park or wilderness area. See Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 401 U. S. 417-420 (1971). Thus, § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, and the Department of Transportation Act of 1966, as amended, 82 Stat. 824, 49 U.S.C. § 1653(f), have been described by Mr. Justice Black as"a solemn determination of the highest law-making body of this Nation that the beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, factfindings, and policy determinations under the supervision of a Cabinet officer. . . ."Citizens to Preserve Overton Park, supra, at 401 U. S. 421 (separate opinion joined by BRENNAN, J.). The fact that a congressional directive reflects unprovable assumptions about what is good for the people, including imponderable aesthetic assumptions, is not a sufficient reason to find that statute unconstitutional. Page 413 U. S. 63If we accept the unprovable assumption that a complete education requires the reading of certain books, see Board of Education v. Allen, 392 U. S. 236, 392 U. S. 245 (1968), and Johnson v. New York State Education Dept., 449 F.2d 871, 882-883 (CA2 1971) (dissenting opinion), vacated and remanded to consider mootness, 409 U. S. 75 (1972), id. at 777 (MARSHALL, J., concurring), and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior? "Many of these effects may be intangible and indistinct, but they are nonetheless real." American Power & Light Co. v. SEC, supra, at 329 U. S. 103. Mr. Justice Cardozo said that all laws in Western civilization are "guided by a robust common sense. . . ." Steward Machine Co. v. Davis, 301 U. S. 548, 301 U. S. 590 (1937). The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data.It is argued that individual "free will" must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual's desire to see or acquire obscene plays, movies, and books. We do indeed base our society on Page 413 U. S. 64 certain assumptions that people have the capacity for free choice. Most exercises of individual free choice -- those in politics, religion, and expression of idea are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. We have just noted, for example, that neither the First Amendment nor "free will" precludes States from having "blue sky" laws to regulate what sellers of securities may write or publish about their wares. See supra at 413 U. S. 61-62. Such laws are to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition. Nor do modern societies leave disposal of garbage and sewage up to the individual "free will," but impose regulation to protect both public health and the appearance of public places. States are told by some that they must await a "laissez-faire" market solution to the obscenity-pornography problem, paradoxically "by people who have never otherwise had a kind word to say for laissez-faire," particularly in solving urban, commercial, and environmental pollution problems. See I. Kristol, On the Democratic Idea in America 37 (1972).The States, of course, may follow such a "laissez-faire" policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction. See United States v. Reidel, 402 U.S. at 402 U. S. 357; Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 462 (WHITE, J., dissenting)."We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions."Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 482 (1965). See Ferguson v. Skrupa, 372 U.S. at 372 U. S. 731; Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 342 U. S. 423 (1952). Page 413 U. S. 65It is asserted, however, that standards for evaluating state commercial regulations are inapposite in the present context, as state regulation of access by consenting adults to obscene material violates the constitutionally protected right to privacy enjoyed by petitioners' customers. Even assuming that petitioners have vicarious standing to assert potential customers' rights, it is unavailing to compare a theater open to the public for a fee, with the private home of Stanley v. Georgia, 394 U.S. at 394 U. S. 568, and the marital bedroom of Griswold v. Connecticut, supra, at 381 U. S. 485-486. This Court, has, on numerous occasions, refused to hold that commercial ventures such as a motion-picture house are "private" for the purpose of civil rights litigation and civil rights statutes. See Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 396 U. S. 236 (1969); Daniel v. Paul, 395 U. S. 298, 395 U. S. 305-308 (1969); Blow v. North Carolina, 379 U. S. 684, 379 U. S. 685-686 (1965); Hamm v. Rock Hill, 379 U. S. 306, 379 U. S. 307-308 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 379 U. S. 247, 379 U. S. 260-261 (1964). The Civil Rights Act of 1964 specifically defines motion picture houses and theaters as places of "public accommodation" covered by the Act as operations affecting commerce. 78 Stat. 243, 42 U.S.C. § § 2000a(b)(3), (c).Our prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included"only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty.' Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325 (1937)."Roe v. Wade, 410 U. S. 113, 410 U. S. 152 (1973). This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and childrearing. Cf. Eisenstadt v. Baird, 405 U. S. 438, 405 U. S. 453-454 (1972); id. at 405 U. S. 460, 405 U. S. 463-465 (WHITE, J., concurring); Stanley v. Georgia, supra, at 394 U. S. 568; Loving v. Virginia, 388 Page 413 U. S. 66 U.S. 1, 388 U. S. 12 (1967); Griswold v. Connecticut, supra, at 381 U. S. 486; Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 166 (1944); Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 541 (1942); 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). Nothing, however, in this Court's decisions intimates that there is any "fundamental" privacy right "implicit in the concept of ordered liberty" to watch obscene movies in places of public accommodation.If obscene material unprotected by the First Amendment, in itself, carried with it a "penumbra" of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the "privacy of the home," which was hardly more than a reaffirmation that "a man's home is his castle." Cf. Stanley v. Georgia, supra, at 394 U. S. 564. [Footnote 13] Moreover, we have declined to equate the privacy of the home relied on in Stanley with a "zone" of "privacy" that follows a distributor or a consumer of obscene materials wherever he goes. See United States v. Orito, post at 413 U. S. 141-143; United States v. 12 200-ft. Reels of Film, post at 413 U. S. 126-129; United States v. Thirty-seven Photographs, 42 U.S. at 43 U. S. 376-377 (opinion of WHITE, J.); United States v. Reidel, supra, at 402 U. S. 355. The idea of a "privacy" right and a place of public accommodation are, in this context, Page 413 U. S. 67 mutually exclusive. Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a "live" theater stage, any more than a "live" performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue.It is also argued that the State has no legitimate interest in "control [of] the moral content of a person's thoughts," Stanley v. Georgia, supra, at 394 U. S. 565, and we need not quarrel with this. But we reject the claim that the State of Georgia is here attempting to control the minds or thoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, Miller v. California, ante at 413 U. S. 24, 413 U. S. 34, is distinct from a control of reason and the intellect. Cf. Kois v. Wisconsin, 408 U. S. 229 (1972); Roth v. United States, supra, at 354 U. S. 485-487; Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-102 (1940); Finnis, "Reason and Passion": The Constitutional Dialectic of Free Speech and Obscenity, 116 U.Pa.L.Rev. 222, 229-230, 241-243 (1967). Where communication of ideas, protected by the First Amendment, is not involved, or the particular privacy of the home protected by Stanley, or any of the other "areas or zones" of constitutionally protected privacy, the mere fact that, as a consequence, some human "utterances" or. "thoughts" may be incidentally affected does not bar the State from acting to protect legitimate state interests. Cf. Roth v. United States, supra, at 354 U. S. 483, 485-487; Beauharnais v. Illinois, 343 U.S. at 343 U. S. 256-257. The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not Page 413 U. S. 68 prohibited by the Constitution. Cf. United States v. Reidel, supra, at 402 U. S. 359-360 (Harlan, J., concurring).Finally, petitioners argue that conduct which directly involves "consenting adults" only has, for that sole reason, a special claim to constitutional protection. Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, [Footnote 14] is a step we are unable to take. [Footnote 15] Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State's broad power to regulate commerce and protect the public Page 413 U. S. 69 environment. The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as "wrong" or "sinful." The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize, in Mr. Chief Justice Warren's words, the States' "right . . . to maintain a decent society." Jacobellis v. Ohio, 378 U.S. at 378 U. S. 199 (dissenting opinion).To summarize, we have today reaffirmed the basic holding of Roth v. United States, supra, that obscene material has no protection under the First Amendment. See Miller v. California, supra, and Kaplan v. California, post, p. 413 U. S. 115. We have directed our holdings, not at thoughts or speech, but at depiction and description of specifically defined sexual conduct that States may regulate within limits designed to prevent infringement of First Amendment rights. We have also reaffirmed the holdings of United States v. Reidel, supra, and United States v. Thirty-seven Photographs, supra, that commerce in obscene material is unprotected by any constitutional doctrine of privacy. United States v. Orito, post at 413 U. S. 141-143; United States v. 12 200-ft. Reels of Film, post at 413 U. S. 126-129. In this case, we hold that the States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including so-called "adult" theaters from which minors are excluded. In light of these holdings, nothing precludes the State of Georgia from the regulation of the allegedly obscene material exhibited in Paris Adult Theatre I or II, provided that the applicable Georgia law, as written or authoritatively interpreted by the Georgia courts, meets the First Amendment standards set forth in Miller v. California, ante at 413 U. S. 23-25. The Page 413 U. S. 70 judgment is vacated and the case remanded to the Georgia Supreme Court for further proceedings not inconsistent with this opinion and Miller v. California, supra. See United States v. 12 200-ft. Reels of Film, post at 413 U. S. 130 n. 7.Vacated and remanded

U.S. Supreme CourtParis Adult Theatre I v. Slaton, 413 U.S. 49 (1973)Paris Adult Theatre I v. SlatonNo. 71-1051Argued October 19, 1972Decided June 21, 1973413 U.S. 49SyllabusRespondents sued under Georgia civil law to enjoin the exhibiting by petitioners of two allegedly obscene films. There was no prior restraint. In a jury-waived trial, the trial court (which did not require "expert" affirmative evidence of obscenity) viewed the films and thereafter dismissed the complaints on the ground that the display of the films in commercial theaters to consenting adult audiences (reasonable precautions having been taken to exclude minors) was "constitutionally permissible." The Georgia Supreme Court reversed, holding that the films constituted "hard core" pornography not within the protection of the First Amendment.Held:1. Obscene material is not speech entitled to First Amendment protection. Miller v. California, ante p. 413 U. S. 15; Roth v. United States, 354 U. S. 476. P. 413 U. S. 54.2. The Georgia civil procedure followed here (assuming use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment) comported with the standards of Teitel Film Corp. v. Cusack, 390 U. S. 139; Freedman v. Maryland, 380 U. S. 51; and Kingsley Books, Inc. v. Brown, 354 U. S. 436. Pp. 413 U. S. 54-55.3. It was not error to fail to require expert affirmative evidence of the films' obscenity, since the films (which were the best evidence of what they depicted) were themselves placed in evidence. P. 413 U. S. 56.4. States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including "adult" theaters. Pp. 413 U. S. 57-69.(a) There is a proper state concern with safeguarding against crime and the other arguably ill effects of obscenity by prohibiting the public or commercial exhibition of obscene material. Though conclusive proof is lacking, the States may reasonably determine that a nexus does or might exist between antisocial behavior and obscene material, just as States have acted on unprovable assumptions in other areas of public control. Pp. 413 U. S. 57-63.(b) Though States are free to adopt a laissez-faire policy toward commercialized obscenity, they are not constitutionally obliged to do so. P. 413 U. S. 64. Page 413 U. S. 50(c) Exhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy. A commercial theater cannot be equated with a private home; nor is there here a privacy right arising from a special relationship, such as marriage. Stanley v. Georgia, 394 U. S. 557; Griswold v. Connecticut, 381 U. S. 479, distinguished. Nor can the privacy of the home be equated with a "one" of "privacy" that follows a consumer of obscene materials wherever he goes. United States v. Orito, post, p. 413 U. S. 139; United States v. 12 200-ft. Reels of Film, post, p. 123. Pp. 413 U. S. 65-67.(d) Preventing the unlimited display of obscene material is not thought control. Pp. 413 U. S. 67-68.(e) Not all conduct directly involving "consenting adults" only has a claim to constitutional protection. Pp. 413 U. S. 68-69.5. The Georgia obscenity laws involved herein should now be reevaluated in the light of the First Amendment standards newly enunciated by the Court in Miller v. California, ante, p. 15. Pp. 413 U. S. 69-70.228 Ga. 343, 185 S.E.2d 768, vacated and remanded.BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 413 U. S. 70. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 73.

1963_367

MR. JUSTICE WHITE delivered the opinion of the Court.In 1956, Continental Can Company, the Nation's second largest producer of metal containers, acquired all of the assets, business and good will of Hazel-Atlas Glass Company, the Nation's third largest producer of glass containers, in exchange for 999,140 shares of Continental's common stock and the assumption by Continental of all the liabilities of Hazel-Atlas. The Government brought this action seeking a judgment that the acquisition violated § 7 of the Clayton Act [Footnote 1] and requesting an Page 378 U. S. 444 appropriate divestiture order. Trying the case without a jury, the District Court found that the Government had failed to prove reasonable probability of anticompetitive effect in any line of commerce, and accordingly dismissed the complaint at the close of the Government's case. United States v. Continental Can Co., 217 F. Supp. 761 (D.C.S.D.N.Y.). We noted probable jurisdiction to consider the specialized problems incident to the application of § 7 to inter-industry mergers and acquisitions. [Footnote 2] 375 U.S. 893. We reverse the decision of the District Court.IThe industries with which this case is principally concerned are, as found by the trial court, the metal can industry, the glass container industry, and the plastic container industry, each producing one basic type of container made of metal, glass, and plastic, respectively.Continental Can is a New York corporation organized in 1913 to acquire all the assets of three metal container Page 378 U. S. 445 manufacturers. Since 1913, Continental has acquired 21 domestic metal container companies, as well as numerous others engaged in the packaging business, including producers of flexible packaging; a manufacturer of polyethylene bottles and similar plastic containers; 14 producers of paper containers and paperboard; four companies making closures for glass containers; and one -- Hazel-Atlas -- producing glass containers. In 1955, the year prior to the present merger, Continental, with assets of $382 million, was the second largest company in the metal container field, shipping approximately 33% of all such containers sold in the United States. It and the largest producer, American Can Company, accounted for approximately 71% of all metal container shipments. National Can Company, the third largest, shipped approximately 5%, with the remaining 24% of the market being divided among 75 to 90 other firms. [Footnote 3]During 1956, Continental acquired not only the Hazel-Atlas Company, but also Robert Gair Company, Inc. -- a leading manufacturer of paper and paperboard products -- and White Cap Company -- a leading producer of vacuum-type metal closures for glass food containers -- so that Continental's assets rose from $382 million in 1955 Page 378 U. S. 446 to more than $633 million in 1956, and its net sales and operating revenues during that time increased from $666 million to more than $1 billion.Hazel-Atlas was a West Virginia corporation which, in 1955, had net sales in excess of $79 million and assets of more than $37 million. Prior to the absorption of Hazel-Atlas into Continental, the pattern of dominance among a few firms in the glass container industry was similar to that which prevailed in the metal container field. Hazel-Atlas, with approximately 9.6% of the glass container shipments in 1955, was third. Owens-Illinois Glass Company had 34.2% and Anchor-Hocking Glass Company 11.6%, with the remaining 44.6% being divided among at least 39 other firms. [Footnote 4]After an initial attempt to prevent the merger under a 1950 consent decree failed, the terms of the decree being Page 378 U. S. 447 held inapplicable to the proposed acquisition, the Government moved for a preliminary injunction against its consummation and sought a temporary restraining order pending the determination of its motion. The temporary restraining order was denied, and, on the same day, the merger was accomplished. The Government then withdrew its motion for a preliminary injunction and continued the action as one for divestiture.At the conclusion of the Government's case, Continental moved for dismissal of the complaint. After the District Court had granted the motion under Rule 41(b) of the Federal Rules of Civil Procedure, but before a formal opinion was filed, this Court handed down its decision in Brown Shoe Co. v. United States, 370 U. S. 294; additional briefs directed to the applicability of Brown Shoe were filed. The trial judge held that, under the guidelines laid down by Brown Shoe, the Government had not established its right to relief under § 7 of the Clayton Act. This appeal followed.IIWe deal first with the relevant market. It is not disputed here, and the District Court held, that the geographical market is the entire United States. As for the product market, the court found, as was conceded by the parties, that the can industry and the glass container industry were relevant lines of commerce. Beyond these two product markets, however, the Government urged the recognition of various other lines of commerce, some of them defined in terms of the end uses for which tin and glass containers were in substantial competition. These end-use claims were containers for the beer industry, containers for the soft drink industry, containers for the canning industry, containers for the toiletry and cosmetic industry, containers for the medicine and health industry, and containers for the household and chemical industry. 217 F. Supp. at 778-779. Page 378 U. S. 448The court, in dealing with these claims, recognized that there was inter-industry competition, and made findings as to its extent and nature:"[T]here was substantial and vigorous inter-industry competition between these three industries and between various of the products which they manufactured. Metal can, glass container and plastic container manufacturers were each seeking to enlarge their sales to the thousands of packers of hundreds of varieties of food, chemical, toiletry and industrial products, ranging from ripe olives to fruit juices to tuna fish to smoked tongue; from maple syrup to pet food to coffee; from embalming fluid to floor wax to nail polish to aspirin to veterinary supplies, to take examples at random.""Each industry and each of the manufacturers within it was seeking to improve their products so that they would appeal to new customers or hold old ones."217 F. Supp. at 780-781. Furthermore the court found that:"Hazel-Atlas and Continental were part of this overall industrial pattern, each in a recognized separate industry producing distinct products but engaged in inter-industry competition for the favor of various end users of their products."Id. at 781. The court, nevertheless, with one exception -- containers for beer -- rejected the Government's claim that existing competition between metal and glass containers had resulted in the end-use product markets urged by the Government:"The fact that there is inter-industry or inter-product competition between metal, glass and plastic containers is not determinative of the metes and bounds of a relevant product market."Ibid. In the trial court's view, the Government failed to make"appropriate distinctions . . . between inter-industry or overall commodity Page 378 U. S. 449 competition and the type of competition between products with reasonable interchangeability of use and cross-elasticity of demand which has Clayton Act significance."Id. at 781-782. The inter-industry competition, concededly present, did not remove this merger from the category of the conglomerate combination,"in which one company in two separate industries combined with another in a third industry for the purpose of establishing a diversified line of products."Id. at 782.We cannot accept this conclusion. The District Court's findings having established the existence of three product markets -- metal containers, glass containers and metal and glass beer containers -- the disputed issue on which that court erred is whether the admitted competition between metal and glass containers for uses other than packaging beer was of the type and quality deserving of § 7 protection, and therefore the basis for defining a relevant product market. In resolving this issue, we are instructed, on the one hand, that, "[f]or every product, substitutes exist. But a relevant market cannot meaningfully encompass that infinite range." Times-Picayune v. United States, 345 U. S. 594, 345 U. S. 612, n. 31. On the other hand, it is improper "to require that products be fungible to be considered in the relevant market." United States v. E. I. du Pont De Nemours & Co., 351 U. S. 377, 351 U.S. 394. In defining the product market between these terminal extremes, we must recognize meaningful competition where it is found to exist. Though the"outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it,"there may be, "within this broad market, well-defined submarkets . . . which, in themselves, constitute product markets for antitrust purposes." Brown Shoe Co., Inc. v. United States, 370 U. S. 294, 370 U. S. 325. Concededly these guidelines offer no precise formula for judgment, and they necessitate, rather than avoid, careful consideration based upon the entire record. Page 378 U. S. 450It is quite true that glass and metal containers have different characteristics which may disqualify one or the other, at least in their present form, from this or that particular use; that the machinery necessary to pack in glass is different from that employed when cans are used; that a particular user of cans or glass may pack in only one or the other container, and does not shift back and forth from day to day as price and other factors might make desirable; and that the competition between metal and glass containers is different from the competition between the can companies themselves or between the products of the different glass companies. These are relevant and important considerations, but they are not sufficient to obscure the competitive relationships which this record so compellingly reveals.Baby food was at one time packed entirely in metal cans. Hazel-Atlas played a significant role in inducing the shift to glass as the dominant container by designing "what has become the typical baby food jar." According to Continental's estimate, 80% of the Nation's baby food now moves in glass containers. Continental has not been satisfied with this contemporary dominance by glass, however, and has made intensive efforts to increase its share of the business at the expense of glass. In 1954, two years before the merger, the Director of Market Research and Promotion for the Glass Container Manufacturers Institute concluded, largely on the basis of Continental's efforts to secure more baby food business, that "the can industry is beginning to fight back more aggressively in this field where it is losing ground to glass." In cooperation with some of the baby food companies, Continental carried out what it called a Baby Food Depth Survey in New York and Los Angeles to discover specific reasons for the preference of glass-packed baby food. Largely in response to this and other in-depth surveys, advertising campaigns were conducted which were designed Page 378 U. S. 451 to overcome mothers' prejudices against metal containers. [Footnote 5]In the soft drink business, a field which has been, and is, predominantly glass territory, the court recognized that the metal can industry had, "[a]fter considerable initial difficulty . . . , developed a can strong enough to resist the pressures generated by carbonated beverages" and "made strenuous efforts to promote the use of metal cans for carbonated beverages as against glass bottles." 217 F. Supp. at 798. Continental has been a major factor in this rivalry. It studied the results of market tests to determine the extent to which metal cans could "penetrate this tremendous market," and its advertising has centered around the advantages of cans over glass as soft drink containers, emphasizing such features as convenience in stacking and storing, freedom from breakage. and lower distribution costs resulting from the lighter weight of cans.The District Court found that,"[a]lthough, at one time, almost all packaged beer was sold in bottles, in a relatively short period, the beer can made great headway, and may well have become the dominant beer container."217 F. Supp. at 795. Regardless of which industry may have the upper hand at a given moment, however, an Page 378 U. S. 452 intense competitive battle on behalf of the beer can and the beer bottle is being waged both by the industry trade associations and by individual container manufacturers, one of the principal protagonists being Continental. Technological development has been an important weapon in this battle. A significant factor in the growth of the beer can appears to have been its no-return feature. The glass industry responded with the development of a lighter and cheaper one-way bottle.In the food canning, toiletry and cosmetic, medicine and health, and household and chemical industries, the existence of vigorous competition was also recognized below. In the case of food, it was noted that one type of container has supplanted the other in the packing of some products, and that, in some instances, similar products are packaged in two or more different types of containers. In the other industries,"glass container, plastic container, and metal container manufacturers are each seeking to promote their lines of containers at the expense of other lines; . . . all are attempting to improve their products or to develop new ones so as to have a wider customer appeal,"217 F. Supp. at 804, the result being that "manufacturers from time to time may shift a product from one type of container to another." Id. at 805.In the light of this record and these findings, we think the District Court employed an unduly narrow construction of the "competition" protected by § 7 and of "reasonable interchangeability of use or the cross-elasticity of demand" in judging the facts of this case. We reject the opinion below insofar as it holds that these terms, as used in the statute or in Brown Shoe, were intended to limit the competition protected by § 7 to competition between identical products, to the kind of competition which exists, for example, between the metal containers of one company and those of another, or between the several manufacturers of glass containers. Certainly, that Page 378 U. S. 453 the competition here involved may be called "inter-industry competition" and is between products with distinctive characteristics does not automatically remove it from the reach of § 7.Interchangeability of use and cross-elasticity of demand are not to be used to obscure competition, but to "recognize competition where, in fact, competition exists." Brown Shoe Co. v. United States, 370 U.S. at 370 U. S. 326. In our view, there is and has been a rather general confrontation between metal and glass containers, and competition between them for the same end uses which is insistent, continuous, effective and, quantity-wise, very substantial. Metal has replaced glass, and glass has replaced metal, as the leading container for some important uses; both are used for other purposes; each is trying to expand its share of the market at the expense of the other; [Footnote 6] and each is attempting to preempt for itself every use for which its product is physically suitable, even though some such uses have traditionally been regarded as the exclusive domain of the competing industry. [Footnote 7] In differing degrees Page 378 U. S. 454 for different end uses, manufacturers in each industry take into consideration the price of the containers of the opposing industry in formulating their own pricing Page 378 U. S. 455 policy. [Footnote 8] Thus, though the interchangeability of use may not be so complete and the cross-elasticity of demand not so immediate as in the case of most intra-industry mergers, there is, over the long run, the kind of customer response to innovation and other competitive stimuli that brings the competition between these two industries within § 7's competition-preserving proscriptions.Moreover, price is only one factor in a user's choice between one container or the other. That there are price differentials between the two products, or that the demand for one is not particularly or immediately responsive to changes in the price of the other, are relevant matters, but not determinative of the product market issue. Whether a packager will use glass or cans may depend not only on the price of the package, but also upon other equally important considerations. The consumer, for example, may begin to prefer one type of container over the other, and the manufacturer of baby food cans may therefore find that his problem is the housewife, rather Page 378 U. S. 456 than the packer or the price of his cans. [Footnote 9] This may not be price competition, but it is nevertheless meaningful competition between interchangeable containers.We therefore conclude that the area of effective competition between the metal and glass container industry is far broader than that of containers for beer. It is true that the record in this case does not identify with particularity all end uses for which competition exists and all those for which competition may be nonexistent, too remote, or too ephemeral to warrant § 7 application. Nor does the record furnish the exact quantitative share of the relevant market which is enjoyed by the individual participating can and glass companies. But"[t]he 'market,' as most concepts in law or economics, cannot be measured by metes and bounds. . . . Obviously no magic inheres in numbers."Times-Picayune v. United States, 345 U. S. 594, 345 U. S. 611-612. "Industrial activities cannot be confined to trim categories." United States v. E. I. du Pont De Nemours & Co., 351 U. S. 377, 351 U. S. 395. The claimed deficiencies in the record cannot sweep aside the existence of a large area of effective competition between the makers of cans and the makers of glass containers. We know enough to conclude that the rivalry between cans and glass containers is pervasive, and that the area of competitive overlap between these two product markets is broad enough to make the position of the individual companies within their own industries very relevant to the merger's impact within the broader competitive area that embraces both of the merging firms' respective industries.Glass and metal containers were recognized to be two separate lines of commerce. But, given the area of effective Page 378 U. S. 457 competition between these lines, there is necessarily implied one or more other lines of commerce embracing both industries. Since the purpose of delineating a line of commerce is to provide an adequate basis for measuring the effects of a given acquisition, its contours must, as nearly as possible, conform to competitive reality. Where the area of effective competition cuts across industry lines, so must the relevant line of commerce; otherwise, an adequate determination of the merger's true impact cannot be made.Based on the evidence thus far revealed by this record, we hold that the inter-industry competition between glass and metal containers is sufficient to warrant treating as a relevant product market the combined glass and metal container industries and all end uses for which they compete. There may be some end uses for which glass and metal do not and could not compete, but complete inter-industry competitive overlap need not be shown. We would not be true to the purpose of the Clayton Act's line of commerce concept as a framework within which to measure the effect of mergers on competition were we to hold that the existence of noncompetitive segments within a proposed market area precludes its being treated as a line of commerce.This line of commerce was not pressed upon the District Court. However, since it is coextensive with the two industries, which were held to be lines of commerce, and since it is composed largely, if not entirely, of the more particularized end-use lines urged in the District Court by the Government, we see nothing to preclude us from reaching the question of its prima facie existence at this stage of the case.Nor are we concerned by the suggestion that, if the product market is to be defined in these terms, it must include plastic, paper, foil and any other materials competing for the same business. That there may be a Page 378 U. S. 458 broader product market made up of metal, glass and other competing containers does not necessarily negative the existence of submarkets of cans, glass, plastic or cans and glass together, for, "within this broad market, well defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes." Brown Shoe Co., Inc. v. United States, 370 U.S. at 370 U. S. 325.IIIWe approach the ultimate judgment under § 7 having in mind the teachings of Brown Shoe, supplemented by their application and elaboration in United States v. Philadelphia National Bank, 374 U. S. 321; and United States v. El Paso Natural Gas Co., 376 U. S. 651. The issue is whether the merger between Continental and Hazel-Atlas will have probable anticompetitive effect within the relevant line of commerce. Market shares are the primary indicia of market power, but a judgment under § 7 is not to be made by any single qualitative or quantitative test. The merger must be viewed functionally in the context of the particular market involved, its structure, history, and probable future. Where a merger is of such a size as to be inherently suspect, elaborate proof of market structure, market behavior, and probable anticompetitive effects may be dispensed with in view of § 7's design to prevent undue concentration. Moreover, the competition with which § 7 deals includes not only existing competition, but that which is sufficiently probable and imminent. See United States v. El Paso Natural Gas Co., supra.Continental occupied a dominant position in the metal can industry. It shipped 33% of the metal cans shipped by the industry, and, together with American, shipped about 71% of the industry total. Continental's share amounted to 13 billion metal containers out of a total of 40 billion, and its $433 million gross sales of metal containers Page 378 U. S. 459 amounted to 31.4% of the industry's total gross of $1,380,000,000. Continental's total assets were $382 million, its net sales and operating revenues $666 million.In addition to demonstrating the dominant position of Continental in a highly concentrated industry, the District Court's findings clearly revealed Continental's vigorous efforts all across the competitive front between metal and glass containers. Continental obviously pushed metal containers wherever metal containers could be pushed. Its share of the beer can market ran from 43% in 1955 to 46% in 1957. Its share of both beer can and beer bottle shipments, disregarding the returnable bottle factor, ran from 36% in 1955 to 38% in 1957. Although metal cans have so far occupied a relatively small percentage of the soft drink container field, Continental's share of this can market ranged from 36% in 1955 to 26% in 1957, and its portion of the total shipments of glass and metal soft drink and beverage containers, disregarding the returnable bottle factor, was 7.2% in 1955, approximately 5.4% in 1956, and approximately 6.2% in 1957 (for 1956 and 1957, these figures include Hazel-Atlas' share). In the category covering all nonfood products, Continental's share was approximately 30% of the total shipments of metal containers for such uses.Continental's major position in the relevant product market -- the combined metal and glass container industries -- prior to the merger is undeniable. Of the 59 billion containers shipped in 1955 by the metal (39 3/4 billion) and glass (19 1/3 billion) industries, Continental shipped 21.9%, to a great extent dispersed among all of the end uses for which glass and metal compete. [Footnote 10] Of the six largest firms in the product market, it ranked second. Page 378 U. S. 460When Continental acquired Hazel-Atlas, it added significantly to its position in the relevant line of commerce. Hazel-Atlas was the third largest glass container manufacturer in an industry in which the three top companies controlled 55.4% of the total shipments of glass containers. Hazel-Atlas' share was 9.6%, which amounted to 1,857,000,000 glass containers out of a total of 19 1/3 billion industrial total. Its annual sales amounted to $79 million, its assets exceeded $37 million, and it had 13 plants variously located in the United States. In terms of total containers shipped, Hazel-Atlas ranked sixth in the relevant line of commerce, its almost 2 billion containers being 3.1% of the product market total. Page 378 U. S. 461The evidence so far presented leads us to conclude that the merger between Continental and Hazel-Atlas is in violation of § 7. The product market embracing the combined metal and glass container industries was dominated by six firms having a total of 70.1% of the business. [Footnote 11] Continental, with 21.9% of the shipments, ranked second within this product market, and Hazel-Atlas, with 3.1%, ranked sixth. Thus, of this vast market -- amounting at the time of the merger to almost $3 billion in annual sales -- a large percentage already belonged to Continental before the merger. By the acquisition of Hazel-Atlas stock, Continental not only increased its own share more than 14%, from 21.9% to 25%, but also reduced from five to four the most significant competitors who might have threatened its dominant position. The resulting percentage of the combined firms approaches that held presumptively bad in United States v. Philadelphia National Bank, 374 U. S. 321, and is almost the same as that involved in United States v. Aluminum Co. of America, 377 U. S. 271. The incremental addition to the acquiring firm's share is considerably larger than in Aluminum Co. The case falls squarely within the principle that, where there has been a "history of tendency toward concentration in the industry," tendencies toward further concentration "are to be curbed in their incipiency." Brown Shoe Co. v. United States, 370 U.S. at 370 U. S. 345-346. Where"concentration is already great, the importance of preventing Page 378 U. S. 462 even slight increases in concentration, and so preserving the possibility of eventual deconcentration is correspondingly great."United States v. Philadelphia National Bank, 374 U. S. 321, 374 U. S. 365; United States v. Aluminum Co. of America, supra.Continental insists, however, that whatever the nature of inter-industry competition in general, the types of containers produced by Continental and Hazel-Atlas at the time of the merger were, for the most part, not in competition with each other, and hence the merger could have no effect on competition. This argument ignores several important matters.First: the District Court found that both Continental and Hazel-Atlas were engaged in inter-industry competition characteristic of the glass and metal can industries. While the position of Hazel-Atlas in the beer and soft drink industries was negligible in 1955, its position was quite different in other fields. Hazel-Atlas made both wide-mouthed glass jars and narrow-necked containers, but more of the former than the latter. Both are used in packing food, medicine and health supplies, household and industrial products and toiletries and cosmetics, among others, and Hazel-Atlas' position in supplying the packaging needs of these industries was indeed important. In 1955, it shipped about 8% of the narrow-necked bottles and about 14% of the widemouthed glass containers for food; about 10% of the narrow-necked and 40% of the wide-mouthed glass containers for the household and chemical industry; about 9% of the narrow-necked and 28% of the wide-mouthed glass containers for the toiletries and cosmetics industry; and about 6% of the narrow-necked and 25% of the wide-mouthed glass containers for the medicine and health industry. Continental, as we have said, in 1955 shipped 30% of the containers used for these same nonfood purposes. In these industries, the District Court found that the glass container and metal Page 378 U. S. 463 container manufacturers were each seeking to promote their lines of containers at the expense of the other lines, and that all were attempting to improve their products or to develop new ones so as to have a wider customer appeal. We think it quite clear that Continental and Hazel-Atlas were set off directly against one another in this process, and that the merger therefore carries with it the probability of foreclosing actual and potential competition between these two concerns. Hazel-Atlas has been removed as an independent factor in the glass industry and in the line of commerce which includes both metal cans and glass containers.We think the District Court erred in placing heavy reliance on Continental's management of its Hazel-Atlas division after the merger, while Continental was under some pressure because of the pending government antitrust suit. Continental acquired by the merger the power to guide the development of Hazel-Atlas consistently with Continental's interest in metal containers; contrariwise, it may find itself unwilling to push metal containers to the exclusion of glass for those end uses where Hazel-Atlas is strong. It has at the same time acquired the ability, know-how and the capacity to satisfy its customers' demands whether they want metal or glass containers. Continental need no longer lose customers to glass companies solely because consumer preference, perhaps triggered by competitive efforts by the glass container industry, forces the packer to turn from cans to glass. And no longer does a Hazel-Atlas customer who has normally packed in glass have to look elsewhere for metal containers if he discovers that the can, rather than the jar, will answer some of his pressing problems.Second: Continental would view these developments as representing an acceptable effort by it to diversify its product lines and to gain the resulting competitive advantages, thereby strengthening competition which it Page 378 U. S. 464 declared the antitrust laws are designed to promote. But we think the answer is otherwise when a dominant firm in a line of commerce in which market power is already concentrated among a few firms makes an acquisition which enhances its market power and the vigor and effectiveness of its own competitive efforts.Third: a merger between the second and sixth largest competitors in a gigantic line of commerce is significant not only for its intrinsic effect on competition, but also for its tendency to endanger a much broader anticompetitive effect by triggering other mergers by companies seeking the same competitive advantages sought by Continental in this case. As the Court said in Brown Shoe,"[i]f a merger achieving 5% control were now approved, we might be required to approve future merger efforts by Brown's competitors seeking similar market shares."370 U.S. at 370 U. S. 343-344.Fourth: it is not at all self-evident that the lack of current competition between Continental and Hazel-Atlas for some important end uses of metal and glass containers significantly diminished the adverse effect of the merger on competition. Continental might have concluded that it could effectively insulate itself from competition by acquiring a major firm not presently directing its market acquisition efforts toward the same end uses as Continental, but possessing the potential to do so. Two examples will illustrate . Both soft drinks and baby food are currently packed predominantly in glass, but Continental has engaged in vigorous and imaginative promotional activities attempting to overcome consumer preferences for glass and secure a larger share of these two markets for its tin cans. Hazel-Atlas was not, at the time of the merger, a significant producer of either of these containers, but, with comparatively little difficulty, if it were an independent firm making independent business judgments, Page 378 U. S. 465 it could have developed its soft drink and baby food capacity. The acquisition of Hazel-Atlas by a company engaged in such intense efforts to effect a diversion of business from glass to metal in both of these lines cannot help but diminish the likelihood of Hazel-Atlas' realizing its potential as a significant competitor in either line. Our view of the record compels us to disagree with the District Court's conclusion that Continental, as a result of the merger, was not "likely to cease being an innovator in either [the glass or metal container] line." 217 F. Supp. at 790. It would make little sense for one entity within the Continental empire to be busily engaged in persuading the public of metal's superiority over glass for a given and use, while the other is making plans to increase the Nation's total glass container output for that same end use. Thus, the fact that Continental and Hazel-Atlas were not substantial competitors of each other for certain end uses at the time of the merger may actually enhance the long-run tendency of the merger to lessen competition.We think our holding is consonant with the purpose of § 7 to arrest anticompetitive arrangements in their incipiency. Some product lines are offered in both metal and glass containers by the same packer. In such areas, the interchangeability of use and immediate inter-industry sensitivity to price changes would approach that which exists between products of the same industry. In other lines, as where one packer's products move in one type container while his competitor's move in another, there are inherent deterrents to customer diversion of the same type that might occur between brands of cans or bottles. But the possibility of such transfers over the long run acts as a deterrent against attempts by the dominant members of either industry to reap the possible benefits of their position by raising prices above the competitive Page 378 U. S. 466 level or engaging in other comparable practices. And even though certain lines are today regarded as safely within the domain of one or the other of these industries, this pattern may be altered, as it has been in the past. From the point of view not only of the static competitive situation, but also the dynamic long-run potential, we think that the Government has discharged its burden of proving prima facie anticompetitive effect. Accordingly the judgment is reversed and the case remanded for further proceedings consistent with this opinion.Reversed

U.S. Supreme CourtUnited States v. Continental Can Co., 378 U.S. 441 (1964)United States v. Continental Can Co.No. 367Argued April 28, 1964Decided June 22, 1964378 U.S. 441SyllabusThe Government seeks an order requiring the divestiture, as a violation of § 7 of the Clayton Act, by Continental Can Company (CCC), the second largest producer of metal containers, of the assets acquired in 1956 of Hazel-Atlas Glass Company (HAG), the third largest producer of glass containers. CCC, which had a history of acquiring other companies, produced no glass containers in 1955, but shipped 33% of all metal containers sold in this country. HAG, which produced no metal containers, shipped 9.6% of the glass containers that year. The geographic market was held by the District Court to be the entire country. The Government had urged ten product markets, including the can industry, the glass container industry, and various lines of commerce defined by the end use of the containers. The District Court found three product markets, metal containers, glass containers, and metal and glass beer containers. Although finding inter-industry competition between metal, glass and plastic containers, the District Court held them to be separate lines of commerce. Holding that the Government had failed to prove reasonable probability of lessening competition in any line of commerce, the District Court dismissed the complaint at the end of the Government's case.Held:1. Inter-industry competition between glass and metal containers may provide the basis for defining a relevant product market. Pp. 378 U. S. 447-458.(a) The competition protected by § 7 is not limited to that between identical products. P. 378 U. S. 452.(b) Cross-elasticity of demand and interchangeability of use are used to recognize competition where it exists, not to obscure it. Brown Shoe Co. v. United States, 370 U.S. at 370 U. S. 326. P. 378 U. S. 453.(c) There has been insistent, continuous, effective and substantial end-use competition between metal and glass containers; and though interchangeability of use may not be so complete and cross-elasticity of demand not so immediate as in the case of some intra-industry mergers, the long-run results bring the competition between them within § 7. Pp. 378 U. S. 453-455. Page 378 U. S. 442(d) There is a large area of effective competition between metal and glass containers, which implies one or more other lines of commerce encompassing both industries. Pp. 378 U. S. 456-457.(e) If an area of effective competition cuts across industry lines, the relevant line of commerce must do likewise. P. 378 U. S. 457.(f) Based on the present record, the inter-industry competition between glass and metal containers warrants treating the combined glass and metal container industries and all end uses for which they compete as a relevant product market. P. 378 U. S. 457.(g) Complete inter-industry competitive overlap is not required before § 7 is applicable, and some noncompetitive segments in a proposed market area do not prevent its identification as a line of commerce. P. 378 U. S. 457.(h) That there may be a broader product market, including other competing containers, does not prevent the existence of a submarket of cans and glass containers. Pp. 378 U. S. 457-458.2. On the basis of the evidence so far presented, the merger between CCC and HAG violates § 7 because it will have a probable anticompetitive effect within the relevant line of commerce. Pp. 378 U. S. 458-466.(a) In determining whether a merger will have probable anticompetitive effect, it must be looked at functionally in the context of the market involved, its structure, history, and future. P. 378 U. S. 458.(b) Where a merger is of such magnitude as to be inherently suspect, detailed market analysis and proof of likely lessening of competition are not required in view of § 7's purpose of preventing undue concentration. P. 378 U. S. 458.(c) The product market of the combined metal and glass container industries was dominated by six companies, of which CCC ranked second and HAG sixth. P. 378 U. S. 461.(d) The 25% of the product market held by the merged firms approaches the percentage found presumptively bad in United States v. Philadelphia National Bank, 374 U. S. 321, and nearly the same as that involved in United States v. Aluminum Co. of America, 377 U. S. 271, and the addition to CCC's share is larger here than in Aluminum Co. P. 378 U. S. 461.(e) Where there has been a trend toward concentration in an industry, any further concentration should be stopped. P. 378 U. S. 461.(f) Where an industry is already highly concentrated, it is important to prevent even slight increases therein. Pp. 378 U. S. 461-462. Page 378 U. S. 443(g) The argument that CCC's and HAG's products were not in direct competition at the time of the merger, and that therefore the merger could have no effect on competition, ignores the fact that the removal of HAG as an independent factor in the glass container industry and in the combined metal and glass container market foreclosed its potential competition with CCC, neglects the further fact that CCC, already a dominant firm in an oligopolistic market, has increased its power and effectiveness, and fails to consider the triggering effect that a merger of such large companies has on the rest of the industry, which seeks to follow the pattern, with anticompetitive results. Pp. 378 U. S. 462-465.217 F. Supp. 761, reversed and remanded.

1983_82-1630

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in No. 82-1630 to decide whether a prison inmate has a reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches and seizures. We also granted certiorari in No. 82-6695, the cross-petition, to determine whether our decision in Parratt v. Taylor, 451 U. S. 527 (1981), which held that a negligent deprivation of property by state officials does not violate the Fourteenth Amendment if an adequate postdeprivation state remedy exists, should extend to intentional deprivations of property.IThe facts underlying this dispute are relatively simple. Respondent Palmer is an inmate at the Bland Correctional Center in Bland, Va., serving sentences for forgery, uttering, grand larceny, and bank robbery convictions. On September 16, 1981, petitioner Hudson, an officer at the Correctional Center, with a fellow officer, conducted a "shakedown" search of respondent's prison locker and cell for contraband. During the "shakedown," the officers discovered a ripped pillowcase in a trash can near respondent's cell bunk. Charges Page 468 U. S. 520 against Palmer were instituted under the prison disciplinary procedures for destroying state property. After a hearing, Palmer was found guilty on the charge and was ordered to reimburse the State for the cost of the material destroyed; in addition, a reprimand was entered on his prison record.Palmer subsequently brought this pro se action in United States District Court under 42 U.S.C. § 1983. Respondent claimed that Hudson had conducted the shakedown search of his cell and had brought a false charge against him solely to harass him, and that, in violation of his Fourteenth Amendment right not to be deprived of property without due process of law, Hudson had intentionally destroyed certain of his noncontraband personal property during the September 16 search. Hudson denied each allegation; he moved for and was granted summary judgment. The District Court accepted respondent's allegations as true, but held nonetheless, relying on Parratt v. Taylor, supra, that the alleged destruction of respondent's property, even if intentional, did not violate the Fourteenth Amendment, because there were state tort remedies available to redress the deprivation, App. 31 [Footnote 1] and that the alleged harassment did not "rise to the level of a constitutional deprivation," id. at 32.The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. 697 F.2d 1220 (CA4 1983). The court affirmed the District Court's holding that respondent was not deprived of his property without due process. The court acknowledged that we considered only a claim of negligent property deprivation in Parratt v. Taylor, supra. It agreed with the District Court, however, that the logic of Parratt applies equally to unauthorized intentional deprivations of property by state officials:"[O]nce it is assumed Page 468 U. S. 521 that a postdeprivation remedy can cure an unintentional but negligent act causing injury, inflicted by a state agent which is unamenable to prior review, then that principle applies as well to random and unauthorized intentional acts."697 F.2d at 1223. [Footnote 2] The Court of Appeals did not discuss the availability and adequacy of existing state law remedies; it presumably accepted as correct the District Court's statement of the remedies available under Virginia law. [Footnote 3]The Court of Appeals reversed the summary judgment on respondent's claim that the shakedown search was unreasonable. The court recognized that Bell v. Wolfish, 441 U. S. 520, 441 U. S. 555-557 (1979), authorized irregular unannounced shakedown searches of prison cells. But the court held that an individual prisoner has a "limited privacy right" in his cell, entitling him to protection against searches conducted solely to harass or to humiliate. 697 F.2d at 1225. [Footnote 4] The shakedown of a single prisoner's property, said the court, is permissible Page 468 U. S. 522 only if"done pursuant to an established program of conducting random searches of single cells or groups of cells reasonably designed to deter or discover the possession of contraband"or upon reasonable belief that the particular prisoner possessed contraband. Id. at 1224. Because the Court of Appeals concluded that the record reflected a factual dispute over whether the search of respondent's cell was routine or conducted to harass respondent, it held that summary judgment was inappropriate, and that a remand was necessary to determine the purpose of the cell search.We granted certiorari. 463 U.S. 1206 (1983). We affirm in part and reverse in part.IIAThe first question we address is whether respondent has a right of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches. [Footnote 5] As we have noted, the Court of Appeals held that the District Court's summary judgment in petitioner's favor was premature because respondent had a "limited privacy right" in his cell that might have been breached. The court concluded that, to protect this privacy right, shakedown searches of an individual's cell should be performed only"pursuant to an established program of conducting random Page 468 U. S. 523 searches . . . reasonably designed to deter or discover the possession of contraband"or upon reasonable belief that the prisoner possesses contraband. Petitioner contends that the Court of Appeals erred in holding that respondent had even a limited privacy right in his cell, and urges that we adopt the "bright line" rule that prisoners have no legitimate expectation of privacy in their individual cells that would entitle them to Fourth Amendment protection.We have repeatedly held that prisons are not beyond the reach of the Constitution. No "iron curtain" separates one from the other. Wolff v. McDonnell, 418 U. S. 539, 418 U. S. 555 (1974). Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration. For example, we have held that invidious racial discrimination is as intolerable within a prison as outside, except as may be essential to "prison security and discipline." Lee v. Washington, 390 U. S. 333 (1968) (per curiam). Like others, prisoners have the constitutional right to petition the Government for redress of their grievances, which includes a reasonable right of access to the courts. Johnson v. Avery, 393 U. S. 483 (1969).Prisoners must be provided "reasonable opportunities" to exercise their religious freedom guaranteed under the First Amendment. Cruz v. Beto, 405 U. S. 319 (1972) (per curiam). Similarly, they retain those First Amendment rights of speech "not inconsistent with [their] status as . . . prisoner[s] or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U. S. 817, 417 U. S. 822 (1974). They enjoy the protection of due process. Wolff v. McDonnell, supra; Haines v. Kerner, 404 U. S. 519 (1972). And the Eighth Amendment ensures that they will not be subject to "cruel and unusual punishments." Estelle v. Gamble, 429 U. S. 97 (1976). The continuing guarantee of these substantial rights to prison inmates is testimony to a belief that the way a society treats those who have transgressed Page 468 U. S. 524 against it is evidence of the essential character of that society.However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. See Bell v. Wolfish, 441 U.S. at 441 U. S. 545. These constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by the considerations underlying our penal system." Price v. Johnston, 334 U. S. 266, 334 U. S. 285 (1948); see also Bell v. Wolfish, supra, at 441 U. S. 545-546, and cases cited; Wolff v. McDonnell, supra, at 418 U. S. 555. The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities, Wolff v. McDonnell, supra, at 418 U. S. 555, chief among which is internal security, see Pell v. Procunier, supra, at 417 U. S. 823. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.We have not before been called upon to decide the specific question whether the Fourth Amendment applies within a prison cell, [Footnote 6] but the nature of our inquiry is well defined. Page 468 U. S. 525 We must determine here, as in other Fourth Amendment contexts, if a "justifiable" expectation of privacy is at stake. Katz v. United States, 389 U. S. 347 (1967). The applicability of the Fourth Amendment turns on whether"the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been invaded by government action."Smith v. Maryland, 442 U. S. 735, 442 U. S. 740 (1979), and cases cited. We must decide, in Justice Harlan's words, whether a prisoner's expectation of privacy in his prison cell is the kind of expectation that "society is prepared to recognize as reasonable.'" Katz, supra, at 389 U. S. 360, 389 U. S. 361 (concurring opinion). [Footnote 7]Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we Page 468 U. S. 526 hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct. Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others. Even a partial survey of the statistics on violent crime in our Nation's prisons illustrates the magnitude of the problem. During 1981 and the first half of 1982, there were over 120 prisoners murdered by fellow inmates in state and federal prisons. A number of prison personnel were murdered by prisoners during this period. Over 29 riots or similar disturbances were reported in these facilities for the same timeframe. And there were over 125 suicides in these institutions. See Prison Violence, 7 Corrections Compendium (Mar.1983). Additionally, informal statistics from the United States Bureau of Prisons show that, in the federal system during 1983, there were 11 inmate homicides, 359 inmate assaults on other inmates, 227 inmate assaults on prison staff, and 10 suicides. There were in the same system in 1981 and 1982 over 750 inmate assaults on other inmates and over 570 inmate assaults on prison personnel.Within this volatile "community," prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors. They are under an obligation to take reasonable Page 468 U. S. 527 measures to guarantee the safety of the inmates themselves. They must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today; they must prevent, so far as possible, the flow of illicit weapons into the prison; they must be vigilant to detect escape plots, in which drugs or weapons may be involved, before the schemes materialize. In addition to these monumental tasks, it is incumbent upon these officials at the same time to maintain as sanitary an environment for the inmates as feasible, given the difficulties of the circumstances.The administration of a prison, we have said, is "at best an extraordinarily difficult undertaking." Wolff v. McDonnell, 418 U.S. at 418 U. S. 566; Hewitt v. Helms, 459 U. S. 460, 459 U. S. 467 (1983). But it would be literally impossible to accomplish the prison objectives identified above if inmates retained a right of privacy in their cells. Virtually the only place inmates can conceal weapons, drugs, and other contraband is in their cells. Unfettered access to these cells by prison officials, thus, is imperative if drugs and contraband are to be ferreted out and sanitary surroundings are to be maintained.Determining whether an expectation of privacy is "legitimate" or "reasonable" necessarily entails a balancing of interests. The two interests here are the interest of society in the security of its penal institutions and the interest of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: a prison "shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room." Lanza v. New York, 370 U. S. 139, 370 U. S. 143-144 (1962). We strike the balance in favor of institutional security, which we have noted is "central to all other corrections goals," Pell v. Procunier, 417 U.S. at 417 U. S. 823. A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells Page 468 U. S. 528 required to ensure institutional security and internal order. [Footnote 8] We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement." Bell v. Wolfish, 441 U.S. at 441 U. S. 537. The Court of Appeals was troubled by the possibility of searches conducted solely to harass inmates; it reasoned that a requirement that searches be conducted only pursuant to an established policy or upon reasonable suspicion would prevent such searches to the maximum extent possible. Of course, there is a risk of maliciously motivated searches, and of course, intentional harassment of even the most hardened criminals cannot be tolerated by a civilized society. However, we disagree with the court's proposed solution. The uncertainty that attends random searches of cells renders these searches perhaps the most effective weapon of the prison administrator in the constant fight against the proliferation of knives and guns, illicit drugs, and other contraband. The Court of Appeals candidly acknowledged that "the device [of random cell searches] is of . . . obvious utility in achieving the goal of prison security." 697 F.2d at 1224. Page 468 U. S. 529A requirement that even random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this weapon. It is simply naive to believe that prisoners would not eventually decipher any plan officials might devise for "planned random searches," and thus be able routinely to anticipate searches. The Supreme Court of Virginia identified the shortcomings of an approach such as that adopted by the Court of Appeals and the necessity of allowing prison administrators flexibility:"For one to advocate that prison searches must be conducted only pursuant to an enunciated general policy or when suspicion is directed at a particular inmate is to ignore the realities of prison operation. Random searches of inmates, individually or collectively, and their cells and lockers are valid and necessary to ensure the security of the institution and the safety of inmates and all others within its boundaries. This type of search allows prison officers flexibility and prevents inmates from anticipating, and thereby thwarting, a search for contraband."Marrero v. Commonwealth, 222 Va. 754, 757, 284 S.E.2d 809, 811 (1981). We share the concerns so well expressed by the Supreme Court and its view that wholly random searches are essential to the effective security of penal institutions. We, therefore, cannot accept even the concededly limited holding of the Court of Appeals.Respondent acknowledges that routine shakedowns of prison cells are essential to the effective administration of prisons. Brief for Respondent and Cross-Petitioner 7, n. 5. He contends, however, that he is constitutionally entitled not to be subjected to searches conducted only to harass. The crux of his claim is that,"because searches and seizures to harass are unreasonable, a prisoner has a reasonable expectation of privacy not to have his cell, locker, personal effects, person invaded for such a purpose."Id. at 24. This argument, Page 468 U. S. 530 which assumes the answer to the predicate question whether a prisoner has a legitimate expectation of privacy in his prison cell at all, is merely a challenge to the reasonableness of the particular search of respondent's cell. Because we conclude that prisoners have no legitimate expectation of privacy, and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells, we need not address this issue.Our holding that respondent does not have a reasonable expectation of privacy enabling him to invoke the protections of the Fourth Amendment does not mean that he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates' property rights with impunity. The Eighth Amendment always stands as a protection against "cruel and unusual punishments." By the same token, there are adequate state tort and common law remedies available to respondent to redress the alleged destruction of his personal property. See discussion infra at 468 U. S. 534-536. [Footnote 9]BIn his complaint in the District Court, in addition to his claim that the shakedown search of his cell violated his Fourth and Fourteenth Amendment privacy rights, respondent alleged under 42 U.S.C. § 1983 that petitioner intentionally destroyed certain of his personal property during the search. This destruction, respondent contended, deprived him of property without due process, in violation of the Due Process Clause of the Fourteenth Amendment. The District Court dismissed this portion of respondent's complaint for failure to state a claim. Reasoning under Parratt v. Taylor, Page 468 U. S. 531 451 U. S. 527 (1981), it held that even an intentional destruction of property by a state employee does not violate due process if the state provides a meaningful postdeprivation remedy. The Court of Appeals affirmed. The question presented for our review in Palmer's cross-petition is whether our decision in Parratt v. Taylor should extend, as the Court of Appeals held, to intentional deprivations of property by state employees acting under color of state law. [Footnote 10]In Parratt v. Taylor, a state prisoner sued prison officials under 42 U.S.C. § 1983, alleging that their negligent loss of a hobby kit he ordered from a mail-order catalog deprived him of property without due process of law, in violation of the Fourteenth Amendment. The Court of Appeals for the Eighth Circuit had affirmed the District Court's summary judgment in the prisoner's favor. We reversed, holding that the Due Process Clause of the Fourteenth Amendment is not violated when a state employee negligently deprives an individual of property, provided that the state makes available a meaningful postdeprivation remedy. [Footnote 11]We viewed our decision in Parratt as consistent with prior cases recognizing that"either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some Page 468 U. S. 532 meaningful means by which to assess the propriety of the State's action at some time after the initial taking . . . satisf[ies] the requirements of procedural due process."451 U.S. at 451 U. S. 539 (footnote omitted). We reasoned that, where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predict when the loss will occur. Id. at 451 U. S. 541. Under these circumstances, we observed:"It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under 'color of law,' is in almost all cases beyond the control of the State. Indeed, in most cases, it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation."Ibid. [Footnote 12] Two Terms ago, we reaffirmed our holding in Parratt in Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982), in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action. [Footnote 13] Page 468 U. S. 533While Parratt is necessarily limited by its facts to negligent deprivations of property, it is evident, as the Court of Appeals recognized, that its reasoning applies as well to intentional deprivations of property. The underlying rationale of Parratt is that, when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply "impracticable," since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the "practicability" of affording predeprivation process is concerned. The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate, because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signaling his intent.If negligent deprivations of property do not violate the Due Process Clause because predeprivation process is impracticable, it follows that intentional deprivations do not violate that Clause, provided, of course, that adequate state postdeprivation remedies are available. Accordingly, we hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent, deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy. [Footnote 14] Page 468 U. S. 534Respondent presses two arguments that require at least brief comment. First, he contends that, because an agent of the state who intends to deprive a person of his property "can provide predeprivation process, then as a matter of due process, he must do so." Brief for Respondent and Cross-Petitioner 8 (emphasis in original). This argument reflects a fundamental misunderstanding of Parratt. There we held that postdeprivation procedures satisfy due process because the state cannot possibly know in advance of a negligent deprivation of property. Whether an individual employee himself is able to foresee a deprivation is simply of no consequence. The controlling inquiry is solely whether the state is in a position to provide for predeprivation process.Respondent also contends, citing to Logan v. Zimmerman Brush Co., supra, that the deliberate destruction of his property by petitioner constituted a due process violation despite the availability of postdeprivation remedies. Brief for Respondent and Cross-Petitioner 8. In Logan, we decided a question about which our decision in Parratt left little doubt, that is, whether a postdeprivation state remedy satisfies due process where the property deprivation is effected pursuant to an established state procedure. We held that it does not. Logan plainly has no relevance here. Respondent does not even allege that the asserted destruction of his property occurred pursuant to a state procedure.Having determined that Parratt extends to intentional deprivations of property, we need only decide whether the Commonwealth of Virginia provides respondent an adequate postdeprivation remedy for the alleged destruction of his property. Both the District Court and, at least implicitly, the Court of Appeals held that several common law remedies Page 468 U. S. 535 available to respondent would provide adequate compensation for his property loss. We have no reason to question that determination, particularly given the speculative nature of respondent's arguments.Palmer does not seriously dispute the adequacy of the existing state law remedies themselves. He asserts in this respect only that, because certain of his legal papers allegedly taken "may have contained things irreplacable [sic], and incompensable" or "may also have involved sentimental items which are of equally intangible value," Brief for Respondent and Cross-Petitioner 10-11, n. 10, a suit in tort, for example, would not "necessarily" compensate him fully. If the loss is "incompensable," this is as much so under § 1983 as it would be under any other remedy. In any event, that Palmer might not be able to recover under these remedies the full amount which he might receive in a § 1983 action is not, as we have said, determinative of the adequacy of the state remedies. See Parratt, 451 U.S. at 451 U. S. 544.Palmer contends also that relief under applicable state law "is far from certain and complete," because a state court might hold that petitioner, as a state employee, is entitled to sovereign immunity. Brief for Respondent and Cross-Petitioner 11. This suggestion is unconvincing. The District Court and the Court of Appeals held that respondent's claim would not be barred by sovereign immunity. As the District Court noted, under Virginia law, "a State employee may be held liable for his intentional torts," Elder v. Holland, 208 Va. 15, 19, 155 S.E.2d 369, 372-373 (1967); see also Short v. Griffitts, 220 Va. 53, 255 S.E.2d 479 (1979). Indeed, respondent candidly acknowledges that it is "probable that a Virginia trial court would rule that there should be no immunity bar in the present case." Brief for Respondent and Cross-Petitioner 14.Respondent attempts to cast doubt on the obvious breadth of Elder through the naked assertion that"the phrase 'may Page 468 U. S. 536 be held liable' could have meant . . . only the possibility of liability under certain circumstances, rather than a blanket rule. . . ."Brief for Respondent and Cross-Petitioner 13. We are equally unpersuaded by this speculation. The language of Elder is unambiguous that employees of the Commonwealth do not enjoy sovereign immunity for their intentional torts, and Elder has been so read by a number of federal courts, as respondent concedes, see Brief for Respondent and Cross-Petitioner 13, n. 13. See, e.g., Holmes v. Wampler, 546 F. Supp. 500, 504 (ED Va.1982); Irshad v. Spann, 543 F. Supp. 922, 928 (ED Va.1982); Frazier v. Collins, 544 F. Supp. 109, 110 (ED Va.1982); Whorley v. Karr, 534 F. Supp. 88, 89 (WD Va.1981); Daughtry v. Arlington County, Va., 490 F. Supp. 307 (DC 1980). [Footnote 15] In sum, it is evident here, as in Parratt, that the State has provided an adequate postdeprivation remedy for the alleged destruction of property.IIIWe hold that the Fourth Amendment has no applicability to a prison cell. We hold also that, even if petitioner intentionally destroyed respondent's personal property during the challenged shakedown search, the destruction did not violate the Fourteenth Amendment, since the Commonwealth of Virginia has provided respondent an adequate postdeprivation remedy.Accordingly, the judgment of the Court of Appeals reversing and remanding the District Court's judgment on respondent's Page 468 U. S. 537 claim under the Fourth and Fourteenth Amendments is reversed. The judgment affirming the District Court's decision that respondent has not been denied due process under the Fourteenth Amendment is affirmed.It is so ordered

U.S. Supreme CourtHudson v. Palmer, 468 U.S. 517 (1984)Hudson v. PalmerNo. 82-1630Argued December 7, 1983Decided July 3, 1984*468 U.S. 517SyllabusRespondent, an inmate at a Virginia penal institution, filed an action in Federal District Court under 42 U.S.C. § 1983 against petitioner, an officer at the institution, alleging that petitioner had conducted an unreasonable "shakedown" search of respondent's prison locker and cell and had brought a false charge, under prison disciplinary procedures, of destroying state property against respondent solely to harass him; and that, in violation of respondent's Fourteenth Amendment right not to be deprived of property without due process of law, petitioner had intentionally destroyed certain of respondent's noncontraband personal property during the search. The District Court granted summary judgment for petitioner, and the Court of Appeals affirmed with regard to the District Court's holding that respondent was not deprived of his property without due process. The Court of Appeals concluded that the decision in Parratt v. Taylor, 451 U. S. 527 -- holding that a negligent deprivation of a prison inmate's property by state officials does not violate the Due Process Clause of the Fourteenth Amendment if an adequate postdeprivation state remedy exists -- should extend also to intentional deprivations of property. However, the Court of Appeals reversed and remanded with regard to respondent's claim that the "shakedown" search was unreasonable. The court held that a prisoner has a "limited privacy right" in his cell entitling him to protection against searches conducted solely to harass or to humiliate, and that a remand was necessary to determine the purpose of the search here.Held:1. A prisoner has no reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches. While prisoners enjoy many protections of the Constitution that are not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration, imprisonment carries with it the circumscription or loss of many rights as being necessary to accommodate the institutional needs and objectives of prison facilities, particularly internal security and safety. It would be impossible Page 468 U. S. 518 to accomplish the prison objectives of preventing the introduction of weapons, drugs, and other contraband into the premises if inmates retained a right of privacy in their cells. The unpredictability that attends random searches of cells renders such searches perhaps the most effective weapon of the prison administrator in the fight against the proliferation of weapons, drugs, and other contraband. A requirement that random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this weapon. Pp. 468 U. S. 522-530.2. There is no merit to respondent's contention that the destruction of his personal property constituted an unreasonable seizure of that property violative of the Fourth Amendment. Assuming that the Fourth Amendment protects against the destruction of property, in addition to its mere seizure, the same reasons that lead to the conclusion that the Amendment's proscription against unreasonable searches is inapplicable in a prison cell apply with controlling force to seizures. Prison officials must be free to seize from cells any articles which, in their view, disserve legitimate institutional interests. P. 468 U. S. 528, n. 8.3. Even if petitioner intentionally destroyed respondent's personal property during the challenged "shakedown" search, the destruction did not violate the Due Process Clause of the Fourteenth Amendment, since respondent had adequate postdeprivation remedies under Virginia law for any loss suffered. The decision in Parratt v. Taylor, supra, as to negligent deprivation by a state employee of a prisoner's property -- as well as its rationale that, when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are "impracticable," since the state cannot know when such deprivations will occur -- also applies to intentional deprivations of property. Both the District Court and, at least implicitly, the Court of Appeals held that several common law remedies were available to respondent under Virginia law, and would provide adequate compensation for his property loss, and there is no reason to question that determination. The fact that respondent might not be able to recover under state law remedies the full amount which he might receive in a § 1983 action is not determinative of the adequacy of the state remedies. As to respondent's contention that relief under state law was uncertain because a state employee might be entitled to sovereign immunity, the courts below held that respondent's claim would not be barred by sovereign immunity, since, under Virginia law, a state employee may be held liable for his intentional torts. Pp. 468 U. S. 530-536.697 F.2d 1220, affirmed in part and reversed in part.BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and in Part II-B of Page 468 U. S. 519 which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., also joined. O'CONNOR, J., filed a concurring opinion, post, p. 468 U. S. 537. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 468 U. S. 541.

2002_02-679

Mark J. Ricciardi argued the cause for petitioner. With him on the briefs were Roger K. Quillen, Paul A. Ades, and Corbett N. Gordon.Irving L. Gornstein argued the cause for the United States as amicus curiae. On the brief were Solicitor General Olson, Assistant Attorneys General McCallum and Boyd, Deputy Solicitor General Clement, Dennis J. Dimsey, and Teresa Kwong.Robert N. Peccole argued the cause for respondent. With him on the brief was Eric Schnapper. *JUSTICE THOMAS delivered the opinion of the Court.The question before us in this case is whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (1991 Act). We hold that direct evidence is not required.I ASince 1964, Title VII has made it an "unlawful employment practice for an employer ... to discriminate against any indi-* Ann Elizabeth Reesman, Katherine Y. K. Cheung, Stephen A. Bokat, and Ellen D. Bryant filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence Gold; for the Association of Trial Lawyers of America by Jeffrey L. Needle; for the Lawyers' Committee for Civil Rights Under Law et al. by Michael C. Subit, Barbara R. Arnwine, Thomas J. Henderson, Michael L. Foreman, Kristin M. Dadey, Thomas W Osborne, Laurie A. McCann, Daniel B. Kohrman, Melvin Radowitz, Lenora M. Lapidus, Vincent A. Eng, Judith L. Lichtman, Jocelyn C. Frye, and Dennis C. Hayes; and for Ann B. Hopkins by DouglasRonald B. Schwartz and Jenifer Bosco filed a brief for the National Employment Lawyers Association as amicus curiae.93vidual ... , because of such individual's race, color, religion, sex, or national origin." 78 Stat. 255, 42 U. S. C. § 2000e2(a)(1) (emphasis added). In Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), the Court considered whether an employment decision is made "because of" sex in a "mixedmotive" case, i. e., where both legitimate and illegitimate reasons motivated the decision. The Court concluded that, under § 2000e-2(a)(1), an employer could "avoid a finding of liability ... by proving that it would have made the same decision even if it had not allowed gender to play such a role." Id., at 244; see id., at 261, n. (White, J., concurring in judgment); id., at 261 (O'CONNOR, J., concurring in judgment). The Court was divided, however, over the predicate question of when the burden of proof may be shifted to an employer to prove the affirmative defense.Justice Brennan, writing for a plurality of four Justices, would have held that "when a plaintiff ... proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account." Id., at 258 (emphasis added). The plurality did not, however, "suggest a limitation on the possible ways of proving that [gender] stereotyping played a motivating role in an employment decision." Id., at 251-252.Justice White and JUSTICE O'CONNOR both concurred in the judgment. Justice White would have held that the case was governed by Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), and would have shifted the burden to the employer only when a plaintiff "show[ed] that the unlawful motive was a substantial factor in the adverse employment action." Price Waterhouse, supra, at 259. JUSTICE O'CONNOR, like Justice White, would have required the plaintiff to show that an illegitimate consideration was a "substantial factor" in the employment decision. 490 U. S., at 276. But, under JUSTICE O'CONNOR'S view, "the burden on the issue94of causation" would shift to the employer only where "a disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the decision." Ibid. (emphasis added).Two years after Price Waterhouse, Congress passed the 1991 Act "in large part [as] a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964." Landgraf v. USI Film Products, 511 U. S. 244, 250 (1994). In particular, § 107 of the 1991 Act, which is at issue in this case, "respond[ed]" to Price Waterhouse by "setting forth standards applicable in 'mixed motive' cases" in two new statutory provisions.1 511 U. S., at 251. The first establishes an alternative for proving that an "unlawful employment practice" has occurred:"Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U. S. C. § 2000e-2(m).The second provides that, with respect to "a claim in which an individual proves a violation under section 2000e-2(m)," the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a plaintiff. The available remedies include only declaratory relief, certain types of injunctive relief, and attorney's fees and costs. § 2000e-5(g)(2)(B).2 In order to avail itself of1 This case does not require us to decide when, if ever, § 107 applies outside of the mixed-motive context.2 Title 42 U. S. C. § 2000e-5(g)(2)(B) provides in full:"On a claim in which an individual proves a violation under section 2000e2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court-"(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly95the affirmative defense, the employer must "demonstrat[e] that [it] would have taken the same action in the absence of the impermissible motivating factor." Ibid.Since the passage of the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a "motivating factor" in an adverse employment action. See 42 U. S. C. § 2000e-2(m). Relying primarily on JUSTICE O'CONNOR'S concurrence in Price Waterhouse, a number of courts have held that direct evidence is required to establish liability under §2000e-2(m). See, e. g., Mohr v. Dustrol, Inc., 306 F. 3d 636, 640-641 (CA8 2002); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (CA1 1999); Trotter v. Board of Trustees of Univ. of Ala., 91 F.3d 1449, 1453-1454 (CAll 1996); Fuller v. Phipps, 67 F.3d 1137, 1142 (CA4 1995). In the decision below, however, the Ninth Circuit concluded otherwise. See infra, at 97-98.BPetitioner Desert Palace, Inc., dba Caesar's Palace Hotel & Casino of Las Vegas, Nevada, employed respondent Catharina Costa as a warehouse worker and heavy equipment operator. Respondent was the only woman in this job and in her local Teamsters bargaining unit.Respondent experienced a number of problems with management and her co-workers that led to an escalating series of disciplinary sanctions, including informal rebukes, a denial of privileges, and suspension. Petitioner finally terminated respondent after she was involved in a physical altercation in a warehouse elevator with fellow Teamsters member Herbert Gerber. Petitioner disciplined both employees because the facts surrounding the incident were in dispute, butattributable only to the pursuit of a claim under section 2000e-2(m) of this title; and"(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A)."96Gerber, who had a clean disciplinary record, received only a 5-day suspension.Respondent subsequently filed this lawsuit against petitioner in the United States District Court for the District of Nevada, asserting claims of sex discrimination and sexual harassment under Title VII. The District Court dismissed the sexual harassment claim, but allowed the claim for sex discrimination to go to the jury. At trial, respondent presented evidence that (1) she was singled out for "intense 'stalking'" by one of her supervisors, (2) she received harsher discipline than men for the same conduct, (3) she was treated less favorably than men in the assignment of overtime, and (4) supervisors repeatedly "stack[ed]" her disciplinary record and "frequently used or tolerated" sex-based slurs against her. 299 F.3d 838, 845-846 (CA9 2002).Based on this evidence, the District Court denied petitioner's motion for judgment as a matter of law, and submitted the case to the jury with instructions, two of which are relevant here. First, without objection from petitioner, the District Court instructed the jury that" '[t]he plaintiff has the burden of proving ... by a preponderance of the evidence'" that she "'suffered adverse work conditions'" and that her sex "'was a motivating factor in any such work conditions imposed upon her.'" Id., at 858.Second, the District Court gave the jury the followingmixed-motive instruction:"'You have heard evidence that the defendant's treatment of the plaintiff was motivated by the plaintiff's sex and also by other lawful reasons. If you find that the plaintiff's sex was a motivating factor in the defendant's treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant's conduct was also motivated by a lawful reason."'However, if you find that the defendant's treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled97to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff's gender had played no role in the employment decision.'" Ibid.Petitioner unsuccessfully objected to this instruction, claiming that respondent had failed to adduce "direct evidence" that sex was a motivating factor in her dismissal or in any of the other adverse employment actions taken against her. The jury rendered a verdict for respondent, awarding backpay, compensatory damages, and punitive damages. The District Court denied petitioner's renewed motion for judgment as a matter of law.The Court of Appeals initially vacated and remanded, holding that the District Court had erred in giving the mixed-motive instruction because respondent had failed to present "substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus." 268 F.3d 882, 884 (CA9 2001). In addition, the panel concluded that petitioner was entitled to judgment as a matter of law on the termination claim because the evidence was insufficient to prove that respondent was "terminated because she was a woman." Id., at 890.The Court of Appeals reinstated the District Court's judgment after rehearing the case en banco 299 F.3d 838 (CA9 2002). The en banc court saw no need to decide whether JUSTICE O'CONNOR'S concurrence in Price Waterhouse controlled because it concluded that JUSTICE O'CONNOR'S references to "direct evidence" had been "wholly abrogated" by the 1991 Act. 299 F. 3d, at 850. And, turning "to the language" of § 2000e-2(m), the court observed that the statute "imposes no special [evidentiary] requirement and does not reference 'direct evidence.'" Id., at 853. Accordingly, the court concluded that a "plaintiff ... may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played 'a moti-98vating factor.'" Id., at 853-854 (footnote omitted). Based on that standard, the Court of Appeals held that respondent's evidence was sufficient to warrant a mixed-motive instruction and that a reasonable jury could have found that respondent's sex was a "motivating factor in her treatment." Id., at 859. Four judges of the en banc panel dissented, relying in large part on "the reasoning of the prior opinion of the three-judge panel." Id., at 866.We granted certiorari. 537 U. S. 1099 (2003).IIThis case provides us with the first opportunity to consider the effects of the 1991 Act on jury instructions in mixedmotive cases. Specifically, we must decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under 42 U. S. C. § 2000e-2(m). Petitioner's argument on this point proceeds in three steps: (1) JUSTICE O'CONNOR'S opinion is the holding of Price Waterhouse; (2) JUSTICE O'CONNOR'S Price Waterhouse opinion requires direct evidence of discrimination before a mixed-motive instruction can be given; and (3) the 1991 Act does nothing to abrogate that holding. Like the Court of Appeals, we see no need to address which of the opinions in Price Waterhouse is controlling: the third step of petitioner's argument is flawed, primarily because it is inconsistent with the text of § 2000e-2(m).Our precedents make clear that the starting point for our analysis is the statutory text. See Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992). And where, as here, the words of the statute are unambiguous, the "'judicial inquiry is complete.'" Id., at 254 (quoting Rubin v. United States, 449 U. S. 424, 430 (1981)). Section 2000e2(m) unambiguously states that a plaintiff need only "demonstrat[e]" that an employer used a forbidden consideration with respect to "any employment practice." On its face, the statute does not mention, much less require, that a plaintiff99make a heightened showing through direct evidence. Indeed, petitioner concedes as much. Tr. of Oral Arg. 9.Moreover, Congress explicitly defined the term "demonstrates" in the 1991 Act, leaving little doubt that no special evidentiary showing is required. Title VII defines the term " 'demonstrates' " as to "mee[t] the burdens of production and persuasion." § 2000e(m). If Congress intended the term " 'demonstrates' " to require that the "burdens of production and persuasion" be met by direct evidence or some other heightened showing, it could have made that intent clear by including language to that effect in § 2000e(m). Its failure to do so is significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other provisions of Title 42. See, e. g., 8 U. S. C. § 1158(a)(2)(B) (stating that an asylum application may not be filed unless an alien "demonstrates by clear and convincing evidence" that the application was filed within one year of the alien's arrival in the United States); 42 U. S. C. § 5851(b)(3)(D) (providing that "[r]elief may not be ordered" against an employer in retaliation cases involving whistle blowers under the Atomic Energy Act where the employer is able to "demonstrat[e] by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior" (emphasis added)); cf. Price Waterhouse, 490 U. S., at 253 (plurality opinion) ("Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief").In addition, Title VII's silence with respect to the type of evidence required in mixed-motive cases also suggests that we should not depart from the "[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases." Ibid. That rule requires a plaintiff to prove his case "by a preponderance of the evidence," ibid., using "direct or circumstantial evidence," Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 714, n. 3 (1983). We have often acknowledged100the utility of circumstantial evidence in discrimination cases. For instance, in Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133 (2000), we recognized that evidence that a defendant's explanation for an employment practice is "unworthy of credence" is "one form of circumstantial evidence that is probative of intentional discrimination." Id., at 147 (emphasis added). The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: "Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 508, n. 17 (1957).The adequacy of circumstantial evidence also extends beyond civil cases; we have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required. See Holland v. United States, 348 U. S. 121, 140 (1954) (observing that, in criminal cases, circumstantial evidence is "intrinsically no different from testimonial evidence"). And juries are routinely instructed that "[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence." 1A K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal § 12.04 (5th ed. 2000); see also 4 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions ~ 74.01 (2002) (model instruction 74-2). It is not surprising, therefore, that neither petitioner nor its amici curiae can point to any other circumstance in which we have restricted a litigant to the presentation of direct evidence absent some affirmative directive in a statute. Tr. of Oral Arg. 13.Finally, the use of the term "demonstrates" in other provisions of Title VII tends to show further that § 2000e-2(m) does not incorporate a direct evidence requirement. See, e. g., 42 U. S. C. §§ 2000e-2(k)(1)(A)(i), 2000e-5(g)(2)(B). For instance, § 2000e-5(g)(2)(B) requires an employer to "demon-101strat[e] that [it] would have taken the same action in the absence of the impermissible motivating factor" in order to take advantage of the partial affirmative defense. Due to the similarity in structure between that provision and § 2000e-2(m), it would be logical to assume that the term "demonstrates" would carry the same meaning with respect to both provisions. But when pressed at oral argument about whether direct evidence is required before the partial affirmative defense can be invoked, petitioner did not "agree that ... the defendant or the employer has any heightened standard" to satisfy. Tr. of Oral Arg. 7. Absent some congressional indication to the contrary, we decline to give the same term in the same Act a different meaning depending on whether the rights of the plaintiff or the defendant are at issue. See Commissioner v. Lundy, 516 U. S. 235, 250 (1996) ("The interrelationship and close proximity of these provisions of the statute 'presents a classic case for application of the "normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning"'" (quoting Sullivan v. Stroop, 496 U. S. 478, 484 (1990))).For the reasons stated above, we agree with the Court of Appeals that no heightened showing is required under § 2000e-2(m).3***In order to obtain an instruction under § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that "race, color, religion, sex, or national origin was a motivating factor for any employment practice." Because direct evidence of discrimination is not required in mixed-motive3 Of course, in light of our conclusion that direct evidence is not required under § 2000e-2(m), we need not address the second question on which we granted certiorari: "What are the appropriate standards for lower courts to follow in making a direct evidence determination in 'mixed-motive' cases under Title VII?" Pet. for Cert. i.102cases, the Court of Appeals correctly concluded that the District Court did not abuse its discretion in giving a mixedmotive instruction to the jury. Accordingly, the judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 2002SyllabusDESERT PALACE, INC., DBA CAESARS PALACE HOTEL & CASINO v. COSTACERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 02-679. Argued April 21, 2003-Decided June 9,2003Title VII of the Civil Rights Act of 1964 makes it an "unlawful employment practice for an employer ... to discriminate against any individual ... , because of ... sex." 42 U. S. C. § 2000e-2(a)(1). In Price Waterhouse v. Hopkins, 490 U. S. 228, this Court considered whether an employment decision is made "because of" sex in a "mixed-motive" case, i. e., where both legitimate and illegitimate reasons motivated the decision. Although the Court concluded that an employer had an affirmative defense if it could prove that it would have made the same decision had gender not played a role, it was divided on the question of when the burden of proof shifts to an employer to prove the defense. JUSTICE O'CONNOR, concurring in the judgment, concluded that the burden would shift only where a disparate treatment plaintiff could show by "direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision." Id., at 276. Congress subsequently passed the Civil Rights Act of 1991 (1991 Act), which provides, among other things, that (1) an unlawful employment practice is established "when the complaining party demonstrates that ... sex ... was a motivating factor for any employment practice, even though other factors also motivated the practice," 42 U. S. C. § 2000e-2(m), and (2) if an individual proves a violation under § 2000e-2(m), the employer can avail itself of a limited affirmative defense that restricts the available remedies if it demonstrates that it would have taken the same action absent the impermissible motivating factor, § 2000e-5(g)(2)(B). Respondent, who was petitioner's only female warehouse worker and heavy equipment operator, had problems with management and her co-workers, which led to escalating disciplinary sanctions and her ultimate termination. She subsequently filed this lawsuit, asserting, inter alia, a Title VII sex discrimination claim. Based on the evidence she presented at trial, the District Court denied petitioner's motion for judgment as a matter of law and submitted the case to the jury. The District Court instructed the jury, as relevant here, that if respondent proved by a preponderance of the evidence that sex was a motivating factor in the adverse work conditions imposed on her, but petitioner's conduct was also motivated by lawful91reasons, she was entitled to damages unless petitioner proved by a preponderance of the evidence that it would have treated her similarly had gender played no role. Petitioner unsuccessfully objected to this instruction, claiming that respondent had not adduced "direct evidence" that sex was a motivating factor in petitioner's decision. The jury awarded respondent backpay and compensatory and punitive damages, and the District Court denied petitioner's renewed motion for judgment as a matter of law. A Ninth Circuit panel vacated and remanded, agreeing with petitioner that the District Court had erred in giving the mixed-motive instruction. The en banc court, however, reinstated the judgment, finding that the 1991 Act does not impose any special evidentiary requirement.Held: Direct evidence of discrimination is not required for a plaintiff to obtain a mixed-motive jury instruction under Title VII. The starting point for this Court's analysis is the statutory text. See Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254. Where, as here, the statute's words are unambiguous, the judicial inquiry is complete. Id., at 254. Section 2000e-2(m) unambiguously states that a plaintiff need only demonstrate that an employer used a forbidden consideration with respect to any employment practice. On its face, it does not mention that a plaintiff must make a heightened showing through direct evidence. Moreover, Congress explicitly defined "demonstrates" as to "mee[t] the burdens of production and persuasion." § 2000e-2(m). Had Congress intended to require direct evidence, it could have included language to that effect in § 2000e-2(m), as it has unequivocally done when imposing heightened proof requirements in other circumstances. See, e. g., 42 U. S. C. § 5851(b)(3)(D). Title VII's silence also suggests that this Court should not depart from the conventional rule of civil litigation generally applied in Title VII cases, which requires a plaintiff to prove his case by a preponderance of the evidence using direct or circumstantial evidence. This Court has often acknowledged the utility of circumstantial evidence in discrimination cases and has never questioned its adequacy in criminal cases, even though proof beyond a reasonable doubt is required. Finally, the use of the term "demonstrates" in other Title VII provisions tends to show that § 2000e-2(m) does not incorporate a direct evidence requirement. See e. g., § 2000e2(k)(1)(A)(i). Pp.98-102.299 F.3d 838, affirmed.THOMAS, J., delivered the opinion for a unanimous Court. O'CONNOR, J., filed a concurring opinion, post, p. 102.92Full Text of Opinion

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itself of its option. As to the property subject to the Government's actual use, then, the United States has not merely exercised daily supervision but has enjoyed daily occupation, and so has obtained control at least as plenary as its authority over the timber in Mitchell II. Although the 1960 Act, unlike the statutes cited in that case, does not expressly subject the Government to management and conservation duties, the fact that the property occupied by the United States is expressly subject to a trust supports a fair inference that an obligation to preserve the property improvements was incumbent on the Government as trustee. See, e. g., Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559, 572. Thus, the Government should be liable in damages for breach. Mitchell II, supra, at 226. Pp. 474-476.(d) The Court rejects the Government's three defenses. First, the argument that the 1960 Act specifically carved out of the trust the Government's right to use the property it occupied is at odds with a natural reading of the 1960 Act, which provided that "Fort Apache" was subject to the trust, not that the trust consisted of only the property not used by the Secretary. Second, the argument that there is nothing in the 1960 Act from which an intent to provide a damages remedy is fairly inferable rests on a failure to appreciate either the role of trust law in drawing a fair inference or the scope of United States v. Testan, 424 U. S. 392, and Army and Air Force Exchange Service v. Sheehan, 456 U. S. 728, on which the Government relies. The Government's assertion that an explicit provision for money damages is necessary to support every Tucker Act claim would leave Mitchell II wrongly decided, for there is no federal statute explicitly providing that inadequate timber management would be compensated through a suit for damages. More fundamentally, the Government's position, if carried to its conclusion, would read the trust relation out of Indian Tucker Act analysis; if a specific provision for damages is needed, a trust obligation and trust law are not. Sheehan and Testan are not to the contrary; they were cases without any trust relationship in the mix of relevant fact, but with affirmative reasons to believe that no damages remedy could have been intended, absent a specific provision. Third, the Government is clearly wrong when it argues that prospective injunctive relief tailored to the situation, rather than the inference of a damages remedy, is the only appropriate remedy for maintenance failures. If the Government is suggesting that the recompense for run-down buildings should be an affirmative order to repair them, it is merely proposing the economic (but perhaps cumbersome) equivalent of damages. But if it is suggesting that relief must be limited to an injunction to toe the fiduciary mark in the future, it would bar the courts from making the Tribe whole for468468 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBEdeterioration already suffered, and shield the Government against the remedy whose very availability would deter it from wasting trust property in the period before a Tribe has gone to court for injunctive relief. E. g., Mitchell II, supra, at 227. Pp. 476-479.249 F.3d 1364, affirmed and remanded.SOUTER, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a concurring opinion, in which BREYER, J., joined, post, p. 479. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA and KENNEDY, JJ., joined, post, p. 481.Gregory G. Garre argued the cause for the United States.With him on the briefs were Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Solicitor General Kneedler, Elizabeth Ann Peterson, and James M. Upton.Robert C. Brauchli argued the cause and filed a brief for respondent. *JUSTICE SOUTER delivered the opinion of the Court.The question in this case arises under the Indian Tucker Act: does the Court of Federal Claims have jurisdiction over the White Mountain Apache Tribe's suit against the United States for breach of fiduciary duty to manage land and improvements held in trust for the Tribe but occupied by the Government. We hold that it does.IThe former military post of Fort Apache dates back to 1870 when the United States established the fort within territory that became the Tribe's reservation in 1877. In 1922, Congress transferred control of the fort to the Secretary of the Interior (Secretary) and, in 1923, set aside about 400 acres, out of some 7,000, for use as the Theodore Roosevelt Indian School. Act of Jan. 24, 1923, ch. 42, 42 Stat. 1187.* John E. Echohawk and Tracy A. Labin filed a brief for the National Congress of American Indians as amicus curiae urging affirmance.469Congress attended to the fort again in 1960, when it provided by statute that "former Fort Apache Military Reservation" would be "held by the United States in trust for the White Mountain Apache Tribe, subject to the right of the Secretary of the Interior to use any part of the land and improvements for administrative or school purposes for as long as they are needed for the purpose." Pub. L. 86-392, 74 Stat. 8 (1960 Act). The Secretary exercised that right, and although the record does not catalog the uses made by the Department of the Interior, they extended to about 30 of the post's buildings and appurtenances, a few of which had been built when the Government first occupied the land. Although the National Park Service listed the fort as a national historical site in 1976, the recognition was no augury of fortune, for just over 20 years later the World Monuments Watch placed the fort on its 1998 List of 100 Most Endangered Monuments. Brief for Respondent 3.In 1993, the Tribe commissioned an engineering assessment of the property, resulting in a finding that as of 1998 it would cost about $14 million to rehabilitate the property occupied by the Government in accordance with standards for historic preservation. This is the amount the Tribe sought in 1999, when it sued the United States in the Court of Federal Claims, citing the terms of the 1960 Act, among others,1 and alleging breach of fiduciary duty to "maintain, protect, repair and preserve" the trust property. App. to Pet. for Cert. 37a.The United States moved to dismiss for failure to state a claim upon which relief might be granted and for lack of subject-matter jurisdiction. While the Government acknowledged that the Indian Tucker Act, 28 U. S. C. § 1505, invested the Court of Federal Claims with jurisdiction to1 These included the Snyder Act, 42 Stat. 208, as amended, 25 U. S. C. § 13, and the National Historic Preservation Act, 80 Stat. 915, 16 U. S. C. §470 et seq.470470 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBErender judgments in certain claims by Indian tribes against the United States, including claims based on an Act of Congress, it stressed that the waiver operated only when underlying substantive law could fairly be interpreted as giving rise to a particular duty, breach of which should be compensable in money damages. The Government contended that jurisdiction was lacking here because no statute or regulation cited by the Tribe could fairly be read as imposing a legal obligation on the Government to maintain or restore the trust property, let alone authorizing compensation for breach.2The Court of Federal Claims agreed with the United States and dismissed the complaint for lack of jurisdiction, relying primarily on the two seminal cases of tribal trust claims for damages, United States v. Mitchell, 445 U. S. 535 (1980) (Mitchell I), and United States v. Mitchell, 463 U. S. 206 (1983) (Mitchell II). Mitchell I held that the Indian General Allotment Act (Allotment Act), 24 Stat. 388, as amended, 25 U. S. C. § 331 et seq. (1976 ed.) (§§ 331-333 repealed 2000), providing that "the United States does and will hold the land thus allotted ... in trust for the sole use and benefit of the Indian," § 348; Mitchell I, supra, at 541, established nothing more than a "bare trust" for the benefit of tribal members. Mitchell II, supra, at 224. The general trust provision established no duty of the United States to manage timber resources, tribal members, rather, being "responsible for using the land," "occupy[ing] the land," and "manag[ing] the land." 445 U. S., at 542-543. The opposite result obtained in Mitchell II, however, based on timber2 Although it appears that the United States has not yet relinquished control of any of the buildings, the United States concedes that "some buildings have fallen into varying states of disrepair, and a few structures have been condemned or demolished." Brief for United States 4. For present purposes we need not address whether or how this affects the Tribe's claims.471management statutes, 25 U. S. C. §§ 406-407,466, and regulations, 25 CFR pt. 163 (1983), under which the United States assumed "elaborate control" over the tribal forests. 463 U. S., at 209,225. Mitchell II identified a specific trust relationship enforceable by award of damages for breach. Id., at 225-226.Here, the Court of Federal Claims compared the 1960 Act to the Allotment Act in Mitchell I, as creating nothing more than a "bare trust." It saw in the 1960 Act no mandate that the United States manage the site on behalf of the Tribe, and thus no predicate in the statutes and regulations identified by the Tribe for finding a fiduciary obligation enforceable by monetary relief.The Court of Appeals for the Federal Circuit reversed and remanded, on the understanding that the United States's use of property under the proviso of the 1960 Act triggered the duty of a common law trustee to act reasonably to preserve any property the Secretary had chosen to utilize, an obligation fairly interpreted as supporting a claim for money damages. The Court of Appeals held that the provision for the Government's exclusive control over the building actually occupied raised the trust to the level of Mitchell II, in which the trust relationship together with Government's control over the property triggered a specific responsibility.Chief Judge Mayer dissented on the understanding that the 1960 Act "carve[d] out" from the trust the portions of the property that the Government is entitled to use for its own benefit, with the consequence that the Tribe held only a contingent future interest in the property, insufficient to support even a common law action for permissive waste. 249 F.3d 1364, 1384 (2001).We granted certiorari to decide whether the 1960 Act gives rise to jurisdiction over suits for money damages against the United States, 535 U. S. 1016 (2002), and now affirm.472472 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBEII AJurisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity, Mitchell I, supra, at 538-539, together with a claim falling within the terms of the waiver, Mitchell II, supra, at 216-217. The terms of consent to be sued may not be inferred, but must be "unequivocally expressed," Mitchell I, supra, at 538 (quoting United States v. King, 395 U. S. 1, 4 (1969)) (internal quotation marks omitted), in order to "define [a] court's jurisdiction," Mitchell I, supra, at 538 (quoting United States v. Sherwood, 312 U. S. 584, 586 (1941)) (internal quotation marks omitted). The Tucker Act contains such a waiver, Mitchell II, supra, at 212, giving the Court of Federal Claims jurisdiction to award damages upon proof of "any claim against the United States founded either upon the Constitution, or any Act of Congress," 28 U. S. C. § 1491(a)(1), and its companion statute, the Indian Tucker Act, confers a like waiver for Indian tribal claims that "otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe," § 1505.Neither Act, however, creates a substantive right enforceable against the Government by a claim for money damages. Mitchell I, supra, at 538-540; Mitchell II, supra, at 216. As we said in Mitchell II, a statute creates a right capable of grounding a claim within the waiver of sovereign immunity if, but only if, it "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." 463 U. S., at 217 (quoting United States v. Testan, 424 U. S. 392, 400 (1976)) (internal quotation marks omitted).This "fair interpretation" rule demands a showing demonstrably lower than the standard for the initial waiver of sovereign immunity. "Because the Tucker Act supplies a waiver of immunity for claims of this nature, the separate statutes and regulations need not provide a second waiver473of sovereign immunity, nor need they be construed in the manner appropriate to waivers of sovereign immunity." Mitchell II, supra, at 218-219. It is enough, then, that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim will not be "lightly inferred," 463 U. S., at 218, a fair inference will do.BThe two Mitchell cases give a sense of when it is fair to infer a fiduciary duty qualifying under the Indian Tucker Act and when it is not. The characterizations of the trust as "limited," Mitchell I, 445 U. S., at 542, or "bare," Mitchell II, supra, at 224, distinguish the Allotment Act's trust-inname from one with hallmarks of a more conventional fiduciary relationship. See United States v. Navajo Nation, post, at 504 (discussing §§ 1 and 2 of the Allotment Act in Mitchell I as having "removed a standard element of a trust relationship"). Although in form the United States "h[e]ld the land ... in trust for the sole use and benefit of the Indian," 25 U. S. C. § 348, the statute gave the United States no functional obligations to manage timber; on the contrary, it established that "the Indian allottee, and not a representative of the United States, is responsible for using the land," that "the allottee would occupy the land," and that "the allottee, and not the United States, was to manage the land." Mitchell I, 445 U. S., at 542-543. Thus, we found that Congress did not intend to "impose any duty" on the Government to manage resources, id., at 542; cf. Mitchell II, supra, at 217-218, and we made sense of the trust language, considered without reference to any statute beyond the Allotment Act, as intended "to prevent alienation of the land" and to guarantee that the Indian allottees were "immune from state taxation," Mitchell I, supra, at 544.The subsequent case of Mitchell II arose on a claim that did look beyond the Allotment Act, and we found that stat-474474 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBEutes and regulations specifically addressing the management of timber on allotted lands raised the fair implication that the substantive obligations imposed on the United States by those statutes and regulations were enforceable by damages. The Department of the Interior possessed "comprehensive control over the harvesting of Indian timber" and "exercise[d] literally daily supervision over [its] harvesting and management," Mitchell II, supra, at 209, 222 (quoting White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 145, 147 (1980)) (internal quotation marks omitted), giving it a "pervasive" role in the sale of timber from Indian lands under regulations addressing "virtually every aspect of forest management," Mitchell II, supra, at 219, 220. As the statutes and regulations gave the United States "full responsibility to manage Indian resources and land for the benefit of the Indians," we held that they "define[d] ... contours of the United States' fiduciary responsibilities" beyond the "bare" or minimal level, and thus could "fairly be interpreted as mandating compensation" through money damages if the Government faltered in its responsibility. 463 U. S., at 224-226.III AThe 1960 Act goes beyond a bare trust and permits a fair inference that the Government is subject to duties as a trustee and liable in damages for breach. The statutory language, of course, expressly defines a fiduciary relationship 3 in the provision that Fort Apache be "held by the United3 Where, as in Mitchell II, 463 U. S. 206, 225 (1983), the relevant sources of substantive law create "[a]ll of the necessary elements of a common-law trust," there is no need to look elsewhere for the source of a trust relationship. We have recognized a general trust relationship since 1831. Cherokee Nation v. Georgia, 5 Pet. 1, 16 (1831) (characterizing the relationship between Indian tribes and the United States as "a ward to his guardian"); Mitchell II, supra, at 225 (discussing "the undisputed existence of a general trust relationship between the United States and the Indian people").475States in trust for the White Mountain Apache Tribe." 74 Stat. 8. Unlike the Allotment Act, however, the statute proceeds to invest the United States with discretionary authority to make direct use of portions of the trust corpus. The trust property is "subject to the right of the Secretary of the Interior to use any part of the land and improvements for administrative or school purposes for as long as they are needed for the purpose," ibid., and it is undisputed that the Government has to this day availed itself of its option. As to the property subject to the Government's actual use, then, the United States has not merely exercised daily supervision but has enjoyed daily occupation, and so has obtained control at least as plenary as its authority over the timber in Mitchell II. While it is true that the 1960 Act does not, like the statutes cited in that case, expressly subject the Government to duties of management and conservation, the fact that the property occupied by the United States is expressly subject to a trust supports a fair inference that an obligation to preserve the property improvements was incumbent on the United States as trustee. This is so because elementary trust law, after all, confirms the commonsense assumption that a fiduciary actually administering trust property may not allow it to fall into ruin on his watch. "One of the fundamental common-law duties of a trustee is to preserve and maintain trust assets," Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559, 572 (1985) (citing G. Bogert & G. Bogert, Law of Trusts and Trustees § 582, p. 346 (rev. 2d ed. 1980)); see United States v. Mason, 412 U. S. 391, 398 (1973) (standard of responsibility is "such care and skill as a man of ordinary prudence would exercise in dealing with his own property" (quoting 2 A. Scott, Trusts 1408 (3d ed. 1967) (internal quotation marks omitted))); Restatement (Second) of Trusts § 176 (1957) ("The trustee is under a duty to the beneficiary to use reasonable care and skill to preserve the trust property"). Given this duty on the part of the trustee to preserve corpus,476476 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBE"it naturally follows that the Government should be liable in damages for the breach of its fiduciary duties."4 Mitchell II, supra, at 226.BThe United States raises three defenses against this conclusion, the first being that the property occupied by the Government is not trust corpus at all. It asserts that in the 1960 Act Congress specifically "carve[d] out of the trust" the right of the Federal Government to use the property for the Government's own purposes. Brief for United States 24-25 (emphasis deleted). According to the United States, this carve-out means that the 1960 Act created even less than the "bare trust" in Mitchell 1. But this position is at odds with a natural reading of the 1960 Act. It provided that "Fort Apache" was subject to the trust; it did not read that the trust consisted of only the property not used by the Secretary. Nor is there any apparent reason to strain to avoid the straightforward reading; it makes sense to treat even the property used by the Government as trust property, since any use the Secretary would make of it would presumably be intended to redound to the benefit of the Tribe in some way.Next, the Government contends that no intent to provide a damages remedy is fairly inferable, for the reason that "[t]here is not a word in the 1960 Act-the only substantive4 The proper measure of damages is not before us. We mean to imply nothing about the relevance of any historic building or preservation standards. Neither do we address the significance of the fact that a trustee is generally indemnified for the cost of upkeep and maintenance. See Restatement (Second) of Trusts § 244 (1957) ("The trustee is entitled to indemnity out of the trust estate for expenses properly incurred by him in the administration of the trust"). Nor do we reach the issue whether a rent-free occupant is obligated to supply funds to maintain the property it benefits from. See Restatement of Property § 187, Comment b (1936) ("When the right of the owner of the future interest is that the owner of the estate for life shall do a given act, as for example, ... make repairs ... then this right is made effective through compelling by judicial action the specific doing of the act").477source of law on which the Tribe relies-that suggests the existence of such a mandate." Brief for United States 28. The argument rests, however, on a failure to appreciate either the role of trust law in drawing a fair inference or the scope of United States v. Testan, 424 U. S. 392 (1976), and Army and Air Force Exchange Service v. Sheehan, 456 U. S. 728 (1982), cited in support of the Government's position.To the extent that the Government would demand an explicit provision for money damages to support every claim that might be brought under the Tucker Act, it would substitute a plain and explicit statement standard for the less demanding requirement of fair inference that the law was meant to provide a damages remedy for breach of a duty. To begin with, this would leave Mitchell II a wrongly decided case, for one would look in vain for a statute explicitly providing that inadequate timber management would be compensated through a suit for damages. But the more fundamental objection to the Government's position is that, if carried to its conclusion, it would read the trust relation out of Indian Tucker Act analysis; if a specific provision for damages is needed, a trust obligation and trust law are not. And this likewise would ignore Mitchell I, where the trust relationship was considered when inferring that the trust obligation was enforceable by damages. To be sure, the fact of the trust alone in Mitchell I did not imply a remedy in damages or even the duty claimed, since the Allotment Act failed to place the United States in a position to discharge the management responsibility asserted. To find a specific duty, a further source of law was needed to provide focus for the trust relationship. But once that focus was provided, general trust law was considered in drawing the inference that Congress intended damages to remedy a breach of obligation.Sheehan and Testan are not to the contrary; they were cases without any trust relationship in the mix of relevant fact, but with affirmative reasons to believe that no damages478478 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBEremedy could have been intended, absent a specific provision. In Sheehan, specific authorization was critical because of a statute that generally granted employees the damages remedy petitioner sought, but "expressly denie[d] that cause of action" to Army and Air Force Exchange Service personnel, such as petitioner. 456 U. S., at 740. In Sheehan, resting in part on Testan, the Tucker Act plaintiffs unsuccessfully asserted that the Court of Claims had jurisdiction over a claim against the United States for money damages for allegedly improper job classifications under the Classification Act. We stressed that no provision in the statute "expressly makes the United States liable," Testan, 424 U. S., at 399, and rather, that there was a longstanding presumption against petitioner's argument. "The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it .... The Classification Act does not purport by its terms to change that rule, and we see no suggestion in it or in its legislative history that Congress intended to alter it." Id., at 402. Thus, in both Sheehan and Testan we required an explicit authorization of a damages remedy because of strong indications that Congress did not intend to mandate money damages. Together they show that a fair inference will require an express provision, when the legal current is otherwise against the existence of a cognizable claim. But that was not the case in Mitchell II and is not the case here.Finally, the Government argues that the inference of a damages remedy is unsound simply because damages are inappropriate as a remedy for failures of maintenance, prospective injunctive relief being the sole relief tailored to the situation. Reply Brief for United States 19. We think this is clearly wrong. If the Government is suggesting that the recompense for run-down buildings should be an affirmative order to repair them, it is merely proposing the economic (but perhaps cumbersome) equivalent of damages. But if it is suggesting that relief must be limited to an injunction to479toe the fiduciary mark in the future, it would bar the courts from making the Tribe whole for deterioration already suffered, and shield the Government against the remedy whose very availability would deter it from wasting trust property in the period before a Tribe has gone to court for injunctive relief. Mitchell II, 463 U. S., at 227 ("Absent a retrospective damages remedy, there would be little to deter federal officials from violating their trust duties, at least until the allottees managed to obtain a judicial decree against future breaches of trust" (quoting Mitchell I, 445 U. S., at 550 (internal quotation marks omitted))).IVThe judgment of the Court of Appeals for the Federal Circuit is affirmed, and the case is remanded to the Court of Federal Claims for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2002SyllabusUNITED STATES v. WHITE MOUNTAIN APACHE TRIBECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUITNo. 01-1067. Argued December 2, 2002-Decided March 4, 2003Under Pub. L. 86-392, 74 Stat. 8 (1960 Act), the "former Fort Apache Military Reservation" is "held by the United States in trust for the White Mountain Apache Tribe, subject to the right of the Secretary of the Interior to use any part of the land and improvements." The Secretary has exercised that right with respect to about 30 of the post's buildings and appurtenances. The Tribe sued the United States for the amount necessary to rehabilitate the property occupied by the Government in accordance with standards for historic preservation, alleging that the United States had breached a fiduciary duty to maintain, protect, repair, and preserve the trust property. In its motion to dismiss, the Government acknowledged that, under the Indian Tucker Act, it was subject to the jurisdiction of the Court of Federal Claims with respect to certain Indian tribal claims, but stressed that the waiver operated only when underlying substantive law could fairly be interpreted as giving rise to a particular duty, breach of which should be compensable in money damages. The Government contended that jurisdiction was lacking here because no statute or regulation could fairly be read to impose a legal obligation on it to maintain or restore the trust property, let alone authorize compensation for breach. The Court of Federal Claims agreed and dismissed the complaint, relying primarily on United States v. Mitchell, 445 U. S. 535 (Mitchell I), and United States v. Mitchell, 463 U. S. 206 (Mitchell II). The court ruled that, like the Indian General Allotment Act at issue in Mitchell I, the 1960 Act created nothing more than a "bare trust," with no predicate for finding a fiduciary obligation enforceable by monetary relief. The Federal Circuit reversed and remanded, on the understanding that the Government's property use under the 1960 Act triggered a common-law trustee's duty to act reasonably to preserve any property the Secretary chose to utilize, an obligation fairly interpreted as supporting a money damages claim. The court held that the 1960 Act's provision for the Government's exclusive control over the buildings actually occupied raised the trust to the level of Mitchell II, supra, at 225, in which this Court held that federal timber management statutes and regulations, under which466466 UNITED STATES v. WHITE MOUNTAIN APACHE TRIBESyllabusthe United States assumed "elaborate control" over tribal forests, identified a specific trust relationship enforceable by a damages award.Held: The 1960 Act gives rise to Indian Tucker Act jurisdiction in the Court of Federal Claims over the Tribe's suit for money damages against the United States. Pp.472-479.(a) The Indian Tucker Act gives that court jurisdiction over Indian tribal claims that "otherwise would be cognizable ... if the claimant were not an Indian tribe," 28 U. S. C. § 1505, but creates no substantive right enforceable against the Government by a claim for money damages, e. g., Mitchell II, 463 U. S., at 216. A statute creates a right capable of grounding such a claim only if it "can fairly be interpreted as mandating compensation by the ... Government for the damages sustained." E. g., id., at 217. This "fair interpretation" rule demands a showing demonstrably lower than the standard for the initial waiver of sovereign immunity that is necessary to authorize a suit against the Government. It is enough that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. See id., at 218-219. While the premise to a Tucker Act claim will not be "lightly inferred," id., at 218, a fair inference will do. Pp.472-473.(b) The two Mitchell cases give a sense of when it is fair to infer a fiduciary duty qualifying under the Indian Tucker Act and when it is not. In Mitchell I, because the Allotment Act gave the Government no functional obligations to manage timber, 445 U. S., at 542-543, and to the contrary established that the Indian allottee, and not a representative of the United States, is responsible for using the land, ibid., the Court found that Congress did not intend to impose a duty on the Government to manage resources, id., at 542. In Mitchell II, however, because the statutes and regulations there considered gave the United States full responsibility to manage Indian resources and land for the Indians' benefit, the Court held that they defined the contours of the United States' fiduciary responsibilities beyond the "bare" or minimal level, and thus could fairly be interpreted as mandating compensation through money damages if the Government faltered in its responsibility. 463 U. S., at 224-226. Pp. 473-474.(c) The 1960 Act goes beyond a bare trust and permits a fair inference that the Government is subject to duties as a trustee and potentially liable in damages for breach. The statute expressly defines a fiduciary relationship in the provision that Fort Apache be held by the Government in trust for the Tribe, then proceeds to invest the United States with discretionary authority to make direct use of portions of the trust corpus. It is undisputed that the Government has to this day availed467Full Text of Opinion

1974_73-1270

MR. JUSTICE MARSHALL delivered the opinion of the Court.Petitioner Eugene Kelley was seriously injured when he fell from the top of a tri-level railroad car where he had been working. He sought recovery for his injuries from the respondent railroad under the Federal Employers' Liability Act (FELA), 35 Stat. 65, as amended, 45 U.S.C. §§ 51-60. Under the FELA, a covered railroad is liable for negligently causing the injury or death of any person "while he is employed" by the railroad. Although petitioner acknowledged that he was technically in the employ of a trucking company, rather than the railroad, he contended that his work was sufficiently under the control of the railroad to bring him within the Page 419 U. S. 320 coverage of the FELA. The District Court agreed, but the Court of Appeals for the Ninth Circuit reversed, 486 F.2d 1084 (1973), creating an apparent conflict with a previous decision of the Fourth Circuit, Smith v. Norfolk Western R. Co., 407 F.2d 501, cert. denied, 395 U.S. 979 (1969). [Footnote 1] We granted certiorari to resolve the conflict. 416 U.S. 935 (1974). We vacate the judgment and remand the case for further proceedings in the District Court.IAt the time of his accident, petitioner had worked for the Pacific Motor Trucking Co. (PMT), a wholly owned subsidiary of the Southern Pacific Co., for about eight years. [Footnote 2] PMT was engaged in various trucking enterprises, primarily in conjunction with the railroad operations of its parent company. Among PMT's functions was transporting new automobiles from respondent's San Francisco railyard to automobile dealers in the San Francisco area. As part of its contractual arrangement with Page 419 U. S. 321 the railroad, PMT would unload automobiles from Southern Pacific's "tri-level" auto-carrying flatcars when they arrived in the yard. It was petitioner's job to unhook the automobiles from their places on the railroad cars and to drive them into the yard for further transfer to PMT auto trailers. PMT maintained the unloading operation in the yard on a permanent basis. Although there were Southern Pacific employees in the area who would occasionally consult with PMT employees about the unloading process, PMT supervisors controlled and directed the day-to-day operations.On July 3, 1963, petitioner was unhooking automobiles in the usual fashion from the top level of one of the tri-level flatcars. A safety cable, normally affixed to the flatcar to protect against falls, was apparently not in place because of an equipment defect. During the unhooking process, petitioner fell from the top of the car and suffered a disabling injury. He subsequently received workmen's compensation payments from PMT. Shortly before the three-year FELA statute of limitations had run, he brought suit against the respondent, [Footnote 3] claiming it had been negligent in failing to maintain the safety cable in its proper place and in proper working order.In his complaint, petitioner alleged that he was employed by the respondent railroad within the meaning of the FELA. After a six-day hearing, the District Court, sitting as trier of fact, [Footnote 4] ruled in petitioner's favor on the employment question. The job of unloading Page 419 U. S. 322 automobiles was the railroad's responsibility, the court found, "pursuant to its contractual responsibilities to the shippers and its tariff responsibilities." In addition, the court found that the railroad supplied the necessary ramps and owned the area in which the PMT employees worked. The responsibility for supervision and control of the unloading operations was respondent's, the court concluded, even though "the exercise thereof was executed by employees of Pacific Motor Trucking Company." In sum, the court found that PMT was serving generally as the railroad's agent; PMT employees were agents of the railroad for the purposes of the unloading operation, and because the work being performed by petitioner was "in fulfillment of a nondelegable duty of defendant Southern Pacific Company," the relationship between petitioner and the railroad was sufficient to bring him within the coverage of the FELA. After this resolution of the employment issue, the railroad stipulated to its negligence, the parties agreed to set damages at $200,000, and the trial court entered judgment for petitioner in that amount.The Court of Appeals observed that the District Court had not found that petitioner was "employed" by the railroad, either permanently or at the time of his accident. The court noted that the "while employed" clause of the FELA requires a finding not just of agency, but of a master-servant relationship between the rail carrier and the FELA plaintiff. Concluding that the District Court had applied an unduly broad test for FELA liability, the Court of Appeals reversed the District Court's judgment.IIPetitioner insists that the District Court in effect made a factual finding of employment, and that the Court of Appeals erred in upsetting that finding. Of course, even Page 419 U. S. 323 if the District Court made such a finding of employment after applying the proper principles of law, that would not be the end of the matter. Under Fed.Rule Civ.Proc. 52(a), an appellate court must set aside the trial court's findings if it concludes that they are "clearly erroneous." See United States v. United States Gypsum Co., 333 U. S. 364, 333 U. S. 394-395 (1948). We need not reach the question whether any of the District Court's findings in this case were clearly erroneous, however, since we agree with the Court of Appeals that the trial court applied an erroneous legal standard in holding that the plaintiff was within the reach of the FELA. United States v. Singer Mfg. Co., 374 U. S. 174, 374 U. S. 194 n. 9 (1963).The heart of the District Court's analysis was its conclusion that the "traditional agency relationship" between respondent and PMT, in conjunction with the master-servant relationship between PMT and petitioner, was sufficient under the circumstances of this case to bring petitioner under the coverage of the Act. But this Court has repeatedly required more than that to satisfy the "while employed" clause of the FELA. From the beginning, the standard has been proof of a master-servant relationship between the plaintiff and the defendant railroad. See Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84, 237 U. S. 94 (1915); Hull v. Philadelphia & Reading R. Co., 252 U. S. 475, 252 U. S. 479 (1920); Baker v. Texas & Pacific R. Co., 359 U. S. 227, 359 U. S. 228 (1959).In an early FELA case, this Court noted that the words "employee" and "employed" in the statute were used in their natural sense, and were "intended to describe the conventional relation of employer and employe." Robinson, supra, at 237 U. S. 94. In Baker, supra, the Court reaffirmed that for the purposes of the FELA the question of employment, or master-servant status, was to be determined by reference to common law principles. The Page 419 U. S. 324 Court in Baker referred to sections of the Restatement (Second) of Agency dealing with the borrowed servant doctrine and the general master-servant relationship as a guideline for analysis and proper jury instructions. [Footnote 5] Section 220(1) of the Restatement defines a servant as"a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control."In § 220(2), the Restatement recites various factors that are helpful in applying that definition. While that section is directed primarily at determining whether a particular bilateral arrangement is properly characterized as a master-servant or independent contractor relationship, it can also be instructive in analyzing the three-party relationship between two employers and a worker.Under common law principles, there are basically three methods by which a plaintiff can establish his "employment" with a rail carrier for FELA purposes even while he is nominally employed by another. First, the employee could be serving as the borrowed servant of the railroad at the time of his injury. See Restatement (Second) of Agency § 227; Linstead v. Chesapeake & Ohio R. Co., 276 U. S. 28 (1928). Second, he could be deemed to be acting for two masters simultaneously. See Restatement § 226; Williams v. Pennsylvania R. Co., 313 F.2d 203, 209 (CA2 1963). Finally, he could be a subservant of a company that was, in turn, a servant of the railroad. See Restatement § 5(2); Schroeder v. Pennsylvania R. Co., 397 F.2d 452 (CA7 1968). Page 419 U. S. 325Nothing in the District Court's findings suggests that petitioner was sufficiently under the control of respondent to be either a borrowed servant of the railroad or a dual servant of the railroad and PMT. [Footnote 6] The District Court's findings come closest to suggesting a subservant relationship running from the railroad through PMT to petitioner. But even that theory fails on the findings in the trial court, since those findings did not establish the master-servant relationship between respondent and PMT necessary to render petitioner a subservant of the railroad.The District Court found that PMT employees exercised supervision and control over the unloading operations, although the railroad bore the "responsibility" for those functions. On these facts, the District Court was plainly correct in concluding that PMT was an agent of the railroad. But a finding of agency is not tantamount to a finding of a master-servant relationship. See Restatement (Second) of Agency § 2. The finding that the railroad was "responsible" for the unloading operations is significantly weaker than would be a finding that it controlled or had the right to control the physical conduct of the PMT employees in the course of their unloading operations. The railroad would satisfy the District Court's "responsibility" test whenever it agreed to perform a service Page 419 U. S. 326 and subsequently engaged another company to perform that service for it on its premises. The "control or right to control" test, by contrast, would be met only if it were shown that the role of the second company was that of a conventional common law servant. [Footnote 7] Accordingly, we agree with the Court of Appeals that the District Court's test for FELA coverage was too broad.IIIThe dissenters argue that, even if the District Court erred in defining the applicable legal standard, we should reverse the Court of Appeals and reinstate the judgment of the District Court. The facts found by the District Court, they contend, satisfied the requirements of the "while employed" clause, even under the proper test. We disagree.As we noted in 419 U. S. the District Court's findings concerning the contractual relationship between PMT and the railroad fall far short of compelling the conclusion that Kelley was employed by Southern Pacific. The court's other factual determinations add no more force to the claim. The findings that Kelley's crew worked most of the time on the railroad's premises and that railroad employees were responsible for checking safety conditions Page 419 U. S. 327 on the tri-level cars reflect the fact that the activities of the two companies were closely related and necessarily had to be coordinated. Railroad employees tending the cars and PMT employees unloading them naturally had substantial contact with one another. In addition, Southern Pacific supervisory personnel were occasionally in the area where PMT conducted its unloading operations, and from time to time would advise or consult with PMT employees and supervisors. But the trial court did not find that Southern Pacific employees played a significant supervisory role in the unloading operation or, more particularly, that petitioner was being supervised by Southern Pacific employees at the time of his injury. [Footnote 8] Nor did the court find that Southern Pacific employees had any general right to control the activities of petitioner and the other PMT workers. [Footnote 9]The two companies were sufficiently distinct in organization and responsibility that there was no apparent overlap in the supervisory ranks. Indeed, the labor contract Page 419 U. S. 328 between the Teamsters and PMT expressly provided that the PMT employees would be subject only to the control of PMT supervisors. In light of the analysis in this Court's previous cases, the District Court's findings clearly fail to establish that petitioner was "employed" by the railroad.In Robinson v. Baltimore & Ohio R. Co., supra, the petitioner was an employee of the Pullman Company, serving as porter in charge of a Pullman car that was hauled by the respondent railroad. Although the Pullman employees worked closely with railroad employees, and although the Pullman car was an integral part of the railroad operation, the Court held that that was not enough to make petitioner an employee of the railroad for the purposes of the Act. Even the petitioner's responsibility for taking tickets or fares of passengers boarding the Pullman car at night was not enough to make him a servant of the railroad. This service was merely an accommodation to the railroad, not a demonstration of the railroad's right to control the conduct of the Pullman employee. The Court stated that, at the time the Act was passed,"[i]t was well known that there were on interstate trains persons engaged in various services for other masters. Congress, familiar with this situation, did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the Act."237 U.S. at 237 U. S. 94. The Pullman company, like PMT in this case, selected its own employees, and it"defined their duties. fixed and paid their wages, directed and supervised the performance of their tasks, and placed and removed them at its pleasure."Id. at 237 U. S. 93.In the following year, the Court was again faced with the question whether a particular worker was an employee of the railroad that had caused his death, or whether he Page 419 U. S. 329 was an independent contractor. Chicago, R I. & P. R. Co. v. Bond, 240 U. S. 449 (1916). The decedent had been engaged by the railroad to procure coal and wood and to perform various other services at its loading center in Enid, Okla. Although the railroad directed the decedent's activities to some extent, the Court observed that those directions were simply reformulations of the flexible obligations assumed by the decedent under his contract, not "a detailed control of the actions of [decedent] or those of his employees." Id. at 240 U. S. 455-456. The arrangement by which decedent had been engaged to provide services for the railroad, the Court concluded, was"not the engagement of a servant submitting to subordination and subject momentarily to superintendence, but of one capable of independent action, to be iudged of by its results."Id. at 240 U. S. 456.In Bond, the Court relied on the earlier decision in Standard Oil Co. v. Anderson, 212 U. S. 215 (1909), to clarify the distinction between a contractor and an employee. In that case, a longshoreman was injured when a winch operator negligently lowered a load of oil cases on him. Petitioner, the general employer of the negligent winchman, argued that, at the time of the accident, the winchman was the borrowed servant of the stevedoring company, the longshoreman's employer. The Court, however, held that the winchman was not a servant of the stevedore, but the servant of an independent contractor. The general employer had not furnished the employee to the stevedore, the Court wrote; it had furnished only the employee's work. Focusing on the locus of the power to control and direct the servant's work, the Court emphasized the importance of distinguishing between"authoritative direction and control and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking."Id. at 212 U. S. 222. Cf. Page 419 U. S. 330 Denton v. Yazoo & Mississippi Valley R. Co., 284 U. S. 305 (1932).In this case, as in Anderson, the evidence of contacts between Southern Pacific employees and PMT employees may indicate not direction or control, but rather the passing of information and the accommodation that is obviously required in a large and necessarily coordinated operation. See Del Vecchio v. Pennsylvania R. Co., 233 F.2d 2, 5 (CA3 1956). The informal contacts between the two groups must assume a supervisory character before the PMT employees can be deemed pro hac vice employees of the railroad. [Footnote 10] Page 419 U. S. 331The factual setting of Baker v. Texas & Pacific R. Co., supra, provides an instructive contrast. Petitioner in Baker was nominally employed by a contractor who was engaged in maintenance work for the railroad. At trial, he introduced evidence to show that his work was part of the maintenance task of the railroad and that the material he was pumping into the roadbed was supplied by the railroad. Most significantly, there was evidence to show that"a supervisor, admittedly in the employ of the railroad, in the daily course of the work exercised directive control over the details of the job performed by the individual workmen, including the precise point where the mixture should be pumped, when they should move to the next point, and the consistency of the mixture."359 U.S. at 359 U. S. 228-229. Because the evidence of control or right to control was in serious dispute, the Court held that the case must be permitted to go to the jury. As we have indicated, however, the District Court found no such day-to-day supervision that would support a finding that petitioner and his coworkers were, in effect, employees of the railroad.IVWe part company with the Court of Appeals on the propriety of a remand. The court rendered judgment for respondent apparently because it determined that the District Court had found that there was no employment relationship, or because it had decided on its own that any such finding would have been clearly erroneous. Yet, while the District Court's failure to adopt petitioner's Page 419 U. S. 332 proposed findings of fact relating to employment is of some significance in determining what that court deemed to be the requirements of the "while employed" clause, see n 6, supra, it is not enough to constitute a reviewable finding that there was no master-servant relationship between petitioner and the railroad. Similarly, while the Court of Appeals may have meant to suggest that, in its view, the record could not support a finding of employment, that suggestion is not developed in its opinion, and we think the best course at this point is to require the trier of fact to reexamine the record in light of the proper legal standard. Accordingly, we vacate the judgment of the Court of Appeals and remand the case to that Court with instructions to remand the case to the District Court for further findings in accordance with this opinion.Vacated and remanded

U.S. Supreme CourtKelley v. Southern Pacific Co., 419 U.S. 318 (1974)Kelley v. Southern Pacific Co.No. 73-1270Argued October 22, 1974Decided December 23, 1974419 U.S. 318SyllabusPetitioner, an employee of a trucking company (PMT), was injured while transferring automobiles in respondent's railyard from respondent's railroad car to a PMT auto trailer, an operation that PMT performed under contract for respondent. Although respondent's employees occasionally consulted with PMT employees about the operation, PMT supervisors controlled the day-to-day unloading process. Petitioner, claiming that he was sufficiently under respondent's control to bring him under the coverage of the Federal Employers' Liability Act (FELA), which makes a covered railroad liable for negligently causing injury or death to any person "while he is employed" by the railroad, and that the accident resulted from respondent's negligence, brought suit against respondent under the FELA. The District Court found that the relationship between petitioner and respondent sufficed to make the FELA apply, the court having concluded that: PMT was serving generally as respondent's agent; PMT employees were respondent's agents for purposes of the unloading operation; and the work performed by petitioner fulfilled a nondelegable duty of respondent. The Court of Appeals reversed, having concluded that the District Court's test for FELA liability was too broad.Held:1. The "while employed" language of the FELA requires not only that the FELA plaintiff be an agent of the rail carrier but the carrier's servant, and here the District Court erred in holding that petitioner (who according to the court's findings was neither a borrowed servant of respondent nor a dual servant of respondent and PMT) came within the coverage of the FELA, since those findings also did not establish a master-servant relationship between respondent and PMT that would be necessary to render petitioner a subservant of the railroad. Nor was the District Court's conclusion that respondent was "responsible" for the unloading operation tantamount to a finding that the railroad controlled or had the right to control the physical conduct of PMT employees like petitioner in the unloading operation. Pp. 419 U. S. 322-326. Page 419 U. S. 3192. The District Court's findings that petitioner worked most of the time on respondent's premises and that respondent's employees were responsible for checking the safety conditions on the railroad cars showed only that the two companies' operations were closely related, not that respondent's employees supervised the unloading operation, and consequently the FELA's "while employed" requirement remains unsatisfied even under the proper test. Pp. 419 U. S. 326-331.3. The record should be reexamined by the District Court in light of the proper legal standard. Pp. 419 U. S. 331-332.486 F.2d 1084, vacated and remanded.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, post, p. 332. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 419 U. S. 333. BLACKMUN, J., filed a dissenting opinion, post, p. 419 U. S. 341.

1955_410

MR. JUSTICE MINTON delivered the opinion of the Court.Twentieth Century Airlines, Inc., was issued a letter of registration as a large irregular air carrier by the Civil Aeronautics Board in 1947. For some reason, beginning in 1951, it conducted its business under the name of North American Airlines. On March 3, 1952, it amended its articles of incorporation so as legally to change its name to North American Airlines, Inc. By letter dated March 11, 1952, it requested the CAB to reissue its letter of registration in the new corporate name. The Board took no action on that request, but rather, in August, 1952, adopted an Economic Regulation requiring every irregular carrier, after November 15, 1952, to do business in the name in which its letter of registration was issued. 14 CFR § 291.28. The Board explained that, under the Regulation, it would allow continued use of a different name to which good will had become attached, except where use of such name constitutes a violation of § 411 of the Civil Aeronautics Act, 52 Stat. 1003, as amended, 66 Stat. 628, 49 U.S.C. § 491, which prohibits unfair or deceptive commercial practices and unfair methods of competition. 17 Fed.Reg. 7809.On October 6, 1952, respondent applied for permission to continue use of its name, "North American Airlines." Petitioner, American Airlines, on October 17, 1952, filed a memorandum with the Board requesting denial of North American's application for the reasons, among others, that use of the name "North American" infringed upon its long established trade name, "American," and constituted an unfair method of competition in violation of § 411 of Page 351 U. S. 81 the Act. The Board, as authorized by § 411, on its own motion, instituted an investigation and hearing into whether there was a violation of § 411 by North American. It consolidated with that proceeding an investigation and hearing into the matter of North American's application for change of name in its letter of registration. American was granted leave to intervene in the consolidated proceeding.After extensive hearings, the Board found that respondent's use of the name "North American" in the air transportation industry, in which it competed with American, had caused "substantial public confusion," which was "likely to continue" and which constituted "an unfair or deceptive practice and an unfair method of competition within the meaning of Section 411." Docket Nos. 5774 and 5928 (Nov. 4, 1953), 14-15 mimeo. It found that the public interest required elimination of the use of the name, and accordingly it denied the application of North American and ordered it to"cease and desist from engaging in air transportation under the name 'North American Airlines, Inc.,' 'North American Airlines,' 'North American,' or any combination of the word 'American.'"Id. at 15-16. On petition for review by North American, the Court of Appeals for the District of Columbia set aside the Board's order. 97 U.S.App.D.C. 85, 228 F.2d 432. American, having been admitted as a party below by intervention, sought, and we granted, certiorari. 350 U.S. 894.As we understand its opinion, the Court of Appeals set aside the order because the public interest in this proceeding was inadequate to justify exercise of the Board's jurisdiction under § 411. Although the court was critical of the finding of "substantial public confusion," it did not, on its disposition of the case, expressly disturb that or any other of the Board's findings. For the purposes of review here, we will accept the findings, and there is no cause Page 351 U. S. 82 for this Court to review the evidence. Universal Camera Corp. v. Labor Board, 340 U. S. 474, has no application in the present posture of the case before us. The questions then presented are whether confusion between the parties' trade names justified a proceeding by the Board to protect the public, and whether the kind of confusion found by the Board could support a conclusion of a violation of the statute by respondent.This is a case of first impression under § 411. That section provides that"The Board may, upon its own initiative or upon complaint . . . if it considers that such action by it would be in the interest of the public, investigate and determine whether any air carrier . . . has been or is engaged in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof."If the Board finds that the carrier is so engaged, "it shall order such air carrier . . . to cease and desist from such practices or methods of competition." Section 411 was modeled closely after § 5 of the Federal Trade Commission Act, * which similarly prohibits "unfair methods of competition in commerce, and unfair or deceptive acts or practices" and provides for issuance of a complaint "if it shall appear to the Commission that a proceeding by it . . . would be to the interest of the public." 38 Stat. 719, as amended, 15 U.S.C. § 45. We may profitably look to judicial interpretation of § 5 as an aid in the resolution of the questions raised here under § 411. Page 351 U. S. 83It should be noted at the outset that a finding as to the "interest of the public" under both § 411 and § 5 is not a prerequisite to the issuance of a cease and desist order as such. Rather, consideration of the public interest is made a condition upon the assumption of jurisdiction by the agency to investigate trade practices and methods of competition and determine whether or not they are unfair. Thus, this Court has held that, under § 5, the Federal Trade Commission may not employ its powers to vindicate private rights, and that whether or not the facts, on complaint or as developed, show the public interest to be sufficiently "specific and substantial" to authorize a proceeding by the Commission is a question subject to judicial review. Federal Trade Commission v. Klesner, 280 U. S. 19. See also Federal Trade Commission v. R. F. Keppel & Bro., Inc., 291 U. S. 304; Federal Trade Commission v. Royal Milling Co., 288 U. S. 212.In the Klesner case, two District of Columbia retailers, with a long history of acrimonious personal and business relations, were both operating stores called the "Shade Shop." This Court held that the public interest merely in resolving their private unfair competition dispute would not justify the Commission in issuing a complaint. The courts of law are open to competitors for the settlement of their private legal rights, one against the other. The Board, under a mandate from Congress, is charged with the protection of the public interest as affected by practices of carriers in the field of air transportation. In exercising our function of review of the Board's jurisdiction to protect the public interest by a proceeding which may be generated from facts also giving rise to a private dispute, we must take account of the significant differences between § 5 and § 411. Section 5 is concerned with purely private business enterprises which cover the full spectrum of economic activity. On the Page 351 U. S. 84 other hand, the air carriers here conduct their business under a regulated system of limited competition. The business so conducted is of especial and essential concern to the public, as is true of all common carriers and public utilities. Finally, Congress has committed the regulation of this industry to an administrative agency of special competence that deals only with the problems of the industry.The practices of the competitors here clashed in a field where Congress was specifically concerned to protect the public interest. Demonstrated confusion of the public as to the origin of major air transportation services may be of obvious national public concern. The criteria which the Board employed to determine whether the confusion here created a problem of concern to the public are contained in the following quotation from its report:". . . the record is convincing that the public interest requires this action in order to prevent further public confusion between respondent and intervenor due to similarity of names. The maintenance of high standards in dealing with the public is expected of common carriers, and the public has a right to be free of the inconveniences which flow from confusion between carriers engaging in the transportation of persons by air. The speed of air travel may well be diminished when passengers check in for flights with the wrong carrier, or attempt to retrieve baggage from the wrong carrier, or attempt to purchase transportation from the wrong carrier, or direct their inquiries to the wrong carrier. Friends, relatives, or business associates planning to meet passengers or seeking information on delayed arrivals are subject to annoyance or worse when confused as to the carrier involved. The proper handling of complaints from members of the public is impeded Page 351 U. S. 85 by confusion as to the carrier to whom the complaint should be presented. The transportation itself may differ from what the confused purchaser had anticipated (e.g., in terms of equipment), even though the time and place of arrival may be about the same. It is obvious that public confusion between air carriers operating between the same cities is adverse to the public interest. . . ."Docket Nos. 5774 and 5928 (Nov. 4, 1953), 12-13 (mimeo).Under § 411, it is the Board that speaks in the public interest. We do not sit to determine independently what is the public interest in matters of this kind, committed as they are to the judgment of the Board. We decide only whether, in determining what is the public interest, the Board has stayed within its jurisdiction and applied criteria appropriate to that determination. The Board has done that in the instant case. Considerations of the high standards required of common carriers in dealing with the public, convenience of the traveling public, speed, and efficiency in air transport, and protection of reliance on a carrier's equipment are all criteria which the Board in its judgment may properly employ to determine whether the public interest justifies use of its powers under § 411.It is argued that respondent's use of the name "North American" cannot amount to an unfair or deceptive practice or an unfair method of competition authorizing the Board's order within § 411. "Unfair or deceptive practices or unfair methods of competition," as used in § 411, are broader concepts than the common law idea of unfair competition. See Federal Trade Commission v. R. F. Keppel & Bro., Inc., supra; Federal Trade Commission v. Raladam Co., 283 U. S. 643, 283 U. S. 648. The section is concerned not with punishment of wrongdoing or protection of injured competitors, but rather with protection of the public interest. See Federal Trade Commission v. Klesner, supra, at 280 U. S. 27-28. Page 351 U. S. 86 The courts have held, in construing § 5 of the Trade Commission Act, that the use of a trade name that is similar to that of a competitor, which has the capacity to confuse, or deceive the public, may be prohibited by the Commission. Federal Trade Commission v. Algoma Lumber Co., 291 U. S. 67; Juvenile Shoe Co. v. Federal Trade Commission, 289 F. 57. And see Pep Boys -- Manny, Moe & Jack, Inc. v. Federal Trade Commission, 122 F.2d 158, where the confusing name was not that of any competitor. The Board found that respondent knowingly adopted a trade name that might well cause confusion. But it made no findings that the use of the name was intentionally deceptive or fraudulent, or that the competitor, American Airlines, was injured thereby. Such findings are not required of the Trade Commission under § 5, and there is no reason to require them of the Civil Aeronautics Board under § 411. Federal Trade Commission v. Algoma Lumber Co., supra, at 291 U. S. 81; Eugene Dietzgen Co. v. Federal Trade Commission, 142 F.2d 321, 327; D.D.D. Corp. v. Federal Trade Commission, 125 F.2d 679, 682; Gimbel Bros., Inc. v. Federal Trade Commission, 116 F.2d 578, 579; Federal Trade Commission v. Balme, 23 F.2d 615, 621. See also S.Rep. No. 221, 75th Cong., 1st Sess. 2.The Board had jurisdiction to inquire into the methods of competition presented here, and its evidentiary findings concerned confusion of the type which can support a finding of violation of § 411. The judgment of the Court of Appeals must therefore be reversed. However, since we do not understand the court to have decided whether the Board's findings were supported by substantial evidence on the record as a whole, the case is remanded to the Court of Appeals for further proceedings in the light of this opinion.Reversed

U.S. Supreme CourtAmerican Airlines, Inc. v. North American Airlines, Inc., 351 U.S. 79 (1956)American Airlines, Inc. v. North American Airlines, Inc.No. 410Argued March 6-7, 1956Decided April 23, 1956351 U.S. 79SyllabusIn a proceeding under § 411 of the Civil Aeronautics Act, the Civil Aeronautics Board found that respondent's use of the name "North American" in the air transportation industry, in which it competed with American Airlines, had caused "substantial public confusion" by causing persons to check in at the wrong carrier, attempt to purchase transportation from the wrong carrier, meet flights of the wrong carrier, and otherwise, that such public confusion was "likely to continue" and was an unfair method of competition within the meaning of § 411. It further found that the public interest required elimination of the use of the name, and it ordered respondent to cease and desist from engaging in air transportation under the name of "North American Airlines" or any combination of the word "American."Held:1. The Board applied criteria appropriate to a determination of whether a proceeding by it in this case would be in the "interest of the public," as required by § 411, and it had jurisdiction to inquire into the methods of competition presented here and to determine whether they constituted a violation of the Act. Pp. 351 U. S. 80-85.2. The Board's evidentiary findings concerned confusion of the type which can support a finding of violation of § 411. Pp. 351 U. S. 85-86.3. However, since this Court does not understand the Court of Appeals to have decided whether the Board's findings were supported by substantial evidence on the record as a whole, the case is remanded to that Court for further proceedings in the light of this opinion. P. 351 U. S. 86.9 U.S.App.D.C. 85, 228 F.2d 432, reversed and remanded. Page 351 U. S. 80

1984_83-859

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether law enforcement agents violated the Fourth Amendment when they conducted a warrantless search, based on probable cause, of a fully mobile "motor home" located in a public place.IOn May 31, 1979, Drug Enforcement Agency Agent Robert Williams watched respondent, Charles Carney, approach Page 471 U. S. 388 a youth in downtown San Diego. The youth accompanied Carney to a Dodge Mini Motor Home parked in a nearby lot. Carney and the youth closed the window shades in the motor home, including one across the front window. Agent Williams had previously received uncorroborated information that the same motor home was used by another person who was exchanging marihuana for sex. Williams, with assistance from other agents, kept the motor home under surveillance for the entire one and one-quarter hours that Carney and the youth remained inside. When the youth left the motor home, the agents followed and stopped him. The youth told the agents that he had received marihuana in return for allowing Carney sexual contacts.At the agents' request, the youth returned to the motor home and knocked on its door; Carney stepped out. The agents identified themselves as law enforcement officers. Without a warrant or consent, one agent entered the motor home and observed marihuana, plastic bags, and a scale of the kind used in weighing drugs on a table. Agent Williams took Carney into custody and took possession of the motor home. A subsequent search of the motor home at the police station revealed additional marihuana in the cupboards and refrigerator.Respondent was charged with possession of marihuana for sale. At a preliminary hearing, he moved to suppress the evidence discovered in the motor home. The Magistrate denied the motion, upholding the initial search as a justifiable search for other persons, and the subsequent search as a routine inventory search.Respondent renewed his suppression motion in the Superior Court. The Superior Court also rejected the claim, holding that there was probable cause to arrest respondent, that the search of the motor home was authorized under the automobile exception to the Fourth Amendment's warrant requirement, and that the motor home itself could be seized without a warrant as an instrumentality of the crime. Respondent Page 471 U. S. 389 then pleaded nolo contendere to the charges against him, and was placed on probation for three years.Respondent appealed from the order placing him on probation. The California Court of Appeal affirmed, reasoning that the vehicle exception applied to respondent's motor home. 117 Cal. App. 3d 36, 172 Cal. Rptr. 430 (1981).The California Supreme Court reversed the conviction. 34 Cal. 3d 597, 668 P.2d 807 (1983). The Supreme Court did not disagree with the conclusion of the trial court that the agents had probable cause to arrest respondent and to believe that the vehicle contained evidence of a crime; however, the court held that the search was unreasonable because no warrant was obtained, rejecting the State's argument that the vehicle exception to the warrant requirement should apply. [Footnote 1] That court reached its decision by concluding that the mobility of a vehicle "is no longer the prime justification for the automobile exception; rather, the answer lies in the diminished expectation of privacy which surrounds the automobile.'" Id. at 605, 668 P.2d at 811. The California Supreme Court held that the expectations of privacy in a motor home are more like those in a dwelling than in an automobile because the primary function of motor homes is not to provide transportation but to "provide the occupant with living quarters." Id. at 606, 668 P.2d at 812.We granted certiorari, 465 U.S. 1098 (1984). We reverse. Page 471 U. S. 390IIThe Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This fundamental right is preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer. There are, of course, exceptions to the general rule that a warrant must be secured before a search is undertaken; one is the so-called "automobile exception" at issue in this case. This exception to the warrant requirement was first set forth by the Court 60 years ago in Carroll v. United States, 267 U. S. 132 (1925). There, the Court recognized that the privacy interests in an automobile are constitutionally protected; however, it held that the ready mobility of the automobile justifies a lesser degree of protection of those interests. The Court rested this exception on a long-recognized distinction between stationary structures and vehicles:"[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."Id. at 267 U. S. 153 (emphasis added).The capacity to be "quickly moved" was clearly the basis of the holding in Carroll, and our cases have consistently recognized ready mobility as one of the principal bases of the automobile exception. See, e.g., Cooper v. California, 386 U. S. 58, 386 U. S. 59 (1967); Chambers v. Maroney, 399 U. S. 42, 399 U. S. 52 (1970); Cady v. Dombrowski, 413 U. S. 433, 413 U. S. 442 (1973); Page 471 U. S. 391 Cardwell v. Lewis, 417 U. S. 583, 417 U. S. 588 (1974); South Dakota v. Opperman, 428 U. S. 364, 428 U. S. 367 (1976). In Chambers, for example, commenting on the rationale for the vehicle exception, we noted that "the opportunity to search is fleeting since a car is readily movable." 399 U.S. at 399 U. S. 51. More recently, in United States v. Ross, 456 U. S. 798, 456 U. S. 806 (1982), we once again emphasized that "an immediate intrusion is necessary" because of "the nature of an automobile in transit. . . ." The mobility of automobiles, we have observed, "creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible." South Dakota v. Opperman, supra, at 429 U. S. 367.However, although ready mobility alone was perhaps the original justification for the vehicle exception, our later cases have made clear that ready mobility is not the only basis for the exception. The reasons for the vehicle exception, we have said, are twofold. 428 U.S. at 428 U. S. 367."Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office."Ibid.Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception. See, e.g., Cady v. Dombrowski, supra. In some cases, the configuration of the vehicle contributed to the lower expectations of privacy; for example, we held in Cardwell v. Lewis, supra, at 9417 U.S. 590590, that, because the passenger compartment of a standard automobile is relatively open to plain view, there are lesser expectations of privacy. But even when enclosed "repository" areas have been involved, we have concluded that the lesser expectations of privacy warrant application of the exception. We have applied the exception in the context of a locked car trunk, Cady v. Dombrowski, supra, a sealed package in a car trunk, Ross, supra, a closed compartment under the dashboard, Chambers Page 471 U. S. 392 v. Maroney, supra, the interior of a vehicle's upholstery, Carroll, supra, or sealed packages inside a covered pickup truck, United States v. Johns, 469 U. S. 478 (1985).These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways. Cady v. Dombrowsk, supra, at 413 U. S. 440-441. As we explained in South Dakota v. Opperman, an inventory search case:"Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order."428 U.S. at 428 U. S. 368.The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically,"individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate's prior evaluation of those facts."Ross, supra, at 456 U. S. 806, n. 8. In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes -- temporary or otherwise -- the two justifications for the vehicle exception Page 471 U. S. 393 come into play. [Footnote 2] First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable.While it is true that respondent's vehicle possessed some, if not many of the attributes of a home, it is equally clear that the vehicle falls clearly within the scope of the exception laid down in Carroll and applied in succeeding cases. Like the automobile in Carroll, respondent's motor home was readily mobile. Absent the prompt search and seizure, it could readily have been moved beyond the reach of the police. Furthermore, the vehicle was licensed to "operate on public streets; [was] serviced in public places; . . . and [was] subject to extensive regulation and inspection." Rakas v. Illinois, 439 U. S. 128, 439 U. S. 154, n. 2 (1978) (POWELL, J., concurring). And the vehicle was so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle.Respondent urges us to distinguish his vehicle from other vehicles within the exception because it was capable of functioning as a home. In our increasingly mobile society, many vehicles used for transportation can be and are being used not only for transportation but for shelter, i.e., as a "home" or "residence." To distinguish between respondent's motor home and an ordinary sedan for purposes of the vehicle exception would require that we apply the exception depending upon the size of the vehicle and the quality of its appointments. Moreover, to fail to apply the exception to vehicles Page 471 U. S. 394 such as a motor home ignores the fact that a motor home lends itself easily to use as an instrument of illicit drug traffic and other illegal activity. In United States v. Ross, 456 U.S. at 456 U. S. 822, we declined to distinguish between "worthy" and "unworthy" containers, noting that "the central purpose of the Fourth Amendment forecloses such a distinction." We decline today to distinguish between "worthy" and "unworthy" vehicles which are either on the public roads and highways, or situated such that it is reasonable to conclude that the vehicle is not being used as a residence.Our application of the vehicle exception has never turned on the other uses to which a vehicle might be put. The exception has historically turned on the ready mobility of the vehicle, and on the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for transportation. [Footnote 3] These two requirements for application of the exception ensure that law enforcement officials are not unnecessarily hamstrung in their efforts to detect and prosecute criminal activity, and that the legitimate privacy interests of the public are protected. Applying the vehicle exception in these circumstances allows the essential purposes served by the exception to be fulfilled, while assuring that the exception will acknowledge legitimate privacy interests.IIIThe question remains whether, apart from the lack of a warrant, this search was unreasonable. Under the vehicle exception to the warrant requirement, "[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize." Ross, supra, at 456 U. S. 823. Page 471 U. S. 395This search was not unreasonable; it was plainly one that the magistrate could authorize if presented with these facts. The DEA agents had fresh, direct, uncontradicted evidence that the respondent was distributing a controlled substance from the vehicle, apart from evidence of other possible offenses. The agents thus had abundant probable cause to enter and search the vehicle for evidence of a crime notwithstanding its possible use as a dwelling place.The judgment of the California Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtCalifornia v. Carney, 471 U.S. 386 (1985)California v. CarneyNo. 83-859Argued October 30, 1984Decided May 13, 1985471 U.S. 386SyllabusA Drug Enforcement Administration (DEA) agent, who had information that respondent's mobile motor home was being used to exchange marihuana for sex, watched respondent approach a youth who accompanied respondent to the motor home, which was parked in a lot in downtown San Diego. The agent and other agents then kept the vehicle under surveillance, and stopped the youth after he left the vehicle. He told them that he had received marihuana in return for allowing respondent sexual contacts. At the agents' request, the youth returned to the motor home and knocked on the door; respondent stepped out. Without a warrant or consent, one agent then entered the motor home and observed marihuana. A subsequent search of the motor home at the police station revealed additional marihuana, and respondent was charged with possession of marihuana for sale. After his motion to suppress the evidence discovered in the motor home was denied, respondent was convicted in California Superior Court on a plea of nolo contendere. The California Court of Appeal affirmed. The California Supreme Court reversed, holding that the search of the motor home was unreasonable and that the motor vehicle exception to the warrant requirement of the Fourth Amendment did not apply, because expectations of privacy in a motor home are more like those in a dwelling than in an automobile.Held: The warrantless search of respondent's motor home did not violate the Fourth Amendment. Pp. 471 U. S. 390-395.(a) When a vehicle is being used on the highways or is capable of such use and is found stationary in a place not regularly used for residential purposes, the two justifications for the vehicle exception come into play. First, the vehicle is readily mobile, and, second, there is a reduced expectation of privacy stemming from the pervasive regulation of vehicles capable of traveling on highways. Here, while respondent's vehicle possessed some attributes of a home, it clearly falls within the vehicle exception. To distinguish between respondent's motor home and an ordinary sedan for purposes of the vehicle exception would require that the exception be applied depending on the size of the vehicle and the quality of its appointments. Moreover, to fail to apply the exception to vehicles such as a motor home would ignore the fact that a motor home lends itself easily to use as an instrument of illicit drug traffic or other illegal activity. Pp. 471 U. S. 390-394. Page 471 U. S. 387(b) The search in question was not unreasonable. It was one that a magistrate could have authorized if presented with the facts. The DEA agents, based on uncontradicted evidence that respondent was distributing a controlled substance from the vehicle, had abundant probable cause to enter and search the vehicle. Pp. 471 U. S. 394-395.34 Cal. 3d 597, 668 P.2d 807, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 471 U. S. 395.

1991_91-615

770 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATIONSyllabus2. The stipulated factual record in this case makes clear that, under this Court's precedents, New Jersey was not permitted to include the gain realized on the sale of Bendix's ASARCO stock in its apportionable tax base. There is no serious contention that any of the three Woolworth factors were present. Functional integration and economies of scale could not exist because, as the parties stipulated, the companies were unrelated business enterprises. Moreover, there was no centralization of management, since Bendix did not own enough ASARCO stock to have the potential to operate ASARCO as an integrated division of a single unitary business and since even potential control is insufficient. Woolworth, supra, at 362. Contrary to the State Supreme Court's view, the fact that an intangible asset was acquired pursuant to a long-term corporate strategy of acquisitions and investment does not turn an otherwise passive investment into an integral operational one. See Container Corp., 463 U. S., at 180, n. 19. The fact that a transaction was undertaken for a business purpose does not change its character. Little is revealed about whether ASARCO was run as part of Bendix's unitary business by the fact that Bendix may have intended to use the proceeds of its gain to acquire another company. Nor can it be maintained that Bendix's shares amounted to a short-term investment of working capital analogous to a bank account or a certificate of deposit. See ibid. pp. 788-790.125 N. J. 20, 592 A. 2d 536, reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which WHITE, STEVENS, SCALIA, and SOUTER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C. J., and BLACKMUN and THOMAS, JJ., joined, post, p. 790.Walter Hellerstein reargued the cause for petitioner.With him on the briefs were Prentiss Willson, Jr., Harry R. Jacobs, Robyn H. Pekala, Andrew L. Frey, Kenneth S. Geller, Charles Rothfeld, and Bennett Boskey. Andrew L. Frey argued the cause for petitioner on the original argument. With him on the briefs were Messrs. Willson, Hellerstein, and Jacobs, Evan M. Tager, and Mr. Boskey.Mary R. Hamill, Deputy Attorney General of New Jersey, reargued the cause for respondent. With her on the briefs771were Robert J. Del Tufo, Attorney General, Joseph L. Yannotti, Assistant Attorney General, and Sarah T. Darrow, Deputy Attorney General. **Briefs of amici curiae urging reversal were filed for Coca-Cola Co. et al. by Mark L. Evans, James P. Tuite, Alan I. Horowitz, and Anthony F. Shelley; for the Committee on State Taxation by Amy Eisenstadt; for General Motors Corp. et al. by Jerome B. Libin and Kathryn L. Moore; for the Tax Executives Institute, Inc., by Timothy J. McCormally; and for Williams Cos., Inc., by Rose Mary Ham and Henry G. Will.Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Timothy G. Laddish, Assistant Attorney General, and Benjamin F. Miller, and by the Attorneys General for their respective States as follows:Charles E. Cole of Alaska, Robert A. Butterworth of Florida, Larry EchoHawk of Idaho, Robert T. Stephan of Kansas, Michael E. Carpenter of Maine, Marc Racicot of Montana, John P. Arnold of New Hampshire, Nicholas Spaeth of North Dakota, Ernest D. Preate, Jr., of Pennsylvania, R. Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, and James E. Doyle of Wisconsin; for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, and Thomas A. Barnico, Assistant Attorney General, Richard Blumenthal, Attorney General of Connecticut, J. Joseph Curran, Attorney General of Maryland, and Mary Sue Terry, Attorney General of Virginia; for the City of New York by Q Peter Sherwood and Edward F. X. Hart; and for the Multistate Tax Commission by Alan H. Friedman, Paull Mines, and Scott D. Smith.Briefs of amici curiae were filed for the State of Alabama et al. by Mary Sue Terry, Attorney General of Virginia, H. Lane Kneedler, Chief Deputy Attorney General, Gail Starling Marshall, Deputy Attorney General, Gregory E. Lucyk and N. Pendleton Rogers, Senior Assistant Attorneys General, and Barbara H. Vann and Martha B. Brissette, Assistant Attorneys General, Peter W Low, Jimmy Evans, Attorney General of Alabama, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Gale Norton, Attorney General of Colorado, John Payton, Corporation Counsel of the District of Columbia, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Elizabeth Barrett-Anderson, Attorney General of Guam, Warren Price III, Attorney General of Hawaii, Linley E. Pearson, Attorney General of Indiana, Chris Gorman, Attorney General of Kentucky, Richard Ieyoub, Attorney General of Louisiana, Frank J. Kelley, Attorney General of Michigan, Mike Moore, Attorney General of Mississippi, Marc Racicot, Attorney General of Montana, Don Stenberg, Attor-772772 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATIONJUSTICE KENNEDY delivered the opinion of the Court. Among the limitations the Constitution sets on the power of a single State to tax the multistate income of a nondomiciliary corporation are these: There must be "a 'minimal connection' between the interstate activities and the taxing State," Mobil Oil Corp. v. Commissioner of Taxes ofVt., 445 U. S. 425, 436-437 (1980) (quoting Moorman Mfg. Co. v. Bair, 437 U. S. 267, 273 (1978)), and there must be a rational relation between the income attributed to the taxing State and the intrastate value of the corporate business. 445 U. S., at 437. Under our precedents, a State need not attempt to isolate the intrastate income-producing activities from the rest of the business; it may tax an apportioned sum of the corporation's multistate business if the business is unitary. E. g., ASARCO Inc. v. Idaho Tax Comm'n, 458 U. S. 307, 317ney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Tom Udall, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Lee Fisher, Attorney General of Ohio, Susan B. Loving, Attorney General of Oklahoma, Mark Barnett, Attorney General of South Dakota, Dan Morales, Attorney General of Texas, Paul Van Dam, Attorney General of Utah, Rosalie S. Ballentine, Attorney General of the Virgin Islands, Ken Eikenberry, Attorney General of Washington, Mario J. Palumbo, Attorney General of West Virginia, James E. Doyle, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming; for the State of Connecticut et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Gerald Langbaum and Andrew H. Baida, Assistant Attorneys General, Richard Blumenthal, Attorney General of Connecticut, Bonnie J. Campbell, Attorney General of Iowa, Scott Harshbarger, Attorney General of Massachusetts, Hubert H. Humphrey III, Attorney General of Minnesota, Ernest D. Preate, Jr., Attorney General of Pennsylvania, and James E. O'Neil, Attorney General of Rhode Island; for American General Corp. by Roy E. Crawford, Russell D. Uzes, and Karen A. Bain; for American Home Products Corp. et al. by William L. Goldman and Anne G. Batter; for Amway Corp. et al. by Timothy B. Dyk and Edward K. Bilich; for Chevron Corp. by Toni Rembe, Jeffrey M. Vesely, and C. Douglas Floyd; and for the Financial Institutions State Tax Coalition by Philip M. Plant and Haskell Edelstein.773(1982). A State may not tax a nondomiciliary corporation's income, however, if it is "derive[d] from 'unrelated business activity' which constitutes a 'discrete business enterprise.'" Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207, 224 (1980) (quoting Mobil Oil, supra, at 442, 439). This case presents the questions: (1) whether the unitary business principle remains an appropriate device for ascertaining whether a State has transgressed its constitutional limitations; and if so, (2) whether, under the unitary business principle, the State of New Jersey has the constitutional power to include in petitioner's apportionable tax base certain income that, petitioner maintains, was not generated in the course of its unitary business.IPetitioner Allied-Signal, Inc., is the successor-in-interest to the Bendix Corporation (Bendix). The present dispute concerns Bendix's corporate business tax liability to the State of New Jersey for the fiscal year ending September 30, 1981. Although three items of income were contested earlier, the controversy in this Court involves only one item: the gain of $211.5 million realized by Bendix on the sale of its 20.6% stock interest in ASARCO Inc. (ASARCO). The case was submitted below on stipulated facts, and we begin with a summary.During the times in question, Bendix was a Delaware corporation with its commercial domicile and corporate headquarters in Michigan. Bendix conducted business in all 50 States and 22 foreign countries. App. 154. Having started business in 1929 as a manufacturer of aviation and automotive parts, from 1970 through 1981, Bendix was organized in four major operating groups: automotive; aerospace/ electronics; industrial/energy; and forest products. Id., at 154-155. Each operating group was under separate management, but the chief executive of each group reported to the chairman and chief executive officer of Bendix. Id., at774774 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATION155. In this period Bendix's primary operations in New Jersey were the development and manufacture of aerospace products. App. 161.ASARCO is a New Jersey corporation with its principal offices in N ew York. It is one of the world's leading producers of nonferrous metals, treating ore taken from its own mines and ore it obtains from others. Id., at 163-164. From December 1977 through November 1978, Bendix acquired 20.6% of ASARCO's stock by purchases on the open market. Id., at 165. In the first half of 1981, Bendix sold its stock back to ASARCO, generating a gain of $211.5 million. Id., at 172. The issue before us is whether New Jersey can tax an apportionable part of this income.Our determination of the question whether the business can be called "unitary," see infra, at 788-789, is all but controlled by the terms of a stipulation between the taxpayer and the State. They stipulated: "During the period that Bendix held its investment in ASARCO, Bendix and ASARCO were unrelated business enterprises each of whose activities had nothing to do with the other." App. 169. Furthermore,"[p]rior to and after its investment in Asarco, no business or activity of Bendix (in New Jersey or otherwise), either directly or indirectly (other than the investment itself), was involved in the nonferrous metal production business or any other business or activity (in New Jersey or otherwise) in which Asarco was involved. On its part, Asarco had no business or activity (in New Jersey or otherwise) which, directly or indirectly, was involved in any of the businesses or activities (in New Jersey or otherwise) in which Bendix was involved. None of Asarco's activities, businesses or income (in New Jersey or otherwise) were related to or connected with Bendix's activities, business or income (in New Jersey or otherwise)." Id., at 164-165.775The stipulation gives the following examples of the independence of the businesses:"There were no common management, officers, or employees of Bendix and Asarco. There was no use by Bendix of Asarco's corporate plant, offices or facilities and no use by Asarco of Bendix's corporate plant, offices or facilities. There was no rent or lease of any property by Bendix from Asarco and no rent or lease of any property by Asarco from Bendix. Bendix and Asarco were each responsible for providing their own legal services, contracting services, tax services, finance services and insurance. Bendix and Asarco had separate personnel and hiring policies ... and separate pension and employee benefit plans. Bendix did not lend monies to Asarco and Asarco did not lend monies to Bendix. There were no joint borrowings by Bendix and Asarco. Bendix did not guaranty any of Asarco's debt and Asarco did not guaranty any of Bendix's debt. Asarco had no representative on Bendix's Board of Directors. Bendix did not pledge its Asarco stock. As far as can be determined there were no sales of product by Asarco itself to Bendix or by Bendix to Asarco. There were certain sales of product in the ordinary course of business by Asarco subsidiaries to Bendix but these sales were minute compared to Asarco's total sales .... These open market sales were at arms length prices and did not come about due to the Bendix investment in Asarco. There were no transfers of employees between Bendix and Asarco." Id., at 169-171.While Bendix held its ABARCa stock, ABARca agreed to recommend that two seats on the 14-member ABARCa Board of Directors be filled by Bendix representatives. The seats were filled by Bendix chief executive officer W. M. Agee and a Bendix outside director. Id., at 168. Nonetheless, "Bendix did not exert any control over Asarco." Ibid.776776 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATIONAfter respondent assessed Bendix for taxes on an apportioned amount which included in the base the gain realized upon Bendix's disposition of its ASARCa stock, Bendix sued for a refund in New Jersey Tax Court. The case was decided based upon the stipulated record we have described, and the Tax Court held that the assessment was proper. Bendix Corp. v. Taxation Div. Director, 10 N. J. Tax 46 (1988). The Appellate Division affirmed, Bendix Corp. v. Director, Div. of Taxation, 237 N. J. Super. 328, 568 A. 2d 59 (1989), and so, in turn, did the New Jersey Supreme Court, Bendix Corp. v. Director, Div. of Taxation, 125 N. J. 20, 592 A. 2d 536 (1991).The New Jersey Supreme Court held it was constitutional to consider the gain realized from the sale of the ASARCa stock as earned in Bendix's unitary business, drawing from our decision in Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 166 (1983), the principle that "the context for determining whether a unitary business exists has, as an overriding consideration, the exchange or transfer of value, which may be evidenced by functional integration, centralization of management, and economies of scale." 125 N. J., at 34, 592 A. 2d, at 543-544. The New Jersey Supreme Court went on to state: "The tests for determining a unitary business are not controlled, however, by the relationship between the taxpayer recipient and the affiliate generator of the income that becomes the subject of State tax." Id., at 35, 592 A. 2d, at 544. Based upon Bendix documents setting out corporate strategy, the court found that the acquisition and sale of ASARCa "went well beyond ... passive investments in business enterprises," id., at 36, 592 A. 2d, at 544, and Bendix "essentially had a business function of corporate acquisitions and divestitures that was an integral operational activity." Ibid. As support for its conclusion that the proceeds from the sale of the ASARCa stock were attributable to a unitary business, the New Jersey Supreme Court relied in part on the fact that Bendix intended to use those pro-777ceeds in what later proved to be an unsuccessful bid to acquire Martin Marietta, a company whose aerospace business, it was hoped, would complement Bendix's aerospace/ electronics business. Id., at 36, 592 A. 2d, at 545.We granted certiorari. 502 U. S. 977 (1991). At the initial oral argument in this case New Jersey advanced the proposition that all income earned by a nondomiciliary corporation could be apportioned by any State in which the corporation does business. To understand better the consequences of this theory we requested rebriefing and reargument. Our order asked the parties to address three questions:"1. Should the Court overrule ASARCO Inc. v. Idaho State Tax Comm'n, 458 U. S. 307 (1982), and F. W Woolworth Co. v. Taxation and Revenue Dept. of New Mexico, 458 U. S. 354 (1982)?"2. If ASARCO and Woolworth were overruled, should the decision apply retroactively?"3. If ASARCO and Woolworth were overruled, what constitutional principles should govern state taxation of corporations doing business in several states?" 503 U. S. 928 (1992).Because we give a negative answer to the first question, see infra, at 783-786, we need not address the second and third.IIThe principle that a State may not tax value earned outside its borders rests on the fundamental requirement of both the Due Process and Commerce Clauses that there be "some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax." Miller Brothers Co. v. Maryland, 347 U. S. 340, 344-345 (1954). The reason the Commerce Clause includes this limit is self-evident: In a Union of 50 States, to permit each State to tax activities outside its borders would have drastic conse-778778 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATIONquences for the national economy, as businesses could be subjected to severe multiple taxation. But the Due Process Clause also underlies our decisions in this area. Although our modern due process jurisprudence rejects a rigid, formalistic definition of minimum connection, we have not abandoned the requirement that, in the case of a tax on an activity, there must be a connection to the activity itself, rather than a connection only to the actor the State seeks to tax, see Quill Corp. v. North Dakota, ante, at 306-308. The constitutional question in a case such as Quill Corp. is whether the State has the authority to tax the corporation at all. The present inquiry, by contrast, focuses on the guidelines necessary to circumscribe the reach of the State's legitimate power to tax. We are guided by the basic principle that the State's power to tax an individual's or corporation's activities is justified by the "protection, opportunities and benefits" the State confers on those activities. Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940).Because of the complications and uncertainties in allocating the income of multistate businesses to the several States, we permit States to tax a corporation on an apportionable share of the multistate business carried on in part in the taxing State. That is the unitary business principle. It is not a novel construct, but one that we approved within a short time after the passage of the Fourteenth Amendment's Due Process Clause. We now give a brief summary of its development.When States attempted to value railroad or telegraph companies for property tax purposes, they encountered the difficulty that what makes such a business valuable is the enterprise as a whole, rather than the track or wires that happen to be located within a State's borders. The Court held that, consistent with the Due Process Clause, a State could base its tax assessments upon "the proportionate part of the value resulting from the combination of the means by which the business was carried on, a value existing to an779appreciable extent throughout the entire domain of operation." Adams Express Co. v. Ohio State Auditor, 165 U. S. 194, 220-221 (1897) (citing Western Union Telegraph Co. v. Attorney General of Massachusetts, 125 U. S. 530 (1888)); Massachusetts v. Western Union Telegraph Co., 141 U. S. 40 (1891); Maine v. Grand Trunk R. Co., 142 U. S. 217 (1891); Pittsburgh, c., C. & St. L. R. Co. v. Backus, 154 U. S. 421 (1894); Cleveland, c., C. & St. L. R. Co. v. Backus, 154 U. S. 439 (1894); Western Union Telegraph Co. v. Taggart, 163 U. S. 1 (1896); Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18 (1891).Adams Express recognized that the principles that permit a State to levy a tax on the capital stock of a railroad, telegraph, or sleeping car company by reference to its unitary business also allow proportional valuation of a unitary business in enterprises of other sorts. As the Court explained:"The physical unity existing in the former is lacking in the latter; but there is the same unity in the use of the entire property for the specific purpose, and there are the same elements of value arising from such use." 165 U. S., at 221.The unitary business principle was later permitted for state taxation of corporate income as well as property and capital. Thus, in Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 120-121 (1920), we explained:"The profits of the corporation were largely earned by a series of transactions beginning with manufacture in Connecticut and ending with sale in other States. In this it was typical of a large part of the manufacturing business conducted in the State. The legislature in attempting to put upon this business its fair share of the burden of taxation was faced with the impossibility of allocating specifically the profits earned by the processes conducted within its borders. It, therefore, adopted a method of apportionment which, for all that appears in this record, reached, and was meant to reach, only the profits earned within the State."780780 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATIONAs these cases make clear, the unitary business rule is a recognition of two imperatives: the States' wide authority to devise formulae for an accurate assessment of a corporation's intrastate value or income; and the necessary limit on the States' authority to tax value or income that cannot in fairness be attributed to the taxpayer's activities within the State. It is this second component, the necessity for a limiting principle, that underlies this case.As we indicated in Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S., at 442: "Where the business activities of the dividend payor have nothing to do with the activities of the recipient in the taxing State, due process considerations might well preclude apportionability, because there would be no underlying unitary business." The constitutional question becomes whether the income "derive[s] from 'unrelated business activity' which constitutes a 'discrete business enterprise.'" Exxon Corp. v. Department of Revenue of Wis., 447 U. S., at 224 (quoting Mobil Oil, supra, at 442,439).Although Mobil Oil and Exxon made clear that the unitary business principle limits the States' taxing power, it was not until our decisions in ASARCO Inc. v. Idaho Tax Comm'n, 458 U. S. 307 (1982), and F. W Woolworth Co. v. Taxation and Revenue Dept. of N. M., 458 U. S. 354 (1982), that we struck down a state attempt to include in the apportionable tax base income not derived from the unitary business. In those cases the States sought to tax unrelated business activity.The principal question in ASARCO concerned Idaho's attempt to include in the apportionable tax base of ASARCa certain dividends received from, among other companies, the Southern Peru Copper Corp. 458 U. S., at 309, 320. The analysis is of direct relevance for us because we have held that for constitutional purposes capital gains should be treated as no different from dividends. Id., at 330. The ASARCa in the 1982 case was the same company as the781ASARca here. It was one of four of Southern Peru's shareholders, owning 51.5% of its stock. Under an agreement with the other shareholders, ASARCa was prevented from dominating Southern Peru's board of directors. ASARCa had the right to appoint 6 of Southern Peru's 13 directors, while 8 votes were required for the passage of any resolution. Southern Peru was in the business of producing unrefined copper (a nonferrous ore), some of which it sold to its shareholders. ASARCa purchased approximately 35% of Southern Peru's output, at average representative trade prices quoted in a trade publication and over which neither Southern Peru nor ASARCa had any control. Id., at 320322. We concluded that "ASARCa's Idaho silver mining and Southern Peru's autonomous business [were] insufficiently connected to permit the two companies to be classified as a unitary business." Id., at 322.an the same day we decided ASARCO, we decided Woolworth. In that case, the taxpayer company was domiciled in New York and operated a chain of retail variety stores in the United States. In the company's apportionable state tax base, New Mexico sought to include earnings from four subsidiaries operating in foreign countries. The subsidiaries also engaged in chainstore retailing. 458 U. S., at 356-357. We observed that although the parent company had the potential to operate the subsidiaries as integrated divisions of a single unitary business, that potential was not significant if the subsidiaries in fact comprise discrete business operations. Id., at 362. Following the indicia of a unitary business defined in Mobil Oil, we inquired whether any of the three objective factors were present. The factors were: (1) functional integration; (2) centralization of management; and (3) economies of scale. 458 U. S., at 364. We found that "[e]xcept for the type of occasional oversight-with respect to capital structure, major debt, and dividends-that any parent gives to an investment in a subsidiary," id., at 369,782782 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATIONnone of these factors was present. The subsidiaries were found not to be part of a unitary business. Ibid.Our most recent case applying the unitary business principle was Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159 (1983). The taxpayer there was a vertically integrated corporation which manufactured custom-ordered paperboard packaging. Id., at 171. California sought to tax income it received from its wholly owned and mostly owned foreign subsidiaries, each of which was in the same business as the parent. Id., at 171-172. The foreign subsidiaries were given a fair degree of autonomy: They purchased only 1% of their materials from the parent, and personnel transfers from the parent to the subsidiaries were rare. Id., at 172. We recognized, however:"[I]n certain respects, the relationship between appellant and its subsidiaries was decidedly close. For example, approximately half of the subsidiaries' long-term debt was either held directly, or guaranteed, by appellant. Appellant also provided advice and consultation regarding manufacturing techniques, engineering, design, architecture, insurance, and cost accounting to a number of its subsidiaries, either by entering into technical service agreements with them or by informal arrangement. Finally, appellant occasionally assisted its subsidiaries in their procurement of equipment, either by selling them used equipment of its own or by employing its own purchasing department to act as an agent for the subsidiaries." Id., at 173.Based on these facts, we found that the taxpayer had not met its burden of showing by '" "clear and cogent evidence" , " that the State sought to tax extraterritorial values. Id., at 175, 164 (quoting Exxon Corp., supra, at 221, in turn quoting Butler Brothers v. McColgan, 315 U. S. 501, 507 (1942), in turn quoting Norfolk & Western R. Co. v. North Carolina ex rel. Maxwell, 297 U. S. 682, 688 (1936)).783In the course of our decision in Container Corp., we reaffirmed that the constitutional test focuses on functional integration, centralization of management, and economies of scale. 463 U. S., at 179 (citing Woolworth, supra, at 364; Mobil Oil, supra, at 438). We also reiterated that a unitary business may exist without a flow of goods between the parent and subsidiary, if instead there is a flow of value between the entities. 463 U. S., at 178. The principal virtue of the unitary business principle of taxation is that it does a better job of accounting for "the many subtle and largely unquantifiable transfers of value that take place among the components of a single enterprise" than, for example, geographical or transactional accounting. Id., at 164-165 (citing Mobil Oil, 445 U. S., at 438-439).Notwithstanding the Court's long experience in applying the unitary business principle, New Jersey and several amici curiae argue that it is not an appropriate means for distinguishing between income generated within a State and income generated without. New Jersey has not persuaded us to depart from the doctrine of stare decisis by overruling our cases that announce and follow the unitary business standard. In deciding whether to depart from a prior decision, one relevant consideration is whether the decision is "unsound in principle." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546 (1985). Another is whether it is "unworkable in practice." Ibid. And, of course, reliance interests are of particular relevance because "[a]dherence to precedent promotes stability, predictability, and respect for judicial authority." Hilton v. South Carolina Public Railways Comm'n, 502 U. S. 197, 202 (1991) (citing Vasquez v. Hillery, 474 U. S. 254, 265-266 (1986)). See also Quill Corp. v. North Dakota, ante, at 316 (industry's reliance justifies adherence to precedent); ante, at 320 (SCALIA, J., concurring in part and concurring in judgment) (same). Against this background we address the arguments of New Jersey and its amici.784784 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATIONNew Jersey contends that the unitary business principle must be abandoned in its entirety, arguing that a nondomiciliary State should be permitted "to apportion all the income of a separate multistate corporate taxpayer." Brief for Respondent on Reargument 27. According to New Jersey, the unitary business principle does not reflect economic reality, while its proposed theory does. We are not convinced.New Jersey does not appear to dispute the basic proposition that a State may not tax value earned outside its borders. It contends instead that all income of a corporation doing any business in a State is, by virtue of common ownership, part of the corporation's unitary business and apportionable. See Tr. of Oral Arg. 25-26 (Apr. 22, 1992). New Jersey's sweeping theory cannot be reconciled with the concept that the Constitution places limits on a State's power to tax value earned outside of its borders. To be sure, our cases give States wide latitude to fashion formulae designed to approximate the in-state portion of value produced by a corporation's truly multistate activity. But that is far removed from New Jersey's theory that any business in the State, no matter how small or unprofitable, subjects all of a corporation's out-of-state income, no matter how discrete, to apportionment.According to New Jersey, Brief for Respondent on Reargument 11, there is no logical distinction between short-term investment of working capital, which all concede is apportionable, see Reply Brief for Petitioner on Reargument 4-5, and n. 3; Tr. of Oral Arg. 7-8 (Apr. 22, 1992); Container Corp., supra, at 180, n. 19, and all other investments. The same point was advanced by the dissent in ASARCO, 458 U. S., at 337 (opinion of O'CONNOR, J.). New Jersey's basic theory is that multistate corporations like Bendix regard all of their holdings as pools of assets, used for maximum long-term profitability, and that any distinction between operational and investment assets is artificial. We may assume, arguendo, that the managers of Bendix cared most about the785profits entry on a financial statement, but that state of mind sheds little light on the question whether in pursuing maximum profits they treated particular intangible assets as serving, on the one hand, an investment function, or, on the other, an operational function. See Container Corp., supra, at 180, n. 19. That is the relevant unitary business inquiry, one which focuses on the objective characteristics of the asset's use and its relation to the taxpayer and its activities within the taxing State. It is an inquiry to which our cases give content, and which is necessary if the limits of the Due Process and Commerce Clauses are to have substance in a modern economy. In short, New Jersey's suggestion is not in accord with the well-established and substantial case law interpreting the Due Process and Commerce Clauses.Our precedents are workable in practice; indeed, New J ersey conceded as much. See Tr. of Oral Arg. 37-38 (Apr. 22, 1992). If lower courts have reached divergent results in applying the unitary business principle to different factual circumstances, that is because, as we have said, any number of variations on the unitary business theme "are logically consistent with the underlying principles motivating the approach," Container Corp., supra, at 167, and also because the constitutional test is quite fact sensitive.Indeed, if anything would be unworkable in practice, it would be for us now to abandon our settled jurisprudence defining the limits of state power to tax under the unitary business principle. State legislatures have relied upon our precedents by enacting tax codes which allocate intangible nonbusiness income to the domiciliary State, see App. to Brief for Petitioner on Reargument la-7a (collecting statutes). Were we to adopt New Jersey's theory, we would be required either to invalidate those statutes or authorize what would be certain double taxation. And, of course, we would defeat the reliance interest of those corporations that have structured their activities and paid their taxes based upon the well-established rules we here confirm. Difficult ques-786786 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATIONtions respecting the retroactive effect of our decision would also be presented. See James B. Beam Distilling Co. v. Georgia, 501 U. S. 529 (1991). New Jersey's proposal would disrupt settled expectations in an area of the law in which the demands of the national economy require stability.Not willing to go quite so far as New Jersey, some amici curiae urge us to modify, rather than abandon, the unitary business principle. See, e. g., Brief for Multistate Tax Commission as Amicus Curiae; Brief for Multistate Tax Commission as Amicus Curiae on Reargument; Brief for Chevron Corporation as Amicus Curiae. They urge us to hold that the Constitution does not require a unitary business relation between the payor and the payee in order for a State to apportion the income the payee corporation receives from an investment in the payor. Rather, they urge us to adopt as the constitutional test the standard set forth in the business income definition in § l(a) of the Uniform Division of Income for Tax Purposes Act (UDITPA), 7A U. L. A. 331, 336 (1985). Under UDITPA, "business income," which is apportioned, is defined as: "income arising from transactions and activity in the regular course of the taxpayer's trade or business and includes income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer's regular trade or business operations." UDITPA § l(a). "Non-business income," which is allocated, is defined as "all income other than business income." § l(e).In the abstract, these definitions may be quite compatible with the unitary business principle. See Container Corp., supra, at 167 (noting that most of the relevant provisions of the California statute under which we sustained the challenged tax there were derived from UDITPA). Furthermore, the unitary business principle is not so inflexible that as new methods of finance and new forms of business evolve it cannot be modified or supplemented where appropriate. It does not follow, though, that apportionment of all income787is permitted by the mere fact of corporate presence within the State; and New Jersey offers little more in support of the decision of the State Supreme Court.We agree that the payee and the payor need not be engaged in the same unitary business as a prerequisite to apportionment in all cases. Container Corp. says as much. What is required instead is that the capital transaction serve an operational rather than an investment function. 463 U. S., at 180, n. 19. Hence, in ASARCO, although we rejected the dissent's factual contention that the stock investments there constituted "interim uses of idle funds 'accumulated for the future operation of [the taxpayer's] ... business [operation],'" we did not dispute the suggestion that had that been so the income would have been apportionable. 458 U. S., at 325, n. 21.To be sure, the existence of a unitary relation between the payor and the payee is one means of meeting the constitutional requirement. Thus, in ASARCO and Woolworth we focused on the question whether there was such a relation. We did not purport, however, to establish a general requirement that there be a unitary relation between the payor and the payee to justify apportionment, nor do we do so today.It remains the case that "[i]n order to exclude certain income from the apportionment formula, the company must prove that 'the income was earned in the course of activities unrelated to [those carried out in the taxing] State.'" Exxon Corp. v. Department of Revenue of Wis., 447 U. S., at 223 (quoting Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S., at 439). The existence of a unitary relation between payee and payor is one justification for apportionment, but not the only one. Hence, for example, a State may include within the apportionable income of a nondomiciliary corporation the interest earned on short-term deposits in a bank located in another State if that income forms part of the working capital of the corporation's unitary business, notwithstanding the absence of a unitary relationship be-788788 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATIONtween the corporation and the bank. That circumstance, of course, is not at all presented here. See infra this page and 789.IIIApplication of the foregoing principles to the present case yields a clear result: The stipulated factual record now before us presents an even weaker basis for inferring a unitary business than existed in either ASARCO or Woolworth, making this an a fortiori case. There is no serious contention that any of the three factors upon which we focused in Woolworth were present. Functional integration and economies of scale could not exist because, as the parties have stipulated, "Bendix and Asarco were unrelated business enterprises each of whose activities had nothing to do with the other." App. 169. Moreover, because Bendix owned only 20.6% of ASARCO's stock, it did not have the potential to operate ASARCO as an integrated division of a single unitary business, and of course, even potential control is not sufficient. Woolworth, 458 U. S., at 362. There was no centralization of management.Furthermore, contrary to the view expressed below by the New Jersey Supreme Court, see 125 N. J., at 36-37, 592 A. 2d, at 544-545, the mere fact that an intangible asset was acquired pursuant to a long-term corporate strategy of acquisitions and dispositions does not convert an otherwise passive investment into an integral operational one. Indeed, in Container Corp. we noted the important distinction between a capital transaction that serves an investment function and one that serves an operational function. 463 U. S., at 180, n. 19 (citing Corn Products Refining Co. v. Commissioner, 350 U. S. 46, 50-53 (1955)). If that distinction is to retain its vitality, then, as we held in ASARCO, the fact that a transaction was undertaken for a business purpose does not change its character. 458 U. S., at 326. Idaho had argued that intangible income could be treated as earned in the course of a unitary business if the intangible property789which produced that income is "'acquired, managed or disposed of for purposes relating or contributing to the taxpayer's business.'" Ibid. (quoting Brief for Appellee 4). In rejecting the argument we observed:"This definition of unitary business would destroy the concept. The business of a corporation requires that it earn money to continue operations and to provide a return on its invested capital. Consequently all of its operations, including any investment made, in some sense can be said to be 'for purposes related to or contributing to the [corporation's] business.' When pressed to its logical limit, this conception of the 'unitary business' limitation becomes no limitation at all." 458 U. S., at 326.Apart from semantics, we see no distinction between the "purpose" test we rejected in ASARCO and the "ingrained acquisition-divestiture policy" approach adopted by the New Jersey Supreme Court. 125 N. J., at 36, 592 A. 2d, at 544. The hallmarks of an acquisition that is part of the taxpayer's unitary business continue to be functional integration, centralization of management, and economies of scale. Container Corp. clarified that these essentials could respectively be shown by: transactions not undertaken at arm's length, 463 U. S., at 180, n. 19; a management role by the parent that is grounded in its own operational expertise and operational strategy, ibid.; and the fact that the corporations are engaged in the same line of business, id., at 178. It is undisputed that none of these circumstances existed here.The N ew Jersey Supreme Court also erred in relying on the fact that Bendix intended to use the proceeds of its gain from the sale of ASARCa to acquire Martin Marietta. Even if we were to assume that Martin Marietta, once acquired, would have been operated as part of Bendix's unitary business, that reveals little about whether ASARCa was run as part of Bendix's unitary business. Nor can it be main-790790 ALLIED-SIGNAL, INC. v. DIRECTOR, DIV. OF TAXATIONO'CONNOR, J., dissentingtained that Bendix's shares of ASARCO stock, which it held for over two years, amounted to a short-term investment of working capital analogous to a bank account or certificate of deposit. See Container Corp., 463 U. S., at 180, n. 19; ASARCO, 458 U. S., at 325, n. 21.In sum, the agreed-upon facts make clear that under our precedents New Jersey was not permitted to include the gain realized on the sale of Bendix's ASARCO stock in the former's apportionable tax base.The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusALLIED-SIGNAL, INC., AS SUCCESSOR-IN-INTEREST TO BENDIX CORP. v. DIRECTOR, DIVISION OF TAXATIONCERTIORARI TO THE SUPREME COURT OF NEW JERSEY No. 91-615. Argued March 4, 1992-Reargued April 22, 1992Decided June 15, 1992In order for a State to tax the multistate income of a nondomiciliary corporation, there must be, inter alia, a minimal connection between the interstate activities and the taxing State, Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S. 425, 436-437, and a rational relation between the income attributed to the taxing State and the intrastate value of the corporate business, id., at 437. Rather than isolating the intrastate income-producing activities from the rest of the business, a State may tax a corporation on an apportioned sum of the corporation's multistate business if the business is unitary. E. g., ASARCO Inc. v. Idaho Tax Comm'n, 458 U. S. 307, 317. However, a State may not tax the nondomiciliary corporation's income if it is derived from unrelated business activity that constitutes a discrete business enterprise. Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207, 224. Petitioner is the successor-in-interest to the Bendix Corporation, a Delaware corporation. In the late 1970's Bendix acquired 20.6% of the stock of ASARCO Inc., a New Jersey corporation, and resold it to ASARCO in 1981, generating a $211.5 million gain. After respondent New Jersey tax official assessed Bendix for taxes on an apportioned amount which included in the base the gain realized from the stock disposition, Bendix sued for a refund in State Tax Court. The parties stipulated that, during the period that Bendix held its investment, it and ASARCO were unrelated business enterprises each of whose activities had nothing to do with the other, and that, although Bendix held two seats on ASARCO's board, it exerted no control over ASARCO. Based on this record, the court held that the assessment was proper, and the Appellate Division and the State Supreme Court both affirmed. The latter court stated that the tests for determining a unitary business are not controlled by the relationship between the taxpayer recipient and the affiliate generator of the income that is the subject of the tax, and concluded that Bendix essentially had a business function of corporate acquisitions and divestitures that was an integral operational activity.769Held:1. The unitary business principle remains an appropriate device for ascertaining whether a State has transgressed constitutional limitations in taxing a nondomiciliary corporation. Pp. 777-788.(a) The principle that a State may not tax value earned outside its borders rests on both Due Process and Commerce Clause requirements. The unitary business rule is a recognition of the States' wide authority to devise formulae for an accurate assessment of a corporation's intrastate value or income and the necessary limit on the States' authority to tax value or income that cannot fairly be attributed to the taxpayer's activities within a State. The indicia of a unitary business are nmctional integration, centralization of management, and economies of scale. F. W Woolworth Co. v. Taxation and Revenue Dept. of N. M., 458 U. S. 354, 364; Container Corp. of America v. Franchise Tax Ed., 463 U. S. 159,179. Pp.777-783.(b) New Jersey and several amici have not persuaded this Court to depart from the doctrine of stare decisis by overruling the cases that announce and follow the unitary business standard. New Jersey's sweeping theory-that all income of a corporation doing any business in a State is, by virtue of common ownership, part of the corporation's unitary business and apportionable-cannot be reconciled with the concept that the Constitution places limits on a State's power to tax value earned outside its borders, and is far removed from the latitude that is granted to States to fashion formulae for apportionment. This Court's precedents are workable in practice. Any divergent results in applying the unitary business principle exist because the variations in the unitary theme are logically consistent with the underlying principles motivating the approach and because the constitutional test is quite fact sensitive. In contrast, New Jersey's proposal would disrupt settled expectations in an area of the law in which the demands of the national economy require stability. Pp. 783-786.(c) The argument by other amici that the constitutional test for determining apportionment should turn on whether the income arises from transactions and activity in the regular course of the taxpayer's trade or business, with such income including income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer's regular trade or business operations, does not benefit the State here. While the payor and payee need not be engaged in the same unitary business, the capital transaction must serve an operational rather than an investment nmction. Container Corp., supra, at 180, n. 19. The existence of a unitary relation between the payor and the payee is but one justification for apportionment. pp. 786-788.770Full Text of Opinion

2000_99-7504

ers does not cut short the considerations that may guide the BOP in implementing § 3621(e)(2)(B). See INS v. Yueh-Shaio Yang, 519 U. S. 26, 31. The Court also rejects Lopez's argument that the BOP must not make categorical exclusions, but may rely only on case-by-case assessments. Even if a statutory scheme requires individualized determinations, which this scheme does not, the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority. E. g., Heckler v. Campbell, 461 U. S. 458, 467. The approach pressed by Lopez-case-by-case decisionmaking in thousands of cases each year-could invite favoritism, disunity, and inconsistency. Pp. 242-244.(c) The regulation excluding Lopez is permissible. The BOP reasonably concluded that an inmate's prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to life-endangering violence and therefore appropriately determines the early release decision. P. 244.186 F.3d 1092, affirmed.GINSBURG, J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, SOUTER, THOMAS, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and KENNEDY, J., joined, post, p. 245.Mark v: Meierhenry argued the cause and filed briefs for petitioner.Beth S. Brinkmann argued the cause for respondents.With her on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben. *JUSTICE GINSBURG delivered the opinion of the Court. Congress has provided, in 18 U. s. C. § 3621(e)(2)(B), that the Bureau of Prisons (Bureau or BOP) may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony, if the prisoner successfully completes a substance abuse program. The Bureau's implementing regula-*Stephen R. Sady filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.233tion categorically denies early release to prisoners whose current offense is a felony attended by "the carrying, possession, or use of a firearm." 28 CFR § 550.58(a)(1)(vi)(B) (2000). The validity of the Bureau's regulation is the question presented in this case. We hold, in accord with the Court of Appeals for the Eighth Circuit, that the regulation is a permissible exercise of the Bureau's discretion under 18 U. S. C. § 3621(e)(2)(B).I ATitle 18 U. S. C. § 3621 governs the imprisonment of persons convicted of federal crimes. In 1990, Congress amended the statute to provide that "[t]he Bureau shall ... make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." Pub. L. 101-647, § 2903, 104 Stat. 4913. Four years later, Congress again amended § 3621, this time to provide incentives for prisoner participation in BOP drug treatment programs. The incentive provision at issue reads: "The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve." Pub. L. 103-322, § 32001, 108 Stat. 1897 (codified at 18 U. S. C. § 3621(e)(2)(B)).In 1995, the Bureau published a rule to implement the early release incentive. 60 Fed. Reg. 27692-27695; 28 CFR § 550.58. Because the statute explicitly confined the incentive to prisoners convicted of "nonviolent offense[s]," 18 U. S. C. § 3621(e)(2)(B), the BOP ranked ineligible for early release all inmates currently incarcerated for "crime[s] of violence," 60 Fed. Reg. 27692. As explained in the Bureau's program statement, the BOP defined "crimes of violence" to include a drug trafficking conviction under 21 U. S. C. § 841,234if the offender received a two-level sentence enhancement under United States Sentencing Commission, Guidelines Manual (USSG) § 2D1.1(b)(1) (Nov. 2000), for possessing a dangerous weapon during commission of the drug offense. Bureau of Prisons Program Statement No. 5162.02, § 9 (July 24, 1995), reprinted in App. to Brief for Petitioner 17-18.1 "[E]xercising [its] discretion in reducing a sentence," the Bureau also excluded from early release eligibility inmates who had a prior conviction "for homicide, forcible rape, robbery, or aggravated assault." 60 Fed. Reg. 27692 (codified at 28 CFR § 550.58 (1995)).The Courts of Appeals divided over the validity of the Bureau's definition of crimes of violence to include drug offenses that involved possession of a firearm. A majority of Circuits, including the Eighth, held that § 3621(e)(2)(B) required the Bureau to look only to the offense of conviction (drug trafficking), and not to sentencing factors (firearm possession), in determining whether an offender was convicted of a "nonviolent offense," and was therefore eligible under the statute for the early release incentive. Martin v. Gerlinski, 133 F.3d 1076, 1079 (CA8 1998); see also Fristoe v. Thompson, 144 F.3d 627, 631 (CAlO 1998); Byrd v. Hasty, 142 F.3d 1395, 1398 (CAll 1998); Roussos v. Menifee, 122 F.3d 159, 164 (CA3 1997); Downey v. Crabtree, 100 F.3d 662, 668 (CA9 1996). The Fourth and Fifth Circuits, however, upheld the Bureau's classification of drug offenses attended by firearm possession as violent crimes. Pelissero v. Thompson, 1701 Title 21 U. S. C. §§841(a)(1) and (2) make it unlawful "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," or "to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance." Section 2D1.1(b)(1) of the Sentencing Guidelines provides for a two-level sentence enhancement if a dangerous weapon was possessed in connection with the commission of a drug offense. See USSG § 2Dl.l(b)(1) and comment., n. 3 (Nov. 2000).235F. 3d 442, 447 (CA4 1999); Venegas v. Henman, 126 F.3d 760, 763 (CA5 1997).This split among the Circuits prompted the Bureau in 1997 to publish the regulation now before the Court. See 62 Fed. Reg. 53690-53691. Like the 1995 rule, the current regulation excludes from early release eligibility offenders who possessed a firearm in connection with their offenses. In contrast to the earlier rule, however, the 1997 regulation does not order this exclusion by defining the statutory term "prisoner convicted of a nonviolent offense" or the cognate term "crimes of violence." Instead, the current regulation relies upon "the discretion allotted to the Director of the Bureau of Prisons in granting a sentence reduction to exclude [enumerated categories of] inmates." Id., at 53690. The regulation, designed to achieve consistent administration of the incentive, now provides:"(a) Additional early release criteria. (1) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release:"(iv) Inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses;"(vi) Inmates whose current offense is a felony:"(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon .... " 28 CFR § 550.58(a) (2000).In sum, the 1995 rule defined the statutory term "prisoner convicted of a nonviolent offense" to exclude categorically an inmate who possessed a firearm in connection with his offense. The current regulation categorically excludes such an inmate, not because § 3621(e)(2)(B) so mandates, but pur-236suant to the Bureau's asserted discretion to prescribe additional early release criteria. Drug traffickers who possess firearms when they engage in crimes are no longer characterized as "violent" offenders within the meaning of the statute. But they are bracketed, for sentence reduction purposes, with persons currently incarcerated for "nonviolent offense[s]" who in the past committed crimes qualifying as violent. The preconviction conduct of both armed offenders and certain redicivists, in the Bureau's view, "suggest[s] that they pose a particular risk to the public." Brief for Respondents 30.BIn 1997, petitioner Christopher A. Lopez was convicted of possession with intent to distribute methamphetamine, in violation of 21 U. S. C. § 841. Upon finding that Lopez possessed a firearm in connection with his offense, the District Court enhanced his sentence by two levels pursuant to USSG § 2D1.1(b)(1). Lopez is currently scheduled to be released from prison in June 2002.While incarcerated, Lopez requested substance abuse treatment. The Bureau found him qualified for its residential drug abuse program,2 but categorically ineligible, under 28 CFR § 550.58(a)(1)(vi), for early release. App. 3-7.When notified that he would not be a candidate for early release, Lopez challenged the BOP's determination by filing a petition for a writ of habeas corpus, under 28 U. S. C. § 2241, in the United States District Court for the District of South Dakota. The District Court granted the petition. In that court's view, the Bureau's 1997 regulation did not correct the infirmity the Eighth Circuit saw in the 1995 rule. See App. 17-18, and n. 4 (citing Martin, 133 F. 3d, at 1079). "[I]t is true," the District Court recognized, "that the BOP2 To qualify for residential substance abuse treatment, an inmate must be "determined by the Bureau of Prisons to have a substance abuse problem" and be "willing to participate in [the] program." 18 U. S. C. §§ 3621(e)(5)(B)(i), (ii).237may exercise a great deal of discretion in determining who among the eligible nonviolent offenders may be released." App. 17. But, the District Court held, the BOP may not categorically count out, "based upon sentencing factors or weapon possession," inmates whose underlying conviction was for a nonviolent crime. Id., at 18. Accordingly, the District Court ordered the BOP "to reconsider Lopez's eligibility for early release." Id., at 19.The Eighth Circuit reversed. Bellis v. Davis, 186 F.3d 1092 (1999). Section 3621(e)(2)(B), the Court of Appeals observed, "states only that the prison term of an inmate convicted of a nonviolent offense 'may be reduced by the Bureau of Prisons.'" Id., at 1094 (quoting 18 U. S. C. § 3621(e)(2)(B)). This discretionary formulation, the Eighth Circuit reasoned, allows the Bureau to devise a regime based on criteria that can be uniformly applied. The statute grants no entitlement to any inmate or class of inmates, the Court of Appeals noted, and it does not instruct the Bureau to make "individual, rather than categorical, assessments of eligibility for inmates convicted of nonviolent offenses." 186 F. 3d, at 1094. The court further reasoned that, to the extent Congress left a gap in § 3621(e)(2)(B) for the Bureau to fill, deference is owed the BOP's interpretation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-845, 866 (1984), so long as the interpretation is a permissible construction of the statute. 186 F. 3d, at 1095. The Bureau had elected to deny early release to certain categories of prisoners, notably recidivists and firearms carriers, whose "conduct indicates that they pose a serious risk to public safety." Ibid. That decision, the Court of Appeals concluded, "represents a manifestly permissible construction of the statute and an appropriate exercise of the BOP's discretion." Ibid.The Eighth Circuit next explained why its earlier decision in Martin did not control this case, which trains on the BOP's 1997 regulation: Martin addressed only the Bureau's 1995238attempt to interpret the statutory term "nonviolent offense"; the court in that case did not address "whether the BOP may, as an exercise of its discretion, ... look to sentencing factors in deciding which individuals among statutorily eligible inmates are appropriate candidates for early release." 186 F. 3d, at 1095. Facing that issue, the Court of Appeals held such an exercise of discretion proper. Ibid.The Courts of Appeals have again divided, now over the permissibility of the Bureau's current (1997) regulation. The Tenth and Eleventh Circuits, in line with their prior decisions invalidating the 1995 rule, have concluded that § 3621(e)(2)(B) permits no categorical exclusions of nonviolent offenders based on sentence enhancements. Ward v. Booker, 202 F.3d 1249, 1256-1257 (CAlO 2000); Kilpatrick v. Houston, 197 F.3d 1134, 1135 (CAll 1999). The Ninth Circuit, on the other hand, has agreed with the Eighth Circuit that precedent invalidating the 1995 rule does not control and that, in 1997, the BOP permissibly exercised its discretion under § 3621(e)(2)(B) when it categorically excluded from early release consideration inmates who possessed a firearm in connection with their nonviolent offenses. Bowen v. Hood, 202 F.3d 1211, 1218-1220 (2000).We granted certiorari to resolve this conflict, 529 U. s. 1086 (2000), and now affirm the judgment of the Eighth Circuit.IIThe statute provides: "The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons .... " 18 U. s. C. § 3621(e)(2)(B). The measure thus categorically denies early release eligibility to inmates convicted of violent offenses. The question we address is whether the Bureau has discretion to delineate, as an additional category of ineligible inmates, those whose current offense is a felony involving a firearm. 28 CFR § 550.58(a)(1)(vi)(B) (2000).239Lopez urges that the statute is unambiguous. He says that, by identifying a class of inmates ineligible for sentence reductions under § 3621(e)(2)(B), i. e., those convicted of a violent offense, Congress has barred the Bureau from identifying further categories of ineligible inmates. "If Congress wanted the BOP to reduce the categories of inmates eligible for the early release incentive (beyond the one identified by Congress), Congress would have specifically placed this grant of authority in the language of the statute." Brief for Petitioner 23. As to the statutory instruction that the Bureau "may" reduce sentences, Lopez initially suggests it is merely a grant of authority to the BOP to reduce a sentence that, prior to the enactment of § 3621(e)(2)(B), could not be reduced for successful completion of drug treatment: "The power granted was to give reductions not the power to decide who was eligible to receive reductions." Id., at 21. He alternately contends that the Bureau may take into account only "post-conviction conduct," not "pre-conviction conduct." Reply Brief 4-5. Acting on a case-by-case basis, Lopez asserts, the Bureau may "deny early release to those inmates [who] are statutorily eligible, but who do not deserve early release based on their conduct while in prison." Id., at 5. Under this reading, the Bureau may exercise discretion in denying early release, but only on an individual basis, taking account solely of postconviction conduct.In the Bureau's view, § 3621(e)(2)(B) establishes two prerequisites for sentence reduction: conviction of a nonviolent offense and successful completion of drug treatment. Brief for Respondents 18. If those prerequisites are met, the Bureau "may," but also may not, grant early release. The BOP opposes Lopez's argument that Congress barred the Bureau from imposing limitations categorically or on the basis of preconviction conduct. According to the Bureau, Congress simply "did not address how the Bureau should exercise its discretion within the class of inmates who satisfy the statutory prerequisites for early release." Id., at 23. Because240Congress left the question unaddressed, the Bureau maintains, the agency may exclude inmates either categorically or on a case-by-case basis, subject of course to its obligation to interpret the statute reasonably, see Chevron, 467 U. S., at 844, in a manner that is not arbitrary or capricious, see 5 U. S. C. § 706(2)(A). In this instance, the Bureau urges, it has acted reasonably: Its denial of early release to all inmates who possessed a firearm in connection with their current offense rationally reflects the view that such inmates displayed a readiness to endanger another's life; accordingly, in the interest of public safety, they should not be released months in advance of completing their sentences.3We agree with the Bureau's position. Preliminarily, we note conspicuous anomalies in Lopez's construction. If § 3621(e)(2)(B) functions not as a grant of discretion to determine early release eligibility, but both as an authorization and a command to reduce sentences, then Congress' use of the word "may," rather than "shall," has no significance. And if the BOP does have discretion to deny early release to certain inmates, but only based on individualized assessments of postconviction conduct, then the agency cannot categorically deny early release even to recidivists with prior (perhaps multiple) convictions for "homicide, forcible rape ... , or child sexual abuse offenses." 28 CFR § 550.58(a)(1)(iv) (2000). For that provision, as much as the exclusion of inmates imprisoned for offenses involving a firearm, see supra, at 235, entails no individualized determination based on postconviction conduct. Furthermore,3 The dissent straddles the fence, agreeing with Lopez that the statute addresses his case unambiguously, but disagreeing with him on precisely what the statute says. Lopez reads the statute to exclude Bureau consideration of pre conviction conduct, Reply Brief 4-5; the dissent reads the same words to permit BOP consideration of such conduct, post, at 248 (opinion of STEVENS, J.). These divergent readings hardly strengthen the dissent's assertion that Congress supplied a definitive answer to the "precise question" at issue. See post, at 245.241Lopez's position would confine the BOP's discretion under § 3621(e)(2)(B) to consideration of factors of the kind the Bureau already may consider in granting credit for "satisfactory behavior." See 18 U. S. C. § 3624(b)(1) ("a prisoner [serving a term of more than one year and less than life] may receive credit toward the service of the prisoner's sentence ... subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with such institutional disciplinary regulations").We turn now to the Bureau's reading of the statutory text, which instructs that the agency "may" reduce the sentence of a nonviolent offender who has successfully completed a drug treatment program. Congress' use of the permissive "may" in § 3621(e)(2)(B) contrasts with the legislators' use of a mandatory "shall" in the very same section. Elsewhere in § 3621, Congress used "shall" to impose discretionless obligations, including the obligation to provide drug treatment when funds are available. See 18 U. S. C. § 3621(e)(1) ("Bureau of Prisons shall, subject to the availability of appropriations, provide residential substance abuse treatment (and make arrangements for appropriate aftercare)"); see also, e. g., § 3621(b) ("The Bureau shall designate the place of the prisoner's imprisonment .... In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status."). Sensibly read, the grant of discretion in § 3621(e)(2)(B) to decide whether to reduce a sentence parallels the grant of discretion in § 3621(e)(2)(A) to retain a prisoner who successfully completes drug treatment "under such [custodial] conditions as the Bureau deems appropriate." § 3621(e)(2)(A). When an eligible prisoner successfully completes drug treatment, the Bureau thus has the authority, but not the duty, both to alter the prisoner's conditions of confinement and to reduce his term of imprisonment.The constraints Lopez urges-requiring the BOP to make individualized determinations based only on postconviction242conduct-are nowhere to be found in § 3621(e)(2)(B). Beyond instructing that the Bureau has discretion to reduce the period of imprisonment for a nonviolent offender who successfully completes drug treatment, Congress has not identified any further circumstance in which the Bureau either must grant the reduction, or is forbidden to do so. In this familiar situation, where Congress has enacted a law that does not answer "the precise question at issue," all we must decide is whether the Bureau, the agency empowered to administer the early release program, has filled the statutory gap "in a way that is reasonable in light of the legislature's revealed design." NationsBank of N. c., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 257 (1995) (citing Chevron, 467 U. S., at 842); see also Reno v. Koray, 515 U. S. 50, 61 (1995) (deferring to BOP's interpretation of statute). We think the agency's interpretation is reasonable both in taking account of preconviction conduct and in making categorical exclusions.First, as the dissent but not Lopez recognizes, see post, at 248, the Bureau need not blind itself to preconviction conduct that the agency reasonably views as jeopardizing life and limb. By denying eligibility to violent offenders, the statute manifests congressional concern for preconviction behavior-and for the very conduct leading to conviction. The Bureau may reasonably attend to these factors as well. Its regulation in this regard is kin to the Attorney General's order upheld in INS v. Yueh-Shaio Yang, 519 U. S. 26 (1996). That case involved a statute authorizing the Attorney General to waive deportation of aliens deportable for entry fraud. The Attorney General had refused to waive deportation for one alien because of "acts of fraud ... in connection with his entry." Id., at 27. The alien argued that because the statute made aliens who had committed entry fraud eligible for waiver, the Attorney General was precluded from taking such conduct into account "at all" in deciding whether to grant relief. Id., at 30. We rejected this view, stating243that the statute "establishes only the alien's eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace." Id., at 31. Similarly in this case, the statute's restriction of early release eligibility to nonviolent offenders does not cut short the considerations that may guide the Bureau. Just as the Attorney General permissibly considered aspects of entry fraud, even though entry fraud was a criterion of statutory eligibility, so the Bureau may consider aspects of the conduct of conviction, even though the conviction is a criterion of statutory eligibility.4We also reject Lopez's argument, echoed in part by the dissent, post, at 248-249, that the agency must not make categorical exclusions, but may rely only on case-by-case assessments.5 "[E]ven if a statutory scheme requires individual-4 Lopez contends that the Bureau's creation of additional hurdles to receipt of a sentence reduction defeats Congress' purpose of giving inmates an incentive to undergo drug treatment. Brief for Petitioner 24-29. In INS v. Yueh-Shaio Yang, 519 U. S. 26 (1996), we said that "[i]t could be argued that if the Attorney General determined that any entry fraud or misrepresentation, no matter how minor and no matter what the attendant circumstances, would cause her to withhold waiver, she would not be exercising the conferred discretion at all, but would be making a nullity of the statute." Id., at 31. In this case, it is plain that the Bureau has not rendered § 3621(e)'s incentive a nullity. A total of 6,559 inmates have received sentence reductions under § 3621(e)(2)(B), including 2,633 inmates in Fiscal Year 1999 alone. Bureau of Prisons, Substance Abuse Treatment Programs in the Federal Bureau of Prisons, Report to Congress 8 (Jan. 2000). Moreover, inmates who do not qualify for early release, like inmates who do, receive other incentives to participate in substance abuse treatment. See 28 CFR §§ 550.57(a)(1), (3) (2000) ("An inmate may receive incentives for his or her satisfactory involvement in the residential [drug treatment] program," including "[l]imited financial awards" and "[l]ocal institution incentives such as preferred living quarters or special recognition privileges.").5 The dissent appears to acknowledge that the Bureau may give "neardispositive weight to preconviction criteria." Post, at 249. To the extent the dissent would permit the BOP to accord heavy weight to preconviction244ized determinations," which this scheme does not, "the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority." American Hospital Assn. v. NLRB, 499 U. S. 606, 612 (1991); accord, Heckler v. Campbell, 461 U. S. 458, 467 (1983). The approach pressed by Lopez-case-by-case decisionmaking in thousands of cases each year, see supra, at 243, n. 4-could invite favoritism, disunity, and inconsistency. The Bureau is not required continually to revisit "issues that may be established fairly and efficiently in a single rulemaking proceeding." Heckler, 461 U. S., at 467.6Having decided that the Bureau may categorically exclude prisoners based on their preconviction conduct, we further hold that the regulation excluding Lopez is permissible. The Bureau reasonably concluded that an inmate's prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to lifeendangering violence and therefore appropriately determines the early release decision.7conduct, the structured "[i]ndividualized [BOP] consideration" the dissent would allow, post, at 249, seems but a shade different from the forthright categorical exclusion the Bureau has adopted.6 Amici urge reversal on the ground that the Bureau violated the notice and comment requirements of the Administrative Procedure Act when it published the 1997 regulation. Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 18-24. We decline to address this matter, which was not raised or decided below, or presented in the petition for certiorari. Blessing v. Freestone, 520 U. S. 329, 340,7 Lopez invokes the rule of lenity in urging us to accede to his interpretation. Because, as discussed above, the statute cannot be read to prohibit the Bureau from exercising its discretion categorically or on the basis of pre conviction conduct, his reliance on the rule is unavailing. See Caron v. United States, 524 U. S. 308, 316 (1998) ("The rule of lenity is not invoked by a grammatical possibility. It does not apply if the ambiguous reading relied on is an implausible reading of the congressional purpose.").245For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit isAffirmed

OCTOBER TERM, 2000SyllabusLOPEZ v. DAVIS, WARDEN, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 99-7504. Argued October 30, 2000-Decided January 10,2001Under 18 U. S. C. § 3621(e)(2)(B), "[t]he period a [federal] prisoner convicted of a nonviolent offense remains in custody after successfully completing a [substance abuse] treatment program may be reduced by the Bureau of Prisons" (BOP). The BOP therefore ranked ineligible for early release all inmates incarcerated for "crime[s] of violence." Initially, the BOP defined the term "crimes of violence" to include, among other offenses, a drug trafficking conviction under 21 U. S. C. § 841, if the offender received a two-level sentence enhancement under United States Sentencing Commission, Guidelines Manual (USSG) § 2Dl.l(b)(1), for possessing a dangerous weapon in connection with the drug offense. The Courts of Appeals thereafter divided over the validity of classifying drug offenses involving firearms possession as crimes of violence. The Circuit division prompted the BOP to issue the regulation now before the Court. That regulation denies early release to several categories of prisoners, including inmates whose current offense is a felony attended by "the carrying, possession, or use of a firearm." 28 CFR § 550.58(a)(1)(vi)(B). The BOP rests this denial not on a definition of "crimes of violence," but on the BOP's asserted discretion to prescribe additional early release criteria.Petitioner Lopez was convicted of possession with intent to distribute methamphetamine in violation of 21 U. S. C. § 841. Finding that Lopez possessed a firearm in connection with his offense, the District Court enhanced his sentence by two levels pursuant to USSG § 2Dl.l(b)(1). While incarcerated, Lopez requested substance abuse treatment. The BOP found him qualified for its treatment program, but categorically ineligible, under 28 CFR § 550.58(a)(1)(vi), for early release. Ordering the BOP to reconsider Lopez's eligibility for early release, the District Court held that the BOP may not categorically count out, based upon sentencing factors or weapon possession, inmates whose underlying conviction was for a nonviolent crime. The Eighth Circuit reversed. It reasoned that § 3621(e)(2)(B)'s "may ... reduc[e]" formulation allows the BOP discretion to devise a regime based on criteria that can be uniformly applied. To the extent Congress left a gap in § 3621(e)(2)(B) for the BOP to fill, the Court of Appeals stated, deference is owed the BOP's interpretation under Chevron U. S. A. Inc. v. Natural Resources231Defense Council, Inc., 467 U. S. 837,843-845,866, so long as the interpretation is a permissible construction of the statute. The BOP's decision to deny early release to drug traffickers who carry firearms, the court concluded, represents a manifestly permissible statutory construction and an appropriate exercise of discretion.Held: The regulation at issue is a permissible exercise of the BOP's discretion under § 3621(e)(2)(B). Pp. 238-245.(a) Section 3621(e)(2)(B) gives the BOP discretion to grant or deny a sentence reduction, but leaves open the manner in which the discretion is to be exercised. If an inmate meets the two statutory prerequisites for sentence reduction-conviction of a nonviolent offense and successful completion of drug treatment-then § 3621(e)(2)(B) instructs that the BOP "may," not that it must, grant early release. The statute's use of the permissive "may" contrasts with Congress' use of a mandatory "shall" elsewhere in § 3621 to impose discretionless obligations, e. g., the obligation to provide drug treatment when funds are available, see § 3621(e)(1). Sensibly read, § 3621(e)(2)(B)'s sentence reduction discretion parallels the grant of discretion in § 3621(e)(2)(A) to retain a prisoner who successfully completes drug treatment "under such [custodial] conditions as the [BOP] deems appropriate." The constraints Lopez urges-requiring the BOP to make individualized determinations based only on postconviction conduct-are nowhere to be found in § 3621(e)(2)(B). Beyond instructing that the BOP has discretion to reduce the period of imprisonment for a nonviolent offender who successfully completes drug treatment, Congress has not identified any further circumstance in which the BOP either must grant the reduction, or is forbidden to do so. In this familiar situation, where Congress has enacted a law that does not answer the precise question at issue, all this Court must decide is whether the BOP, the agency empowered to administer the early release program, has filled the statutory gap in a way that is reasonable in light of the Legislature's revealed design. E. g., NationsBank of N. c., N. A. v. Variable Annuity Life Ins. Co., 513(b) The BOP may categorically exclude prisoners from early release eligibility based on their pre conviction conduct. The Court rejects Lopez's argument that the BOP may take into account only postconviction conduct. The BOP need not blind itself to pre conviction conduct that the agency reasonably views as jeopardizing life and limb. By denying eligibility to violent offenders, the statute manifests congressional concern for pre conviction behavior-and for the very conduct leading to conviction. The BOP may reasonably attend to these factors as well. The statute's restriction of early release eligibility to nonviolent offend-232Full Text of Opinion

1979_78-904

POWELL, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 445 U. S. 344.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether a tender to named plaintiffs in a class action of the amounts claimed in their individual capacities, followed by the entry of judgment in their favor on the basis of that tender, over their objection, moots the case and terminates their right to appeal the denial of class certification.IRespondents, holders of credit cards issued on the "BankAmericard" plan by petitioner Deposit Guaranty National Bank, sued the bank in the United States District Court for the Southern District of Mississippi, seeking to represent both Page 445 U. S. 328 their own interests and those of a class of similarly aggrieved customers. The complaint alleged that usurious finance charges had been made against the accounts of respondents and a putative class of some 90,000 other Mississippi credit card holders.Respondents' cause of action was based on provisions of the National Bank Act, Rev.Stat. §§ 5197, 5198, as amended, 12 U.S.C. §§ 85, 86. Section 85 permits banks within the coverage of the Act to charge interest "at the rate allowed by the laws of the State, Territory, or District where the bank is located." In a case where a higher rate of interest than allowed has been "knowingly" charged, § 86 allows a person who has paid the unlawful interest to recover twice the total interest paid. [Footnote 1]The modern phenomenon of credit card systems is largely dependent on computers, which perform the myriad accounting functions required to charge each transaction to the customer's account. In this case, the bank's computer was programmed so that, on the billing date, it added charges, subtracted credits, added any finance charges due under the BankAmericard plan, and prepared the customers' statements. During the period in question, the bank made a monthly service charge of 1 1/2% on the unpaid balance of each account. However, customers were allowed 30 days within which to pay accounts without any service charge. If payment was not received within that time, the computer added to the customer's next bill 1 1/2% of the unpaid portion of the prior bill, which was shown as the new balance. The actual finance charges paid by each customer varied depending on the stream of transactions and the repayment plan selected. In addition, the effective annual interest rate paid by a customer would vary because the same 1 1/2% service charge was assessed Page 445 U. S. 329 against the unpaid balance no matter when the charged transactions occurred within the 30-60-day period prior to the billing date. This 1 1/2% monthly service charge is asserted to have been usurious because, under certain circumstances, the resulting effective annual interest rate allegedly exceeded the maximum interest rate permitted under Mississippi law.The District Court denied respondents' motion to certify the class, ruling that the circumstances did not meet all the requirements of Federal Rule of Civil Procedure 23(b)(3). [Footnote 2] The District Court certified the order denying class certification for discretionary interlocutory appeal, pursuant to 28 U.S.C. § 1292(b); the proceedings were stayed for 30 days pending possible appellate review of the denial of class certification.The United States Court of Appeals for the Fifth Circuit denied respondents' motion for interlocutory appeal. The bank then tendered to each named plaintiff, in the form of an "Offer of Defendants to Enter Judgment as by Consent and Without Waiver of Defenses or Admission of Liability," the maximum amount that each could have recovered. The amounts tendered to respondents Roper and Hudgins were $889.42 and $423.54, respectively, including legal interest and court costs. Respondents declined to accept the tender and made a counteroffer of judgment in which they attempted to reserve the right to appeal the adverse class certification ruling. This counteroffer was declined by the bank. Page 445 U. S. 330Based on the bank's offer, the District Court entered judgment in respondents' favor, over their objection, and dismissed the action. The bank deposited the amount tendered into the registry of the court, where it remains. At no time has any putative class member sought to intervene either to litigate the merits or to appeal the certification ruling. It appears that, by the time the District Court entered judgment and dismissed the case, the statute of limitations had run on the individual claims of the unnamed class members. [Footnote 3]When respondents sought review of the class certification ruling in the Court of Appeals, the bank argued that the case had been mooted by the entry of judgment in respondents' favor. In rejecting the bank's contention, the court relied in part on United Airlines, Inc. v. McDonald, 432 U. S. 385 (1977), in which we held that a member of the putative class could appeal the denial of class certification by intervention, after entry of judgment in favor of the named plaintiff, but before the statutory time for appeal had run. Roper v. Conserve, Inc., 578 F.2d 1106 (CA5 1978). Two members of the panel read Rule 23 as providing for a fiduciary-type obligation of the named plaintiffs to act in a representative capacity on behalf of the putative class by seeking certification at the outset of the litigation and by appealing an adverse certification ruling. In that view, the District Court also had a responsibility to ensure that any dismissal of the suit of the named plaintiffs did not prejudice putative class members. One member of the panel, concurring specially, limited the ruling on mootness to the circumstances of the case, i.e., that, after filing of a class action, the mere tender of an offer of settlement to the named plaintiffs, without acceptance, Page 445 U. S. 331 does not moot the controversy so as to prevent the named plaintiffs from appealing an adverse certification ruling.Having rejected the bank's mootness argument, the Court of Appeals reviewed the District Court's ruling on the class certification question. It concluded that all the requisites of Rule 23 had been satisfied, and accordingly reversed the adverse certification ruling; it remanded with directions to certify the class and for further proceedings.Certiorari was sought to review the holdings of the Court of Appeals on both mootness and class certification. We granted the writ, limited to the question of mootness, to resolve conflicting holdings in the Courts of Appeals. [Footnote 4] 440 U.S. 945.IIWe begin by identifying the interests to be considered when questions touching on justiciability are presented in the class action context. First is the interest of the named plaintiffs: their personal stake in the substantive controversy and their related right as litigants in a federal court to employ in appropriate circumstances the procedural device of a Rule 23 class action to pursue their individual claims. A separate consideration, distinct from their private interests, is the responsibility of named plaintiffs to represent the collective interests of the putative class. Two other interests are implicated: the rights of putative class members as potential intervenors, and the responsibilities of a district court to protect both the absent class and the integrity of the judicial process by monitoring the actions of the parties before it.The Court of Appeals did not distinguish among these distinct interests. It reviewed all possible interests that, in its view, had a bearing on whether an appeal of the denial of certification should be allowed. These diverse interests are interrelated, but we distinguish among them for purposes Page 445 U. S. 332 of analysis, and conclude that resolution of the narrow question presented requires consideration only of the private interest of the named plaintiffs.AThe critical inquiry, to which we now turn, is whether respondents' individual and private case or controversy became moot by reason of petitioner's tender or the entry of judgment in respondents' favor. Respondents, as holders of credit cards issued by the bank, claimed damages in their private capacities for alleged usurious interest charges levied in violation of federal law. Their complaint asserted that they had suffered actual damage as a result of illegal acts of the bank. The complaint satisfied the case or controversy requirement of Art. III of the Constitution.As parties in a federal civil action, respondents exercised their option as putative members of a similarly situated cardholder class to assert their claims under Rule 23. Their right to assert their own claims in the framework of a class action is clear. However, the right of a litigant to employ Rule 23 is a procedural right only, ancillary to the litigation of substantive claims. Should these substantive claims become moot in the Art. III sense, by settlement of all personal claims, for example, the court retains no jurisdiction over the controversy of the individual plaintiffs.The factual context in which this question arises is important. At no time did the named plaintiffs accept the tender in settlement of the case; instead, judgment was entered in their favor by the court without their consent, and the case was dismissed over their continued objections. [Footnote 5] Neither the Page 445 U. S. 333 rejected tender nor the dismissal of the action over plaintiffs' objections mooted the plaintiffs' claim on the merits so long as they retained an economic interest in class certification. Although a case or controversy is mooted in the Art. III sense upon payment and satisfaction of a final, unappealable judgment, a decision that is "final" for purposes of appeal does not absolutely resolve a case or controversy until the time for appeal has run. Nor does a confession of judgment by defendants on less than all the issues moot an entire case; other issues in the case may be appealable. We can assume that a district court's final judgment fully satisfying named plaintiffs' private substantive claims would preclude their appeal on that aspect of the final judgment; however, it does not follow that this circumstance would terminate the named plaintiffs' right to take an appeal on the issue of class certification.Congress has vested appellate jurisdiction in the courts of appeals for review of final decisions of the district courts. 28 U.S.C. 1291. Ordinarily, only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom. A party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it. Public Service Comm'n v. Brashear Freight Lines, Inc., 306 U. S. 204 (1939); New York Telephone Co. v. Maltbie, 291 U.S. 645 (1934); Corning v. Troy Iron & Nail Factory, 15 How. 451 (1854); 9 J. Moore, Federal Practice � 203.06 (2d ed.1975). The rule is one of federal appellate practice, however, derived from the statutes granting appellate jurisdiction and the historic practices of the appellate courts; it does not have its source in the Page 445 U. S. 334 jurisdictional limitations of Art. III. In an appropriate case, appeal may be permitted from an adverse ruling collateral to the judgment on the merits at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III. [Footnote 6]An illustration of this principle in practice is Electrical Fittings Corp. v. Thomas & Betts Co., 307 U. S. 241 (1939). In that case, respondents sued petitioners for infringement of a patent. In such a suit, the defense may prevail either by successfully attacking the validity of the patent or by successfully defending the charge of infringement. In Electrical Fittings, the decree of the District Court adjudged the patent valid, but dismissed the complaint for failure to prove infringement. The respondents did not appeal, but petitioners sought review in the Court of Appeals of so much of the decree as adjudicated the patent valid. Respondents filed a motion to dismiss the appeal "based on the ground that the appeal can raise no questions not already moot because of the fact that the [petitioners] have already been granted in the dismissal of the bill all the relief to which they are entitled." 100 F.2d 403, 404 (CA2 1938). The Court of Appeals dismissed the appeal on this ground after ruling that the decree of the District Court would not, in subsequent suits, as a matter of collateral estoppel or otherwise, influence litigation on the issue of the patent's validity. On review here, this Court did not question the view that the ruling on patent validity would Page 445 U. S. 335 have no effect on subsequent litigation. Nevertheless, a unanimous Court allowed the appeal to reform the decree:"A party may not appeal from a judgment or decree in his favor for the purpose of obtaining a review of findings he deems erroneous which are not necessary to support the decree. But here the decree itself purports to adjudge the validity of [the patent], and though the adjudication was immaterial to the disposition of the cause, it stands as an adjudication of one of the issues litigated. We think the petitioners were entitled to have this portion of the decree eliminated, and that the Circuit Court of Appeals had jurisdiction, as we have held this court has, to entertain the appeal not for the purpose of passing on the merits, but to direct the reformation of the decree."307 U.S. at 307 U. S. 242 (footnotes omitted).Although the Court limited the appellate function to reformation of the decree, the holding relevant to the instant case was that the federal courts retained jurisdiction over the controversy notwithstanding the District Court's entry of judgment in favor of petitioners. This Court had the question of mootness before it, yet, because policy considerations permitted an appeal from the District Court's final judgment and because petitioners alleged a stake in the outcome, the case was still live, and dismissal was not required by Art. III. The Court perceived the distinction between the definitive mootness of a case or controversy, which ousts the jurisdiction of the federal courts and requires dismissal of the case, and a judgment in favor of a party at an intermediate stage of litigation, which does not in all cases terminate the right to appeal. [Footnote 7] Page 445 U. S. 336BWe view the denial of class certification as an example of a procedural ruling, collateral to the merits of a litigation, that is appealable after the entry of final judgment. [Footnote 8] The denial of class certification stands as an adjudication of one of the issues litigated. As in Electrical Fittings, the respondents here, who assert a continuing stake in the outcome of the appeal, were entitled to have this portion of the District Court's judgment reviewed. We hold that the Court of Appeals had jurisdiction to entertain the appeal only to review the asserted procedural error, not for the purpose of passing on the merits of the substantive controversy.Federal appellate jurisdiction is limited by the appellant's personal stake in the appeal. Respondents have maintained throughout this appellate litigation that they retain a continuing individual interest in the resolution of the class certification question in their desire to shift part of the costs of litigation to those who will share in its benefits if the class is certified and ultimately prevails. See n 6, supra. This individual interest may be satisfied fully once effect is given to the decision of the Court of Appeals setting aside what it held Page 445 U. S. 337 to be an erroneous District Court ruling on class certification. In Electrical Fittings, the petitioners asserted a concern that their success in some unspecified future litigation would be impaired by stare decisis or collateral estoppel application of the District Court's ruling on patent validity. This concern supplied the personal stake in the appeal required by Art. III. It was satisfied fully when the petitioners secured an appellate decision eliminating the erroneous ruling from the decree. After the decree in Electrical Fittings was reformed, the then unreviewable judgment put an end to the litigation, mooting all substantive claims. Here the proceedings after remand may follow a different pattern, but they are governed by the same principles.We cannot say definitively what will become of respondents' continuing personal interest in their own substantive controversy with the petitioner when this case returns to the District Court. Petitioner has denied liability to the respondents, but tendered what they appear to regard as a "nuisance settlement." Respondents have never accepted the tender or judgment as satisfaction of their substantive claims. Cf. Cover v. Schwartz, 133 F.2d 541 (CA2 1942). The judgment of the District Court accepting petitioner's tender has now been set aside by the Court of Appeals. We need not speculate on the correctness of the action of the District Court in accepting the tender in the first instance, or on whether petitioner may now withdraw its tender.Perhaps because the question was not thought to be open to doubt, we have stated in the past, without extended discussion, that "an order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff. . . ." Coopers & Lybrand v. Livesay, 437 U. S. 463, 437 U. S. 469 (1978). In Livesay, we unanimously rejected the argument, advanced in favor of affording prejudgment appeal as a matter of right, that an adverse class certification ruling came within the "collateral order" exception to the final judgment rule. The appealability of the class certification Page 445 U. S. 338 question after final judgment on the merits was an important ingredient of our ruling in Livesay. For that proposition, the Court cited United Airlines, Inc. v. McDonald, 432 U. S. 385 (1977). That case involved, as does this, a judgment entered on the merits in favor of the named plaintiff. The McDonald Court assumed that the named plaintiff would have been entitled to appeal a denial of class certification.The use of the class action procedure for litigation of individual claims may offer substantial advantages for named plaintiffs; it may motivate them to bring cases that, for economic reasons, might not be brought otherwise. [Footnote 9] Plainly there has been a growth of litigation stimulated by contingent fee agreements and an enlargement of the role this type of fee arrangement has played in vindicating the rights of individuals who otherwise might not consider it worth the candle to embark on litigation in which the optimum result might be more than consumed by the cost. The prospect of such fee arrangements offers advantages for litigation by named plaintiffs in class actions, as well as for their attorneys. [Footnote 10] For better or worse, the financial incentive that class actions offer to the legal profession is a natural outgrowth of the increasing reliance on the "private attorney general" for the vindication of legal rights; obviously this development has been facilitated by Rule 23. Page 445 U. S. 339The aggregation of individual claims in the context of a classwide suit is an evolutionary response to the existence of injuries unremedied by the regulatory action of government. Where it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class action device. That there is a potential for misuse of the class action mechanism is obvious. Its benefits to class members are often nominal and symbolic, with persons other than class members becoming the chief beneficiaries. But the remedy for abuses does not lie in denying the relief sought here, but with reexamination of Rule 23 as to untoward consequences.A district court's ruling on the certification issue is often the most significant decision rendered in these class action proceedings. [Footnote 11] To deny the right to appeal simply because the defendant has sought to "buy off" the individual private claims of the named plaintiffs would be contrary to sound judicial administration. Requiring multiple plaintiffs to bring separate actions, which effectively could be "picked off" by a defendant's tender of judgment before an affirmative ruling on class certification could be obtained, obviously would frustrate the objectives of class actions; moreover it would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement. It would be in the interests of a class action defendant to forestall any appeal of denial of class certification if that could be accomplished by tendering the individual damages claimed by the named plaintiffs. Permitting appeal of the district court's certification ruling -- either at once by interlocutory appeal, or after entry of judgment on the merits -- also minimizes problems raised by "forum shopping" by putative class Page 445 U. S. 340 representatives attempting to locate a judge perceived as sympathetic to class actions.That small individual claims otherwise might be limited to local and state courts, rather than a federal forum, does not justify ignoring the overall problem of wise use of judicial resources. Such policy considerations are not irrelevant to the determination whether an adverse procedural ruling on certification should be subject to appeal at the behest of named plaintiffs. Courts have a certain latitude in formulating the standards that govern the appealability of procedural rulings even though, as in this case, the holding may determine the absolute finality of a judgment, and thus, indirectly, determine whether the controversy has become moot.We conclude that, on this record, the District Court's entry of judgment in favor of named plaintiffs over their objections did not moot their private case or controversy, and that respondents' individual interest in the litigation -- as distinguished from whatever may be their representative responsibilities to the putative class [Footnote 12] -- is sufficient to permit their appeal of the adverse certification ruling.Affirmed

U.S. Supreme CourtDeposit Guar. Nat'l Bank of Jackson v. Roper, 445 U.S. 326 (1980)Deposit Guaranty National Bank of Jackson v. RoperNo. 78-904Argued October 2, 1979Decided March 19, 1980445 U.S. 326SyllabusRespondents, holders of credit cards issued by petitioner bank, sued petitioner for damages in Federal District Court, seeking to represent both their own interests and those of a class of similarly situated credit card customers. The complaint, based on the National Bank Act, alleged that usurious finance charges had been made against the accounts of respondents and the putative class. The District Court denied respondents' motion to certify the class, ruling that the circumstances did not meet all the requirements of Federal Rule of Civil Procedure 23(b)(3). After the Court of Appeals denied respondents' motion for interlocutory appeal, petitioner tendered to each respondent the maximum amount that each could have recovered, but respondents refused to accept the tender. The District Court, over respondents' objections, then entered judgment in their favor on the basis of the tender and dismissed the action, the amount of the tender being deposited by petitioner in the court's registry. Respondents thereafter sought review of the class certification ruling, and the Court of Appeals concluded, inter alia, that the case had not been mooted by the entry of judgment in respondents' favor and reversed the adverse certification ruling.Held: Neither petitioner's tender nor the District Court's entry of judgment in favor of respondents over their objections mooted their private case or controversy, and their individual interest in the litigation -- as distinguished from whatever may be their representative responsibilities to the putative class -- is sufficient to permit their appeal of the adverse certification ruling. Pp. 445 U. S. 331-340.(a) In an appropriate case, appeal may be permitted from an adverse ruling collateral to the judgment on the merits at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying Art. III's case or controversy requirements. Here, neither the rejected tender nor the dismissal of the action over respondents' objections mooted their claim on the merits so long as they retained an economic interest in class certification. Pp. 445 U. S. 332-335.(b) The denial of class certification is an example of a procedural ruling, collateral to the merits of a litigation, that is appealable after Page 445 U. S. 327 the entry of final judgment. The denial of certification stands as an adjudication of one of the issues litigated. Respondents have asserted throughout this appellate litigation a continuing individual interest in the resolution of the class certification question in their desire to shift part of the costs of litigation to those who will share in its benefits if the class is certified and ultimately prevails. Thus, they are entitled to have this portion of the District Court's judgment reviewed. To deny the right to appeal simply because the defendant has sought to "buy off" the individual claims of the named plaintiffs would be contrary to sound judicial administration. Pp. 445 U. S. 336-340.578 F. d 1106, affirmed.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, REHNQUIST, and STEVENS, JJ., joined. REHNQUIST, J., post, p. 445 U. S. 340, and STEVENS, J., post, p. 445 U. S. 342, filed concurring opinions. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 445 U. S. 344. POWELL, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 445 U. S. 344.

1984_83-1935

JUSTICE WHITE delivered the opinion of the Court.The threshold question in this case is whether the minimum wage, overtime, and recordkeeping requirements of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq., apply to workers engaged in the commercial Page 471 U. S. 292 activities of a religious foundation, regardless of whether those workers consider themselves "employees." A secondary question is whether application of the Act in this context violates the Religion Clauses of the First Amendment.IThe Tony and Susan Alamo Foundation is a nonprofit religious organization incorporated under the laws of California. Among its primary purposes, as stated in its Articles of Incorporation, are to"establish, conduct and maintain an Evangelistic Church; to conduct religious services, to minister to the sick and needy, to care for the fatherless and to rescue the fallen, and generally to do those things needful for the promotion of Christian faith, virtue, and charity. [Footnote 1]"The Foundation does not solicit contributions from the public. It derives its income largely from the operation of a number of commercial businesses, which include service stations, retail clothing and grocery outlets, hog farms, roofing and electrical construction companies, a recordkeeping company, a motel, and companies engaged in the production and distribution of candy. [Footnote 2] These activities have been supervised by petitioners Tony and Susan Alamo, president and secretary-treasurer of the Foundation, respectively. [Footnote 3] The businesses are staffed largely by the Foundation's "associates," most of whom were drug addicts, derelicts, or criminals before their conversion and rehabilitation by the Foundation. These workers receive no cash salaries, but the Foundation provides them with food, clothing, shelter, and other benefits. Page 471 U. S. 293In 1977, the Secretary of Labor filed an action against the Foundation, the Alamos, and Larry La Roche, who was then the Foundation's vice-president, alleging violations of the minimum wage, overtime, and recordkeeping provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 206(b), 207(a), 211(c), 215(a)(2), (a)(5), with respect to approximately 300 associates. [Footnote 4] The United States District Court for the Western District of Arkansas held that the Foundation was an "enterprise" within the meaning of 29 U.S.C. § 203(r), which defines that term as "the related activities performed . . . by any person or persons for a common business purpose." 567 F. Supp. 556 (1983). The District Court found that despite the Foundation's incorporation as a nonprofit religious organization, its businesses were "engaged in ordinary commercial activities in competition with other commercial businesses." Id. at 573.The District Court further ruled that the associates who worked in these businesses were "employees" of the Alamos and of the Foundation within the meaning of the Act. The associates who had testified at trial had vigorously protested the payment of wages, asserting that they considered themselves volunteers who were working only for religious and evangelical reasons. Nevertheless, the District Court found that the associates were "entirely dependent upon the Foundation for long periods." Although they did not expect compensation in the form of ordinary wages, the District Court found, they did expect the Foundation to provide them "food, shelter, clothing, transportation and medical benefits." Id. at 562. These benefits were simply wages in another form, and, under the "economic reality" test of employment, see Goldberg v. Whitaker House Cooperative, Inc., 366 U. S. 28, Page 471 U. S. 294 366 U. S. 33 (1961), [Footnote 5] the associates were employees. The District Court also rejected petitioners' arguments that application of the Act to the Foundation violated the Free Exercise and Establishment Clauses of the First Amendment, and the court found no evidence that the Secretary had engaged in unconstitutional discrimination against petitioners in bringing this suit. [Footnote 6]The Court of Appeals for the Eighth Circuit affirmed the District Court's holding as to liability, but vacated and remanded as to the appropriate remedy. 722 F.2d 397 (1984). [Footnote 7] The Court of Appeals emphasized that the businesses operated by the Foundation serve the general public, in competition with other entrepreneurs. Under the "economic reality" test, the court held,"it would be difficult to conclude that the extensive commercial enterprise operated and controlled by the foundation was nothing but a religious liturgy engaged in bringing good news to a pagan world. By entering the economic arena and trafficking in the marketplace, the foundation has subjected itself to the standards Congress has prescribed for the benefit of employees. The Page 471 U. S. 295 requirements of the Fair Labor Standards Act apply to its laborers."Id. at 400. Like the District Court, the Court of Appeals also rejected petitioners' constitutional claims. We granted certiorari, 469 U.S. 915 (1984), and now affirm.IIIn order for the Foundation's commercial activities to be subject to the Fair Labor Standards Act, two conditions must be satisfied. First, the Foundation's businesses must constitute an "[e]nterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 203(s). [Footnote 8] Second, the associates must be "employees" within the meaning of the Act. While the statutory definition is exceedingly broad, see United States v. Rosenwasser, 323 U. S. 360, 323 U. S. 362-363 (1945), it does have its limits. An individual who,"without promise or expectation of compensation, but solely for his personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit,"is outside the sweep of the Act. Walling v. Portland Terminal Co., 330 U. S. 148, 330 U. S. 152 (1947). [Footnote 9]APetitioners contend that the Foundation is not an "enterprise" within the meaning of the Act, because its activities are Page 471 U. S. 296 not performed for "a common business purpose." [Footnote 10] In support of this assertion, petitioners point to the fact that the Internal Revenue Service has certified the Foundation as tax-exempt under 26 U.S.C. § 501(c)(3), which exempts "any . . . foundation . . . organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes." [Footnote 11]The Court has consistently construed the Act "liberally to apply to the furthest reaches consistent with congressional direction," Mitchell v. Lublin, McGaughy & Associates, 358 U. S. 207, 358 U. S. 211 (1959), recognizing that broad coverage is essential to accomplish the goal of outlawing from interstate commerce goods produced under conditions that fall below minimum standards of decency. Powell v. United States Cartridge Co., 339 U. S. 497, 339 U. S. 516 (1950). [Footnote 12] The statute contains no express or implied exception for commercial activities conducted by religious or other nonprofit organizations, [Footnote 13] Page 471 U. S. 297 and the agency charged with its enforcement has consistently interpreted the statute to reach such businesses. The Labor Department's regulation defining "business purpose," which is entitled to considerable weight in construing the Act, explicitly states:"Activities of eleemosynary, religious, or educational organization [sic] may be performed for a business purpose. Thus, where such organizations engage in ordinary commercial activities, such as operating a printing and publishing plant, the business activities will be treated under the Act the same as when they are performed by the ordinary business enterprise."29 CFR § 779.214 (1984). See also Marshall v. Woods Hole Oceanographic Institution, 458 F. Supp. 709 (Mass.1978); Marshall v. Elks Club of Huntington, Inc., 444 F. Supp. 957, 967-968 (SD W.Va.1977). Cf. Mitchell v. Pilgrim Holiness Church Corp., 210 F.2d 879 (CA7), cert. denied, 347 U.S. 1013 (1954).The legislative history of the Act supports this administrative and judicial gloss. When the Act was broadened in 1961 to cover "enterprises" as well as individuals, the Senate Committee Report indicated that the activities of nonprofit groups were excluded from coverage only insofar as they were not performed for a "business purpose." [Footnote 14] Some illumination of congressional intent is provided by the debate on a proposed floor amendment that would have specifically excluded from the definition of "employer," see 29 U.S.C. § 203(d), organizations qualifying for tax exemption under 26 Page 471 U. S. 298 U.S.C. § 501(c)(3). [Footnote 15] The floor manager of the bill opposed the amendment because it might have been interpreted to "g[o] beyond the language of the [Committee] report" by excluding a "profitmaking corporation or company" owned by "an eleemosynary institution." [Footnote 16] The proponent of the failed amendment countered that it would not have excluded "a church which has a business operation on the side." [Footnote 17] There was thus broad congressional consensus that ordinary commercial businesses should not be exempted from the Act simply because they happened to be owned by religious or other nonprofit organizations. [Footnote 18]Petitioners further contend that the various businesses they operate differ from "ordinary" commercial businesses because they are infused with a religious purpose. The businesses minister to the needs of the associates, they contend, both by providing rehabilitation and by providing them with food, clothing, and shelter. In addition, petitioners argue, the businesses function as "churches in disguise" -- vehicles Page 471 U. S. 299 for preaching and spreading the gospel to the public. See Brief for Petitioners 27-28. The characterization of petitioners' businesses, however, is a factual question resolved against petitioners by both courts below, and therefore barred from review in this Court "absent the most exceptional circumstances." [Footnote 19] The lower courts clearly took account of the religious aspects of the Foundation's endeavors, and were correct in scrutinizing the activities at issue by reference to objectively ascertainable facts concerning their nature and scope. Both courts found that the Foundation's businesses serve the general public in competition with ordinary commercial enterprises, see 722 F.2d at 400; 567 F. Supp. at 573, and the payment of substandard wages would undoubtedly give petitioners and similar organizations an advantage over their competitors. It is exactly this kind of "unfair method of competition" that the Act was intended to prevent, see 29 U.S.C. § 202(a)(3), and the admixture of religious motivations does not alter a business' effect on commerce.BThat the Foundation's commercial activities are within the Act's definition of "enterprise" does not, as we have noted, end the inquiry. An individual may work for a covered enterprise and nevertheless not be an "employee." In Walling v. Portland Terminal Co., 330 U. S. 148 (1947), the Court held that individuals being trained as railroad yard brakemen -- individuals who unquestionably worked in "the kind of activities covered by the Act" [Footnote 20] -- were not "employees." The trainees enrolled in a course lasting approximately seven or eight days, during which time they did some actual work Page 471 U. S. 300 under close supervision. If, after completion of the training period, the trainees obtained permanent employment with the railroad, they received a retroactive allowance of four dollars for each day of the course. Otherwise, however, they neither received or expected any remuneration. Id. at 330 U. S. 150. The Court held that, despite the comprehensive nature of the Act's definitions, [Footnote 21] they were"obviously not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another."The trainees were in much the same position as students in a school. Considering that the trainees' employment did not "contemplate . . . compensation," and accepting the findings that the railroads received "no immediate advantage' from any work done by the trainees," the Court ruled that the trainees did not fall within the definition of "employee." Id. at 330 U. S. 153.Relying on the affidavits and testimony of numerous associates, petitioners contend that the individuals who worked in the Foundation's businesses, like the trainees in Portland Terminal, expected no compensation for their labors. It is true that the District Court found that the Secretary had"failed to produce any past or present associate of the Foundation who viewed his work in the Foundation's various commercial businesses as anything other than 'volunteering' his services to the Foundation."567 F. Supp. at 562. An associate characterized by the District Court as typical "testified convincingly that she considered her work in the Foundation's businesses as part of her ministry," and that she did not work for material rewards. Ibid. This same Page 471 U. S. 301 associate also testified that "no one ever expected any kind of compensation, and the thought is totally vexing to my soul." App. 79.Nevertheless, these protestations, however sincere, cannot be dispositive. The test of employment under the Act is one of "economic reality," see Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. at 366 U. S. 33, and the situation here is a far cry from that in Portland Terminal. Whereas, in Portland Terminal, the training course lasted a little over a week, in this case, the associates were "entirely dependent upon the Foundation for long periods, in some cases several years." 567 F. Supp. at 562. Under the circumstances, the District Court's finding that the associates must have expected to receive in-kind benefits -- and expected them in exchange for their services -- is certainly not clearly erroneous. [Footnote 22] Under Portland Terminal, a compensation agreement may be "implied" as well as "express," 330 U.S. at 330 U. S. 152, and the fact that the compensation was received primarily in the form of benefits, rather than cash, is in this context immaterial. These benefits are, as the District Court stated, wages in another form. [Footnote 23] Page 471 U. S. 302That the associates themselves vehemently protest coverage under the Act makes this case unusual, [Footnote 24] but the purposes of the Act require that it be applied even to those who would decline its protections. If an exception to the Act were carved out for employees willing to testify that they performed work "voluntarily," employers might be able to use superior bargaining power to coerce employees to make such assertions, or to waive their protections under the Act. Cf. Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 (1981); Brooklyn Savings Bank v. O'Neil, 324 U. S. 697 (1945). Such exceptions to coverage would affect many more people than those workers directly at issue in this case, and would be likely to exert a general downward pressure on wages in competing businesses. As was observed in Gemsco, Inc. v. Walling, 324 U. S. 244, 324 U. S. 252-254 (1945), it was there essential to uphold the Wage and Hour Administrator's authority to ban industrial homework in the embroideries industry, because,"if the prohibition cannot be made, the floor for the entire industry falls and the right of the homeworkers and the employers to be free from the prohibition destroys the right of the much larger number of factory workers to receive the minimum wage."the Foundation's business activities will lead to coverage of volunteers who drive the elderly to church; serve church suppers, or help remodel a church home for the needy. See Brief for Petitioners 24-25. The Act reaches only the "ordinary commercial activities" of religious organizations, 29 CFR § 779.214 (1984), and only those who engage in those activities in expectation of compensation. Page 471 U. S. 303 Ordinary volunteerism is not threatened by this interpretation of the statute. [Footnote 25]IIIPetitioners further contend that application of the Act infringes on rights protected by the Religion Clauses of the First Amendment. Specifically, they argue that imposition of the minimum wage and recordkeeping requirements will violate the rights of the associates to freely exercise their religion [Footnote 26] and the right of the Foundation to be free of excessive government entanglement in its affairs. Neither of these contentions has merit.It is virtually self-evident that the Free Exercise Clause does not require an exemption from a governmental program unless, at a minimum, inclusion in the program actually burdens the claimant's freedom to exercise religious rights. See, e.g., United States v. Lee, 455 U. S. 252, 455 U. S. 256-257 (1982); Thomas v. Review Board, Indiana Employment Security Div., 450 U. S. 707, 450 U. S. 717-718 (1981). Petitioners claim that the receipt of "wages" would violate the religious convictions of the associates. [Footnote 27] The Act, however, does not require Page 471 U. S. 304 the payment of cash wages. Section 203(m) defines "wage" to include "the reasonable cost . . . of furnishing [an] employee with board, lodging, or other facilities." See n 23, supra. Since the associates currently receive such benefits in exchange for working in the Foundation's businesses, application of the Act will work little or no change in their situation: the associates may simply continue to be paid in the form of benefits. The religious objection does not appear to be to receiving any specified amount of wages. Indeed, petitioners and the associates assert that the associates' standard of living far exceeds the minimum. [Footnote 28] Even if the Foundation were to pay wages in cash, or if the associates' beliefs precluded them from accepting the statutory amount, there is nothing in the Act to prevent the associates from returning the amounts to the Foundation, provided that they do so voluntarily. [Footnote 29] We therefore fail to perceive how application of the Act would interfere with the associates' right to Page 471 U. S. 305 freely exercise their religious beliefs. Cf. United States v. Lee, supra, at 455 U. S. 257.Petitioners also argue that application of the Act's recordkeeping requirements would have the "primary effect" of inhibiting religious activity and would foster "an excessive government entanglement with religion,'" thereby violating the Establishment Clause. See Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612-613 (1971) (quoting Walz v. Tax Comm'n, 397 U. S. 664, 397 U. S. 674 (1970)). [Footnote 30] The Act merely requires a covered employer to keep records "of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him." 29 U.S.C. § 211(c). Employers must also preserve these records and "make such reports therefrom from time to time to the Administrator as he shall prescribe." Ibid. These requirements apply only to commercial activities undertaken with a "business purpose," and would therefore have no impact on petitioners' own evangelical activities or on individuals engaged in volunteer work for other religious organizations. And the routine and factual inquiries required by § 211(c) bear no resemblance to the kind of government surveillance the Court has previously held to pose an intolerable risk of government entanglement with religion. [Footnote 31] The Establishment Clause does not exempt religious organizations from such secular governmental activity as fire inspections and building and zoning regulations, see Lemon, supra, at 403 U. S. 614, and the recordkeeping requirements of the Fair Labor Standards Act, while Page 471 U. S. 306 perhaps more burdensome in terms of paperwork, are not significantly more intrusive into religious affairs. [Footnote 32]IVThe Foundation's commercial activities, undertaken with a "common business purpose," are not beyond the reach of the Fair Labor Standards Act because of the Foundation's religious character, and its associates are "employees" within the meaning of the Act because they work in contemplation of compensation. Like other employees covered by the Act, the associates are entitled to its full protection. Furthermore, application of the Act to the Foundation's commercial activities is fully consistent with the requirements of the First Amendment. The judgment below is accordinglyAffirmed

U.S. Supreme CourtAlamo Found'n v. Secy. of Labor, 471 U.S. 290 (1985)Tony and Susan Alamo Foundation v. Secretary of LaborNo. 83-1935Argued March 25, 1985Decided April 23, 1985471 U.S. 290SyllabusPetitioner Foundation is a nonprofit religious organization that derives its income largely from the operation of commercial businesses staffed by the Foundation's "associates," most of whom were drug addicts, derelicts, or criminals before their rehabilitation by the Foundation. These workers receive no cash salaries, but the Foundation provides them with food, clothing, shelter, and other benefits. The Secretary of Labor filed an action in Federal District Court against the Foundation and petitioner officers thereof, alleging violations of the minimum wage, overtime, and recordkeeping provisions of the Fair Labor Standards Act (Act). The District Court held that the Foundation was an "enterprise" within the meaning of 29 U.S.C. § 203(r), which defines that term as "the related activities performed . . . by any person or persons for a common business purpose," that the Foundation's businesses serve the general public in competition with ordinary commercial enterprises, and that, under the "economic reality" test of employment, the associates were "employees" of the Foundation protected by the Act. The court rejected petitioners' arguments that application of the Act to the Foundation violated the Free Exercise and Establishment Clauses of the First Amendment. The Court of Appeals affirmed as to liability.Held:1. The Foundation's businesses constitute an "enterprise" within the meaning of the Act, and are not beyond the Act's reach because of the Foundation's religious character. This Court has consistently construed the Act liberally in recognition that broad coverage is essential to accomplish the goal of outlawing from interstate commerce goods produced under conditions that fall below minimum standards of decency. The Act contains no express or implied exception for commercial activities conducted by religious or other nonprofit organizations, and the Labor Department has consistently interpreted the Act to reach such businesses. And this interpretation is supported by the legislative history. Pp. 471 U. S. 295-299.2. The Foundation's associates are "employees" within the meaning of the Act, because they work in contemplation of compensation. Walling v. Portland Terminal Co., 330 U. S. 148, distinguished. The fact that Page 471 U. S. 291 the associates themselves protest coverage under the Act is not dispositive, since the test of employment under the Act is one of "economic reality." And the fact that the compensation is primarily in the form of benefits, rather than cash, is immaterial in this context, such benefits simply being wages in another form. Pp. 471 U. S. 299-303.3. Application of the Act to the Foundation does not infringe on rights protected by the Religion Clauses of the First Amendment. The Free Exercise Clause does not require an exemption from a governmental program unless, at a minimum, inclusion in the program actually burdens the claimant's freedom to exercise religious rights. Here, since the Act does not require the payment of cash wages and the associates received wages in the form of benefits in exchange for working in the Foundation's businesses, application of the Act works little or no change in the associates' situation; they may simply continue to be paid in the form of benefits. But even if they were paid in cash and their religious beliefs precluded them from accepting the statutory amount, there is nothing in the Act to prevent them from voluntarily returning the amounts to the Foundation. And since the Act's recordkeeping requirements apply only to commercial activities undertaken with a "business purpose," they would have no impact on petitioners' own evangelical activities or on individuals engaged in volunteer work for other religious organizations. Pp. 471 U. S. 303-306.722 F.2d 397, affirmed.WHITE, J., delivered the opinion for a unanimous Court.

1990_90-906

JUSTICE STEVENS delivered the opinion of the Court.An Act of Congress authorizing the transfer of operating control of two major airports from the Federal Government to the Metropolitan Washington Airport Authority (MWAA) conditioned the transfer on the creation by MWAA of a unique "Board of Review" composed of nine Members of Congress and vested with veto power over decisions made by MWAA's Board of Directors. [Footnote 1] The principal question presented is whether this unusual statutory condition violates the constitutional principle of separation of powers, as interpreted in INS v. Chadha, 462 U. S. 919 (1983), Bowsher v. Synar, 478 U. S. 714 (1986), and Springer v. Philippine Islands, 277 U. S. 189 (1928). We conclude, as did the Court of Appeals for the District of Columbia Circuit, that the condition is unconstitutional.IIn 1940, Congress authorized the Executive Branch to acquire a tract of land a few miles from the Capitol and to construct what is now Washington National Airport (National). 54 Stat. 686. From the time it opened until 1987, National was owned and operated by the Federal Government. The airport was first managed by the Civil Aeronautics Agency, a division of the Commerce Department. 54 Stat. 688. In 1959, control of National shifted to the newly created Federal Aviation Administration (FAA), an agency that, since 1967, has been a part of the Department of Transportation. See 72 Stat. 731; 80 Stat. 932, 938.A few years after National opened, the Truman Administration proposed that a federal corporation be formed to operate the airport. See Congressional Research Service, Federal Ownership of National and Dulles Airports: Background, Pro-Con Analysis, and Outlook 4 (1985) (CRS Report), reprinted in Hearings before the Subcommittee on Page 501 U. S. 256 Governmental Efficiency and the District of Columbia of the Senate Committee on Governmental Affairs, 99th Cong., 1st Sess., p. 404 (1985). The proposal was endorsed by the Hoover Commission in 1949, but never adopted by Congress. Instead, when Congress authorized construction of a second major airport to serve the Washington area, it again provided for federal ownership and operation. 64 Stat. 770. Dulles International Airport (Dulles) was opened in 1962 under the direct control of the FAA. See CRS Report 1-2.National and Dulles are the only two major commercial airports owned by the Federal Government. A third airport, Baltimore Washington International (BWI), which is owned by the State of Maryland, also serves the Washington metropolitan area. Like Dulles, it is larger than National and located in a rural area many miles from the Capitol. Because of its location, National is by far the busiest and most profitable of the three. [Footnote 2] Although proposals for the joint operating control of all three airports have been considered, the plan that gave rise to this litigation involves only National and Dulles, both of which are located in Virginia. Maryland's interest in the overall problem explains its representation on the Board of Directors of MWAA. See 49 U.S.C. App. § 2456(e)(3)(C).Throughout its history, National has been the subject of controversy. Its location at the center of the Metropolitan area is a great convenience for air travelers, but flight paths over densely populated areas have generated concern among local residents about safety, noise, and pollution. Those living Page 501 U. S. 257 closest to the airport have provided the strongest support for proposals to close National or to transfer some of its operations to Dulles. See CRS Report 3.Despite the FAA's history of profitable operation of National and excellent management of both airports, the Secretary of Transportation concluded that necessary capital improvements could not be financed for either National or Dulles unless control of the airports was transferred to a regional authority with power to raise money by selling tax-exempt bonds. [Footnote 3] In 1984, she therefore appointed an advisory commission to develop a plan for the creation of such a regional authority. Id. at 6.The Commission recommended that the proposed authority be created by a congressionally approved compact between Virginia and the District, and that its Board of Directors be composed of 11 members serving staggered 6-year terms, with five members to be appointed by the Governor of Virginia, three by the Mayor of the District, two by the Governor of Maryland, and one by the President, with the advice and consent of the Senate. See App. 17. Emphasizing the importance of a "nonpolitical, independent authority," the Commission recommended that members of the board "should not hold elective or appointive political office." Ibid. To allay concerns that local interests would not be adequately represented, the Commission recommended a requirement that all Page 501 U. S. 258 board members except the Presidential appointee reside in the Washington metropolitan area. Ibid.In 1985, Virginia and the District both passed legislation authorizing the establishment of the recommended regional authority. See 1985 Va.Acts, ch. 598; 1985 D.C.Law 647. A bill embodying the advisory commission's recommendations passed the Senate. See 132 Cong.Rec. 7263-7281 (1986). In the House of Representatives, however, the legislation encountered strong opposition from Members who expressed concern that the surrender of federal control of the airports might result in the transfer of a significant amount of traffic from National to Dulles. See Hearings on H.R. 2337, H.R. 5040, and S. 1017 before the Subcommittee on Aviation of the House Committee on Public Works & Transportation, 99th Cong., 2d Sess., 1-3, 22 (1986).Substitute bills were therefore drafted to provide for the establishment of a review board with veto power over major actions of MWAA's Board of Directors. Under two of the proposals, the board of review would clearly have acted as an agent of the Congress. After Congress received an opinion from the Department of Justice that a veto of MWAA action by such a board of review "would plainly be legislative action that must conform to the requirements of Article 1, § 7 of the Constitution," [Footnote 4] the Senate adopted a version of the review Page 501 U. S. 259 board that required Members of Congress to serve in their individual capacities as representatives of users of the airports. See 132 Cong.Rec. 28372-28375, 28504, 28521-28525 (1986). The provision was further amended in the House, id. at 32127-32144, and the Senate concurred, id. at 32483. Ultimately, § 2456(f) of the Transfer Act as enacted defined the composition and powers of the Board of Review in much greater detail than the Board of Directors. Compare 49 U.S.C. App. § 2456(f) with § 2456(e).Subparagraph (1) of § 2456(f) specifies that the Board of Review "shall consist" of nine Members of the Congress, eight of whom serve on committees with jurisdiction over transportation issues and none of whom may be a Member from Maryland, Virginia, or the District of Columbia. [Footnote 5] Subparagraph Page 501 U. S. 260 4(B) details the actions that must be submitted to the Board of Review for approval, which include adoption of a budget, authorization of bonds, promulgation of regulations, endorsement of a master plan, and appointment of the chief executive officer of the Authority. [Footnote 6] Subparagraph 4(D) explains that disapproval by the Board will prevent submitted actions from taking effect. [Footnote 7] Other significant provisions of the Act include paragraph 5, which authorizes the Board of Review to require Authority directors to consider any action relating to the airports; [Footnote 8] subsection (g), which requires that any action changing the hours of operation at either National or Dulles be taken by regulation, and therefore be subject to veto by the Board of Review; [Footnote 9] and Page 501 U. S. 261 subsection (h), which contains a provision disabling MWAA's Board of Directors from performing any action subject to the veto power if a court should hold that the Board of Review provisions of the Act are invalid. [Footnote 10]On March 2, 1987, the Secretary of Transportation and the MWAA entered into a long-term lease complying with all of the conditions specified in the then recently enacted Transfer Act. See App. to Pet. for Cert. 163a-187a. The lease provided for a 50-year term and annual rental payments of three million dollars "in 1987 dollars." Id. at 170a, 178a. After the lease was executed, MWAA's Board of Directors adopted bylaws providing for the Board of Review, id. at 151a-154a, and Virginia and the District of Columbia amended their legislation to give MWAA power to establish the Board of Review, 1987 Va.Acts, ch. 665; 1987 D.C.Law 7-18. On September 2, 1987, the directors appointed the nine members of the Board of Review from lists that had been submitted by the Speaker of the House of Representatives and the President pro tempore of the Senate. App. 57-58.On March 16, 1988, MWAA's Board of Directors adopted a master plan providing for the construction of a new terminal at National with gates capable of handling larger aircraft, an additional taxiway turnoff to reduce aircraft time on the runway and thereby improve airport capacity, a new dual-level roadway system, and new parking facilities. Id. at 70-71, 89-91. On April 13, the Board of Review met and voted not to disapprove the master plan. Id. at 73-78.IIIn November, 1988, Citizens for the Abatement of Aircraft Noise, Inc., and two individuals who reside under flight Page 501 U. S. 262 paths of aircraft departing from and arriving at National (collectively CAAN) brought this action. CAAN sought a declaration that the Board of Review's power to veto actions of MWAA's Board of Directors is unconstitutional, and an injunction against any action by the Board of Review, as well as any action by the Board of Directors that is subject to Board of Review approval. Id. at 10. The complaint alleged that most of the members of CAAN live under flight paths to and from National, and that CAAN's primary purpose is to develop and implement a transportation policy for the Washington area that would include balanced service among its three major airports, thus reducing the operations at National and alleviating noise, safety, and air pollution problems associated with such operations. Id. at 4. The complaint named MWAA and its Board of Review as defendants. Id. at 5.The District Court granted the defendants' motion for summary judgment. 718 F. Supp. 974 (DC 1989). As a preliminary matter, however, the court held that plaintiffs had standing to maintain the action for two reasons: [Footnote 11] first, because the master plan will facilitate increased activity at National that is harmful to plaintiffs, and second, because the composition of the Board of Review diminishes the influence of CAAN on airport user issues, since local congressmen and senators are ineligible for service on the Board. Id. at 980-982. On the merits, the District Court concluded that there was no violation of the doctrine of separation of powers, because the members of the Board of Review acted in their individual capacities as representatives of airport users, and therefore the Board was not an agent of Congress. Id. at 985. Moreover, the Board's powers were derived from the legislation enacted by Virginia and the District, as implemented by MWAA's bylaws, rather than from the Transfer Page 501 U. S. 263 Act. Id. at 986. "In short, because Congress exercises no federal power under the Act, it cannot overstep its constitutionally designated bounds." Ibid.A divided panel of the Court of Appeals for the District of Columbia Circuit reversed. 286 U.S.App.D.C. 334, 917 F.2d 48 (1990). The court agreed that plaintiffs had standing, because they had alleged a distinct and palpable injury that was "fairly traceable" to the implementation of the master plan, and a favorable ruling would prevent MWAA from implementing that plan. Id. at 339, 917 F.2d at 53. On the merits, the majority concluded that it was "wholly unrealistic to view the Board of Review as solely a creature of state law immune to separation of powers scrutiny," because it was federal law that had required the establishment of the Board and defined its powers. Id. at 340, 917 F.2d at 54. It held that the Board was, "in essence, a congressional agent" with disapproval powers over key operational decisions that were "quintessentially executive," id. at 343, 917 F.2d at 57, and therefore violated the separation of powers, ibid. The dissenting judge, emphasizing the importance of construing federal statutes to avoid constitutional questions when fairly possible, concluded that the Board of Review should not be characterized as a federal entity, but that, even if it were so characterized, its members could, consistent with the Constitution, serve in their individual capacities, even though they were Members of Congress. Id. at 345-347, 917 F.2d at 59-61.Because of the importance of the constitutional question, we granted MWAA's petition for certiorari. 498 U.S. 1045-1046 (1991). Although the United States intervened in the Court of Appeals to support the constitutionality of the Transfer Act, see 28 U.S.C. § 2403(a), the United States did not join in MWAA's petition for certiorari. As a respondent in this Court pursuant to this Court's Rule 12.4, the United Page 501 U. S. 264 States has again taken the position that the Transfer Act is constitutional. [Footnote 12]IIIPetitioners (MWAA and the Board of Review) renew the challenge to respondents' standing that was rejected by the District Court and the Court of Appeals. To establish standing, respondents"must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."Allen v. Wright, 468 U. S. 737, 468 U. S. 751 (1984). Petitioners argue that respondents' asserted injuries are caused by factors independent of the Board of Review's veto power, and that the injuries will not be cured by invalidation of the Board of Review. We believe that petitioners are mistaken.Respondents alleged that the master plan allows increased air traffic at National and a consequent increase in accident risks, noise, and pollution. App. 10."For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint."Warth v. Seldin, 422 U. S. 490, 422 U. S. 501 (1975). If we accept that the master plan's provisions will result in increased noise, pollution, and danger of accidents, Page 501 U. S. 265 this "personal injury" to respondents is "fairly traceable" to the Board of Review's veto power, because knowledge that the master plan was subject to the veto power undoubtedly influenced MWAA's Board of Directors when it drew up the plan. Because invalidation of the veto power will prevent the enactment of the master plan, see 49 U.S.C. App. § 2456(h), the relief respondents have requested is likely to redress their alleged injury. Moreover, the harm respondents have alleged is not confined to the consequences of a possible increase in the level of activity at National. The harm also includes the creation of an impediment to a reduction in that activity. See App. 8. The Board of Review was created by Congress as a mechanism to preserve operations at National at their present level, or at a higher level if possible. See supra at 501 U. S. 258. The Board of Review and the Master Plan, which even petitioners acknowledge is, at a minimum, "noise-neutral," Brief for Petitioners 37-38, therefore injure CAAN by making it more difficult for CAAN to reduce noise and activity at National. [Footnote 13]IVPetitioners argue that this case does not raise any separation of powers issue, because the Board of Review neither exercises federal power nor acts as an agent of Congress. Examining the origin and structure of the Board, we conclude that petitioners are incorrect. Page 501 U. S. 266Petitioners lay great stress on the fact that the Board of Review was established by the bylaws of MWAA, which was created by legislation enacted by the State of Virginia and the District of Columbia. Putting aside the unsettled question whether the District of Columbia acts as a State or as an agent of the Federal Government for separation of powers purposes, we believe the fact that the Board of Review was created by state enactments is not enough to immunize it from separation of powers review. Several factors combine to mandate this result.Control over National and Dulles was originally in federal hands, and was transferred to MWAA only subject to the condition that the States create the Board of Review. Congress placed such significance on the Board that it required that the Board's invalidation prevent the Airports Authority from taking any action that would have been subject to Board oversight. See 49 U.S.C. App. § 2456(h). Moreover, the Federal Government has a strong and continuing interest in the efficient operation of the airports, which are vital to the smooth conduct of Government business, especially to the work of Congress, whose Members must maintain offices in both Washington and the districts that they represent, and must shuttle back and forth according to the dictates of busy and often unpredictable schedules. This federal interest was identified in the preamble to the Transfer Act, [Footnote 14] justified a Presidential appointee on the Board of Directors, and motivated the creation of the Board of Review, the structure and the powers of which Congress mandated in detail, see § 2456(f). Most significant, Page 501 U. S. 267 membership on the Board of Review is limited to federal officials, specifically members of congressional committees charged with authority over air transportation.That the Members of Congress who serve on the Board nominally serve "in their individual capacities, as representatives of users" of the airports, § 2456(f)(1), does not prevent this group of officials from qualifying as a congressional agent exercising federal authority for separation-of-powers purposes. As we recently held, "separation of powers analysis does not turn on the labeling of an activity," Mistretta v. United State, 488 U. S. 361, 488 U. S. 393 (1989). The Transfer Act imposes no requirement that the Members of Congress who are appointed to the Board actually be users of the airports. Rather, the Act imposes the requirement that the Board members have congressional responsibilities related to the federal regulation of air transportation regulation. These facts belie the ipse dixit that the Board members will act "in their individual capacities."Although the legislative history is not necessary to our conclusion that the Board members act in their official congressional capacities, the floor debates in the House confirm our view. See, e.g., 132 Cong.Rec. 32135 (1986) (The bill "also provides for continuing congressional review over the major decisions of the new airport authority. A Congressional Board will still have veto power over the new airport authority's: annual budget; issuance of bonds; regulations; master plan; and the naming of the Chief Executive Officer") (Rep. Lehman); id. at 32136 ("In addition, the motion provides continued congressional control over both airports. Congress would retain oversight through a Board of Review made up of nine Members of Congress. This Board would have the right to overturn major decisions of the airport authority") (Rep. Coughlin); id. at 32137 ("Under this plan, Congress retains enough control of the airports to deal with any unseen pitfalls resulting from this transfer of authority. . . . Page 501 U. S. 268 We are getting our cake and eating it too. . . . The beauty of the deal is that Congress retains its control without spending a dime") (Rep. Smith); id. at 32141 ("There is, however, a congressional board which is established by this. . . . [T]hat board has been established to make sure that the Nation's interest, the congressional interest was attended to in the consideration of how these two airports are operated") (Rep. Hoyer); id. at 32142 (The bill does "not give up congressional control and oversight -- that remains in a Congressional Board of review") (Rep. Conte); id. at 32143 ("I understand that one concern of Members is that, by leasing these airports to a local authority, we would be losing control over them. But, in fact, under this bill, exactly the opposite is true. We will have more control than before") (Rep. Hammerschmidt).Congress, as a body, also exercises substantial power over the appointment and removal of the particular Members of Congress who serve on the Board. The Transfer Act provides that the Board "shall consist" of"two members of the Public Works and Transportation Committee and two members of the Appropriations Committee of the House of Representatives from a list provided by the Speaker of the House,""two members of the Commerce, Science, and Transportation Committee and two members of the Appropriations Committee of the Senate from a list provided by the President pro tempore of the Senate,"and"one member chosen alternately . . . from a list provided by the Speaker of the House or the President pro tempore of the Senate, respectively."49 U.S.C. App. § 2456(f)(1). Significantly, appointments must be made from the lists, and there is no requirement that the lists contain more recommendations than the number of Board openings. Cf. 28 U.S.C. § 991(a) (Sentencing Reform Act upheld in Mistretta required only that the President "conside[r]" the recommendations of the Judicial Conference); 31 U.S.C. § 703(a) (Congressional Page 501 U. S. 269 Commission only "recommend[s]" individuals for selection as Comptroller General). The list system, combined with congressional authority over committee assignments, guarantees Congress effective control over appointments. Control over committee assignments also gives Congress effective removal power over Board members, because depriving a Board member of membership in the relevant committees deprives the member of authority to sit on the Board. See 49 U.S.C. App. § 2456(f)(1) (Board "shall consist" of relevant committee members). [Footnote 15]We thus confront an entity created at the initiative of Congress, the powers of which Congress has delineated, the purpose of which is to protect an acknowledged federal interest, and membership in which is restricted to congressional officials. Such an entity necessarily exercises sufficient federal power as an agent of Congress to mandate separation of powers scrutiny. Any other conclusion would permit Congress to evade the "carefully crafted" constraints of the Constitution, INS v. Chadha, 462 U. S. 919, 462 U. S. 959 (1983), simply by delegating primary responsibility for execution of national Page 501 U. S. 270 policy to the States, subject to the veto power of Members of Congress acting "in their individual capacities." Cf. Bowsher v. Synar, 478 U. S. 714, 478 U. S. 755 (1986) (STEVENS, J., concurring in judgment). [Footnote 16]Petitioners contend that the Board of Review should nevertheless be immune from scrutiny for constitutional defects because it was created in the course of Congress' exercise of its power to dispose of federal property. See U.S.Const., Art. IV, § 3, cl. 2. [Footnote 17] In South Dakota v. Dole, 483 U. S. 203 (1987), we held that a grant of highway funds to a State conditioned on the State's prohibition of the possession of alcoholic beverages by persons under the age of 21 was a lawful exercise of Congress' power to spend money for the general welfare. See U.S.Const., Art. I, § 8, cl. 1. Even assuming that "Congress might lack the power to impose a national minimum drinking age directly," we held that this indirect "encouragement to state action" was a valid use of the spending power. Id. at 483 U. S. 212. We thus concluded that Congress could endeavor to accomplish the federal objective of regulating the national drinking age by the indirect use of the spending power even though that regulatory authority Page 501 U. S. 271 would otherwise be a matter within state control pursuant to the Twenty-first Amendment. [Footnote 18]Our holding in Dole did not involve separation of powers principles. It concerned only the allocation of power between the Federal Government and the States. Our reasoning that, absent coercion, a Sovereign State has both the incentive and the ability to protect its own rights and powers, and therefore may cede such rights and powers, see id. at 483 U. S. 210-211, is inapplicable to the issue presented by this case. Here, unlike Dole, there is no question about federal power to operate the airports. The question is whether the maintenance of federal control over the airports by means of the Board of Review, which is allegedly a federal instrumentality, is invalid, not because it invades any state power, but because Congress' continued control violates the separation-of-powers principle, the aim of which is to protect not the States, but "the whole people from improvident laws." Chadha, at 462 U. S. 951. Nothing in our opinion in Dole implied that a highway grant to a State could have been conditioned on the State's creating a "Highway Board of Review" composed of Members of Congress. We must therefore consider whether the powers of the Board of Review may, consistent with the separation of powers, be exercised by an agent of Congress.VBecause National and Dulles are the property of the Federal Government and their operations directly affect interstate Page 501 U. S. 272 commerce, there is no doubt concerning the ultimate power of Congress to enact legislation defining the policies that govern those operations. Congress itself can formulate the details, or it can enact general standards and assign to the Executive Branch the responsibility for making necessary managerial decisions in conformance with those standards. The question presented is only whether the Legislature has followed a constitutionally acceptable procedure in delegating decisionmaking authority to the Board of Review.The structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches -- the Legislative, the Executive, and the Judicial -- placing both substantive and procedural limitations on each. The ultimate purpose of this separation of powers is to protect the liberty and security of the governed. As former Attorney General Levi explained:"The essence of the separation of powers concept formulated by the Founders from the political experience and philosophy of the revolutionary era is that each branch, in different ways, within the sphere of its defined powers and subject to the distinct institutional responsibilities of the others, is essential to the liberty and security of the people. Each branch, in its own way, is the people's agent, its fiduciary for certain purposes."* * * *"Fiduciaries do not meet their obligations by arrogating to themselves the distinct duties of their master's other agents."Levi, Some Aspects of Separation of Powers, 76 Colum.L.Rev. 385-386 (1976).Violations of the separation of powers principle have been uncommon, because each branch has traditionally respected the prerogatives of the other two. Nevertheless, the Court has been sensitive to its responsibility to enforce the principle when necessary. Page 501 U. S. 273"Time and again, we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e.g., Bowsher v. Synar, 478 U.S. at 478 U. S. 725 (citing Humphrey's Executor, 295 U.S. [602], at 295 U. S. 629-630 (1935)). As we stated in Buckley v. Valeo, 424 U. S. 1 (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as 'self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.' Id. at 424 U. S. 122. We have not hesitated to invalidate provisions of law which violate this principle. See id. at 424 U. S. 123."Morrison v. Olson, 487 U. S. 654, 487 U. S. 693 (1988).The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive. But, as James Madison recognized, the representatives of the majority in a democratic society, if unconstrained, may pose a similar threat:"It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."* * * *"The founders of our republics . . . seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. . . . [I]t is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.""The legislative department derives a superiority in our governments from other circumstances. Its constitutional Page 501 U. S. 274 powers being at once more extensive and less susceptible of precise limits, it can, with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the coordinate departments. It is not unfrequently a question of real nicety in legislative bodies whether the operation of a particular measure will or will not extend beyond the legislative sphere."The Federalist No. 48, pp. 332-334 (J. Cooke ed.1961) (J. Madison).To forestall the danger of encroachment "beyond the legislative sphere," the Constitution imposes two basic and related constraints on the Congress. It may not "invest itself or its Members with either executive power or judicial power." J.W. Hampton, Jr., Co. v. United States, 276 U. S. 394, 276 U. S. 406 (1928). And when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified in Article I. INS v. Chadha, 462 U. S. 919, 462 U. S. 91 (1983). [Footnote 19]The first constraint is illustrated by the Court's holdings in Springer v. Philippine Islands, 277 U. S. 189 (1928), and Bowsher v. Synar, 478 U. S. 714 (1986). Springer involved the validity of acts of the Philippine legislature that authorized a committee of three -- two legislators and one executive -- to vote corporate stock owned by the Philippine Government. Because the Organic Act of the Philippine Islands incorporated the separation of powers principle, and because the challenged statute authorized two legislators to perform Page 501 U. S. 275 the executive function of controlling the management of the government-owned corporations, the Court held the statutes invalid. Our more recent decision in Bowsher involved a delegation of authority to the Comptroller General to revise the federal budget. After concluding that the Comptroller General was, in effect, an agent of Congress, the Court held that he could not exercise executive powers:"To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. . . . The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess."Bowsher, 478 U.S. at 478 U. S. 726.The second constraint is illustrated by our decision in Chadha. That case involved the validity of a statute that authorized either House of Congress, by resolution, to invalidate a decision by the Attorney General to allow a deportable alien to remain in the United States. Congress had the power to achieve that result through legislation, but the statute was nevertheless invalid because Congress cannot exercise its legislative power to enact laws without following the bicameral and presentment procedures specified in Article I. For the same reason, an attempt to characterize the budgetary action of the Comptroller General in Bowsher as legislative action would not have saved its constitutionality, because Congress may not delegate the power to legislate to its own agents or to its own Members. [Footnote 20]Respondents rely on both of these constraints in their challenge to the Board of Review. The Court of Appeals found it unnecessary to discuss the second constraint, because the Page 501 U. S. 276 court was satisfied that the power exercised by the Board of Review over "key operational decisions is quintessentially executive." 286 U.S.App.D.C. at 342, 917 F.2d at 56. We need not agree or disagree with this characterization by the Court of Appeals to conclude that the Board of Review's power is constitutionally impermissible. If the power is executive, the Constitution does not permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7. In short, when Congress"[takes] action that ha[s] the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch,"it must take that action by the procedures authorized in the Constitution. See Chadha, 462 U.S. at 462 U. S. 952-955. [Footnote 21]One might argue that the provision for a Board of Review is the kind of practical accommodation between the Legislature and the Executive that should be permitted in a "workable government." [Footnote 22] Admittedly, Congress imposed its will on the regional authority created by the District of Columbia and the Commonwealth of Virginia by means that are unique, Page 501 U. S. 277 and that might prove to be innocuous. However, the statutory scheme challenged today provides a blueprint for extensive expansion of the legislative power beyond its constitutionally confined role. Given the scope of the federal power to dispense benefits to the States in a variety of forms and subject to a host of statutory conditions, Congress could, if this Board of Review were valid, use similar expedients to enable its Members or its agents to retain control, outside the ordinary legislative process, of the activities of state grant recipients charged with executing virtually every aspect of national policy. As James Madison presciently observed, the legislature"can, with greater facility, mask under complicated and indirect measures the encroachments which it makes on the coordinate departments."The Federalist No. 48, at 334. Heeding his warning that legislative "power is of an encroaching nature," we conclude that the Board of Review is an impermissible encroachment. [Footnote 23]The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtAirports Auth. v. Citizens for Noise Abatement, 501 U.S. 252 (1991)Metropolitan Washington Airports Authority v.Citizens for the Abatement of Aircraft Noise, Inc.No. 90-906Argued April 19, 1991Decided June 17, 1991501 U.S. 252SyllabusAn Act of Congress (hereinafter the Transfer Act) authorized the transfer of operating control of Washington National Airport (National) and Dulles International Airport (Dulles) from the federal Department of Transportation to petitioner Metropolitan Washington Airports Authority (MWAA), which was created by a compact between Virginia and the District of Columbia. Both airports are located in the Virginia suburbs of the District. Dulles is larger than National, and lies in a rural area miles from the Capitol. National is a much busier airport, due to the convenience of its location at the center of the metropolitan area, but its flight paths over densely populated areas have generated concern among residents about safety, noise, and pollution. Because of congressional concern that surrender of federal control of the airports might result in the transfer of a significant amount of traffic from National to Dulles, the Transfer Act authorizes the MWAA's Board of Directors to create a Board of Review (Board). The Board is to be composed of nine congressmen who serve on committees having jurisdiction over transportation issues, and who are to act "in their individual capacities." The Board is vested with a variety of powers, including the authority to veto decisions made by MWAA's directors. After the directors adopted bylaws providing for the Board, and Virginia and the District amended their legislation to give MWAA powers to establish the Board, the directors appointed the Board's nine members from lists submitted by Congress. The directors then adopted a Master Plan providing for extensive new facilities at National, and the Board voted not to disapprove that Plan. Subsequently, respondents -- individuals living along National flight paths and Citizens for the Abatement of Aircraft Noise, Inc. (CAAN), whose members include persons living along such paths, and whose purposes include the reduction of National operations and associated noise, safety, and air pollution problems -- brought this action seeking declaratory and injunctive relief, alleging that the Board's veto power is unconstitutional. Although ruling that respondents had standing to maintain the action, the District Court granted summary judgment for petitioners. The Court of Appeals reversed, holding, inter alia, that Congress' delegation of the Page 501 U. S. 253 veto power to the Board violated the constitutional doctrine of separation of powers.Held:1. Respondents have standing. Accepting as true their claims that the Master Plan will result in increased noise, pollution, and accidents, they have alleged "personal injury" to themselves that is "fairly traceable" to the Board's veto power. See Allen v. Wright, 468 U. S. 737, 468 U. S. 751. This is because knowledge that the Plan was subject to that power undoubtedly influenced MWAA's directors when they drew up the Plan. Moreover, because invalidation of the veto power will prevent enactment of the Plan, the relief respondents have requested is "likely to . . . redres[s]" their alleged injury. Ibid. Furthermore, the harm they allege is not confined to the consequences of a possible increase in National activity, since the Board and the Master Plan injure CAAN by making it more difficult for it to fulfill its goal of reducing that activity. Pp. 501 U. S. 264-265.2. Congress' conditioning of the airports' transfer upon the creation of a Board of Review composed of congressmen and having veto power over the MWAA directors' decisions violates the separation of powers. Pp. 501 U. S. 265-277.(a) Petitioners argue incorrectly that this case does not raise any separation-of-powers issue because the Board is a state creation that neither exercises federal power nor acts as an agent of Congress. An examination of the Board's origin and structure reveals an entity created at the initiative of Congress, the powers of which Congress has mandated in detail, the purpose of which is to protect an acknowledged federal interest in the efficient operation of airports vital to the smooth conduct of Government and congressional business, and membership in which is controlled by Congress and restricted to Members charged with authority over air transportation. Such an entity necessarily exercises sufficient federal powers as an agent of Congress to mandate separation of powers scrutiny. Any other conclusion would permit Congress to evade the Constitution's "carefully crafted" constraints, INS v. Chadha, 462 U. S. 919, 462 U. S. 959, simply by delegating primary responsibility for execution of national policy to the States, subject to the veto power of Members of Congress acting "in their individual capacities." Cf. Bowsher v. Synar, 478 U. S. 714, 478 U. S. 755 (STEVENS, J., concurring in judgment). Nor is there merit to petitioners' contention that the Board should nevertheless be immune from scrutiny for constitutional defects because it was created in the course of Congress' exercise of its power to dispose of federal property under Article IV, § 3, cl. 2. South Dakota v. Dole, 483 U. S. 203, 483 U. S. 212, distinguished. Pp. 501 U. S. 265-271. Page 501 U. S. 254(b) Congress has not followed a constitutionally acceptable procedure in delegating decisionmaking authority to the Board. To forestall the danger of encroachment into the executive sphere, the Constitution imposes two basic and related constraints on Congress. It may not invest itself, its Members, or its agents with executive power. See, e.g., J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 276 U. S. 406; Bowsher, supra, 478 U.S. at 478 U. S. 726. And when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered procedures" specified in Article I. Chadha, supra, 462 U.S. at 462 U. S. 951. If the Board's power is considered to be executive, the Constitution does not permit an agent of Congress to exercise it. However, if the power is considered to be legislative, Congress must, but has not, exercised it in conformity with the bicameralism and presentment requirements of Article I, § 7. Although Congress imposed its will on the MWAA by means that are unique and that might prove to be innocuous, the statutory scheme by which it did so provides a blueprint for extensive expansion of the legislative power beyond its constitutionally defined role. Pp. 501 U. S. 271-277.286 U.S.App.D.C. 334, 917 F.2d 48 (CADC 1990), affirmed.STEVENS, J., delivered the opinion of the Court, in which BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J., and MARSHALL, J., joined, post, p. 501 U. S. 277. Page 501 U. S. 255

1959_49

MR. JUSTICE WHITTAKER delivered the opinion of the Court.Appellants, engaged in the business of growing, packing, and marketing in commerce, Florida avocados, brought this action in the District Court of the United States for the Northern District of California to enjoin respondents, state officers of California, from enforcing § 792 of the California Agricultural Code. [Footnote 1]Section 792 prohibits, among other things, the importation into or sale in California of avocados containing "less than 8 per cent of oil, by weight of the avocado excluding the skin and seed." The complaint alleged, inter alia, that the varieties of avocados grown in Florida do not normally, or at least not uniformly, contain at maturity as much as 8% of oil by weight; that, in each year since 1954, appellants have shipped in interstate commerce, in full compliance with the Federal Agricultural Marketing Agreement Act of 1937 [Footnote 2] and Florida Avocado Order No. 69 issued under that Act by the Secretary of Agriculture on June 11, 1954, Florida avocados into the State of California, and have attempted to sell them there; that Page 362 U. S. 75 appellees, or their agents, have consistently barred the sale of appellants' avocados in California for failure uniformly to contain not less than 8% of oil by weight, resulting in denial to appellants of access to the California market, and forcing reshipment of the avocados to and their sale in other States, to the injury of appellants, all in violation of the Commerce and Equal Protection Clauses of the United States Constitution, art. 1, § 8, cl. 3; Amend. 14, as well as of the Federal Agricultural Marketing Agreement Act of 1937 and Florida Avocado Order No. 69 issued thereunder.Inasmuch as the complaint alleged federal unconstitutionality of the California statute, appellants requested the convening of, and there was convened, a three-judge District Court pursuant to 28 U.S.C. § 2281 to hear the case. After hearing, the court concluded that, because appellants had not contested the validity of § 792 nor sought abatement of appellees, condemnation of the avocados in the California state courts, the case presented "no more than a mere prospect of interference posed by the bare existence of the law in question," and that it had "no authority to take jurisdiction [and was] left with no course other than to dismiss the action," which it did. 169 F. Supp. 774, 776. Appellants brought the case here on direct appeal under 28 U.S.C. § 1253, and we postponed the question of our jurisdiction to the hearing on the merits. 360 U.S. 915.The first and principal question presented is whether this action is one required by § 2281 to be heard by a District Court of three judges and, hence, whether we have jurisdiction of this direct appeal under § 1253.Section 2281 provides [Footnote 3] that an injunction restraining the enforcement of a state statute may not be granted Page 362 U. S. 76 upon the ground of unconstitutionality of such statute "unless the application therefor is heard and determined by a district court of three judges . . . ," and § 1253 provides [Footnote 4] that any order, granting or denying an injunction in any civil action required by any Act of Congress to be heard and determined by a District Court of three judges, may be appealed directly to this Court.Appellees concede that, if the complaint had attacked § 792 solely on the ground of conflict with the United States Constitution, the action would have been one required by § 2281 to be heard and determined by a District Court of three judges. But appellees contend that, because the complaint also attacks § 792 on the ground of conflict with the Federal Agricultural Marketing Agreement Act of 1937 and the Secretary's Florida Avocado Order No. 69, it is possible that the action could be determined on the statutory, rather than the constitutional, ground, and therefore the action was not required to be heard by a District Court of three judges under § 2281 and, hence, a direct appeal does not lie to this Court under § 1253.Section 2281 seems rather plainly to indicate a congressional intention to require an application for an injunction to be heard and determined by a court of three Page 362 U. S. 77 judges in any case in which the injunction may be granted on grounds of federal unconstitutionality. The reason for this is quite clear. The impetus behind the first three-judge court statute was the decision in Ex parte Young, 209 U. S. 123 (1908), in which it was held that a federal court could enjoin a state officer from enforcing a state statute alleged to be unconstitutional, despite the prohibition of the Eleventh Amendment concerning suits against a State. Debate was immediately launched in the Senate with regard to cushioning the impact of the Young case, the principal concern being with the power thus activated in one federal judge to enjoin the operation or enforcement of state legislation on grounds of federal unconstitutionality. [Footnote 5] Page 362 U. S. 78The result of the debates on this subject was passage of a three-judge court statute in 1910, 36 Stat. 557, which was codified as § 266 of the Judicial Code, 36 Stat. 1162. [Footnote 6] This statute prohibited the granting of an interlocutory injunction against a state statute upon grounds of federal unconstitutionality unless the application for injunction was heard and determined by a court of three judges. Page 362 U. S. 79 The statute also contained its own provision for direct appeal to this Court from an order granting or denying an interlocutory injunction. The objective of § 266 was clearly articulated by Mr. Chief Justice Taft in Cumberland Telephone & Telegraph Co. v. Louisiana Public Service Commission, 260 U. S. 212:"The legislation was enacted for the manifest purpose of taking away the power of a single United States Judge, whether District Judge, Circuit Judge, or Circuit Justice holding a District Court of the United States, to issue an interlocutory injunction against the execution of a state statute by a state officer or of an order of an administrative board of the state pursuant to a state statute, on the ground of the federal unconstitutionality of the statute. Pending the application for an interlocutory injunction, a single judge may grant a restraining order to be in force until the hearing of the application, but thereafter, so far as enjoining the state officers, his power is exhausted. The wording of the section leaves no doubt that Congress was, by provisions ex industria, seeking to make interference by interlocutory injunction from a federal court with the enforcement of state legislation regularly enacted and in course of execution a matter of the adequate hearing and the full deliberation which the presence of three judges, one of whom should be a Circuit Justice or Judge, was likely to secure. It was to prevent the improvident granting of such injunctions by a single judge, and the possible unnecessary conflict between federal and state authority always to be deprecated."260 U.S. at 260 U. S. 216. In 1925, § 266 was amended to require a three-judge court for issuance of a permanent as well as an interlocutory injunction, and § 238 of the Judicial Code (a broad statute governing direct appeals to this Court from District Page 362 U. S. 80 Courts) was amended, so far as here pertinent, to incorporate the provision for direct appeals to this Court from the orders of three-judge courts granting or denying an injunction in a § 266 case. 43 Stat. 938. Such is the present scheme of §§ 2281 and 1253.With this background, it seems entirely clear that the central concern of Congress in 1910 was to prevent one federal judge from granting an interlocutory injunction against state legislation on grounds of federal unconstitutionality. And the 1925 amendment requiring a court of three judges for issuance of a permanent as well as an interlocutory injunction"was designed to end the anomalous situation in which a single judge might reconsider and decide questions already passed upon by three judges on the application for an interlocutory injunction."Stratton v. St. Louis Southwestern R. Co., 282 U. S. 10, 282 U. S. 14. Section 2281, read in the light of this background, seems clearly to require that when, in any action to enjoin enforcement of a state statute, the injunctive decree may issue on the ground of federal unconstitutionality of the state statute, the convening of a three-judge court is necessary; and the joining in the complaint of a nonconstitutional attack along with the constitutional one does not dispense with the necessity to convene such a court. To hold to the contrary would be to permit one federal district judge to enjoin enforcement of a state statute on the ground of federal unconstitutionality whenever a nonconstitutional ground of attack was also alleged, and this might well defeat the purpose of § 2281.Cases in this Court since Louisville & Nashville R. Co. v. Garrett, 231 U. S. 298 (1913), have consistently adhered to the view that, in an injunction action challenging a state statute on substantial federal constitutional grounds, a three-judge court is required to be convened and has -- just as we have on a direct appeal from its action -- jurisdiction over all claims raised against the Page 362 U. S. 81 statute. [Footnote 7] These cases represent an unmistakable recognition of the congressional policy to provide for a three-judge court whenever a state statute is sought to be enjoined on grounds of federal unconstitutionality, and this consideration must be controlling. [Footnote 8] Page 362 U. S. 82Appellees place some reliance on Ex parte Buder, 271 U. S. 461, and Lemke v. Farmers Grain Co., 258 U. S. 50 (Lemke I), in support of their position. Buder held merely that a claim of conflict between a state statute and a federal statute was not a constitutional claim requiring the convening of a three-judge court under § 266, and thus there could be no direct appeal here. Buder did not, however, require that a constitutional claim be the sole claim before the three-judge court. Lemke I held that it was permissible to appeal to the Court of Appeals, rather than directly to this Court, from the final order of a single district judge in a case in which a state statute was attacked on the grounds that it was both unconstitutional Page 362 U. S. 83 and in conflict with a federal statute. The case was decided under § 238, which, until 1925, was a broad statute calling for a direct appeal to this Court from the action of a District Court"in any case that involves the construction or application of the Constitution of the United States . . . and in any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States."The breadth of § 238 had led the Court on several occasions to construe this provision to mean that a direct appeal to this Court was required only when the sole ground of District Court jurisdiction was the federal constitutional claim involved, Union & Planters' Bank v. Memphis, 189 U. S. 71, 189 U. S. 73; Carolina Glass Co. v. South Carolina, 240 U. S. 305, 240 U. S. 318, but if jurisdiction was based both on a constitutional ground and some other federal ground, the appeal might properly be taken either to this Court or to the Court of Appeals. Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 192 U. S. 407-408; Macfadden v. United States, 213 U. S. 288, 213 U. S. 293. Lemke I, decided in 1922, merely followed this line of decisions, and was not in any way concerned with a direct appeal to this Court under § 266 from the order of a three-judge court -- the question now before us.The distinction between the scope of our direct appellate jurisdiction under § 238 and § 266 prior to 1925 was effectively illustrated by the differing course of events in Lemke I and Lemke v. Homer Farmers Elevator Co., 258 U. S. 65 (Lemke II). Both cases involved an attack on a state statute on grounds of federal unconstitutionality and conflict with a federal statute. In both, interlocutory injunctions were sought before three-judge courts, and the injunctions were granted. Lemke I, however, also sought a permanent injunction before a single district judge, and, from his order denying the injunction, the case was appealed to the Court of Appeals before coming here. Lemke II, on the other hand, was directly Page 362 U. S. 84 appealed to this Court under § 266 from the interlocutory order of the three-judge court. As indicated, this Court held that the final order of the single judge in Lemke I was properly appealed to the Court of Appeals under § 238 because of the additional nonconstitutional basis for District Court jurisdiction. But, in Lemke II, this Court took jurisdiction over all issues presented in the direct appeal under § 266 from the interlocutory order of the three-judge court. See also Shafer v. Farmers Grain Co., 268 U. S. 189, a case virtually identical with Lemke II, in which this Court also took jurisdiction over all questions in a § 266 direct appeal from an interlocutory injunction granted by a three-judge court.The problem was greatly simplified in 1925 when § 266 was amended to require three-judge courts for the granting of both interlocutory and permanent injunctions on grounds of federal unconstitutionality, and § 238, while substantially amended to reduce the scope of our general appellate jurisdiction, so far as here pertinent, merely incorporated the provision for direct appeals to this Court from injunctions granted or denied under § 266. We do not find in these amendments any intention to curtail either the jurisdiction of three-judge courts or our jurisdiction on direct appeal from their orders. Indeed, the cases since 1925 have continued to maintain the view that, if the constitutional claim against the state statute is substantial, a three-judge court is required to be convened and has jurisdiction, as do we on direct appeal, over all grounds of attack against the statute. E.g., Sterling v. Constantin, 287 U. S. 378, 287 U. S. 393-394; Railroad Comm'n of California v. Pacific Gas & Electric Co., 302 U. S. 388, 302 U. S. 391; Public Service Comm'n v. Brashear Freight Lines, 312 U. S. 621, 312 U. S. 625, note 5.To hold that only one judge may hear and decide an action to enjoin the enforcement of a state statute on both constitutional and nonconstitutional grounds would be Page 362 U. S. 85 to ignore the explicit language and manifest purpose of § 2281, which is to provide for a three-judge court whenever an injunction sought against a state statute may be granted on federal constitutional grounds. Where a complaint seeks to enjoin a state statute on substantial grounds of federal unconstitutionality, then, even though nonconstitutional grounds of attack are also alleged, we think the case is one that is "required by . . . Act of Congress to be heard and determined by a district court of three judges." 28 U.S.C. § 1253. (Emphasis added.) We therefore hold that we have jurisdiction of this direct appeal.We turn now to the merits. The Court is of the view that the District Court was in error in holding that, because appellants had not contested the validity of § 792 nor sought abatement of appellees' condemnation of their avocados, there was no "existing dispute as to present legal rights," but only "a mere prospect of interference posed by the bare existence of the law in question (§ 792)," and in accordingly dismissing the action for want of jurisdiction. As earlier stated, the complaint alleges that, since the issuance of the Secretary's Florida Avocado Order No. 69 in 1954, appellants have made more than a score of shipments in interstate commerce of Florida avocados to and for sale in California, and appellees, or their agents, have in effect consistently condemned those avocados for failure to contain 8% or more of oil by weight, thus requiring appellants -- to prevent destruction and complete loss of their shipments -- to reship the avocados to and sell them in other States, all in violation of the Commerce and Equal Protection Clauses of the United States Constitution as well as the Marketing Agreement Act of 1937. It is therefore evident that there is an existing dispute between the parties as to present legal rights amounting to a justiciable controversy which appellants are entitled to have determined on the Page 362 U. S. 86 merits. In these circumstances, the fact that appellants did not contest the validity of § 792 nor seek abatement of appellees' condemnation of the avocados in the California state courts -- which, because of the time period necessarily involved, would have resulted in the complete spoilage and loss of the product -- does not constitute an impediment to their right to seek an injunction in the federal court against enforcement of § 792 on the ground that it violates both the Constitution of the United States and the Federal Agricultural Marketing Agreement Act of 1937.The judgment is therefore reversed, and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtFlorida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73 (1960)Florida Lime and Avocado Growers, Inc. v. JacobsenNo. 49Argued December 9-10, 1959Decided March 7, 1960362 U.S. 73SyllabusAppellants who are engaged in the business of growing, packing and marketing Florida avocados in interstate commerce, sued in a Federal District Court to enjoin appellees, state officers of California, from enforcing § 792 of the California Agricultural Code, which prohibits the importation or sale in California of avocados containing less than 8% of oil by weight. Appellants claimed that § 792 violated the Commerce and Equal Protection Clauses of the Federal Constitution, as well as the Federal Agricultural Marketing Agreement Act of 1937 and Florida Avocado Order No. 69 issued thereunder. A three-judge District Court convened to hear the case dismissed the action, and a direct appeal was taken to this Court.Held:1. Since the complaint sought an injunction against enforcement of the state statute on grounds of federal unconstitutionality, the action was required to be heard by a three-judge District Court under 28 U.S.C. § 2281, and this Court has jurisdiction of this direct appeal under 28 U.S.C. §1253 -- notwithstanding the fact that the complaint also alleged that the state statute conflicted with the federal Act. Pp. 362 U. S. 75-85.2. In view of the allegation of the complaint that appellants have made more than a score of shipments of Florida avocados to California and that appellees have consistently condemned them for failure to contain 8% or more of oil by weight, thus forcing appellants to reship them and sell them in other States to prevent their destruction and complete loss, there is an existing dispute between the parties as to present legal rights amounting to a justiciable controversy; and the fact that appellants did not contest the validity of § 792 or seek abatement of appellees' condemnation of the avocados in California state courts does not bar their right Page 362 U. S. 74 to seek an injunction in the federal courts against its enforcement on the ground that it violates both the Federal Constitution and the Federal Agricultural Marketing Agreement Act of 1937. Pp. 362 U. S. 85-86.169 F. Supp. 774 reversed.

1977_76-1607

MR JUSTICE REHNQUIST delivered the opinion of the Court.Under the Securities Exchange Act of 1934, ch. 404, 48 Stat. 881, the Securities and Exchange Commission has the authority "summarily to suspend trading in any security . . . for a period not exceeding ten days" if "in its opinion the public interest and the protection of investors so require." [Footnote 1] Acting Page 436 U. S. 106 pursuant to this authority, the Commission issued a series of consecutive orders suspending trading in the common stock of Canadian Javelin, Ltd. (CJL), for over a year. The Court of Appeals for the Second Circuit held that such a series of suspensions was beyond the scope of the Commission's statutory authority. 547 F.2d 152, 157-158 (1976). We granted certiorari to consider this important question, 434 U.S. 901 (1977), and, finding ourselves in basic agreement with the Court of Appeals, we affirm. We hold that, even though there be a periodic redetermination of whether such action is required by "the public interest" and for "the protection of investors," the Commission is not empowered to issue, based upon a single set of circumstances, a series of summary orders which would suspend trading beyond the initial 10-day period.IOn November 29, 1973, apparently because CJL had disseminated allegedly false and misleading press releases concerning certain of its business activities, the Commission issued the first of what was to become a series of summary 10-day suspension orders continuously suspending trading in CJL common stock from that date until January 26, 1975. App. 109. During this series of suspensions, respondent Sloan, who owned 13 shares of CJL stock and had engaged in substantial purchases and short sales of shares of that stock, filed a petition in the United States Court of Appeals for the Second Circuit challenging the orders on a variety of grounds. On October 15, 1975, the court dismissed as frivolous all respondent's claims, except his allegation that the "tacking" of 10-day summary suspension orders for an indefinite period was an abuse of the agency's authority and a deprivation of due process. It further concluded, however, that, in light of two events which had occurred prior to argument, it could not address this question at that time. The first event of significance was the resumption of trading on January 26, 1975. Page 436 U. S. 107 The second was the commencement of a second series of summary 10-day suspension orders, which was still in effect on October 15. This series had begun on April 29, 1975, when the Commission issued a 10-day order based on the fact that the Royal Canadian Mounted Police had launched an extensive investigation into alleged manipulation of CJL common stock on the American Stock Exchange and several Canadian stock exchanges. App. 11-12. This time, 37 separate orders were issued, suspending trading continuously from April 29, 1975, to May 2, 1976. The court thought the record before it on October 15 inadequate in light of these events, and dismissed respondent's appeal "without prejudice to his repleading after an administrative hearing before the SEC . . . ," which hearing, though apparently not required by statute or regulation, had been offered by the Commission at oral argument. 527 F.2d 11, 12 (1975), cert. denied, 426 U.S. 935 (1976).Thereafter, respondent immediately petitioned the Commission for the promised hearing. The hearing was not forthcoming, however, so, on April 23, 1976, during the period when the second series of orders was still in effect, respondent brought the present action pursuant to § 25(a)(1) of the Act, 15 U.S.C. § 78y(a)(1) (1976 ed.), challenging the second series of suspension orders. He argued, among other things, that there was no rational basis for the suspension orders, that they were not supported by substantial evidence in any event, and that the "tacking" of 10-day summary suspension orders was beyond the Commission's authority because the statute specifically authorized suspension "for a period not exceeding ten days." [Footnote 2] The court held in respondent's favor on this latter point. It first concluded that, despite the fact that there had been no 10-day suspension order in effect since May 2, Page 436 U. S. 108 1976, and the Commission had asserted that it had no plans to consider or issue an order against CJL in the foreseeable future, the case was not moot because it was "capable of repetition, yet evading review.'" 547 F.2d at 158, quoting from Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911).The court then decided that the statutes which authorized summary suspensions -- § 12(k) and its predecessors -- did not empower the Commission to issue successive orders to curtail trading in a security for a period beyond the initial 10-day period. 547 F.2d at 157-158. We granted certiorari, specifically directing the attention of the parties to the question of mootness, 434 U.S. 901 (1977), to which we now turn.IIRespondent argues that this case is not moot because, as the Court of Appeals observed, it is "capable of repetition, yet evading review." [Footnote 3] The Commission, on the other hand, does not urge that the case is demonstrably moot, but rather that there simply are not enough facts on the record to allow a proper determination of mootness. It argues that there is no "reasonable expectation" that respondent will be harmed by further suspensions because,"'the investing public now ha[ving] been apprised of the relevant facts, the concealment of which had threatened to disrupt the market in CJL stock, there is no reason to believe that it will be necessary to suspend trading again.'"Brief for Petitioner 15, quoting from Pet. for Cert. 12 n. 7. Cf. Weinstein v. Bradford, 423 U. S. 147, 423 U. S. 149 (1975). The Commission concedes, however, that respondent, in his capacity as a diversified investor, might be harmed in the future by the suspension of some other Page 436 U. S. 109 security which he owns. But it further contends that respondent has not provided enough data about the number or type of securities in his portfolio to enable the Court to determine whether there is a "reasonable" likelihood that any of those securities will be subjected to consecutive summary suspension orders. [Footnote 4]Contrary to the Commission's contention, we think even on the record presently before us this case falls squarely within the general principle first enunciated in Southern Pacific Terminal Co. v. ICC, supra, and further clarified in Weinstein v. Bradford, supra, that, even in the absence of a class action, a case is not moot when"(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again."Weinstein v. Bradford, supra, at 423 U. S. 147 (emphasis added). That the first prong of this test is satisfied is not in dispute. A series of consecutive suspension orders may last no more than 20 days, making effective judicial review impossible during the life of the orders. We likewise have no doubt that the second part of the test also has been met here. CJL has, to put it mildly, a history of sailing close to the wind. [Footnote 5] Thus, Page 436 U. S. 110 the Commission's protestations to the contrary notwithstanding, there is a reasonable expectation, within the meaning of Weinstein v. Bradford, supra, that CJL stock will again be subjected to consecutive summary suspension orders and that respondent, who apparently still owns CJL stock, will suffer the same type of injury he suffered before. This is sufficient, in and of itself, to satisfy this part of the test. But in addition, respondent owns other securities the trading of which may also be summarily suspended. As even the Commission admits, this fact can only increase the probability that respondent will again suffer the type of harm of which he is presently complaining. It thus can only buttress our conclusion that there is a reasonable expectation of recurring injury to the same complaining party.IIIATurning to the merits, we note that this is not a case where the Commission, discovering the existence of a manipulative scheme affecting CJL stock, suspended trading for 10 days and then, upon the discovery of a second manipulative scheme or other improper activity unrelated to the first scheme, ordered a second 10-day suspension. [Footnote 6] Instead, it is a case in which the Page 436 U. S. 111 Commission issued a series of summary suspension orders lasting over a year on the basis of evidence revealing a single, though likely sizable, manipulative scheme. [Footnote 7] Thus, the only question confronting us is whether, even upon a periodic redetermination of "necessity," the Commission is statutorily authorized to issue a series of summary suspension orders based upon a single set of events or circumstances which threaten an orderly market. This question must, in our opinion, be answered in the negative.The first and most salient point leading us to this conclusion is the language of the statute. Section 12(k) authorizes the Commission "summarily to suspend trading in any security . . . for a period not exceeding ten days. . . ." 15 U.S.C. § 78l(k) (1976 ed.) (emphasis added). The Commission would have us read the underscored phrase as a limitation only upon the duration of a single suspension order. So read, the Commission could indefinitely suspend trading in a security without any hearing or other procedural safeguards as long as it redetermined every 10 days that suspension was required by Page 436 U. S. 112 the public interest and for the protection of investors. While perhaps not an impossible reading of the statute, we are persuaded it is not the most natural or logical one. The duration limitation rather appears on its face to be just that -- a maximum time period for which trading can be suspended for any single set of circumstances.Apart from the language of the statute, which we find persuasive in and of itself, there are other reasons to adopt this construction of the statute. In the first place, the power to summarily suspend trading in a security even for 10 days, without any notice, opportunity to be heard, or findings based upon a record, is an awesome power with a potentially devastating impact on the issuer, its shareholders, and other investors. A clear mandate from Congress, such as that found in § 12(k), is necessary to confer this power. No less clear a mandate can be expected from Congress to authorize the Commission to extend, virtually without limit, these periods of suspension. But we find no such unmistakable mandate in § 12(k). Indeed, if anything, that section points in the opposite direction.Other sections of the statute reinforce the conclusion that, in this area, Congress considered summary restrictions to be somewhat drastic, and properly used only for very brief periods of time. When explicitly longer term, though perhaps temporary, measures are to be taken against some person, company, or security, Congress invariably requires the Commission to give some sort of notice and opportunity to be heard. For example § 12(j) of the Act authorizes the Commission, as it deems necessary for the protection of investors, to suspend the registration of a security for a period not exceeding 12 months if it makes certain findings "on the record after notice and opportunity for hearing. . . ." 15 U.S.C. § 78l(j) (1976 ed.) (emphasis added). Another section of the Act empowers the Commission to suspend broker-dealer registration for a period not exceeding 12 months upon certain findings made Page 436 U. S. 113 only "on the record after notice and opportunity for hearing." § 78o(b)(4) (1976 ed.) (emphasis added). Still another section allows the Commission, pending final determination whether a broker-dealer's registration should be revoked, to temporarily suspend that registration, but only "after notice and opportunity for hearing." § 78o(b)(5) (1976 ed.) (emphasis added). Former § 15(b)(6), which dealt with the registration of broker-dealers, also lends support to the notion that, as a general matter, Congress meant to allow the Commission to take summary action only for the period specified in the statute when that action is based upon any single set of circumstances. That section allowed the Commission to summarily postpone the effective date of registration for 15 days, and then, after appropriate notice and opportunity for hearing, to continue that postponement pending final resolution of the matter. [Footnote 8] The section which replaced § 15(b)(6) even further underscores this general pattern. It requires the Commission to take some action -- either granting the registration or instituting proceedings to determine whether registration should be denied -- within 45 days. 15 U.S.C. § 78o(b)(1) (1976 ed.). In light of the explicit congressional recognition in other sections of the Act, both past and present, that any long-term sanctions or any continuation of summary Page 436 U. S. 114 restrictions must be accompanied by notice and an opportunity for a hearing, it is difficult to read the silence in § 12(k) as an authorization for an extension of summary restrictions without such a hearing, as the Commission contends. The more plausible interpretation is that Congress did not intend the Commission to have the power to extend the length of suspensions under § 12(k) at all, much less to repeatedly extend such suspensions without any hearing.BThe Commission advances four arguments in support of its position, none of which we find persuasive. It first argues that only its interpretation makes sense out of the statute. That is, if the Commission discovers a manipulative scheme and suspends trading for 10 days, surely it can suspend trading 30 days later upon the discovery of a second manipulative scheme. But if trading may be suspended a second time 30 days later upon the discovery of another manipulative scheme, it surely could be suspended only 10 days later if the discovery of the second scheme were made on the eve of the expiration of the first order. And, continues the Commission, since nothing on the face of the statute requires it to consider only evidence of new manipulative schemes when evaluating the public interest and the needs of investors, it must have the power to issue consecutive suspension orders even in the absence of a new or different manipulative scheme, as long as the public interest requires it.This argument is unpersuasive, however, because the conclusion simply does not follow from the various premises. Even assuming the Commission can again suspend trading upon learning of another event which threatens the stability of the market, it simply does not follow that the Commission therefore must necessarily have the power to do so even in the absence of such a discovery. On its face and in the context of this statutory pattern, § 12(k) is more properly viewed as a Page 436 U. S. 115 device to allow the Commission to take emergency action for 10 days while it prepares to deploy its other remedies, such as a temporary restraining order, a preliminary or permanent injunction, or a suspension or revocation of the registration of a security. The Commission's argument would render unnecessary to a greater or lesser extent all of these other admittedly more cumbersome remedies which Congress has given to it.Closely related to the Commission's first argument is its second -- its construction furthers the statute's remedial purposes. Here, the Commission merely asserts that it"has found that the remedial purposes of the statute require successive suspension of trading in particular securities, in order to maintain orderly and fair capital markets."Brief for Petitioner 37. Other powers granted the Commission are, in its opinion, simply insufficient to accomplish its purposes.We likewise reject this argument. In the first place, the Commission has not made a very persuasive showing that other remedies are ineffective. It argues that injunctions and temporary restraining orders are insufficient because they take time and evidence to obtain and because they can be obtained only against wrongdoers, and not necessarily as a stopgap measure in order to suspend trading simply until more information can be disseminated into the marketplace. The first of these alleged insufficiencies is no more than a reiteration of the familiar claim of many Government agencies that any semblance of an adversary proceeding will delay the imposition of the result which they believe desirable. It seems to us that Congress, in weighing the public interest against the burden imposed upon private parties, has concluded that 10 days is sufficient for gathering necessary evidence.This very case belies the Commission's argument that injunctions cannot be sought in appropriate cases. At exactly the same time the Commission commenced the first series of suspension orders, it also sought a civil injunction against CJL and certain of its principals, alleging violations of the registration Page 436 U. S. 116 and antifraud provisions of the Securities Act of 1933, violations of the antifraud and reporting provisions of the Securities Exchange Act of 1934, and various other improper practices, including the filing of false reports with the Commission and the dissemination of a series of press releases containing false and misleading information. App. 109. And during the second series of suspension orders, the Commission approved the filing of an action seeking an injunction against those in the management of CJL to prohibit them from engaging in further violations of the Acts. Id. at 101.The second of these alleged insufficiencies is likewise less than overwhelming. Even assuming that it is proper to suspend trading simply in order to enhance the information in the marketplace, there is nothing to indicate that the Commission cannot simply reveal to the investing public at the end of 10 days the reasons which it thought justified the initial summary suspension and then let the investors make their own judgments.Even assuming, however, that a totally satisfactory remedy -- at least from the Commission's viewpoint -- is not available in every instance in which the Commission would like such a remedy, we would not be inclined to read § 12(k) more broadly than its language and the statutory scheme reasonably permit. Indeed, the Commission's argument amounts to little more than the notion that § 12(k) ought to be a panacea for every type of problem which may beset the marketplace. This does not appear to be the first time the Commission has adopted this construction of the statute. As early as 1961, a recognized authority in this area of the law called attention to the fact that the Commission was gradually carrying over the summary suspension power granted in the predecessors of § 12(k) into other areas of its statutory authority and using it as a pendente lite power to keep in effect a suspension of trading pending final disposition of delisting proceedings. 2 L. Loss, Securities Regulation 854-855 (2d ed.1961). Page 436 U. S. 117The author then questioned the propriety of extending the summary suspension power in that manner, id. at 854, and we think those same questions arise when the Commission argues that the summary suspension power should be available not only for the purposes clearly contemplated by § 12(k), but also as a solution to virtually any other problem which might occur in the marketplace. We do not think § 12(k) was meant to be such a cure-all. It provides the Commission with a powerful weapon for dealing with certain problems. But its time limit is clearly and precisely defined. It cannot be judicially or administratively extended simply by doubtful arguments as to the need for a greater duration of suspension orders than it allows. If extension of the summary suspension power is desirable, the proper source of that power is Congress. Cf. FMC v. Seatrain Lines, Inc., 411 U. S. 726, 411 U. S. 744-745 (1973).The Commission next argues that its interpretation of the statute -- that the statute authorizes successive suspension orders -- has been both consistent and longstanding, dating from 1944. It is thus entitled to great deference. See United States v. National Assn. of Securities Dealers, 422 U. S. 694, 422 U. S. 719 (1975); Saxbe v. Bustos, 419 U. S. 65, 419 U. S. 74 (1974).While this undoubtedly is true as a general principle of law, it is not an argument of sufficient force in this case to overcome the clear contrary indications of the statute itself. In the first place, it is not apparent from the record that, on any of the occasions when a series of consecutive summary suspension orders was issued, the Commission actually addressed in any detail the statutory authorization under which it took that action. As we said just this Term in Adamo Wrecking Co. v. United States, 434 U. S. 275, 434 U. S. 287 n. 5 (1978):"This lack of specific attention to the statutory authorization is especially important in light of this Court's pronouncement in Skidmore v. Swift & Co., 323 U. S. 134, 323 U. S. 140 (1944), that one factor to be considered in giving Page 436 U. S. 118 weight to an administrative ruling is 'the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'"To further paraphrase that opinion, since this Court can only speculate as to the Commission's reasons for reaching the conclusion that it did, the mere issuance of consecutive summary suspension orders, without a concomitant exegesis of the statutory authority for doing so, obviously lacks "power to persuade" as to the existence of such authority. Ibid. Nor does the existence of a prior administrative practice, even a well explained one, relieve us of our responsibility to determine whether that practice is consistent with the agency's statutory authority."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."Volkswagenwerk v. FMC, 390 U. S. 261, 390 U. S. 272 (1968). And this is just such a case -- the construction placed on the statute by the Commission, though of long standing, is, for the reasons given in 436 U. S. inconsistent with the statutory mandate. We explicitly contemplated just this Page 436 U. S. 119 situation in FMC v. Seatrain Lines, Inc., supra, at 411 U. S. 745, where we said:"But the Commission contends that, since it is charged with administration of the statutory scheme, its construction of the statute over an extended period should be given great weight. . . . This proposition may, as a general matter, be conceded, although it must be tempered with the caveat that an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate."And our clear duty in such a situation is to reject the administrative interpretation of the statute.Finally, the Commission argues that, for a variety of reasons, Congress should be considered to have approved the Commission's construction of the statute as correct. Not only has Congress reenacted the summary suspension power without disapproving the Commission's construction, but the Commission participated in the drafting of much of this legislation and, on at least one occasion, made its views known to Congress in Committee hearings. [Footnote 9] Furthermore, at least one Committee Page 436 U. S. 120 indicated on one occasion that it understood and approved of the Commission's practice. [Footnote 10] See Zuber v. Allen, 396 U. S. 168, 396 U. S. 192 (1969); United States v. Correll, 389 U. S. 299, 389 U. S. 305-306 (1967); Fribourg Navigation Co. v. Commissioner, 383 U. S. 272, 383 U. S. 283 (1966).While we, of course, recognize the validity of the general principle illustrated by the cases upon which the Commission relies, we do not believe it to be applicable here. In Zuber v. Allen, supra at 396 U. S. 192, the Court stated that a contemporaneous administrative construction of an agency's own enabling legislation"is only one input in the interpretational equation. Its impact carries most weight when the administrators participated in drafting and directly made known their views to Congress in committee hearings."Here, the administrators, so far as we are advised, made no reference at all to their present construction of 12(k) to the Congress which drafted the "enabling legislation" here in question -- the Securities Exchange Act of 1934. They made known to at least one Committee their subsequent construction of that section 29 years later, at a time when the attention of the Committee and of the Congress was focused on issues not directly related to Page 436 U. S. 121 the one presently before the Court. [Footnote 11] Although the section in question was reenacted in 1964, and while it appears that the Committee Report did recognize and approve of the Commission's practice, this is scarcely the sort of congressional approval referred to in Zuber, supra.We are extremely hesitant to presume general congressional awareness of the Commission's construction based only upon a few isolated statements in the thousands of pages of legislative documents. That language in a Committee Report, without additional indication of more widespread congressional awareness, is simply not sufficient to invoke the presumption in a case such as this. For here its invocation would result in a construction of the statute which not only is at odds with the language of the section in question and the pattern of the statute taken as a whole, but also is extremely far reaching in terms of the virtually untrammeled and unreviewable power it would vest in a regulatory agency.Even if we were willing to presume such general awareness on the part of Congress, we are not at all sure that such awareness at the time of reenactment would be tantamount to amendment of what we conceive to be the rather plain meaning of the language of § 12(k). On this point, the present case differs significantly from United States v. Correll, supra, at 389 U. S. 304, where the Court took pains to point out in relying on a construction of a tax statute by the Commissioner of Internal Revenue that, "to the extent that the words chosen by Congress cut in either direction, they tend to support, rather than defeat, the Commissioner's position. . . ."Subsequent congressional pronouncements also cast doubt on whether the prior statements called to our attention can be Page 436 U. S. 122 taken at face value. When consolidating the former §§ 15(c)(5) and 19(a)(4) in 1975, see n 1, supra, Congress also enacted § 12(j), which allows the Commission"to suspend for a period not exceeding twelve months, or to revoke the registration of a security, if the Commission finds, on the record after notice and opportunity for hearing, that the issuer of such security has failed to comply with any provision of this chapter or the rules and regulations thereunder."15 U.S.C. § 78l(j) (1976 ed.). While this particular power is not new, see 15 U.S.C. § 78s(a)(2), the effect of its exercise was expanded to include a suspension of trading. [Footnote 12] "With this change," stated the Senate Committee on Banking, Housing and Urban Affairs, "the Commission is expected to use this section, rather than its ten-day suspension power, in cases of extended duration." S.Rep. No. 975, p. 106 (1975) (emphasis added). Thus, even assuming, arguendo, that the 1963 statements have more force than we are willing to attribute to them, and that, as,the Commission argues, § 12(j) does not cover quite as broad a range of situations as § 12(k), the 1975 congressional statements would still have to be read as seriously undermining the continued validity of the 1963 statements as a basis upon which to adopt the Commission's construction of the statute.In sum, had Congress intended the Commission to have the power to summarily suspend trading virtually indefinitely, we expect that it could and would have authorized it more clearly than it did in § 12(k). The sweeping nature of that power supports this expectation. The absence of any truly persuasive legislative history to support the Commission's view, Page 436 U. S. 123 and the entire statutory scheme suggesting that, in fact, the Commission is not so empowered, reinforce our conclusion that the Court of Appeals was correct in concluding no such power exists. Accordingly, its judgment isAffirmed

U.S. Supreme CourtSEC v. Sloan, 436 U.S. 103 (1978)Securities and Exchange Commission v. SloanNo. 76-1607Argued March 27-28, 1978Decided May 15, 1978436 U.S. 103SyllabusThe Securities and Exchange Commission (Commission) has the authority under § 12(k) of the Securities Exchange Act of 1934 (Act) "summarily to suspend trading in any security . . . for a period not exceeding ten days" if "in its opinion the public interest and the protection of investors so require." Acting pursuant to § 12(k) and its predecessor, the Commission issued a series of summary 10-day orders continuously suspending trading in the common stock of a certain corporation for over a year. Respondent, who owned 13 shares of the stock and who had engaged in substantial purchases and short sales of shares of the stock, filed a petition pursuant to the Act in the Court of Appeals for a review of the orders, contending, inter alia, that the "tacking" of the 10-day summary suspension orders exceeded the Commission's authority under § 12(k). Because shortly after the suit was brought no suspension order remained in effect and the Commission asserted that it had no plans to issue such orders in the foreseeable future, the Commission claimed that the case was moot. The court rejected that claim and upheld respondent's position on the merits. In this Court, the Commission contends that the facts on the record are inadequate to allow a proper resolution of the mootness issue, and that, in any event, it has the authority to issue consecutive 10-day summary suspension orders.Held:1. The case is not moot, since it is "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 219 U. S. 515. Effective judicial review is precluded during the life of the orders because a series of consecutive suspension orders may last no more than 20 days. In view of the numerous violations ascribed to the corporation involved, there is a reasonable probability that its stock will again be subjected to consecutive summary suspension orders; thus, there is a "reasonable expectation that the same complaining party" will be subjected to the same action again. Cf. Weinstein v. Bradford, 423 U. S. 147. Pp. 108-110.2. The Commission does not have the authority under § 12(k), based upon a single set of circumstances, to issue a series of summary orders that would suspend trading in a stock beyond the initial 10-day period, Page 436 U. S. 104 even though the Commission periodically redetermines that such action is required by "the public interest" and for "the protection of investors." Pp. 436 U. S. 110-123.(a) The language of the statute establishes the 10-day period as the maximum time during which stock trading can be suspended for any single set of circumstances. Pp. 436 U. S. 111-112.(b) In view of congressional recognition in other sections of the Act that any long-term sanctions or continuation of summary restrictions must be accompanied by notice and an opportunity for a hearing, the absence of any provision in § 12(k) for extending summary suspensions beyond the initial 10-day period must be taken as a clear indication that extended summary restrictions are not authorized under § 12(k). Pp. 436 U. S. 112-114.(c) The statutory pattern leaves little doubt that § 12(k) is designed to empower the Commission to prepare to deploy such other remedies as injunctive relief or a suspension or revocation of security registration, not to empower the Commission to reissue a summary order absent the discovery of a new manipulative scheme. Pp. 436 U. S. 114-115.(d) Those other remedies are not as unavailable as the Commission claims, as is evidenced by this very case, where the Commission during the first series of suspension orders actually sought an injunction against the corporation involved and certain of its principals, and, during the second series of suspensions, approved the filing of an injunction action against its management. Moreover, though the Commission contends that the suspension of trading is necessary for the dissemination in the marketplace of information about manipulative schemes, the Commission is at liberty to reveal such information at the end of the 10-day period and let investors make their own judgments. And in any event, the mere claim that a broad summary suspension power is necessary cannot persuade the Court to read § 12(k) more broadly than its language and the statutory scheme reasonably permit. Pp. 436 U. S. 115-117.(e) Though the Commission's view that the Act authorizes successive suspension orders may be entitled to deference, that consideration cannot overcome the clear contrary indications of the statute itself, especially when the Commission has not accompanied its administrative construction with a contemporaneous well reasoned explanation of its action. Adamo Wrecking Co. v. United States, 434 U. S. 275, 434 U. S. 287-288, n. 5. Pp. 436 U. S. 117-119.(f) There is no convincing indication that Congress has approved the Commission's construction of the Act. Pp. 436 U.S. 119-123.547 F.2d 152, affirmed. Page 436 U. S. 105REHNQUIST, 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, in which MARSHALL, J., joined, post, p. 436 U. S. 123. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 436 U. S. 126.

1970_156

MR. JUSTICE BLACK delivered the opinion of the Court.Respondent, Yee Chien Woo, is a native of mainland China, a Communist country, who fled that country in 1953 and sought refuge in Hong Kong. He lived in Hong Kong until 1959, when he came to the United States as a visitor to sell merchandise through a concession at a trade fair in Portland, Oregon. After a short stay, he returned to Hong Kong only to come back to the United States in 1960 to participate in the San Diego Fair and International Trade Mart to promote his Hong Kong business. Thereafter, he remained in the United States, although he continued to maintain his clothing business in Hong Kong until 1965. In 1965, respondent's wife and son obtained temporary visitor's permits and joined him in this country. By 1966, all three had overstayed their permits, and were no longer authorized to remain in this country. After the Immigration and Naturalization Service began deportation proceedings, Yee Chien Woo applied for an immigrant visa claiming a "preference" Page 402 U. S. 51 as an alien who had fled a Communist country fearing persecution as defined in § 203(a)(7) of the Immigration and Nationality Act of 1952, as amended. 79 Stat. 913, 8 U.S.C. § 1153(a)(7) (1964 ed., Supp. V).The District Director of the Immigration and Naturalization Service denied respondent's application because"the applicant's presence in the United States . . . was not and is not now a physical presence which was a consequence of his flight in search of refuge from the Chinese mainland."(Emphasis added.) On appeal within the Immigration and Naturalization Service, the decision of the District Director was affirmed by the Regional Commissioner on the ground that"Congress did not intend that an alien, though formerly a refugee, who had established roots or acquired a residence in a country other than the one from which he fled would again be considered a refugee for the purpose of gaining entry into and or subsequently acquiring status as a resident in this, the third country."Respondent then sought review in the United States District Court for the Southern District of California, which reversed the District Director's determination. That court, without ever deciding whether resettlement would have barred respondent's claim, found as a matter of fact that he had never firmly resettled in Hong Kong. [Footnote 1] The Immigration and Naturalization Service appealed to the United States Court of Appeals for the Ninth Circuit. That court affirmed the District Court because in its view whether Yee Chien Woo was "firmly resettled" in Hong Kong was "irrelevant" to Page 402 U. S. 52 consideration of his application for an immigration quota. It stated:"Whether appellee was firmly resettled in Hong Kong is not, then, relevant. What is relevant is that he is not a national of Hong Kong (or the United Kingdom); that he is a national of no country but Communist China, and, as a refugee from that country, remains stateless."419 F.2d 252, 254 (1969). The Court of Appeals for the Second Circuit in a case decided after the Ninth Circuit decision below faced the issue of the relevancy of resettlement and expressly declined to follow the Ninth Circuit interpretation of the statute. [Footnote 2] Shen v. Esperdy, 428 F.2d 293 (1970). We granted certiorari in this case to resolve the conflict. 400 U.S. 864 (1970).Since 1947, the United States has had a congressionally enacted immigration and naturalization policy which granted immigration preferences to "displaced persons," "refugees," or persons who fled certain areas of the world because of "persecution or fear of persecution on account of race, religion, or political opinion." Although the language through which Congress has implemented this policy since 1947 has changed slightly from time to time, the basic policy has remained constant -- to provide a haven for homeless refugees and to fulfill American responsibilities in connection with the International Refugee Organization of the United Nations. This policy is currently embodied in the "Seventh Preference" of § 203(a) Page 402 U. S. 53 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1153(a) (1964 ed., Supp. V), which provides in pertinent part:"(a) Aliens who are subject to the numerical limitations specified in section 201(a) shall be allotted visas or their conditional entry authorized, as the case may be, as follows: ""* * * *" "(7) [A]liens who satisfy an Immigration and Naturalization Service officer at an examination in any non-Communist or non-Communist-dominated country, (A) that (i) because of persecution or fear of persecution on account of race, religion, or political opinion they have fled (1) from any Communist or Communist-dominated country or area, . . . and (ii) are unable or unwilling to return to such country or area on account of race, religion, or political opinion, and (iii) are not nationals of the countries or areas in which their application for conditional entry is made. . . ."The Ninth Circuit supported its conclusion that the "firmly resettled" concept was irrelevant under § 203(a)(7) upon two bases. First, the court noted that the "firmly resettled" language was first introduced in the Displaced Persons Act of 1948, 62 Stat. 1009, and was then expressly stated in the Refugee Relief Act of 1953, 67 Stat. 400, both of which are predecessors of the present legislation. [Footnote 3] However, when the Refugee Relief Act of Page 402 U. S. 54 1953 was extended in 1957, the "firmly resettled" language was dropped in favor of a formula defining an eligible refugee as "any alien who, because of persecution or fear of persecution on account of race, religion, or political opinion has fled or shall flee" from certain areas. 71 Stat. 643. The 1957 Act was then followed by the Fair Share Refugee Act of 1960, 74 Stat. 504, which defined "refugee" as one"not a national of the area in which the application is made, and (3) [who] is within the mandate of the United Nations High Commissioner for Refugees."Finally, the present legislation was added to the Immigration and Nationality Act in 1965. From the 1957 abandonment of the words "firmly resettled" the Court of Appeals determined that Congress had purposely rejected "resettlement" as a test for eligibility for refugee status.Second, the Ninth Circuit gave particular significance to the statutory requirement that refugees "are not nationals of the countries or areas in which their application for conditional entry is made." Thus, in the court's view, Congress intended to substitute the "not nationals" requirement for the not "firmly resettled" requirement. For substantially the reasons stated by the Second Circuit in Shen v. Esperdy, 428 F.2d 293 (1970), we find no congressional intent to depart from the established concept of "firm resettlement," and we do not give the "not nationals" requirement of § 203(a)(7)(A)(iii) as broad a construction as did the court below.While Congress did not carry the words "firmly resettled" over into the 1957, 1960, and 1965 Acts from the Page 402 U. S. 55 earlier legislation, Congress did introduce a new requirement into the 1957 Act -- the requirement of "flight." The 1957 Act, as well as the present law, speaks of persons who have "fled" to avoid persecution. [Footnote 4] Both the terms "firmly resettled" and "fled" are closely related to the central theme of all 23 years of refugee legislation -- the creation of a haven for the world's homeless people. This theme is clearly underlined by the very titles of the Acts over the years from the Displaced Persons Act in 1948 through the Refugee Relief Act and the Fair Share Refugee Act of 1960. Respondent's reliance on the Fair Share Refugee Act of 1960 to show that Congress abandoned the "firmly resettled" concept is particularly misplaced because Congress envisioned that legislation not only as the means through which this country would fulfill its obligations to refugees, but also as an incentive to Page 402 U. S. 56 other nations to do likewise. [Footnote 5] Far from encouraging resettled refugees to leave one secure haven for another, the Act established United States quotas as a percentage -- 25% -- of the refugees absorbed by all other cooperating nations. The Fair Share Refugee Act, like its successor and predecessors, was enacted to help alleviate the suffering of homeless persons and the political instability associated with their plight. It was never intended to open the United States to refugees who had found shelter in another nation and had begun to build new lives. Nor could Congress have intended to make refugees in flight from persecution compete with all of the world's resettled refugees for the 10,200 entries and permits afforded each year under § 203(a)(7). Such an interpretation would subvert the lofty goals embodied in the whole pattern of our refugee legislation.In short, we hold that the "resettlement" concept is not irrelevant. It is one of the factors which the Immigration and Naturalization Service must take into account to determine whether a refugee seeks asylum in this country as a consequence of his flight to avoid persecution. The District Director applied the correct legal Page 402 U. S. 57 standard when he determined that § 203(a)(7) requires that "physical presence in the United States [be] a consequence of an alien's flight in search of refuge," and further that"the physical presence must be one which is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge. [Footnote 6]"Finally, we hold that the requirement of § 203(a)(7)(A)(iii) that refugees not be "nationals of the countries or areas in which their application for conditional entry is made" is not a substitute for the "resettlement" concept. In the first place, that section is not even applicable to respondent. He was applying for an immigrant visa, not a conditional entry permit to which part (A)(iii) of subsection 7 is expressly limited. He had already been granted entry to the United States as a business visitor. Second, even if the provision were applicable, the country Page 402 U. S. 58 "in which" respondent's application was made was the United States, and he was certainly not a national of this country. Had he been a national, he, of course, would have been entitled to remain here. Section 203(a)(7)(A)(iii) applies only to applications for conditional entry into this country made to Immigration and Naturalization officers authorized to accept such applications at points outside the United States.Because it was under the erroneous impression that resettlement was irrelevant to refugee status under § 203(a)(7), the Court of Appeals failed to review the District Court's finding that respondent had never firmly resettled in Hong Kong. The District Director is, of course, entitled to review of that determination under the legal test set out in this opinion and the appropriate standards for judicial review. Consequently, the judgment below is reversed, and the case is remanded to the Ninth Circuit for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtRosenberg v. Yee Chien Woo, 402 U.S. 49 (1971)Rosenberg v. Yee Chien WooNo. 156Argued February 23, 1971Decided April 21, 1971402 U.S. 49SyllabusIn 1953, respondent fled mainland China, of which he was a national, going to Hong Kong, where he resided with his family until 1960, when he came to the United States as a business visitor. He remained in this country, though he kept his business in Hong Kong for several years. His temporary permit having expired, the Immigration and Naturalization Service (INS) in 1966 began deportation proceedings. Respondent then sought classification as a refugee under § 203(a)(7) of the Immigration and Nationality Act of 1952, which provides that aliens may apply in any non-Communist country for conditional entry into the United States if (i) they have fled from any Communist country because of persecution or fear of persecution for reasons of race, religion, or political opinion, (ii) are remaining away from that country for those reasons, and (iii) are not nationals of the country in which they apply for conditional entry. The INS Director denied respondent's application on the ground that § 203(a)(7) requires that "physical presence in the United States [be] a consequence of an alien's flight in search of a refuge," and that such presence must be"reasonably proximate to the flight, and not one following a flight remote in point of time or intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge."Without deciding whether resettlement would have barred respondent's claim, the District Court reversed the INS determination, on the ground that respondent had never firmly resettled in Hong Kong. The Court of Appeals affirmed on the basis that the relevant factor was not the "firmly resettled" issue, but that, under § 203(a)(7)(iii), respondent was a national of Communist China, from which he was a refugee, and not a national of Hong Kong.Held: Whether a refugee has already "firmly resettled" in another country is relevant to determining the availability to him of the asylum provision of § 203(a)(7), since Congress did not intend to grant asylum to a refugee who Page 402 U. S. 50 has found permanent shelter in another country, and the § 203(a)(7)(iii) nationality requirement is no substitute for the "resettlement" concept. Pp. 402 U. S. 52-58.419 F.2d 252, reversed and remanded. BLACK, J., delivered the opinion of the Court, in which BURGER, C.J., and HARLAN, WHITE, and BLACKMUN, JJ., joined. STEWART, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined, post, p. 402 U. S. 58.

1984_83-1673

JUSTICE BLACKMUN delivered the opinion of the Court.Under the Civil Service Reform Act of 1978, Pub.L. 95-454, 92 Stat. 1111, a federal employee may challenge agency disciplinary action by appealing the agency's decision to the Merit Systems Protection Board (Board). If, however, the employee is a member of a collective bargaining unit of federal employees, he, in the alternative, may challenge the disciplinary action by pursuing any grievance and arbitration procedure provided by the collective bargaining agreement. Neither the Board nor the arbitrator may sustain the agency's decision if the employee "shows harmful error in the application of the agency's procedures in arriving at such decision." 5 U.S.C. § 7701(c)(2)(A). The Board has interpreted this statute to require the employee to show error that causes substantial prejudice to his individual rights by possibly affecting the agency's decision. This case presents the issue whether a different "harmful error" interpretation should apply in an arbitration, or, to phrase it another way, whether the arbitrator may overturn agency disciplinary action on the basis of a significant violation of the collective bargaining agreement that is harmful only to the union.IThe 1978 Act is"a comprehensive revision of the laws governing the rights and obligations of civil servants, [and] contains the first statutory scheme governing labor relations between federal agencies and their employees."Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 464 U. S. 91 (1983). Among the major purposes of the Act were the "preser[vation of] the ability of federal managers to maintain an effective and efficient Government,'" ibid., quoting 5 U.S.C. § 7101(b), and the"strengthen[ing of] the position of Page 472 U. S. 651 federal unions and [making] the collective bargaining process a more effective instrument of the public interest,"464 U.S. at 464 U. S. 107.To promote the first of these purposes, the Act provides that a federal employee may be removed or otherwise disciplined for unacceptable performance or for misconduct. Specifically, § 4303 establishes procedures by which an agency may remove or demote an employee whose performance is unacceptable. In addition, § 7512 provides that an agency may take adverse action against an employee, including removal, suspension for more than 14 days, reduction in grade or pay, or a furlough of 30 days or less, for, as § 7513 states, "such cause as will promote the efficiency of the service," including misconduct. A federal employee subjected to agency disciplinary action taken pursuant to § 4303 or § 7512 may appeal the agency's decision to the Board. §§ 4303(e), 7513(d), and 7701. The Board must sustain the agency's decision if it is supported by appropriate evidence. § 7701(c)(1). [Footnote 1] The agency's decision may not be sustained, however, if the employee "shows harmful error in the application of the agency's procedures in arriving at such decision." § 7701(c)(2)(A). [Footnote 2]To promote the second of these purposes of the Act --"to strengthen the position of federal unions and to make the Page 472 U. S. 652 collective bargaining process a more effective instrument of the public interest"-- the Act requires federal agencies and unions representing agency employees to"negotiate over terms and conditions of employment, unless a bargaining proposal is inconsistent with existing federal law, rule, or regulation."Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. at 464 U. S. 92. Even matters reserved to agency-management discretion, such as discipline, are subject to negotiation concerning the procedures that management officials will observe in exercising their authority. § 7106(b)(2).The Act also requires any collective bargaining agreement between a federal agency and a union to provide for a grievance procedure and binding arbitration for the resolution of disputes arising under the agreement. §§ 7121(a) and (b). An employee in a bargaining unit having a negotiated grievance procedure that covers agency disciplinary action taken pursuant to § 4303 or § 7512 thus may elect to challenge such action by filing a grievance, rather than appealing to the Board. § 7121(e)(1). If the employee elects so to proceed, and the union or the agency invokes binding arbitration, see § 7121(b)(3)(C), the arbitrator is to apply the same substantive standards that the Board would apply if the matter had been appealed. See S.Rep. No. 95-969, p. 111 (1978); H.R.Conf.Rep. No. 95-1717, p. 157 (1978). In particular, the Act provides:"In matters covered under sections 4303 and 7512 . . . which have been raised under the negotiated grievance procedure . . . , an arbitrator shall be governed by section 7701(c)(1). . . ."§ 7121(e)(2). Section 7701(c)(1) incorporates by reference the provisions of subsection (c)(2), including the harmful error rule. Thus, the statutory scheme mandates that the harmful error rule is to apply whether the employee challenges the agency action through the Board or through binding arbitration. [Footnote 3] Page 472 U. S. 653IIThomas Rogers and Robert Wilson, Jr. (grievants), were employed by General Services Administration (GSA) as Federal Protective Service (FPS) officers at the Federal Center in Denver, Colo. Rogers patrolled property owned or leased by the Federal Government at various locations in the Denver metropolitan area while maintaining contact either by radio or by telephone with the Command Center. Wilson worked as a dispatcher at the Center. Everything spoken over the radio and telephone lines of the Command Center is recorded on tape. This tape constitutes the record of activity at the Center.On January 7, 1982, Rogers was on patrol in an official Government car. At the request of his shift supervisor, he drove to his home in a nearby suburb, picked up several cans of beer, and delivered the beer to the supervisor at the Center. The supervisor later drank the beer and left the empty cans at the Center when he went off duty. The following day, the supervisor, while off duty, became concerned that the unexplained presence of empty beer cans might lead to the discovery of his drinking beer while on duty. He therefore telephoned Wilson, at the Command Center, and instructed him to alter the tape for the previous day to include a false explanation for the presence of the beer cans. Wilson complied with this request.Subsequently, an FPS official monitoring the tapes for an unrelated reason noted irregularities in them and concluded that they had been edited. GSA's Inspector General initiated an investigation. Two special agents went to Rogers' home and asked him to accompany them to the local police station for a "noncustodial" interrogation. The agents made Page 472 U. S. 654 detailed notes of the interview. Wilson was interviewed in the same manner. Neither was advised that he was entitled to have a union representative present at the interview, and neither requested the presence of a representative.About a month later, the agents again interviewed the two men separately and asked them to sign affidavits prepared from the agents' notes of the earlier interviews. The grievants made corrections in the proposed affidavits and then, under oath, signed them. In the affidavits, the grievants admitted their participation in the above-described incidents of wrongdoing. As before, the grievants were not advised that they were entitled to have a union representative present, and they did not request representation.On April 2, 1982, almost three months after the incidents, GSA formally advised the grievants that it proposed to remove them from federal service. Upon receiving written responses to the charges, GSA informed Wilson that he would be removed on grounds of falsification of records and of attempting to conceal activities of record. Similarly, GSA informed Rogers that he would be removed on grounds of falsification of records, failure to report irregularities, and use of a Government vehicle for a nonofficial purpose. [Footnote 4]Both grievants elected to challenge their removal under the grievance and arbitration procedures established by the collective bargaining agreement between GSA and their union, respondent American Federation of Government Employees. The union then invoked binding arbitration pursuant to § 7121(b)(3)(C). The arbitrator, respondent Nutt, found that the grievants had committed the alleged acts of wrongdoing and that this misconduct normally would justify the penalty of removal from Government service. The arbitrator also found, however, that GSA on its part had committed two procedural errors in violation of provisions Page 472 U. S. 655 of the collective bargaining agreement. First, GSA had failed to give the grievants an opportunity to have a union representative present during interrogation. [Footnote 5] Second, GSA had permitted an unreasonable period of time to elapse between the date it first learned of the misconduct and the date it issued the notices of proposed removal. [Footnote 6] The arbitrator concluded that there was no prejudice to the grievants themselves due either to the failure to have a union representative present or to the delay in the issuance of the notices. He found, nevertheless, that the removals were not for just cause"[s]olely because of the Agency's pervasive failure to comply with the due process requirements of the [collective bargaining] agreement."App. to Pet. for Cert. 38a. He therefore reduced the penalties imposed on the grievants from removal to not less than two weeks' disciplinary suspension without pay. Id. at 39a. In addition, he required that Wilson be placed in a position in which the agency would be protected from his "demonstrated proclivity to tamper with the tape recording system." Id. at 38a. Page 472 U. S. 656Pursuant to §§ 7703(d) and 7121(f), the Director of the Office of Personnel Management sought review of the arbitrator's decision by the United States Court of Appeals for the Federal Circuit. See 28 U.S.C. § 1295(a)(9). The Director contended that the arbitrator had not properly applied the Act's harmful error rule. The Court of Appeals granted the petition for review, and it was heard by a 5-judge panel. The court affirmed the arbitrator's decision in substantial part. 718 F.2d 1048 (1983). It held that an arbitrator must apply the harmful error standard of § 7701(c)(2)(A) in determining whether a grievant is personally prejudiced. The court noted that, in the present case, the arbitrator found that the grievants had not been personally prejudiced. Nevertheless, following what it deemed to be the lead of the decision in Devine v. White, 225 U.S.App.D.C. 179, 697 F.2d 421 (1983), [Footnote 7] the Court of Appeals went on to hold that, even though the particular grievants may not themselves have been adversely affected, the arbitrator, in making the ultimate award, could take into account significant violations of the collective bargaining agreement that were important to the union. The court reasoned:"The union is a major (if not the major) party to the arbitration, and its proper interests are to be protected, even though the interests of the particular grievants may not, alone, call for protection"(emphasis in original). 718 F.2d at 1054. Here, the union and the agency agreed to procedural safeguards concerning Page 472 U. S. 657 representation and notice, and these procedures effectively became union rights. Thus,"[v]iolations of explicit and important procedural rights contained in a contract, such as these, could fairly be said to be tantamount to 'harmful error' to the union within the scope of 5 U.S.C. § 7701(c)(2)(A) (1982) for the purposes of collective bargaining arbitration in which the union is a proper party."Id. at 1055. The court concluded that the arbitrator's reduction of the grievants' penalties was a proper means of "penalizing the agency" for disregarding the procedural protections of the collective bargaining agreement. [Footnote 8] Ibid.Because of the importance of the issue, we granted certiorari. 469 U.S. 814 (1984).IIIAThe harmful error rule of 5 U.S.C. § 7701(c)(2)(A) provides that an agency's decision that is appealable to the Board may not be sustained if the employee "shows harmful error in the application of the agency's procedures in arriving at such decision." Petitioner argues that "harmful error" is error that causes substantial prejudice to the rights of the individual employee by possibly affecting the agency's decision.The Act does not define the term "harmful error," [Footnote 9] and the legislative history of § 7701(c)(2)(A) is inconclusive. [Footnote 10] The Page 472 U. S. 658 Act provides, however, that the Board "may prescribe regulations to carry out the purpose of [§ 7701]," the provision in which the harmful error rule appears. See § 7701(j). Pursuant to this authority, the Board has promulgated a definition of "harmful error":"Error by the agency in the application of its procedures which, in the absence or cure of the error, might have caused the agency to reach a conclusion different than the one reached. The burden is upon the appellant to show that based upon the record as a whole the error was harmful, i.e., caused substantial harm or prejudice to his/her rights."5 CFR § 1201.56(c)(3) (1985). [Footnote 11] Page 472 U. S. 659 The agency's "procedures" considered by the Board in applying § 7701(c)(2)(A) include not only procedures required by statute, rule, or regulation, [Footnote 12] but also procedures required by a collective bargaining agreement between the agency and a union. [Footnote 13] Thus, in an appeal of an agency disciplinary decision to the Board, the agency's failure to follow bargained-for procedures may result in its action's being overturned, but only if the failure might have affected the result of the agency's decision to take the disciplinary action against the individual employee. At least insofar as it applies to proceedings before the Board, this interpretation of the harmful error rule is entitled to substantial deference. [Footnote 14] See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 844 (1984).Respondents do not dispute the correctness of the Board's definition of harmful error insofar as it applies to proceedings before the Board. Respondents argue, however, that an arbitral proceeding differs significantly from a Board proceeding, and that a different definition of harmful error should apply in the arbitral context. Respondents point out that an appeal to the Board is taken solely by the employee or Page 472 U. S. 660 applicant for employment, see 5 U.S.C. § 7701(a), and that the union has no statutory role in a Board proceeding. In contrast, according to respondents, the union should be considered to be a major party in an arbitration. The union and the agency negotiate the grievance procedures and the terms of the collective bargaining agreement establishing the extent of the arbitrator's authority. The union and the agency possess the exclusive power to invoke the arbitral process, and these parties jointly select an acceptable arbitrator. [Footnote 15] Thus, according to respondents, while the Board must focus exclusively on the rights of the individual employee, the arbitrator should take a broader view and consider the rights of the union as well. Respondents contend that the Court of Appeals therefore correctly held that"the arbitrator can take account of significant violations of the collective bargaining agreement, important to the union, even though the particular grievants may not have been themselves adversely affected."718 F.2d at 1054.We are not persuaded by respondents' arguments. Congress clearly intended that an arbitrator would apply the same substantive rules as the Board does in reviewing an agency disciplinary decision. Section 7121(e)(2) provides that in matters involving agency discipline"which have been raised under the negotiated grievance procedure . . . an arbitrator shall be governed by section 7701(c)(1) of this title, as applicable."Section 7701(c)(1) incorporates by reference the harmful error rule of § 7701(c)(2)(A). The Senate Report explains that, under this provision,"if an employee exercises the option to pursue a matter [involving agency discipline] Page 472 U. S. 661 through the negotiated grievance procedure an arbitrator must apply the same standards in deciding the case as would be applied by an administrative law judge or an appeals officer if the case had been appealed through the appellate procedures of 5 U.S.C. section 7701."S.Rep. No. 95-969, p. 111 (1978). The version of the bill passed by the House did not contain a similar provision. The Conference Committee noted that, under the Senate provision,"when considering a grievance involving an adverse action otherwise appealable to the [Board] . . . , the arbitrator must follow the same rules governing burden of proof and standard of proof that govern adverse actions before the Board."H.R.Conf.Rep. No. 95-1717, p. 157 (1978). The Conference Committee "adopted the Senate provision in order to promote consistency in the resolution of these issues, and to avoid forum shopping." [Footnote 16] Ibid.Adoption of respondents' interpretation of the harmful error rule in the context of an arbitral proceeding would directly contravene this clear congressional intent. An employee who elects to appeal an agency disciplinary decision to the Board must prove that any procedural errors substantially prejudiced his rights by possibly affecting the agency's decision. Under respondents' interpretation, however, an employee who elects to use the grievance and arbitration procedures may obtain reversal merely by showing that significant violations of the collective bargaining agreement, harmful to the union, occurred. In the present case, if the disciplined employees had elected to appeal to the Board, their discharges would have been sustained by the Board under its interpretation of the harmful error rule. Because, Page 472 U. S. 662 however, they pursued the negotiated grievance and arbitration procedures, they benefited from the different interpretation of the harmful error rule advocated by respondents and applied by the arbitrator and the Court of Appeals, and their discharges were replaced with brief suspensions. If respondents' interpretation of the harmful error rule as applied in the arbitral context were to be sustained, an employee with a claim that the agency violated procedures guaranteed by the collective bargaining agreement would tend to select the forum -- the grievance and arbitration procedures -- that treats his claim more favorably. The result would be the very inconsistency and forum shopping that Congress sought to avoid.BWe, however, do not rest our decision solely on deference to the Board's interpretation of the harmful error rule and on the clear congressional intent that an arbitrator apply the same substantive standards as does the Board. Rather, we rest our decision ultimately on the conclusion that we must interpret the harmful error rule as does the Board if we are "to remain faithful to the central congressional purposes underlying the enactment of the CSRA.'" Lindahl v. Office of Personnel Management, 470 U. S. 768, 470 U. S. 794 (1985), quoting Devine v. White, 225 U.S.App.D.C. at 183, 697 F.2d at 425. As noted above, one of the major purposes of the Act was to "preserv[e] the ability of federal managers to maintain `an effective and efficient Government.'" Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. at 464 U. S. 92, quoting 5 U.S.C. § 7101(b). In order to achieve this purpose, one of the "central tasks" of the Act was to "[a]llow civil servants to be able to be hired and fired more easily, but for the right reasons." S.Rep. No. 95-969, p. 4 (1978). In particular, the provisions of § 7701 of the Act, including the harmful error rule, were intended"to give agencies greater ability to remove or discipline expeditiously employees who engage in misconduct, or whose work performance is unacceptable. "Page 472 U. S. 663Id. at 51. [Footnote 17] In the present case, the grievants concededly committed improper acts that justified their removal from the federal service. Although the agency committed procedural errors, those errors do not cast doubt upon the reliability of the agency's factfinding or decision. We do not believe that Congress intended to force the Government to retain these erring employees solely in order to "penalize the agency" for nonprejudicial procedural mistakes it committed while attempting to carry out the congressional purpose of maintaining an effective and efficient Government.Respondents argue, however, that penalizing the Government in this manner is necessary in order to enforce the procedures arrived at through collective bargaining, and thus to promote a second major purpose of the Civil Service Reform Act --"to strengthen the position of federal unions and to make the collective bargaining process a more effective instrument of the public interest."Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. at 464 U. S. 107. Respondents contend that, if harmful error must be shown in the sense that an employee's own case is prejudiced, then the procedures arrived at through collective bargaining really become meaningless. We find this concern overstated. Under any interpretation of the harmful error rule, unions are free to bargain for procedures to govern agency action, see §§ 7106 (b)(2) and (3), and agencies are obligated to follow the agreed-upon procedures. If the agency violates those procedures with prejudice to the individual employee's rights, any resulting agency disciplinary decision will be reversed by the Board or by an arbitrator.Even if the violation is not prejudicial to the individual employee, the union is not without remedy. The Act permits Page 472 U. S. 664 the union to file a grievance on its own behalf. § 7121 (b)(3)(A). The Act broadly defines "grievance" to include"any complaint . . . by any employee labor organization . . . concerning . . . the effect or interpretation, or a claim of breach, of a collective bargaining agreement."§ 7103(a)(9) (C)(i). This statutory authorization clearly permits the union to file a grievance alleging a violation of the procedural requirements established in the collective bargaining agreement. [Footnote 18] The arbitrator can remedy such violation by ordering the agency to "cease and desist" from any further such violation. In addition, if the violation constitutes "a clear and patent breach of the terms of the agreement," Iowa National Guard and National Guard Bureau, 8 F.L.R.A. 500, 510 (1982), the union may file an unfair labor practice charge with the Federal Labor Relations Authority. [Footnote 19] See Page 472 U. S. 665 §§ 7116 [Footnote 20] and 7118. Our holding today therefore does not prevent the union from obtaining a binding interpretation of a disputed provision of the collective bargaining agreement or from enforcing agency compliance with that provision. We hold only that the means of compelling compliance do not include forcing the agency to retain an employee who is reliably determined to be unfit for federal service.The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtCornelius v. Nutt, 472 U.S. 648 (1985)Cornelius, Acting Director, Office of PersonnelManagement v. NuttNo. 83-1673Argued January 7, 1985Decided June 24, 1985472 U.S. 648SyllabusUnder the Civil Service Reform Act of 1978 (Act), a federal employee may challenge agency disciplinary action by appealing the agency's decision to the Merit Systems Protection Board (Board), or, if he is a member of a federal employees' labor union, he may, in the alternative, challenge the action through any grievance and arbitration procedure provided by the collective bargaining agreement between the agency and the union. Under 5 U.S.C. § 7701(c)(2)(A), the Board may not sustain the agency's action if the employee "shows harmful error in the application of the agency's procedures in arriving at such decision." The Act also requires an arbitrator to apply this "harmful error" rule in grievance and arbitration procedures under a bargaining agreement. Two employees of the General Services Administration (GSA), members of a union having a bargaining agreement with the GSA, were removed from their jobs for falsification of records and other reasons. When the employees were first interrogated about the wrongdoing, and later when they admitted it in sworn affidavits, they were not advised that they were entitled to have a union representative present. The employees also did not receive notices of proposed removal until almost three months after the wrongdoing. The employees challenged their removals under the bargaining agreement's grievance and arbitration procedures. The arbitrator, while finding that the wrongdoing normally would justify removal, also found that the GSA had committed procedural errors in violation of the bargaining agreement by failing to give the employees an opportunity to have a union representative present during interrogation and by unreasonably delaying issuance of the notices of proposed removal. The arbitrator concluded that, although the errors did not prejudice the employees, the removals were not for just cause. Accordingly, the arbitrator reduced the penalties to two weeks' suspension without pay. The Court of Appeals affirmed in substantial part, holding that although the employees were not prejudiced, the arbitrator, in making the ultimate award, could take into account significant violations of the bargaining agreement that were important to the union, because such violations were tantamount to "harmful error" to the union within the scope of § 7701(c)(2)(A). The Court of Appeals also ruled that the Page 472 U. S. 649 reduction of the penalties was a proper means of "penalizing the agency" for disregarding the agreement's procedural protections.Held: Under § 7701(c)(2)(A), the employee-grievant must show error that caused substantial prejudice to his individual rights by possibly affecting the agency's decision. Pp. 472 U. S. 657-665.(a) The Board has so interpreted § 7701(c)(2)(A) in its regulation defining "harmful error," and its interpretation is entitled to deference. To apply a different definition of "harmful error" in an arbitral context than in a Board proceeding, so as to permit an arbitrator to overturn agency disciplinary action on the basis of a violation of a bargaining agreement that is harmful only to the union, would directly contravene the Act's purpose of promoting consistency in resolving federal employee grievances and avoiding forum shopping. Pp. 472 U. S. 657-662.(b) Moreover, the "harmful error" rule must be interpreted as the Board interprets it if the underlying purpose of the Act of maintaining an effective and efficient Government, and the particular purpose of § 7701 to give agencies greater ability to remove or discipline erring employees expeditiously, are to be carried out. The purpose of the Act of strengthening federal employee unions and making the collective bargaining process more effective is not undermined by application of the Board's interpretation of the "harmful error" rule in the arbitral context. Under any interpretation of the rule, unions are free to bargain for procedures to govern agency actions, and agencies must follow agreed-upon procedures. If the agency violates these procedures with prejudice to the individual employee's rights, any resulting agency disciplinary decision will be reversed. Whether or not there is prejudice to the individual employee, the union may file a grievance in its own behalf and, in the case of a clear breach of the agreement, may file an unfair labor practice charge with the Federal Labor Relations Authority. Thus, the union has adequate remedies of its own for enforcing agency compliance with the procedural requirements of the bargaining agreement. Pp. 472 U. S. 662-665.718 F.2d 1048, reversed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 472 U. S. 666. POWELL, J., took no part in the decision of the case. Page 472 U. S. 650

1996_95-1376

JUSTICE THOMAS delivered the opinion of the Court. Section 704(a) of Title VII of the Civil Rights Act of 1964 makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment" who have either availed themselves of Title VII's protections or assisted others in so doing. 78 Stat. 257, as amended, 42 U. S. C. § 2000e-3(a). We are asked to decide in this case whether the term "employees," as used in § 704(a), includes former employees, such that petitioner may bring suit against his former employer for postemployment actions allegedly taken in retaliation for petitioner's having filed a charge with the Equal Employment Opportunity Commission (EEOC). The United States Court of Appeals for the Fourth Circuit, sitting en bane, held that the term "employees" in § 704(a) referred only to current employees and therefore petitioner's claim was not cognizable under Title VII. We granted certiorari, 517 U. S. 1154 (1996), and now reverse.IRespondent Shell Oil Co. fired petitioner Charles T. Robinson, Sr., in 1991. Shortly thereafter, petitioner filed a charge with the EEOC, alleging that respondent had discharged him because of his race. While that charge was pending, petitioner applied for a job with another company. That company contacted respondent, as petitioner's former employer, for an employment reference. Petitioner claims that respondent gave him a negative reference in retaliation for his having filed the EEOC charge.L. Norton, Stephen R. Shapiro, Sara L. Mandelbaum, and Martha F. Davis; and for the National Employment Lawyers Association by Douglas A. Hedin and Robert Belton.Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council by Robert E. Williams and Ann Elizabeth Reesman; and for the Washington Legal Foundation by J. Thomas Kilpatrick, Daniel J. Popeo, and Paul D. Kamenar.340Petitioner subsequently sued under § 704(a), alleging retaliatory discrimination. On respondent's motion, the District Court dismissed the action, adhering to previous Fourth Circuit precedent holding that § 704(a) does not apply to former employees. Petitioner appealed, and a divided panel of the Fourth Circuit reversed the District Court. The Fourth Circuit granted rehearing en bane, vacated the panel decision, and thereafter affirmed the District Court's determination that former employees may not bring suit under § 704(a) for retaliation occurring after termination of their employment. 70 F.3d 325 (1995).We granted certiorari in order to resolve a conflict among the Circuits on this issue.1II AOur first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and "the statutory scheme is coherent and consistent." United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 240 (1989); see also Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992).1 The other Courts of Appeals to have considered this issue have held that the term "employees" in § 704(a) does include former employees. See Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 198-200 (CA3), cert. denied, 513 U. S. 1022 (1994); Bailey v. USX Corp., 850 F.2d 1506, 1509 (CAll 1988); O'Brien v. Sky Chefs, Inc., 670 F.2d 864, 869 (CA9 1982), overruled on other grounds by Atonio v. Wards Cove Packing Co., 810 F. 2d 1477, 1481-1482 (CA9 1987) (en bane); Pantchenko v. C. B. Dolge Co., 581 F.2d 1052, 1055 (CA2 1978); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (CAW 1977). The Fourth Circuit indicated that it joined the approach taken by the Seventh Circuit in Reed v. Shepard, 939 F.2d 484, 492-493 (1991). But the Seventh Circuit has since repudiated the Fourth Circuit's view of Reed. See Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 886 (1996).341The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 477 (1992); McCarthy v. Bronson, 500 U. S. 136, 139 (1991). In this case, consideration of those factors leads us to conclude that the term "employees," as used in § 704(a), is ambiguous as to whether it excludes former employees.At first blush, the term "employees" in § 704(a) would seem to refer to those having an existing employment relationship with the employer in question. Cf. Walters v. Metropolitan Ed. Enterprises, Inc., ante, at 207-208 (interpreting the term "employees" in § 701(b), 42 U. S. C. § 2000e(b)). This initial impression, however, does not withstand scrutiny in the context of § 704(a). First, there is no temporal qualifier in the statute such as would make plain that § 704(a) protects only persons still employed at the time of the retaliation. That the statute could have expressly included the phrase "former employees" does not aid our inquiry. Congress also could have used the phrase "current employees." But nowhere in Title VII is either phrase used-even where the specific context otherwise makes clear an intent to cover current or former employees.2 Similarly, that other statutes have been more specific in their coverage of "employees" and2 Our recent decision in Walters v. Metropolitan Ed. Enterprises, Inc., ante, p. 202, held that the term "employees" in § 701(b), 42 U. S. C. § 2000e(b), referred to those persons with whom an employer has an existing employment relationship. See ante, at 207-208. But § 701(b) has two significant temporal qualifiers. The provision, which delimits Title VII's coverage, states that the Act applies to any employer "who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 42 U. S. C. § 2000e(b) (emphasis added). The emphasized words specify the time frame in which the employment relationship must exist, and thus the specific context of that section did not present the particular ambiguity at issue in the present case.342"former employees," see, e. g., 2 U. S. C. § 1301(4) (1994 ed., Supp. I) (defining "employee" to include "former employee"); 5 U. S. C. § 1212(a)(1) (including "employees, former employees, and applicants for employment" in the operative provision), proves only that Congress can use the unqualified term "employees" to refer only to current employees, not that it did so in this particular statute.Second, Title VII's definition of "employee" likewise lacks any temporal qualifier and is consistent with either current or past employment. Section 701(f) defines "employee" for purposes of Title VII as "an individual employed by an employer." 42 U. S. C. § 2000e(f). The argument that the term "employed," as used in § 701(f), is commonly used to mean "[p]erforming work under an employer-employee relationship," Black's Law Dictionary 525 (6th ed. 1990), begs the question by implicitly reading the word "employed" to mean "is employed." But the word "employed" is not so limited in its possible meanings, and could just as easily be read to mean "was employed."Third, a number of other provisions in Title VII use the term "employees" to mean something more inclusive or different from "current employees." For example, §§ 706(g)(1) and 717(b) both authorize affirmative remedial action (by a court or EEOC, respectively) "which may include ... reinstatement or hiring of employees." 42 U. S. C. §§ 2000e5(g)(1) and 2000e-16(b). As petitioner notes, because one does not "reinstat[e]" current employees, that language necessarily refers to former employees. Likewise, one may hire individuals to be employees, but one does not typically hire persons who already are employees.Section 717(b) requires federal departments and agencies to have equal employment opportunity policies and rules, "which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder." 42 U. S. C. § 2000e-16(b). If the complaint involves343discriminatory discharge, as it often does, the "employee" who must be notified is necessarily a former employee. Similarly, § 717(c) provides that an "employee or applicant for employment, if aggrieved by the final disposition of his complaint, ... may file a civil action .... " 42 U. S. c. § 2000e-16(c). Again, given that discriminatory discharge is a forbidden "personnel actio[n] affecting employees," see § 717(a), 42 U. S. C. § 2000e-16(a), the term "employee" in § 717(c) necessarily includes a former employee. See Loeffler v. Frank, 486 U. S. 549 (1988) (involving a discriminatory discharge action successfully brought under § 717 by a former Postal Service employee).3Of course, there are sections of Title VII where, in context, use of the term "employee" refers unambiguously to a current employee, for example, those sections addressing salary or promotions. See § 703(h), 42 U. S. C. § 2000e-2(h) (allowing different standards of compensation for "employees who work in different locations"); § 717(b), 42 U. S. C. § 2000e16(b) (directing federal agencies to establish a plan "to provide a maximum opportunity for employees to advance so as to perform at their highest potential").But those examples at most demonstrate that the term "employees" may have a plain meaning in the context of a particular section-not that the term has the same meaning in all other sections and in all other contexts. Once it is established that the term "employees" includes former employees in some sections, but not in others, the term standing alone is necessarily ambiguous and each section must be ana-3 Other sections also seem to use the term "employees" to mean something other than current employees. Section 701(c) defines "employment agency" as "any person regularly undertaking ... to procure employees for an employer or to procure for employees opportunities to work for an employer .... " 42 U. S. C. §2000e(c). This language most naturally is read to mean "prospective employees." Section 701(e) uses identical language when providing that a labor organization affects commerce if it "operates a hiring hall or hiring office which procures employees for an employer .... " 42 U. S. C. §2000e(e).344lyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute.4Respondent argues that the addition of the word "his" before "employees" narrows the scope of the provision. Brief for Respondent 19. That argument is true, so far as it goes, but it does not resolve the question before us-namely, in what time frame must the employment relationship exist. The phrase "his employees" could include "his" former employees, but still exclude persons who have never worked for the particular employer being charged with retaliation.Nor are we convinced by respondent's argument that Congress' inclusion in § 704(a) of "applicants for employment" as persons distinct from "employees," coupled with its failure to include "former employees," is evidence of congressional intent not to include former employees. The use of the term "applicants" in § 704(a) does not serve to confine, by negative inference, the temporal scope of the term "employees." Respondent's argument rests on the incorrect premise that the term "applicants" is equivalent to the phrase "future employees." But the term "applicants" would seem to cover many persons who will not become employees. Unsuccessful applicants or those who turn down a job offer, for example, would have been applicants, but not future employees. And the term fails to cover certain future employees who may be offered and will accept jobs without having to apply for those jobs. Because the term "applicants" in § 704(a) is not synonymous with the phrase "future employees," there is no basis for engaging in the further (and questionable) negative infer-4 Petitioner's examples of non- Title VII cases using the term "employee" to refer to a former employee are largely irrelevant, except to the extent they tend to rebut a claim that the term "employee" has some intrinsically plain meaning. See, e. g., Richardson v. Belcher, 404 U. S. 78,81,83 (1971) (unemployed disabled worker); Nash v. Florida Industrial Comm'n, 389 U. S. 235, 239 (1967) (individual who had been fired); Flemming v. Nestor, 363 U. S. 603, 611 (1960) (retired worker).345ence that inclusion of the term "applicants" demonstrates intentional exclusion of former employees.Finally, the use of the term "individual" in § 704(a), as well as in § 703(a), 42 U. S. C. § 2000e-2(a), provides no meaningful assistance in resolving this case. To be sure, "individual" is a broader term than "employee" and would facially seem to cover a former employee. But it would also encompass a present employee as well as other persons who have never had an employment relationship with the employer at issue. The term "individual," therefore, does not seem designed to capture former employees, as distinct from current employees, and its use provides no insight into whether the term "employees" is limited only to current employees.BFinding that the term "employees" in § 704(a) is ambiguous, we are left to resolve that ambiguity. The broader context provided by other sections of the statute provides considerable assistance in this regard. As noted above, several sections of the statute plainly contemplate that former employees will make use of the remedial mechanisms of Title VII. See supra, at 342-343. Indeed, § 703(a) expressly includes discriminatory "discharge" as one of the unlawful employment practices against which Title VII is directed. 42 U. S. C. § 2000e-2(a). Insofar as § 704(a) expressly protects employees from retaliation for filing a "charge" under Title VII, and a charge under § 703(a) alleging unlawful discharge would necessarily be brought by a former employee, it is far more consistent to include former employees within the scope of "employees" protected by § 704(a).In further support of this view, petitioner argues that the word "employees" includes former employees because to hold otherwise would effectively vitiate much of the protection afforded by § 704(a). See Brief for Petitioner 20-30. This is also the position taken by the EEOC. See Brief for346United States and EEOC as Amici Curiae 16-25; see also 2 EEOC Compliance Manual §614.7(f). According to the EEOC, exclusion of former employees from the protection of § 704(a) would undermine the effectiveness of Title VII by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining to the EEOC, and would provide a perverse incentive for employers to fire employees who might bring Title VII claims. Brief for United States and EEOC as Amici Curiae 18-21.Those arguments carry persuasive force given their coherence and their consistency with a primary purpose of antiretaliation provisions: Maintaining unfettered access to statutory remedial mechanisms. Cf. NLRB v. Scrivener, 405 U. S. 117, 121-122 (1972) (National Labor Relations Act); Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288, 292293 (1960) (Fair Labor Standards Act). The EEOC quite persuasively maintains that it would be destructive of this purpose of the antiretaliation provision for an employer to be able to retaliate with impunity against an entire class of acts under Title VII-for example, complaints regarding discriminatory termination. We agree with these contentions and find that they support the inclusive interpretation of "employees" in § 704(a) that is already suggested by the broader context of Title VII.IIIWe hold that the term "employees," as used in § 704(a) of Title VII, is ambiguous as to whether it includes former employees. It being more consistent with the broader context of Title VII and the primary purpose of § 704(a), we hold that former employees are included within § 704(a)'s coverage. Accordingly, the decision of the Fourth Circuit is reversed.It is so ordered

OCTOBER TERM, 1996SyllabusROBINSON v. SHELL OIL CO.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 95-1376. Argued November 6, 1996-Decided February 18, 1997After he was fired by respondent, petitioner filed an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964. While that charge was pending, petitioner applied for a job with another company, which contacted respondent for an employment reference. Claiming that respondent gave him a negative reference in retaliation for his having filed the EEOC charge, petitioner filed suit under § 704(a) of Title VII, which makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment" who have availed themselves of Title VII's protections. The District Court dismissed the action, and the en banc Fourth Circuit affirmed, holding that the term "employees" in § 704(a) refers only to current employees and therefore petitioner's claim was not cognizable under Title VII.Held: Because the term "employees," as used in § 704(a) of Title VII, includes former employees, petitioner may sue respondent for its allegedly retaliatory postemployment actions. Pp. 340-346.(a) Consideration of the statutory language, the specific context in which it is used, and the broader context of Title VII as a whole leads to the conclusion that the term "employees" in § 704(a) is ambiguous as to whether it excludes former employees. First, there is no temporal qualifier in § 704(a) such as would make plain that it protects only persons still employed at the time of the retaliation. Second, § 701(f)'s general definition of "employee" likewise lacks any temporal qualifier and is consistent with either current or past employment. Third, a number of other Title VII provisions, including §§ 706(g)(1), 717(b), and 717(c), use the term "employees" to mean something more inclusive or different from "current employees." That still other sections use the term to refer unambiguously to a current employee, see, e. g., §§ 703(h), 717(b), at most demonstrates that the term may have a plain meaning in the context of a particular section-not that it has the same meaning in all other sections and in all other contexts. Once it is established that "employees" includes former employees in some sections, but not in others, the term standing alone is necessarily ambiguous and each section must be analyzed to determine whether the context gives the term a definite meaning. Pp. 340-345.338Syllabus(b) A holding that former employees are included within § 704(a)'s coverage is more consistent with the broader context provided by other Title VII sections and with § 704(a)'s primary purpose of maintaining unfettered access to Title VII's remedial mechanisms. As noted, several sections of the statute plainly contemplate that former employees will make use of Title VII's remedial mechanisms. These include § 703(a), which prohibits discriminatory "discharge." Insofar as § 704(a) expressly protects employees from retaliation for filing a "charge," and a charge under § 703(a) alleging unlawful discharge would necessarily be brought by a former employee, it is far more consistent to include former employees within the scope of "employees" protected by § 704(a). This interpretation is supported by the arguments of petitioner and the EEOC that exclusion of former employees from § 704(a) would undermine Title VII's effectiveness by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining to the EEOC, and would provide a perverse incentive for employers to fire employees who might bring Title VII claims. Pp. 345-346.70 F.3d 325, reversed.THOMAS, J., delivered the opinion for a unanimous Court.Allen M. Lenchek argued the cause for petitioner. With him on the briefs were Eric Schnapper, Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, and Charles Stephen Ralston.Paul R. Q. Wolfson argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Deputy Solicitor General Bender, C. Gregory Stewart, and Gwendolyn Young Reams.L. Chris Butler argued the cause for respondent. With him on the brief was Patricia McHugh Lambert. **Briefs of amici curiae urging reversal were filed for the Lawyers' Committee for Civil Rights Under Law et al. by Paul C. Saunders, Marc L. Fleischaker, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Cathy Ventrell-Monsees, Dennis Courtland Hayes, Judith H. Lichtman, Donna R. Lenhoff, Helen339Full Text of Opinion

1987_86-6139

JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, and an opinion with respect to parts II-C and II-D, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join.This case requires us to decide what evidentiary standards should be applied under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., in determining whether an employer's practice of committing promotion decisions to the subjective discretion of supervisory employees has led to illegal discrimination.IPetitioner Clara Watson, who is black, was hired by respondent Fort Worth Bank and Trust (the Bank) as a proof operator in August, 1973. In January, 1976, Watson was promoted to a position as teller in the Bank's drive-in facility. In February, 1980, she sought to become supervisor of the tellers in the main lobby; a white male, however, was selected for this job. Watson then sought a position as supervisor of the drive-in bank, but this position was given to a white female. In February, 1981, after Watson had served for about a year as a commercial teller in the Bank's main lobby, and informally as assistant to the supervisor of tellers, the man holding that position was promoted. Watson applied for the vacancy, but the white female who was the supervisor of the drive-in bank was selected instead. Watson then applied for the vacancy created at the drive-in; a white male was selected for that job. The Bank, which has about 80 employees, had not developed precise and formal criteria for evaluating candidates for the positions for which Watson unsuccessfully applied. It relied instead on the subjective judgment of supervisors who were acquainted with the candidates, and with the nature of the jobs to be filled. All the supervisors involved in denying Watson the four promotions at issue were white. Page 487 U. S. 983Watson filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). After exhausting her administrative remedies, she filed this lawsuit in the United States District Court for the Northern District of Texas. She alleged that the Bank had unlawfully discriminated against blacks in hiring, compensation, initial placement, promotions, terminations, and other terms and conditions of employment. On Watson's motion under Federal Rule of Civil Procedure 23, the District Court certified a class consisting of"blacks who applied to or were employed by [respondent] on or after October 21, 1979, or who may submit employment applications to [respondent] in the future."App.190. The District Court later decertified this broad class because it concluded, in light of the evidence presented at trial, that there was not a common question of law or fact uniting the groups of applicants and employees. After splitting the class along this line, the court found that the class of black employees did not meet the numerosity requirement of Rule 23(a); accordingly, this subclass was decertified. The court also concluded that Watson was not an adequate representative of the applicant class, because her promotion claims were not typical of the claims of the members of that group. Because Watson had proceeded zealously on behalf of the job applicants, however, the court went on to address the merits of their claims. It concluded that Watson had failed to establish a prima facie case of racial discrimination in hiring: the percentage of blacks in the Bank's workforce approximated the percentage of blacks in the metropolitan area where the Bank is located. App.199-202.The District Court addressed Watson's individual claims under the evidentiary standards that apply in a discriminatory treatment case. See McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981). It concluded, on the evidence presented at trial, that Watson had established a prima facie case of employment discrimination, but that the Page 487 U. S. 984 Bank had met its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the challenged promotion decisions. The court also concluded that Watson had failed to show that these reasons were pretexts for racial discrimination. Accordingly, the action was dismissed. App.195-197, 203.A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed in part. 798 F.2d 791 (1986). The majority concluded that there was no abuse of discretion in the District Court's class decertification decisions. In order to avoid unfair prejudice to members of the class of black job applicants, however, the Court of Appeals vacated the portion of the judgment affecting them and remanded with instructions to dismiss those claims without prejudice. The majority affirmed the District Court's conclusion that Watson had failed to prove her claim of racial discrimination under the standards set out in McDonnell Douglas, supra, and Burdine, supra. [Footnote 1]Watson argued that the District Court had erred in failing to apply "disparate impact" analysis to her claims of discrimination in promotion. Relying on Fifth Circuit precedent, the majority of the Court of Appeals panel held that"a Title VII challenge to an allegedly discretionary promotion system is properly analyzed under the disparate treatment model, rather than the disparate impact model."798 F.2d at 797. Other Courts of Appeals have held that disparate impact analysis may be applied to hiring or promotion systems that involve the use of "discretionary" or "subjective" criteria. See, e.g., Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (CA9) (en banc), on return to panel, 827 F.2d Page 487 U. S. 985 439 (1987), cert denied, No. 87-1388, 485 U.S. 989 (1988), cert. pending, No. 87-1387; Griffin v. Carlin, 755 F.2d 1516, 1522-1525 (CA11 1985). Cf. Segar v. Smith, 238 U.S.App.D.C. 103, 738 F.2d 1249 (1984), cert. denied, 471 U.S. 1115 (1985). We granted certiorari to resolve the conflict. 483 U.S. 1004 (1987).IIASection 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, provides:"(a) It shall be an unlawful employment practice for an employer -- ""(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or""(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.""* * * *" "(h) Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer . . . to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. . . ."Several of our decisions have dealt with the evidentiary standards that apply when an individual alleges that an employer has treated that particular person less favorably than Page 487 U. S. 986 others because of the plaintiff's race, color, religion, sex, or national origin. In such "disparate treatment" cases, which involve "the most easily understood type of discrimination," Teamsters v. United States, 431 U. S. 324, 431 U. S. 335, n. 15 (1977), the plaintiff is required to prove that the defendant had a discriminatory intent or motive. In order to facilitate the orderly consideration of relevant evidence, we have devised a series of shifting evidentiary burdens that are "intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 450 U. S. 255, n. 8. Under that scheme, a prima facie case is ordinarily established by proof that the employer, after having rejected the plaintiff's application for a job or promotion, continued to seek applicants with qualifications similar to the plaintiff's. Id. at 450 U. S. 253, and n. 6. The burden of proving a prima facie case is "not onerous," id. at 450 U. S. 253, and the employer in turn may rebut it simply by producing some evidence that it had legitimate, nondiscriminatory reasons for the decision. Id. at 450 U. S. 254-255. If the defendant carries this burden of production, the plaintiff must prove by a preponderance of all the evidence in the case that the legitimate reasons offered by the defendant were a pretext for discrimination. Id. at 450 U. S. 253, 450 U. S. 255, n. 10. We have cautioned that these shifting burdens are meant only to aid courts and litigants in arranging the presentation of evidence:"The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."Id. at 250 U. S. 253. See also United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 460 U. S. 715 (1983).In Griggs v. Duke Power Co., 401 U. S. 424 (1971), this Court held that a plaintiff need not necessarily prove intentional discrimination in order to establish that an employer has violated § 703. In certain cases, facially neutral employment practices that have significant adverse effects on protected groups have been held to violate the Act without proof Page 487 U. S. 987 that the employer adopted those practices with a discriminatory intent. The factual issues and the character of the evidence are inevitably somewhat different when the plaintiff is exempted from the need to prove intentional discrimination. See Burdine, supra, at 450 U. S. 252, n. 5; see also United States Postal Service Bd. of Governors v. Aikens, supra, at 460 U. S. 713, n. l; McDonnell Douglas, 411 U.S. at 411 U. S. 802, n. 14; Teamsters, supra, at 431 U. S. 335-336, n. 15. The evidence in these "disparate impact" cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities.The distinguishing features of the factual issues that typically dominate in disparate impact cases do not imply that the ultimate legal issue is different than in cases where disparate treatment analysis is used. See, e.g., Washington v. Davis, 426 U. S. 229, 426 U. S. 253-254 (1976) (STEVENS, J., concurring). Nor do we think it is appropriate to hold a defendant liable for unintentional discrimination on the basis of less evidence than is required to prove intentional discrimination. Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.Perhaps the most obvious examples of such functional equivalence have been found where facially neutral job requirements necessarily operated to perpetuate the effects of intentional discrimination that occurred before Title VII was enacted. In Griggs itself, for example, the employer had a history of overt racial discrimination that predated the enactment of the Civil Rights Act of 1964. 401 U.S. at 401 U. S. 426-428. Such conduct had apparently ceased thereafter, but the employer continued to follow employment policies that had "a markedly disproportionate" adverse effect on blacks. Id. at 401 U. S. 428-429. Cf. Teamsters, supra, at 431 U. S. 349, and n. 32. The Griggs Court found that these policies, which involved the use of general aptitude tests and a high school diploma Page 487 U. S. 988 requirement, were not demonstrably related to the jobs for which they were used. 401 U.S. at 401 U. S. 431-432. Believing that diplomas and tests could become "masters of reality," id. at 401 U. S. 433, which would perpetuate the effects of pre-Act discrimination, the Court concluded that such practices could not be defended simply on the basis of their facial neutrality, or on the basis of the employer's lack of discriminatory intent.This Court has repeatedly reaffirmed the principle that some facially neutral employment practices may violate Title VII even in the absence of a demonstrated discriminatory intent. We have not limited this principle to cases in which the challenged practice served to perpetuate the effects of pre-Act intentional discrimination. Each of our subsequent decisions, however, like Griggs itself, involved standardized employment tests or criteria. See, e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975) (written aptitude tests); Washington v. Davis, supra, (written test of verbal skills); Dothard v. Rawlinson, 433 U. S. 321 (1977) (height and weight requirements); New York City Transit Authority v. Beazer, 440 U. S. 568 (1979) (rule against employing drug addicts); Connecticut v. Teal, 457 U. S. 440 (1982) (written examination). In contrast, we have consistently used conventional disparate treatment theory, in which proof of intent to discriminate is required, to review hiring and promotion decisions that were based on the exercise of personal judgment or the application of inherently subjective criteria. See, e.g., McDonnell Douglas Corp. v. Green, supra, (discretionary decision not to rehire individual who engaged in criminal acts against employer while laid off); Furnco Construction Corp. v. Waters, 438 U. S. 567 (1978) (hiring decisions based on personal knowledge of candidates and recommendations); Texas Dept. of Community Affairs v. Burdine, supra, (discretionary decision to fire individual who was said not to get along with coworkers); United States Postal Service Page 487 U. S. 989 Bd. of Governors v. Aikens, 460 U.S. at 460 U. S. 715 (discretionary promotion decision).Our decisions have not addressed the question whether disparate impact analysis may be applied to cases in which subjective criteria are used to make employment decisions. As noted above, the Courts of Appeals are in conflict on the issue. In order to resolve this conflict, we must determine whether the reasons that support the use of disparate impact analysis apply to subjective employment practices, and whether such analysis can be applied in this new context under workable evidentiary standards.BThe parties present us with stark and uninviting alternatives. Petitioner contends that subjective selection methods are at least as likely to have discriminatory effects as are the kind of objective tests at issue in Griggs and our other disparate impact cases. Furthermore, she argues, if disparate impact analysis is confined to objective tests, employers will be able to substitute subjective criteria having substantially identical effects, and Griggs will become a dead letter. Respondent and the United States (appearing as amicus curiae) argue that conventional disparate treatment analysis is adequate to accomplish Congress' purpose in enacting Title VII. They also argue that subjective selection practices would be so impossibly difficult to defend under disparate impact analysis that employers would be forced to adopt numerical quotas in order to avoid liability.We are persuaded that our decisions in Griggs and succeeding cases could largely be nullified if disparate impact analysis were applied only to standardized selection practices. However one might distinguish "subjective" from "objective" criteria, it is apparent that selection systems that combine both types would generally have to be considered subjective in nature. Thus, for example, if the employer in Griggs had consistently preferred applicants who had a high school diploma Page 487 U. S. 990 and who passed the company's general aptitude test, its selection system could nonetheless have been considered "subjective" if it also included brief interviews with the candidates. So long as an employer refrained from making standardized criteria absolutely determinative, it would remain free to give such tests almost as much weight as it chose without risking a disparate impact challenge. If we announced a rule that allowed employers so easily to insulate themselves from liability under Griggs, disparate impact analysis might effectively be abolished.We are also persuaded that disparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests. In either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices. It is true, to be sure, that an employer's policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct. Especially in relatively small businesses like respondent's, it may be customary and quite reasonable simply to delegate employment decisions to those employees who are most familiar with the jobs to be filled and with the candidates for those jobs. It does not follow, however, that the particular supervisors to whom this discretion is delegated always act without discriminatory intent. Furthermore, even if one assumed that any such discrimination can be adequately policed through disparate treatment analysis, the problem of subconscious stereotypes and prejudices would remain. In this case, for example, petitioner was apparently told at one point that the teller position was a big responsibility, with "a lot of money . . . for blacks to have to count." App. 7. Such remarks may not prove discriminatory intent, but they do suggest a lingering form of the problem that Title VII was enacted to combat. If an employer's undisciplined system of subjective decisionmaking has precisely the same effects as Page 487 U. S. 991 a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII's proscription against discriminatory actions should not apply. In both circumstances, the employer's practices may be said to "adversely affect [an individual's] status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(2). We conclude, accordingly, that subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases.CHaving decided that disparate impact analysis may in principle be applied to subjective as well as to objective practices, we turn to the evidentiary standards that should apply in such cases. It is here that the concerns raised by respondent have their greatest force. Respondent contends that a plaintiff may establish a prima facie case of disparate impact through the use of bare statistics, and that the defendant can rebut this statistical showing only by justifying the challenged practice in terms of "business necessity," Griggs, 401 U.S. at 401 U. S. 431, or "job-relatedness," Albemarle Paper Co., 422 U.S. at 422 U. S. 426. Standardized tests and criteria, like those at issue in our previous disparate impact cases, can often be justified through formal "validation studies," which seek to determine whether discrete selection criteria predict actual on-the-job performance. See generally id. at 422 U. S. 429-436. Respondent warns, however, that "validating" subjective selection criteria in this way is impracticable. Some qualities -- for example, common sense, good judgment, originality, ambition, loyalty, and tact -- cannot be measured accurately through standardized testing techniques. Moreover, success at many jobs in which such qualities are crucial cannot itself be measured directly. Opinions often differ when managers and supervisors are evaluated, and the same can be said for many jobs that involve close cooperation with one's coworkers or complex and subtle tasks like the provision of Page 487 U. S. 992 professional services or personal counseling. Because of these difficulties, we are told, employers will find it impossible to eliminate subjective selection criteria and impossibly expensive to defend such practices in litigation. Respondent insists, and the United States agrees, that employers' only alternative will be to adopt surreptitious quota systems in order to ensure that no plaintiff can establish a statistical prima facie case.We agree that the inevitable focus on statistics in disparate impact cases could put undue pressure on employers to adopt inappropriate prophylactic measures. It is completely unrealistic to assume that unlawful discrimination is the sole cause of people's failing to gravitate to jobs and employers in accord with the laws of chance. See Sheet Metal Workers v. EEOC, 478 U. S. 421, 478 U. S. 489 (1986) (O'CONNOR, J., concurring in part and dissenting in part). It would be equally unrealistic to suppose that employers can eliminate, or discover and explain, the myriad of innocent causes that may lead to statistical imbalances in the composition of their workforces. Congress has specifically provided that employers are not required to avoid "disparate impact" as such:"Nothing contained in [Title VII] shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer . . . in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available workforce in any community, State, section, or other area."42 U.S.C. § 2000e-2(j). Page 487 U. S. 993 Preferential treatment and the use of quotas by public employers subject to Title VII can violate the Constitution, see, e.g., Wygant v. Jackson Bd. of Education, 476 U. S. 267 (1986), and it has long been recognized that legal rules leaving any class of employers with "little choice" but to adopt such measures would be "far from the intent of Title VII." Albemarle Paper Co., 422 U.S. at 422 U. S. 449 (BLACKMUN, J., concurring in judgment). Respondent and the United States are thus correct when they argue that extending disparate impact analysis to subjective employment practices has the potential to create a Hobson's choice for employers, and thus to lead in practice to perverse results. If quotas and preferential treatment become the only cost-effective means of avoiding expensive litigation and potentially catastrophic liability, such measures will be widely adopted. The prudent employer will be careful to ensure that its programs are discussed in euphemistic terms, but will be equally careful to ensure that the quotas are met. Allowing the evolution of disparate impact analysis to lead to this result would be contrary to Congress' clearly expressed intent, and it should not be the effect of our decision today.DWe do not believe that disparate impact theory need have any chilling effect on legitimate business practices. We recognize, however, that today's extension of that theory into the context of subjective selection practices could increase the risk that employers will be given incentives to adopt quotas or to engage in preferential treatment. Because Congress has so clearly and emphatically expressed its intent that Title VII not lead to this result, 42 U.S.C. § 2000e-2(j), we think it imperative to explain in some detail why the evidentiary standards that apply in these cases should serve as adequate safeguards against the danger that Congress recognized. Page 487 U. S. 994 Our previous decisions offer guidance, but today's extension of disparate impact analysis calls for a fresh and somewhat closer examination of the constraints that operate to keep that analysis within its proper bounds. [Footnote 2]First, we note that the plaintiff's burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer's workforce. The plaintiff must begin by identifying the specific employment practice that is challenged. Although this has been relatively easy to do in challenges to standardized tests, it may sometimes be more difficult when subjective selection criteria are at issue. Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is, in our view, responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. Cf. Connecticut v. Teal, 457 U. S. 440 (1982).Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. Our formulations, which have never Page 487 U. S. 995 been framed in terms of any rigid mathematical formula, have consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation. In Griggs, for example we examined "requirements [that] operate[d] to disqualify Negroes at a substantially higher rate than white applicants." 401 U.S. at 401 U. S. 426. Similarly, we said in Albemarle Paper Co. that plaintiffs are required to show"that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants."422 U.S. at 422 U. S. 425. Later cases have framed the test in similar terms. See, e.g., Washington v. Davis, 426 U.S. at 426 U. S. 246-247 ("hiring and promotion practices disqualifying substantially disproportionate numbers of blacks"); Dothard, 433 U.S. at 433 U. S. 329 (employment standards that "select applicants for hire in a significantly discriminatory pattern"); Beazer, 440 U.S. at 440 U. S. 584 ("statistical evidence showing that an employment practice has the effect of denying the members of one race equal access to employment opportunities"); Teal, 457 U.S. at 457 U. S. 446 ("significantly discriminatory impact"). [Footnote 3] Page 487 U. S. 996Nor are courts or defendants obliged to assume that plaintiffs' statistical evidence is reliable. "If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own." Dothard, 433 U.S. at 433 U. S. 331. See also id. at 433 U. S. 338-339 (REHNQUIST, J., concurring in result and concurring in part) ("If the defendants in a Title VII suit believe there to be any reason to discredit plaintiffs' statistics that does not appear on their face, the opportunity to challenge them is available to the defendants, just as in any other lawsuit. They may endeavor to impeach the reliability of the statistical evidence, they may offer rebutting evidence, or they may disparage in arguments or in briefs the probative weight which the plaintiffs' evidence should be accorded"). Without attempting to catalog all the weaknesses that may be found in such evidence, we may note that typical examples include small or incomplete Page 487 U. S. 997 data sets and inadequate statistical techniques. See, e.g., Fudge v. Providence Fire Dept., 766 F.2d 650, 656-659 (CA1 1985). Similarly, statistics based on an applicant pool containing individuals lacking minimal qualifications for the job would be of little probative value. See, e.g., Hazelwood School Dist. v. United States, 433 U. S. 299, 433 U. S. 308 (1977) ("[P]roper comparison was between the racial composition of [the employer's] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market") (footnote omitted). Other kinds of deficiencies in facially plausible statistical evidence may emerge from the facts of particular cases. See, e.g., Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 189 (CA5 1983) ("The flaw in the plaintiffs' proof was its failure to establish the required causal connection between the challenged employment practice (testing) and discrimination in the workforce. Because the test does not have a cut-off, and is only one of many factors in decisions to hire or promote, the fact that blacks score lower does not automatically result in disqualification of disproportionate numbers of blacks as in cases involving cutoffs") (citation omitted); Contreras v. Los Angeles, 656 F.2d 1267, 1273-1274 (CA9 1981) (probative value of statistics impeached by evidence that plaintiffs failed a written examination at a disproportionately high rate because they did not study seriously for it), cert. denied, 455 U.S. 1021 (1982).A second constraint on the application of disparate impact theory lies in the nature of the "business necessity" or "job-relatedness" defense. Although we have said that an employer has "the burden of showing that any given requirement must have a manifest relationship to the employment in question," Griggs, 401 U.S. at 401 U. S. 432, such a formulation should not be interpreted as implying that the ultimate burden of proof can be shifted to the defendant. On the contrary, the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times. Page 487 U. S. 998 Thus, when a plaintiff has made out a prima facie case of disparate impact, and when the defendant has met its burden of producing evidence that its employment practices are based on legitimate business reasons, the plaintiff must"show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in efficient and trustworthy workmanship."Albemarle Paper Co., 422 U.S. at 422 U. S. 425 (citation omitted; internal quotation marks omitted). Factors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals. The same factors would also be relevant in determining whether the challenged practice has operated as the functional equivalent of a pretext for discriminatory treatment. Cf. ibid.Our cases make it clear that employers are not required, even when defending standardized or objective tests, to introduce formal "validation studies" showing that particular criteria predict actual on-the-job performance. In Beazer, for example, the Court considered it obvious that "legitimate employment goals of safety and efficiency" permitted the exclusion of methadone users from employment with the New York City Transit Authority; the Court indicated that the "manifest relationship" test was satisfied, even with respect to non-safety-sensitive jobs, because those legitimate goals were "significantly served by" the exclusionary rule at issue in that case, even though the rule was not required by those goals. 440 U.S. at 440 U. S. 587, n. 31. Similarly, in Washington v. Davis, the Court held that the "job-relatedness" requirement was satisfied when the employer demonstrated that a written test was related to success at a police training academy "wholly aside from [the test's] possible relationship to actual performance as a police officer." 426 U.S. at 426 U. S. 250. See also id. at 426 U. S. 256 (STEVENS, J., concurring) ("[A]s a matter of law, it is permissible for the police department to use a test Page 487 U. S. 999 for the purpose of predicting ability to master a training program, even if the test does not otherwise predict ability to perform on the job").In the context of subjective or discretionary employment decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a "manifest relationship to the employment in question." It is self-evident that many jobs, for example those involving managerial responsibilities, require personal qualities that have never been considered amenable to standardized testing. In evaluating claims that discretionary employment practices are insufficiently related to legitimate business purposes, it must be borne in mind that"[c]ourts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it."Furnco Construction Corp. v. Waters, 438 U.S. at 438 U. S. 578. See also Zahorik v. Cornell University, 729 F.2d 85, 96 (CA2 1984) ("[The] criteria [used by a university to award tenure], however difficult to apply and however much disagreement they generate in particular cases, are job-related. . . . It would be a most radical interpretation of Title VII for a court to enjoin use of an historically settled process and plainly relevant criteria largely because they lead to decisions which are difficult for a court to review"). In sum, the high standards of proof in disparate impact cases are sufficient, in our view, to avoid giving employers incentives to modify any normal and legitimate practices by introducing quotas or preferential treatment.IIIWe granted certiorari to determine whether the court below properly held disparate impact analysis inapplicable to a subjective or discretionary promotion system, and we now hold that such analysis may be applied. We express no opinion as to the other rulings of the Court of Appeals.Neither the District Court nor the Court of Appeals has evaluated the statistical evidence to determine whether petitioner Page 487 U. S. 1000 made out a prima facie case of discriminatory promotion practices under disparate impact theory. It may be that the relevant data base is too small to permit any meaningful statistical analysis, but we leave the Court of Appeals to decide in the first instance, on the basis of the record and the principles announced today, whether this case can be resolved without further proceedings in the District Court. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtWatson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988)Watson v. Fort Worth Bank & TrustNo. 86-6139Argued January 20, 1988Decided June 29, 1988487 U.S. 977SyllabusPetitioner employee, who is black, was rejected in favor of white applicants for four promotions to supervisory positions in respondent bank, which had not developed precise and formal selection criteria for the positions, but instead relied on the subjective judgment of white supervisors who were acquainted with the candidates and with the nature of the jobs. After exhausting her administrative remedies, petitioner filed suit in Federal District Court, alleging, inter alia, that respondent's promotion policies had unlawfully discriminated against blacks generally and her personally in violation of Title VII of the Civil Rights Act of 1964. As to petitioner's individual claim, the court held that she had not met her burden of proof under the discriminatory treatment evidentiary standard and, for this and other reasons, dismissed the action. The Court of Appeals affirmed in relevant part, rejecting petitioner's contention that the District Court erred in failing to apply "disparate impact" analysis to her promotion claims. The court held that, under its precedent, a Title VII challenge to a discretionary or subjective promotion system can only be analyzed under the disparate treatment model.Held: The judgment is vacated, and the case is remanded.798 F.2d 791, vacated and remanded.JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, concluding that disparate impact analysis may be applied to a subjective or discretionary promotion system. Pp. 487 U. S. 985-991, 487 U. S. 999-1000.(a) Each of this Court's decisions applying disparate impact analysis -- under which facially neutral employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to illegal intentional discrimination -- involved standardized tests or criteria, such as written aptitude tests or high school diploma requirements, see, e.g., Griggs v. Duke Power Co., 401 U. S. 424, and the Court has consistently used disparate treatment theory, in which proof of intent to discriminate is required, to review hiring or promotion decisions that were based on the exercise of personal judgment or the application of subjective criteria, see, e.g., McDonnell Douglas Corp. v. Green, 411 U. S. 792. Until today, the Court has never addressed the Page 487 U. S. 978 question whether disparate impact analysis may be applied to subjective employment criteria. Pp. 487 U. S. 985-989.(b) The reasons supporting the use of disparate impact analysis apply to subjective employment practices. That analysis might effectively be abolished if it were confined to objective, standardized selection practices, since an employer could insulate itself from liability under Griggs and its progeny simply by combining such practices with a subjective component, such as a brief interview, in a system that refrained from making the objective tests absolutely determinative, and could thereby remain free to give those tests almost as much weight as it chose without risking a disparate impact challenge. Moreover, disparate impact analysis is, in principle, no less applicable to subjective employment criteria than to objective or standardized tests, since, in either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices. Simply because no inference of discriminatory intent can be drawn from the customary and reasonable practice in some businesses of leaving promotion decisions to the unchecked discretion of the lower level supervisors most familiar with the jobs and candidates, it does not follow that these supervisors always act without discriminatory intent. Even if it is assumed that discrimination by individual supervisors can be adequately policed through disparate treatment analysis, that analysis would not solve the problem created by subconscious stereotypes and prejudices that lead to conduct prohibited by Title VII. Pp. 487 U. S. 989-991.(c) Since neither the District Court nor the Court of Appeals has evaluated the statistical evidence to determine whether petitioner made out a prima facie case of discrimination under disparate impact theory, the case must be remanded. Pp. 487 U. S. 999-1000.JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA, concluded in Parts II-C and II-D that:1. The extension of disparate impact analysis to subjective employment practices could increase the risk that, in order to avoid liability, employers will adopt surreptitious numerical goals and quotas in the belief that, since disparate impact analysis inevitably focuses on statistical evidence, which cannot practically be rebutted by the kind of counterevidence typically used to defend objective criteria, the threat of ruinous litigation requires steps to ensure that no plaintiff can establish a prima facie case under disparate impact theory. That result would be contrary to Congress' clearly expressed intent in 42 U.S.C. § 2000(e)-2(j) that no employer shall be required to grant preferential treatment to any protected individual or group because of a numerical imbalance in its workforce. Pp. 487 U. S. 991-993.2. However, the application of disparate impact theory to subjective employment criteria should not have any chilling effect on legitimate Page 487 U. S. 979 business practices, since the high standards of proof applicable in such cases operate to constrain the theory within its proper bounds and provide adequate safeguards against the danger that quotas or preferential treatment will be adopted by employers. Pp. 487 U. S. 993-999.(a) In establishing a prima facie case when subjective selection criteria are at issue, the plaintiff may have difficulty satisfying the initial burden of identifying the specific employment practices that are allegedly responsible for any observed statistical disparity, especially where the employer has combined the subjective criteria with more rigid standardized rules or tests. Moreover, the plaintiff's statistical evidence must be sufficiently substantial to prove that the practice in question has caused the exclusion of job or promotion applicants because of their membership in a protected group, and the defendant is free to attack the probative weight of that evidence, to point out fallacies or deficiencies in the plaintiff's data or statistical techniques, and to adduce countervailing evidence of its own. Pp. 487 U. S. 994-997.(b) The nature of the "business necessity" or "job-relatedness" defense -- under which the defendant has a burden of producing evidence after the plaintiff has made out a prima facie case -- also constrains the application of the disparate impact theory. Employers are not required, even when defending standardized or objective tests, to introduce formal "validation studies" showing that particular criteria predict actual on-the-job performance. In the context of subjective or discretionary decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a "manifest relationship to the employment in question." Many jobs, for example those involving managerial responsibilities, require personal qualities that are not amenable to standardized testing, but are nevertheless job-related. In evaluating claims that discretionary practices are insufficiently related to legitimate business purposes, courts are generally less competent than employers to restructure business practices, and therefore should not attempt to do so. Pp. 487 U. S. 997-999.JUSTICE BLACKMUN, joined by JUSTICE BRENNAN and JUSTICE MARSHALL, agreeing that disparate impact analysis may be applied to claims of discrimination caused by subjective or discretionary selection processes, concluded that:1. In the disparate-impact context, a plaintiff who successfully establishes a prima facie case shifts the burden of proof, not production, to the defendant to establish that the employment practice in question is a business necessity. See, e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 425; Dothard v. Rawlinson, 433 U. S. 321, 433 U. S. 329; and Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 432. The plurality's assertion to the contrary mimics the allocation of burdens this Court has established in the very different context of individual disparate treatment claims. Unlike a Page 487 U. S. 980 disparate treatment claim of intentional discrimination, which a prima facie case establishes only by inference, the disparate impact caused by an employment practice is directly established by the numerical disparity shown by the prima facie case, and the employer can avoid liability only if it can prove that the discriminatory effect is justified. To be justified as a business necessity, a practice must directly relate to a prospective employee's ability to perform the job effectively; i.e., it must be necessary to fulfill legitimate business requirements. Pp. 487 U. S. 1000-1006.2. The plurality's suggestion that the employer will often find it easier to produce evidence of job-relatedness for a subjective factor than for standardized tests may prove misleading, since the employer still has the obligation to persuade the court of job-relatedness through the introduction of relevant evidence. Pp. 487 U. S. 1006-1011.(a) The fact that the formal validation techniques endorsed by the Equal Employment Opportunity Commission's (EEOC) Uniform Guidelines on Employee Selection Procedures cannot always be used to prove the job-relatedness of subjective selection processes does not free an employer from its burden of proof. The link between such processes and job performance may, depending on the type and size of the business and the nature of the particular job, be established by a variety of methods, including the results of studies, expert testimony, and prior successful experience. Although common sense plays a part in the assessment, a reviewing court may not rely on its own, or an employer's, sense of what is "normal" as a substitute for a neutral assessment of the evidence. Pp. 487 U. S. 1006-1008.(b) The employer's burden of justifying an employment practice that produces a disparate impact is not lessened simply because the practice relies upon subjective assessments. Establishing a general rule allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria would disserve Title VII's goal of eradicating employment discrimination by encouraging employers to abandon attempts to construct neutral selection mechanisms in favor of broad generalities. While subjective criteria will sometimes pose difficult problems for courts charged with assessing job-relatedness, requiring the development of a greater factual record, and, perhaps, the exercise of a greater degree of judgment, that does not dictate that subjective selection processes generally are to be accepted at face value. Pp. 487 U. S. 1008-1011.JUSTICE STEVENS, agreeing that the racially adverse impact of an employer's practice of simply committing employment decisions to the unchecked discretion of a white supervisory corps is subject to the test of Griggs v. Duke Power Co., 401 U. S. 424, concluded that, since cases Page 487 U. S. 981 involving such practices will include too many variables to be adequately considered in a general context, further discussion of evidentiary standards should be postponed until after the District Court has made appropriate findings concerning petitioner's prima facie evidence of disparate impact and respondent's explanation for its subjective practice. P. 487 U. S. 1011.O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and SCALIA, JJ., joined, and an opinion with respect to Parts II-C and II-D in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, in which BRENNAN and MARSHALL, JJ., joined, post, p. 487 U. S. 1000. STEVENS, J., filed an opinion concurring in the judgment, post, p. 487 U. S. 1011. KENNEDY, J., took no part in the consideration or decision of the case. Page 487 U. S. 982