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SCARBOROUGH v. PRINCIPI, SECRETARY OF VETERANS AFFAIRS
No. 02-1657.
Argued February 23, 2004
Decided May 3, 2004
Brian Wo lfinan argued the cause for petitioner. With him on the briefs were Scott L. Nelson, Alan B. Morrison, and Peter J. Sarda.
Jeffrey P. Minear argued the cause for respondent. On the brief were Solicitor General Olson, Assistant Attorney General Keisler, Deputy Solicitor General Clement, Austin C. Schlick, William Ranter, August E. Flentje, and Tim S. McClain.
Justice Ginsburg
delivered the opinion of the Court.
The Equal Access to Justice Act (EAJA or Act) departs from the general rule that each party to a lawsuit pays his or her own legal fees. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 257 (1975). Relevant here, EAJA authorizes the payment of fees to a prevailing party in an action against the United States; the Government may defeat this entitlement by showing that its position in the underlying litigation “was substantially justified.” 28 U. S. C. § 2412(d)(1)(A). In a further provision, § 2412(d)(1)(B), the Act prescribes the timing and content of applications seeking fees authorized by § 2412(d)(1)(A). Section 2412(d)(1)(B) specifies as the time for filing the application “within thirty days of final judgment in the action.” In the same sentence, the provision identifies the application’s contents, in particular, a showing that the applicant is a “prevailing party” who meets the financial eligibility condition (in this case, a net worth that “did not exceed $2,000,000 at the time the . . . action was filed,” § 2412(d)(2)(B)); and a statement of the amount sought, with an accompanying itemization. The fee application instruction adds in the next sentence: “The [applicant] shall also allege that the position of the United States was not substantially justified.”
Petitioner Randall C. Scarborough was the prevailing party in an action against the Department of Veterans Affairs for disability benefits. His counsel filed a timely application for fees showing Scarborough’s “eligibility] to receive an award” and “the amount sought, including [the required] itemized statement.” § 2412(d)(1)(B). But counsel failed initially to allege, in addition, that “the position of the United States was not substantially justified.” Pointing to that omission, the Government moved to dismiss the fee application. Scarborough’s counsel immediately filed an amended application adding that the Government’s opposition to the underlying claim for benefits “was not substantially justified.” In the interim between the initial filing and the amendment, however, the 30-day fee application filing period had expired. For that sole reason, the United States Court of Appeals for Veterans Claims granted the Government’s motion to dismiss the application and the Federal Circuit affirmed that disposition.
Scarborough’s petition for certiorari presents this question: May a timely fee application, pursuant to § 2412(d), be amended after the 30-day filing period has run to cure an initial failure to allege that the Government’s position in the underlying litigation lacked substantial justification? We hold that a curative amendment is permissible and that Scarborough’s fee application, as amended, qualifies for consideration and determination on the merits.
I
A
Congress enacted EAJA, Pub. L. 96-481, Tit. II, 94 Stat. 2325, in 1980 “to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.” H. R. Rep. No. 96-1005, p. 9; see Congressional Findings and Purposes, 94 Stat. 2325, note following 5 U. S. C. § 504 (“It is the purpose of this title ... to diminish the deterrent effect of seeking review of, or defending against, governmental action . . . .”). Among other reforms, EAJA amended 28 U. S. C. §2412, which previously had authorized courts to award costs, but not attorney’s fees and expenses, to prevailing parties in civil litigation against the United States. EAJA added two new prescriptions to §2412 that expressly authorize attorney’s fee awards against the Federal Government. First, § 2412(b) made the United States liable for attorney’s fees and expenses “to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.” Second, § 2412(d) rendered the Government liable for a prevailing private party’s attorney’s fees and expenses in cases in which suit would lie only against the United States or an agency of the United States. This case concerns the construction of § 2412(d).
Congress initially adopted § 2412(d) for a trial period of three years, Pub. L. 96-481, § 204(c); in 1985, Congress substantially reenacted the measure, this time without a sunset provision, Pub. L. 99-80, 99 Stat. 183. See id., § 6(b)(2), 99 Stat. 186. Congress’ aim, in converting § 2412(d) from a temporary measure to a permanent one, was “to ensure that certain individuals, partnerships, corporations ... or other organizations will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved.” H. R. Rep. No. 99-120, p. 4.
Section 2412(d) currently provides, in relevant part:
“(d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a),[] incurred by that party in any civil action (other than cases sounding in tort),. . . brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
“(B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness . .. stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified.”
Section 2412(d)(1)(A) thus entitles a prevailing party to fees absent a showing by the Government that its position in the underlying litigation “was substantially justified,” while § 2412(d)(1)(B) sets a deadline of 30 days after final judgment for the filing of a fee application and directs that the application shall include: (1) a showing that the applicant is a prevailing party; (2) a showing that the applicant is eligible to receive an award (in Scarborough’s case, that the applicant’s “net worth did not exceed $2,000,000 at the time the civil action was filed,” § 2412(d)(2)(B)); and (3) a statement of the amount sought together with an itemized account of time expended and rates charged. The second sentence of § 2412(d)(1)(B) adds a fourth instruction, requiring the applicant simply to “allege” that the position of the United States was not substantially justified.
B
On July 9, 1999, petitioner Scarborough, a United States Navy veteran, prevailed before the Court of Appeals for Veterans Claims (CAVC) on a claim for disability benefits. App. to Pet. for Cert. 41a-44a. Eleven days later, Scarborough’s counsel applied, on Scarborough’s behalf, for attorney’s fees and costs pursuant to § 2412(d). App. 4-5. Scarborough himself would gain from any fee recovery because his lawyer’s statutory contingent fee, ordinarily 20% of the veteran’s past-due benefits, 38 U. S. C. § 5904(d)(1), would be reduced dollar for dollar by an EAJA award. See Federal Courts Administration Act of 1992, 106 Stat. 4513, Fee Agreements, note following 28 U. S. C. §2412; Tr. of Oral Arg. 6.
The Clerk of the CAVC returned Scarborough’s initial fee application on the ground that it was filed too soon. App. 6-7. After the CAVC issued a judgment noting that the time for filing postdecision motions had expired, Scarborough’s counsel filed a second EAJA application (the one at issue here) setting forth, as did the first application, that Scarborough was the prevailing party in the underlying litigation; that his net worth did not exceed $2 million; and a description of work counsel performed for Scarborough since counsel’s retention in August 1998. Id., at 8-9. The application requested $19,333.75 in attorney’s fees and $117.80 in costs. Id., at 9. Scarborough’s applications, both the first and the second, failed to allege “that the position of the United States [in the underlying litigation] was not substantially justified,” § 2412(d)(1)(B). In all other respects, it is not here disputed, Scarborough’s filings met the § 2412(d)(1)(B) application-content requirements.
Again, the Clerk of the CAVC found the application premature, but this time retained it, unfiled, until the time to appeal the CAVC’s judgment had expired. The Clerk then filed the fee application and notified the respondent Secretary of Veterans Affairs that his response was due within 30 days. Id., at 10. After receiving and exhausting a 30-day extension of time to respond, the Secretary moved to dismiss the fee application. Id., at 2. The CAVC lacked subject-matter jurisdiction to award fees under § 2412(d), the Secretary maintained, because Scarborough’s counsel had failed to allege, within 30 days of the final judgment, “that the position of the United States was not substantially justified,” § 2412(d)(1)(B). CAVC Record, Doc. 12, pp. 4-5.
Scarborough’s counsel promptly filed an amendment to the fee application, stating in a new paragraph that “the government’s defense of the Appellant’s claim was not substantially justified.” App. 11. Simultaneously, Scarborough opposed the Secretary’s motion to dismiss, urging that the omission initially to plead “no substantial justification” could be cured by amendment and was not a jurisdictional defect. CAVC Record, Doc. 13, pp. 1-2. On June 14, 2000, the CAVC dismissed Scarborough’s fee application on the ground asserted by the Government. Scarborough v. West, 13 Vet. App. 530 (per curiam).
A year-and-a-half later, the Court of Appeals for the Federal Circuit affirmed. 273 F. 3d 1087 (2001). EAJA must be construed strictly in favor of the Government, the Court of Appeals stated, because the Act effects a partial waiver of sovereign immunity, rendering the United States liable for attorney’s fees when the Government otherwise would not be required to pay. Id., at 1089-1090. In the court’s view, “[t]he language of the EAJA statute is plain and unambiguous”; it requires a party seeking fees under § 2412(d) to submit an application, including all enumerated allegations, within the 30-day time , limit. Id., at 1090 (citing § 2412(d)(1)(B)). The court acknowledged that the Courts of Appeals for the Third and Eleventh Circuits read § 2412(d)(1)(B) to require only that the fee application be filed within 30 days; those Circuits allow later amendments to perfect the application-content specifications set out in § 2412(d)(1)(B). Id., at 1090-1091 (citing Dunn v. United States, 775 F. 2d 99, 104 (CA3 1985) (applicant need not submit within 30 days an itemized statement accounting for the amount sought), and Singleton v. Apfel, 231 F. 3d 853, 858 (CA11 2000) (applicant need not allege within 30 days that her net worth did not exceed $2 million or that the Government’s position was not substantially justified)).
The Federal Circuit also distinguished its own decision in Bazalo v. West, 150 F. 3d 1380 (1998), which had held that an applicant may supplement an EAJA application to cure an initial failure to show eligibility for fees. The applicant in Bazalo had failed to allege and establish, within the 30-day period, that he was a qualified “party” within the meaning of § 2412(d), i.e., that his “net worth did not exceed $2,000,000 at the time the civil action was filed,” § 2412(d)(2)(B). Id., at 1381. Bazalo differed from Scarborough’s case, the Court of Appeals said, because the Bazalo applicant had essentially complied with the basic pleading requirements and simply needed to “fles[h] out . . . the details.” 273 F. 3d, at 1092.
We granted Scarborough’s initial petition for a writ of cer-tiorari, vacated the judgment of the Court of Appeals, and remanded the case in light of this Court’s decision in Edelman v. Lynchburg College, 535 U. S. 106 (2002). See 536 U. S. 920 (2002). Edelman concerned an Equal Employment Opportunity Commission (EEOC) regulation relating to Title VII of the Civil Rights Act of 1964; the regulation allowed amendment of an employment discrimination charge, timely filed with the EEOC, to add, after the filing deadline had passed, the required, but initially absent, verification. See 42 U. S. C. § 2000e-5(b) (requiring charges to “be in writing under oath or affirmation”). We upheld the regulation. Title VII, we explained, in line with “a long history of practice,” 535 U. S., at 116, permitted “relation back” of a verification missing from an original filing, id., at 115-118.
On remand of Scarborough’s case to the same Federal Circuit panel, two of the three judges adhered to the panel’s unanimous earlier decision and distinguished Edelman. 319 F. 3d 1346 (2003). Unlike the civil rights statute in Edel-man, the Court of Appeals majority said, a “remedial scheme” in which laypersons often initiate the process, EAJA is directed to attorneys, who do not need “paternalistic protection.” 319 F. 3d, at 1353 (internal quotation marks omitted). The Federal Circuit’s majority further observed that the two requirements at issue in Edelman — the timely filing of a discrimination charge and the verification of that charge — appear in separaté statutory provisions. In contrast, EAJA’s 30-day filing deadline and the contents required for a fee application are detailed in the same statutory provision. 319 F. 3d, at 1353. The majority also distinguished Becker v. Montgomery, 532 U. S. 757 (2001), in which we held that a pro se litigant’s failure to hand sign a timely filed notice of appeal is a nonjurisdietional, and therefore curable, defect. This Court had noted in Becker, the Federal Circuit majority pointed out, that the timing and signature requirements there at issue were found in separate rules. See 319 F. 3d, at 1353. The Federal Circuit’s opinion next distinguished Edelman’s verification requirement and Becker’s signature requirement from EAJA’s no-substantial-justification-allegation requirement on this additional ground: “[The] . . . substantial justification [allegation] is not a pro forma requirement,” for it “requires an applicant to analyze the case record” and “is one portion of the basis of the award itself.” 319 F. 3d, at 1353. Reiterating that the no-substantial-justification allegation is “jurisdictional,” the Federal Circuit held that Scarborough’s “[n]oncompliance [was] fatal” and dismissed the application. Id., at 1355.
Chief Judge Mayer dissented. The no-substantial-justification allegation, he found, “is akin to the verification requirement of Edelman and the signature requirement of Becker.” Id., at 1356. In addition to the pathmarking Edelman and Becker decisions, he regarded this case as “substantially the same case as Bazalo. ” 319 F. 3d, at 1356. In light of EAJA’s purpose “to eliminate the financial disincentive for those who would defend against unjustified governmental action and thereby deter it,” Chief Judge Mayer concluded, “it is apparent that Congress did not intend the EAJA application process to be an additional deterrent to the vindication of rights because of a missing averment.” Ibid.
We granted certiorari, 539 U. S. 986 (2003), in view of the division of opinion among the Circuits on the question whether an EAJA application may be amended, outside the 30-day period, to allege that the Government’s position in the underlying litigation was not substantially justified, compare Singleton, 231 F. 3d 853, with 319 F. 3d 1346. We now reverse the judgment of the Court of Appeals.
II
A
We clarify, first, that the question before us — whether Scarborough is time barred by § 2412(d)(1)(B) from gaining the fee award authorized by § 2412(d)(1)(A) — does not concern the federal courts’ “subject-matter jurisdiction.” Rather, it concerns a mode of relief (costs including legal fees) ancillary to the judgment of a court that has plenary “jurisdiction of [the civil] action” in which the fee application is made. See §§ 2412(b) and (d)(1)(A) (costs including fees awardable “in any civil action” brought against the United States “in any court having jurisdiction of [that] action”); 38 U. S. C. § 7252(a) (“The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals.”). More particularly, the current dispute between Scarborough and the Government presents a question of time. The issue is not whether, but when, §§ 2412(d)(1)(A) and (B) require a fee applicant to “allege that the position of the United States was not substantially justified.” As we recently observed:
“Courts, including this Court,... have more than occasionally [mis]used the term ‘jurisdictional’ to describe emphatic time prescriptions in [claim processing] rules .... Classifying time prescriptions, even rigid ones, under the heading ‘subject matter jurisdiction’ can be confounding. Clarity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Kontrick v. Ryan, 540 U. S. 443, 454-455 (2004) (citation, some internal quotation marks, and brackets omitted).
In short, § 2412(d)(1)(B) does not describe what “classes of cases,” id., at 455, the CAVC is competent to adjudicate; instead, the section relates only to postjudgment proceedings auxiliary to cases already within that court’s adjudicatory authority. Accordingly, as Kontrick indicates, the provision’s 30-day deadline for fee applications and its application-content specifications are not properly typed “jurisdictional.”
B
We turn next to the reason why Congress required the fee applicant to “allege” that the Government’s position “was not substantially justified,” § 2412(d)(1)(B). Unlike the § 2412(d)(1)(B) prescriptions on what the applicant must show (his “prevailing party” status and “eligibility] to receive an award,” and “the amount sought, including an itemized statement” reporting “the actual time expended and the rate at which fees and other expenses were computed”), the required “not substantially justified” allegation imposes no proof burden on the fee applicant. It is, as its text conveys, nothing more than an allegation or pleading requirement. The burden of establishing “that the position of the United States was substantially justified,” § 2412(d)(1)(A) indicates and courts uniformly have recognized, must be shouldered by the Government. See, e. g., Pierce v. Underwood, 487 U. S. 552, 567 (1988); id., at 575 (Brennan, J., concurring in part and concurring in judgment); Davidson v. Veneman, 317 F. 3d 503, 506 (CA5 2003); Lauer v. Barnhart, 321 F. 3d 762, 764 (CA8 2003); Libas, Ltd. v. United States, 314 F. 3d 1362, 1365 (CA Fed. 2003). See also H. R. Rep. No. 96-1005, at 10 (“[T]he strong deterrents to contesting Government action that currently exis[t] require that the burden of proof rest with the Government.”).
Congress did not, however, want the “substantially justified” standard to “be read to raise a presumption that the Government position was not substantially justified simply because it lost the case ....” Ibid. By allocating the burden of pleading “that the position of the United States was not substantially justified” — and that burden only — to the fee applicant, Congress apparently sought to dispel any assumption that the Government must pay fees each time it loses. Complementarily, the no-substantial-justification-allegation requirement serves to ward off irresponsible litigation, i. e., unreasonable or capricious fee-shifting demands. As counsel for the Government stated at oral argument, allocating the pleading burden to fee applicants obliges them “to examine the Government’s position and make a determination . .. whether it is substantially justified or not.” Tr. of Oral Arg. 31; see id., at 19 (petitioner recognizes that “the purpose of this allegation [is to make] a lawyer think twice”). So understood, the applicant’s burden to plead that the Government’s position “was not substantially justified” is'akin to the signature requirement in Becker and the oath or affirmation requirement in Edelman.
In Becker, a pro se litigant had typed, but had neglected to hand sign, his name, as required by Federal Rule of Civil Procedure 11(a), on his timely filed notice of appeal. 532 U. S., at 760-761, 763; see supra, at 411-412. Although we called the rules on the timing and content of notices of appeal “linked jurisdictional provisions,” Becker, 532 U. S., at 765 (referring to Fed. Rules App. Proc. 3 and 4), we concluded that a litigant could add the signature required by Rule 11(a) even after the time for filing the notice had expired, 532 U. S., at 766-767. Rule 11(a), we observed, provides that “omission of the signature” on any “pleading, written motion, [or] other paper” may be “corrected promptly after being called to the attention of the attorney or party.” See 532 U. S., at 764. Permitting a late signature to perfect an appeal, we explained, was hardly pathbreaking, for “[o]ther opinions of this Court are in full harmony with the view that imperfections in noticing an appeal should not be fatal where no genuine doubt exists about who is appealing, from what judgment', to which appellate court.” Id., at 767-768 (citing Smith v. Barry, 502 U.S. 244, 245, 248-249 (1992), and Foman v. Davis, 371 U. S. 178, 181 (1962)).
The next Term, in Edelman, we described our decision in Becker as having allowed “relation back” of the late signature to the timely filed notice of appeal. 535 U. S., at 116. Edelman involved an EEOC regulation permitting a Title VII discrimination charge timely filed with the agency to be amended, outside the charge-filing period, to include an omitted, but required, verification. Id., at 109; see supra, at 411. “There is no reason,” we observed in sustaining the regulation, “to think that relation back of the oath here is any less reasonable than relation back of the signature in Becker. Both are aimed at stemming the urge to litigate irresponsibly ....” 535 U. S., at 116.
Becker and Edelman inform our judgment in this case. Like the signature and verification requirements, EAJA’s ten-word “not substantially justified” allegation is a “think twice” prescription that “stem[s] the urge to litigate irresponsibly,” Edelman, 535 U. S., at 116; at the same time, the allegation functions to shift the burden to the Government to prove that its position in the underlying litigation “was substantially justified,” § 2412(d)(1)(A). We note, too, that the allegation does not serve an essential notice-giving function; the Government is aware, from the moment a fee application is filed, that to defeat the application on the merits, it will have to prove its position “was substantially justified.” As Becker indicates, the lapse here “should not be fatal where no genuine doubt exists about who is applying] [for fees], from what judgment, to which . . . court.” 532 U. S., at 767. Moreover, because Scarborough’s lawyer’s statutory contingent fee would be reduced dollar for dollar by an EAJA award, see 38 U. S. C. § 5904(d)(1); Fee Agreements, note following 28 U. S. C. § 2412, allowing the curative amendment benefits the complainant directly, and is not fairly described as simply a boon for his counsel. Permitting amendment thus advances Congress’ purpose, in enacting EAJA, to reduce the “emphasi[s], virtually to the exclusion of all other issues, [on] the cost of potential litigation” in a party’s decision whether to challenge unjust governmental action. H. R. Rep. No. 96-1005, at 7.
The Government, however, maintains that the relation-back regime, as now codified in Rule 15(c) of the Federal Rules of Civil Procedure, is out of place in this context, for that Rule governs “pleadings,” a term that does not encompass fee applications. Brief for Respondent 21; see Fed. Rule Civ. Proc. 15(c)(2) (permitting relation back of amendments to pleadings when “the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original [timely filed] pleading”). See also Rule 7(a) (enumerating permitted “pleadings”). Scarborough acknowledges that Rule 15(c) itself is directed to federal district court “pleadings,” but urges that this Court has approved application of the relation-back doctrine in analogous settings. Brief for Petitioner 28. Most recently, as just related, we applied the doctrine in Becker and Edelman to, respectively, a notice of appeal and an EEOC discrimination charge, neither of which is a “pleading” under the Federal Rules. As the Government concedes, moreover, see Tr. of Oral Arg. 35-36, “relation back” was not an invention of the federal rulemakers. We applied the doctrine well before 1938, the year the Federal Rules became effective. See, e. g., New York Central & Hudson River R. Co. v. Kinney, 260 U. S. 340, 346 (1922); Seaboard Air Line R. Co. v. Renn, 241 U. S. 290, 293-294 (1916); Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 575-576 (1913). With a view to then-existing practice, the original Rules Advisory Committee described “relation back” as “a well recognized doctrine.” Advisory Committee’s 1937 Note on Subd. (c) of Fed. Rule Civ. Proc. 15, 28 U. S. C. App., p. 686. Commentators have observed that the doctrine Rule 15(c) embraces “has its roots in the former federal equity practice and a number of state codes.” 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1496, p. 64 (2d ed. 1990).
The relation-back doctrine, we accordingly hold, properly guides our determination that Scarborough’s fee application could be amended, after the 30-day filing period, to include the “not substantially justified” allegation: The amended application “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth” in the initial application. Fed. Rule Civ. Proc. 15(c)(2). Just as failure initially to verify a charge or sign a “pleading, written motion, [or] other paper,” Fed. Rule Civ. Proc. 11(a), was not fatal to the petitioners’ cases in Edelman and Becker, so here, counsel’s initial omission of the assertion that the Government’s position lacked substantial justification is not beyond repair.
C
The Government insists most strenuously that §2412’s waiver of sovereign immunity from liability for fees is conditioned on the fee applicant’s meticulous compliance with each and every requirement of § 2412(d)(1)(B) within 30 days of final judgment. Brief for Respondent 18-19; Tr. of Oral Arg. 28, 31; see Ardestani v. INS, 502 U. S. 129, 137 (1991) (“EAJA renders the United States liable for attorney’s fees for which it would otherwise not be liable, and thus amounts to a partial waiver of sovereign immunity.”). In the Government’s view, a failure to allege that the position of the United States “was not substantially justified” before the 30-day clock has run is as fatal as an omission of any other § 2412(d)(1)(B) specification. Brief for Respondent 15; Tr. of Oral Arg. 45.
We observe, first, that the Federal Circuit’s reading of § 2412(d)(1)(B) is not as unyielding as the Government’s. Indeed, the Federal Circuit has held that a fee application may be amended, out of time, to show that the applicant “is eligible to receive an award,” § 2412(d)(1)(B). See Bazalo, 150 F. 3d, at 1383-1384 (amendment made after 30-day filing period cured failure initially to establish that fee applicant’s net worth did not exceed $2 million). As earlier noted, see supra, at 412, the dissenting judge in Scarborough’s case found Bazalo indistinguishable. 319 F. 3d, at 1355-1356 (opinion of Mayer, C. J.).
Our decisions in Irwin v. Department of Veterans Affairs, 498 U. S. 89 (1990), and Franconia Associates v. United States, 536 U. S. 129 (2002), are enlightening on this issue. Irwin involved an untimely filed Title VII employment discrimination complaint against the Government. Although the petitioner had missed the filing deadline, we held that Title VII’s statutory time limits are subject to equitable tolling, even against the Government. 498 U. S., at 95. Similarly, in Franconia, we rejected an “unduly restrictive” construction of the statute of limitations for claims filed against the United States under the Tucker Act, 28 U. S. C. § 1491. See 536 U. S., at 145 (internal quotation marks and brackets omitted); ibid, (refusing to adopt “special accrual rule” for commencement of limitations period against the Government).
In those decisions, we recognized that “limitations principles should generally apply to the Government fin the same way that’ they apply to private parties.” Ibid, (quoting Irwin, 498 U. S., at 95). Once Congress waives sovereign immunity, we observed, judicial application of a time prescription to suits against the Government, in the same way the prescription is applicable to private suits, “amounts to little, if any, broadening of the congressional waiver.” Irwin, 498 U. S., at 95. We further stated in Irwin that holding the Government responsible “is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation.” Ibid.
The Government nevertheless maintains that Irwin and Franconia do not bear on this case, for “[§] 2412(d) authorizes fee awards against the government under rules that have no analogue in private litigation.” Brief for Respondent 39. But it is hardly clear that Irwin demands a precise private analogue. Litigation against the United States exists because Congress has enacted legislation creating rights against the Government, often in matters peculiar to the Government’s engagements with private persons — matters, such as the administration of benefit programs. Because many statutes that create claims for relief against the United States or its agencies apply only to Government defendants, Irwin’s reasoning would be diminished were it instructive only in situations with a readily identifiable private-litigation equivalent.
In any event, § 2412(d) is analogous to other fee-shifting provisions abrogating the general rule that each party to a lawsuit pays his own legal fees. The provision resembles “prevailing party” fee-shifting statutes that are applicable to suits between private litigants. See, e. g., 15 U. S. C. § 1692k(a)(3) (Fair Debt Collection Practices Act); 29 U. S. C. § 2617(a)(3) (Family and Medical Leave Act of 1993); 42 U. S. C. § 2000e-5(k) (Title VII); cf. Franconia, 536 U. S., at 145 (comparing Tucker Act statute of limitations to “contemporaneous state statutes of limitations applicable to suits between private parties [that] also tie the commencement of the limitations period to the date a claim ‘first accrues’”).
We note, finally, that the Government has never argued that it will be prejudiced if Scarborough’s “not substantially justified” allegation is permitted to relate back to his timely filed fee application. Moreover, a showing of prejudice should preclude operation of the relation-back doctrine in the first place. See Singleton, 231 F. 3d, at 858 (“The interests of the government and the courts will be served, however, if district courts are empowered to . . . outright deny a request to supplement [a fee application] if the government would be prejudiced.”). In addition, EAJA itself has a built-in check: Section 2412(d)(1)(A) disallows fees where “special circumstances make an award unjust.” See H. R. Rep. No. 96-1418, p. 11 (1980) (§2412(d)(l)(A)’s “safety valve” gives “the court discretion to deny awards where equitable considerations dictate an award should not be made”). Our conclusion that a timely filed EAJA fee application may be amended, out of time, to allege “that the position of the United States was not substantially justified,” § 2412(d)(1)(B), therefore will not expose the Government to any unfair imposition.
For the reasons stated, the judgment of the Court of Appeals for the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Subsection (a) states: “Except as otherwise specifically provided by statute, a judgment for costs ... may be awarded to the prevailing party in any civil action brought by or against the United States -.. in any court having jurisdiction of such action.” § 2412(a)(1).
The same reduction applies in Social Security cases, see Pub. L. 99-80, § 3, 99 Stat. 186, which account for the large majority of EAJA awards. L. Mecham, Annual Report of the Director of the Administrative Office of the United States Courts 35-37 (1990).
Scarborough had already invoked the CAVC’s exclusive jurisdiction— by appealing the Board of Veterans’ Appeals’ July 1998 decision denying his claim for disability benefits — well before he applied for fees; this distinguishes his case from Torres v. Oakland Scavenger Co., 487 U. S. 312 (1988), on which the Government relies. See Brief for Respondent 11, 20, n. 3. Torres involved the omission of required content (each applicant’s name) in a notice of appeal, the filing that triggers appellate-court jurisdiction over the case. See 487 U. S., at 315, 317.
All agree that § 2412(d)(1)(B) requires a fee applicant to allege that the Government’s position “was not substantially justified.” In this regard, the dissent sees fire where there is no flame. The guides the dissent sets out, post, at 424-425, nn. 2 and 3 — court rules and agency regulations— address only what the applicant must plead, not the question of time presented here.
See, e. g., Fed. Equity Rule 19 (1912) (“The court may at any time, in furtherance of justice, upon such terms as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading. The court, at every stage of the proceeding, must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”); Ill. Rev. Stat., ch. 110, §§ 170(1M2) (Smith-Hurd 1935) (“At any time before final judgment in a civil action, amendments may be allowed ... in any process, pleading or proceedings .... The cause of action, cross demand or defense set up in any amended pleading shall not be barred by, lapse of time ... if the time prescribed or limited had not expired when the original pleading was filed, and if... the amended pleading grew out of the same transaction or occurrence set up in the original pleading----”); 2 Wash. Rev. Stat. §308-3(4) (Remington 1932) (“A cause of action which would not have been barred by the statute of limitations if stated in the original complaint or counterclaim shall not be so barred if introduced by amendment at any later stage of the action, if the adverse party was fairly apprised of its nature by the original pleading .. ..”).
Scarborough also urges that, regardless of the availability of “relation back,” §2412(d)(l)(B)’s 30-day deadline does not apply to the no-substantial-justification-allegation requirement.. Brief for Petitioner 36-39. In support, Scarborough points out that Congress easily could have placed the allegation requirement in the first sentence of § 2412(d)(1)(B), together with the 30-day deadline and the other application-content specifications. Congress’ decision, instead, to set forth the allegation requirement in a separate, second sentence, which contains no time limitation, Scarborough asserts, is significant. Id., at 39. Moreover, Scarborough contends, the fact that §2412(d)(l)(B)’s second sentence is structured differently from the section’s first sentence (requiring the “party” to “allege,” rather than directing “the application” to “sho[w]”) further indicates that Congress viewed the “not substantially justified” allegation as separate from the fee application’s requirements more closely linked to the filing deadline. Id., at 38. We do not think that this question, as the Government suggests, was answered in Commissioner, INS v. Jean, 496 U. S. 154 (1990). See Brief for Respondent 15,24; Tr. of Oral Arg. 28,45. In Jean, we held that a party who prevails in fee litigation under EAJA may recover fees for legal services rendered during the fee litigation even if some of the Government’s positions regarding the proper fee were “substantially justified,” i. e., the district court need not make a second finding of no substantial justification before awarding fees for the fee contest itself. 496 U. S., at 160-162. The sentence in Jean on which the Government relies, stating that “[a] fee application must contain an allegation 'that the position of the United States was not substantially justified,’ ” id., at 160, like Jean’s holding, did not concern the timing question we here confront. In any event, because our decision rests on the applicability of the relation-back doctrine, we do not further explore the debatable question whether § 2412(d)(l)(B)’s 30-day deadline even applies to the “not substantially justified” allegation requirement.
The question whether a fee application may be amended after the 30-day filing period to cure an initial failure to make the “showfings]” set forth in the first sentence of § 2412(d)(1)(B) is not before us. We offer no view on the applicability of “relation back” in that situation.
Although we held that equitable tolling could be applied in Title VII claims against the Government, we further determined that the doctrine’s requirements were not met on the specific facts of Irwin. The Irwin petitioner’s excuse for the late complaint — his lawyer’s absence from the office when the EEOC notice that triggered the complaint-filing deadline was received — ranked “at best [as] a garden variety claim of excusable neglect.” 498 U. S., at 96. In this case, we note, the Government extensively argues against recourse to Irwin’s “rebuttable presumption” that equitable tolling is available in litigation Congress has authorized against the United States. . Id., at 95; see Brief for Respondent 32-41. Because our decision rests on other grounds, we express no opinion on the applicability of equitable tolling in the circumstances here presented.
Indeed, in enacting EAJA, Congress expressed its belief that “at a minimum, the United States should be held to the same standards in litigating as private parties.” H. R. Rep. No. 96-1418, p. 9 (1980). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
113
] |
UNITED STATES v. R. F. BALL CONSTRUCTION CO., INC., et al.
No. 97.
Argued January 27, 1958.
Decided March 3, 1958.
Alexander F. Prescott argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice and George F. Lynch.
Josh H. Groce argued the cause for respondents. With him on the brief was Jack Hebdon for the United Pacific Insurance Co., respondent. Mr. Groce also filed a brief for the R. F. Ball Construction Co., Inc., respondent.
Per Curiam.
The judgment is reversed. The instrument involved being inchoate and unperfected, the provisions of § 3672 (a), Revenue Act of 1939, 53 Stat. 449, as amended, 53 Stat. 882, 56 Stat. 957, do not apply. See United States v. Security Trust & Savings Bank, 340 U. S. 47; United States v. City of New Britain, 347 U. S. 81, 86-87. The claim of the interpleader for its costs is controlled by United States v. Liverpool & London & Globe Ins. Co., 348 U. S. 215. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
68
] |
ALSTATE CONSTRUCTION CO. v. DURKIN, SECRETARY OF LABOR.
No. 296.
Argued February 2-3, 1953.
Decided March 9, 1953.
Samuel A. Schreckengaust, Jr. argued the cause for petitioner. With him on the brief was Gilbert Nurick.
Bessie Margolin argued the cause for respondent. With her on the brief were Solicitor General Cummings and William S. Tyson.
Charles A. Horsky, W. Crosby Roper, Jr. and Amy Ruth Mahin filed a brief for the National Sand & Gravel Association, as amicus curiae, urging reversal.
Mr. Justice Black
delivered the opinion of the Court.
Section 7 (a) of the Fair Labor Standards Act requires employers to pay each employee covered by the Act not less than one and one-half times his regular pay rate for every hour worked in excess of a forty-hour week; § 11 (c) requires employers to keep appropriate employment records. Employees covered are defined as those “engaged in commerce or in the production of goods for commerce.” We have held that employees repairing interstate roads or railroads are “engaged in commerce” within the meaning of that clause of § 7 (a). The question presented in this case is whether employees who work off such roads in the production of materials to repair them are engaged “in the production of goods for commerce” within the meaning of § 7 (a).
The Wage and Hour Administrator sued in District Court to enjoin the petitioner Alstate Construction Company from violating the overtime and record-keeping provisions of the Act. The District Court found: Al-state is a Pennsylvania road contractor that reconstructs and repairs roads, railroads, parkways and like facilities in that state. The company also manufactures at three Pennsylvania plants a bituminous concrete road surfacing mixture called amesite made from materials either bought or quarried in Pennsylvania. Most of it is applied to Pennsylvania roads either by Alstate’s own employees or by Alstate’s customers. Eighty-five and one-half percent of Alstate’s work here involved was done on interstate roads, railroads, or for Pennsylvania companies producing goods for interstate commerce, and 14%% was done on projects that did not relate to interstate commerce. Alstate made no attempt to segregate payments to its employees on the basis of whether their work involved interstate or intrastate activities.
The District Court held that all of Alstate’s employees were covered by the Afet and granted the injunction prayed. 95 F. Supp. 585. The Court of Appeals for the Third Circuit affirmed, holding that those employees of Alstate who worked on roads were “in commerce,” and that its “off-the-road” plant employees were producing road materials “for commerce.” 195 F. 2d 577. On similar facts, the Court of Appeals for the Eighth Circuit applied the Act to “off-the-road” employees. Tobin v. Johnson, 198 F. 2d 130. An opposite result was reached by the Tenth Circuit in E. C. Schroeder Co. v. Clifton, 153 F. 2d 385, and the Supreme Court of Pennsylvania in Thomas v. Hempt Bros., 371 Pa. 383, 89 A. 2d 776. To settle this question we granted certiorari in this and the Hempt Bros. case. 344 U. S. 895.
Amesite is produced in Pennsylvania for use on Pennsylvania roads. None of it is manufactured with a purpose to ship it across state lines. For this reason, so Alstate contends, amesite is not produced “for commerce.” Obviously, acceptance of this contention would require us to read “production of goods for commerce” as though written “production of goods for transportation in commerce” — that is, across state lines. Such limiting language did appear in the bill as it passed the Senate, but Congress left it out of the Act as passed. Of course production of “goods” for the purpose of shipping them across state lines is production “for commerce.” But we could not hold — consistently with Overstreet v. North Shore Corp., 318 U. S. 125, and Pedersen v. Fitzgerald Construction Co., 318 U. S. 740 — that the only way to produce goods “for commerce” is to produce them for transportation across state lines.
In the Overstreet and Pedersen cases, supra, we had to decide whether employees engaged in repairing interstate roads and railroads were “in commerce.” In Over-street we pointed out that interstate roads and railroads are indispensable “instrumentalities” in the carriage of persons and goods that move in interstate commerce. We then held that because roads and railroads are in law and in fact integrated and indispensable parts of our system of commerce among the states, employees repairing them are “in commerce.” Consequently he who serves interstate highways and railroads serves commerce. By the same token he who produces goods for these indispensable and inseparable parts of commerce produces goods for commerce. We therefore conclude that Al-state’s off-the-road employees were covered by the Act because engaged in “production of goods for commerce.”
It is contended that we should not construe the Act as covering the “off-the-road” employees because it was given a contrary interpretation by its administrators from 1938 until 1945. During these first years after the Act’s passage the administrator did take such a position. But more experience with the Act together with judicial construction of its scope convinced its administrators that the first interpretation was unjustifiably narrow. He therefore publicly announced that off-the-road employees like these were protected by the Act. The new interpretation was reported to congressional committees on a number of occasions. Interested employers severely criticized the administrator’s changes. Specific amendments were urged to neutralize his interpretation. Such neutralizing amendments were suggested to congressional committees by the National Sand and Gravel Association which has filed a brief before us as amicus curiae. Instead of adopting any of the suggestions to undermine the administrator’s interpretation, Congress in a 1949 amendment to the Fair Labor Standards Act provided that all past orders, regulations and interpretations of the administrator should remain in effect “except to the extent that any such order, regulation, interpretation, . . . may be inconsistent with the provisions of this Act, or may from time to time be amended, modified, or rescinded by the Administrator . ...”
We decline to repudiate an administrative interpretation of the Act which Congress refused to repudiate after being repeatedly urged to do so.
There is an objection to the scope of the injunction, but we are satisfied with the Court of Appeals’ treatment of this contention.
Affirmed.
52 Stat. 1060, as amended, 63 Stat. 910, 912-913, 29 U. S. C. §§ 207 (a), 211 (c).
Overstreet v. North Shore Corp., 318 U. S. 125; Pedersen v. Fitzgerald Construction Co., 318 U. S. 740, reversing 288 N. Y. 687, 43 N. E. 2d 83, on the authority of Overstreet v. North Shore Corp., supra.
81 Cong. Rec. 7957.
Fleming v. Atlantic Co., 40 F. Supp. 654, affirmed sub nom. Atlantic Co. v. Walling, 131 F. 2d 518; Lewis v. Florida Power & Light Co., 154 F. 2d 751; Southern United Ice Co. v. Hendrix, 153 F. 2d 689; Chapman v. Home Ice Co., 136 F. 2d 353.
See for illustration Hearings before Subcommittee No. 4 of House Committee on Education and Labor on H. R. 40, 80th Cong., 1st Sess. 1374-1375.
63 Stat. 910, 920. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
70
] |
CEBALLOS (y ARBOLEDA) v. SHAUGHNESSY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE.
No. 71.
Argued January 16-17, 1957.
Decided March 11, 1957.
Sidney Kansas argued the cause and filed a brief for petitioner.
Oscar H. Davis argued the cause for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop.
Mr. Justice Brennan
delivered the opinion of the Court.
This declaratory judgment action was brought by petitioner, in March 1955 in the District Court for the Southern District of New York, to obtain a judgment against the District Director of Immigration declaring that petitioner was eligible for suspension of deportation and restraining the Director from taking him into custody for deportation. The District Court dismissed the complaint, without reaching the merits, upon the procedural ground “that the Attorney General [of the United States] and/or the Commissioner [of Immigration] are indispensable parties to the instant action.” The Court of Appeals for the Second Circuit affirmed, not only for the reason given by the District Court, but also upon the ground that, because the petitioner is “an alien who 'has made application’ to be relieved from military service,” he is debarred from citizenship as a matter of law and “hence is not eligible for an order suspending deportation.” This Court granted certiorari.
Deportation proceedings had been instituted because petitioner had entered the United States on April 2, 1951, on a temporary visa and remained beyond the period for which he was admitted. Petitioner was found deport-able but was given permission to depart voluntarily, in lieu of deportation. Petitioner’s timely application for suspension of deportation under § 19 (e) of the Immigration Act of 1917, as amended, was denied by the Immigration and Naturalization Service because it found that petitioner did not satisfy a prerequisite for the application of that section — eligibility for naturalization. His ineligibility was based on a finding that in August 1943 petitioner, as a citizen and subject of Colombia, then a World War II neutral, applied under § 3 (a) of the Selective Training and Service Act of 1940, as amended, for relief from service with the United States armed forces. Section 3 (a) provided that “any person who makes such application shall thereafter be debarred from becoming a citizen of the United States.”
The petitioner was admitted to the United States for permanent residence in February 1942, during World War II. On June 16, 1943, he executed Selective Service System Form DSS 304, “Alien’s Personal History and Statement,” which gave the alien a choice of inserting “do” or “do not” in the statement: “I .object to service in the land or naval forces of the United States.” The petitioner inserted the word' “do.” The form contained this notice:
“. . . If you are a citizen or subject of a neutral country, and you do not wish to serve in the land or naval forces of the United States, you may apply to your local board for Application by Alien for Relief from Military Service (Form 301) which, when executed by you and filed with the local board, will relieve you from the obligation to serve in the land or naval forces of the United States, but will also debar you from thereafter becoming a citizen of the United States.”
On August 26, 1943, the petitioner executed Form DSS 301, “Application by Alien for Relief from Military Service.” The form contained the following paragraph:
“I do hereby make application to be relieved from liability for training and service in the land or naval forces of the United States, under the Selective Training and Service Act of 1940, as amended, in accordance with the act of Congress, approved December 20, 1941. I understand that the making of this application to be relieved from such liability will debar rae from becoming a citizen of the United States. ...”
Selective Service Regulations required the local board to follow prescribed formalities to place a neutral applying for relief from service in Class IV-C and to notify the alien of the classification. The board did not comply with these regulations in petitioner’s case. Its first formal action was taken after the Selective Service System notified the board, on December 20, 1943, that Colombia, on November 26, 1943, had changed its neutral status to that of a cobelligerent with the United States. On January 27, 1944, five months after the petitioner filed the Form DSS 301, the board notified the petitioner that he was classified I-A, available for military service, and ordered him to report for preinduction physical examination. He reported as ordered, but failed to pass the physical examination and, on March 2, 1944, was reclassified IV-F, physically defective.
The petitioner argues that neither the Attorney General nor the Commissioner of Immigration is a necessary party to this action. The respondent offers no argument in opposition. We hold that neither the Attorney General nor the Commissioner is a necessary party. This Court in Shaughnessy v. Pedreiro, 349 U. S. 48, held that determination of the question of indispensability of parties is dependent, not on the nature of the decision attacked, but on the ability and authority of the defendant before the court to effectuate the relief which the alien seeks. In this case the petitioner asks to have the order of deportation suspended and to restrain the District Director from deporting him. Because the District Director is the official who would execute the deportation, he is a sufficient party. It is not a basis for distinction of Pedreiro that suspension of deportation, rather than deportation itself, is involved in this action.
The petitioner’s argument on the merits challenges the holding of the Court of Appeals that the execution and filing of Form DSS 301 had the effect as a matter of law of debarring him from becoming a citizen of the United States. He contends that debarment could result only if the local board affirmatively granted the relief applied for by classifying him IV-C on its records and giving him notice of its action. We hold that the petitioner’s voluntary act of executing and filing, and allowing to remain on file, the legally sufficient application Form DSS 301 effected his debarment from citizenship under §3 (a). The explicit terms of the section debar the neutral alien “who makes such application” for immunity from military service.
Legislative history shows this to be the effect contemplated by Congress. This same construction has been adopted in the few court decisions which refer to the section, and administrative construction has consistently given the section this meaning. The neutral alien in this country during the war was at liberty to refuse to bear arms to help us win the struggle, but the price he paid for his unwillingness was permanent debarment from United States citizenship.
The petitioner argues that in any event § 315 of the Immigration and Nationality Act of 1952, and not § 3 (a) of the Selective Training and Service Act of 1940, governs this case. Section 315 of the 1952 Act enacts a two-pronged requirement for the determination of permanent ineligibility for citizenship: the alien must be one “who applies or has applied for exemption,” and also one who “is or was relieved or discharged from such training or service on such ground.” That section has no application here. The 1952 law had not been enacted when the petitioner applied for relief from deportation in 1951 and by its terms is expressly made inapplicable to proceedings for suspension of deportation under § 19 of the Immigration Act of 1917 pending, as here, on the effective date of the 1952 law.
Affirmed.
The action was instituted pursuant to § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U. S. C. § 1009, and the general jurisdictional provision of the Immigration and Nationality Act of 1952, 66 Stat. 230, 8 U. S. C. § 1329.
130 F. Supp. 30, 31.
229 F. 2d 592, 593.
351 U. S. 981.
Section 19 (c) of the Immigration Act of 1917, as amended, provided in pertinent part:
“In the case of any alien . . . who is deportable under any law of the United -States and who has proved good moral character for the preceding five years, the Attorney General may (1) permit such alien to depart the United States tp any country of his choice at his own expense, in lieu of deportation; or (2) suspend deportation of such alien if he is not ineligible for naturalization ... if he finds (a) that such deportation would result in serious e'eonomic detriment to a citizen . . . who is the spouse ... or mihor child of such deportable alien . . . .” 39 Stat. 889, as amended, 54 Stat. 671, 62 Stat. 1206, 8 U. S. C. (1946 ed., Supp. V) § 155.
Section 3 (a) of the Selective Training and Service Act of 1940, as amended, provided in pertinent part:
“Except as otherwise provided in this Act, every male citizen of the United States, and every other male person residing in the United States, who is between the ages of eighteen and forty-five , . . shall be liable for training and service in the land or naval forces of the United States: Provided, That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States . . . .” 54 Stat. 885, as amended, 55 Stat. 845, 56 Stat. 1019, 50 U. S. C. App. (1940 ed., Supp. II) § 303 (a).
This form was authorized by Selective Service System Order No. 75, 7 Fed. Reg. 3424.
This form was authorized by Selective Service System Order No. 54, 7 Fed. Reg. 1104.
32 CFR, 1943 Cum. Supp., § 622.43 (b); 32 CFR, 1943 Cum. Supp., § 623.1; 32 CFR, 1943 Cum. Supp., § 623.61.
The Court of Appeals made that distinction and held that not Pedreiro but its decision in De Pinho Vaz v. Shaughnessy, 208 F. 2d 70, controlled. 229 F. 2d, at 593.
The petitioner’s claim that he executed the application in the belief that he was required to do so to obtain assignment to a Latin American contingent of the United States Army was rejected, after hearing, by the Immigration and Naturalization Service. In fact, the Board of Immigration Appeals found that petitioner “fully understood the legal consequences, of his action and that he was not duly influenced by other considerations.” Cf. Moser v. United States, 341 U. S. 41.
This appears in both the House and Senate Reports. The House Report states:
“. . . In the case of citizens or subjects of any neutral country, special provision is made to enable them, upon application, to be relieved from the liability for service, but the making of such appli cation will debar them, from becoming citizens of the United States. . . .” (Emphasis added.) H. R. Rep. No. 1508, 77th Cong., 1st Sess. 4.
The Senate Report states:
“. . . Under the bill reported by the committee, aliens would be liable whether or not they had declared their intention to become citizens. However, aliens who are citizens or subjects of a neutral country would be relieved of liability upon making application in the manner prescribed by the President, but the making of such application will debar them from ever becoming citizens of the United States. . . .” (Emphasis added.) S. Rep. No. 915, 77th Cong., 1st Sess. 2.
Mannerfrid v. United States, 200 F. 2d 730; Navarro v. Landon, 108 F. Supp. 922; see Machado v. McGrath, 90 U. S. App. D. C. 70, 74, 193 F. 2d 706, 710. See McGrath v. Kristensen, 340 U. S. 162, 172: “By the terms of the statute, that bar only comes into existence when an alien resident liable for service asks to be relieved.” (Emphasis added.) See Moser v. United States, 341 U. S. 41, 45: Section 3 (a) "imposed the condition that neutral aliens residing here who claimed such immunity would be debarred from citizenship.” (Emphasis added.)
See quotations from Forms DSS 304 and DSS 301 in text. And see, Selective Service Regulations, § 622.43, effective March 16, 1942, 7 Fed. Reg. 2087. Section 622.43, as revised, effective October 1, 1943, 8 Fed. Reg. 13672, read: “. . . (a) In Class IV-C shall be placed any registrant: ... (2) Who is an alien and who is a citizen or subject of a neutral country . . . and who . . . files with his local board an Application by Alien for Relief from Military Service (Form 301)
The Immigration and Nationality Act of 1952, §315, provides:
“(a) Notwithstanding the provisions of section 405 (b), any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States.
“(b) The records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien.” 66 Stat. 242, 8 U. S. C. § 1426.
The 1952 law became effective in December 1952.
The Immigration and Nationality Act of 1952, §405 (a), provides:
“Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed ... to affect . . . proceedings . . . brought, ... or existing, at the time this Act shall take effect; but as to all such . . . proceedings, . . . the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect. . . . An application for suspension of deportation under section 19 of the Immigration Act of 1917, as amended . . . which is pending on the date of enactment of this Act, shall be regarded as a proceeding within the meaning of this subsection.” 66 Stat. 280, 8 U. S. C. § 1101, note. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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67
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COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE et al. v. FEDERAL ELECTION COMMISSION
No. 95-489.
Argued April 15, 1996
Decided June 26, 1996
Breyer, J., announced the judgment of the Court and delivered an opinion, in which O’Connor and Souter, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment and dissenting in part, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 626. Thomas, J., filed an opinion concurring in the judgment and dissenting in part, in which Rehnquist, C. J., and Scalia, J., joined as to Parts I and III, post, p. 631. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 648.
Jan Witold Baran argued the cause for petitioners. With him on the briefs were Thomas W. Kirby, Carol A. Laham, and Michael E.. Toner.
Solicitor General Days argued the cause for respondent. With him on the brief were Deputy Solicitor General Bender, Malcolm L. Stewart, Lawrence M. Noble, Rickard B. Bader, and Rita A. Reimer.
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by David H. Remes, David H. Miller, Arthur B. Spitzer, Steven R. Shapiro, Joel M. Gora, and Arthur N. Eisenberg; for the Democratic National Committee et al. by Joseph E. Sandler and Robert F. Bauer; for the National Right to Life Committee, Inc., by James Bopp, Jr., and Richard E. Coleson; and for the Washington Legal Foundation et al. by Benjamin L. Ginsberg, Daniel J. Popeo, and Paul D. Kamenar.
Briefs of amici curiae urging affirmance were filed for the Brennan Center for Justice by Burt Neuborne; and for Common Cause et al. by Roger M. Witten, Donald J. Simon, and Alan Morrison.
Briefs of amici curiae were filed for the State of Kentucky et al. by A. B. Chandler III, Attorney General of Kentucky, Pamela J. Murphy, Deputy Attorney General, Morgan G. Ransdell, Assistant Attorney General, Sheryl G. Snyder, Richard Blumenthal, Attorney General of Connecticut, Hubert H. Humphrey III, Attorney General of Minnesota, Tom Udall, Attorney General of New Mexico, W. A. Drew Edmondson, Attorney General of Oklahoma, and Darrell V. McGraw, Jr., Attorney General of West Virginia; for the Committee for Party Renewal et al. by E. Mark Braden and Stephen E. Gottlieb; and for the Republican National Committee by George J. Terwilliger III, John P. Connors, E. Duncan Getchell, Jr., Robert L. Hodges, and Darryl SI Lew.
Justice Breyer
announced the judgment of the Court and delivered an opinion, in which Justice O’Connor and Justice Souter join.
In April 1986, before the Colorado Republican Party had selected its senatorial candidate for the fall’s election, that party’s Federal Campaign Committee bought radio advertisements attacking Timothy Wirth, the Democratic Party’s likely candidate. The Federal Election Commission (FEC) charged that this “expenditure” exceeded the dollar limits that a provision of the Federal Election Campaign Act of 1971 (FECA or Act) imposes upon political party “expenditure[s] in connection with” a “general election campaign” for congressional office. 90 Stat. 486, as amended, 2 U. S. C. § 441a(d)(3). This case focuses upon the constitutionality of those limits as applied to this case. We conclude that the First Amendment prohibits the application of this provision to the kind of expenditure at issue here — an expenditure that the political party has made independently, without coordination with any candidate.
I
To understand the issues and our holding, one must begin with FECA as it emerged from Congress in 1974. That Act sought both to remedy the appearance of a “corrupt” political process (one in which large contributions seem to buy legislative votes) and to level the electoral playing field by reducing campaign costs. See Buckley v. Valeo, 424 U. S. 1, 25-27 (1976) (per curiam). It consequently imposed limits upon the amounts that individuals, corporations, “political committees” (such as political action committees, or PAC’s), and political parties could contribute to candidates for federal office, and it also imposed limits upon the amounts that candidates, corporations, labor unions, political committees, and political parties could spend, even on their own, to help a candidate win election. See 18 U. S. C. §§608, 610 (1970 ed., Supp. IY).
This Court subsequently examined several of the Act’s provisions in light of the First Amendment’s free speech and association protections. See Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986); Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480 (1985) (NCPAC); California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182 (1981); Buckley, supra. In these cases, the Court essentially weighed the First Amendment interest in permitting candidates (and their supporters) to spend money to advance their political views against a “compelling” governmental interest in assuring the electoral system’s legitimacy, protecting it from the appearance and reality of corruption. See Massachusetts Citizens for Life, supra, at 256-263; NCPAC, supra, at 493-501; California Medical Assn., supra, at 193-199; Buckley, 424 U. S., at 14-23. After doing so, the Court found that the First Amendment prohibited some of FECA’s provisions, but permitted others.
Most of the provisions this Court found unconstitutional imposed expenditure limits. Those provisions limited candidates’ rights to spend their own money, id., at 51-54, limited a candidate’s campaign expenditures, id., at 54-58, limited the right of individuals to make “independent” expenditures (not coordinated with the candidate or candidate’s campaign), id., at 39-51, and similarly limited the right of political committees to make “independent” expenditures, NCPAC, supra, at 497. The provisions that the Court found constitutional mostly imposed contribution limits — limits that apply both when an individual or political committee contributes money directly to a candidate and also when they indirectly contribute by making expenditures that they coordinate with the candidate, § 441a(a)(7)(B)(i). See Buckley, supra, at 23-36. See also 424 U. S., at 46-48; California Medical Assn., supra, at 193-199 (limits on contributions to political committees). Consequently, for present purposes, the Act now prohibits individuals and political committees from making direct, or indirect, contributions that exceed the following limits:
(a) For any “person”: $1,000 to a candidate “with respect to any election”; $5,000 to any political committee in any year; $20,000 to the national committees of a political party in any year; but all within an overall limit (for any individual in any year) of $25,000. 2 U. S. C. §§441a(a)(1), (3).
(b) For any “multicandidate political committee”: $5,000 to a candidate “with respect to any election”; $5,000 to any political committee in any year; and $15,000 to the national committees of a political party in any year. § 441a(a)(2).
FECA also has a special provision, directly at issue in this case, that governs contributions and expenditures by political parties. §441a(d). This special provision creates, in part, an exception to the above contribution limits. That is, without special treatment, political parties ordinarily would be subject to the general limitation on contributions by a “multicandidate political committee” just described. See §441a(a)(4). That provision, as we said in subsection (b) above, limits annual contributions by a “multicandi-date political committee” to no more than $5,000 to any candidate. And as also mentioned above, this contribution limit governs not only direct contributions but also indirect contributions that take the form of coordinated expenditures, defined as “expenditures made ... in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents.” § 441a(a)(7)(B)(i). Thus, ordinarily, a party’s coordinated expenditures would be subject to the $5,000 limitation.
However, FECA’s special provision, which we shall call the “Party Expenditure Provision,” creates a general exception from this contribution limitation, and from any other limitation on expenditures. It says:
“Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, . . . political party [committees] . . . may make expenditures in connection with the general election campaign of candidates for Federal office . . . .” §441a(d)(1) (emphasis added).
After exempting political parties from the general contribution and expenditure limitations of the statute, the Party Expenditure Provision then imposes a substitute limitation upon party “expenditures” in a senatorial campaign equal to the greater of $20,000 or “2 cents multiplied by the voting age population of the State,” § 441a(d)(3)(A)(i), adjusted for inflation since 1974, § 441a(c). The provision permitted a political party in Colorado in 1986 to spend about $103,000 in connection with the general election campaign of a candidate for the United States Senate. See FEC Record, vol. 12, no. 4, p. 1 (Apr. 1986). (A different provision, not at issue in this case, § 441a(d)(2), limits party expenditures in connection with Presidential campaigns. Since this case involves only the provision concerning congressional races, we do not address issues that might grow out of the public funding of Presidential campaigns.)
In January 1986, Timothy Wirth, then a Democratic Congressman, announced that he would rim for an open Senate seat in November. In April, before either the Democratic primary or the Republican convention, the Colorado Republican Federal Campaign Committee (Colorado Party or Party), a petitioner here, bought radio advertisements attacking Congressman Wirth. The State Democratic Party complained to the FEC. It pointed out that the Colorado Party had previously assigned its $103,000 general election allotment to the National Republican Senatorial Committee, leaving it without any permissible spending balance. See Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U. S. 27 (1981) (state party may appoint national senatorial campaign committee as agent to spend its Party Expenditure Provision allotment). It argued that the purchase of radio time was an “expenditure in connection with the general election campaign of a candidate for Federal office,” §441a(d)(3), which, consequently, exceeded the Party Expenditure Provision limits.
The FEC agreed with the Democratic Party. It brought a complaint against the Colorado Party, charging a violation. The Colorado Party defended in part by claiming that the Party Expenditure Provision’s expenditure limitations violated the First Amendment — a charge that it repeated in a counterclaim that said the Colorado Party intended to make other “expenditures directly in connection with” senatorial elections, App. 68, ¶48, and attacked the constitutionality of the entire Party Expenditure Provision. The Federal District Court interpreted the provision’s words “‘in connection with’ the general election campaign of a candidate” narrowly, as meaning only expenditures for advertís-ing using “ ‘express words of advocacy of election or defeat.’ ” 839 F. Supp. 1448, 1455 (Colo. 1993) (quoting Buckley, 424 U. S., at 46, n. 52). See also Massachusetts Citizens for Life, 479 U. S., at 249. As so interpreted, the court held, the provision did not cover the expenditures here. The court entered summary judgment for the Colorado Party and dismissed its counterclaim as moot.
Both sides appealed. The Government, for the FEC, argued for a somewhat broader interpretation of the statute— applying the limits to advertisements containing an “electioneering message” about a “clearly identified candidate,” FEC Advisory Op. 1985-14, 2 CCH Fed. Election Camp. Fin. Guide ¶ 5819, p. 11, 185 (May 30, 1985) — which, it said, both covered the expenditure and satisfied the Constitution. The Court of Appeals agreed. It found the Party Expenditure Provision applicable, held it constitutional, and ordered judgment in the FEC’s favor. 59 F. 3d 1015, 1023-1024 (CA10 1995).
We granted certiorari primarily to consider the Colorado Party’s argument that the Party Expenditure Provision violates the First Amendment “either facially or as applied.” Pet. for Cert. i. For reasons we shall discuss in Part IV, infra, we consider only the latter question — whether the Party Expenditure Provision as applied here violates the First Amendment. We conclude that it does.
II
The summary judgment record indicates that the expenditure in question is what this Court in Buckley called an “independent” expenditure, not a “coordinated” expenditure that other provisions of FECA treat as a kind of campaign “contribution.” See Buckley, supra, at 36-37, 46-47, 78; NCPAC, 470 U. S., at 498. The record describes how the expenditure was made. In a deposition, the Colorado Party’s Chairman, Howard Callaway, pointed out that, at the time of the expenditure, the Party had not yet selected a senatorial nominee from among the three individuals vying for the nomination. App. 195-196. He added that he arranged for the development of the script at his own initiative, id., at 200, that he, and no one else, approved it, id., at 199, that the only other politically relevant individuals who might have read it were the Party’s executive director and political director, ibid., and that all relevant discussions took place at meetings attended only by Party staff, id., at 204.
Notwithstanding the above testimony, the Government argued in District Court — and reiterates in passing in its brief to this Court, Brief for Respondent 27, n. 20 — that the deposition showed that the Party had coordinated the advertisement with its candidates. It pointed to Callaway’s statement that it was the practice of the Party to “coordinate] with the candidate” “campaign strategy,” App. 195, and for Callaway to be “as involved as [he] could be” with the individuals seeking the Republican nomination, ibid., by making available to them “all of the assets of the party,” id., at 195-196. These latter statements, however, are general descriptions of Party practice. They do not refer to the advertising campaign at issue here or to its preparation. Nor do they conflict with, or cast significant doubt upon, the uncontro-verted direct evidence that this advertising campaign was developed by the Colorado Party independently and not pursuant to any general or particular understanding with a candidate. We can find no “genuine” issue of fact in this respect. Fed. Rule Civ. Proc. 56(e); Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 586-587 (1986). And we therefore treat the expenditure, for constitutional purposes, as an “independent” expenditure, not an indirect campaign contribution.
So treated, the expenditure falls within the scope of the Court’s precedents that extend First Amendment protection to independent expenditures. Beginning with Buckley, the Court’s cases have found a “fundamental constitutional difference between money spent to advertise one’s views independently of the candidate’s campaign and money contributed to the candidate to be spent on his campaign.” NCPAC, supra, at 497. This difference has been grounded in the observation that restrictions on contributions impose “only a marginal restriction upon the contributor’s ability to engage in free communication,” Buckley, supra, at 20-21, because the symbolic communicative value of a contribution bears little relation to its size, 424 U. S., at 21, and because such limits leave “persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources,” id,., at 28. At the same time, reasonable contribution limits directly and materially advance the Government’s interest in preventing exchanges of large financial contributions for political favors. Id., at 26-27.
In contrast, the Court has said that restrictions on independent expenditures significantly impair the ability of individuals and groups to engage in direct political advocacy and “represent substantial. . . restraints on the quantity and diversity of political speech.” Id., at 19. And at the same time, the Court has concluded that limitations on independent expenditures are less directly related to preventing corruption, since “[t]he absence of prearrangement and coordination of an expenditure with the candidate . . . not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Id., at 47.
Given these established principles, we do not see how a provision that limits a political party’s independent expenditures can escape their controlling effect. A political party’s independent expression not only reflects its members’ views about the philosophical and governmental matters that bind them together, it also seeks to convince others to join those members in a practical democratic task, the task of creating a government that voters can instruct and hold responsible for subsequent success or failure. The independent expression of a political party’s views is “core” First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees. See, e. g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 (1989).
We are not aware of any special dangers of corruption associated with political parties that tip the constitutional balance in a different direction. When this Court considered, and held unconstitutional, limits that FECA had set on certain independent expenditures by PAC’s, it reiterated Buckley’s observation that “the absence of prearrangement and coordination” does not eliminate, but it does help to “alleviate,” any “danger” that a candidate will understand the expenditure as an effort to obtain a “quid pro quo.” See NCPAC, 470 U. S., at 498. The same is true of independent party expenditures.
We recognize that FECA permits individuals to contribute more money ($20,000) to a party than to a candidate ($1,000) or to other political committees ($5,000). 2 U. S. C. § 441a(a). We also recognize that FECA permits unregulated “soft money” contributions to a party for certain activities, such as electing candidates for state office, see § 431(8)(A)(i), or for voter registration and “get out the vote” drives, see § 431(8)(B)(xii). But the opportunity for corruption posed by these greater opportunities for contributions is, at best, attenuated. Unregulated “soft money” contributions may not be used to influence a federal campaign, except when used in the limited, party-building activities specifically designated in the statute. See §431(8)(B). Any contribution to a party that is earmarked for a particular campaign is considered a contribution to the candidate and is subject to the contribution limitations. §441a(a)(8). A party may not simply channel unlimited amounts of even undesignated contributions to a candidate, since such direct transfers are also considered contributions and are subject to the contribution limits on a “multicandidate political committee.” §441a(a)(2). The greatest danger of corruption, therefore, appears to be from the ability of donors to give sums up to $20,000 to a party which may be used for independent party expenditures for the benefit of a particular candidate. We could understand how Congress, were it to conclude that the potential for evasion of the individual contribution limits was a serious matter, might decide to change the statute’s limitations on contributions to political parties. Cf. California Medical Assn., 453 U. S., at 197-199 (plurality opinion) (danger of evasion of limits on contribution to candidates justified prophylactic limitation on contributions to PAC’s). But we do not believe that the risk of corruption present here could justify the “markedly greater burden on basic freedoms caused by” the statute’s limitations on expenditures. Buckley, 424 U. S., at 44. See also id., at 46-47, 51; NCPAC, supra, at 498. Contributors seeking to avoid the effect of the $1,000 contribution limit indirectly by donations to the national party could spend that same amount of money (or more) themselves more directly by making their own independent expenditures promoting the candidate. See Buckley, supra, at 44-48 (risk of corruption by individuals’ independent expenditures is insufficient to justify limits on such spending). If anything, an independent expenditure made possible by a $20,000 donation, but controlled and directed by a party rather than the donor, would seem less likely to corrupt than the same (or a much larger) independent expenditure made directly by that donor. In any case, the constitutionally significant fact, present equally in both instances, is the lack of coordination between the candidate and the source of the expenditure. See Buckley, supra, at 45-46; NCPAC, supra, at 498. This fact prevents us from assuming, absent convincing evidence to the contrary, that a limitation on political parties’ independent expenditures is necessary to combat a substantial danger of corruption of the electoral system.
The Government does not point to record evidence or legislative findings suggesting any special corruption problem in respect to independent party expenditures. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 664 (1994) (“When the Government defends a regulation on speech as a means to . . . prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured” (citation and internal quotation marks omitted)); NCPAC, supra, at 498. To the contrary, this Court’s opinions suggest that Congress wrote the Party Expenditure Provision not so much because of a special concern about the potentially “corrupting” effect of party expenditures, but rather for the constitutionally insufficient purpose of reducing what it saw as wasteful and excessive campaign spending. See Buckley, supra, at 57. In fact, rather than indicating a special fear of the corruptive influence of political parties, the legislative history demonstrates Congress’ general desire to enhance what was seen as an important and legitimate role for political parties in American elections. See Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U. S., at 41 (Party Expenditure Provision was intended to “assur[e] that political parties will continue to have an important role in federal elections”); S. Rep. No. 93-689, p. 7 (1974) (“[A] vigorous party system is vital to American politics .... [P]ooling resources from many small contributors is a legitimate function and an integral part of party politics”); id., at 7-8, 15.
We therefore believe that this Court’s prior case law controls the outcome here. We do not see how a Constitution that grants to individuals, candidates, and ordinary political committees the right to make unlimited independent expenditures could deny the same right to political parties. Having concluded this, we need not consider the Party’s further claim that the statute’s “in connection with” language, and the FEC’s interpretation of that language, are unconstitutionally vague. Cf. Buckley, supra, at 40-44.
III
The Government does not deny the force of the precedent we have discussed. Rather, it argued below, and the lower courts accepted, that the expenditure in this case should be treated under those precedents, not as an “independent expenditure,” but rather as a “coordinated expenditure,” which those cases have treated as “contributions,” and which those cases have held Congress may constitutionally regulate. See, e. g., Buckley, supra, at 23-38.
While the District Court found that the expenditure in this case was “coordinated,” 839 F. Supp., at 1453, it did not do so based on any factual finding that the Party had consulted with any candidate in the making or planning of the advertising campaign in question. Instead, the District Court accepted the Government’s argument that all party expenditures should be treated as if they had been coordinated as a matter of law, “[b]ased on Supreme Court precedent and the Commission’s interpretation of the statute,” ibid. The Court of Appeals agreed with this legal conclusion. 59 F. 3d, at 1024. Thus, the lower courts’ “finding” of coordination does not conflict with our conclusion, supra, at 613-614, that the summary judgment record shows no actual coordination as a matter of fact. The question, instead, is whether the Court of Appeals erred as a legal matter in accepting the Government’s conclusive presumption that all party expenditures are “coordinated.” We believe it did.
In support of its argument, the Government points to a set of legal materials, based on FEC interpretations, that seem to say or imply that all party expenditures are “coordinated.” These include: (1) an FEC regulation that forbids political parties to make any “independent expenditures . . . in connection with” a “general election campaign,” 11 CFR § 110.7(b)(4) (1995); (2) FEC Advisory Opinions that use the word “coordinated” to describe the Party Expenditure Provision’s limitations, see, e. g., FEC Advisory Op. 1984-15, 1 CCH Fed. Election Camp. Fin. Guide ¶ 5766, p. 11,069 (May 31, 1984) (AO 1984-15); FEC Advisory Op. 1988-22, 2 CCH Fed. Election Camp. Fin. Guide ¶5932, p. 11,471, n. 4 (July 5, 1988) (AO 1988-22); (3) one FEC Advisory Opinion that says explicitly in a footnote that “coordination with candidates is presumed and ‘independence’ precluded,” ibid.; and (4) a statement by this Court that “[p]arty committees are considered incapable of making ‘independent’ expenditures,” Democratic Senatorial Campaign Comm., supra, at 28-29, n. 1.
The Government argues, on the basis of these materials, that the FEC has made an “empirical judgment that party officials will as a matter of course consult with the party’s candidates before funding communications intended to influence the outcome of a federal election.” Brief for Respondent 27. The FEC materials, however, do not make this empirical judgment. For the most part those materials use the word “coordinated” as a description that does not necessarily deny the possibility that a party could also make independent expenditures. See, e. g., AO 1984-15, ¶ 5766, at 11,069. We concede that one Advisory Opinion says, in a footnote, that “coordination with candidates is presumed.” AO 1988-22, ¶ 5932, at 11,471, n. 4. But this statement, like the others, appears without any internal or external evidence that the FEC means it to embody an empirical judgment (say, that parties, in fact, hardly ever spend money independently) or to represent the outcome of an empirical investigation. Indeed, the statute does not require any such investigation, for it applies both to coordinated and to independent expenditures alike. See §441a(d)(3) (a “political party . . . may not make any expenditure” in excess of the limits (emphasis added)). In any event, language in other FEC Advisory Opinions suggests the opposite, namely, that sometimes, in fact, parties do make independent expendí-tures. See, e. g., AO 1984-15, ¶ 5766, at 11,069 (“Although consultation or coordination with the candidate is permissible, it is not required”). In these circumstances, we cannot take the cited materials as an empirical, or experience-based, determination that, as a factual matter, all party expenditures are coordinated with a candidate. That being so, we need not hold, on the basis of these materials, that the expenditures here were “coordinated.”
The Government does not advance any other legal reason that would require us to accept the FEC’s characterization. The FEC has not claimed, for example, that, administratively speaking, it is more difficult to separate a political party’s “independent,” from its “coordinated,” expenditures than, say, those of a PAC. Cf. 11 CFR § 109.1 (1995) (distinguishing between independent and coordinated expenditures by other political groups). Nor can the FEC draw significant legal support from the footnote in Democratic Senatorial Campaign Comm., 454 U. S., at 28-29, n. 1, given that this statement was dicta that purported to describe the regulatory regime as the FEC had described it in a brief.
Nor does the fact that the Party Expenditure Provision fails to distinguish between coordinated and independent expenditures indicate a congressional judgment that such a distinction is impossible or untenable in the context of political party spending. Instead, the use of the unmodified term “expenditure” is explained by Congress’ desire to limit all party expenditures when it passed the 1974 amendments, just as it had limited all expenditures by individuals, corporations, and other political groups. See 18 U. S. C. §§ 608(e), 610 (1970 ed., Supp. IV); Buckley, 424 U. S., at 39.
Finally, we recognize that the FEC may have characterized the expenditures as “coordinated” in light of this Court’s constitutional decisions prohibiting regulation of most independent expenditures. But, if so, the characterization cannot help the Government prove its case. An agency’s simply calling an independent expenditure a “coordinated expendí-ture” cannot (for constitutional purposes) make it one. See, e. g., NAACP v. Button, 371 U. S. 415, 429 (1963) (the government “cannot foreclose the exercise of constitutional rights by mere labels”); Edwards v. South Carolina, 372 U. S. 229, 235-238 (1963) (State may not avoid First Amendment’s strictures by applying the label “breach of the peace” to peaceful demonstrations).
The Government also argues that the Colorado Party has conceded that the expenditures are “coordinated.” But there is no such concession in respect to the underlying facts. To the contrary, the Party’s “Questions Presented” in its petition for certiorari describes the expenditure as one “the party has not coordinated with its candidate.” See Pet. for Cert. i. In the lower courts the Party did accept the FEC’s terminology, but it did so in the context of legal arguments that did not focus upon the constitutional distinction that we now consider. See Reply Brief for Petitioners 9-10, n. 8 (denying that the FEC’s labels can control constitutional analysis). The Government has not referred us to any place where the Party conceded away or abandoned its legal claim that Congress may not limit the uncoordinated expenditure at issue here. And, in any event, we are not bound to decide a matter of constitutional law based on a concession by the particular party before the Court as to the proper legal characterization of the facts. Cf. United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 447 (1993); Massachusetts v. United States, 333 U. S. 611, 623-628 (1948); Young v. United States, 315 U. S. 257, 259 (1942) (recognizing that “our judgments are precedents” and that the proper understanding of matters of law “cannot be left merely to the stipulation of parties”).
Finally, the Government and supporting amici argue that the expenditure is “coordinated” because a party and its candidate are identical, i. e., the party, in a sense, “is” its candidates. We cannot assume, however, that this is so. See, e. g., W. Keefe, Parties, Politics, and Public Policy in America 59-74 (5th ed. 1988) (describing parties as “coalitions” of differing interests). Congress chose to treat candidates and their parties quite differently under the Act, for example, by regulating contributions from one to the other. See §441a(a)(2)(B). See also 11 CFR §§110.2, 110.3(b) (1995). And we are not certain whether a metaphysical identity would help the Government, for in that case one might argue that the absolute identity of views and interests eliminates any potential for corruption, as would seem to be the case in the relationship between candidates and their campaign committees. Cf. Buckley, supra, at 54-59 (Congress may not limit expenditures by candidate/campaign committee); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 790 (1978) (where there is no risk of “corruption” of a candidate, the Government may not limit even contributions).
IV
The Colorado Party and supporting amici have argued a broader question than we have decided, for they have claimed that, in the special case of political parties, the First Amendment forbids congressional efforts to limit coordinated expenditures as well as independent expenditures. Because the expenditure before us is an independent expenditure we have not reached this broader question in deciding the Party’s “as applied” challenge.
We recognize that the Party filed a counterclaim in which it sought to raise a facial challenge to the Party Expenditure Provision as a whole. But that counterclaim did not focus specifically upon coordinated expenditures. See App. 68-69. Nor did its summary judgment affidavits specifically allege that the Party intended to make coordinated expenditures exceeding the statute’s limits. See id., at 159, ¶ 4. While this lack of focus does not deprive this Court of jurisdiction to consider a facial challenge to the Party Expenditure Provision as overbroad or as unconstitutional in all applications, it does provide a prudential reason for this Court not to decide the broader question, especially since it may not be necessary to resolve the entire current dispute. If, in fact, the Party wants to make only independent expenditures like those before us, its counterclaim is mooted by our resolution of its “as applied” challenge. Cf. Renne v. Geary, 501 U. S. 312, 323-324 (1991) (facial challenge should generally not be entertained when an “as-applied” challenge could resolve the case); Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503-504 (1985).
More importantly, the opinions of the lower courts, and the parties’ briefs in this case, did not squarely isolate, and address, party expenditures that in fact are coordinated, nor did they examine, in that context, relevant similarities or differences with similar expenditures made by individuals or other political groups. Indeed, to our knowledge, this is the first case in the 20-year history of the Party Expenditure Provision to suggest that in-fact coordinated expenditures by political parties are protected from congressional regulation by the First Amendment, even though this Court’s prior cases have permitted regulation of similarly coordinated expenditures by individuals and other political groups. See Buckley, 424 U. S., at 46-47. This issue is complex. As Justice Kennedy points out, post, at 629-630, party coordinated expenditures do share some of the constitutionally relevant features of independent expenditures. But many such expenditures are also virtually indistinguishable from simple contributions (compare, for example, a donation of money with direct payment of a candidate’s media bills, see Buckley, supra, at 46). Moreover, political parties also share relevant features with many PAC’s, both having an interest in, and devoting resources to, the goal of electing candidates who will “work to further” a particular “political agenda,” which activity would benefit from coordination with those candidates. Post, at 630. See, e. g., NCPAC, 470 U. S., at 490 (describing the purpose and activities of the National Conservative PAC); id., at 492 (coordinated expenditures by PAC’s are subject to FECA contribution limitations). Thus, a holding on in-fact coordinated party expenditures necessarily implicates a broader range of issues than may first appear, including the constitutionality of party contribution limits.
But the focus of this litigation, and of the lower court opinions, has not been on such issues, but rather on whether the Government may conclusively deem independent party expenditures to be coordinated. This lack of focus may reflect, in part, the litigation strategy of the parties. The Government has denied that any distinction can be made between a party’s independent and its coordinated expenditures. The Colorado Party, for its part, did not challenge a different provision of the statute — a provision that imposes a $5,000 limit on any contribution by a “multicandidate political committee” (including a coordinated expenditure) and which would apply to party coordinated expenditures if the entire Party Expenditure Provision were struck from the statute as unconstitutional. See §§441a(a)(2), (4), (7)(B)(i). Rather than challenging the constitutionality of this provision as well, thereby making clear that it was challenging Congress’ authority to regulate in-fact coordinated party expenditures, the Party has made an obscure severability argument that would leave party coordinated expenditures exempt from that provision. See Reply Brief for Petitioners 11, n. 9. While these strategies do not deprive the parties of a right to adjudicate the counterclaim, they do provide a reason for this Court to defer consideration of the broader issues until the lower courts have reconsidered the question in light of our current opinion.
Finally, we note that neither the parties nor the lower courts have considered whether or not Congress would have wanted the Party Expenditure Provision’s limitations to stand were they to apply only to coordinated, and not to independent, expenditures. See Buckley, supra, at 108; NCPAC, supra, at 498. This nonconstitutional ground for exempting party coordinated expenditures from FECA limitations should be briefed and considered before addressing the constitutionality of such regulation. See United States v. Locke, 471 U. S. 84, 92, and n. 9 (1985).
Justice Thomas disagrees and would reach the broader constitutional question notwithstanding the above prudential considerations. In fact, he would reach a great number of issues neither addressed below, nor presented by the facts of this case, nor raised by the parties, for he believes it appropriate here to overrule sua sponte this Court’s entire campaign finance jurisprudence, developed in numerous cases over the last 20 years. See post, at 635-644. Doing so seems inconsistent with this Court’s view that it is ordinarily “inappropriate for us to reexamine” prior precedent “without the benefit of the parties’ briefing,” since the “principles that animate our policy of stare decisis caution against overruling a longstanding precedent on a theory not argued by the parties.” United States v. International Business Machines Corp., 517 U. S. 843, 855, 856 (1996). In our view, given the important competing interests involved in campaign finance issues, we should proceed cautiously, consistent with this precedent, and remand for further proceedings.
For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings.
It is so ordered. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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42
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NATIONAL LABOR RELATIONS BOARD v. DISTRICT 50, UNITED MINE WORKERS OF AMERICA, et al.
No. 64.
Argued January 6, 1958.
Decided February 3, 1958.
Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Jerome D. Fenton, Stephen Leonard and Alice Andrews.
Crampton Harris argued the cause for District 50, United Mine Workers of America, respondent. With him on the brief were Yelverton Cowherd and Alfred D. Treherne.
Mr. Justice Brennan
delivered the opinion of the Court.
The National Labor Relations Board found that Bowman Transportation, Inc., committed unfair labor practices by assisting District 50, United Mine Workers, as a means of defeating the efforts of a Teamsters Local to organize its workers. The cease-and-desist order which issued was in the standard form directing the company to withdraw and withhold recognition from District 50 unless and until it received the Board’s certification as the exclusive representative of the employees. 112 N. L. R. B. 387. But the United Mine Workers is not in compliance with § 9 (f), (g), and (h), added by the Taft-Hartley amendments to the National Labor Relations Act, 61 Stat. 143, 29 U. S. C. § 159 (f), (g), (h). It is therefore not eligible for a Board certification and in consequence the Bowman employees may never have an opportunity to select District 50 as their representative. The Board denied the United Mine Workers’ application to delete the requirement for a Board certification. 113 N. L. R. B. 786. The question arises whether the requirement for a Board certification in these circumstances exceeds the Board’s discretionary power under § 10 (c), 29 U. S. C. § 160 (c), to fashion remedies to dissipate the effects of an employer’s unfair labor practices in assisting a union.
The union petitioned the Court of Appeals for the District of Columbia under § 10 (f), 29 U. S. C. § 160 (f), which authorizes a Court of Appeals to “enter a decree enforcing, modifying, and enforcing as só modified, or setting aside in whole or in part the order of the Board . . . .” The Court of Appeals, 99 U. S. App. D. C. 104, 237 F. 2d 585, did not delete the provisions for Board certification but modified the order so that the company would be free to recognize District 50 not only when certified by the Board but, alternatively, when District 50 “shall have been freely chosen as such [representative] by a majority of the employees after all effects of unfair labor practices have been eliminated.” 99 U. S. App. D. C., at 107, 237 F. 2d, at 588.
The Board’s order also required the company to post for at least 60 days a notice prepared by the Board. In the notice the^company would state to its employees that it would not discourage membership in, or interrogate the employees concerning their activities on behalf of, “. . . Teamsters . . . Local No. 612, or any other labor organization . . . ,” and, further, that the company would “. . . withhold all recognition from District 50 . . . unless and until said organization shall have been certified as such representative by the . . . Board.” 112 N. L. R. B. 387, 391. The parties raised no objection to the notice either before the Board or in the Court of Appeals. However, the Court of Appeals on its own motion struck from the notice the references to the Teamsters Local, stating its view that “references to that union in the Board’s form of notice are susceptible of being construed as” indicating that the Board “prefers Teamsters.” 99 U. S. App. D. C., at 108, 237 F. 2d, at 589. The court also added, to the paragraph in the notice stating that the company would withhold recognition from District 50 until the union received a Board certification, the alternative “or [until District 50] shall have been selected as such [representative] by a majority of our employees at a time at least 60 days later than the date of this notice.” 99 U. S. App. D. C., at 109, 237 F. 2d, at 590.
Because important questions of the administration of the Act were raised, we granted certiorari on the Board’s petition. 352 U. S. 999.
The Board’s order was fashioned under § 10 (c), 29 U. S. C. § 160 (c), which vests remedial power in the Board to redress unfair labor practices by “an order requiring such person [committing the unfair labor practice] to cease and desist from such unfair labor practice, and to take such affirmative action ... as will effectuate the policies of this Act . . . .” The Board’s discretionary authority to fashion remedies to purge unfair labor practices necessarily has a broad reach. Labor Board v. Link-Belt Co., 311 U. S. 584, 600. But the power is not limitless; it is contained by the requirement that the remedy shall be “appropriate,” Labor Board v. Bradford Dyeing Assn., 310 U. S. 318, and shall “be adapted to the situation which calls for redress,” Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333, 348. The Board may not apply “a remedy it has worked out on the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act.” Labor Board v. Seven-Up Bottling Co., 344 U. S. 344, 349. The Board’s provision for a Board certification must therefore be examined in the light of its appropriateness in the circumstances of this case.
In formulating remedies for unfair labor practices involving interference by employers with their employees’ freedom of choice of a representative, the Board has always distinguished the remedy appropriate in the case of a union dominated by an employer from the remedy appropriate in the case of a union assisted but undomi-nated by an employer. In the case of a dominated union the Board usually orders the complete disestablishment of the union so that it can never be certified by the Board: This Court has sustained such orders. Labor Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261; Labor Board v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241. On the other hand, in the case of the assisted but undominated union, the Board has consistently directed the employer to withhold recognition from the assisted union until the union receives a Board certification. The basis for the distinction is that, in the Board’s judgment, the free choice by employees of an agent capable of acting as their true representative, in the case of a dominated union, is improbable under any circumstances, while the free choice of an assisted but undominated union, capable of acting as their true representative, is a reasonable possibility after the effects of the employer’s unfair labor practices have been dissipated. See Labor Board v. Wemyss, 212 F. 2d 465, 471, 472.
The reason for the Board’s certification requirement is to invoke the normal electoral processes by which a free choice of representatives is assured. The Board’s opinion in this case states that
“. . . the Board has, since its earliest days, recognized that the policies of the Act could best be effectuated in cases involving violations of Section 8 (a) (2) by directing the offending employers to withhold the preferred treatment afforded to the labor organizations involved until the effect of the unfair labor practices had been dissipated and the majority status of such unions had been established in an atmosphere free of restraint and coercion.” 113 N. L. R. B. 786, 787.
Again,
“. . . in the case of an assisted but undominated labor organization, the Board has required the offending employer to withdraw and withhold recognition from the assisted union until it was certified, thus enabling the Board to assure the affected employees that their statutory right to freely choose a bargaining representative shall be preserved by conducting an election under conditions which will render such a choice possible.” 113 N. L. R. B. 786, 788.
It is thus clear that the most significant element of the remedy is not the formality of certification but an election, after a lapse of time and under proper safeguards, by which employees in “the privacy and independence of the voting booth,” Brooks v. Labor Board, 348 U. S. 96, 99-100, may freely register their choice whether or not they desire to be represented by the assisted union.
In this case of a noncomplying union, however, requiring the formality of Board certification in addition to an election has the same effect as disestablishment. This is because District 50 can never be certified by the Board so long as the United Mine Workers remain out of compliance with § 9 (f), (g), and (h). But disestablishment has been applied by the Board and upheld by the courts only in the case of a dominated union, where a free choice of a truly representative union is improbable under any circumstances, and therefore where an abridgment óf the statutory right of employees does not result. District 50 was found by the Board to be an assisted but not a dominated union, so that a free choice of District 50 by Bowman’s employees is a reasonable possibility. Therefore the certification requirement here misapplies the Board’s own policy by actually defeating the statutory rights of Bowman’s employees.
The Board reasoned that since this Court has sustained its power under § 10 (c)' “to dissipate the effect of an unfair labor practice by completely removing a dominated union . . . , the Board manifestly has the statutory power to impose the lesser sanction of certification in the case of an assisted union . . . .” 113 N. L. R. B. 786, 788. Even if we grant the premise that the Board may remove a dominated union, it does not follow that the Board may remove this merely assisted union. Certification under the circumstances of this case is not the “lesser sanction” but is substantially the same as removal. Unlike an assisted union, a dominated union is deemed inherently incapable of ever fairly representing its members. Labor Board v. Pennsylvania Greyhound Lines, Inc., supra, at 270, 271; Labor Board v. Newport News Shipbuilding & Dry Dock Co., supra, at 250.
We do not think, however, that the Board lacks authority to effect a remedy in this case which would properly reconcile the objectives of eliminating improper employer interference and preserving the employees’ full choice of a bargaining representative. The prohibitions of § 9 (f) and (h) against investigation of representatives, the requirement of § 9 (c) of Board-conducted elections connected with such investigations, and the prohibition of § 9 (g) against certification of a non complying union, are concerned not with remedial orders under § 10 (c) but with questions of representation and unfair labor practices “raised by a labor organization.” The single objective of § 9 (f), (g), and (h) was “to stop the use of the Labor Board” by noncomplying unions. Labor Board v. Dant, 344 U. S. 375, 385. These subsections contain nothing compelling the Board to insist upon a Board certification and thus to deny the employees the right at an election held under proper safeguards to select the noncomplying assisted union for their representative. Nothing in the subsections, for example, is a barrier to the conduct by the Board of an election not followed by a certification, or to the making of an arrangement with another appropriate agency, state or federal, for the conduct of the election under conditions prescribed by the Board. Clearly an election under such circumstances will also achieve the Board’s prime objective in these cases, viz., to “demonstrate that . . . [the assisted union’s] right to be the exclusive representative of the employees involved has been established in an atmosphere free of restraint and coercion.” 113 N. L. R. B. 786, 788. Indeed, in its brief, the Board impliedly admits the irrelevance of the formality of certification to the effectiveness of the fashioned remedy, stating that “. . . if that view [of certification] is rejected, the Board may perhaps devise other measures which will enable it to make certain that the employees’ choice of bargaining representative is in fact made in an atmosphere free of restraint and coercion . . . .” In a footnote the Board suggests such an alternative: “. . . [T]he Board might conduct an election among the employees and certify the union if it wins the election provided it is in compliance but otherwise certify only the arithmetical results. . . .”
The Board’s opinion also states that to dispense with a certification in the case of a noncomplying assisted union, while requiring a certification in the case of a complying union, “would negative the policy and intent of Section 9 (f), (g), and (h) of the Act.” 113 N. L. R. B. 786, 790. But this misinterprets the scope of those provisions. “Subsections (f), (g) and (h) of § 9 merely describe advantages that may be gained by compliance with their conditions. The very specificity of the advantages to be gained and the express provision for the loss of these advantages imply that no consequences other than those so listed shall result from noncompliance.” United Mine Workers v. Arkansas Oak Flooring Co., 351 U. S. 62, 73. Congress did not in § 9 (f), (g), and (h) make the filing required by those subsections compulsory or a condition precedent to the right of a noncomplying union to be recognized as the exclusive representative of the employees. United Mine Workers v. Arkansas Oak Flooring Co., supra. Similarly, the Board cannot, through the requirement of a Board certification, make noncompliance a reason for denying the employees the right to choose the assisted union at an election which can readily serve its designed purpose without such certification. Finally, we do not believe that the issuance of an order in the case of a noncomplying assisted union different from the form of order consistently used in cases of complying assisted unions extends “preferred treatment” to the noncomplying union. What it does in fact is to give the noncomplying union substantially the same treatment as a complying union instead of subjecting it to disabilities not intended by Congress as a result of noncompliance. The Board’s order is therefore not appropriate or adapted to the situation calling for redress and constitutes an abuse of the Board’s discretionary power.
However, the modifications of the cease-and-desist order made by the Court of Appeals go beyond permissible limits of judicial review under § 10 (f) and cannot be sustained. The Court’s alternative to Board certification dispenses with the necessity of an election and can be interpreted, as the Board argues, to leave to the offending employer and the assisted union the decision when the effect of the unfair labor practice has been eliminated and the employees have regained their freedom of action. Nothing said in the Arkansas Flooring case, upon which the Court of Appeals relied, justifies the Court of Appeals in going so far as to dispense with an election under proper safeguards. This Court has long recognized the propriety of an agency’s chqice of an election as the proper means to assure dissipation of the unwholesome effects of the employer’s unlawful assistance to a union. See Texas & New Orleans R. Co. v. Brotherhood of Railway Clerks, 281 U. S. 548. The Board’s discretion here was exceeded only in the inflexibility of the requirement for a Board certification notwithstanding its inappropriateness in the circumstances of this case.
The rewriting of the notice to be posted was improper insofar as it deleted reference to the Teamsters Union, because no objection to the notice in this respect was ever raised by the parties before the Board. Labor Board v. Seven-Up Bottling Co., 344 U. S. 344, 350; Labor Board v. Cheney California Lumber Co., 327 U. S. 385, 388-389; cf. Federal Power Comm’n v. Colorado Interstate Gas Co., 348 U. S. 492, 497. Section 10 (e) of the Act provides: “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the . . . [Court of Appeals], unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” No extraordinary circumstances were shown here.
The orderly administration of the Act and due regard for the respective functions of the Board and reviewing courts require that we vacate the judgment of the Court of Appeals with instructions to remand the case to the Board for further proceedings consistent with this opinion.
It is so ordered.
The Teamsters Local was International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local No. 612. The Board concurred in the Trial Examiner’s findings that when the Teamsters Local was picketing the premises the company rendered illegal support and assistance to District 50 by negotiating the details of a contract with officials of that union before a single employee had actually authorized it as a representative, by showing the draft contract to the drivers at a meeting convened by and presided over by the company president, who assured them that if necessary he would advance the money for dues, after which, and within less than three hours, the drivers signed District 50 authorization cards, established a local which held its first meeting, at the president’s suggestion, on company premises, and concluded a contract with the company.
This remedy was apparently first adopted in Lenox Shoe Co., 4 N. L. R. B. 372, 388, decided December 3, 1937.
Subsection (f) provides that no investigation shall be made by the Board concerning the representation of employees raised by a labor organization, and no complaint of unfair labor practices shall be issued pursuant to a charge made by a labor organization, unless the organization and any national or international labor organization of which it is an affiliate or constituent shall have filed with the Secretary of Labor copies of the union’s constitution and by-laws and a report showing, among other things, the names of officers and agents whose aggregate compensation and allowance for the preceding year exceeded $5,000, the amounts paid to each, the manner in which such officers and agents were selected, the amount of initiation fees and dues charged to union members, the union’s procedures followed with respect to qualification for membership, election as officers and stewards, etc. The subsection also requires the filing with the Secretary of a report showing union receipts, disbursements, and assets and liabilities. Subsection (g) requires, among other things, the filing annually with the Secretary of reports bringing up to date the information required to be supplied under subsection (f). Subsection (h) provides that no investigation of a question of representation raised by a labor organization shall be made and no complaint of unfair labor practices pursuant to a charge made by a labor organization shall issue unless there is on file with the Board an affidavit executed within the preceding year by each officer of the organization and the officers of any national or international labor organization of which it is an affiliate or constituent that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member or supporter of, any organization that believes in or teaches the overthrow of the United States Government by force or by illegal or unconstitutional methods. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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81
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UNITED GAS PIPE LINE CO. v. McCOMBS et al.
No. 78-17.
Argued February 22, 1979 —
Decided June 18, 1979
Marshall, J., delivered the opinion of the Court, in which all other Members joined, except Stewart, J., who took no part in the consideration or decision of the cases.
Knox Bemis argued the cause for petitioner in No. 78-17. With him on the briefs were W. DeVier Pierson and James M. Costan. Richard A. Allen argued the cause for petitioner in No. 78-249. With him on the briefs were Solicitor General McCree, Deputy Solicitor General Barnett, and Howard E. Shapiro.
Stanley L. Cunningham argued the cause for respondents in both cases. With him on the brief were Philip D. Hart and Terry R. Barrett.
Together with No. 78-249, Federal Energy Regulatory Commission v. McCombs et al., also on certiorari to the same court.
Frederick Moving filed a brief for the Associated Gas Distributors as amicus curiae urging reversal.
Me. Justice Makshall
delivered the opinion of the Court.
Under § 7 (c) of the Natural Gas Act, producers who sell natural gas to pipelines for resale in interstate commerce must obtain a certificate of public convenience and necessity from the Federal Energy Regulatory Commission. Section 7 (b) of the Act obligates these producers to continue supplying gas in the interstate market until the Commission authorizes an “abandonment.” The principal issue presented by this case is whether a producer may, consistent with § 7 (b), ever terminate this service obligation without obtaining the agency’s express approval.
I
The natural gas involved in this case is produced from a 163-acre tract of land located in Karnes County, Tex., and known as the Butler B tract. In 1948, the owner of this land, B. C. Butler, Sr., executed an oil and gas lease with W. R. Quin as the lessee. Quin’s widow contracted in 1953 to sell petitioner United Gas Pipe Line Co. (United), for a 10-year period, all “merchantable natural gas . . . now or hereafter” produced from the Butler B tract. App. 7A. Because United was an interstate pipeline company, Ms. Quin applied to the Commission for a certificate of public convenience and necessity authorizing this sale. The certificate issued by the Commission contained neither a time limitation nor any designation of the depths from which the gas would be produced.
After United installed gathering facilities on the property and began receiving gas from a well 2,960 feet deep, the Butler B lease was assigned several times. H. A. Pagenkopf eventually obtained the leasehold, and in 1961, he agreed to extend the term of United’s gas purchase contract through February 7, 1981. Upon Pagenkopf’s application, the Commission issued a new certificate in 1963, authorizing continued service to United under the same terms as the earlier certificate. In March 1966, Pagenkopf assigned the Butler B. lease to a group headed by L. H. Haring, and shortly thereafter, the only successful well on the property stopped producing. Haring’s operator, Bay Rock Corp., notified United some months later that the existing wells were depleted and no other gas would be available at that time. United replied that it would remove its metering equipment for use elsewhere, but would reinstall the equipment “if, at some future date, you have further gas to deliver to us at the above delivery point, which will be subject to the terms of the above-captioned contract.” App. 8A-9A. Despite the Commission’s subsequent warning that § 7 (b) required the filing of an abandonment application if no further sales were contemplated, Haring never sought the Commission’s authorization for abandoning service to United.
During 1971 and 1972, Haring divided the Butler B leasehold horizontally and vertically, and he assigned to a group headed by respondent McCombs a working interest in the eastern 113 acres of the tract between the depths of 6,500 and 8,653 feet. A few months later, the group acquired a similar interest in the entire Butler B tract from depths of 8,700 to 9,700 feet. Drilling to these deeper horizons, the McCombs group discovered new gas reserves. In 1972, they contracted to sell this gas to respondent E. I. du Pont de Nemours & Co. for industrial uses in intrastate commerce. Upon learning of the renewed production, however, United asserted its rights under the 1953 contract, as extended in 1961, to purchase all gas produced from the property. When the McCombs group rejected this claim, United filed a complaint with the Commission.
The Commission upheld the Administrative Law Judge’s determination that the McCombs group could not sell the Butler B gas in intrastate commerce, at least through February 7, 1981. Opinion No. 740, App. to Pet. for Cert, in No. 78-17, pp. A-32 to A-33. In particular, the Commission found that the certificates issued to the group’s predecessors covered all gas produced from the property, including the reserves discovered in 1971 and 1972. Because these predecessors had commenced deliveries pursuant to the certificates, the Commission ruled that all reserves embraced by the certificates were “dedicated” to interstate commerce and could not be diverted from that market without obtaining the agency’s approval under § 7 (b). Noting that it had not authorized abandonment during the 5-year interruption in service, the Commission refused to grant its approval retroactively where, as here, the supply of natural gas was not in fact depleted. Accordingly, the Commission declared the sales in intrastate commerce violative of the Act, and ordered delivery to United of all gas derived from the Butler B leasehold.
A divided panel of the Court of Appeals for the Tenth Circuit set aside the Commission’s order. 570 F. 2d 1376 (1978). The court did not dispute the Commission’s determination that all gas underlying the Butler B tract had. been dedicated to interstate commerce. However, while acknowledging that § 7 (b) expressly requires Commission approval before a producer may withdraw dedicated natural gas from the interstate market, the majority held that “strict compliance” with this requirement was unnecessary here. 570 F. 2d, at 1381. In the court’s view, “there was no need for the formality of a Section 7 (b) hearing,” ibid., because
“the abandonment of the service in the instant case was accomplished, as a matter of law, when all of the parties recognized that the then known natural gas reserves were depleted in 1966 followed by failure to provide any service under the certificates for a period of five years during which time there was no evidence of other estimated gas reserves recoverable from the subject leaseholds.” Id., at 1382.
In sum, the Court of Appeals considered the facts so clear that the abandonment issue was no longer “within the expertise of the Commission.” Id., at 1381. The dissenting judge found this conclusion “directly contrary to the plain terms of § 7 (b),” which mandate approval by the Commission as the sole means of effectuating a valid abandonment. Id., at 1382.
We granted certiorari, 439 U. S. 892 (1978), and now reverse.
II
Congress could not have been more explicit in establishing Commission approval as a prerequisite for lawful abandonment of service within its jurisdiction. Section 7 (b) provides:
“No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.” 52 Stat. 824, 15 U. S. C. § 717f (b).
Not only does the statute require companies to obtain the “approval of the Commission . . . after due hearing,” but it also prohibits abandonment absent specific findings by the Commission. The language of § 7 (b) simply does not admit of any exception to the statutory procedure.
This plain meaning has been acknowledged in several of our previous decisions. Emphasizing that the Natural Gas Act’s fundamental purpose was to assure the public a reliable supply of gas at reasonable prices, the Court noted in Atlantic Refining Co. v. Public Service Comm’n, 360 U. S. 378 (1959), that once gas has been dedicated to interstate commerce, “there can be no withdrawal of that supply from continued interstate movement without Commission approval.” Id., at 388, 389, 392 (emphasis added). The Court again addressed the necessity of obtaining the agency’s permission in Sunray Mid-Continent Oil Co. v. FPC, 364 U. S. 137 (1960). There, the Court upheld the Commission’s authority to insist upon issuing permanent certificates of convenience and necessity, reasoning that this power was essential to prevent companies from circumventing the regulatory scheme. For if producers could demand certificates of limited duration, and thereby escape federal regulation when the certificates expire, the abandonment procedures of § 7 (b) would be rendered meaningless. 364 U. S., at 142-144, 148. Of particular importance here, the Court specifically considered the impact that depletion of gas supplies would have on a company’s obligation to seek abandonment permission. Approving the Commission’s practice of issuing certificates that extend beyond the expected life of a given reserve, the Court stressed:
“[I]f the companies, failing to find new sources of gas supply, desired to abandon service because of a depletion of supply, they would have to make proof thereof before the Commission, under § 7 (b). The Commission thus, even though there may be physical problems beyond its control, [keeps] legal control over the continuation of service by the applicants.” Id., at 158 n. 25.
In short, Sunray makes clear that producers must secure Commission approval to abandon service even when there is little or no doubt that gas supplies are exhausted.
This Court expressed a similar understanding of the abandonment provision in United Gas Pipe Line Co. v. FPC, 385 U. S. 83 (1966), which upheld the Commission’s determination that a company had violated § 7 (b) of the Act by unilaterally abandoning jurisdictional facilities to avoid paying increased gas prices. In so holding, the Court reiterated that the “statutory necessity of prior Commission approval, with its underlying findings, cannot be escaped.” 385 U. S., at 89 (emphasis added). We reaffirmed this interpretation of § 7 (b) just last Term in California v. Southland Royalty Co., 436 U. S. 619 (1978). The lessees in Southland had dedicated to interstate commerce gas produced from a particular tract, but, when the lease expired, the lessors to whom the oil and gas rights had reverted arranged to sell the remaining gas in the intrastate market. This Court held that even expiration of the lease did not terminate the obligation to continue selling the gas in interstate commerce. To conclude otherwise, we reasoned, would enable private parties to circumvent the Commission’s authority over abandonments. And evasion of federal jurisdiction by this means could not be reconciled with the principle that “[o]nce the gas commenced to flow into interstate commerce from the facilities used by the lessees, § 7 (b) require[s] that the Commission’s permission be obtained prior to the discontinuance of 'any service rendered by means of such facilities.’ ” Id., at 527 (emphasis added).
Thus, we have consistently recognized that the Commission’s "legal control over the continuation of service,” Sunray, supra, at 158 n. 25, is a fundamental component of the regulatory scheme. To deprive the Commission of this authority, even in limited circumstances, would conflict with basic policies underlying the Act.
Requiring Commission approval, “after due hearing,” permits all interested parties to be heard and therefore facilitates full presentation of the facts necessary to determine whether § 7 (b)’s criteria have been met. Contrary to respondents’ assumption, see Brief for Respondents 20-21, the Commission does not automatically approve abandonments whenever production has ceased. Indeed, the agency recently refused to grant an application where the producer had not adequately tested for new gas reserves. Had the lessees in the instant case filed an application for abandonment between 1966 and 1971, United might well have demonstrated that exploration of the leasehold had been insufficient to justify finding “the available supply of natural gas . . . depleted to the extent that the continuance of service [was] unwarranted.” § 7 (b). And the Commission might have concluded that production from deeper reserves or other measures to restore service were feasible. Permitting natural gas companies to bypass abandonment proceedings simply .because known reserves appear depleted would obviously foreclose these factual inquiries. Consequently, the abandonment determination would rest, as a practical matter, in the producer’s control, a result clearly at odds with Congress’ purpose to regulate the supply and price of natural gas. See California v. Southland Royalty Co., supra, at 526-527, 529-530; Sunray Mid-Continent Oil Co. v. FPC, supra, at 142-147.
Moreover, the obligation to obtain Commission approval promotes certainty and reliability in the regulatory scheme. Knowledge that termination of service is lawful only if authorized by the Commission enables producers, prospective assignees, and other interested parties to determine with assurance whether a particular tract remains dedicated to interstate commerce. In contrast, the Court of Appeals’ test for de facto abandonment would invite speculation regarding the extent of the Commission’s jurisdiction. The confusion that would inevitably result from the lack of clear standards as to when producers must seek Commission approval fortifies our conclusion that Congress intended agency supervision of all abandonments.
Ill
Respondents maintain that even if producers must always obtain Commission approval for abandonment, the decision below should nevertheless be affirmed. In their view, the Court of Appeals actually concluded that the Commission had erred as a matter of law by refusing to authorize an abandonment retroactively. Assuming this was the true purport of the decision below, we believe the Court of Appeals lacked authority to set aside the Commission’s order on this ground.
Although respondents urged the agency to authorize an abandonment of service from Butler B, the Administrative Law Judge and the Commission rejected this suggestion in light of the clear evidence that the leasehold was still capable of production. Respondents, however, contend that because Haring acted in good faith in failing to seek agency approval, the Commission was obligated to treat their answer to United’s complaint as if it were an abandonment application filed in 1966. Thus, according to respondents, the Court of Appeals was entitled to conclude that the Commission should have ignored the evidence of subsequent production and authorized an abandonment based on the evidence available in 1966.
We need not determine whether § 7 (b) allows the Commission to approve an abandonment retroactively and disregard evidence of subsequent production. For the agency certainly did not abuse its discretion in declining to do so here. Authorizing abandonments retroactively would often deprive interested parties of the opportunity to be heard at a meaningful time and to present evidence on the likelihood of renewing gas production in the future. Thus, the Commission would be required to determine on a hypothetical set of facts what action it would have taken had an application been timely filed. Additionally, the jurisdictional status of all dedicated acreage would become uncertain, since the property would be subject to retroactive Commission pronouncements in the indefinite future. Frequent retroactive action would also undermine the statutory scheme by creating an incentive for producers to delay seeking agency approval in the hope that they could later establish good faith. Given this potential for disruption of § 7 (b)’s approval procedure, we believe it is within the Commission’s discretion to reject good faith alone as a sufficient justification for determining whether the evidence available in 1966 warranted granting an abandonment.
IY
Finally, respondents defend the judgment below on the ground that only the depleted shallow reserves underlying Butler B, as opposed to the newly discovered gas, were subject to the approval requirements of § 7 (b). In their view, the deliveries actually made in interstate commerce, rather than the certificates of public convenience and necessity, define the “service” that may not be abandoned without Commission approval. Although deliveries were once made from a reservoir approximately 2,900 feet deep, the “separate and distinct” gas from the deeper reservoirs was never delivered into interstate commerce. Thus, according to respondents, the current production is not subject to the requirements of § 7 (b), even though the certificates of public convenience and necessity cover all reservoirs located on Butler B.
Our prior decisions compel rejection of this narrow statutory interpretation. In California v. Southland Royalty Co., we expressly agreed with the Commission that the “initiation of interstate service pursuant to the certificate dedicated all fields subject to that certificate.” 436 U. S., at 525 (emphasis added). And as the Court emphasized in Sunray Mid-Continent Oil Co. v. FPC, “ 'once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval.’ ” 364 U. S., at 156, quoting Atlantic Refining Co. v. Public Service Comm’n, 360 U. S., at 389.
Applying these principles, the Commission determined that all reserves underlying Butler B were dedicated to interstate commerce pursuant to the certificates it had issued in 1954 and 1963, see supra, at 534, and n. 6, and therefore were subject to the requirements of § 7 (b). There being ample factual and legal justification for the Commission’s conclusions, see Sun Oil Co. v. FPC, 364 U. S. 170 (1960), we hold that § 7 (b) requires respondents to continue supplying in interstate commerce all gas produced from the leasehold until they properly obtain permission for abandonment.
• The judgment of the Court of Appeals is
Reversed.
Mr. Justice Stewart took no part in the consideration or decision of these cases.
52 Stat. 825, as amended, 15 U. S. C. §717f (e). See Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672 (1954). Pursuant to the Department of Energy Organization Act, 91 Stat. 565, the regulatory functions at issue here were transferred from the Federal Power Commission to the Federal Energy Regulatory Commission, effective October 1, 1977.
Section 7 (b), 52 Stat. 824, 15 U. S. C. §717f (b), provides:
“No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.”
Although Haring advised United that he would apply to the Commission for a successor producer certificate, no application was ever filed. App. to Pet. for Cert, in No. 78-17, pp. A-6 to A-7.
The Secretary of tbe Commission wrote Bay Rock in January 1971 that it would be necessary to file an application for permission to abandon service and a notice of cancellation of rate schedule. Id., at A-100 to A-101. This letter also directed the lessee to submit either a copy of any agreement with United canceling the gas purchase contract or a statement from United “indicating its position with respect to the proposed abandonment.” Ibid. The Secretary had written a similar letter to Pagenkopf in August 1968, but he, too, failed to respond. Id., at A-97 to A-98.
In addition to the Butler B interests, the McCombs group also owned an interest in an adjoining tract of land. In order to operate both tracts as a single entity, the group “unitized,” or combined, their interests in Butler B with those in the corresponding depths of the adjacent tract. As a result, a fraction of the production from each of four successful wells located on the total unitized acreage is attributable to the Butler B leasehold for purposes of the gas purchase contract and the Commission’s certificates. Id., at A-8 to A-10. See generally 6 H. Williams & C. Meyers, Oil & Gas Law 2-3 (1977 ed.).
In determining the scope of Pagenkopf’s certificate, the Commission analyzed separately the depths covered and the duration of the obligation to sell gas in interstate commerce. The Commission based its conclusion that the certificates encompassed all reservoirs on the absence of any reference to particular depths in either the applications 'for certification, which incorporated the contract with United, or in the certificates issued Pagen-kopf and Ms. Quin. App. to Pet. for Cert, in No. 78-17, pp. A-29 to A-35. Referring to the same documents, the Commission interpreted Pagen-kopf’s certificate to encompass all gas produced from wells drilled before the contract’s expiration date, even if the gas is extracted after February 7, 1981. Ibid. However, the Commission refused to consider whether the certificate also covered gas produced from wells drilled after the contract’s expiration date. Id., at A-33, and n. 28; see Sun Oil Co. v. FPC, 364 U. S. 170 (1960). Since the parties have not challenged here these findings on duration, we express no view on the Commission’s ruling concerning production beyond 1981.
The Commission did not address the validity of United’s gas purchase contract. McCombs has raised that issue in a separate suit, which is being held in abeyance pending completion of this litigation. McCombs v. United Gas Pipe Line Co., No. SA-73-CA-210 (WD Tex., filed Aug. 2, 1973).
The Court of Appeals rendered this decision on rehearing after withdrawing an earlier opinion by a different panel. See 542 F. 2d 1144 (1976).
Although Congress has recently revised the federal scheme for regulating natural gas, see the Natural Gas Policy Act of 1978, 92 Stat. 3351, that legislation does not affect the outcome of this case. With certain exceptions not relevant here, gas reserves dedicated to interstate commerce before November 8, 1978, remain subject to § 7 (b) of the Natural Gas Act. See §§ 2 (18), 104, 106 (a), and 601 (a) of the Natural Gas Policy Act, 92 Stat. 3354, 3362, 3365, 3409,15 U. S. C. §§ 3301 (18), 3314, 3316 (a), 3431 (a) (1976 ed., Supp. Ill); S. Conf. Rep. No. 95-1126, pp. 71-72, 82, 84-85, 123-124 (1978); H. R. Conf. Rep. No. 95-1752, pp. 71-72, 82, 84-85, 123-124 (1978).
See Texaco, Inc., FERC Docket Nos. G-8820 et al, Order Granting Petition for Reconsideration and Modifying Prior Order (Nov. 1, 1977).
Respondents contend that the Commission recently approved a retroactive § 7 (b) abandonment in Arkansas Louisiana Gas Co., FPC Docket No. CP76-329 (Mar. 8, 1977). In that case, a certificated pipeline had agreed to sell excess gas, but its supply became depleted in 1971. Although the pipeline did not seek abandonment permission until 1977, the Commission approved the abandonment because the supply of excess gas was still depleted and there was no likelihood of obtaining additional gas. The agency's decision therefore had no retroactive impact.
Relying on four lower court decisions that did not involve § 7 (b), respondents argue that the Commission was required to approve abandonment retroactively here. None of these cases, however, supports respondents’ contention that the Commission abused its discretion in this suit. In Ellwood City v. FERC, 583 F. 2d 642 (CA3 1978), cert. denied, 440 U. S. 946 (1979), and Niagara Mohawk Power Cory. v. FPC, 126 U. S. App. D. C. 376, 379 F. 2d 153 (1967), the Courts of Appeals found no abuse of discretion in the Commission’s decision to give retroactive effect to certain rate schedules and licensing orders. Accordingly, neither decision addresses whether the Commission was required to exercise its discretion in this manner. Moreover, retrospective action was taken in Niagara Mohawk to prevent the utility from benefiting by its failure to comply with the law, a consideration that militates against granting retroactive approval in the instant action.
Plaquemines Oil & Gas Co. v. FPC, 146 U. S. App. D. C. 287, 450 F. 2d 1334 (1971), merely held that once the Commission chooses “to regard as being done that which should have been done,” id., at 290, 450 F. 2d, at 1337, it must apply this principle consistently within the same case. Finally, Highland Resources, Inc. v. FPC, 537 F. 2d 1336 (CA5 1976), involved a producer that, relying on a published order of the Commission, failed to submit certain rate applications. After the agency changed its filing requirements, the producer promptly tendered the appropriate papers. The Commission nevertheless refused to give the application retroactive effect. The Court of Appeals set aside this aspect of the Commission’s order, holding that a producer should not be penalized for its reliance on the agency’s own pronouncements. There was no such reliance, however, in the present litigation. See n. 4, supra.
Since the Commission and lower federal courts have held that § 7 (b) prohibits abandonment of service without agency approval even where the producer has not obtained a certificate, see, e. g., Cumberland Natural Gas Co., 34 F. P. C. 132 (1965); Mesa Petroleum Co. v. FPC, 441 F. 2d 182 (CA5 1971), respondents contend that §7 (b)’s reference to “service rendered” can never be measured by the certificate of public convenience and necessity. See n. 2, supra. Respondents, however, misperceive the basis for these decisions. Because a company may not circumvent the regulatory scheme by failing to comply' with the certification requirement, the Commission must, in such cases, rely on sources other than a certificate to ascertain the scope of a dedication in interstate commerce. These cases obviously do not preclude the agency from referring to certificates when they exist.
The agency’s decisions have reflected a similar understanding of §7 (b). For example, in Cumberland Natural Gas Co., supra, where the producer had not yet obtained a certificate of convenience and necessity, the Commission held that “dedication of reserves for sale in interstate commerce occur [red] at least as soon as deliveries commenc[ed]” from any part of the 9,000-acre leasehold contractually committed to an interstate pipeline. 34 F. P. C., at 136. Accordingly, the agency required that all gas subsequently produced from the entire dedicated leasehold, even if discovered after the dedication, be sold in interstate commerce until the Commission approved an abandonment. Id., at 136-137. See also Pioneer Gathering System, Inc., 23 F. P. C. 260, 263 (1960); Murphy Oil Corp. v. FERC, 589 F. 2d 944 (CA8 1978); Mitchell Energy Corp. v. FPC, 533 F. 2d 258 (CA5 1976). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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43
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ARKANSAS WRITERS’ PROJECT, INC. v. RAGLAND, COMMISSIONER OF REVENUE OF ARKANSAS
No. 85-1370.
Argued January 20, 1987
Decided April 22, 1987
MARSHALL, J., delivered the opinion of the Court, in which Brennan, White, Blackmun, Powell, and O’ConnoR, JJ., joined, and in Parts I, II, III-B, IV, and V of which Stevens, J., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 234. Scalia, J., filed a dissenting opinion; in which Rehnquist, C. J., joined, post, p. 235.
Anne Owings Wilson argued the cause and filed briefs for appellant.
John Steven Clark argued the cause for appellee. With him on the brief were R. B. Friedlander and Joseph V. Svoboda.
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation et al. by Jack Novik and Philip E. Kaplan; for the City & Regional Magazine Association by Donald M. Middlebrooks; for the Magazine Publishers Association by David Minton; for the Miami Herald Publishing Co. et al. by Edward Soto, Gerald B. Cope, Jr., W. Terry Maguire, and Parker Thomson; for Time Inc., by E. Barrett Prettyman, Jr., David J. Saylor, and John G. Roberts, Jr.; and for the Times Mirror Co. et al. by Rex S. Heinke, William A. Mese, and Jeffrey S. Klein.
Briefs of amici curiae urging affirmance were filed for the Territory of American Samoa et al. by the Attorneys General for their respective jurisdictions as follows: Thomas J. Miller of Iowa, Leulumoega S. Lutu of American Samoa, Joseph Lieberman of Connecticut, Jim Smith of Florida, Corinne K. A. Watanabe of Hawaii, Jim Jones of Idaho, William J. Guste, Jr., of Louisiana, Hubert H. Humphrey III of Minnesota, Michael Turpén of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, T. Travis Medlock of South Carolina, Mark V. Meierhenry of South Dakota, Jim Mattox of Texas, David L. Wilkinson of Utah, and Jeffrey L. Amestoy of Vermont; and for the State of Maryland by Stephen H. Sachs, Attorney General, Ralph S. Tyler III, Assistant Attorney General, and Carmen M. Shepard, Special Assistant Attorney General.
Justice Marshall
delivered the opinion of the Court.
The question presented in this case is whether a state sales tax scheme that taxes general interest magazines, but exempts newspapers and religious, professional, trade, and sports journals, violates the First Amendment’s guarantee of freedom of the press.
J — l
Since 1935, Arkansas has imposed a tax on receipts from sales of tangible personal property. 1935 Ark. Gen. Acts 233, §4, pp. 593, 594, now codified at Ark. Stat. Ann. §84-1903(a) (1980 and Supp. 1985). The rate of tax is currently four percent of gross receipts. § 84-1903 (three percent); Ark. Stat. Ann. §84-1903.1 (Supp. 1985) (additional one percent). Numerous items are exempt from the state sales tax, however. These include “[g]ross receipts or gross proceeds derived from the sale of newspapers,” §84-1904(f) (newspaper exemption), and “religious, professional, trade and sports journals and/or publications printed and published within this State . . . when sold through regular subscriptions.” §84-1904(j) (magazine exemption).
Appellant Arkansas Writers’ Project, Inc., publishes Arkansas Times, a general interest monthly magazine with a circulation of approximately 28,000. The magazine includes articles on a variety of subjects, including religion and sports. It is printed and published in Arkansas, and is sold through mail subscriptions, coin-operated stands, and over-the-counter sales. In 1980, following an audit, appellee Commissioner of Revenue assessed tax on sales of Arkansas Times. Appellant initially contested the assessment, but eventually reached a settlement with the State and agreed to pay the tax beginning in October 1982. However, appellant reserved the right to renew its challenge if there were a change in the tax law or a court ruling drawing into question the validity of Arkansas’ exemption structure. Record 46-47.
Subsequently, in Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575 (1983), this Court held unconstitutional a Minnesota tax on paper and ink used in the production of newspapers. In January 1984, relying on this authority, appellant sought a refund of sales tax paid since October 1982, asserting that the magazine exemption must be construed to include Arkansas Times. It maintained that subjecting Arkansas Times to the sales tax, while sales of newspapers and other magazines were exempt, violated the First and Fourteenth Amendments. The Commissioner denied appellant’s claim for refund. App. to Juris. Statement 12-14.
Having exhausted available administrative remedies, appellant filed a complaint in the Chancery Court for Pulaski County, Arkansas, seeking review of the Commissioner’s decision. The complaint also stated a claim under 42 U. S. C. §§1983 and 1988 for injunctive relief and attorney’s fees. The parties stipulated that Arkansas Times is not a “newspaper” or a “religious, professional, trade or sports journal” and that, during the relevant time period, appellant had paid $15,838.22 in sales tax. The Chancery Court granted appellant summary judgment, construing § 84 — 1904(j) to create two categories of tax-exempt magazines sold through subscriptions, one for religious, professional, trade, and sports journals, and one for publications published and printed within the State of Arkansas. No. 84-1268 (Pulaski Cty. Chancery Ct., Mar. 29, 1985). Because Arkansas Times came within the second category, the court held that the magazine was exempt from sales tax and appellant was entitled to a refund. The court determined that resolution of the dispute on statutory grounds made it unnecessary to address the constitutional issues raised in appellant’s § 1983 claim.
The Arkansas Supreme Court reversed the decision of the Chancery Court. 287 Ark. 155, 697 S. W. 2d 94 (1985). It construed § 84 — 1904(j) as creating a single exemption and held that, in order to qualify for this exemption, a magazine had to be a “religious, professional, trade, or sports periodical.” Id., at 157, 697 S. W. 2d, at 95. Concluding that “neither party has questioned the constitutionality of the exemption,” the State Supreme Court failed to address appellant’s First and Fourteenth Amendment claims. Ibid.
On petition for rehearing, the court issued a supplementary opinion in which it acknowledged that appellant had pursued its constitutional claims and that they “should have been discussed” in the court’s original opinion. Id., at 157, 157A, 157B, 698 S. W. 2d 802, 803 (1985). It rejected appellant’s claims of discriminatory treatment, reasoning that exemptions granted to other publications need not be considered, because:
“[I]t would avail [appellant] nothing if it wins its argument. ... It is immaterial that an exemption in favor of some other taxpayer may be invalid, as discriminatory. If so, it is the exemption that would fall, not the tax against the [Arkansas] Times.” Id., at 157A, 698 S. W. 2d, at 803.
As to appellant’s First Amendment objections, the court noted that this Court has held that “the owners of newspapers are not immune from any of the ‘ordinary forms of taxation’ for support of the government.” Ibid., quoting Grosjean v. American Press Co., 297 U. S. 233, 250 (1936). In contrast to Minneapolis Star, supra, and Grosjean, supra, the Arkansas Supreme Court concluded that the Arkansas sales tax was a permissible “ordinary form of taxation.” Because the court did not find that appellant’s First and Fourteenth Amendment rights had been violated, it did not consider the claim for attorney’s fees under § 1988.
We noted probable jurisdiction, 476 U. S. 1113 (1986), and we now reverse.
II
As a threshold matter, the Commissioner argues that appellant does not have standing to challenge the Arkansas sales tax scheme. Extending the reasoning of the court below, he contends that, since appellant has conceded that Arkansas Times is neither a newspaper nor a religious, professional, trade, or sports journal, it has not asserted an injury that can be redressed by a favorable decision of this Court and therefore does not meet the requirements for standing set forth in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 472 (1982).
We do not accept the Commissioner’s notion of standing, for it would effectively insulate underinclusive statutes from constitutional challenge, a proposition we soundly rejected in Orr v. Orr, 440 U. S. 268, 272 (1979). The Commissioner’s position is inconsistent with numerous decisions of this Court in which we have considered claims that others similarly situated were exempt from the operation of a state law adversely affecting the claimant. See, e. g., Armco Inc. v. Hardesty, 467 U. S. 638 (1984); Carey v. Brown, 447 U. S. 455 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972). Contrary to the Commissioner’s assertion, appellant has alleged sufficient a personal stake in the outcome of this litigation. “The holding of the [Arkansas] cour[t] stand[s] as a total bar to appellant’s relief; [its] constitutional attack holds the only promise of escape from the burden that derives from the challenged statut[e].” Orr v. Orr, supra, at 273.
A
Our cases clearly establish that a discriminatory tax on the press burdens rights protected by the First Amendment. See Minneapolis Star, 460 U. S., at 591-692; Grosjean v. American Press Co., supra, at 244-245. In Minneapolis Star, the discrimination took two distinct forms. First, in contrast to generally applicable economic regulations to which the press can legitimately be subject, the Minnesota use tax treated the press differently from other enterprises. 460 U. S., at 581 (the tax “singles] out publications for treatment that is . . . unique in Minnesota tax law”). Second, the tax targeted a small group of newspapers. This was due to the fact that the first $100,000 of paper and ink were exempt from the tax; thus “only a handful of publishers pay any tax at all, and even fewer pay any significant amount of tax.” Id., at 591.
Both types of discrimination can be established even where, as here, there is no evidence of an improper censorial motive. See id., at 579-580, 592 (“Illicit legislative intent is not the sine qua non of a violation of the First Amendment”). This is because selective taxation of the press — either singling out the press as a whole or targeting individual members of the press — poses a particular danger of abuse by the State.
“A power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected. When the State imposes a generally applicable tax, there is little cause for concern. We need not fear that a government will destroy a selected group of taxpayers by burdensome taxation if it must impose the same burden on the rest of its constituency.” Id., at 585.
Addressing only the first type of discrimination, the Commissioner defends the Arkansas sales tax as a generally applicable economic regulation. He acknowledges the numerous statutory exemptions to the sales tax, including those exempting newspapers and religious, trade, professional, and sports magazines. Nonetheless, apparently because the tax is nominally imposed on receipts from sales of all tangible personal property, see §84-1903, he insists that the tax should be upheld.
On the facts of this case, the fundamental question is not whether the tax singles out the press as a whole, but whether it targets a small group within the press. While-we indicated in Minneapolis Star that a genuinely nondiscriminatory tax on the receipts of newspapers would be constitutionally permissible, 460 U. S., at 586, and n. 9, the Arkansas sales tax cannot be characterized as nondiscriminatory, because it is not evenly applied to all magazines. To the contrary, the magazine exemption means that only a few Arkansas magazines pay any sales tax; in that respect, it operates in much the same way as did the $100,000 exemption to the Minnesota use tax. Because the Arkansas sales tax scheme treats some magazines less favorably than others, it suffers from the second type of discrimination identified in Minneapolis Star.
Indeed, this case involves a more disturbing use of selective taxation than Minneapolis Star, because the basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine’s tax status depends entirely on its content. “[AJbove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S., at 95. See also Carey v. Brown, 447 U. S., at 462-463. “Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” Regan v. Time, Inc., 468 U. S. 641, 648-649 (1984).
If articles in Arkansas Times were uniformly devoted to religion or sports, the magazine would be exempt from the sales tax under § 84 — 1904(j). However, because the articles deal with a variety of subjects (sometimes including religion and sports), the Commissioner has determined that the magazine’s sales may be taxed. In order to determine whether a magazine is subject to sales tax, Arkansas’ “enforcement authorities must necessarily examine the content of the message that is conveyed . . . .” FCC v. League of Women Voters of California, 468 U. S. 364, 383 (1984). Such official scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press. See Regan v. Time, Inc., supra, at 648.
Arkansas’ system of selective taxation does not evade the strictures of the First Amendment merely because it does not burden the expression of particular views by specific magazines. We rejected a similar distinction between content and viewpoint restrictions in Consolidated Edison Co. v. Public Service Comm’n of New York, 447 U. S. 530 (1980). As we stated in that case, “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Id., at 537. See FCC v. League of Women Voters of California, supra, at 383-384; Metromedia, Inc. v. San Diego, 453 U. S. 490, 518-519 (1981) (plurality opinion); Carey v. Brown, supra, at 462, n. 6.
Nor are the requirements of the First Amendment avoided by the fact that Arkansas grants an exemption to other members of the media that might publish discussions of the various subjects contained in Arkansas Times. For example, exempting newspapers from the tax, see §84-1904(f), does not change the fact that the State discriminates in determining the tax status of magazines published in Arkansas. “It hardly answers one person’s objection to a restriction on his speech that another person, outside his control, may speak for him.” Regan v. Taxation With Representation of Washington, 461 U. S. 540, 553 (1983) (Blackmun, J., concurring). See also Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 757, n. 15 (1976) (“We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means”).
B
Arkansas faces a heavy burden in attempting to defend its content-based approach to taxation of magazines. In order to justify such differential taxation, the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. See Minneapolis Star, 460 U. S., at 591-592.
The Commissioner has advanced several state interests. First, he asserts the State’s general interest in raising revenue. While we have recognized that this interest is an important one, see id., at 586, it does not explain selective imposition of the sales tax on some magazines and not others, based solely on their content. In Minneapolis Star, this interest was invoked in support of differential treatment of the press in relation to other businesses. Ibid. In that context, we noted that an interest in raising revenue,
“[standing alone, . . . cannot justify the special treatment of the press, for an alternative means of achieving the same interest without raising concerns under the First Amendment is clearly available: the State could raise the revenue by taxing businesses generally, avoiding the censorial threat implicit in a tax that singles out the press.” Ibid, (footnote omitted).
The same is true of a tax that differentiates between members of the press.
The Commissioner also suggests that the exemption of religious, professional, trade, and sports journals was intended to encourage “fledgling” publishers, who have only limited audiences and therefore do not have access to the same volume of advertising revenues as general interest magazines such as Arkansas Times. Brief for Appellee 16. Even assuming that an interest in encouraging fledgling publications might be a compelling one, we do not find the exemption in § 84 — 1904(j) of religious, professional, trade, and sports journals narrowly tailored to achieve that end. To the contrary, the exemption is both overinclusive and underinclusive. The types of magazines enumerated in § 84 — 1904(j) are exempt, regardless of whether they are “fledgling”; even the most lucrative and well-established religious, professional, trade, and sports journals do not pay sales tax. By contrast, struggling general interest magazines and struggling specialty magazines on subjects other than those specified in §84-1904(j) are ineligible for favorable tax treatment.
Finally, the Commissioner asserted for the first time at oral argument a need to “foster communication” in the State. Tr. of Oral Arg. 28, 32. While this state interest might support a blanket exemption of the press from the sales tax, it cannot justify selective taxation of certain publishers. The Arkansas tax scheme only fosters communication on religion, sports, and professional and trade matters. It therefore does not serve its alleged purpose in any significant way.
C
Appellant argues that the Arkansas tax scheme violates the First Amendment because it exempts all newspapers from the tax, but only some magazines. Appellant contends that, under applicable state regulations, see nn. 1 and 2, supra, the critical distinction between newspapers and magazines is not format, but rather content: newspapers are distinguished from magazines because they contain reports of current events and articles of general interest. Just as content-based distinctions between magazines are impermissible under prior decisions of this Court, appellant claims that content-based distinctions between different members of the media are also impermissible, absent a compelling justification.
Because we hold today that the State’s selective application of its sales tax to magazines is unconstitutional and therefore invalid, our ruling eliminates the differential treatment of newspapers and magazines. Accordingly, we need not decide whether a distinction between different types of periodicals presents an additional basis for invalidating the sales tax, as applied to the press.
IV
In the Chancery Court, appellant asserted its First and Fourteenth Amendment claims under 42 U. S. C. § 1983, as well as a corresponding entitlement to attorney’s fees under § 1988. Because this Court has found a constitutional violation, appellant urges us to consider its cause of action under § 1983 and order an award of attorney’s fees. However, the state courts have not yet indicated whether they will exercise jurisdiction over this claim and we therefore remand to give them an opportunity to do so.
The parties recognize that federal and state courts have concurrent jurisdiction over actions brought under § 1983, see, e. g., Martinez v. California, 444 U. S. 277, 283, n. 7 (1980), although the Tax Injunction Act, 28 U. S. C. § 1341, ordinarily precludes federal courts from entertaining challenges to the assessment of state taxes. The parties disagree, however, on whether the state court must exercise jurisdiction in such cases. We leave it to the courts on remand to consider the necessity of entertaining this claim.
V
We stated in Minneapolis Star that “[a] tax that singles out the press, or that targets individual publications within the press, places a heavy burden on the State to justify its action.” 460 U. S., at 592-593. In this case, Arkansas has failed to meet this heavy burden. It has advanced no compelling justification for selective, content-based taxation of certain magazines, and the tax is therefore invalid under the First Amendment. Accordingly, we reverse the judgment of the Arkansas Supreme Court and remand for proceedings not inconsistent with this opinion.
It is so ordered.
The newspaper exemption was added in 1941. 1941 Ark. Gen. Acts 386, § 4, p. 1060. Gross Receipts Tax Regulations of 1981, adopted by the Arkansas Commissioner of Revenue define a newspaper as “a publication in sheet form containing reports of current events and articles of general interest to the public, published regularly in short intervals such as daily, weekly, or bi-weekly, and intended for general circulation.” GR-48(A)(1), reproduced at Record 50.
The magazine exemption was added in 1949. 1949 Ark. Gen. Acts 152, § 2, p. 491. The regulations define a publication as “any pamphlet, magazine, journal, or periodical, other than a newspaper, designed for the information or entertainment of the general public or any segment thereof.” GR-48(A)(5), reproduced at Record 50. The term “regular subscription” is defined as “the purchase by advance payment of a specified number of issues of a publication over a certain period of time, and delivered to the subscriber by mail or otherwise.” GR-48(A)(6), reproduced at Record 50.
Appellant’s First Amendment claims are obviously intertwined with interests arising under the Equal Protection Clause. See Police Dept. of Chicago v. Mosley, 408 U. S. 92, 94-95 (1972). However, since Arkansas’ sales tax system directly implicates freedom of the press, we analyze it primarily in First Amendment terms. See Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585, n. 7 (1983).
Appellant maintains that Arkansas Times is the only Arkansas publication that pays sales tax. App. 13 (Affidavit of Alan Leveritt). The Commissioner contends that there are two periodicals, in addition to Arkansas Times, that pay tax. Tr. of Oral Arg. 22. Whether there are three Arkansas magazines paying tax or only one, the burden of the tax clearly falls on a limited group of publishers.
This challenge was made in the courts below, but it was not addressed by either the Chancery Court or the Arkansas Supreme Court. Since the Chancery Court construed the magazine exemption to cover sales of Arkansas Times, it was not necessary to reach the issue. The Arkansas Supreme Court ruled that the sales tax was a generally applicable regulation and did not examine the impact of the magazine exemption or the newspaper exemption. 287 Ark. 155, 157A, 157B, 698 S. W. 2d 802, 803 (1985).
The Chancery Court construed the magazine exemption to apply to sales of Arkansas Times and therefore did not reach the federal cause of action. The Arkansas Supreme Court reversed the Chancery Court’s construction of the statute and held that there was no First Amendment violation. It found that it was not necessary to consider appellant’s claim for attorney’s fees under § 1988.
Whether state courts must assume jurisdiction over these cases is not entirely clear. See Note, Section 1983 in State Court: A Remedy for Unconstitutional State Taxation, 95 Yale L. J. 414, 420-421 (1985). See also Spencer v. South Carolina Tax Comm’n, 281 S. C. 492, 316 S. E. 2d 386, aff’d by an equally divided Court, 471 U. S. 82 (1984). Of course, an af-firmance by an equally divided Court is not entitled to precedential weight. See Neil v. Biggers, 409 U. S. 188, 192 (1972). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
116
] |
WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, et al. v. SALFI et al.
No. 74-214.
Argued March 19, 1975 —
Decided June 26, 1975
Harriet S. Shapiro argued the cause for appellants. On the brief were Solicitor General Bork, Assistant Attorney General Hills, William L. Patton, and William Ranter.
Don B. Rates, Jr., argued the cause for appellees. With him on the brief were Bruce N. Berwald and John Gant
Briefs of amici curiae urging affirmance were filed by Ralph Santiago Abascal, Philip Goar, and Sanford Jay Rosen for the San Francisco Neighborhood Legal Assistance Foundation, Inc., et ah, and by Christopher H. Clancy and Jonathan A. Weiss for Legal Services for the Elderly Poor.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Appellants, the Department of Health, Education, and Welfare, its Secretary, the Social Security Administration and various of its officials, appeal from a decision of the United States District Court for the Northern District of California invalidating duration-of-relationship Social Security eligibility requirements for surviving wives and stepchildren of deceased wage earners. 373 F. Supp. 961 (1974).
That court concluded that it had jurisdiction of the action by virtue of 28 U. S. C. § 1331, and eventually certified the case as a class action. On the merits, it concluded that the nine-month requirements of §§ 216 (c) (5) and (e) (2) of the Social Security Act, 49 Stat. 620, as added, 64 Stat. 510, and as amended, 42 U. S. C. §§416 (c)(5) and (e)(2) (1970 ed. and Supp. Ill), constituted “irrebuttable presumptions” which were constitutionally invalid under the authority of Cleveland Board of Education v. LaFleur, 414 U. S. 632 (1974); Vlandis v. Kline, 412 U. S. 441 (1973); and Stanley v. Illinois, 405 U. S. 645 (1972). We hold that the District Court did not have jurisdiction of this action under 28 U. S. C. § 1331, and that while it had jurisdiction of the claims of the named appellees under the provisions of 42 U. S. C. § 405 (g), it had no jurisdiction over the claims asserted on behalf of unnamed class members. We further decide that the District Court was wrong on the merits of the constitutional question tendered by the named appellees.
I
Appellee Salfi married the deceased wage earner, Londo L. Salfi, on May 27, 1972. Despite his alleged apparent good health at the time of the marriage, he suffered a heart attack less than'a month later, and died on November 21, 1972, less than six months after the marriage. Appellee Salfi filed applications for mother’s insurance benefits for herself and child’s insurance benefits for her daughter by a previous marriage, appellee Doreen Kalnins. These applications were denied by the Social Security Administration, both initially and on reconsideration at the regional level, solely on the basis of the duration-of-relationship requirements of §§416 (c)(5) and (e)(2), which define “widow” and “child.” The definitions exclude surviving wives and stepchildren who had their respective relationships to a deceased wage earner for less than nine months prior to his death.
The named appellees then filed this action, principally relying on 28 U. S. C. § 1331 for jurisdiction. They sought to represent the class of “all widows and stepchildren of deceased wage earners who are denied widow’s [sic] or children’s insurance benefits because the wage earner died within nine months of his marriage to the applicant or (in case of a stepchild) the applicant’s mother.” App. 8. They alleged at least partial exhaustion of remedies with regard to their personal claims, but made no similar allegations with regard to other class members. They sought declaratory relief against the challenged statute, and injunctive relief restraining appellants from denying mother’s and child’s benefits on the basis of the statute. In addition to attorneys’ fees and costs, they also sought “damages or sums due and owing equivalent to the amount of benefits to which plaintiffs became entitled as of the date of said entitlement.” Id., at 13.
A three-judge District Court heard the case on cross-motions for summary judgment, and granted substantially all of the relief prayed for by appellees. The District Court rendered a declaratory judgment holding the challenged statute to be unconstitutional, certified a class consisting of “all otherwise eligible surviving spouses and stepchildren . . . heretofore disqualified from receipt of . .. benefits by operation” of the duration-of-relationship requirements, enjoined appellants from denying benefits on the basis of those requirements, and ordered them to provide such benefits “from the time of original entitlement.” 373 F. Supp., at 966. We noted probable jurisdiction of the appeal from that judgment. 419 U. S. 992 (1974).
In addition to their basic contention that the duration-of-relationship requirements pass constitutional muster, appellants present several contentions bearing on the scope of the monetary relief awarded by the District Court. They contend that the award is barred by sovereign immunity insofar as it consists of retroactive benefits, that regardless of sovereign immunity invalidation of the duration-of-relationship requirements should be given prospective effect only, and that the District Court did not properly handle certain class-action issues. Because we conclude that the duration-of-relationship requirements are constitutional, we have no occasion to reach the retroactivity and class-action issues. We are confronted, however, by a serious question as to whether the District Court had jurisdiction over this suit.
II
The third sentence of 42 U. S. C. § 405 (h) provides in part:
“No action against the United States, the Secretary, or any officer or employee thereof shall be brought under [§ 1331 et seq.} of Title 28 to recover on any claim arising under [Title II of the Social Security Act].”
On its face, this provision bars district court federal-question jurisdiction over suits, such as this one, which seek to recover Social Security benefits. Yet it was § 1331 jurisdiction which appellees successfully invoked in the District Court. That court considered this provision, but concluded that it was inapplicable because it amounted to no more than a codification of the doctrine of exhaustion of administrative remedies. The District Court's reading of § 405 (h) was, we think, entirely too narrow.
That the third sentence of § 405 (h) is more than a codified requirement of administrative exhaustion is plain from its own language, which is sweeping and direct and which states that no action shall be brought under § 1331, not merely that only those actions shall be brought in which administrative remedies have been exhausted. Moreover, if the third sentence is construed to be nothing more than a requirement of administrative exhaustion, it would be superfluous. This is because the first two sentences of § 405 (h), which appear in the margin, assure that administrative exhaustion will be required. Specifically, they prevent review of decisions of the Secretary save as provided in the Act, which provision is made in § 405 (g). The latter section prescribes typical requirements for review of matters before an administrative agency, including administrative exhaustion. Thus the District Court’s treatment of the third sentence of § 405 (h) not only ignored that sentence’s plain language, but also relegated it to a function which is already performed by other statutory provisions.
A somewhat more substantial argument that the third sentence of § 405 (h) does not deprive the District Court of federal-question jurisdiction relies on the fact that it only affects actions to recover on “any claim arising under [Title II]” of the Social Security Act. The argument is that the present action arises under the Constitution and not under Title II. It would, of course, be fruitless to contend that appellees’ claim is one which does not arise under the Constitution, since their constitutional arguments are critical to their complaint. But it is just as fruitless to argue that this action does not also arise under the Social Security Act. For not only is it Social Security benefits which appellees seek to recover, but it is the Social Security Act which provides both the standing and the substantive basis for the presentation of their constitutional contentions. Appellees sought, and the District Court granted, a judgment directing the Secretary to pay Social Security benefits. To contend that such an action does not arise under the Act whose benefits are sought is to ignore both the language and the substance of the complaint and judgment. This being so, the third sentence of § 405 (h) precludes resort to federal-question jurisdiction for the adjudication of appellees’ constitutional contentions.
It has also been argued that Johnson v. Robison, 415 U. S. 361 (1974), supports the proposition that appellees are not seeking to recover on a claim arising under Title II. In that case we considered 38 U. S. C. § 211 (a), which provides:
“[T]he decisions of the [Veterans’] Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans . . . shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.”
We were required to resolve whether this language precluded an attack on the constitutionality of a statutory limitation. We concluded that it did not, basically because such a limitation was not a “decision” of the Administrator “on any question of law or fact”; indeed, the “decision” had been made by Congress, not the Administrator, and the issue was one which the Administrator considered to be beyond his jurisdiction. 415 U. S., at 367-368. Thus the question sought to be litigated was simply not within §211 (a)’s express language, and there was accordingly no basis for concluding that Congress sought to preclude review of the constitutionality of veterans’ legislation.
The language of § 405 (h) is quite different. Its reach is not limited to decisions of the Secretary on issues of law or fact. Rather, it extends to any “action” seeking “to recover on any [Social Security] claim” — irrespective of whether resort to judicial processes is necessitated by discretionary decisions of the Secretary or by his non-discretionary application of allegedly unconstitutional statutory restrictions.
There is another reason why Johnson v. Robison is in-apposite. It was expressly based, at least in part, on the fact that if §211 (a) reached constitutional challenges to statutory limitations, then absolutely no judicial consideration of the issue would be available. Not only would such a restriction have been extraordinary, such that “clear and convincing” evidence would be required before we would ascribe such intent to Congress, 415 U. S., at 373, but it would have raised a serious constitutional question of the validity of the statute as so construed. Id., at 366-367. In the present case, as will be discussed below, the Social Security Act itself provides jurisdiction for constitutional challenges to its provisions. Thus the plain words of the third sentence of § 405 (h) do not preclude constitutional challenges. They simply require that they be brought under jurisdictional grants contained in the Act, and thus in conformity with the same standards which are applicable to nonconstitutional claims arising under the Act. The result is not only of unquestionable constitutionality, but it is also manifestly reasonable, since it assures the Secretary the opportunity prior to constitutional litigation to ascertain, for example, that the particular claims involved are neither invalid for other reasons nor allowable under other provisions of the Social Security Act.
As has been stated, the Social Security Act itself provides for district court review of the Secretary’s determinations. Title 42 U. S. C. § 405 (g) provides that “[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision ....” See n. 5, supra. The question with which we must now deal is whether this provision could serve as a jurisdictional basis for the District Court’s consideration of the present case. We conclude that it provided jurisdiction only as to the named appellees and not as to the unnamed members of the class.
Section 405 (g) specifies the following requirements for judicial review: (1) a final decision of the Secretary made after a hearing; (2) commencement of a civil action within 60 days after the mailing of notice of such decision (or within such further time as the Secretary may allow); and (3) filing of the action in an appropriate district court, in general that of the plaintiff’s residence or principal place of business. The second and third of these requirements specify, respectively, a statute of limitations and appropriate venue. As such, they are waivable by the parties, and not having been timely raised below, see Fed. Rules Civ. Proc. 8 (c), 12 (h)(1), need not be considered here. We interpret the first requirement, however, to be central to the requisite grant of subject-matter jurisdiction — the statute empowers district courts to review a particular type of decision by the Secretary, that type being those which are “final” and “made after a hearing.”
In the present case, the complaint seeks review of the denial of benefits based on the plain wording of a statute which is alleged to be unconstitutional. That a denial on such grounds, which are beyond the power of the Secretary to affect, is nonetheless a decision of the Secretary for these purposes has been heretofore established. Flemming v. Nestor, 363 U. S. 603 (1960). As to class members, however, the complaint is deficient in that it contains no allegations that they have even filed an application with the Secretary, much less that he has rendered any decision, final or otherwise, review of which is sought. The class thus cannot satisfy the requirements for jurisdiction under 42 U. S. C. § 405 (g). Other sources of jurisdiction being foreclosed by § 405 (h), the District Court was without jurisdiction over so much of the complaint as concerns the class, and it should have entered an appropriate order of dismissal.
The jurisdictional issue with respect to the named appellees is somewhat more difficult. In a paragraph entitled “Exhaustion of Remedies,” the complaint alleges that they fully presented their claims for benefits “to their district Social Security Office and, upon denial, to the Regional Office for reconsideration.” It further alleges that they have no dispute with the Regional Office’s findings of fact or applications of statutory law, and that the only issue is a matter of constitutional law which is beyond the Secretary’s competence. On their face these allegations with regard to exhaustion fall short of meeting the literal requirement of § 405 (g) that there shall have been a “final decision of the Secretary made after a hearing.” They also fall short of satisfying the Secretary’s regulations, which specify that the finality required for judicial review is achieved only after the further steps of a hearing before an administrative law judge and, possibly, consideration by the Appeals Council. See 20 CFR §§ 404.916, 404.940,404.951 (1974).
We have previously recognized that the doctrine of administrative exhaustion should be applied with a regard for the particular administrative scheme at issue. Parisi v. Davidson, 405 U. S. 34 (1972); McKart v. United States, 395 U. S. 185 (1969). Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review. See, e. g., id., at 193-194. Plainly these purposes have been served once the Secretary has satisfied himself that the only issue is the constitutionality of a statutory requirement, a matter which is beyond his jurisdiction to determine, and that the claim is neither otherwise invalid nor cognizable under a different section of the Act. Once a benefit applicant has presented his or her claim at a sufficiently high level of review to satisfy the Secretary’s administrative needs, further exhaustion would not merely be futile for the applicant, but would also be a commitment of administrative resources unsupported by any administrative or judicial interest.
The present case, of course, is significantly different from McKart in that a “final decision” is a statutorily specified jurisdictional prerequisite. The requirement is, therefore, as we have previously noted, something more than simply a codification of the judicially developed doctrine of exhaustion, and may not be dispensed with merely by a judicial conclusion of futility such as that made by the District Court here. But it is equally true that the requirement of a “final decision” contained in § 405 (g) is not precisely analogous to the more classical jurisdictional requirements contained in such sections of Title 28 as 1331 and 1332. The term “final decision” is not only left undefined by the Act, but its meaning is left to the Secretary to flesh out by regulation. Section 405 (l) accords the Secretary complete authority to delegate his statutory duties to officers and employees of the Department of Health, Education, and Welfare. The statutory scheme is thus one in which the Secretary may specify such requirements for exhaustion as he deems serve his own interests in effective and efficient administration. While a court may not substitute its conclusion as to futility for the contrary conclusion of the Secretary, we believe it would be inconsistent with the congressional scheme to bar the Secretary from determining in particular cases that full exhaustion of internal review procedures is not necessary for a decision to be “final” within the language of § 405 (g).
Much the same may be said about the statutory requirement that the Secretary’s decision be made “after a hearing.” Not only would a hearing be futile and wasteful, once the Secretary has determined that the only issue to be resolved is a matter of constitutional law concededly beyond his competence to decide, but the Secretary may, of course, award benefits without requiring a hearing. We do not understand the statute to prevent him from similarly determining in favor of the applicant, without a hearing, all issues with regard to eligibility save for one as to which he considers a hearing to be useless.
In the present case the Secretary does not raise any challenge to the sufficiency of the allegations of exhaustion in appellees’ complaint. We interpret this to be a determination by him that for the purposes of this litigation the reconsideration determination is “final.” The named appellees thus satisfy the requirements for § 405 (g) judicial review, and we proceed to the merits of their claim.
Ill
The District Court relied on congressional history for the proposition that the duration-of-relationship requirement was intended to prevent the use of sham marriages to secure Social Security payments. As such, concluded the court, “the requirement constitutes a presumption that marriages like Mrs. Salfi’s, which did not precede the wage earner’s death by at least nine months, were entered into for the purpose of securing Social Security benefits.” 373 F. Supp., at 965. The presumption was, moreover, conclusive, because applicants were not afforded an opportunity to disprove the presence of the illicit purpose. The court held that under our decisions in Cleveland Board of Education v. LaFleur, 414 U. S. 632 (1974); Vlandis v. Kline, 412 U. S. 441 (1973); and Stanley v. Illinois, 405 U. S. 645 (1972), the requirement was unconstitutional, because it presumed a fact which was not necessarily or universally true.
Our ultimate conclusion is that the District Court was wrong in holding the duration-of-relationship requirement unconstitutional. Because we are aware that our various holdings in related cases do not all sound precisely the same note, we will explain ourselves at some length.
The standard for testing the validity of Congress’ Social Security classification was clearly stated in Flemming v. Nestor, 363 U. S., at 611:
“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.”
In Richardson v. Belcher, 404 U. S. 78 (1971), a portion of the Social Security Act which required an otherwise entitled disability claimant to be subjected to an “offset” by reason of his simultaneous receipt of state workmen’s compensation benefits was attacked as being violative of the Due Process Clause of the Fifth Amendment. The claimant in that case asserted that the provision was arbitrary in that it required offsetting of a state workmen’s compensation payment, but not of a similar payment made by a private disability insurer. The Court said:
“If the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment.” 404 U. S., at 84.
Two Terms earlier the Court had decided the case of Dandridge v. Williams, 397 U. S. 471 (1970), in which it rejected a claim that Maryland welfare legislation violated the Equal Protection Clause of the Fourteenth Amendment. The Court had said:
“In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 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, 69-70. . . .
“To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. ... It is a standard that has consistently been applied to state legislation restricting the availability of employment opportunities. Goesaert v. Cleary, 335 U. S. 464; Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552. See also Flemming v. Nestor, 363 U. S. 603. And it is a standard that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” Id., at 485-486.
The relation between the equal protection analysis of Dandridge and the Fifth Amendment due process analysis of Flemming v. Nestor and Richardson v. Belcher was described in the latter case in this language:
“A statutory classification in the area of social welfare is consistent with the Equal Protection Clause of the Fourteenth Amendment if it is 'rationally based and free from invidious discrimination.’ Dandridge v. Williams, 397 U. S. 471, 487. While the present case, involving as it does a federal statute, does not directly implicate the Fourteenth Amendment’s Equal Protection Clause, a classification that meets the test articulated in Dandridge is perforce consistent with the due process requirement of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U. S. 497, 499.” 404 U. S., at 81.
These cases quite plainly lay down the governing principle for disposing of constitutional challenges to classifications in this type of social welfare legislation. The District Court, however, chose to rely on Cleveland Board of Education v. LaFleur, supra; Vlandis v. Kline, supra; and Stanley v. Illinois, supra. It characterized this recent group of cases as dealing with “the appropriateness of conclusive evidentiary presumptions.” 373 F. Supp., at 965.
Stanley v. Illinois held that it was a denial of the equal protection guaranteed by the Fourteenth Amendment for a State to deny a hearing on parental fitness to an unwed father when such a hearing was granted to all other parents whose custody of their children was challenged. This Court referred to the fact that the “rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska, 262 U. S. 390, 399 (1923), ‘basic civil rights of man,’ Skinner v. Oklahoma, 316 U. S. 535, 541 (1942), and ‘[r]ights far more precious . . . than property rights,’ May v. Anderson, 345 U. S. 528, 533 (1953).” 405 U. S., at 651.
In Vlandis v. Kline, a statutory definition of “residents” for purposes of fixing tuition to be paid by students in a state university system was held invalid. The Court held that where Connecticut purported to be concerned with residency, it might not at the same time deny to one seeking to meet its test of residency the opportunity to show factors clearly bearing on that issue. 412 U. S., at 452.
In LaFleur the Court held invalid, on the authority of Stanley and Vlandis, school board regulations requiring pregnant school teachers to take unpaid maternity leave commencing four to five months before the expected birth. The Court stated its longstanding recognition “that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment,” 414 U. S., at 639-640, and that “overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms.” Id., at 640.
We hold that these cases are not controlling on the issue before us now. Unlike the claims involved in Stanley and LaFleur, a noncontractual claim to receive funds from the public treasury enjoys no constitutionally protected status, Dandridge v. Williams, supra, though of course Congress may not invidiously discriminate among such claimants on the basis of a “bare congressional desire to harm a politically unpopular group,” U. S. Dept. of Agriculture v. Moreno, 413 U. S. 528, 534 (1973), or on the basis of criteria which bear no rational relation to a legitimate legislative goal. Jimenez v. Weinberger, 417 U. S. 628, 636 (1974); U. S. Dept. of Agriculture v. Murry, 413 U. S. 508, 513-514 (1973). Unlike the statutory scheme in Vlandis, 412 U. S., at 449, the Social Security Act does not purport to speak in terms of the bona fides of the parties to a marriage, but then make plainly relevant evidence of such bona fides inadmissible. As in Starns v. Malkerson, 326 F. Supp. 234 (Minn. 1970), summarily aff’d, 401 U. S. 985 (1971), the benefits here are available upon compliance with an objective criterion, one which the Legislature considered to bear a sufficiently close nexus with underlying policy objectives to be used as the test for eligibility. Like the plaintiffs in Starns, appellees are completely free to present evidence that they meet the specified requirements ; failing in this effort, their only constitutional claim is that the test they cannot meet is not so rationally related to a legitimate legislative objective that it can be used to deprive them of benefits available to those who do satisfy that test.
We think that the District Court’s extension of the holdings of Stanley, Vlandis, and LaFleur to the eligibility requirement in issue here would turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution. For example, the very section of Title 42 which authorizes an action such as this, §405 (g), requires that a claim be filed within 60 days after administrative remedies are exhausted. It is indisputable that this requirement places people who file their claims more than 60 days after exhaustion in a different “class” from people who file their claims within the time limit. If we were to follow the District Court’s analysis, we would first try to ascertain the congressional “purpose” behind the provision, and probably would conclude that it was to prevent stale claims from being asserted in court. We would then turn to the questions of whether such a flat cutoff provision was necessary to protect the Secretary from stale claims, whether it would be possible to make individualized determinations as to any prejudice suffered by the Secretary as the result of an untimely filing, and whether or not an individualized hearing on that issue should be required in each case. This would represent a degree of judicial involvement in the legislative function which we have eschewed except in the most unusual circumstances, and which is quite unlike the judicial role mandated by Dandridge, Belcher, and Nestor, as well as by a host of cases arising from legislative efforts to regulate private business enterprises.
In Williamson v. Lee Optical Co., 348 U. S. 483 (1955), the Court dealt with a claim that the Equal Protection Clause of the Fourteenth Amendment was violated by an Oklahoma statute which subjected opticians to a system of detailed regulation, but which exempted sellers of ready-to-wear glasses. In sustaining the statute the Court said:
“The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think.” Id., at 489.
More recently, in Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973), the Court sustained the constitutionality of a regulation promulgated under the Truth in Lending Act which made the Act’s disclosure provisions applicable whenever credit is offered to a consumer “ 'for which either a finance charge is or may be imposed or which pursuant to an agreement, is or may be payable in more than four installments.’ ” Id., at 362. The regulation was challenged because it was said to conclusively presume that payments made under an agreement providing for more than four instalments necessarily included a finance charge, when in fact that might not be the case. The Court rejected the constitutional challenge in this language:
“The rule was intended as a prophylactic measure; it does not presume that all creditors who are within its ambit assess finance charges, but, rather, imposes a disclosure requirement on all members of a defined class in order to discourage evasion by a substantial portion of that class.” Id., at 377.
If the Fifth and Fourteenth Amendments permit this latitude to legislative decisions regulating the private sector of the economy, they surely allow no less latitude in prescribing the conditions upon which funds shall be dispensed from the public treasury. Dandridge v. Williams, supra. With these principles in mind, we turn to consider the statutory provisions which the District Court held invalid.
Title 42 U. S. C. § 402 (1970 ed. and Supp. Ill) is the basic congressional enactment defining eligibility for old-age and survivors insurance benefit payments, and is divided into 23 lettered subsections. Subsection (g) is entitled “Mother’s insurance benefits,” and primarily governs the claim of appellee Salfi. Subsection (d) governs eligibility for child’s insurance benefits, and is the provision under which appellee Kalnins makes her claim. These subsections, along with others in § 402, specify the types of social risks for which protection is provided by what is basically a statutory insurance policy.
A different insurance system, but similarly defined by statute and operated by a governmental entity, was the subject of our consideration in Geduldig v. Aiello, 417 U. S. 484 (1974), and our disposition of that case is instructive. We reversed the judgment of a District Court which had held that a California state disability insurance program was invalid insofar as it failed to provide benefits for disabilities associated with normal pregnancy. In our opinion we said:
“The District Court suggested that moderate alterations in what it regarded as 'variables’ of the disability insurance program could be made to accommodate the substantial expense required to include normal pregnancy within the program’s protection. The same can be said, however, with respect to the other expensive class of disabilities that are excluded from coverage — short-term disabilities. If the Equal Protection Clause were thought to compel disability payments for normal pregnancy, it is hard to perceive why it would not also compel payments for short-term disabilities suffered by participating employees.
“It is evident that a totally comprehensive program would be substantially more costly than the present program and would inevitably require state subsidy, a higher rate of employee contribution, a lower scale of benefits for those suffering insured disabilities, or some combination of these measures. There is nothing in the Constitution, however, that requires the State to subordinate or compromise its legitimate interests solely to create a more comprehensive social insurance program than it already has.” Id., at 495-496.
The present case is somewhat different, since the Secretary principally defends the duration-of-relationship requirement, not as a reasonable legislative decision to exclude a particular type of risk from coverage, but instead as a method of assuring that payments are made only upon the occurrence of events the risk of which is covered by the insurance program. Commercial insurance policies have traditionally relied upon fixed, prophylactic rules to protect against abuses which could expand liability beyond the risks which are within the general concept of its coverage. For example, life insurance policies often cover deaths by suicide, but not those suicides which were contemplated when the policy was purchased. Frequently the method chosen to contain liability within these conceptual bounds is a strict rule that deaths by suicide are covered if, and only if, they occur some fixed period of time after the policy is issued. See, e. g., 9 G. Couch, Cyclopedia of Insurance Law § 40.50 (2d ed. 1962). While such a limitation doubtless proves in particular cases to be “under-inclusive” or “over-inclusive,” in light of its presumed purpose, it is nonetheless a widely accepted response to legitimate interests in administrative economy and certainty of coverage for those who meet its terms. When the Government chooses to follow this tradition in its own social insurance programs, it does not come up against a constitutional stone wall. Rather, it may rely on such rules so long as they comport with the standards of legislative reasonableness enunciated in cases like Dandridge v. Williams and Richardson v. Belcher.
Under those standards, the question raised is not whether a statutory provision precisely filters out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute. Such a rule would ban all prophylactic provisions, and would be directly contrary to our holding in Mourning, supra. Nor is the question whether the provision filters out a substantial part of the class which caused congressional concern, or whether it filters out more members of the class than nonmembers. The question is whether Congress, its concern having been reasonably aroused by the possibility of an abuse which it legitimately desired to avoid, could rationally have concluded both that a particular limitation or qualification would protect against its occurrence, and that the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule. We conclude that the duration-of-relationship test meets this constitutional standard.
The danger of persons entering a marriage relationship not to enjoy its traditional benefits, but instead to enable one spouse to claim benefits upon the anticipated early death of the wage earner, has been recognized from the very beginning of the Social Security program. While no early legislative history addresses itself specifically to the duration-of-relationship requirement for mother’s and child’s benefits, there were discussions of the analogous requirement for receipt of wife’s benefits under § 402 (b). See 42 U. S. C. § 416 (b) (1970 ed., Supp. IV), defining “wife.” Dr. A. J. Altmeyer, Chairman of the Social Security Board, noted that a five-year requirement “should be strict enough to prevent marriage in anticipation of the larger benefit payments.” Hearings on Social Security before the House Committee on Ways and Means, 76th Cong., 1st Sess., vol. 3, p. 2297 (1939). Similarly, the Advisory Council on Social Security stated :
“The requirement that the wives’ allowance be payable only where marital status existed prior to the husband’s attainment of age 60 is intended to serve as protection against abuse of the plan through the contracting of marriages solely for the purpose of acquiring enhanced benefits. If the marriage takes place at least 5 years before any old-age benefits can be paid, a reasonable assumption exists that it was contracted in good faith.” Id., vol. 1, p. 31.
The Advisory Council also stated, with regard to § 402 (e) widow’s benefits which, like mother’s benefits, depend on the § 416 (c) definition of “widow”:
“As in the case of wives’ allowances, it is believed desirable to protect the provisions for widows’ benefits against abuse by the requirement of a minimum period of marital status.” Id., at 32.
Similar concerns were reflected in the House and Senate Reports on the 1946 amendment which reduced to three years the required duration of a marriage for the purposes of an eligible “wife.” It was stated:
“The original provision was intended to prevent exploitation of the fund by claims for benefits from persons who married beneficiaries solely to get wife’s benefits. Experience has shown that the requirement is unnecessarily restrictive for this purpose and that, in a number of cases, a wife is permanently barred from benefits even though the marriage was entered into many years before the wage earner became a beneficiary. The amendment, taken with the provision in section 202 (b) that the wife be living with her husband in order to be eligible for benefits, should be sufficient protection for the trust fund and will remedy situations which now seem inequitable. New persons are likely to marry because of the prospect of receiving a modest insurance benefit which will not be payable until after 3 years.” H. R. Rep. No. 2526, 79th Cong., 2d Sess., 25; S. Rep. No. 1862, 79th Cong., 2d Sess., 33.
Later amendments to the Act have been accompanied by discussions of the duration-of-relationship requirements contained in the definitions of “widow” and “child.” Like the early history of analogous requirements, they reflect congressional concern with the possibility of relationships entered for the purpose of obtaining benefits. In 1967, when the durational period was reduced from one year to nine months, the House Report stated:
“Your committee's bill would reduce the duration-of-relationship requirements for widows, widowers, and stepchildren of deceased workers from 1 year to 9 months. The present law contains a 1-year duration-of-relationship requirement which was adopted as a safeguard against the payment of benefits where a relationship was entered into in order to secure benefit rights. While the present requirements have generally worked out satisfactorily, situations have been called to the committee's attention in which benefits were not payable because the required relationship had existed for somewhat less than 1 year. Although some duration-of-relationship requirement is appropriate, a less stringent requirement would be adequate.” H. R. Rep. No. 544, 90th Cong., 1st Sess., 56.
When in 1972 Congress added the provisions of 42 U. S. C. § 416 (k) (2) (1970 ed., Supp. Ill) (eliminating the nine-month requirement with respect to remarriages of persons who had previously been married for more than nine months), the House Report observed: “This duration-of-relationship requirement is included in the law as a general precaution against the payment of benefits where the marriage was undertaken to secure benefit rights." H. R. Rep. No. 92-231, p. 55 (1971).
Undoubtedly the concerns reflected in this congressional material are legitimate, involving as they do the integrity of both the Social Security Trust Fund and the marriage relationship. It is also undoubtedly true that the duration-of-relationship requirement operates to lessen the likelihood of abuse through sham relationships entered in contemplation of imminent death. We also think that Congress could rationally have concluded that any imprecision from which it might suffer was justified by its ease and certainty of operation.
We note initially that the requirement is effective only within a somewhat narrow range of situations lacking certain characteristics which might reasonably be thought to establish the genuineness of a marital relationship which involves children (and thus the potential for mother’s and child’s benefits). Even though a surviving wife has not been married for a period of nine months immediately prior to her husband’s death, she is nonetheless within the definition of “widow” if she meets one of the other disjunctive requirements of §416 (c). If she is the mother of her late husband’s son or daughter; if she legally adopted his son or daughter while she was married to him and while such son or daughter was under the age of 18; if he legally adopted her son or daughter under the same circumstances; or if during their marriage, however short, they legally adopted a child under the age of 18 — in any of these circumstances the surviving wife may claim widow’s or mother’s benefits even though she has not been married to her husband for a full nine months. The common denominator of these disjunctive requirements appears to us to be the assumption of responsibilities normally associated with marriage, and we think that Congress has treated them as alternative indicia of the fact that the marriage was entered into for a reason other than the desire to shortly acquire benefits. The marriages in which the widow must depend on qualifying under the nine-month requirement are those in which none of these other objective evidences of the assumption of marital responsibilities are present.
Even so, § 416 (c)(5) undoubtedly excludes some surviving wives who married with no anticipation of shortly becoming widows, and it may be that appellee Salfi is among them. It likewise may be true that the requirement does not filter out every such claimant, if a wage earner lingers longer than anticipated, or in the case of illnesses which can be recognized as terminal more than nine months prior to death. But neither of these facts necessarily renders the statutory scheme unconstitutional.
While it is possible to debate the wisdom of excluding legitimate claimants in order to discourage sham' relationships, and of relying on a rule which may not exclude some obviously sham arrangements, we think it clear that Congress could rationally choose to adopt such a course. Large numbers of people are eligible for these programs and are potentially subject to inquiry as to the validity of their relationships to wage earners. These people include not only the classes which appellees represent, but also claimants in other programs for which the Social Security Act imposes duration-of-relationship requirements. Not only does the prophylactic approach thus obviate the necessity for large numbers of individualized determinations, but it also protects large numbers of claimants who satisfy the rule from the uncertainties and delays of administrative inquiry into the circumstances of their marriages. Nor is it at all clear that individual determinations could effectively filter out sham arrangements, since neither marital intent, life expectancy, nor knowledge of terminal illness has been shown by appellees to be reliably determinable. Finally, the very possibility of prevailing at a hearing could reasonably be expected to encourage sham relationships.
The administrative difficulties of individual eligibility determinations are without doubt matters which Congress may consider when determining whether to rely on rules which sweep more broadly than the evils with which they seek to deal. In this sense, the duration-of-relationship requirement represents not merely a substantive policy determination that benefits should be awarded only on the basis of genuine marital relationships, but also a substantive policy determination that limited resources would not be well spent in making individual determinations. It is an expression of Congress’ policy choice that the Social Security system, and its millions of beneficiaries, would be best served by a prophylactic rule which bars claims arising from the bulk of sham marriages which are actually entered, which discourages such marriages from ever taking place, and which is also objective and easily administered.
The Constitution does not preclude such policy choices as a price for conducting programs for the distribution of social insurance benefits. Cf. Geduldig v. Aiello, 417 U. S., at 496. Unlike criminal prosecutions, or the custody proceedings at issue in Stanley v. Illinois, such programs do not involve affirmative Government action which seriously curtails important liberties cognizable under the Constitution. There is thus no basis for our requiring individualized determinations when Congress can rationally conclude not only that generalized rules are appropriate to its purposes and concerns, but also that the difficulties of individual determinations outweigh the marginal increments in the precise effectuation of congressional concern which they might be expected to produce.
The judgment of the District Court is
Reversed.
Title 42 U. S. C. § 402 (g) (1) (1970 ed. and Supp. Ill) provides for benefits for the “widow” of an insured wage earner, regardless of her age, if she has in her care a “child” of such wage earner who is entitled to child’s insurance benefits. Title 42 TJ. S. C. § 402 (d) (1970 ed. and Supp. Ill) provides for benefits for the “child” of a deceased insured wage earner who was dependent upon him at his death.
Title 42 U. S. C. § 416 (c) (1970 ed., Supp. IV) provides in full:
“(c) The term ‘widow’ (except when used in section 402 (i) of this title) means the surviving wife of an individual, but only if (1) she is the mother of his son or daughter, (2) she legally adopted his son or daughter while she was married to him and while such son or daughter was under the age of eighteen, (3) he legally adopted her son or daughter while she was married to him and while such son or daughter was under the age of eighteen, (4) she was married to him at the time both of them legally adopted a child under the age of eighteen, (5) she was married to him for a period of not less than nine months immediately prior to the day on which he died, or (6) in the month prior to the month of her marriage to him (A) she was entitled to, or on application therefor and attainment of age 62 in such prior month would have been entitled to, benefits under subsection (b), (e), or (h) of section 402 of this title, (B) she had attained age eighteen and was entitled to, or on application therefor would have been entitled to, benefits under subsection (d) of such section (subject, however, to section 402 (s) of this title), or (C) she was entitled to, or upon application therefor and attainment of the required age (if any) would have been entitled to, a widow’s, child’s (after attainment of age 18), or parent’s insurance annuity under section 231a of Title 45.”
It is undisputed that appellee Salfi cannot qualify as a “widow” by satisfying condition (1), (2), (3), (4), or (6).
Title 42 U. S. C. § 416 (e) (1970 ed., Supp. Ill) provides in part: “(e) Child.
“The term ‘child’ means (1) the child or legally adopted child of an individual, (2) a stepchild who has been such stepchild for not less than one year immediately preceding the day on which application for child's insurance benefits is filed or (if the insured individual is deceased) not less than nine months immediately preceding the day on which such individual died . . ..”
Prior to 1967, the required duration of relationship was a full year. The reduction to nine months was accomplished in Pub. L. 90-248, §§ 156 (a) and (b), 81 Stat. 866.
The literal wording of this section bars actions under 28 U. S. C. §41. At the time § 405 (h) was enacted, and prior to the 1948 recodification of Title 28, § 41 contained all of that title’s grants of jurisdiction to United States district courts, save for several special-purpose jurisdictional grants of no relevance to the constitutionality of Social Security statutes.
Title 42 U. S. C. §405 (h) provides in full:
“Finality of Secretary’s decision.
“The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 of Title 28 to recover on any claim arising under this subchapter.”
Title 42 U. S. C. §405 (g) provides:
“Judicial review.
“Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations. The court shall, on motion of the Secretary made before he files his answer, remand the case to the Secretary for further action by the Secretary, and may, at any time, on good cause shown, order additional evidence to be taken before the Secretary, and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or its decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the' extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions. Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Secretary or any vacancy in such office.”
Nor can it be argued that the third sentence of § 405 (h) simply serves to prevent a bypass of- the § 405 (g) requirements by filing a district court complaint alleging entitlement prior to applying for benefits through administrative channels. The entitlement sections of the Act specify the filing of an application as a prerequisite to entitlement, so a court could not in any event award benefits absent an application. See 42 IJ. S. C. §§ 402 (a)-(h) (1970 ed. and Supp. III). See also §402 (j)(l). Once the application is filed, it is either approved, in which event any suit for benefits would be mooted, or it is denied. Even if the denial is nonfinal, it is still a “decision of the Secretary” which, by virtue of the second sentence of §405 (h), may not be reviewed save pursuant to §405 (g).
Our Brother Brennan relies heavily, post, at 790-792, on a passage from a Senate document entitled “Monograph of the Attorney General’s Committee on Administrative Procedure.” S. Doc. No. 10, 77th Cong., 1st Sess., pt. 3, p. 39 (1941). The basic monograph itself is described as “embodying the results of the investigations made by the staff of said committee relative to the [administrative] practices and procedures of” several agencies of the Government. Id., at II. Following the text of the monograph is the “Appendix,” which in turn is described in a “Foreword” as follows: “This statement, developed from a report by the Bureau of Old-Age and Survivors Insurance maldng certain recommendations for the Board’s consideration, describes the essential features of a hearing and review system which has been authorized by the Board and which is designed to meet both the statutory requirements and the social purposes of the old-age and survivors insurance program. It has been developed during several months under the leadership of Ralph F. Fuchs, professor of law, Washington University, St. Louis, Mo., a consultant of this Bureau, by whom the Bureau’s report, in the main, was written.” Id., at 34. After the “Foreword” follows a three-part report in somewhat smaller type, the second of which parts is entitled “Considerations Affecting the Hearing and Review System.” Within this second part, appears the language which Mr. Justice Brennan’s dissent characterizes as “the reading which the Social Security Board itself gave to the provision soon after it went into effect.” Post, at 790.
We have some doubts that the report of a consultant can be properly characterized as incorporating the “reading which the Social Security Board itself gave” to this provision. Even if the report as a whole is stated to have been “approved” by the Board, there is no indication that such approval extends beyond the report’s broad-brush conceptualization of “the essential features of a hearing and review system.” In any event, we do not agree that an administrative agency’s general discussion of a statute, occurring after its passage, and in a context which does not require it to focus closely on the operative impact of a particular provision, is either an important indicator of congressional intent, as the dissent suggests, post, at 792, or an authoritative source for the proposition that a provision serves a particular function. Finally, even if the report is an accurate reading of the Act, its significance goes only to whether the third sentence of § 405 (h) serves a function in addition to that which we believe it serves; the possibility that the District Court’s interpretation renders the third sentence only largely superfluous rather than totally so is not sufficient to disturb our analysis of the role of that sentence in this case.
Title II contains the old-age, survivors, and disability insurance programs codified at 42 U. S. C. § 401 et seq.
Since § 405 (g) is the basis for district court jurisdiction, there is some question as to whether it had authority to enjoin the operation of the duration-of-relationship requirements. Section 405 (g) accords authority to affirm, modify, or reverse a decision of the Secretary. It contains no suggestion that a reviewing court is empowered to enter an injunctive decree whose operation reaches beyond the particular applicants before the court. In view of our dispositions of the class-action and constitutional issues in this case, the only significance of this problem goes to our own jurisdiction. If a § 405 (g) court is not empowered to enjoin the operation of a federal statute, then a three-judge District Court was not required to hear this case, 28 U. S. C. § 2282, and we are without jurisdiction under 28 U. S. C. § 1253. However, whether or not the three-judge court was properly convened, that court did hold a federal statute unconstitutional in a civil action to which a federal agency and officers are parties. We thus have direct appellate jurisdiction under 28 II. S. C. § 1252. McLucas v. DeChamplain, 421 U. S. 21, 31-32 (1975).
Title 42 U. S. C. §405 (a):
“The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.”
Section 405 (g) jurisdiction in Weinberger v. Wiesenfeld, 420 U. S. 636 (1975), was similarly present. In that case the Secretary stipulated that exhaustion would have been futile, and he did not make any contentions that Wiesenfeld had not complied with the requirements of § 405 (g). Id., at 641 n. 8.
The Secretary also briefly argues that the duration-of-relationship requirement rationally serves the interest in providing benefits only for persons who are likely to have become dependent upon the wage earner. Brief for Appellants 11-12. In view of our conclusion with regard to his principal argument, we need not consider this justification.
Similarly, the natural or adopted child of a deceased wage earner need not meet the nine-month requirement. See 42 U. S. C. §416 (e)(1) (1970 ed., Supp. III).
According to the Social Security Administration, in calendar 1973 there were 125,000 applicants for mother’s benefits, 1,313,000 for child’s benefits, and 403,000 for widow’s/widower’s benefits. While these figures include large numbers of persons who qualify on bases other than the duration of their relationship with a wage earner, they also doubtlessly exclude persons who did not even apply because of the durational restriction, or who were thereby dissuaded from entering the relationship. A feel for the magnitude of the potential for case-by-case determinations can also be developed by reference to the Social Security Administration’s estimate that judgment for the class which the named appellees sought to represent would involve payments of $30 million, assuming retroactivity to 1967. This figure does not reflect payments in behalf of persons who met the objective nine-month requirement, or who could not meet it and therefore either never applied or never entered the relationship.
See 42 U. S. C. §§416 (b), (f), and (g), defining “wife,” “husband,” and “widower.” These various definitions impose duration-of-relationship requirements with regard to “wife’s” benefits, 42 TJ. S. C. § 402 (b) (1970 ed. and Supp. Ill), “husband’s” benefits, 42 TJ. S. C. §402 (c), and “widower’s” benefits, 42 TJ. S. C. §402 (f) (1970 ed. and Supp. Ill). In addition, “widow’s” benefits, 42 TJ. S. C. § 402 (e) (1970 ed. and Supp. Ill), are available only to those women who satisfy §416(c)’s definition of “widow.” “Parent’s” benefits, 42 TJ. S. C. §402 (h), are also subject to an objective eligibility requirement which is similar to a duration-of-relationship requirement. Under §402 (h)(3), stepparents and adoptive parents may receive benefits with respect to a deceased child who was providing at least half of their support, but only if the marriage or adoption creating their relationship occurred prior to the child's 16th birthday.
Appellees do not contend that marital intent or life expectancy can be reliably determined. They argue, however, that because a marriage could not be entered in contemplation of imminent death unless the wage earner’s “terminal illness” was known, the inquiry need go no farther than the issue of whether the parties to the marriage knew of such an illness. They claim that applicants could demonstrate the state of their knowledge by physicians’ affidavits or documentary medical evidence. These contentions are not, however, supported by any factual rebuttals of the variety of difficulties which Congress was entitled to expect to be encountered. See McGowan v. Maryland, 366 U. S. 420, 426 (1961).
For example, all evidence of “knowledge of terminal illness” would ordinarily be under the control of applicants, which suggests that they should bear the burden of proof. But this burden could be convincingly carried only with respect to wage earners who happened to have had physical examinations shortly before their weddings; on the other hand, awarding benefits where the wage earner had not had an examination, and no medical evidence was available, would encourage participants in sham arrangements to conceal their own adverse medical evidence. Even when adequate medical evidence was available there could easily be difficulties in determining whether a wage earner’s physical condition amounted to a “terminal illness”; if that concept were restricted to conditions which were virtually certain to result in an early death, benefits would probably be too broadly available, since certainty of imminent death rather than a mere high probability of it is not a prerequisite to a sham relationship; yet inquiries into the degree of likelihood of death could become very complex indeed.
Additional problems with appellees’ proposed test arise because it, like the duration-of-relationship requirement, is not precisely related to the objective of denying benefits which are sought on the basis of sham relationships. In the first place, it presumably would be necessary to limit the requirement of terminal illness inquiries to instances in which death occurred within a specified period after marriage. It would also appear to be necessary to set an outside limit on the length of the period within which death was expected that would disqualify applicants (after all, and paraphrasing Lord Keynes, in the long run we are all expected to die). Yet there will always be persons on one side of such lines who are seriously disadvantaged vis-á-vis persons on the other side. More basically, appellees’ test would clearly exclude persons who knew of a wage earner’s imminent death, but who entered their marriages for reasons entirely unrelated to Social Security benefits, such as to fulfill the promises of a longstanding engagement. Thus appellees’ proposed test would be subject to exactly the same constitutional attacks which they direct toward the test on which Congress chose to rely.
Appellees point out that 42 U. S. C. § 416 (k) (1970 ed.,Supp. Ill) provides for limited exceptions to the duration-of-relationship requirement, unless the Secretary determines that at the time of the marriage the wage earner “could not have reasonably been expected to live for nine months.” They argue that this represents Congress’ recognition that case-by-case consideration would not impose an inordinate administrative burden. The argument is without merit. Section 416 (k) expresses Congress’ willingness to accept case-by-case inquiries with regard to limited classes which bear particular indices of genuineness (the section is applicable in cases of accidental death, death in the line of military duty, and remarriages of persons previously married for more than nine months). This says nothing about the feasibility of making such inquiries in other circumstances, much less the rationality of choosing not to do so. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
105
] |
ATLANTIC CITY ELECTRIC CO. et al. v. UNITED STATES et al.
No. 78.
Argued November 12, 1970
Decided December 8, 1970
James O’Malley, Jr., argued the cause for appellants in No. 78. With him on the briefs were Louis J. Lefko-witz, Attorney General of New York, Walter J. Myskow-ski, Sheila H. Marshall, and Alfred E. Froh. Charles J. McCarthy argued the cause for appellants in No. 106. With him on the briefs were Arthur L. Winn, Jr., J. Raymond Clark, and Richard J. Hardy.
Deputy Solicitor General Springer argued the cause for ' the United States-et al. in both cases. ■ With him on the brief were Solicitor General Griswold, Assistant Attorney* General McLaren, Howard E. Shapiro, Edward M. Shul-man, William A. Iinhof, Robert W. Ginnane, and Arthur J. Cerra. Hugh B. Cox argued the "cause for appellees Aberdeen & Rockfish Railroad Co. et al. in both cases. With him on the brief were William H. Allen and Michael Boudin.
John F. Donelan and John M. Cleary filed a brief in No. 106 for the National Industrial Traffic League as amicus curiae urging reversal.
Together with No. 106, Alabama Power Co. et al. v. United States et al., on appeal from the United States District Court for the District of Columbia.
Per Curiam.
The judgments are affirmed by an equally divided Court.
Mr. Justice Douglas took no part in the consideration or decision of these cases. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
65
] |
KONIGSBERG v. STATE BAR OF CALIFORNIA et al.
No. 28.
Argued December 14, 1960.
Decided April 24, 1961.
Edward Mosk argued the cause for petitioner. With him on the brief was Sam Rosenwein.
Frank B. Belcher argued the cause for respondents. With him on the brief was Ralph E. Lewis.
Briefs of amici curiae, urging reversal, were filed by David Scribner, Leonard B. Boudin, Ben Margolis, William B. Murrish and Charles Stewart for the National Lawyers Guild; A. L. Wirin, Fred Okrand and Hugh R. Manes for the American Civil Liberties Union of Southern California; and Robert L. Brock, Pauline Epstein, Robert W. Kenny, Hugh R. Manes, Ben Margolis, Daniel G. Marshall, William B. Murrish, John McTernan, Maynard Omerberg, Alexander Schullman and David Sokol on behalf of themselves and certain other members of the California Bar.
Mr. Justice Harlan
delivered the opinion of the Court.
This case, involving California’s second rejection of petitioner’s application for admission to the state bar, is a sequel to Konigsberg v. State Bar, 353 U. S. 252, in which this Court reversed the State’s initial refusal of his application.
Under California law the State Supreme Court may admit to the practice of law any applicant whose qualifications have been certified to it by the California Committee of Bar Examiners. Cal. Bus. & Prof. Code § 6064. To qualify for certification an applicant must, among other things, be of “good moral character,” id., § 6060 (c), and no person may be certified “who advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means ....”' Id., § 6064.1. The Committee is empowered and required to ascertain the qualifications of all candidates. Id., § 6046. Under rules prescribed by the Board of Governors of the State Bar, an applicant before the Committee has “the burden of proving that he is possessed of good moral character, of removing any and all reasonable suspicion of moral unfitness, and that he is entitled to the high regard and confidence of the public.” Id., Div. 3, c. 4, Rule X, § 101. Any applicant denied certification may have the Committee’s action reviewed by the State Supreme Court. Id., § 6066.
In 1953 petitioner, having successfully passed the California bar examinations, applied for certification for bar membership. The Committee, after interrogating Konigsberg and receiving considerable evidence as to his qualifications, declined to certify him on the ground that he had failed to meet the burden of proving his eligibility under the two statutory requirements relating to good moral character and nonadvocacy of violent overthrow. That determination centered largely around Konigsberg’s repeated refusals to answer Committee questions as to his present or past membership in the Communist Party. The California Supreme Court denied review without opinion. See 52 Cal. 2d 769, 770, 344 P. 2d 777, 778.
On certiorari this Court, after reviewing the record, held the state determination to have been without rational support in the evidence and therefore offensive to the Due Process Clause of the Fourteenth Amendment. Konigsberg v. State Bar, supra. At the same time the Court declined to decide whether Konigsberg’s refusals to answer could constitutionally afford “an independent ground for exclusion from the Bar,” considering that such an issue was not before it. Id., 259-262. The case was remanded to the State Supreme Court “for further proceedings not inconsistent with this opinion.” Id., 274.
On remand petitioner moved the California Supreme Court for immediate admission to the bar. The court vacated its previous order denying review and referred the matter to the Bar Committee for further consideration. At the ensuing Committee hearings Konigsberg introduced further evidence as to his good moral character (none of which was rebutted), reiterated unequivocally his disbelief in violent overthrow, and stated that he had never knowingly been a member of any organization which advocated such action. He persisted, however, in his refusals to answer any questions relating to his membership in the Communist Party. The Committee again declined to certify him, this time on the ground that his refusals to answer had obstructed a full investigation into his qualifications. The California Supreme Court, by a divided vote, refused review, and also denied Konigsberg’s motion for direct admission to practice. 52 Cal. 2d 769, 344 P. 2d 777. We again brought the case here. 362 U. S. 910.
Petitioner’s contentions in this Court in support of reversal of the California Supreme Court’s order are reducible to three propositions: (1) the State’s action was inconsistent with this Court’s decision in the earlier Konigsberg case; (2) assuming the Committee’s inquiries into Konigsberg’s possible Communist Party membership were permissible, it was unconstitutionally arbitrary for the State to deny him admission because of his refusals to answer; and (3) in any event, Konigsberg was constitutionally justified in refusing to answer these questions.
I.
Consideration of petitioner’s contentions as to the effect of this Court’s decision in the former Konigsberg case requires that there be kept clearly in mind what is entailed in California’s rule, comparable to that in many States, that an applicant for admission to the bar bears the burden of proof of “good moral character” — a requirement whose validity is not, nor could well be, drawn in question here.
Under such a rule an applicant must initially furnish enough evidence of good character to make a prima facie case. The examining Committee then has the opportunity to rebut that showing with evidence of bad character. Such evidence may result from the Committee’s own independent investigation, from an applicant’s responses to questions on his application form, or from Committee interrogation of the applicant himself. This interrogation may well be of decisive importance for, as all familiar with bar admission proceedings know, exclusion of unworthy candidates frequently depends upon the thoroughness of the Committee’s questioning, revealing as it may infirmities in an otherwise satisfactory showing on his part. This is especially so where a bar committee, as is not infrequently the case, has no means of conducting an independent investigation of its own into an applicant’s qualifications. If at the conclusion of the proceedings the evidence of good character and that of bad character are found in even balance, the State may refuse admission to the applicant, just as in an ordinary suit a plaintiff may fail in his case because he has not met his burden of proof.
In the first Konigsberg case this Court was concerned solely with the question whether the balance between the favorable and unfavorable evidence as to Konigsberg’s qualifications had been struck in accordance with the requirements of due process. It was there held, first, that Konigsberg had made out a prima facie case of good character and of nonadvocacy of violent overthrow, and, second, that the other evidence in the record could not, even with the aid of all reasonable inferences flowing therefrom, cast such doubts upon petitioner’s prima facie case as to justify any finding other than that these two California qualification requirements had been satisfied. In assessing the significance of Konigsberg’s refusal to answer questions as to Communist Party membership, the Court dealt only with the fact that this refusal could not provide any reasonable indication of a character not meeting these two standards for admission. The Court did not consider, but reserved for later decision, all questions as to the permissibility of the State treating Konigsberg’s refusal to answer as a ground for exclusion, not because it was evidence from which substantive conclusions might be drawn, but because the refusal had thwarted a full investigation into his qualifications. See 353 U. S., at 259-262. The State now asserts that ground for exclusion, an issue that is not foreclosed by anything in this Court’s earlier opinion which decided a quite different question.
It is equally clear that the State’s ordering of the rehearing which led to petitioner’s exclusion manifested no disrespect of the effect of the mandate in that case, which expressly left the matter open for further state proceedings “not inconsistent with” the Court’s opinion. There is no basis for any suggestion that the State in so proceeding has adopted unusual or discriminatory procedures to avoid the normal consequences of this Court’s earlier determination. In its earlier proceeding, the California Bar Committee may have found further investigation and questioning of petitioner unnecessary when, in its view, the applicant’s prima facie case of qualifications had been sufficiently rebutted by evidence already in the record. While in its former opinion this Court held that the State could not constitutionally so conclude, it did not undertake to preclude the state agency from asking any questions or from conducting any investigation that it might have thought necessary had it known that the basis of its then decision would be overturned. In recalling Konigsberg for further testimony, the Committee did only what this Court has consistently held that federal administrative tribunals may do on remand after a reviewing court has set aside agency orders as unsupported by requisite findings of fact. Federal Communications Comm’n v. Pottsville Broadcasting Co., 309 U. S. 134; Fly v. Heitmeyer, 309 U. S. 146.
In the absence of the slightest indication of any purpose on the part of the State to evade the Court’s prior decision, principles of finality protecting the parties to this state litigation are, within broad limits of fundamental fairness, solely the concern of California law. Such limits are broad even in a criminal case, see Bryan v. United States, 338 U. S. 552; Hoag v. New Jersey, 356 U. S. 464; cf. Palko v. Connecticut, 302 U. S. 319, 328. In this instance they certainly have not been transgressed by the State’s merely taking further action in this essentially administrative type of proceeding.
II.
We think it clear that the Fourteenth Amendment’s protection against arbitrary state action does not forbid a State from denying admission to a bar applicant so long as he refuses to provide unprivileged answers to questions having a substantial relevance to his qualifications. An investigation of this character, like a civil suit, requires procedural as well as substantive rules. It is surely not doubtful that a State could validly adopt an administrative rule analogous to Rule 37 (b) of the Federal Rules of Civil Procedure which provides that that refusal, after due warning, to answer relevant questions may result in “the matters regarding which the questions were asked” being considered for the purposes of the proceeding to be answered in a way unfavorable to the refusing party, or even that such refusal may result in “dismissing the action or proceeding” of the party asking affirmative relief.
The state procedural rule involved here is a less broad one, for all that California has in effect said is that in cases where, on matters material to an applicant’s qualifications, there are gaps in the evidence presented by him which the agency charged with certification considers should be filled in the appropriate exercise of its responsibilities, an applicant will not be admitted to practice unless and until he cooperates with the agency’s efforts to fill those gaps. The fact that this rule finds its source in the supervisory powers of the California Supreme Court over admissions to the bar, rather than in legislation, is not constitutionally significant. Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362. Nor in the absence of a showing of arbitrary or discriminatory application in a particular case, is it a matter of federal concern whether such a rule requires the rejection of all applicants refusing to answer material questions, or only in instances where the examining committee deems that a refusal has materially obstructed its investigation. Compare Beilan v. Board of Education, 357 U. S. 399, with Nelson v. County of Los Angeles, 362 U. S. 1.
In the context of the entire record of these proceedings, the application of the California rule in this instance cannot be said to be arbitrary or discriminatory. In the first Konigsberg case this Court held that neither the somewhat weak but uncontradicted testimony, that petitioner had been a Communist Party member in 1941, nor his refusal to answer questions relating to Party membership, could rationally support any substantive adverse inferences as to petitioner’s character qualifications, 353 U. S., at 266-274. That was not to say, however, that these factors, singly or together, could not be regarded as leaving the investigatory record in sufficient uncertainty as constitutionally to permit application of the procedural rule which the State has now invoked, provided that Konigsberg had been first given due warning of the consequences of his continuing refusal to respond to the Committee’s questions. Cf. 353 U. S., at 261.
It is no answer to say that petitioner has made out a prima facie case of qualifications, for this is precisely the posture of a proceeding in which the Committee’s right to examine and cross-examine becomes significant. Assuming, as we do for the moment, that there is no privilege here to refuse to answer, petitioner could no more insist that his prima facie case makes improper further questioning of him than he could insist that such circumstance made improper the introduction of other forms of rebutting evidence.
We likewise regard as untenable petitioner’s contentions that the questions as to Communist Party membership were made irrelevant either by the fact that bare, innocent membership is not a ground of disqualification or by petitioner’s willingness to answer such ultimate questions as whether he himself believed in violent overthrow or knowingly belonged to an organization advocating violent overthrow. The Committee Chairman’s answer to the former contention was entirely correct:
“If you answered the question, for example, that you had been a member of the Communist Party during some period since 1951 or that you were presently a member of the Communist Party, the Committee would then be in a position to ask you what acts you engaged in to carry out the functions and purposes of that party, what the aims and purposes of the party were, to your knowledge, and questions of that type. You see by failing to answer the initial question there certainly is no basis and no opportunity for us to investigate with respect to the other matters to which the initial question might very well be considered preliminary.”
And the explanation given to petitioner’s counsel by another Committee member as to why Konigsberg’s testimony about ultimate facts was not dispositive was also sound:
“Mr. Mosk, you realize that if Mr. Konigsberg had answered the question that he refused to answer, an entirely new area of investigation might be opened up, and this Committee might be able to ascertain from Mr. Konigsberg that perhaps he is now and for many years past has been an active member of the Communist Party, and from finding out who his associates were in that enterprise we might discover that he does advocate the overthrow of this government by force and violence. I am not saying that he would do that, but it is a possibility, and we don’t have to take any witness’ testimony as precluding us from trying to discover if he is telling the truth. That is the point.”
Petitioner’s further miscellaneous contentions that the State’s exclusion of him was capricious are all also insubstantial.
There remains the question as to whether Konigsberg was adequately warned of the consequences of his refusal to answer. At the outset of the renewed hearings the Chairman of the Committee stated:
“As a result of our two-fold purpose [to investigate and reach determinations], particularly our function of investigation, we believe it will be necessary for you, Mr. Konigsberg, to answer our material questions or our investigation will be obstructed. We would not then as a result be able to certify you for admission.”
After petitioner had refused to answer questions on Communist Party membership, the Chairman asked:
“Mr. Konigsberg, I think you will recall that I initially advised you a failure to answer our material questions would obstruct our investigation and result in our failure to certify you. With this in mind do you wish to answer any of the questions which you heretofore up to now have refused to answer?”
At the conclusion of the proceeding another Committee member stated:
“I would like to make this statement so that there will be no misunderstanding on the part of any court that may review this record in the future, that I feel that as a member of the Committee that the failure of Mr. Konigsberg to answer the question as to whether or not he is now a member of the Communist Party is an obstruction of the function of this Committee, not a frustration if that word has been used. I think it would be an obstruction. There are phases of his moral character that we haven’t been able to investigate simply because we have been stopped at this point, and I for one could not certify to the Supreme Court that he was a proper person to be admitted to practice law in this State until he answers the question about his Communist affiliation.”
The record thus leaves no room for doubt on the score of “warning,” and petitioner does not indeed contend to the contrary.
III.
Finally, petitioner argues that, in any event, he was privileged not to respond to questions dealing with Communist Party membership because they unconstitutionally impinged upon rights of free speech and association protected by the Fourteenth Amendment.
At the outset we reject the view that freedom of speech and association (N. A. A. C. P. v. Alabama, 357 U. S. 449, 460), as protected by the First and Fourteenth Amendments, are “absolutes,” not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment. Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. See, e. g., Schenck v. United States, 249 U. S. 47; Chaplinsky v. New Hampshire, 315 U. S. 568; Dennis v. United States, 341 U. S. 494; Beauharnais v. Illinois, 343 U. S. 250; Yates v. United States, 354 U. S. 298; Roth v. United States, 354 U. S. 476. On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. See, e. g., Schneider v. State, 308 U. S. 147, 161; Cox v. New Hampshire, 312 U. S. 569; Prince v. Massachusetts, 321 U. S. 158; Kovacs v. Cooper, 336 U. S. 77; American Communications Assn. v. Douds, 339 U. S. 382; Breard v. Alexandria, 341 U. S. 622. It is in the latter class of cases that this Court has always placed rules compelling disclosure of prior association as an incident of the informed exercise of a valid governmental function. Bates v. Little Rock, 361 U. S. 516, 524. Whenever, in such a context, these constitutional protections are asserted against the exercise of valid governmental powers a reconciliation must be effected, and that perforce requires an appropriate weighing of the respective interests involved. Watkins v. United States, 354 U. S. 178, 198; N. A. A. C. P. v. Alabama, supra; Barenblatt v. United States, 360 U. S. 109, 126-127; Bates v. Little Rock, supra; Wilkinson v. United States, 365 U. S. 399; Braden v. United States, 365 U. S. 431. With more particular reference to the present context of a state decision as to character qualifications, it is difficult, indeed, to imagine a view of the constitutional protections of speech and association which would automatically and without consideration of the extent of the deterrence of speech and association and of the importance of the state function, exclude all reference to prior speech or association on such issues as character, purpose, credibility, or intent. On the basis of these considerations we now judge petitioner’s contentions in the present case.
Petitioner does not challenge the constitutionality of § 6064.1 of the California Business and Professions Code forbidding certification for admission to practice of those advocating the violent overthrow of government. It would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country’s legal and political institutions. Cf. Garner v. Board of Public Works, 341 U. S. 716. Nor is the state interest in this respect insubstantially related to the right which California claims to inquire about Communist Party membership. This Court has long since recognized the legitimacy of a statutory finding that membership in the Communist Party is not unrelated to the danger of use for such illegal ends of powers given for limited purposes. See American Communications Assn. v. Douds, 339 U. S. 382; see also Barenblatt v. United States, 360 U. S. 109, 128-129; cf. Wilkinson v. United States, 365 U. S. 399; Braden v. United States, 365 U. S. 431.
As regards the questioning of public employees relative to Communist Party membership it has already been held that the interest in not subjecting speech and ássociation to the deterrence of subsequent disclosure is outweighed by the State’s interest in ascertaining the fitness of the employee for the post he holds, and hence that such questioning does not infringe constitutional protections. Beilan v. Board of Public Education, 357 U. S. 399; Garner v. Board of Public Works, 341 U. S. 716. With respect to this same question of Communist Party membership, we regard the State’s interest in having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change, as clearly sufficient to outweigh the minimal effect upon free association occasioned by compulsory disclosure in the circumstances here presented.
There is here no likelihood that deterrence of association may result from foreseeable private action, see N. A. A. C. P. v. Alabama, supra, at 462, for bar committee interrogations such as this are conducted in private. See Rule 58, Section X, Rules of Practice and Procedure of the Supreme Court of Illinois; cf. Cal. Bus. & Prof. Code, Rules of Procedure of the State Bar of California, Rule 8; Anonymous v. Baker, 360 U. S. 287, 291-292. Nor is there the possibility that the State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association, see Shelton v. Tucker, 364 U. S. 479, 486, for a bar applicant’s exclusion by reason of Communist Party membership is subject to judicial review, including ultimate review by this Court, should it appear that such exclusion has rested on substantive or procedural factors that do not comport with the Federal Constitution. See Konigsberg v. State Bar, 353 U. S. 252; Schware v. Board of Examiners of New Mexico, 353 U. S. 232; cf. Wieman v. Updegraff, 344 U. S. 183. In these circumstances it is difficult indeed to perceive any solid basis for a claim of unconstitutional intrusion into rights assured by the Fourteenth Amendment.
If this were all there was to petitioner’s claim of a privilege to refuse to answer, we would regard the Beilan case as controlling. There is, however, a further aspect of the matter. In Speiser v. Randall, 357 U. S. 513, we held unconstitutional a state procedural rule that in order to obtain an exemption a taxpayer must bear the burden of proof, including both the burdens of establishing a prima facie case and of ultimate persuasion, that he did not advocate the violent overthrow of government. We said (p. 526):
“The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding — -inherent in all litigation — will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. This is especially to be feared when the complexity of the proofs and the generality of the standards applied, cf. Dennis v. United States, supra, provide but shifting sands on which the litigant must maintain his position. How can a claimant whose declaration is rejected possibly sustain the burden of proving the negative of these complex factual elements? In practical operation, therefore, this procedural device must necessarily ■ produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.”
It would be a sufficient answer to any suggestion of the applicability of that holding to the present proceeding to observe that Speiser was explicitly limited so as not to reach cases where, as here, there is no showing of an intent to penalize political beliefs. Distinguishing Garner v. Board of Public Works, 341 U. S. 716; Gerende v. Board of Supervisors, 341 U. S. 56, and American Communications Assn. v. Douds, 339 U. S. 382, the Court said (p. 527):
“In these cases . . . there was no attempt directly to control speech but rather to protect, from an evil shown to be grave, some interest clearly within the sphere of governmental concern. . . . Each case concerned a limited class of persons in or aspiring to public positions by virtue of which they could, if evilly motivated, create serious danger to the public safety. The principal aim of those statutes was not to penalize political beliefs but to deny positions to persons supposed to be dangerous because the position might be misused to the detriment of the public.”
But there are also additional factors making the rationale of Speiser inapplicable to the case before us. There is no unequivocal indication that California in this proceeding has placed upon petitioner the burden of proof of nonadvocacy of violent overthrow, as distinguished from its other requirement of “good moral character.” All it has presently required is an applicant’s cooperation with the Committee’s search for evidence of forbidden advocacy. Petitioner has been denied admission to the California bar for obstructing the Committee in the performance of its necessary functions of examination and cross-examination, a ruling which indeed presupposes that the burden of producing substantial evidence on the issue of advocacy was not upon petitioner but upon the Committee. Requiring a defendant in a civil proceeding to testify or to submit to discovery has never been thought to shift the burden of proof to him. Moreover, when this Court has allowed a State to comment upon a criminal defendant’s failure to testify it has been careful to note that this does not result in placing upon him the burden of proving his innocence. Adamson v. California, 332 U. S. 46, 58.
In contrast to our knowledge with respect to the burden of establishing a prima facie case, we do not now know where, under California law, would rest the ultimate burden of persuasion on the issue of advocacy of violent overthrow. But it is for the Supreme Court of California first to decide this question. Only if and when that burden is placed by the State upon a bar applicant can there be drawn in question the distinction made in the Speiser case between penalizing statutes and those merely denying access to positions where unfitness may lead to the abuse of state-given powers or privileges. The issue is not now before us.
Thus as matters now stand, there is nothing involved here which is contrary to the reasoning of Speiser, for despite compelled testimony the prospective bar applicant need not “steer far wider of the unlawful zone” (357 U. S., at 526) for fear of mistaken judgment or fact finding declaring unlawful speech which is in fact protected by the Constitution. This is so as to the ultimate burden of persuasion for, notwithstanding his duty to testify, the loss resulting from a failure of proof may, for all we now know, still fall upon the State. It is likewise so as to the initial burden of production, for there is no indication in the proceeding on rehearing of petitioner’s application that the Bar Committee expected petitioner to “sustain the burden of proving the negative” (357 U. S., at 526) of those complex factual elements which amount to forbidden advocacy of violent overthrow. To the contrary it is clear that the Committee had assumed the burden of proving the affirmative of those elements, but was prevented from attempting to discharge that burden by petitioner’s refusal to answer relevant questions.
The judgment of the Supreme Court of California is
Affirmed.
Konigsberg rested his refusals, not on any claim of privilege against self-incrimination, but on the ground that such inquiries were beyond the purview of the Committee’s authority, and infringed rights of free thought, association, and expression assured him under the State and Federal Constitutions. He affirmatively asserted, however, his disbelief in violent overthrow of government.
The Committee made the following findings relevant to the issues now before us:
“(1) That the questions put to the applicant by the Committee concerning past or present membership in or affiliation with the Communist Party are material to a proper and complete investigation of his qualifications for admission to practice law in the State of California.
“(2) That the refusal of applicant to answer sai4 questions has obstructed a proper and complete investigation of applicant’s qualifications for admission to practice law in the State of California.”
The essence of the state court’s decision 'appears in the following extracts from its opinion:
"... The committee action now before us contains no findings or conclusion that petitioner had failed to establish either his good moral character or his abstention from advocacy of overthrow of the government.
“Here it is the refusal to answer material questions which is the basis for denial of certification. . . .
“. . . [T]o admit applicants who refuse to answer the committee’s questions upon these subjects would nullify the concededly valid legislative direction to the committee. Such a rule would effectively stifle committee inquiry upon issues legislatively declared to be relevant to that issue.” Id., at 772, 774, 344 P. 2d, at 779, 780.
Justice Traynor dissented on the ground that the California Supreme Court, not being required by statute to exclude bar applicants on the sole ground of their refusal to answer questions concerning possible advocacy of the overthrow of government, should not adopt such an exclusionary rule, at least where the Committee of Bar Examiners has not come forward with some evidence of advocacy. He declined to reach constitutional issues. Justice Peters dissented on federal constitutional grounds and in the belief that this Court’s decision in the first Konigsberg case required immediate admission of the applicant. Chief Justice Gibson did not participate in the decision.
All of the 50 States, as well as Puerto Rico and the District of Columbia, prescribe qualifications of moral character as preconditions for admission to the practice of law. See West Publishing Co., Rules for Admission'to the Bar (35th ed. 1957); Survey of the Legal Profession, Bar Examinations and Requirements for Admission to the Bar (1952); Jackson, Character Requirements for Admission to the Bar, 20 Fordham L. Rev. 305 (1951); Annot., 64 A. L. R. 2d 301 (1959).
The burden of demonstrating good moral character is regularly placed upon the bar applicant. Ex parte Montgomery, 249 Ala. 378, 31 So. 2d 85; In re Stephenson, 243 Ala. 342, 10 So. 2d 1; Application of Courtney, 83 Ariz. 231, 319 P. 2d 991; Ark. Stat. Ann., 1947, §§ 25-101, 25-103; Spears v. State Bar, 211 Cal. 183, 294 P. 697; O’Brien’s Petition, 79 Conn. 46, 63 A. 777; In re Durant, 80 Conn. 140, 147, 67 A. 497; Del. Sup. Ct. Rule 31 (1)(A)(a), (2)(A)(a); Coleman v. Watts, 81 So. 2d 650 (Fla.) (burden of proof on applicant; prima facie showing shifts burden of going forward to Examiners); Gordon v. Clinkscales, 215 Ga. 843, 114 S. E. 2d 15; In re Latimer, 11 Ill. 2d 327, 143 N. E. 2d 20 (semble); Rosencranz v. Tidrington, 193 Ind. 472, 141 N. E. 58; In re Meredith, 272 S. W. 2d 456 (Ky.); In re Meyerson, 190 Md. 671, 59 A. 2d 489 (semble); Matter of Keenan, 313 Mass. 186, 47 N. E. 2d 12; Application of Smith, 220 Minn. 197, 19 N. W. 2d 324 (semble); On Application for Attorney’s License, 21 N. J. L. 345; Application of Cassidy, 268 App. Div. 282, 51 N. Y. S. 2d 202, aff’d, 296 N. Y. 926, 73 N. E. 2d 41; Application of Farmer, 191 N. C. 235, 131 S. E. 661; In re Weinstein, 150 Ore. 1, 42 P. 2d 744; State ex rel. Board v. Poyntz, 152 Ore. 592, 52 P. 2d 1141 (burden of proof on applicant; prima facie showing shifts burden of going forward to Examiners); In the Matter of Eary, 134 W. Va. 204, 58 S. E. 2d 647 (semble).
For reasons given later (pp. 55-56, infra), we need not decide whether California’s burden-of-proof rule could constitutionally be applied, as it was by the Committee after the first Konigsberg proceedings, to the requirement of nonadvocacy of violent overthrow.
The Court assumed, but did not discuss, the constitutionality of California’s burden-of-proof rule as applied to the nonadvocacyof-forcible-overthrow requirement of the California statute.
Moreover, even if there could be debate as to whether this Court’s prior decision prevented new hearings on matters that had already transpired at the time of the first state hearings, there can be no doubt that such decision did not prevent California from investigating petitioner’s actions during the period subsequent to the first hearing. Therefore we would in any case be presented with the question of the constitutionality of the State’s refusing to admit petitioner to the practice of law because of his declining to answer whether he has been a member of the Communist Party since the termination of the first set of hearings.
The transcript of the original hearings before the Committee has been made part of the record before us in the present case. ■
There is no basis for any intimation that the California Supreme Court fashioned a special procedural rule for the purposes of this particular case. The California Bar Committee has in the past declined to certify applicants who refused to answer pertinent questions. See Farley (Secretary, Committee of Bar Examiners), Character Investigation of Applicants for Admission, 29 Cal. State Bar Journal, 454, 457, 466 (1954). No more does the State’s action bear any of the hallmarks of a bill of attainder or of an ex post facto regulation, see Cummings v. Missouri, 4 Wall. 277; cf. United States v. Lovett, 328 U. S. 303, especially in light of the fact that petitioner was explicitly warned in advance of the consequences of his refusal to answer. Likewise, there is no room for attributing to the Committee a surreptitious purpose to exclude Konigsberg by the device of putting to him questions which it was known in advance he would not answer, and then justifying exclusion on the premise of his refusal to respond. So far as this record shows Konigsberg was excluded only because his refusal to answer had impeded the investigation of the Committee, a ground of rejection which it is still within his power to remove.
That view, which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble But as Mr. Justice Holmes once said: “[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” Gompers v. United States, 233 U. S. 604, 610. In this connection also compare the equally unqualified command of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” And see United States v. Miller, 307 U. S. 174.
That the First Amendment immunity for speech, press and assembly has to be reconciled with valid but conflicting governmental interests was clear to Holmes, J. (“I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.” Abrams v. United States, 250 U. S. 616, 627); to Brandeis, J. (“But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute.” Whitney v. California, 274 U. S. 357, 373); and to Hughes, C. J. (“[T]he protection [of free speech] even as to previous restraint is not absolutely unlimited.” Near v. Minnesota, 283 U. S. 697, 716.)
Indeed, we cannot tell whether California did so even in the earlier proceeding, since the California Supreme Court’s denial of review of the Committee’s original rejection of Konigsberg was without opinion, and for all we know may have rested alone on petitioner’s failure to meet his state burden of proof as to “good moral character.” | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
116
] |
BOARD OF GOVERNORS OF FEDERAL RESERVE SYSTEM v. INVESTMENT COMPANY INSTITUTE
No. 79-927.
Argued October 15, 1980
Decided February 24, 1981
Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Stewart and Rehnquist, JJ., who took no part in the consideration or decision of the case, and Powell, J., who took no part in the decision of the case.
Stephen M. Shapiro argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Daniel, Anthony J. Steinmeyer, and Neal L. Petersen.
G. Duane Vieth argued the cause for respondent. With him on the briefs was Leonard H. Becker.
William H. Smith, Keith A. Jones, Alan B. Levenson, Daniel F. Kolb, Geoffrey S. Stewart, Arnold M. Lerman, Michael L. Burack, and Edward T. Hand filed a brief for the American Bankers Association et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Roger A. Clark, John M. Liftin, and Donald J. Crawford for the Securities Industry Association; and by Harvey L. Pitt, James H. Schropp, and Randy A. Harris for A. G. Becker Inc.
Justice Stevens
delivered the opinion of the Court.
In 1956 Congress enacted the Bank Holding Company-Act to control the future expansion of bank holding companies and to require divestment of their nonbanking interests. The Act, however, authorizes the Federal Reserve Board (Board) to allow holding companies to acquire or retain ownership in companies whose activities are “so closely related to banking or managing or controlling banks as to be a proper incident thereto.” In 1972 the Board amended its regulations to enlarge the category of activities that it would regard as “closely related to banking” and therefore permissible for bank holding companies and their nonbanking subsidiaries. Specifically, the Board determined that the services of an investment adviser to a closed-end investment company may be such a permissible activity. The question presented by this case is whether the Board had the statutory authority to make that determination.
The Board’s determination, which was implemented by an amendment to its “Regulation Y,” permits bank holding companies and their nonbanking subsidiaries to act as an investment adviser as that term is defined by the Investment Company Act of 1940. Although the statutory definition is a detailed one, the typical relationship between an investment adviser and an investment company can be briefly described. Investment companies, by pooling the resources of small investors under the guidance of one manager, provide those investors with diversification and expert management. Investment advisers generally organize and manage investment companies pursuant to a contractual arrangement with the company. In return for a management fee, the adviser selects the company’s investment portfolio and supervises most aspects of its business.
The Board issued an interpretive ruling in connection with its amendment to Regulation Y. That ruling distinguished “open-end” investment companies (commonly referred to as “mutual funds”) from “closed-end” investment companies. The ruling explained that “a mutual fund is an investment company, which, typically, is continuously engaged in the issuance of its shares and stands ready a.t any time to redeem the securities as to which it is the issuer; a closed-end investment company typically does not issue shares after its initial organization except at infrequent intervals and does not stand ready to redeem its shares.” Because open-end investment companies will redeem their shares, they must constantly issue securities to prevent shrinkage of assets. In contrast, the capital structure of a closed-end company is similar to that of other corporations; if its shareholders wish to sell, they must do so in the marketplace. Without any obligation to redeem, closed-end companies need not continuously seek new capital.
The Board's interpretive ruling expressed the opinion that a bank holding company may not lawfully sponsor, organize, or control an open-end investment company, but the Board perceived no objection to sponsorship of a closed-end investment company provided that certain restrictions are observed. Among those restrictions is a requirement that the investment company may not primarily or frequently engage in the issuance, sale, and distribution of securities; a requirement that the investment adviser may not have any ownership interest in the investment company, or extend credit to it; and a requirement that the adviser may not underwrite or otherwise participate in the sale or distribution of the investment company’s securities.
Respondent Investment Company Institute, a trade association of open-end investment companies, commenced this litigation challenging as in excess of the Board’s statutory authority the determination that investment adviser services are “closely related” to banking. Both in proceedings before the Board and in a direct review proceeding in the United States Court of Appeals for the District of Columbia Circuit, respondent based this challenge on the Banking Act of 1933, commonly known as the Glass-Steagall Act, in which Congress placed restrictions on the securities-related business of banks in order to protect their depositors.
The Court of Appeals rejected respondent’s argument that Regulation Y, as amended, violated the Glass-Steagall Act, relying on the fact that the prohibitions of §§16 and 21 of that Act apply only to banks rather than to bank holding companies or their nonbanking subsidiaries. 196 U. S. App. D. C. 97, 606 F. 2d 1004. The court nevertheless concluded that § 4 (c) (8) of the Bank Holding Company Act did not authorize the regulation. The court reasoned that the legislative history of the Act demonstrates that Congress did not intend the Bank Holding Company Act to restrict the scope of the Glass-Steagall Act. Because the court read the legislative history to indicate that Congress perceived the Glass-Steagall Act as an effort to effect as complete a separation as possible between the securities business and the commercial banking business, the court read a similar intent into the Bank Holding Company Act. The Court of Appeals believed that activities permitted by the challenged regulation were not consistent with the congressional intent to effect this separation.
We granted certiorari because of the importance of the Court of Appeals holding. 444 U. S. 1070. We are persuaded that the language of both the Bank Holding Company Act and the Glass-Steagall Act, as well as our interpretation of the Glass-Steagall Act in Investment Company Institute v. Camp, 401 U. S. 617 (1971), supports the Board. Moreover, contrary to the view of the Court of Appeals, we are persuaded that the regulation is consistent with the legislative history of both statutes.
I
The services of an investment adviser are not significantly different from the traditional fiduciary functions of banks. The principal activity of an investment adviser is to manage the investment portfolio of its advisee — to invest and reinvest the funds of the client. Banks have engaged in that sort of activity for decades. As executor, trustee, or managing agent of funds committed to its custody, a bank regularly buys and sells securities for its customers. Bank trust, departments manage employee benefits trusts, institutional and corporate agency accounts, and personal trust and agency accounts. Moreover, for over 50 years banks have performed these tasks for trust funds consisting of commingled funds of customers. These common trust funds administered by banks would be regulated as investment companies by the Investment Company Act of 1940 were they not exempted from the Act’s coverage. The Board’s conclusion that the services performed by an investment adviser are “so closely related to banking ... as to be a proper incident thereto” is therefore supported by banking practice and by a normal reading of the language of § 4 (c)(8).'
The Board’s determination of what activities are “closely related” to banking is entitled to the greatest deference. Such deference is particularly appropriate in this case because the regulation under attack is merely a general determination that investment advisory services which otherwise satisfy the restrictions imposed by the Board’s interpretive ruling constitute an activity that is so closely related to banking as to be a proper incident thereto. Because the authority for any specific investment advisory relationship must be preceded by a further determination by the Board that the relationship can be expected to provide benefits for the public, the Board will have the opportunity to ensure that no bank holding company exceeds the bounds of a bank’s traditional fiduciary function of managing customers’ accounts. Thus unless the Glass-Steagall Act requires a contrary conclusion, the Board’s interpretation of the plain language of the Bank Company Holding Act must be upheld.
II
Respondent’s principal attack on the Board’s general determination that investment adviser services are so closely related as to be a proper incident to banking proceeds from the premise that if such services were performed by a bank, the bank would violate §§16 and 21 of the Glass-Steagall Act. Respondent therefore argues that such services may never be regarded as a “proper incident” that could be performed by a bank affiliate. We reject both the premise and the conclusion of this argument. The performance of investment advisory services by a bank would not necessarily violate § 16 or § 21 of the Glass-Steagall Act. Moreover, bank affiliates may be authorized to engage in certain activities that are prohibited to banks themselves.
It is familiar history that the Glass-Steagall Act was enacted in 1933 to protect bank depositors from any repetition of the widespread bank closings that occurred during the Great Depression. Congress was persuaded that speculative activities, partially attributable to the connection between commercial banking and investment banking, had contributed to the rash of bank failures. The legislative history reveals that securities firms affiliated with banks had engaged in perilous underwriting operations, stock speculation, and maintaining a market for the bank’s own stock, often with the bank’s resources. Congress sought to separate national banks, as completely as possible, from affiliates engaged in such activities.
Sections 16 and 21 of the Glass-Steagall Act approach the legislative goal of separating the securities business from the banking business from different directions. The former places a limit on the power of a bank to engage in securities transactions; the latter prohibits a securities firm from engaging in the banking business. Section 16 expressly prohibits a bank from “underwriting” any issue of a security or purchasing any security for its own account. The Board’s interpretive ruling here expressly prohibits a bank holding company or its subsidiaries from participating in the “sale or distribution” of securities of any investment company for which it acts as investment adviser. 12 CFR § 225.125 (h) (1980). The ruling also prohibits bank holding companies and their subsidiaries from purchasing securities of the investment company for which it acts as investment adviser. § 225.125 (g). Therefore, if the restrictions imposed by the Board’s interpretive ruling are followed, investment advisory services — even if performed by a bank — would not violate the requirements of § 16.
We are also satisfied that a bank’s performance of such services would not necessarily violate § 21. In contrast to § 16, § 21 prohibits certain kinds of securities firms from engaging in banking. The § 21 prohibition applies to any organization “engaged in the business of issuing, underwriting, selling, or distributing” securities. Such a securities firm may not engage at the same time “to any extent whatever in the business of receiving deposits.” The management of a customer’s investment portfolio — even when the manager has the power to sell securities owned by the customer — is not the kind of selling activity that Congress contemplated when it enacted § 21. If it were, the statute would prohibit banks from continuing to manage investment accounts in a fiduciary capacity or as an agent for an individual. We do not believe Congress intended that such a reading be given § 21. Rather, § 21 presented the converse situation of § 16 and was intended to require securities firms such as underwriters or brokerage houses to sever their banking connections. It surely was not intended to require banks to abandon an accepted banking practice that was subjected to regulation under § 16.
Even if we were to assume that a bank would violate the Glass-Steagall Act by engaging in certain investment advisory services, it would not follow that a bank holding company could never perform such services. In both the Glass-Steagall Act itself and in the Bank Holding Company Act, Congress indicated that a bank affiliate may engage in activities that would be impermissible for the bank itself. Thus, § 21 of Glass-Steagall entirely prohibits the same firm from engaging in banking and in the underwriting business, whereas § 20 does not prohibit bank affiliation with a securities firm unless that firm is “engaged principally” in activities such as underwriting. Further, §4(c)(7)of the Bank Holding Company Act, which authorizes holding companies to purchase and own shares of investment companies, permits investment activity by a holding company that is impermissible for a bank itself. Finally, inasmuch as the Bank Holding Company Act requires divestment only of nonbanking interests, the §4(c)(8) exception would be unnecessary if it applied only to services that a bank could legally perform. Thus even if the Glass-Steagall Act did prohibit banks from acting as investment advisers, that prohibition would not necessarily preclude the Board from determining that such adviser services would be permissible under §4 (c)(8).
In all events, because all that is presently at issue is the Board’s preliminary authorization of such services, rather than approval of any specific advisory relationship, speculation about possible conflicts with the Glass-Steagall Act is plainly not a sufficient basis for totally rejecting the Board’s carefully considered determination.
Ill
Our conclusions with respect to the Glass-Steagall Act are in no way altered by consideration of our decision in Invest ment Company Institute v. Camp, 401 U. S. 617 (1971). The Court there held that a regulation issued by the Comptroller of the Currency purporting to authorize banks to operate mutual funds violated §§16 and 21 of the Glass-Steagall Act. The mutual fund under review in that case was the functional equivalent of an open-end investment company. Because the authorization at issue in this case is expressly limited to closed-end investment companies, the holding in Camp is clearly not dispositive. Respondent argues, however, that both the Court’s reasoning in Camp and its description of the “more subtle hazards” created by the performance of investment advisory services by a bank are inconsistent with the Board’s action. We disagree.
In Camp the Court relied squarely on the literal language of §§ 16 and 21 of the Glass-Steagall Act. After noting that § 16 prohibited the underwriting by a national bank of any issue of securities and the purchase for its own account of shares of stock of any corporation, and that § 21 prohibited corporations from both receiving deposits and engaging in issuing, underwriting, selling, or distributing securities, the Court recognized that the statutory language plainly applied to a bank’s sale of redeemable and transferable “units of participation” in a common investment fund operated by the bank. 401 U. S., at 634. Because the Court held that the bank was the underwriter of the fund’s units of participation within the meaning of the Investment Company Act of 1940, id., at 622-623, the Comptroller attempted to avoid the reach of § 16 by arguing that the units of participation were not “securities” within the meaning of the Glass-Steagall Act. The Court’s contrary determination led inexorably to the conclusion that § 16 had been violated.
This case presents an entirely different issue. No one could dispute the fact that the shares in a closed-end investment company are securities. But as we have indicated, such securities are not issued, sold, or underwritten by the investment adviser. In contrast to the bank’s activities in issuing, underwriting, selling, and redeeming the units of participation in the Camp case, in this case the Board’s interpretive ruling expressly prohibits such activity.
The Court in Camp recognized that in enacting the Glass-Steagall Act, Congress contemplated other hazards in addition to the danger of banks using bank assets in imprudent securities investments. But none of these “more subtle hazards” would be present were a bank to act as an investment adviser to á closed-end investment company subject to the restrictions imposed by the Board. Those restrictions would prevent the bank from extending credit to the investment company and would also preclude the promotional pressures that are inherent in the investment banking business. In addition to the fact that the bank could not underwrite or sell the stock of the closed-end investment company, that company, unlike a mutual fund, would not be constantly involved in the search for new capital to cover the redemption of other stock. The advisory fee earned by the bank would provide little incentive to the bank or its holding company to engage in promotional activities.
Our obligation to accord deference to the Board’s interpretive ruling provides added support to our conclusion that the Board’s regulation avoids the potential hazards involved in any association between a bank affiliate and a closed-end investment company. In Camp the Court emphasized that the Comptroller of the Currency had provided no guidance as to the effect of the Glass-Steagall Act on the proposed activity. Whereas in Camp the Court was deprived of administrative “expertise that can enlighten and rationalize the search for the meaning and intent of Congress,” 401 U. S., at 628, in this case the regulatory action by the Board recognized and addressed the concerns that led to the enactment of the Glass-Steagall Act. Contrary to respondent’s argument, the Camp decision therefore affirmatively supports the Board’s action in this case.
IV
The Court of Appeals rested its conclusion that the Board had exceeded its statutory authority on a review of the legislative history of §4 (c)(8). As originally enacted in 1966 the section referred to activities “closely related to the business of banking.” In 1970, when the Act was amended to extend its coverage to holding companies controlling just one bank, the words “business of” were deleted from §4 (c)(8), thereby making the section refer merely to activities “closely related to banking.” The conclusion of the Court of Appeals did not, however, place special reliance on this modest change. Rather, the Court of Appeals was persuaded that in 1956 Congress believed that the Glass-Steagall Act had been enacted in 1933 to “divorc[e] investment from commercial banking” and that the 1970 amendment to § 4 (c) (8) did not alter the intent expressed by the 1956 Congress. 196 U. S. App. D. C., at 110, 606 F. 2d, at 1017.
Congress did intend the Bank Holding Company Act to maintain and even to strengthen Glass-Steagall’s restrictions on the relationship between commercial and investment banking. Part of the motivation underlying the requirement that bank holding companies divest themselves of nonbanking interests was the desire to provide a measure of regulation missing from the Glass-Steagall Act. In 1956, the only provision of the Glass-Steagall Act which regulated bank holding companies was § 19 (e) of the Act, which provided that a bank holding company could not obtain a permit from the Federal Reserve Board entitling it to vote the shares of a bank subsidiary unless it agreed to divest itself within five years of any interest in a company formed for the purpose of, or “engaged principally” in, the issuance or underwriting of securities. This provision was largely ineffectual, because bank holding companies were not subject to the divestiture requirement as long as they did not vote their bank subsidiary shares. Thus bank holding companies were able to avoid Glass-SteagalPs general purpose of separating as completely as possible commercial from investment banking in a way not available to other bank affiliates or banks themselves. The inadequacy of § 19 (e) therefore lay not in the type of affiliation with securities-related firms permitted to bank holding companies but in the ability of holding companies to avoid any restrictions on affiliation by simply not voting their shares. To the extent that Congress strengthened the Glass-Steagall Act, it did so by closing this loophole rather than by imposing further restrictions on the permissible securities-related business of bank affiliates. The clear evidence of a congressional purpose in 1956 to remedy the inadequacy of § 19 (e) of the 1933 Act does not support the conclusion that Congress also intended §4 (c)(8) to be read as totally prohibiting bank holding companies from being “engaged” in any securities-related activities; on the contrary it is more accurately read as merely completing the job of severing the connection between bank holding companies and affiliates “principally engaged” in the securities business.
To invalidate the Board’s regulation, the Court of Appeals had to assume that the activity of managing investments for a customer had been regarded by Congress as an aspect of investment banking rather than an aspect of commercial banking. But the Congress that enacted the Glass-Steagall Act did not take such an expansive viewr of investment banking. Investment advisers and closed-end investment companies are not “principally engaged” in the issuance or the underwriting of securities within the meaning of the Glass-Steagall Act, even if they are so engaged within the meaning of §§16 and 21. Nothing in the legislative history of the Bank Holding Company Act persuades us that Congress in 1956 intended to effect a more complete separation between commercial and investment banking than the separation that the Glass-Steagall Act had achieved with respect to banks in §§16 and 21 and had sought unsuccessfully to achieve with respect to bank holding companies in § 19 (e).
A review of the 1970 Amendments to the Bank Holding Company Act only strengthens this conclusion. On its face the 1970 amendment to § 4 (c) (8) would appear to have broadened the Board’s authority to determine when an activity is sufficiently related to banking to be permissible for a nonbanking subsidiary of a bank holding company. The initial versions of both the House and the Senate bills changed the “closely related” test of § 4 (c) (8) to a “functionally related” test. The Conference Committee’s final version of the bill, however, retained the “closely related” language of the 1956 Act. Whether this indicated that §4 (c)(8) was to have the same scope as it did under the 1956 Act is difficult to discern. For purposes of this case, however, we need not reconcile the conflicting views as to whether the 1970 amendment expanded the scope of § 4 (c)(8), because no one disputes that the Board’s discretion is at least as broad under the 1970 Amendments as it was under the 1956 Act. Therefore, our conclusion that nothing in the 1956 Act or its legislative history indicates that Congress intended to prohibit bank holding companies from acting as investment advisers to closed-end investment companies should also apply to the 1970 Amendments unless Congress specifically indicated that such services should not be authorized by the Board. Not only is there no such specific, evidence, there is affirmative evidence to the contrary.
The legislative history of the 1970 Amendments indicates that Congress did not intend the 1970 Amendments to have any effect on the prohibitions of the Glass-Steagall Act. The Senate chairman of the Conference Committee assured his fellow Senators that the conference bill was intended neither to enlarge nor to restrict the prohibitions contained in the Glass-Steagall Act. Moreover, the Senate Report refers to investment services but declines to state that the Board could not approve under § 4 (c) (8) “bank sponsored mutual funds.” The House’s version of the bill rigidly confined the Board’s discretion in certain areas by including a “laundry list” of activities which the Board could not approve. Included in this list was a prohibition of bank holding company acquisition of shares of any company engaged in “the issue, flotation, underwriting, public sale, or distribution,” of securities, “whether or not any such interests are redeemable.” The Conference Committee deleted this list. This deletion indicates a rejection of the House’s restrictive approach in favor of the Senate’s more flexible attitude toward the Board’s exercise of its discretion. Thus as we read the legislative history of the 1970 Amendments, Congress did not intend the Bank Holding Company Act to limit the Board’s discretion to approve securities-related activity as closely related to banking beyond the prohibitions already contained in the Glass-Steagall Act. This case is therefore one that is best resolved by deferring to the Board’s expertise in determining what activities are encompassed within the plain language of the statute.
Because we have concluded that the Board’s decision to permit bank holding companies to act as investment advisers for closed-end investment companies is consistent with the language of the Bank Holding Company Act, and because such services are not prohibited by the Glass-Steagall Act, we hold that the amendment to Regulation Y does not exceed the Board’s statutory authority. The judgment of the Court of Appeals is
Reversed.
Justice Stewart and Justice Rehnquist took no part in the consideration or decision of this case. Justice Powell took no part in the decision of this case.
The stated purpose of the Bank Holding Company Act of 1956 was “[t]o define bank holding companies, control their future expansion, and require divestment of their nonbanking interests.” 70 Stat. 133.
Section 4 of the statute, as originally enacted, provided in pertinent part:
“(a) Except as otherwise provided in this Act, no bank holding company shall—
“(1) after the date of enactment of this Act acquire direct or indirect ownership or control of any voting shares of any company which is not a bank. . . .
“(c) The prohibitions in this section shall not apply—
“(6) to shares of any company all the activities of which are of a financial, fiduciary, or insurance nature and which the Board after due notice and hearing, and on the basis of the record made at such hearing, by order has determined to be so closely related to the business of banking or of managing or controlling banks as to be a proper incident thereto and as to make it unnecessary for the prohibitions of this section to apply in order to carry out the purposes of this Act.. ..” 70 Stat. 135-137.
The relevant exemption is now found in § 4 (c) (8) which allows holding company ownership of:
“(8) shares of any company the activities of which the Board after due notice and opportunity for hearing has determined (by order or regulation) to be so closely related to banking or managing or controlling banks as to be a proper incident thereto. In determining whether a particular activity is a proper incident to banking or managing or controlling banks the Board shall consider whether its performance by an affiliate of a holding company can reasonably be expected to produce benefits to the public, such as greater convenience, increased competition, or gains in efficiency, that outweigh possible adverse effects, such as undue concentration of resources, decreased or unfair competition, conflicts of interests, or unsound banking practices. In orders and regulations under this subsection, the Board may differentiate between activities commenced de novo and activities commenced by the acquisition, in whole or in part, of a going concern.” 12 U. S. C. § 1843 (c)(8).
See 36 Fed. Reg. 16695, 17514 (1971); 37 Fed. Reg. 1463 (1972); 12 CFR § 225.4 (a) (5) (ii) (1980). The 1972 amendment to Regulation Y made the following addition to the list of permissible activities:
“ (ii) serving as investment adviser, as defined in section 2 (a) (20) of the Investment Company Act of 1940, to an investment company registered under that Act.”
The definition of an investment adviser in § (2) (a) (20) of the Investment Company Act of 1940 reads as follows:
“(20) 'Investment adviser’ of an investment company means (A) any person (other than a bona fide officer, director, trustee, member of an advisory board, or employee of such company, as such) who pursuant to contract with such company regularly furnishes advice to such company with respect to the desirability of investing in, purchasing or selling securities or other property, or is empowered to determine what securities or other property shall be purchased or sold by such company, and (B) any other person who pursuant to contract with a person described in clause (A) of this paragraph regularly performs substantially all of the duties undertaken by such person described in said clause (A); but does not include (i) a person whose advice is furnished solely through uniform publications distributed to subscribers thereto, (ii) a person who furnishes only statistical and other factual information, advice regarding economic factors and trends, or advice as to occasional transactions in specific securities, but without generally furnishing advice or making recommendations regarding the purchase or sale of securities, (iii) a company furnishing such services at cost to one or more investment companies, insurance companies, or other financial institutions, (iv) any person the character and amount of whose compensation for such services must be approved by a court, or (v) such other persons as the Commission may by rules and regulations or order determine not to be within the intent of this definition.” 15 U. S. C. § 80a-2 (20).
1 T. Frankel, The Regulation of Money Managers, I-A, § 2, p. 6 (1978).
Id., at I-B, § 4, pp. 9-10; see Wharton School Study of Mutual Funds, H. R. Rep. No. 2274, 87th Cong., 2d Sess., 467-477 (1962) (hereinafter Wharton School Study); Burks v. Lasker, 441 U. S. 471, 480-481 (1979).
Securities and Exchange Commission Report on the Public Policy Implications of Investment Company Growth, H. R. Rep. No. 2337, 89th Cong., 2d Sess., 8 (1966).
12 CFR §225.125 (c) (1980).
Hearings on S. 3580 before a Senate Subcommittee on Banking and Currency, 76th Cong., 3d Sess., 43 (1940) (hereinafter 1940 Senate Hearings) (statement of Robert E. Healy). As the SEC Report on the Public Policy Implications of Investment Company Growth recognized with respect to open-end funds:
“Since there will always be some shareholders who want to sell, an open-end company must comply with continuous demands for cash from selling stockholders. To offset the resulting cash outflow and because of the strong incentives for growth created by the structure of the industry, the managers of virtually all open-end companies vigorously promote sales of new shares at all times.” H. R. Rep. No. 2337, supra, at 42-43.
Id., at 42.
The ruling would apparently permit a bank holding company to provide investment advice to an open-end investment company if the holding company does not have the authority to make investment decisions or otherwise to control investments of such an advisee. Respondent has not specifically challenged the legality of a relationship that is purely advisory in character.
“(f) In the Board’s opinion, the Glass-Steagall Act provisions, as interpreted by the U. S. Supreme Court, forbid a bank holding company to sponsor, organize or control a mutual fund. However, the Board does not believe that such restrictions apply to closed-end investment companies as long as such companies are not primarily or frequently engaged in the issuance, sale and distribution of securities.” 12 CFR § 225.125 (f) (1980).
Pertinent parts of the interpretive ruling read as follows:
“In no case, however, should a bank holding company act as investment adviser to an investment company which has a name that is similar to, or a variation of, the name of the holding company or any of its subsidiary banks.
“(g) In view of the potential conflicts of interests that may exist, a bank holding company and its bank and nonbank subsidiaries should not (1) purchase for their own account securities of any investment company for which the bank holding company acts as investment adviser; (2) purchase in their sole discretion, any such securities in a fiduciary capacity (including as managing agent); (3) extend credit to any such investment company; or (4) accept the securities of any such investment company as collateral for a loan which is for the purpose of purchasing securities of the investment company.
“ (h) A bank holding company should not engage, directly or indirectly, in the sale or distribution of securities of any investment company for which it acts as investment adviser. Prospectuses or sales literature should not be distributed by the holding company, nor should any literature be made available to the public at any offices of the holding company. In addition, officers and employees of bank subsidiaries should be instructed not to express any opinion with respect to advisability of purchase of securities of any investment company for which the bank holding company acts as investment adviser. Customers of banks in a bank holding company system who request information on an unsolicited basis regarding any investment company for which the bank holding company acts as investment adviser may be furnished the name and address of the fund and its underwriter or distributing company, but the names of bank customers should not be furnished by the bank holding company to the fund or its distributor. Further, a bank holding company should not act as investment adviser to a mutual fund which has offices in any building which is likely to be identified in the public’s mind with the bank holding company.” 12 CFR §§225.125 (f), (g), (h) (1980).
The stated purpose of the 1933 Act was “[t]o provide for the safer and more effective use of the assets of banks, to regulate interbank control, to prevent the undue diversion of funds into speculative operations, and for other purposes.” 48 Stat. 162.
Section 16, as originally enacted, provided in pertinent part:
“The business of dealing in investment securities by [a national bank] shall be limited to purchasing and selling such securities without recourse, solely upon the order, and for the account of, customers, and in no case for its own account, and [a national bank] shall not underwrite any issue of securities: Provided, That [a national bank] may purchase for its own account investment securities under such limitations and restrictions as the Comptroller of the Currency may by regulation prescribe 48 Stat. 184.
Section 16, as amended, is now codified at 12 U. S. C. § 24 (Seventh).
Section 21, provides, in pertinent part, that it is unlawful
“[f]or any person, firm, corporation, association, business trust, or other similar organization, engaged in the business of issuing, underwriting, selling, or distributing, at wholesale or retail, or through syndicate participation, stocks, bonds, debentures, notes, or other securities, to engage at the same time to any extent whatever in the business of receiving deposits subject to check or to repayment upon presentation of a passbook,, certificate of deposit, or other evidence of debt, or upon request of the depositor . . . ." 48 Stat. 189, 12 U. S. C. § 378.
A memorandum submitted to the Board on behalf of the American Bankers Association states, in part: “For well over a century, banks and trust companies in every state have managed and administered customers’ investment funds in the form of trusts, estates and agency accounts.” App. 20. The accuracy of that statement is not challenged.
See Securities Exchange Commission Institutional Investor Study Report Summary, H. R. Doc. No. 92-64, pt. 8, pp. 34-35 (1971).
As we recognized in Investment Company Institute v. Camp, 401 ü. S. 617 (1971):
“National banks were granted trust powers in 1913. Federal Reserve Act, § 11, 38 Stat. 261. The first common trust fund was organized in 1927, and such funds were expressly authorized by the Federal Reserve Board by Regulation F promulgated in 1937. Report on Commingled or Common Trust Funds Administered by Banks and Trust Companies, H. R. Doe. No. 476, 76th Cong., 2d Sess., 4r-5 (1939). For at least a generation, therefore, there has been no reason to doubt that a national bank can, consistently with the banking laws, commingle trust funds on the one hand, and act as a managing agent on the other. No provision of the banking law suggests that it is improper for a national bank to pool trust assets, or to act as a managing agent for individual customers, or to purchase stock for the account of its customers.” Id., at 624^625.
See also Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 307-308 (1950).
See 15 U. S. C. § 80a-3 (c) (3). As David Schenker, an attorney for the SEC, explained at the 1940 Senate Hearings: “We have exempted any common trust fund .... Those common trust funds are a sort of investment trust in which trustees can participate, and they are managed by banks and trust companies.” 1940 Senate Hearings, at 181.
The normal reading of the language of § 4 (c) (8) takes on additional significance in light of the fact, recognized by the Court of Appeals, that the legislative history of the section provides no real guidance as to the scope of the1 exception contained therein. 196 U. S. App. D. C. 97, 110, 606 F. 2d 1004, 1017.
Commenting on an interpretation of the Glass-Steagall Act by the Board in Board of Governors v. Agnew, 329 U. S. 441 (1947), Justice Rutledge observed:
“Not only because Congress has committed the system’s operation to their hands, but also because the system itself is a highly specialized and technical one, requiring expert and coordinated management in all its phases, I think their judgment should be conclusive upon any matter which, like this one, is open to reasonable difference of opinion. Their specialized experience gives them an advantage judges cannot possibly have, not only in dealing with the problems raised for their discretion by the system’s working, but also in ascertaining the meaning Congress had in mind in prescribing the standards by which they should administer it. Accordingly their judgment in such matters should be overturned only where there is no reasonable basis to sustain it or where they exercise it in a manner which clearly exceeds their statutory authority.” Id., at 450.
See also Board of Governors v. First Lincolnwood Corp., 439 U. S. 234, 248 (1978).
A determination by the Board that a particular service is closely related to banking does not end the Board’s role. A bank holding company must submit a specific application with respect to each service it wishes to perform. The Board then determines on the basis of the circumstances of each applicant whether the proposed activity would serve the public interest. See 12 CFR § 225.4 (a) (1980); H. R. Conf. Rep. No. 91-1747, p. 22 (1970); NCNB Corp. v. Board of Governors, 599 F. 2d 609, 610-611 (CA4 1979). If a bank holding company wishes to acquire or retain shares of a company engaged in an activity already approved as “closely related,” the Board publishes notice of the application in the Federal Register for public comment on the “public benefits” issue. 12 CFR § 225.4 (b)(2) (1980).
The Senate Report on the Bank Holding Company Act indicated the importance of the role of the Board in determining what activities would be permitted under § 4 (c) (8):
“[T]here are many other activities of a financial, fiduciary, or insurance nature which cannot be determined to be closely related to banking without a careful examination of the particular type of business carried on under such activity. For this reason your committee deems it advisable to provide a forum before an appropriate Federal authority in which decisions concerning the relationship of such activities to banking can be determined in each case on its merits.” S. Rep. No. 1095, 84th Cong., 1st Sess., pt. 1, p. 13 (1955) (hereinafter 1955 Senate Report).
The legislative history of the Bank Holding Company Act Amendments of 1970 indicated that the Amendments were not intended to cut back on the discretion afforded the Board. As Senator Bennett, a member of the Conference Committee, indicated, the 1970 Amendments maintained “maximum flexibility for the Federal Reserve Board to determine the activities in which a bank holding company and its subsidiaries may engage . . . .” 116 Cong. Rec. 42432 (1970). See n. 58, infra.
See n. 15, supra. We agree with the Court of Appeals that §§ 16 and 21 apply only to banks and not to bank holding companies. Section 21 prohibits firms engaged in the securities business from also receiving deposits. Bank holding companies do not receive deposits, and the language of §21 cannot be read to include within its prohibition separate organizations related by ownership with a bank, which does receive deposits. As the following colloquy, cited by the Court of Appeals, between Senator Glass, cosponsor of the bill, and Senator Robinson indicates, the drafters of the bill agreed with this construction:
“Mr. GLASS. . . . Here [§21] we prohibit the large private banks, whose chief business is investment business, from receiving deposits. We separate them from the deposit banking business.
“Mr. ROBINSON of Arkansas. That means if they wish to receive deposits they must have separate institutions for that purpose?
“Mr. GLASS. Yes.” 77 Cong. Rec. 3730 (1933).
Section 16, which prohibits a national bank from “underwriting” any issue of a security, by its terms applies only to banks. Although respondent contended here and in the Court of Appeals that the bank and its holding company should be treated as a single entity for purposes of applying §§ 16 and 21, the structure of the Glass-Steagall Act indicates to the contrary. Sections 16 and 21 flatly prohibit banks from engaging in the underwriting business. Organizations affiliated with banks, however, are dealt with by other sections of the Act. Section 19 (e), 48 Stat. 188, repealed in pertinent part, 80 Stat. 242, prohibited bank holding companies from voting the shares of a bank subsidiary unless the holding company divested itself of any interest in a subsidiary formed for the purpose of or “engaged principally” in the issuance or underwriting of securities. More importantly, § 20 of the Act, 48 Stat. 188, prohibits national banks or state bank members of the Federal Reserve System from owning securities affiliates, defined in § 2 (b), 48 Stat. 162, that are “engaged principally” in the issuance or underwriting of securities. Thus the structure of the Act reveals a congressional intent to treat banks separately from their affiliates. The reading of the Act urged by respondent would render § 20 meaningless.
Respondent also argues that the regulation authorizes banks as well as bank holding companies and nonbank subsidiaries to act as investment advisers. The operative definition of “bank holding company” in the Board's interpretive ruling includes “their bank and nonbank subsidiaries.” 12 CFR §225.125 (e) (1980). Respondent contends that banks have relied on the interpretive ruling as authorization for them to sponsor investment companies. Brief for Respondent 13-18. The simple answer to this argument is that not only does the interpretive ruling confer no authorization to undertake any activities, but also the Board does not have the power to confer such authorization on banks. As the Board’s opinion in this case stated:
“[T]he Board’s regulation was adopted pursuant to section 4 (c) (8) of the Bank Holding Company Act and authorizes investment advisory activity to be conducted by a nonbanking subsidiary of the holding company. The authority of national banks or state member banks to furnish investment advisory services does not derive from the Board’s regulation; such authority would exist independently of the Board’s regulation and its scope is to be determined by a particular bank’s primary supervisory agency.” App. to Pet. for Cert. 61a.
Thus the regulation applies only to bank holding companies. Although the interpretive ruling applies to banks, that ruling contains only restrictions on the activity permitted by the regulation. The Board’s opinion explained that the restrictions contained in the interpretive ruling were intended to apply to banks when the investment advisory function was performed by a holding company or its nonbanking subsidiaries. Ibid. This imposition of restrictions on banks prevented bank holding companies and their nonbanking subsidiaries from evading the restrictions by allowing subsidiary banks to perform the restricted activities. Whether banks are mistakenly relying on the Board’s interpretive ruling to derive permission to act as investment advisers is not relevant to the determination of the Board’s power to enact the challenged regulation. We do note that at the time of the Court of Appeals decision, the Board represented that no bank had sought the Board’s approval for an investment adviser service that is a prerequisite to acting pursuant to Board authority. See 196 U. S. App. D. G, at 107, n. 26, 606 E. 2d, at 1014, n. 26. Thus although in the discussion to follow we refer to bank affiliation with investment companies, this reference is only for purposes of addressing respondent’s argument that banks would violate the Glass-Steagall Act by serving as investment advisers to closed-end investment companies.
Respondent also contends that the Board’s regulation violates § 20 of the Glass-Steagall Act. The Court of Appeals did not consider the §20 argument, but the respondent has submitted this contention to answer the Board’s argument that § 20 is the only relevant section of the Glass-Steagall Act for purposes of determining what services bank holding companies may provide. Section 20 provides in pertinent part:
“[N]o [national bank] shall be affiliated . . . with any corporation, association, business trust or other similar organization engaged principally in the issue, flotation, underwriting, public sale, or distribution at wholesale or retail or through syndicate participation of stocks, bonds, debentures, notes or other securities.” 48 Stat. 188, 12 U. S. C. § 377.
Although “affiliate” as originally defined in § 2 (b) of the Glass-Steagall Act did not include holding companies, see 48 Stat. 162, Congress in 1966 amended the statute to bring holding companies within the definition of “affiliate” and thereby within the reach of § 20. 80 Stat. 242, 12 U. S. C. §221a (b)(4). In Board of Governors v. Agnew, 329 U. S. 441 (1947), the Court recognized the difference in the extent of prohibition of securities-related activities reflected in the use of the word “engaged” in § 21 as opposed to the use of the words “engaged principally” in § 20. Thus a less stringent standard should apply to determine whether a holding company has violated §20 than is applied to a determination of whether a bank has violated §§ 16 and 21. Nevertheless, the Board’s regulation goes beyond the less stringent standard by prohibiting any involvement by the bank holding company or its subsidiaries in the underwriting or selling of the securities of the investment company. Moreover, the distinction here between closed-end and open-end investment companies is crucial. If, as respondent contends, the closed-end company’s initial issuance of stock were sufficient to render the company “principally engaged” in the issuance of securities, then all corporations, including banks, would at some point be engaged principally in the issuance of securities. We cannot accept this premise. Moreover, given our rejection of this premise, it follows that the investment adviser to such a company is clearly not engaged principally in the issuance of securities. To a certain extent, our conclusions infra with respect to §§ 16 and 21 subsume the argument that the regulation is inconsistent with § 20.
Representative Steagall, cosponsor of the bill, stated in debate:
“[T]he purpose of this legislation is to protect the people of the United States in the right to have banks in which their deposits will be safe. They have a right to expect of Congress the establishment and maintenance of a system of banks in the United States where citizens may place their hard earnings with reasonable expectation of being able to get them out again upon demand.” 77 Cong. Rec. 3837 (1933).
This purpose is also reflected by the fact that a major portion of the Act, around which most of the debate by both Houses centered, was the creation of the Federal Deposit Insurance Corporation. See 48 Stat. 168-180.
S. Rep. No. 77, 73d Cong., 1st Sess., 6, 10 (1933) (hereinafter 1933 Senate Report). Representative Koppleman stated in debate: “One of the chief causes of this depression has been the diversion of depositors’ moneys into the speculative markets of Wall Street.” 77 Cong. Rec. 3907 (1933). See also id., at 3835 (remarks of Rep. Steagall).
1933 Senate Report, at 10. See also 77 Cong. Rec. 3835 (1933) (remarks of Rep. Steagall); id., at 4179, 4180 (remarks of Sen. Bulkley).
1933 Senate Report, at 10. See also 77 Cong. Rec. 3835 (1933) (remarks of Rep. Steagall); id., at 4179, 4180 (remarks of Sen. Bulkley).
See n. 13, supra.
The statutory prohibition in §21 applies to firms “engaged in the business of issuing, underwriting, selling, or distributing at wholesale or retail, or through syndicate participation, stocks, bonds, debentures, notes, or other securities . . .”; that is hardly the sort of language that would be used to describe an investment adviser. Compare the statutory definition of an investment adviser quoted in n. 4, supra.
Section 21 originally prohibited firms “engaged principally” in the business of issuing securities from receiving deposits. Senator Bulkley introduced an amendment striking the word “principally” because “[i]t has become apparent that at least some of the great investment houses are engaged in so many forms of business that there is some doubt as to whether the investment business is the principal one.” 77 Cong. Rec. 4180 (1933). This amendment indicates the type of institution which Congress focused upon in § 21. Senator Glass, in discussing the effect that §21 would have upon the credit supply, indicated that “[i]f we confine to their proper business activities these large private concerns whose principal business is that of dealing in investment securities, . . . and many of which unloaded millions of dollars of worthless investment securities upon the banks of this country, and deny them the right to conduct the deposit bank business at the same time, there will be no difficulty on the face of the globe in financing any business enterprise that needs to be financed at a profit in this country.” 77 Cong. Rec. 4179 (1933).
See nn. 15, 26, supra.
See 12 U. S. C. § 1843 (c) (7). Section 4 (c) (7) even permits a bank holding company to own a controlling interest in an investment company, and § 4 (a) (2) permits a holding company to provide management services to companies in which it has a controlling interest. See 12 U. S. C. § 1843 (a)(2).
It was described as follows:
“Under the plan the bank customer tenders between $10,000 and $500,000 to the bank, together with an authorization making the bank the customer’s managing agent. The customer’s investment is added to the fund, and a written evidence of participation is issued which expresses in ‘units of participation’ the customer’s proportionate interest in fund assets. Units of participation are freely redeemable, and transferable to anyone who has executed a managing agency agreement with the bank. The fund is registered as an investment company under the Investment Company Act of 1940. The bank is the underwriter of the fund’s units of participation within the meaning of that Act.” 401 U. S., at 622-623.
Moreover, the decision by an investment adviser to purchase or sell securities on behalf of a closed-end investment company is critically different from the comparable decision by the operator of the mutual fund reviewed in Camp. When an adviser makes a change in the securities portfolio of a closed-end company, the adviser is acting for the account of its customer — not for its own account. In Camp, however, the securities in the portfolio of the mutual fund were at least arguably the property of the bank itself and therefore the bank was arguably acting for its own account within the meaning of § 16.
The Court recognized that because the bank and its affiliate would be closely associated in the public mind, public confidence in the bank might be impaired if the affiliate performed poorly. Further, depositors of the bank might lose money on investments purchased in reliance on the relationship between the bank and its affiliate. The pressure on banks to prevent this loss of public confidence could induce the bank to make unsound loans to the affiliate or to companies in whose stock the affiliate has invested. Moreover, the association between the commercial and investment bank could result in the commercial bank's reputation for prudence and restraint being attributed, without justification, to an enterprise selling stocks and securities. Furthermore, promotional considerations might induce banks to make loans to customers to be used for the purchase of stocks and might impair the ability of the commercial banker to render disinterested advice. 401 U. S., at 630-634.
The bank could not stray from its obligation to render impartial advice to its customers by promoting the fund, because the interpretive ruling prohibits a bank from giving the names of its depositors to the investment company. 12 CFR §225.125 (h) (1980); see n. 13, supra. Further, the bank could not act as investment adviser to any investment company having a similar name; prospectuses and sales literature of the investment company could not be distributed by the bank; officers and employees of the bank could not express an opinion with respect to the advisability of the purchase of securities of the investment company, and the investment company could not locate its offices in the same building as the bank. Ibid. These restrictions would prevent to a large extent the association in the public mind between the bank and the investment company, as well as the resulting connection between public confidence in the bank and the fortunes of the investment company. Although this association cannot be completely obliterated, we do note that the performance of the large trust funds operated by banks is routinely published. See American Banker, Sept. 2, 1980, pp. 1, 10, 16. The Securities Exchange Act of 1934 requires disclosure of information about the securities portfolios of common trust funds that have a portfolio with an aggregate value of at least $100 million. 15 U. S. C. §78m (f); 17 CFR §240.13f-l (1980).
The advisory fee is the adviser’s consideration for managing the investment company. In 1962 the Wharton School Study of Mutual Funds indicated that the advisory fee charged by advisers to open-end funds was typically one-half of one percent of the value of the fund’s assets. Wharton School Study, at 484. The amount of the advisory fee earned by the adviser to a closed-end company increases only if the value of the investment - portfolio increases. In contrast, the fee of the adviser to a mutual fund increases both with the increase in value of the investment portfolio and through the sale of the company’s shares. SEC Report of Special Study of Securities Markets, H. R. Doc. No. 95, 88th Cong., 1st Sess., pt. 4, pp. 204-205, 96-99 (1963). The fee paid by the closed-end company would provide scant incentive to a bank to risk its assets by making unwise loans to companies whose stock is held by the investment company.
The Court stated:
“The difficulty here is that the Comptroller adopted no expressly articulated position at the administrative level as to the meaning and impact of the provisions of §§ 16 and 21 as they affect bank investment funds.” 401 U. S., at 627.
1955 Senate Report, at 2. See also H. R. Rep. No. 609, 84th Cong., 1st Sess., 16 (1955) (hereinafter 1955 House Report).
Section 19 (e) provided in pertinent part:
“Every such holding company affiliate shall, in its application for such voting permit, (1) show that it does not own, control, or have any interest in, and is not participating in the management or direction of, any corporation, business trust, association, or other similar organization formed for the purpose of, or engaged principally in, the issue, flotation, underwriting, public sale, or distribution, at wholesale or retail or through syndicate participation, of stocks, bonds, debentures, notes, or other securities of any sort (hereinafter referred to as 'securities company’); (2) agree that during the period that the permit remains in force it will not acquire any ownership, control, or interest in any such securities company or participation in the management or direction thereof; (3) agree that if, at the time of filing the application for such permit, it owns, controls, or has an interest, in, or is participating in the management or direction of, any such securities company, it will, within five years after the filing of such application, divest itself of its ownership, control, and interest in such securities company and will cease participating in the management or direction thereof, and will not thereafter, during the period that the permit remains in force, acquire any further ownership, control, or interest in any such securities company or participate in the management or direction thereof . . . 48 Stat. 188.
The “engaged principally” standard is the same standard as is contained in § 20 of the Glass-Steagall Act. Section 19 (e) also required bank holding companies to divest themselves of shares of companies “formed for the purpose of” the issuance or underwriting of securities. We do not view this language as prohibiting securities-related activities that would not also be prohibited by the “engaged principally” standard. All companies formed for the purpose of issuing or underwriting securities would surely meet the “engaged principally” test.
1955 Senate Report, at 2; see S. Rep. No. 1179, 89th Cong., 2d Sess., 12 (1966) (hereinafter 1966 Senate Report).
The Senate Report to the Bank Holding Company Act indicated that as of December 31, 1954, only 18 holding companies had obtained voting permits for bank shares from the Board. The Board estimated that 46 bank holding companies would be subjected to regulation by the Bank Holding Company Act. 1955 Senate Report, at 2.
As we have indicated previously, see n. 26, supra, the words “principally engaged,” contained in both §§ 19 (e) and 20 of the Glass-Steagall Act, the sections applicable to bank affiliates, indicate a significantly less stringent test for determining the permissibility of securities-related activity than does the word “engaged,” contained in §§ 16 and 21, the sections applicable to banks.
See nn. 32, 33, supra, and accompanying text.
See n. 26, supra.
The 1966 Senate Report on the 1966 Amendments to the Bank Holding Company Act states that the purpose of the 1956 Act was in part to serve the “general purposes of the Glass-Steagall Act of 1933 — to prevent unduly extensive connections between banking and other businesses.” 1966 Senate Report, at 2. The legislative history identified by the Court of Appeals merely indicates that Congress recognized the deficiency of § 19 (e), 1955 Senate Report, at 2, or that Congress intended the Bank Holding Company Act to serve some of the same policies that we have identified as motivating the Glass-Steagall Congress:
“Whenever a holding company thus controls both banks and nonbanking businesses, it is apparent that the holding company’s nonbanking businesses may thereby occupy a preferred position over that of their competitors in obtaining bank credit. It is also apparent that in critical times the holding company which operates nonbanking businesses may be subjected to strong temptation to cause the banks which it controls to make loans to its nonbanking affiliates even though such loans may not at that time be entirely justified in the light of current banking standards. In either situation the public interest becomes directly involved.” 1955 House Report, at 16.
The Court of Appeals also cited legislative history indicating that the Board was to have a “limited” authority to administer the § 4 (c) (8) exception. See Control and Regulation of Bank Holding Companies: Hearings on H. R. 2674 before the House Committee on Banking and Currency, 84th Cong., 1st Sess., 14 (1955); Control of Bank Holding Companies: Hearings on S. 880, S. 2350, and H. R. 6277 before a Subcommittee of the Senate Committee on Banking and Currency, 84th Cong., 1st Sess., 76 (1955). The fact that the scope of the Board’s discretion was to be limited sheds no light on the question of Congress’ view of the Glass-Steagall Act. Moreover, although the Court of Appeals relied, as indicative of congressional intent regarding the scope of §4 (c)(8), on the Senate Report’s omission of any securities-related activities from the listing of activities clearly falling within the § 4 (c) (8) exception, 196 U. S. App. D. C., at 110, 606 F. 2d, at 1017, the Senate Report, after listing those obviously related activities, goes on to indicate the importance of the Board’s role in approving other such activities. See 1955 Senate Report, at 13; n. 23, supra. Finally, the Court of Appeals found significance in the repeal of § 19 (e) of Glass-Steagall in 1966 and the Senate Report’s indication that § 19 (e) “serve[d] no substantial purpose” after passage of the 1956 Act. 1966 Senate Report, at 12. At the same time as Congress repealed § 19 (e), however, it amended the definition of “affiliate” in §2 (b) of the Glass-Steagall Act to include bank holding companies, so that the restrictions applying to affiliates contained in §20 of the Act then applied to bank holding companies as well. 80 Stat. 242. Furthermore, the fact that § 19 (e) served no purpose after the passage of the 1956 Act merely indicates that Congress was successful in its attempt to close the loophole left by Congress in the Glass-Steagall Act. It does not indicate that the 1956 Congress sought to impose more substantial restrictions than those contained in § 19 (e) or that the 1956 Congress misperceived the scope of those restrictions.
See S. Rep. No. 91-1084, p. 4 (1970) (hereinafter 1970 Senate Report): “[T]he primary purpose of the pending legislation is to modify the Bank Holding Company Act of 1956 to bring under its provisions those companies controlling one bank See also H. R. Rep. No. 91-387, p. 2 (1969) (hereinafter 1969 House Report).
The 1956 version had required a close connection to the “business of banking.” The 1970 Amendments required only a close connection to “banking.” This change eliminated the requirement that bank holding companies show a close connection between a proposed activity and an activity in which the holding company or its subsidiary already actually engaged. Thus the 1970 amendment to § 4 (c) (8) permitted bank holding companies to engage in any activities closely related to activities generally engaged in by banks. H. R. Conf. Rep. No. 91-1747, p. 16 (1970) (hereinafter 1970 Conference Report); 116 Cong. Rec. 42436 (1970) (remarks of Sen. Bennett).
1969 House Report, at 1; 1970 Senate Report, at 25.
1970 Conference Report, at 5.
The Conference Committee Report, signed by only four of the seven House conference managers, indicated that the “functionally related” test represented a “more liberal and expansive approach by the Federal Reserve Board in authorizing nonbank activities for bank holding companies” and that the retention of the “closely related” language indicated that “Congress was not convinced that such expansion and liberalization was justified.” • Id., at 21. This view was not shared by all of the Senate Members of the Conference Committee, however. Senator Bennett criticized the Conference Report as an inaccurate indication of the conference’s intent and expressed his belief that the conference intended to broaden the power of the Board to determine what activities are closely related to banking. 116 Cong. Rec. 42432-42437 (1970). Senator Bennett indicated that the proposed term “functionally related” was no broader than the retained term “closely related,” and that the removal of the phrase “of a financial, fiduciary, or insurance nature” was intended to reflect an expansion of the Board’s discretion. Id., at 42432-42433. See also id., at 42422 (remarks of Sen. Sparkman). See n. 2, supra. All of the Senators on the Conference Committee, however, did not so perceive the final version of § 4 (c) (8). Senator Proxmire indicated that “the conference committee agreed essentially to retain the standards of the existing 1956 Bank Holding Company Act.” 116 Cong. Rec. 42427 (1970).
During debate on the conference bill, Senator Williams expressed concern about the effect of the 1970 Amendments on the prohibitions of the Glass-Steagall Act:
“Mr. WILLIAMS of New Jersey. I have one question I should like to ask the chairman of the committee.
“Both the Senate and House bills contained, in section 4 (c)(8), substantially similar language reiterating the existing law embodied in the Glass-Steagall Act which provides, essentially, for separation of commercial banking and the securities business. This language does not appear in the bill agreed to by the conferees. I wonder whether there was any intention to imply that the very securities-related activities forbidden to banks directly may nevertheless be engaged in by bank-holding companies or their nonbanking affiliates.
“Mr. SPARKMAN. The answer to the Senator’s question is that there clearly was not. As it now stands, the Glass-Steagall Act broadly prohibits both banks and their affiliates from engaging in what we commonly understand to be the securities business. There are some specific exceptions, of course, but I can assure you that we did not mean to enlarge or contract them here. We regarded that general prohibition as being so clearly applicable to the subjects of this bill as to make a restatement of it unnecessary. The provision to which you referred is already complicated enough. In short, we did not intend to amend or modify, directly or indirectly, any limitations on the activities of banks, bank holding companies or any of their affiliates, now contained in the Glass-Steagall Act. If Congress is to change that longstanding, fundamental statement of public policy, we will have to do so in other legislation. I hope there is no longer any misconception on that point.
“Mr. WILLIAMS of New Jersey. It is reassuring, indeed, to know that the Glass-Steagall Act has not been disturbed in any way and that there is no intention at all here to do so.” Id., at 42430.
See also 1970 Senate Report, at 15. By the time Congress was considering the 1970 Amendments, the definition of “affiliate” contained in § 2 (b) of the Glass-Steagall Act had been amended to include bank holding companies, so that the prohibitions contained in §20 of Glass-Steagall had become applicable to bank holding companies.
1970 Senate Report, at 15. The Report notes that the Senate version of the bill prohibited bank holding companies from holding shares in companies “engaged principally in the issue, flotation, underwriting, public sale, or distribution at wholesale or retail or through syndicate participation of stocks, bonds, debentures, notes or securities.” The Report recognized that this provision was a restatement of the prohibition already contained in the Glass-Steagall Act. The Report goes on to state:
“The inclusion of this provision is not intended to prejudice the rights of banks or bank holding companies or their affiliates to engage in such of these activities as may be permitted under existing law or which may become permissible under this legislation or under any future legislation. In particular, the language is not intended to inhibit the underwriting of revenue bonds nor operating commingled or managing agency accounts (bank sponsored mutual funds) which activities have already been specifically approved in legislation previously reported by this committee and passed by the Senate, if such legislation is finally enacted, if these activities are allowed under the amendments being made by this legislation, or if the activities are permitted by the courts.” Ibid.
When the 1970 Amendments were passed, the status of bank-sponsored mutual funds under the Glass-Steagall Act was unsettled. The District of Columbia Circuit’s decision in National Association of Securities Dealers v. SEC, 136 U. S. App. D. C. 241, 420 F. 2d 83 (1969), approving bank operation of mutual funds, had not yet been reversed by our decision in Investment Company Institute v. Camp, 401 U. S. 617 (1971).
115 Cong. Rec. 33133 (1969).
Senator Goodell stated that “[t]he Senate-passed bill . . . provided the banking industry with a great deal of flexibility regarding expansion into bank-related activities.” 116 Cong. Rec. 42429 (1970). See n. 23, supra. As Senator Sparkman stated of the conference: “We reached a decision that the whole thing ought to be flexible, that it ought to be lodged in the hands of the Federal Reserve Board to carry out the guidelines we set.” 116 Cong. Rec. 42429 (1970).
The Court of Appeals read the colloquy between Senators Williams and Sparkman, see n. 55, supra, as an indication that Congress was under the impression — admittedly incorrect — that the Glass-Steagall Act prohibited the services authorized by the Board here. 196 U. S. App. D. C., at 115, 606 F. 2d, at 1022. In light of the indications in the Senate Report that the Senate did not intend § 4 (e) (8) to foreclose the Board from approving bank-sponsored mutual funds, see n. 56, supra, and accompanying text, the Senate colloquy cited by the Court of Appeals lends scant support to the theory that Congress misunderstood the scope of the Glass-Steagall Act. Moreover, the language deleted from the Senate bill’s version of § 4 (c) (8) to which Senators Sparkman and Williams were referring contained the “principally engaged” standard contained in § 20 of the Glass-Steagall Act, and not the more complete prohibition contained in §§ 16 and 21. See nn. 54, 55, supra. Furthermore, if Congress was confused about the scope of the Glass-Steagall Act, it may have believed that the statute permitted more than is actually the case. See n. 55, supra. Finally, given the flexible approach to § 4 (c) (8) which prevailed in the 1970 Amendments, we must presume that Congress did not intend to adopt a rigid and fixed construction of the Glass-Steagall Act but rather intended that the prevailing view of Glass-Steagall should guide the Board’s discretion.
We also disagree with the Court of Appeals’ conclusion that the policies underlying the 1970 Amendments would be frustrated by permitting bank holding companies to act as investment advisers to closed-end investment companies. See 196 U. S. App. D. C., at 116, 606 F. 2d, at 1023. The first policy, the fear that bank holding companies would improperly further the interests of the nonbanking subsidiary, is adequately protected by the Board’s interpretive ruling. See nn. 38-44, supra, and accompanying text. Furthermore, given our conclusion that the 1970 Amendments at the very least did not cut back on the discretion granted the Board under the 1956 Act, we believe that to the extent that Congress addressed in the 1970 Amendments the second policy, the prevention of centralization of economic power, it did so by eliminating the one bank holding company loophole and not by limiting Board discretion to determine what activities are closely related to banking. 1970 Senate Report at 2-4; 1969 House Report, at 2. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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53
] |
UNITED STATES STEEL CORP. et al. v. MULTISTATE TAX COMMISSION et al.
No. 76-635.
Argued October 11, 1977
Decided February 21, 1978
Erwin N. Griswold argued the cause for appellants. With him on the briefs were Thomas McGanney, Richard A. Hoppe, and Todd B. Sollis.
William D. Dexter argued the cause for appellees. With him on the brief was Samuel N. Oreenspoon.
A brief of amici curiae urging affirmance was filed for their respective States by William J. Baxley, Attorney General of Alabama; Bruce E. Babbitt, Attorney General of Arizona; Carl R. Ajello, Attorney General of Connecticut; Robert L. Shevin, Attorney General of Florida; Arthur K. Bolton, Attorney General of Georgia; William J. Scott, Attorney General of Illinois; Francis B. Burch, Attorney General of Maryland; Francis X. Bellotti, Attorney General of Massachusetts; Rufus L. Edmisten, Attorney General of North Carolina; Warren R. Spannaus, Attorney General of Minnesota; Brooks McLemore, Attorney General of Tennessee; Chauncey H. Browning, Jr., Attorney General of West Virginia; and for the State of Louisiana by David Dawson.
John H. Larson filed a brief for the County of Los Angeles as amicus curiae.
Mr. Justice Powell
delivered the opinion of the Court.
The Compact Clause of Art. I, § 10, cl. 3, of the Constitution provides: “No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . .” The Multistate Tax Compact, which established the Multistate Tax Commission, has not received congressional approval. This appeal requires us to decide whether the Compact is invalid for that reason. We also are required to decide whether it impermissibly encroaches on congressional power under the Commerce Clause and whether it operates in violation of the Fourteenth Amendment.
I
The Multistate Tax Compact was drafted in 1966 and became effective, according to its own terms, on August 4, 1967, after seven States had adopted it. By the inception of this litigation in 1972, 21 States had become members. Its formation was a response to this Court's decision in Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450 (1959), and the congressional activity that followed in its wake.
In Northwestern States, this Court held that net income from the interstate operations of a foreign corporation may be subjected to state taxation, provided that the levy is nondiscriminatory and is fairly apportioned to local activities that form a sufficient nexus to support the exercise of the taxing power. This prompted Congress to enact a statute, Act of Sept. 14, 1959, Pub. L. 86-272, 73 Stat. 555, which sets forth certain minimum standards for the exercise of that power. It also authorized a study for the purpose of recommending legislation establishing uniform standards to be observed by the States in taxing income of interstate businesses. Although the results of the study were published in 1964 and 1965, Congress has not enacted any legislation dealing with the subject.
While Congress was wrestling with the problem, the Multi-state Tax Compact was drafted. It symbolized the recognition that, as applied to multistate businesses, traditional state tax administration was inefficient and costly to both State and taxpayer." In accord with that recognition, Art. I of the Compact states four purposes: (1) facilitating proper determination of state and local tax liability of multistate taxpayers, including the equitable apportionment of tax bases and settlement of apportionment disputes; (2) promoting uniformity and compatibility in state tax systems; (3) facilitating taxpayer convenience and compliance in the filing of tax returns and in other phases of tax administration; and (4) avoiding duplicative taxation.
To these ends, Art. VI creates the Multistate Tax Commission, composed of the tax administrators from all the member States. Section 3 of Art. VI authorizes the Commission (i) to study state and local tax systems; (ii) to' develop and recommend proposals for an increase in uniformity and compatibility of state and local tax laws in order to encourage simplicity and improvement in state and local tax law and administration; (iii) to compile and publish information that may assist member States in implementing the Compact and taxpayers in complying with the tax laws; and (iv) to do all things necessary and incidental to the administration of its functions pursuant to the Compact.
Articles YII and VIII detail more specific powers of the Commission. Under Art. VII, the Commission may adopt uniform administrative regulations in the event that two or more States have uniform provisions relating to specified types of taxes. These regulations are advisory only. Each member State has the power to reject, disregard, amend, or modify any rules or regulations promulgated by the Commission. They have no force in any member State until adopted by that State in accordance with its own law.
Article VIII applies only in those States that specifically adopt it by statute. It authorizes any member State or its subdivision to request that the Commission perform an audit on its behalf. The Commission, as the State’s auditing agent, may seek compulsory process in aid of its auditing power in the courts of any State that has adopted Art. VIII. Information obtained by the audit may be disclosed only in accordance with the laws of the requesting State. Moreover, individual member States retain complete control over all legislation and administrative action affecting the rate of tax, the composition of the tax base (including the determination of the components of taxable income), and the means and methods of determining tax liability and collecting any taxes determined to be due.
Article X permits any party to withdraw from the Compact by enacting a repealing statute. The Compact’s other provisions are of less relevance to the matter before us.
In 1972, appellants brought this action on behalf of them-selves and all other multistate taxpayers threatened with audits by the Commission. They named the Commission, its individual Commissioners, and its Executive Director as defendants. Their complaint challenged the constitutionality of the Compact on four grounds: (1) the Compact, never having received the consent of Congress, is invalid under the Compact Clause; (2) it unreasonably burdens interstate commerce; (3) it violates the rights of multistate taxpayers under the Fourteenth Amendment; and (4) its audit provisions violate the Fourth and Fourteenth Amendments. Appellants sought a declaratory judgment that the Compact is invalid and a permanent injunction barring its operation.
The complaint survived a motion to dismiss. 367 F. Supp. 107 (SDNY 1973). After extensive discovery, appellees moved for summary judgment. A three-judge District Court, convened pursuant to 28 U. S. C. § 2281, rejected appellants' claim that the record would not support summary judgment. 417 F. Supp. 795, 798 (SDNY 1976). Turning to -the merits, the District Court first rejected the contention that the Compact Clause requires congressional consent to every agreement between two or more States. The court cited Virginia v. Tennessee, 148 U. S. 503 (1893), and New Hampshire v. Maine, 426 U. S. 363 (1976), in support of its holding that consent is necessary only in the case of a compact that enhances the political power of the member States in relation to the Federal Government. The District Court found neither enhancement of state political power nor encroachment upon federal supremacy. Concluding that appellants’ Commerce Clause, Fourth Amendment, and Fourteenth Amendment claims also lacked merit, the District Court granted summary judgment for appellees.
Before this Court, appellants have abandoned their search- and-seizure claim. Although they preserved their claim relating to the propriety of summary judgment, we find no reason to disturb the conclusion of the court below on that point. We have before us, therefore, appellant’s contentions under the Compact Clause, the Commerce Clause, and the Fourteenth Amendment. We consider first the Compact Clause contention.
II
Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States. The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in Virginia v. Tennessee, supra. His conclusion that the Clause could not be read literally was approved in subsequent dicta, but this Court did not have occasion expressly to apply it in a holding until our recent decision in New Hampshire v. Maine, supra.
Appellants urge us to abandon Virginia v. Tennessee and New Hampshire v. Maine, but provide no effective alternative other than a literal reading of the Compact Clause. At this late date, we are reluctant to accept this invitation to circumscribe modes of interstate cooperation that do not enhance state power to the detriment of federal supremacy. We have examined, nevertheless, the origin and development of the Clause, to determine whether history lends controlling support to appellants’ position.
Article I, § 10, cl. 1, of the Constitution — the Treaty Clause — declares: “No State, shall enter into Any Treaty, Alliance or Confederation . . . .” Yet Art. I, § 10, cl. 3 — the Compact Clause — permits the States to enter into “agrees ments” or “compacts,” so long as congressional consent is obtained. The Framers clearly perceived compacts and agreements as differing from treaties. The records of the Constitutional Convention, however, are barren of any clue as to the precise contours of the agreements and compacts governed by the Compact Clause. This suggests that the Framers used the words “treaty,” “compact,” and “agreement” as terms of art, for which no explanation was required and with which we are unfamiliar. Further evidence that the Framers ascribed precise meanings to these words appears in contemporary commentary.
Whatever distinct meanings the Framers attributed to the terms in Art. I, § 10, those meanings were soon lost. In 1833, Mr. Justice Story perceived no clear distinction among any of the terms. Lacking any clue as to the categorical definitions the Framers had ascribed to them, Mr. Justice Story-developed his own theory. Treaties, alliances, and confederations, he wrote, generally connote military and political accords and are forbidden to the States. Compacts and agreements, on the other hand, embrace “mere private rights of sovereignty; such as questions of boundary; interests in land situate in the territory of each other; and other internal regulations for the mutual comfort and convenience of States bordering on each other.” 2 J. Story, Commentaries on the Constitution of the United States § 1403, p. 264 (T. Cooley ed. 1873.). In the latter situations, congressional consent was required, Story felt, “in order to check any infringement of the rights of the national government.” Ibid.
The Court’s first opportunity to comment on the scope of the Compact Clause, Holmes v. Jennison, 14 Pet. 540 (1840), proved inconclusive. Holmes had been arrested in Vermont on a warrant issued by Jennison, the Governor. The warrant apparently reflected an informal agreement by Jennison to deliver Holmes to authorities in Canada, where he had been indicted for murder. On a petition for habeas corpus, the Supreme Court of Vermont held Holmes’ detention lawful. Although this Court divided evenly on the question of its jurisdiction to review the decision, Mr. Chief Justice Taney, in an opinion joined by Mr. Justice Story and two others, addressed the merits of Holmes’ claim that Jennison’s informal agreement to surrender him fell within the scope of the Compact Clause. Mr. Chief Justice Taney focused on the fact that the agreement in question was between a State and a foreign government. Since the clear intention of the Framers had been to cut off all communication between the States and foreign powers, id., at 568-579, he concluded that the Compact Clause would permit an arrangement such as the one at issue only if “made under the supervision of the United States ...,” id., at 578. In his separate opinion, Mr. Justice Catron expressed disquiet over what he viewed as Mr. Chief Justice Taney’s literal reading of the Compact Clause, noting that it might threaten agreements between States theretofore considered lawful.
Despite Mr. Justice Catron’s fears, courts faced with the task of applying the Compact Clause appeared reluctant to strike down newly emerging forms of interstate cooperation. For example, in Union Branch R. Co. v. East Tennessee & G. R. Co., 14 Ga. 327 (1853), the Supreme Court of Georgia rejected a Compact Clause challenge to an agreement between Tennessee and Georgia concerning the construction of an interstate railroad. Omitting any mention of Holmes v. Jennison, the Georgia court seized upon Story’s observation that the words “treaty, alliance, and confederation” generally were known to apply to treaties of a political character. Without explanation, the court transferred this description of the Treaty Clause to the Compact Clause, which it perceived as restraining the power of the States only with respect to agreements “which might limit, or infringe upon a full and complete execution by the General Government, of the powers-intended to be delegated by the Federal Constitution . . . 14 Ga., at 339. A broader prohibition could not have been intended, since it was unnecessary to protect the Federal Government. Unless this view was taken, said the court:
“We must hold that a State, without the consent of Congress, can make no sort of contract, whatever, with another State. That it cannot sell to another state, any portion of public property, . . . though it may so sell to individuals. . . .
“We can see no advantage to be gained by, or benefit in such a provision; and hence, we think it was not intended.” Id., at 340.
It was precisely this approach that formed the basis in 1893 for Mr. Justice Field's interpretation of the Compact Clause in Virginia v. Tennessee. In that case, the Court held that Congress tacitly had assented to the running of a boundary between the two States. In an extended dictum, however, Mr. Justice Field took the Court's first opportunity to comment upon the Compact Clause since the neglected essay in Holmes v. Jennison. Mr. Justice Field, echoing the puzzlement expressed by Story 60 years earlier, observed:
“The terms 'agreement' or 'compact' taken by themselves are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting States, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control.” 148 U. S., at 517-518.
Mr., Justice Field followed with four examples of interstate agreements that could in “no respect concern the United States”: (1) an agreement by one State to purchase land within its borders owned by another State; (2) an agreement by one State to ship merchandise over a canal owned by another; (3) an agreement to drain a malarial district on the border between two States; and (4) an agreement to combat an immediate threat, such as invasion or epidemic. As the Compact Clause could not have been intended to reach every possible interstate agreement, it was necessary to construe the terms of the Compact Clause by reference to the object of the entire section in which it appears:
“Looking at the clause in which the terms 'compact’ or 'agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.” Id., at 519.
Mr. Justice Field reiterated this functional view of the Compact Clause a year later in Wharton v. Wise, 153 U. S. 155, 168-170 (1894).
Although this Court did not have occasion to apply Mr. Justice Field’s test for many years, it has been cited with approval on several occasions. Louisiana v. Texas, 176 U. S. 1, 17 (1900); Stearns v. Minnesota, 179 U. S. 223, 246-248 (1900); North Carolina v. Tennessee, 235 U. S. 1, 16 (1914). Moreover, several decisions of this Court have upheld a variety of interstate agreements effected through reciprocal legislation without congressional consent. E. g., St. Louis & S. F. R. Co. v. James, 161 U. S. 545 (1896); Hendrick v. Maryland, 235 U. S. 610 (1915); Bode v. Barrett, 344 U. S. 583 (1953); New York v. O’Neill, 359 U. S. 1 (1959). While none of these cases explicitly applied the Virginia v. Tennessee test, they reaffirmed its underlying assumption: not all agreements between States are subject to the strictures of the Compact Clause. In O’Neill, for example, this Court upheld the Uniform Law to Secure the Attendance of Witnesses from Within or Without the State in Criminal Proceedings, which had been enacted in 41 States and Puerto Rico. That statute permitted the judge of a court of any enacting State to invoke the process of the courts of a sister State for the purpose of compelling the attendance of witnesses at criminal proceedings in the requesting State. Although no Compact Clause question was directly presented, the Court’s opinion touched upon similar concerns:
“The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships. It is not to be construed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual States with a view to increasing harmony within the federalism created by the Constitution. Far from being divisive, this legislation is a catalyst of cohesion. It is within the unrestricted area of action left to the States by the Constitution.” 359 U. S., at 6.
The reciprocal-legislation cases support the soundness of the Virginia v. Tennessee rule, since the mere form of the interstate agreement cannot be dispositive. Agreements effected through reciprocal legislation may present opportunities for enhancement of state power at the expense of the federal supremacy similar to the threats inherent in a more formalized “compact.” Mr. Chief Justice Taney considered this point in Holmes v. Jennison, 14 Pet., at 573:
“Can it be supposed, that the constitutionality of the act depends on the mere form of the agreement? We think not. The Constitution looked to the essence and substance of things, and not to mere form. It would be but an evasion of the constitution to place the question upon the formality with which the agreement is made.”
The Clause reaches both “agreements” and “compacts,” the formal as well as the informal. The relevant inquiry must be one of impact on our federal structure.
This was the status of the Virginia v. Tennessee test until two Terms ago, when we decided New Hampshire v. Maine, 426 U. S. 363 (1976). In that case we specifically applied the test and held that an interstate agreement locating an ancient boundary did not require congressional consent. We reaffirmed Mr. Justice Field's view that the “application of the Compact Clause is limited to agreements that are ‘directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.''' Id., at 369, quoting Virginia v. Tennessee, 148 U. S., at 519. This rule states the proper balance between federal and state power with respect to compacts and agreements among States.
Appellants maintain that history constrains us to limit application of this rule to bilateral agreements involving no independent administrative body. They argue that this Court never has upheld a multilateral agreement creating an active administrative body with extensive powers delegated to it by the States, but lacking congressional consent. It is true that most multilateral compacts have been submitted for congressional approval. But this historical practice, which may simply reflect considerations of caution and convenience on the part of the submitting States, is not controlling. It is also true that the precise interstate mechanism involved in this case has not been presented to this Court before. New York v. O’Neill, supra, however, involving analogous multilateral arrangements, stands as an implicit rejection of appellants’ proposed limitation of the Virginia v. Tennessee rule.
Appellants further urge that the pertinent inquiry is one of potential, rather than actual, impact upon federal supremacy. We agree. But the multilateral nature of the agreement and its establishment of an ongoing administrative body do not, standing alone, present significant potential for conflict with the principles underlying the Compact Clause. The number of parties to an agreement is irrelevant if it does not impermis-sibly enhance state power at the expense of federal supremacy. As to the powers delegated to the administrative body, we think these also must be judged in terms of enhancement of state power in relation to the Federal Government. See Virginia v. Tennessee, supra, at 520 (establishment of commission to run boundary not a “compact”). We turn, therefore, to the application of the Virginia v. Tennessee rule to the Compact before us.
Ill
On its face the Multistate Tax Compact contains no provisions that would enhance the political power of the member States in a way that encroaches upon the supremacy' of the United States. There well may be some incremental increase in the bargaining power of the member States quoad the corporations subject to their respective taxing jurisdictions. Group action in itself may be more influential than independent actions by the States. But the test is whether the Compact enhances state power quoad the National Government. This pact does not purport to authorize the member States to exercise any powers they could not exercise in its absence. Nor is there any delegation of sovereign power to the Commission; each State retains complete freedom to adopt or reject the rules and regulations of the Commission. Moreover, as noted above, each State is free to withdraw at any time. Despite this apparent compatibility of the Compact with the interpretation of the Clause established by our cases, appellants argue that the Compact’s effect is to threaten federal supremacy.
A
Appellants contend initially that the Compact encroaches upon federal supremacy with respect to interstate commerce. This argument, as we understand it, has four principal components. It is claimed, first, that the Commission’s use in its audits of “unitary business” and “combination of income” methods for determining a corporate taxpayer’s income creates a risk of multiple taxation for multistate businesses. Whether or not this risk is a real one, it cannot be attributed to the existence of the Multistate Tax Commission. When the Commission conducts an audit at the request of a member State, it uses the methods adopted by that State. Since appellants do not contest the right of each State to adopt these procedures if it conducted the audits separately, they cannot be heard to complain that a threat to federal supremacy arises from the Commission’s adoption of the unitary-business standard in accord with the wishes of the member States. Indeed, to the extent that the Commission succeeds in promoting uniformity in the application of state taxing principles, the risks of multiple taxation should be diminished.
Appellants’ second contention as to enhancement of state power over interstate commerce is that the Commission’s regulations provide for apportionment of nonbusiness income. This allegedly creates a substantial risk of multiple taxation, since other States are said to allocate this income to the place of commercial domicile. We note first that the regulations of the Commission do not require the apportionment of nonbusiness income. They do define business income, which is apportionable under the regulations, to include elements that might be regarded as nonbusiness income in some States. P-H State & Local Tax Serv. ¶¶ 6100-6286 (1973). But again there is no claim that the member States could not adopt similar definitions in the absence of the Compact. Any State’s ability to exact additional tax revenues from multistate businesses cannot be attributed to the Compact; it is the result of the State’s freedom to select, within constitutional limits, the method it prefers.
The third aspect of the Compact’s operation said to encroach upon federal commerce power involves the Commission’s requirement that multistate businesses under audit file data concerning affiliated corporations. Appellants argue that the costs of compiling financial data of related corporations burden the conduct of interstate commerce for the benefit of the taxing States. Since each State presumably could impose similar fifing requirements individually, however, appellants again do not show that the Commission’s practices, as auditing agent for member States, aggrandize their power or threaten federal control of commerce. Moreover, to the extent that the Commission is engaged in joint audits, appellants’ fifing burdens well may be reduced.
Appellants’ final claim of enhanced state power with respect to commerce is that the “enforcement powers” conferred upon the Commission enable that body to exercise authority over interstate business to a greater extent than the sum of the States’ authority acting individually. This claim also falls short of meeting the standard of Virginia v. Tennessee. Article VIII of the Compact authorizes the Commission to require the attendance of persons and the production of documents in connection with its audits. The Commission, however, has no power to punish failures to comply. It must resort to the courts for compulsory process, as would any auditing agent employed by the individual States. The only novel feature of the Commission’s “enforcement powers” is the provision in Art. VIII permitting the Commission to resort to the courts of any State adopting that Article. Adoption of the Article, then, amounts to nothing more than reciprocal legislation for providing mutual assistance to the auditors of the member States. Reciprocal legislation making the courts of one State available for the better administration of justice in another has been upheld by this Court as a method “to accomplish fruitful and unprohibited ends.” New York v. O’Neill, 359 U. S., at 11. Appellees make no showing that increased effectiveness in the administration of state tax laws, promoted by such legislation, threatens federal supremacy. See n. 21, supra.
B
Appellants further argue that the Compact encroaches upon the power of the United States with respect to foreign relations. They contend that the Commission has conducted multinational audits in which it applied the unitary business method to foreign corporate taxpayers, in conflict with federal policy concerning the taxation of foreign corporations.
This contention was not presented to the court below and in any event lacks substance. The existence of the Compact simply has no bearing on an individual State’s ability to utilize the unitary business method in determining the income of a particular multinational taxpayer. Bass, Ratcliff & Gretton, Ltd. v. State Tax. Comm’n, 266 U. S. 271 (1924). The Commission, as auditing agent, adopts the method only at the behest of a State requesting an audit. To the extent that its use contravenes any foreign policy of the United States, the facial validity of the Compact is not implicated.
C
Appellants’ final Compact Clause argument charges that the Compact impairs the sovereign rights of nonmember States. Appellants declare, without explanation, that if the use of the unitary business and combination methods continues to spread among the Western States, unfairness in taxation — presumably the risks of multiple taxation — will be avoidable only through the efforts of some coordinating body. Appellants cite the belief of the Commission’s Executive Director that the Commission represents the only available vehicle for effective coordination, and conclude that the Compact exerts undue pressure to join upon nonmember States in violation of their “sovereign right” to refuse.
We find no support for this conclusion. It has not been shown that any unfair taxation of multistate business resulting from the disparate use of combination and other methods will redound to the benefit of any particular group of States or to the harm of others. Even if the existence of such a situation were demonstrated, it could not be ascribed to the existence of the Compact. Each member State is free to adopt the auditing procedures it thinks best, just as it could if the Compact did not exist. Risks of unfairness and double taxation, then, are independent of the Compact.
Moreover, it is not explained how any economic pressure that does exist is an affront to the sovereignty of nonmember States. Any time a State adopts a fiscal or administrative policy that affects the programs of a sister State, pressure to modify those programs may result. Unless that pressure transgresses the bounds of the Commerce Clause or the Privileges and Immunities Clause of Art. IV, § 2, see, e. g., Austin v. New Hampshire, 420 U. S. 656 (1975), it is not clear how our federal structure is implicated. Appellants do not argue that an individual State's decision to apportion nonbusiness income — or to define business income broadly, as the regulations of the Commission actually do — -touches upon constitutional strictures. This being so, we are not persuaded that the same decision becomes a threat to the sovereignty of other States if a member State makes this decision upon the Commission's recommendation.
IY
Appellants further challenge, on relatively narrow grounds, the validity of the Multistate Tax Compact under the Commerce Clause and the Fourteenth Amendment. They allege that the Commission has abused its powers by conducting a campaign of harassment against members of the plaintiff class. Specifically, they claim that the Commission induced eight States to issue burdensome requests for production of documents and to deviate from the provisions of state law by issuing arbitrary assessments against taxpayers who refuse to comply with these harassing production orders.
These allegations do not establish that the Compact is in violation either of the Commerce Clause or the Fourteenth Amendment. We observe first that this contention was not presented to the court below. The only evidence of record relating to the allegations are statements in the affidavit of appellants’ counsel and an ambiguous excerpt from a letter of the Commission to the Director of Taxation of the State of Hawaii, quoted therein. App. 51-53. On this fragile basis, we hardly would be justified in making an initial finding of fact that appellees engaged in the campaign sketched in the affidavit.
Even if appellants’ factual allegations were supported by the record, they would be irrelevant to the facial validity of the Compact. As we have noted above, it is only the individual State, not the Commission, that has the power to issue an assessment — whether arbitrary or not. If the assessment violates state law, we must assume that state remedies are available. E. g., Colgate-Palmolive Co. v. Dorgan, 225 N. W. 2d 278 (N. D. 1974).
Y
We conclude that appellants’ constitutional challenge to the Multistate Tax Compact fails. We affirm the judgment of the District Court.
Affirmed.
Those States were: Alaska, Alaska Stat. Ann. §43.19.010 (1977); Arkansas, Ark. Stat. Ann. § 84-4101 (Supp. 1977); Colorado, Colo. Rev. Stat. §24-60-1301 (1973); Florida, Fla. Stat. §213.15 (1971); Haw. Rev. Stat. § 255-1 (Supp. 1976); Idaho, Idaho Code § 63-3701 (1976); Illinois, Ill. Rev. Stat., ch. 120, § 871 (1973); Indiana, Ind. Code § 6-8-9-101 (1972); Kansas, Kan. Stat. Ann. § 79-4301 (1969); Michigan, Mich. Comp. Laws §205.581 (1970); Missouri, Mo. Rev. Stat. §32.200 (1969); Montana, Mont. Rev. Codes Ann. § 84-6701 (Supp. 1977); Nebraska, Neb. Rev. Stat. §77-2901 (1943); Nevada, Nev. Rev. Stat. §376.010 (1973); New Mexico, N. M. Stat. Ann. § 72-15A-37 (Supp. 1975); North Dakota, N. D. Cent. Code §57-59-01 (1972); Oregon, Ore. Rev. Stat. § 305.655 (1977); Texas, Tex. Rev. Civ. Stat. Ann., Art. 7359a (Vernon Supp. 1977); Utah, Utah Code Ann. §59-22-1 (1953 and Supp. 1977); Washington, Wash. Rev. Code § 82.56.010 (1974); Wyoming, Wyo. Stat. §39-376 (Supp. 1975).
Since the suit began, four States — Florida, Illinois, Indiana, and Wyoming — have withdrawn from the Compact, see 1976 Fla. Laws, ch. 76-149, § 1; 1975 HI. Laws, No. 79-639, § 1; 1977 Ind. Acts, No. 90; 1977 Wyo. Sess. Laws, ch. 44, § 1. Two others — California and South Dakota— have joined it, see Cal. Rev. & Tax. Code Ann. § 38001 (West Supp. 1977); S. D. Comp. Laws Ann. § 10-54r-l (Supp. 1977), for a current total of 19 members.
Title I of Pub. L. 86-272, codified as 15 U. S. C. §§ 381-384, essentially forbids the imposition of a tax on a foreign corporation’s net income derived from activities within a State, if those activities are limited to the solicitation of orders that are approved, filled, and shipped from a point outside the State.
H. R. Rep. No. 1480, 88th Cong., 2d Sess. (1964); H. R. Rep. No. 565, 89th Cong., 1st Sess. (1965); H. R. Rep. No. 952, 89th Cong., 1st Sess. (1965).
There have been several unsuccessful attempts. H. R. 11798, 89th Cong., 1st Sess. (1965); H. R. 16491, 89th Cong., 2d Sess. (1966); S. 317, 92d Cong., 1st Sess. (1971); H. R. 1538, 92d Cong., 1st Sess. (1971); S. 1245, 93d Cong., 1st Sess. (1973); H. R. 977, 93d Cong., 1st Sess. (1973); S. 2080, 94th Cong., 1st Sess. (1975); H. R. 9, 94th Cong., 1st Sess. (1975).
The model Act proposed as the Multistate Tax Compact, with minor exceptions, has been adopted by each member State.
Article II consists of definitions. Article III permits small taxpayers— those whose only activities within the jurisdiction consist of sales totaling less than $100,000 — to elect to pay a tax on gross sales in lieu of a levy on net income. The Uniform Division of Income for Tax Purposes Act, contained in Art. IV, allows multistate taxpayers to apportion and allocate their income under formulae and rules set forth in the Compact or by any other method available under state law. It was approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association in 1957. Article V deals with sales and use taxes. Article IX provides for arbitration of disputes, but is not in effect. Article XI disclaims any attempt to affect the power of member States to fix rates of taxation or limit the jurisdiction of any court. Finally, Art. XII provides for liberal construction and severability.
The action was filed by United States Steel Corp., Standard Brands Inc., General Mills, Inc., and the Procter & Gamble Distributing Co. On February 5, 1974, the court below permitted Bethlehem Steel Corp., Bristol Myers Co., Eltra Corp., Goodyear Tire & Rubber Co., Green Giant Co., International Business Machines Corp., International Harvester Co., International Paper Co., International Telephone & Telegraph Corp., McGraw-Hill, Inc., NL Industries, Inc., Union Carbide Corp., and Xerox Corp. to intervene as plaintiffs. The court below ordered that the suit proceed as a class action. International Business Machines and Xerox withdrew as intervenor plaintiffs before decision.
Congressional consent has been sought, but never obtained. See S. 3892, 89th Cong., 2d Sess. (1966); S. 883, 90th Cong., 1st Sess. (1967); S. 1551, 90th Cong., 1st Sess. (1967); H. R. 9476, 90th Cong., 1st Sess. (1967); H. R. 13682, 90th Cong., 1st Sess. (1967); S. 1198, 91st Cong., 1st Sess. (1969); H. R. 6246, 91st Cong., 1st Sess. (1969); H. R. 9873, 91st Cong., 1st Sess. (1969); S. 1883, 92d Cong., 1st Sess. (1971); H. R. 6160, 92d Cong., 1st Sess. (1971); S. 3333, 92d Cong., 2d Sess. (1972); S. 2092, 93d Cong., 1st Sess. (1973).
E. g., Wharton v. Wise, 153 U. S. 155, 168-170 (1894); North Carolina v. Tennessee, 235 U. S. 1, 16 (1914).
The history of interstate agreements under the Articles of Confederation suggests the same distinction between "treaties, alliances, and confederations” on the one hand, and “agreements and compacts” on the other. Article VI provided in part as follows:
“No State without the consent of the United States, in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any confe[r]ence, agreement, alliance or treaty, with any long, prince or state ....
“No two or more States shall enter into any treaty, confederation, or alliance whatever, between them, without the consent of the United States, in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.”
Congressional consent clearly was required before a State could enter into an “agreement” with a foreign state or power or before two or more States could enter into “treaties, alliances, or confederations.” Apparently, however, consent was not required for mere “agreements” between States. “The articles inhibiting any treaty, confederation, or alliance between the States without the consent of Congress . . . were not designed to prevent arrangements between adjoining States to facilitate the free intercourse of their citizens, or remove barriers to their peace, and prosperity . . . Wharton v. Wise, supra, at. 167.
For example, the Virginia-Maryland Compact of 1785, which governed navigation and fishing rights in the Potomac River, the Pocomoke River, and the Chesapeake Bay, did not receive congressional approval, yet no question concerning its validity under Art. VI ever arose. As the Court noted in Wharton v. Wise, in reference to the 1785 Compact, “looking at the object evidently intended by the prohibition of the Articles of Confederation, we are clear they were not directed against agreements of the character expressed by the compact. under consideration. Its execution could in no respect encroach upon or weaken the general authority of Congress under those articles. Various compacts were entered into between Pennsylvania and New Jersey and between Pennsylvania and Virginia, during the Confederation, in reference to boundaries between them, and to rights of fishery in their waters, and to titles to land in their respective States, without the consent of Congress, which indicated that such consent was not deemed essential to their validity.” 153 U. S., at 170-171.
On July 25, 1787, the Convention created a Committee of Detail composed of John Rutledge, James Wilson, Edmund Randolph, Nathaniel Gorham, and Oliver Elsworth. The Convention then adjourned until August 6 to allow the Committee to prepare a draft. 2 M. Farrand, Records of the Federal Convention of 1787, pp. 97, 128 (1911). Section 10 of the Committee’s first draft provided in part: “No State shall enter into any Treaty, Alliance or Confederation with any foreign Power-nor witht. Const, of U. S. into any agreemt. or compact wh another State or Power . . . .” Id,., at 169 (abbreviations in original). On August 6, the Committee submitted a draft to the Convention containing the following articles:
“XII No State shall . . . enter into any treaty, alliance, or confederation ....
“XIII No State, without the consent of the Legislature of the United States, shall . . . enter into any agreement or compact with another State, or with any foreign power . . . .” Id., at 187.
The Committee of Style, created to revise the draft, reported on September 12, id., at 590, but nothing appears to have been said about Art. I, § 10, which contained the treaty and compact language incorporated into the Constitution as approved on September 17. The records of the state ratification conventions also shed no light. Publius declared only that the prohibition against treaties, alliances, and confederation, “for reasons which need no explanation, is copied into the new Constitution,” while the portion of Art. I, § 10, containing the Compact Clause fell “within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark.” The Federalist, No. 44, pp. 299, 302 (J. Cooke ed. 1961) (J. Madison).
Some commentators have theorized that the Framers understood those terms in relation to the precisely defined categories, fashionable in the contemporary literature of international law, of accords between sovereigns. See, e. g., Engdahl, Characterization of Interstate Arrangements: When Is a Compact Not a Compact?, 64 Mich. L. Rev. 63 (1965); Weinfeld, What Did the Framers of the Federal Constitution Mean by “Agreements or Compacts”?, 3 U. Chi. L. Rev. 453 (1936). The international jurist most widely cited in the first 50 years after the Revolution was Emmerich de Yattel. 1 J. Kent, Commentaries on American Law 18 (1826). In 1775, Benjamin Franklin acknowledged receipt of three copies of a new edition, in French, of VattePs Law of Nations and remarked that the book “has been continually in the hands of the members of our Congress now sitting 2 F. Wharton, United States Revolutionary Diplomatic Correspondence 64 (1889), cited in Weinfeld, supra, at 458.
Yattel differentiated between “treaties,” which were made either for perpetuity or for a considerable period, and “agreements, conventions, and pactions,” which “are perfected in their execution once for all.” E. Vattel, Law of Nations 192 (J. Chitty ed. 1883). Unlike a “treaty” or “alliance,” an “agreement” or “paction^ was perfected upon execution:
“[T]hose compacts, which are accomplished once for all, and not by successive acts, — are no sooner executed then they are completed .and perfected. If they are valid, they have in their own nature a perpetual and irrevocable effect . . . .” Id., at 208.
This distinction between supposedly ongoing accords, such as military alliances, and instantaneously executed, though perpetually effective, agreements, such as boundary settlements, may have informed the drafting in Art. I, § 10. The Framers clearly recognized the necessity for amicable resolution of boundary disputes and related grievances. See Virginia v. West Virginia, 246 U. S. 565, 597-600 (1918); Frankfurter & Landis, The Compact Clause of the Constitution — A Study in Interstate Adjustments, 34 Yale L. J. 685, 692-695 (1925). Interstate agreements were a method with which they were familiar. Id., at 694, 732-734. Although these dispositive compacts affected the interests of the States involved, they did not represent the continuing threat to the other States embodied in a “treaty of alliance,” to use Vattel’s words. E. Yattel, supra, at 192.
St. George Tucker, who along with Madison and Edmund Randolph was a Virginia commissioner to the Annapolis Convention of 1786, drew a distinction between “treaties, alliances, and confederations” on the one hand, and “agreements or compacts” on the other:
“The former relate ordinarily to subjects of great national magnitude and importance, and are often perpetual, or made for a considerable period of time; the power of making these is altogether prohibited to the individual states; but agreements, or compacts, concerning transitory or local affairs, or such as cannot possibly affect any other interest but that of the parties, may still be entered into by the respective states, with the consent of congress.” 1 W. Blackstone, Commentaries, Appendix 310 (S. Tucker ed. 1803) (footnotes omitted).
Tucker cited Vattel as authority for his interpretation of Art. I, § 10.
Mr. Justice Story found Tucker’s view, see n. 13, supra, unilluminating:
“What precise distinction is here intended to be taken between treaties, and agreements, and compacts, is nowhere explained, and has never as yet been subjected to any exact judicial or other examination. A learned commentator, however, supposes, that the former ordinarily relate to subjects of great national magnitude and importance,' and are often perpetual, or for a great length of time; but that the latter relate to transitory or local concerns, or such as cannot possibly affect any other interests but those of the parties [citing Tucker]. But this is at best a very loose and unsatisfactory exposition, leaving the whole matter open to the most latitudinarian construction. What are subjects of great national magnitude and importance? Why may not a compact or agreement between States be perpetual? If it may not, what shall be its duration? Are not treaties often made for short periods, and upon questions of local interest, and for temporary objects?” 2 J. Story, Commentaries on the Constitution of the United States § 1402, p. 263 (T. Cooley ed. 1873) (footnotes omitted).
In Green v. Biddle, 8 Wheat. 1 (1823), the Court, including Mr. Justice Story, had been presented with a question of the validity of the Virginia-Kentucky Compact of 1789, to which Congress had never expressly assented. Henry Clay argued to the Court that the Compact Clause extended “to all agreements or compacts, no matter what is the subject of them. It is immaterial, therefore, whether that subject be harmless or dangerous to the Union.” Id., at 39. The Court did not address that issue, however, for it held that Congress’ consent could be implied. Id., at 87.
Notwithstanding Mr. Justice Catron’s unease, Mr. Chief Justice Taney’s opinion in Jennison is not inconsistent with the rule of Virginia v. Tennessee. At some length, Taney emphasized that the State was exercising the power to extradite persons sought for crimes in other countries, which was part of the exclusive foreign relations power expressly reserved to the Federal Government. He concluded, therefore, that the State’s agreement would be constitutional only if made under the supervision of the United States.
After the Jennison case had been disposed of by the Court, the Vermont court discharged Holmes. It concluded from an examination of the five separate opinions in the case that a majority of this Court believed the Governor had no power to deliver Holmes to Canadian authorities. Holmes v. Jennison, 14 Pet. 540, 597 (1840) (Reporter’s Note).
See generally Abel, Interstate Cooperation as a Child, 32 Iowa L. Rev. 203 (1947); Engdahl, supra, n. 12, at 86.
The court failed to mention that Story described the terms of the Treaty Clause, not the Compact Clause, as political. It was the political character of treaties, in his view, that led to their absolute prohibition. Story theorized that the Compact Clause dealt with “private rights of sovereignty,” see supra, at 464, but that congressional consent was required to prevent possible abuses.
Taking a similar view of the Compact Clause, and also ignoring Holmes v. Jennison, were Dover v. Portsmouth Bridge, 17 N. H. 200 (1845), and Fisher v. Steele, 39 La. Ann. 447, 1 So. 882 (1887). Holmes v. Jennison apparently was not cited in a case relating to the Compact Clause until 1917, 14 years after Mr. Justice Field formulated the rule of Virginia v. Tennessee. See McHenry County v. Brady, 37 N. D. 59, 70, 163 N. W. 540, 544 (1917).
Mr. Chief Justice Taney may have shared the Georgia court’s view of compacts which, unlike the “agreement” in Holmes v. Jennison, did not implicate the foreign relations power of the United States. A year after Union Branch B. Co. was decided, he suggested in dictum that the Compact Clause is aimed at an accord that is “in its nature, a political question, to be settled by compact made by the political departments of the government.” Florida v. Georgia, 17 How. 478, 494 (1855). The purpose of the Clause, he declared, is “to guard the rights and interests of the other States, and to prevent any compact or agreement between any two States, which might affect injuriously the interest of the others.” A similar concern with agreements of a political nature may be found in a dictum of Mr. Chief Justice Marshall:
“It is worthy of remark, too, that these inhibitions [of Art. I, §10] generally restrain state legislation on subjects entrusted to the general government, or in which the people of all the states feel an interest.
“A state is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty making power which is conferred entirely on the general government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution.” Barron v. Baltimore, 7 Pet. 243, 249 (1833).
In support of this conclusion, Mr. Justice Field misread Story’s Commentaries in precisely the same way as the Georgia court did in Union Branch R. Co. See n. 17, supra.
State courts repeatedly have applied the test in confirming the validity of a variety of interstate agreements. E. g., McHenry County v. Brady, supra; Dixie Wholesale Grocery, Inc. v. Martin, 278 Ky. 705, 129 S. W. 2d 181, cert. denied, 308 U. S. 609 (1939); Ham v. Maine-New Hampshire Interstate Bridge Authority, 92 N. H. 268, 30 A. 2d 1 (1943); Roberts Tobacco Co. v. Department of Revenue, 322 Mich. 519, 34 N. W. 2d 54 (1948); Bode v. Barrett, 412 Ill. 204, 106 N. E. 2d 521 (1952), aff’d, 344 U. S. 583 (1953); Landes v. Landes, 1 N. Y. 2d 358, 135 N. E. 2d 562, appeal dismissed, 352 U. S. 948 (1956); Ivey v. Ayers, 301 S. W. 2d 790 (Mo. 1957); State v. Doe, 149 Conn. 216, 178 A. 2d 271 (1962); General Expressways, Inc. v. Iowa Reciprocity Board, 163 N. W. 2d 413 (Iowa, 1968); Kinnear v. Hertz Corp., 86 Wash. 2d 407, 545 P. 2d 1186 (1976). See also Henderson v. Delaware River Joint Toll Bridge Comm’n, 362 Pa. 475, 66 A. 2d 843 (1949); Opinion of the Justices, 344 Mass. 770, 184 N. E. 2d 353 (1962); State v. Ford, 213 Tenn. 582, 376 S. W. 2d 486 (1964); Dresden School Dist. v. Hanover School Dist., 105 N. H. 286, 198 A. 2d 656 (1964); Colgate-Palmolive Co. v. Dorgan, 225 N. W. 2d 278 (N. D. 1974).
One commentator has noted the relevance of reciprocal-legislation cases, particularly those involving reciprocal tax statutes, to Compact Clause adjudication:
“Compact clause adjudication focuses on a federalism formula suggested in an 1893 Supreme Court case [Virginia v. Tennessee]: congressional consent is required to validate only those compacts infringing upon 'the political power or influence’ of particular states and ‘encroaching . . . upon the full and free exercise of Federal authority.’ Reciprocal tax statutes, which provide the paradigm instance of arrangements not deemed to require the consent of Congress, illustrate this principle in that they neither project a new presence onto the federal system nor alter any state’s basic sphere of authority.” Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies about Federalism, 89 Harv. L. Rev. 682, 712 (1976) (footnotes omitted).
See also Frankfurter & Landis, supra, n. 12, at 690-691.
Although there is language in West Virginia ex rel. Dyer v. Sims, 341 U. S. 22, 27 (1951), that could be read to suggest that the formal nature of a “compact” distinguishes it from reciprocal legislation, that language, properly understood, does not undercut our analysis. Referring in dictum to the compact at issue in Dyer, Mr. Justice Frankfurter observed that congressional consent had been required, “as for all compacts.” The word “compact” in that phrase must be understood as a term of art, meaning those agreements falling within the scope of the Compact Clause. Cf. Frankfurter & Landis, supra n. 12, at 690, and n. 22a. Otherwise, the word “agreement” is read out of Art. I, § 10, cl. 3, entirely.
Appellants describe various Compacts, including the Interstate Compact to Conserve Oil and Gas Act of 1935, 49 Stat. 939, and the Interstate Compact to Conserve Oil and Gas (Extension) of 1976, 90 Stat. 2365, and attempt to show that they are similar to the Compact before us. They then point out that the Compacts they describe received the consent of Congress and argue from this fact that the Multistate Tax Compact also must receive congressional consent in order to be valid. These other Compacts are not before us. We have no occasion to decide whether congressional consent was necessary to their constitutional operation, nor have we any reason to compare those Compacts to the one before us. It suffices to test the Multistate Tax Compact under the rule of Virginia v. Tennessee.
The “unitary business” technique involves calculating a corporate taxpayer’s net income on the basis of all phases of the operation of a single enterprise (e. g., production of components, assembly, packing, distribution, sales), even if located outside the jurisdiction. The portion of that income attributable to activities within the taxing State is then determined by means of an apportionment formula. See, e. g., Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 (1920). “Combination of income” involves applying the unitary business concept to separately incorporated entities engaged in a single enterprise. See Edison California Stores, Inc. v. McColgan, 30 Cal. 2d 472, 183 P. 2d 16 (1947).
Individual States are free to employ the unitary-business standard. Underwood Typewriter Co. v. Chamberlain, supra; accord, Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, 266 U. S. 271 (1924). Nor do appellants claim that individual States could not employ the combination method of determining taxpayer income. Cf. Edison California Stores, supra.
Taxable income deemed apportionable is that which is not considered to have its source totally within one State. It is distributed by means of an apportionment formula among the States in which the multistate business operates. Taxable income deemed allocable is that which is considered as having its source within one State and is assigned entirely to that State for tax purposes. See generally Sharpe, State Taxation of Interstate Businesses and the Multistate Tax Compact: The Search for a Delicate Uniformity, 11 Colum. J. Law & Soc. Prob. 231, 233-239 (1975). “Business income” is defined generally as income arising from activities in the regular course of the taxpayer’s business. See, e. g., Uniform Division of Income for Tax Purposes Act § 1 (a). Definitions of income arising in the regular course of business vary from one State to another. For example, rents and royalities may be considered business income in one State, but not in another. See generally Sharpe, supra, at 233-239.
For example, appellants raise no challenge to the many reciprocal statutes providing for recovery of taxes owing to one State in the courts of another. A typical statute is Tennessee’s: “Any state of the United States or the political subdivisions thereof shall have the right to sue in the courts of Tennessee to recover any tax which may be owing to it when the like right is accorded to the state of Tennessee and its political subdivisions by such state.” Tenn. Code Ann. §20-1709 (1955). See generally Leflar, Out-of-State Collection of State and Local Taxes, 29 Vand. L. Rev. 443 (1976).
Tax Convention with the United Kingdom of Great Britain and Northern Ireland, 94th Cong., 2d Sess. (1976) (as published in Message from President submitting Convention); Protocol to the 1975 Tax Convention with the United Kingdom of Great Britain and Northern Ireland, 94th Cong., 2d Sess. (1976) (as published in Message from President submitting Protocol); Second Protocol to the 1975 Tax Convention with the United Kingdom of Great Britain and Northern Ireland, 95th Cong., 1st Sess. (1977) (as published in Message from President submitting Second Protocol). Article 9, ¶ 4, of the treaty, which is currently pending before the Senate, would prohibit the combination of the income of any enterprise doing business in the United States with the income of related enterprises located in the United Kingdom.
Corrigan, Interstate Corporate Income Taxation — Recent Revolutions and a Modern Response, 29 Vand. L. Rev. 423, 441-442 (1976).
Appellants do not specify in their brief which Clause of the Fourteenth Amendment is violated. Our conclusion makes it unnecessary to consider each one.
Appellants conceded this point in the hearing before the three-judge court. Tr. of Hearing, Feb. 3, 1976, pp. 16-18. Cf. State Tax Comm’n v. Union Carbide Corp., 386 F. Supp. 250 (Idaho 1974).
The dissent appears to confuse potential impact on “federal interests” with threats to “federal supremacy.” It dwells at some length on the unsuccessful efforts to obtain express congressional approval of this Compact, relying on the introduction of bills that never reached the floor of either House. This history of congressional inaction is viewed as “demon-stratfing] ... a federal interest in the rules for apportioning multistate and multinational income,” and as showing “a -potential impact on federal concerns.” Post, at 488, 489. That there is a federal interest no one denies.
The dissent’s focus on the existence of federal concerns misreads Virginia v. Tennessee and New Hampshire v. Maine. The relevant inquiry under those decisions is whether a compact tends to increase the political power of the States in a way that “may encroach upon or interfere with the just supremacy of the United States.” Virginia v. Tennessee, 148 U. S., at 519. Absent a threat of encroachment or interference through enhanced state power, the existence of a federal interest is irrelevant. Indeed, every state cooperative action touching interstate or foreign commerce implicates some federal interest. Were that the test under the Compact Clause, virtually all interstate agreements and reciprocal legislation would require congressional approval.
In this case, the Multistate Tax Compact is concerned with a number of state activities that affect interstate and foreign commerce. But as we have indicated at some length in this opinion, the terms of the Compact do not enhance the power of the member States to affect federal supremacy in those areas.
The dissent appears to argue that the political influence of the member States is enhanced by this Compact, making it more difficult — in terms of the political process — to enact pre-emptive legislation. We may assume that there is strength in numbers and organization. But enhanced capacity to lobby within the federal legislative process falls far short of threatened “encroach[ment] upon or interfer[ence] with the just supremacy of the United States.” Federal power in the relevant areas remains plenary; no action authorized by the Constitution is “foreclosed,” see post, at 491, to the Federal Government acting through Congress or the treatymaking power.
The dissent also offers several aspects of the Compact that are thought to confer “synergistic” powers upon the member States. Post, at 491-493. We perceive no threat to federal supremacy in any of those provisions. See, e. g., Virginia v. Tennessee, supra, at 520. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
74
] |
JAGO, FORMER SUPERINTENDENT, SOUTHERN OHIO CORRECTIONAL FACILITY, et al. v. VAN CUREN
No. 80-1942.
Decided November 9, 1981
Per Curiam.
After pleading guilty to embezzlement and related crimes, respondent was sentenced by an Ohio court to not less than 6 nor more than 100 years in prison. Under existing law respondent would have become eligible for parole in March 1976. On January 1, 1974, however, Ohio enacted a “shock parole” statute which provided for the early parole of first offenders who had served more than six months in prison for nonviolent crimes. Ohio Rev. Code Ann. §2967.31 (1975).
Pursuant to this statute, respondent was interviewed on April 17, 1974, by a panel representing the Ohio Adult Parole Authority (OAPA). The panel recommended that respondent be paroled “on or after April 23, 1974,” and OAPA subsequently approved the panel’s recommendation. Respondent was notified of the decision by a parole agreement which stated:
“The Members of the Parole Board have agreed that you have earned the opportunity of parole and eventually a final release from your present conviction. The Parole Board is therefore ordering a Parole Release in your case.” Brief in Opposition 1.
Respondent attended and completed prison prerelease classes and was measured for civilian clothes.
At a meeting six days after the panel’s interview with respondent, OAPA was informed that respondent had not been entirely truthful in the interview or in the parole plan that he had submitted to his parole officers. Specifically, respondent had told the panel that he had embezzled $1 million when in fact he had embezzled $6 million, and had reported in his parole plan that he would live with his half brother if paroled when in fact he intended to live with his homosexual lover. As a result of these revelations, OAPA rescinded its earlier decision to grant respondent “shock parole” and continued his case to a June 1974 meeting at which parole was formally denied. Neither at this meeting nor at any other time was respondent granted a hearing to explain the false statements he had made during the April interview and in the parole plan which he had submitted.
After denial of his parole, respondent brought a mandamus action against OAPA. The Supreme Court of Ohio held that OAPA was not required to grant respondent a hearing and that it could not be commanded to recall its decision rescinding parole. State ex rel. Van Curen v. Ohio Adult Parole Authority, 45 Ohio St. 2d 298, 345 N. E. 2d 75 (1976). We denied respondent’s petition for certiorari to review the decision of the Supreme Court of Ohio. 429 U. S. 959 (1976).
Respondent then filed a petition for a writ of habeas corpus in the Federal District Court for the Southern District of Ohio, claiming that the rescission without hearing violated his right to due process of law under the United States Constitution. The District Court denied the writ and the United States Court of Appeals for the Sixth Circuit summarily affirmed the denial. Van Curen v. Jago, 578 F. 2d 1382 (1978). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of our decision in Greenholtz v. Nebraska Penal and Inmates, 442 U. S. 1 (1979). Jago v. Van Curen, 442 U. S. 926 (1979).
On remand the Court of Appeals in turn remanded to the District Court for further consideration. Applying Green-holtz, the District Court determined that “early release in Ohio is a matter of grace” and that Ohio law “is fairly unambiguous that no protectable interest in early release arises until actual release.” App. to Pet. for Cert. 24A-25A. Accordingly, the District Court held that the rescission of respondent’s parole without a hearing did not violate due process.
On appeal, the Court of Appeals acknowledged that “[p]a-role for Ohio prisoners lies wholly within the discretion of the OAPA,” and that “[t]he statutes which provide for parole do not create a protected liberty interest for due process purposes.” 641 F. 2d 411, 414 (1981). Nonetheless, the Court of Appeals reversed the decision of the District Court. Relying upon language from our decision in Perry v. Sindermann, 408 U. S. 593 (1972), the Court of Appeals concluded that a liberty interest such as that asserted by respondent can arise from “mutually explicit understandings.” See id., at 601. Thus, it held:
“Having been notified that he ‘ha[d] been paroled’ and that ‘the Board is ordering a Parole Release in your case,’ [respondent] had a legitimate expectation that his early release would be effected. This expectation was a liberty interest, the deprivation of which would indeed constitute a grievous loss. It was an interest which could not be taken from him without according [him] procedural due process.” 641 F. 2d, at 416.
We do not doubt that respondent suffered “grievous loss” upon OAPA’s rescission of his parole. But we have previously “rejected]. . . the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause.” Meachum v. Fano, 427 U. S. 215, 224 (1976). In this case, as in our previous cases, “[t]he question is not merely the ‘weight’ of the individual’s interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property language of the Fourteenth Amendment.’” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). We hold that the Court of Appeals erred in finding a constitutionally protected liberty interest by reliance upon the “mutually explicit understandings” language of Perry v. Sindermann, supra.
Our decision in Sindermann was concerned only with the Fourteenth Amendment’s protection of “property” interests, and its language, relied upon by the Court of Appeals, was expressly so limited:
“We have made clear in [Board of Regents v. Roth, 408 U. S. 564, 571-572 (1972)], that ‘property’ interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, ‘property’ denotes a broad range of interests that are secured by ‘existing rules or understandings.’ Id., at 577. A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” 408 U. S., at 601.
To illustrate the way in which “mutually explicit understandings” operate to create “property” interests, we relied in Sindermann upon two analogous doctrines. First, we compared such understandings to implied contracts:
“[The] absence of ... an explicit contractual provision may not always foreclose the possibility that a teacher has a ‘property’ interest in re-employment. . . . [T]he law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be ‘implied.’” Id., at 601-602.
That the implied-contract aspect of Sindermann “understandings” has been limited to the creation of property interests is illustrated by Bishop v. Wood, 426 U. S. 341 (1976), another property interest case in which we relied upon the “understandings” language of Sindermann to conclude that “[a] property interest in employment can, of course, be created by ordinance, or by an implied contract.” 426 U. S., at 344 (footnote omitted).
Principles of contract law naturally serve as useful guides in determining whether or not a constitutionally protected property interest exists. Such principles do not, however, so readily lend themselves to determining the existence of constitutionally protected liberty interests in the setting of prisoner parole. In Meachum v. Fano, supra, we recognized that the administrators of our penal systems need considerable latitude in operating those systems, and that the protected interests of prisoners are necessarily limited:
“Our cases hold that the convicted felon does not forfeit all constitutional protections by reason of his conviction and confinement in prison. He retains a variety of important rights that the courts must be alert to protect. See Wolff v. McDonnell, 418 U. S., at 556, and cases there cited. But none of these cases reaches this one; and to hold as we are urged to do that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” 427 U. S., at 225.
We would severely restrict the necessary flexibility of prison administrators and parole authorities were we to hold that any one of their myriad decisions with respect to individual inmates may, as under the general law of contracts, give rise to protected “liberty” interests which could not thereafter be impaired without a constitutionally mandated hearing under the Due Process Clause.
The second analogy relied upon in Sindermann to give content to the notion of “mutually explicit understandings” was the labor law principle that the tradition and history of an industry or plant may add substance to collective-bargaining agreements. See 408 U. S., at 602. Just last Term, however, we rejected an argument that a sort of “industrial common law” could give rise to a liberty interest in the prisoner parole setting. The prisoners in Connecticut Board of Pardons v. Dumschat, 452 U. S. 458 (1981), relying upon the frequency with which the Connecticut Board of Pardons had in the past commuted and paroled life sentences, argued that the consistency of the Board’s actions “ ‘ha[d] created an unwritten common law of sentence commutation and parole acceleration,”’ and had given rise to “‘an unspoken understanding between the State Board [of Pardons] and inmates.’” Id., at 465 (emphasis added) (quoting Brief for Respondents, O. T. 1980, No. 79-1997, pp. 17-18). We responded:
“No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. The ground for a constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising clemency.” 452 U. S., at 465.
Thus, this Court has recognized that the “mutually explicit understandings” of Sindermann have a far more useful place in determining protected property interests than in determining those liberty interests protected by the Due Process Clause of the Fourteenth Amendment.
As the majority opinion in the Court of Appeals for the Sixth Circuit observed: “Parole for Ohio prisoners lies wholly within the discretion of the OAPA. The statutes which provide for parole do not create a protected liberty interest for due process purposes.” 641 F. 2d, at 414. In dissent, Judge Phillips explained:
“In State ex rel. Newman v. Lowery, 157 Ohio St. 463, 464, 105 N. E. 2d 643 (1952), cert. denied, 344 U. S. 881 . . . (1952), the Supreme Court of Ohio said: ‘The question of parole of prisoners being in the discretion of the Pardon and Parole Commission, that commission had authority to rescind its order of March 9, 1950, granting a parole effective on or after a future date.’” Id., at 418.
Notwithstanding its conclusion that the granting of parole was a purely discretionary matter, the majority of the Court of Appeals in this case concluded that, once the recommendation for “shock parole” had been made, respondent was entitled to a hearing for the purpose of explaining his false statements and representations because the initial recommendation for “shock parole” gave rise to a “mutually explicit understanding.” As we have previously stated, however, we deal here not with “property” interests but with “liberty” interests protected by the Fourteenth Amendment. We think that the reasoning of Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 (1979), Dumschat, supra, and the Court of Appeals’ own concession that Ohio law creates no protected “liberty” interest, require reversal of the holding of the Court of Appeals that respondent was entitled to a hearing prior to denial of his parole in June.
The petition for certiorari is granted, the respondent’s motion to proceed informa pauperis is granted, and the judgment of the Court of Appeals for the Sixth Circuit is
Reversed.
In his brief in opposition to the petition for certiorari, respondent does not contest OAPA’s conclusion that he misrepresented the amount of his embezzlement to the interviewing panel, and admits “that the total loss was over a million dollars.” Brief in Opposition 2. Moreover, respondent admits that his parole plan misrepresented his relationship to the person with whom he planned to live upon release. Id., at 2-3.
Justice Stevens’ dissenting opinion appears to follow from his dissenting view in Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 22 (1979) (Marshall, J., joined by Brennan and Stevens, JJ., dissenting in part), and Connecticut Board of Pardons v. Dumschat, 452 U. S., at 468 (Stevens, J., dissenting). It is understandable that the distinction between Morrissey v. Brewer, 408 U. S. 471 (1972), which involved return to custody after parole release, and Greenholtz v. Nebraska Penal Inmates, supra, and Connecticut Board of Pardons v. Dumschat, supra, which involved prerelease expectations of parole or probation, would be thought “dubious” by one who dissented in the two latter cases. Nonetheless, that view was expressed in dissents from the Court’s opinions in those cases and cannot be regarded as controlling here. .
Petitioners contend that this case is moot under Weinstein v. Bradford, 423 U. S. 147 (1975), because respondent has now been paroled. We disagree. Although it is true that respondent was released from prison in 1980, the release was conditioned upon respondent’s compliance with terms that significantly restrict his freedom. For example, respondent must receive written permission before changing his residence, changing his job, or traveling out of state, must report to local law enforcement authorities at any out-of-state destination to which he travels, must not maintain a checking account, must report monthly to his parole officer, and may be imprisoned upon violation of the conditions of his parole. Affidavit in Support of Respondent’s Motion to Proceed In Forma Pauperis. In Weinstein, by contrast, we noted that “respondent was temporarily paroled on December 18, 1974, and that this status ripened into a complete release from supervision on March 25, 1975. From that date forward it [was] plain that respondent [could] have no interest whatever in the'procedures followed by petitioners in granting parole.” 423 U. S., at 148 (emphasis added). Similarly, in Jones v. Cunningham, 371 U. S. 236 (1963), where a state prisoner received conditional parole virtually identical to respondent’s parole in this case, we held that the prisoner was “in custody” for purposes of federal habeas and that the Court of Appeals had erred in dismissing the appeal as moot. Id., at 241-243.
The conditions of respondent’s parole will last for a period of two years; thereafter he will be free from OAPA’s supervision. Had OAPA not rescinded respondent’s parole in 1974 it is likely that he would no longer be subject to parole restrictions on his freedom. Therefore, were we to affirm the lower court’s conclusion that OAPA should not have rescinded respondent’s parole without a hearing, we could remand the case with instructions that the District Court determine whether a hearing would have resulted in respondent’s release in 1974. If so, the flexible nature of ha-beas relief would permit the District Court to order that respondent be released from the conditions under which he is now living. Indeed, in his response to the petition for certiorari, respondent affirmatively states that if the lower court’s decision is affirmed he will “immediately seek release from parole.” Brief in Opposition 7.
In Vitek v. Jones, 436 U. S. 407 (1978), and Scott v. Kentucky Parole Board, 429 U. S. 60 (1976), the cases cited by the dissent, we remanded so that the Courts of Appeals might consider mootness before we decided the question. In this case the Court of Appeals did consider mootness and, as the above discussion indicates, correctly concluded that a live controversy remains. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
116
] |
SMITH, ADMINISTRATOR, NEW YORK CITY HUMAN RESOURCES ADMINISTRATION, et al. v. ORGANIZATION OF FOSTER FAMILIES FOR EQUALITY & REFORM et al.
No. 76-180.
Argued March 21, 1977
Decided June 13, 1977
Maria L. Marcus, Assistant Attorney General of New York, argued the cause for appellants in Nos. 76-180 and 76-183. With her on the briefs for appellants in No. 76-183 were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Mark C. Rutzick, Assistant Attorney General. W. Bernard Richland, Leonard Koerner, and Elliot P. Hoffman filed briefs for appellants in No. 76-180. Louise Gruner Gans argued the cause for appellants in No. 76-5193. With her on the brief was Marttie L. Thompson. Helen L. Buttenwieser argued the cause for appellants in No. 76-5200. With her on the briefs was Ephraim London.
Marcia Robinson Lowry argued the cause for appellees in all cases. With her on the brief were Rena K. Uviller and Martin Guggenheim
Together with No. 76-183, Shapiro, Executive Director, New York State Board of Social Welfare, et al. v. Organization of Foster Families for Equality & Reform et al.; No. 76-5193, Rodriguez et al. v. Organization of Foster Families for Equality & Reform et al.; and No. 76-5200, Gandy et al. v. Organization of Foster Families for Equality & Reform et al., also on appeal from the same court.
Paul Piersma filed a brief for the National Juvenile Law Center as amicus curiae urging reversal.
Joseph Goldstein, Sonja Goldstein, Robert A. Burt, Paul D. Gewirtz, and Stephen Wizner filed a brief for A Group of Concerned Persons for Children as amici curiae urging affirmance.
Briefs of amici curiae were filed by William B. Haley for the Community Service Society of New York; by Michael J. Dale, Gene B. Mechanic, and Carol Sherman for the Legal Aid Society of New York City, Juvenile Rights Division; and by Herbert Teitelbaum for the Puerto Rican Family Institute, Inc., et al.
Mr. Justice Brennan
delivered the opinion of the Court.
Appellees, individual foster parents and an organization of foster parents, brought this civil rights class action pursuant to 42 U. S. C. § 1983 in the United States District Court for the Southern District of New York, on their own behalf and on behalf of children for whom they have provided homes for a year or more. They sought declaratory and injunctive relief against New York State and New York City officials, alleging that the procedures governing the removal of foster children from foster homes provided in N. Y. Soc. Serv. Law §§ 383 (2) and 400 (McKinney 1976), and in 18 N. Y. C. R. R. §450.14 (1974) violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court appointed independent counsel for the foster children to forestall any possibility of conflict between their interests and the interests asserted by the foster parents. A group of natural mothers of children in foster care were granted leave to intervene on behalf of themselves and others similarly situated.
A divided three-judge District Court concluded that “the pre-removal procedures presently employed by the State are constitutionally defective,” holding that “before a foster child can be peremptorily transferred from the foster home in which he has been living, be it to another foster home or to the natural parents who initially placed him in foster care, he is entitled to a hearing at which all concerned parties may present any relevant information to the administrative decisionmaker charged with determining the future placement of the child,” Organization of Foster Families v. Dumpson, 418 F. Supp. 277, 282 (1976). Four appeals to this Court were taken from the ensuing judgment declaring the challenged statutes unconstitutional and permanently enjoining their enforcement. The New York City officials are appellants in No. 76-180. The New York State officials are appellants in No. 76-183. Independent counsel appointed for the foster children appeals on their behalf in No. 76-5200. The intervening natural mothers are appellants in No. 76-5193. We noted probable jurisdiction of the four appeals. 429 U. S. 883 (1976). We reverse.
I
A detailed outline of the New York statutory system regulating foster care is a necessary preface to a discussion of the constitutional questions presented.
A
The expressed central policy of the New York system is that “it is generally desirable for the child to remain with or be returned to the natural parent because the child’s need for a normal family life will usually best be met in the natural home, and . . . parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered,” Soc. Serv. Law § 38A-b (1) (a) (ii) (McKinney Supp. 1976-1977). But the State has opted for foster care as one response to those situations where the natural parents are unable to provide the “positive, nurturing family relationships” and “normal family life in, a permanent home” that offer “the best opportunity for children to develop and thrive.” § § 384-b (1) (b), (1) (a) (i).
Foster care has been defined as “[a] child welfare service which provides substitute family care for a planned period for a child when his own family cannot care for him for a temporary or extended period, and when adoption is neither desirable nor possible.” Child Welfare League of America, Standards for Foster Family Care Service 5 (1959). Thus, the distinctive features of foster care are, first, “that it is care in a family, it is noninstitutional substitute care,” and, second, “that it is for a planned period — either temporary or extended. This is unlike adoptive placement, which implies a permanent substitution of one home for another.” Kadushin 355.
Under the New York scheme children may be placed in foster care either by voluntary placement or by court order. Most foster-care placements are voluntary. They occur when physical or mental illness, economic problems, or other family crises make it impossible for natural parents, particularly single parents, to provide a stable home life for their children for some limited period. Resort to such placements is almost compelled when it is not possible in such circumstance to place the child with a relative or friend, or to pay for the services of a homemaker or boarding school.
Voluntary placement requires the signing of a written agreement by the natural parent or guardian, transferring the care and custody of the child to an authorized child welfare agency. N. Y. Soc. Serv. Law § 384h-a (1) (McKinney Supp. 1976-1977). Although by statute the terms of such agreements are open to negotiation, § 38A-a (2) (a), it is contended that agencies require execution of standardized forms. Brief for Appellants in No. 76-5193, p. 25 n. 17. See App. 63a-64a, 65a-67a. The agreement may provide for return of the child to the natural parent at a specified date or upon occurrence of a particular event, and if it does not, the child must be returned by the agency, in the absence of a court order, within 20 days of notice from the parent. § 384-a (2) (a).
The agency may maintain the child in an institutional setting, §§ 374-b, 374-c, 374-d (McKinney 1976), but more commonly acts under its authority to “place out and board out” children in foster homes. §374 (1). Foster parents, who are licensed by the State or an authorized foster-care agency, §§ 376, 377, provide care under a contractual arrangement with the agency, and are compensated for their services. See 18 N. Y. C. R. R. §§ 606.2, 606.6 (1977); App. 76a, 81a. The typical contract expressly reserves the right of the agency to remove the child on request. 418 F. Supp., at 281; App. 76a, 79a. See N. Y. Soc. Serv. Law § 383 (2) (McKinney 1976). Conversely, the foster parent may cancel the agreement at will.
The New York system divides parental functions among agency, foster parents, and natural parents, and the definitions of the respective roles are often complex and often unclear. The law transfers “care and custody” to the agency, § 384-a; see also § 383 (2), but day-to-day supervision of the child and his activities, and most of the functions ordinarily associated with legal custody, are the responsibility of the foster parent. Nevertheless, agency supervision of the performance of the foster parents takes forms indicating that the foster parent does not have the full authority of a'legal custodian. Moreover, the natural parent’s placement of the child with the agency does not surrender legal guardianship; the parent retains authority to act with respect to the child in certain circumstances. The natural parent has not only the right but the obligation to visit the foster child and plan for his future; failure of a parent with capacity to fulfill the obligation for more than a year can result in a court order terminating the parent’s rights on the ground of neglect. § § 384-b (4), (7). See also § 384-b (5); N. Y. Dorn. Rel. Law § 111 (McKinney Supp. 1976-1977); N. Y. Family Court Act § 611 (McKinney Supp. 1976-1977).
Children may also enter foster care by court order. The Family Court may order that a child be placed in the custody of an authorized child-care agency after a full adversary judicial hearing under Art. 10 of the New York Family Court Act, if it is found that the child has been abused or neglected by his natural parents. §§ 1052, 1055. In addition, a minor adjudicated a juvenile delinquent, or “person in need of supervision” may be placed by the court with an agency. §§ 753, 754, 756. The consequences of foster-care placement by court order do not differ substantially from those for children voluntarily placed, except that the parent is not entitled to return of the child on demand pursuant to Soc. Serv. Law § 384-a (2) (a); termination of foster care must then be consented to by the court. § 383 (1).
B
The provisions of the scheme specifically at issue in this litigation come into play when the agency having legal custody determines to remove the foster child from the foster home, either because it has determined that it would be in the child’s best interests to transfer him to some other foster home, or to return the child to his natural parents in accordance with the statute or placement agreement. Most children are removed in order to be transferred to another foster home. The procedures by which foster parents may challenge a removal made for that purpose differ somewhat from those where the removal is made to return the child to his natural parent.
Section 383 (2), n. 3, supra, provides that the “authorized agency placing out or boarding [a foster] child . . . may in its discretion remove such child from the home where placed or boarded.” Administrative regulations implement this provision. The agency is required, except in emergencies, to notify the foster parents in writing 10 days in advance of any removal. 18 N. Y. C. R. R. § 450.10 (a) (1976). The notice advises the foster parents that if they object to the child’s removal they may request a “conference” with the Social Services Department. Ibid. The department schedules requested conferences within 10 days of the receipt of the request. §450.10 (b). The foster parent may appear with counsel at the conference, where he will “be advised of the reasons [for the removal of the child] and be afforded an opportunity to submit reasons why the child should not be removed.” § 450.10 (a). The official must render a decision in writing within five days after the close of the conference, and send notice of his decision to the foster parents and the agency. § 450.10 (c). The proposed removal is stayed pending the outcome of the conference. §450.10 (d).
If the child is removed after the conference, the foster parent may appeal to the Department of Social Services for a “fair hearing,” that is, a full adversary administrative hearing, under Soc. Serv. Law § 400, the determination of which is subject to judicial review under N. Y. Civ. Prac. Law § 7801 et seq. (McKinney 1963); however, the removal is not automatically stayed pending the hearing and judicial review.
This statutory and regulatory scheme applies statewide. In addition, regulations promulgated by the New York City Human Resources Administration, Department of Social Services — Special Services for Children (SSC) provide even greater procedural safeguards there. Under SSC Procedure No. 5 (Aug. 5, 1974), in place of or in addition to the conference provided by the state regulations, the foster parents may request a full trial-type hearing before the child is removed from their home. This procedure applies, however, only if the child is being transferred to another foster home, and not if the child is being returned to his natural parents.
One further preremoval procedural safeguard is available. Under Soc. Serv. Law § 392, the Family Court has jurisdiction to review, on petition of the foster parent or the agency, the status of any child who has been in foster care for 18 months or longer. The foster parents, the natural parents, and all interested agencies are made parties to the proceeding. § 392 (4). After hearing, the court may order that foster care be continued, or that the child be returned to his natural parents, or that the agency take steps to free the child for adoption. § 392 (7). Moreover, § 392 (8) authorizes the court to issue an “order of protection” which “may set forth reasonable conditions of behavior to be observed for a specified time by a person or agency who is before the court.” Thus, the court may order not only that foster care be continued, but additionally, “in assistance or as a condition of” that order, that the agency leave the child with the present foster parent. In other words, § 392 provides a mechanism whereby a foster parent may obtain preremoval judicial review of an agency’s decision to remove a child who has been in foster care for 18 months or more.
c
Foster care of children is a sensitive and emotion-laden subject, and foster-care programs consequently stir strong controversy. The New York regulatory scheme is no exception. New York would have us view the scheme as described in its brief:
“Today New York premises its foster care system on the accepted principle that the placement of a child into foster care is solely a temporary, transitional action intended to lead to the future reunion of the child with his natural parent or parents, or if such a reunion is not possible, to legal adoption and the establishment of a new permanent home for the child.” Brief for Appellants in No. 76-183, p. 3.
Some of the parties and amici argue that this is a misleadingly idealized picture. They contend that a very different perspective is revealed by the empirical criticism of the system presented in the record of this case and confirmed by published studies of foster care.
From the standpoint of natural parents, such as the appellant intervenors here, foster care has been condemned as a class-based intrusion into the family life of the poor. See, e. g., Jenkins, Child Welfare as a Class System, in Children and Decent People 3 (A. Schorr ed. 1974). And see generally tenBroek, California’s Dual System of Family Law: Its Origins, Development and Present Status (pt. I), 16 Stan. L. Rev. 257 (1964); (pt. II), 16 Stan. L. Rev. 900 (1964); (pt. III), 17 Stan. L. Rev. 614 (1965). It is certainly true that the poor resort to foster care more often than other citizens. For example, over 50%- of all children in foster care in New York City are from female-headed families receiving Aid to Families with Dependent Children. Foundation for Child Development, State of the Child: New York City 61 (1976). Minority families are also more likely to turn to foster care; 52.3% of the children in foster care in New York City are black and 25.5% are Puerto Rican. Child Welfare Information Services, Characteristics of Children in Foster Care, New York City Reports, Table No. 2 (Dec. 31, 1976). This disproportionate resort to foster care by the poor and victims of discrimination doubtless reflects in part the greater likelihood of disruption of poverty-stricken families. Commentators have also noted, however, that middle- and upper-income families who need temporary care services for their children have the resources to purchase private care. See, e. g., Rein, Nutt, & Weiss 24, 25. The poor have little choice but to submit to state-supervised child care when family crises strike. Id., at 34.
The extent to which supposedly “voluntary” placements are in fact voluntary has been questioned on other grounds as well. For example, it has been said that many “voluntary” placements are in fact coerced by threat of neglect proceedings and are not in fact voluntary in the sense of the product of an informed consent. Mnookin I 599, 601. Studies also suggest that social workers of middle-class backgrounds, perhaps unconsciously, incline to favor continued placement in foster care with a generally higher-status family rather than return the child to his natural family, thus reflecting a bias that treats the natural parents’ poverty and lifestyle as prejudicial to the best interests of the child. Rein, Nutt, & Weiss 42-44; Levine, Caveat Parens: A Demystification of the Child Protection System, 35 U. Pitt. L. Rev. 1, 29 (1973). This accounts, it has been said, for the hostility of agencies to the efforts of natural parents to obtain the return of their children.
Appellee foster parents as well as natural parents question the accuracy of the idealized picture portrayed by New York. They note that children often stay in “temporary” foster care for much longer than contemplated by the theory of the system. See, e. g., Kadushin 411-412; Mnookin I 610-613; Wald 662-663; Rein, Nutt, & Weiss 37-39. The District Court found as a fact that the median time spent in foster care in New York was over four years. 418 F. Supp., at 281. Indeed, many children apparently remain in this “limbo” indefinitely. Mnookin II 226, 273. The District Court also found that the longer a child remains in foster care, the more likely it is that he will never leave: “[T]he probability of a foster child being returned to his biological parents declined markedly after the first year in foster care.” 418 F. Supp., at 279 n. 6. See also E. Sherman, R. Neuman, & A. Shyne, Children Adrift in Foster Care: A Study of Alternative Approaches 3 (1973); Fanshel, The Exit of Children from Foster Care: An Interim Research Report, 50 Child Welfare 65, 67 (1971). It is not surprising then that many children, particularly those that enter foster care at a very early age and have little or no contact with their natural parents during extended stays in foster care, often develop deep emotional ties with their foster parents.
Yet such ties do not seem to be regarded as obstacles to transfer of the child from one foster placement to another. The record in this case indicates that nearly 60% of the children in foster care in New York City have experienced more than one placement, and about 28% have experienced three or more. App. 189a. See also Wald 645-646; Mnookin I 625-626. The intended stability of the foster-home management is further damaged by the rapid turnover among social work professionals who supervise the foster-care arrangements on behalf of the State. Id., at 625; Rein, Nutt, & Weiss 41; Kadushin 420. Moreover, even when it is clear that a foster child will not be returned to his natural parents, it is rare that he achieves a stable home life through final termination of parental ties and adoption into a new permanent family. Fanshel, Status Changes of Children in Foster Care: Final Results of the Columbia University Longitudinal Study, 55 Child Welfare 143, 145, 157 (1976); Mnookin II 275-277; Mnookin I 612-613. See also n. 23, supra.
The parties and amici devote much of their discussion to these criticisms of foster care, and we present this summary in the view that some understanding of those criticisms is necessary for a full appreciation of the complex and controversial system with which this lawsuit is concerned. But the issue presented by the case is a narrow one. Arguments asserting the need for reform of New York’s statutory scheme are properly addressed to the New York Legislature. The relief sought in this case is entirely procedural. Our task is only to determine whether the District Court correctly held that the present procedures preceding the removal from a foster home of children resident there a year or more are constitutionally inadequate. To that task we now turn.
II
A
Our first inquiry is whether appellees have asserted interests within the Fourteenth Amendment’s protection of “liberty” and “property.” Board of Regents v. Roth, 408 U. S. 564, 571 (1972).
The appellees have not renewed in this Court their contention, rejected by the District Court, 418 F. Supp., at 280-281, that the realities of the foster-care system in New York gave them a justified expectation amounting to a “property” interest that their status as foster parents would be continued. Our inquiry is therefore narrowed to the question whether their asserted interests are within the “liberty” protected by the Fourteenth Amendment.
The appellees’ basic contention is that when a child has lived in a foster home for a year or more, a psychological tie is created between the child and the foster parents which constitutes the foster family the true “psychological family” of the child. See J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child (1973). That family, they argue, has a “liberty interest” in its survival as a family protected by the Fourteenth Amendment. Cf. Moore v. East Cleveland, ante, p. 494. Upon this premise they conclude that the foster child cannot be removed without a prior hearing satisfying due process. Appointed counsel for the children, appellants in No. 76-5200, however, disagrees, and has consistently argued that the foster parents have no such liberty interest independent of the interests of the foster children, and that the best interests of the children would not be served by procedural protections beyond those already provided by New York law. The intervening natural parents of children in foster care, appellants in No. 76-5193, also- oppose the foster parents, arguing that recognition of the procedural right claimed would undercut both the substantive family law of New York, which favors the return of children to their natural parents as expeditiously as possible, see supra, at 823, and their constitutionally protected right of family privacy, by forcing them to submit to a hearing and defend their rights to their children before the children could be returned to them.
The District Court did not reach appellees’ contention “that the foster home is entitled to the same constitutional deference as that long granted to the more traditional biological family.” 418 F. Supp., at 281. Rather than “reach [ing] out to decide such novel questions,” the court based its holding that “the pre-removal procedures presently employed by the state are constitutionally defective,” id., at 282, not on the recognized liberty interest in family privacy, but on an independent right of the foster child “to be heard before being ‘condemned to suffer grievous loss,’ Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123, 168 . . . (1951) (Frankfurter, J., concurring).” Ibid.
The court apparently reached this conclusion by weighing the “harmful consequences of a precipitous and perhaps improvident decision to remove a child from his foster family,” id., at 283, and concluding that this disruption of the stable relationships needed by the child might constitute “grievous loss.” But if this was the reasoning applied by the District Court, it must be rejected. Meachum v. Fano, 427 U. S. 215, 224 (1976), is authority that such a finding does not, in and of itself, implicate the due process guarantee. What was said in Board of Regents v. Roth, supra, at 570-571, applies equally well here:
“The District Court decided that procedural due process guarantees apply in this ease by assessing and balancing the weights of the particular interests involved. . . . [A] weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake. . . . We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.”
We therefore turn to appellees’ assertion that they have a constitutionally protected liberty interest — in the words of the District Court, a “right to familial privacy,” 418 F. Supp., at 279 — in the integrity of their family unit. This assertion clearly presents difficulties.
B
It is, of course, true that “freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974). There does exist a “private realm of family life which the state cannot enter,” Prince v. Massachusetts, 321 U. S. 158, 166 (1944), that has been afforded both substantive and procedural protection. But is the relation of foster parent to foster child sufficiently akin to the concept of “family” recognized in our precedents to merit similar protection? Although considerable difficulty has attended the task of defining “family” for purposes of the Due Process Clause, see Moore v. East Cleveland, ante, pp. 494 (plurality-opinion of Powell, J.), 531 (Stewart, J., dissenting), 541 (White, J., dissenting), we are not without guides to some of the elements that define the concept of “family” and contribute to its place in our society.
First, the usual understanding of “family” implies biological relationships, and most decisions treating the relation between parent and child have stressed this element. Stanley v. Illinois, 405 U. S. 645, 651 (1972), for example, spoke of “[t]he rights to conceive and to raise one’s children” as essential rights, citing Meyer v. Nebraska, 262 U. S. 390 (1923), and Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942). And Prince v. Massachusetts, stated:
“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” 321 U. S., at 166.
A biological relationship is not present in the case of the usual foster family. But biological relationships are not exclusive determination of the existence of a family. The basic foundation of the family in our society, the marriage relationship, is of course not a matter of blood relation. Yet its importance has been strongly emphasized in our cases:
“We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Griswold v. Connecticut, 381 U. S. 479, 486 (1965).
See also Loving v. Virginia, 388 U. S. 1, 12 (1967).
Thus the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in “promot[ing] a way of life” through the instruction of children, Wisconsin v. Yoder, 406 U. S. 205, 231-233 (1972), as well as from the fact of blood relationship. No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship. At least where a child has been placed in foster care as an infant, has never known his natural parents, and has remained continuously for several years in the care of the same foster parents, it is natural that the foster family should hold the same place in the emotional life of the foster child, and fulfill the same socializing functions, as a natural family. For this reason, we cannot dismiss the foster family as a mere collection of unrelated individuals. Cf. Village of Belle Terre v. Boraas, 416 U. S. 1 (1974).
But there are also important distinctions between the foster family and the natural family. First, unlike the earlier cases recognizing a right to family privacy, the State here seeks to interfere, not with a relationship having its origins entirely apart from the power of the State, but rather with a foster family which has its source in state law and contractual arrangements. The individual’s freedom to marry and reproduce is “older than the Bill of Rights,” Griswold v. Connecticut, supra, at 486. Accordingly, unlike the property interests that are also protected by the Fourteenth Amendment, cf. Board of Regents v. Roth, 408 U. S., at 577, the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in “this Nation’s history and tradition.” Moore v. East Cleveland, ante, at 503. Cf. also Meachum v. Fano, 427 U. S., at 230 (Stevens, J., dissenting). Here, however, whatever emotional ties may develop between foster parent and foster child have their origins in an arrangement in which the State has been a partner from the outset. While the Court has recognized that liberty interests may in some cases arise from positive-law sources, see, e. g., Wolff v. McDonnell, 418 U. S. 539, 557 (1974), in such a case, and particularly where, as here, the claimed interest derives from a knowingly assumed contractual relation with the State, it is appropriate to ascertain from state law the expectations and entitlements of the parties. In this case, the limited recognition accorded to the foster family by the New York statutes and the contracts executed by the foster parents argue against any but the most limited constitutional “liberty” in the foster family.
A second consideration related to this is that ordinarily procedural protection may be afforded to a liberty interest of one person without derogating from the substantive liberty of another. Here, however, such a tension is virtually unavoidable. Under New York law, the natural parent of a foster child in voluntary placement has an absolute right to the return of his child in the absence of a court order obtainable only upon compliance with rigorous substantive and procedural standards, which reflect the constitutional protection accorded the natural family. See nn. 46, 47, supra. Moreover, the natural parent initially gave up his child to the State only on the express understanding that the child would be returned in those circumstances. These rights are difficult to reconcile with the liberty interest in the foster family relationship claimed by appellees. It is one thing to say that individuals may acquire a liberty interest against arbitrary governmental interference in the family-like associations into which they have freely entered, even in the absence of biological connection or state-law recognition of the relationship. It is quite another to say that one may acquire such an interest in the face of another's constitutionally recognized liberty interest that derives from blood relationship, state-law sanction, and basic human right — an interest the foster parent has recognized by contract from the outset. Whatever liberty interest might otherwise exist in the foster family as an institution, that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents.
As this discussion suggests, appellees’ claim to a constitutionally protected liberty interest raises complex and novel questions. It is unnecessary for us to resolve those questions definitively in this case, however, for, like the District Court, we conclude that “narrower grounds exist to support” our reversal. We are persuaded that, even on the assumption that appellees have a protected “liberty interest,” the District Court erred in holding that the preremoval procedures presently employed by the State are constitutionally defective.
Ill
Where procedural due process must be afforded because a “liberty” or “property” interest is within the Fourteenth Amendment’s protection, there must be determined “what process is due” in the particular context. The District Court did not spell out precisely what sort of preremoval hearing would be necessary to meet the constitutional standard, leaving to “the various defendants — -state and local officials — the first opportunity to formulate procedures suitable to their own professional needs and compatible with the principles set forth in this opinion.” 418 F. Supp., at 286. The court’s opinion, however, would seem to require at a minimum that in all cases in which removal of a child within the certified class is contemplated, including the situation where the removal is for the purpose of returning the child to his natural parents, a hearing be held automatically, regardless of whether or not the foster parents request a hearing; that the hearing be before an officer who has had no previous contact with the decision to remove the child, and who has authority to order that the child remain with the foster parents; and that the agency, the foster parents, and the natural parents, as well as the child, if he is able intelligently to express his true feelings, and an independent representative of the child’s interests, if he is not, be represented and permitted to introduce relevant evidence.
It is true that “[bjefore a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, ‘except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.’ ” Board of Regents v. Roth, 408 U. S., at 570 n. 7, quoting Boddie v. Connecticut, 401 U. S. 371, 379 (1971). But the hearing required is only one “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). See, e. g., Bell v. Burson, 402 U. S. 535, 542 (1971); Goldberg v. Kelly, 397 U. S. 254, 263 (1970); Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). Only last Term, the Court held that “identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U. S. 319, 335 (1976). Consideration of the procedures employed by the State and New York City in light of these three factors requires the conclusion that those procedures satisfy constitutional standards.
Turning first to the procedure applicable in New York City, SSC Procedure No. 5, see supra, at 831, and n. 29, provides that before a child is removed from a foster home for transfer to another foster home, the foster parents may request an “independent review.” The District Court’s description of this review is set out in the margin. Such a procedure would appear to give a more elaborate trial-type hearing to foster families than this Court has found required in other contexts of administrative determinations. Cf. Goldberg v. Kelly, supra, at 266-271. The District Court found the procedure inadequate on four grounds, none of which we find sufficient to justify the holding that the procedure violates due process.
First, the court held that the “independent review” administrative proceeding was insufficient because it was only-available on the request of the foster parents. In the view of the District Court, the proceeding should be provided as a matter of course, because the interests of the foster parents and those of the child would not necessarily be coextensive, and it could not be assumed that the foster parents would invoke the hearing procedure in every case in which it was in the child’s interest to have a hearing. Since the child is unable to request a hearing on his own, automatic review in every case is necessary. We disagree. As previously noted, the constitutional liberty, if any, sought to be protected by the New York procedures is a right of family privacy or autonomy, and the basis for recognition of any such interest in the foster family must be that close emotional ties analogous to those between parent and child are established when a child resides for a lengthy period with a foster family. If this is so, necessarily we should expect that the foster parents will seek to continue the relationship to preserve the stability of the family; if they do not request a hearing, it is difficult to see what right or interest of the foster child is protected by holding a hearing to determine whether removal would unduly impair his emotional attachments to a foster parent who does not care enough about the child to contest the removal. Thus, consideration of the interest to be protected and the likelihood of erroneous deprivations, the first two factors identified in Mathews v. Eldridge, supra, as appropriate in determining the sufficiency of procedural protections, do not support the District Court’s imposition of this additional requirement. Moreover, automatic provision of hearings as required by the District Court would impose a substantial additional administrative burden on the State. According to appellant city officials, during the approximately two years between the institution of SSC Procedure No. 5 in August 1974 and June 1976, there were approximately 2,800 transfers per year in the city, but only 26 foster parents requested hearings. Brief for Appellants in No. 76-180, pp. 20-21. It is not at all clear what would be gained by requiring full hearings in the more than 5,500 cases in which they were not requested.
Second, the District Court faulted the city procedure on the ground that participation is limited to the foster parents and the agency, and the natural parent and the child are not made parties to the hearing. This is not fatal in light of the nature of the alleged constitutional interests at stake. When-the child’s transfer from one foster home to another is pending, the interest arguably requiring protection is that of the foster family, not that of the natural parents. Moreover, the natural parent can generally add little to the accuracy of factfinding concerning the wisdom of such a transfer, since the foster parents and the agency, through its caseworkers, will usually be most knowledgeable about conditions in the foster home. Of course, in those cases where the natural parent does have a special interest in the proposed transfer or particular information that would assist the factfinder, nothing in the city’s procedure prevents any party from securing his testimony.
Much the same can be said in response to the District Court’s statement:
“[I]t may be advisable, under certain circumstances, for the agency to appoint an adult representative better to articulate the interests of the child. In making this determination, the agency should carefully consider the child’s age, sophistication and ability effectively to communicate his own true feelings.” 418 F. Supp., at 285-286.
But nothing in the New York City procedure prevents consultation of the child’s wishes, directly or through an adult intermediary. We assume, moreover, that some such consultation would be among the first steps that a rational fact-finder, inquiring into the child’s best interests, would pursue. Such consultation, however, does not require that the child or an appointed representative must be a party with full adversary powers in all preremoval hearings.
The other two defects in the city procedure found by the District Court must also be rejected. One is that the procedure does not extend to the removal of a child from foster care to be returned to his natural parent. But as we have already held, whatever liberty interest may be argued to exist in the foster family is significantly weaker in the case of removals preceding return to the natural parent, and the balance of due process interests must accordingly be different. If the city procedure is adequate where it is applicable, it is no criticism of the procedure that it does not apply in other situations where different interests are at stake. Similarly, the District Court pointed out that the New York City procedure coincided with the informal “conference” and post-removal hearings provided as a matter of state law. This overlap in procedures may be unnecessary or even to some degree unwise, see id., at 285, but a State does not violate the Due Process Clause by providing alternative or additional procedures beyond what the Constitution requires.
Outside New York City, where only the statewide procedures apply, foster parents are provided not only with the procedures of a preremoval conference and postremoval hearing provided by 18 N. Y. C. R. R. §450.10 (1976) and Soc. Serv. Law § 400 (McKinney 1976), see supra, at 829-830, but also with the preremoval judicial hearing" available on request to foster parents who have in their care children who have been in foster care for 18 months or more, Soc. Serv. Law § 392. As observed supra, at 832, and n. 32, a foster parent in such case may obtain an order that the child remain in his care.
The District Court found three defects in this full judicial process. First, a § 392 proceeding is available only to those foster children who have been in foster care for 18 months or more. The class certified by the court was broader, including children who had been in the care of the same foster parents for more than one year. Thus, not all class members had access to the § 392 remedy. We do not think that the 18-month limitation on § 392 actions renders the New York scheme constitutionally inadequate. The assumed liberty interest to be protected in this case is one rooted in the emotional attachments that develop over time between a child and the adults who care for him. But there is no reason to assume that those attachments ripen at less than 18 months or indeed at any precise point. Indeed, testimony in the record, see App. 177a, 204a, as well as material in published psychological texts, see, e. g., J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child 40-42,49 (1973), suggests that the amount of time necessary for the development of the sort of tie appellees seek to protect varies considerably depending on the age and previous attachments of the child. In a matter of such imprecision and delicacy, we see no justification for the District Court’s substitution of its view of the appropriate cutoff date for that chosen by the New York Legislature, given that any line is likely to be somewhat arbitrary and fail to protect some families where relationships have developed quickly while protecting others where no such bonds have formed. If New York sees 18 months rather than 12 as the time at which temporary foster care begins to turn into a more permanent and family-like setting requiring procedural protection and/or judicial inquiry into the propriety of continuing foster care, it would take far more than this record provides to justify a finding of constitutional infirmity in New York’s choice.
The District Court’s other two findings of infirmity in the § 392 procedure have already been considered and held to be without merit. The District Court disputed defendants’ reading of § 392 as permitting an order requiring the leaving of the foster child in the same foster home. The plain words of the statute and the weight of New York judicial interpretation do not support the court. See supra, at 832, and n. 32. The District Court also faulted § 392, as it did the New York City procedure, in not providing an automatic hearing in every case even in cases where foster parents chose not to seek one. Our holding sustaining the adequacy of the city procedure, supra, at 850-851, applies in this context as well.
Finally, the § 392 hearing is available to foster parents, both in and outside New York City, even where the removal sought is for the purpose of returning the child to his natural parents. Since this remedy provides a sufficient constitutional preremoval hearing to protect whatever liberty interest might exist in the continued existence of the foster family when the State seeks to transfer the child to another foster home, a fortiori the procedure is adequate to protect the lesser interest of the foster family in remaining together at the expense of the disruption of the natural family.
We deal here with issues of unusual delicacy, in an area where professional judgments regarding desirable procedures are constantly and rapidly changing. In such a context, restraint is appropriate on the part of courts called upon to adjudicate whether a particular procedural scheme is adequate under the Constitution. Since we hold that the procedures provided by New York State in § 392 and by New York City’s SSC Procedure No. 5 are adequate to protect whatever liberty interests appellees may have, the judgment of the District Court is
Reversed.
Appellee Madeleine Smith is the foster parent with whom Eric and Danielle Gandy have been placed since 1970. The Gandy children, who are now 12 and 9 years old respectively, were voluntarily placed in foster care by their natural mother in 1968, and have had no contact with her at least since being placed with Mrs. Smith. The foster-care agency has sought to remove the children from Mrs. Smith’s care because her arthritis, in the agency’s judgment, makes it difficult for her to continue to provide adequate care. A foster-care review proceeding under N. Y. Soc. Serv. Law §392 (McKinney 1976), see infra, at 831-832, resulted in an order, subsequent to the decision of the District Court, directing that foster care be continued and apparently contemplating, though not specifically ordering, that the children will remain in Mrs. Smith’s care. In re Gandy, Nos. K-2663/74S, K-2664/74S (Fam. Ct. N. Y. Cty., Nov. 22, 1976).
Appellees Ralph and Christiane Goldberg were the foster parents of Rafael Serrano, now 14. His parents placed him in foster care voluntarily in 1969 after an abuse complaint was filed against them. It is alleged that the agency supervising the placement had informally indicated to Mr. and Mrs. Goldberg that it intended to transfer Rafael to the home of his aunt in contemplation of permanent placement. This effort has apparently failed. A petition for foster-care review under Soc. Serv. Law § 392 filed by the agency alleges that the Goldbergs are now separated, Mrs. Goldberg having moved out of the house, taking her own child but leaving Rafael. The child is now in a residential treatment center, where Mr. Goldberg continues to visit him. App. to Reply Brief for Appellants in No. 76-180.
Appellees Walter and Dorothy Lhotan were foster parents of the four Wallace sisters, who were voluntarily placed in foster care by their mother in 1970. The two older girls were placed with the Lhotans in that year, their two younger sisters in 1972. In June 1974, the Lhotans were informed that the agency had decided to return the two younger girls to their mother and transfer the two older girls to another foster home. The agency apparently felt that the Lhotans were too emotionally involved with the girls and were damaging the agency’s efforts to prepare them to return to their mother. The state courts have ordered that all the Wallace children be returned to their mother, State ex rel. Wallace v. Lhotan, 51 App. Div. 2d 252, 380 N. Y. S. 2d 250, appeal dismissed and leave to appeal denied, 39 N. Y. 2d 705 (1976). We are told that the children have been returned and are adjusting successfully. Reply Brief for Appellants in No. 76-5200, pp. la-10a.
Defendants in the District Court included various New York State and New York City child welfare officials, and officials of a voluntary child-care agency and the Nassau County Department of Social Services. The latter two defendants have not appealed.
New York Soc. Serv. Law §383 (2) (McKinney 1976) provides:
“The custody of a child placed out or boarded out and not legally adopted or for whom legal guardianship has not been granted shall be vested during his minority, or until discharged by such authorized agency from its care and supervision, in the authorized agency placing out or boarding out such child and any such authorized agency may in its discretion remove such child from the home where placed or boarded.”
New York Soc. Serv. Law §400 (McKinney 1976) provides:
“Removal of children
“1. When any child shall have been placed in an institution or in a family home by a commissioner of public welfare or a city public welfare officer, the commissioner or city public welfare officer may remove such child from such institution or family home and make such disposition of such child as is provided by law.
“2. Any person aggrieved by such decision of the commissioner of public welfare or city welfare officer may appeal to the department, which upon receipt of the appeal shall review the case, shall give the person making the appeal an opportunity for a fair hearing thereon and within thirty days render its decision. The department may also, on its own motions, review any such decision made by the public welfare official. The department may make such additional investigation as it may deem necessary. All decisions of the department shall be binding upon the public welfare district involved and shall be complied with by the public welfare officials thereof.”
Title 18 N. Y. C. R. R. § 450.14, which was renumbered § 450.10 as of September 18, 1974, provides:
“Removal from foster family care, (a) Whenever a social services official of another authorized agency acting on his behalf proposes to remove a child in foster family care from the foster family home, he or such other authorized agency, as may be appropriate, shall notify the foster family parents, in writing of the intention to remove such child at least 10 days prior to the proposed effective date of such removal, except where the health or safety of the child requires that he be removed immediately from the foster family home. Such notification shall further advise the foster family parents that they may request a conference with the social services official or a designated employee of his social services department at which time they may appear, with or without a representative to have the proposed action reviewed, be advised of the reasons therefor and be afforded an opportunity to submit reasons why the child should not be removed. Each social services official shall instruct and require any authorized agency acting on his behalf to furnish notice in accordance with the provisions of this section. Foster parents who do not object to the removal of the child from their home may waive in writing their right to the 10 day notice, provided, however, that such waiver shall not be executed prior to the social services official’s determination to remove the child from the foster home and notifying the foster parents thereof.
“(b) Upon the receipt of a request for such conference, the social services official shall set a time and place for such conference to be held within 10 days of receipt of such request and shall send written notice of such conference to the foster family parents and their representative, if any, and to the authorized agency, if any, at least five days prior to the date of such conference.
“(c) The social services official shall render and issue his decision as expeditiously as possible but not. later than five days after the conference and shall send a written notice of his decision to the foster family parents and their representative, if any, and to the authorized agency, if any. Such decision shall advise the foster family parents of their right to appeal to the department and request a fair hearing in accordance with section 400 of the Social Services Law.
“(d) In the event there is a request for a conference, the child shall not be removed from the foster family home until at least three days after the notice of decision is sent, or prior to the proposed effective date of removal, whichever occurs later.
“(e) In any agreement for foster care between a social services official or another authorized agency acting on his behalf and foster parents, there shall be contained therein a statement of a foster parent’s rights provided under this section.”
Joint App. to Jurisdictional Statements 54a. See Organization of Foster Families v. Dumpson, 418 F. Supp. 277, 278 (SDNY 1976).
Intervenor Naomi Rodriguez, who is blind, placed her newborn son Edwin in foster care in 1973 because of marital difficulties. When Mrs. Rodriguez separated from her husband three months later, she sought return of her child. Her efforts over the next nine months to obtain return of the child were resisted by the agency, apparently because it felt her handicap prevented her from providing adequate care. Eventually, she sought return of her child in the state courts, and finally prevailed, three years after she first sought return of the child. Rodriguez v. Dumpson, 52 App. Div. 2d 299, 383 N. Y. S. 2d 833 (1976). The other named intervenors describe similar instances of voluntary placements during family emergencies followed by lengthy and frustrating attempts to get their children back.
The intervening natural parents argue in this Court that the District Court erred in not permitting them to raise certain defenses. In view of our disposition of the case, we find it unnecessary to reach this issue.
In an opinion handed down at the same time as its decision on the merits, the District Court granted class certification to appellee foster parents, the named children, and the intervening natural parents. Joint App. to Jurisdictional Statements 42a. See Organization of Foster Families v. Dumpson, supra, at 278 n. 3. Appellants in No. 76-5193 challenge the class certification of the children. We perceive no error.
The term “foster care” is often, used more generally to apply to any type of care that substitutes others for the natural parent in the parental role, including group homes, adoptive homes, and institutions, as well as foster family homes. A. Kadushin, Child Welfare Services 355 (1967) (hereafter Kadushin). Cf. Mnookin, Foster Care — In Whose Best Interests?, 43 Harv. Educ. Rev. 599, 600 (1973) (hereafter Mnookin I). Since this case is only concerned with children in foster family homes, the term will generally be used here in the more restricted sense defined in the text.
The record indicates that as many as 80% of the children in foster care in New York City are voluntarily placed. Deposition of Prof. David Fanshel, App. 178a. But cf. Child Welfare Information Services, Characteristics of Children in Foster Care, New York City Reports, Table No. 11 (Dec. 31, 1976). Other studies from New York and elsewhere variously estimate the percentage of voluntary placements between 50% and 90%. See, e. g., Mnookin I 601; Areen, Intervention Between Parent and Child: A Reappraisal of the State’s Role in Child Neglect and Abuse Cases, 63 Geo. L. J. 887, 921-922, and n. 185 (1975); Levine, Caveat Parens: A Demystification of the Child Protection System, 35 U. Pitt. L. Rev. 1,29 (1973).
Experienced commentators have suggested that typical parents in this situation might be “[a] divorced parent in a financial bind, am unwed adolescent mother still too immature to rear a child, or a welfare mother confronted with hospitalization and therefore temporarily incapable of caring for her child.” Weiss & Chase, The Case for Repeal of Section 383 of the New York Social Services Law, 4 Colum. Human Rights L. Rev. 325, 326 (1972). A leading text on child-care services suggests that “[fjamily disruption, marginal economic circumstances, and poor health” are principal factors leading to placement of children in foster care. Kadushin 366. Other studies suggest, however, that neglect, abuse, abandonment and exploitation of children, which presumably account for most of the children who enter foster care by court order, see infra, at 828, are also involved in many cases of voluntary placement. See infra, at 834; Kadushin 366.
“Authorized agency” is defined in N. Y. Soc. Serv. Law § 371 (10) (McKinney 1976) and “includes any local public welfare children’s bureau, such as the defendants New York City Bureau of Child Welfare and Nassau County Children’s Bureau, and any voluntary child-care agency under the supervision of the New York State Board of Social Welfare, such as the defendant Catholic Guardian Society of New York.” 418 F. Supp., at 278 n. 5.
An amicus curiae brief states that in New York City, 85% of the children in foster care are placed with voluntary child-care agencies licensed by the State, while most children in foster care outside New York City are placed directly with the local Department of Social Services. Brief for Legal Aid Society of City of New York, Juvenile Rights Division, as Amicus Curiae 14 n. 22.
Before enactment of § 384-a in 1975, the natural parent who had voluntarily placed a child in foster care had no automatic right to return of the child. If the agency refused consent for the return of the child to the parent, the parent’s only remedy was to seek a writ of habeas corpus. N. Y. Civ. Prac. Law § 7001 et seq. (McKinney 1963); N. Y. Family Court Act §651 (McKinney 1975). When the parent did not invoke this remedy, the child would remain in foster care. See Weiss & Chase, supra, n. 10, at 326-327, 333-334.
The record indicates that at the end of 1973, of 48,812 children in foster care under the supervision of the New York State Board of Social Welfare and the New York State Department of Social Services, 35,287 (about 72%) were placed in foster family homes, and the rest in institutions or other facilities. App. 117a.
Such contractual provisions are apparently also characteristic of foster-care arrangements in other States. See, e. g., Mnookin I 610.
See, e. g., the case of appellees Ralph and Christiane Goldberg, n. 1, supra. Evidence in the record indicates that as many as one-third of all transfers within the foster-care system are at the request of the foster parents. Affidavit of Carol J. Parry, App. 90a.
The resulting confusion not only .produces anomalous legal relationships but also affects the child’s emotional status. The foster child’s loyalties, 'emotional involvements, and responsibilities are often divided among three adult authority figures — the natural parents, the foster parent, and the social worker representing the foster-care agency. See, e. g., Kadushin 387-389; see also Mnookin I 624; Wald, State Intervention on Behalf of “Neglected” Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan. L. Rev. 623, 645 (1976) (hereafter Wald); E. Weinstein, The Self-Image of the Foster Child 15 (1960).
“Legal custody is concerned with the rights and duties of the person (usually the parent) having custody to provide for the child’s daily needs— to feed him, clothe him, provide shelter, put him to bed, send him to school, see that he washes his face and brushes his teeth.” Kadushin 354^355. Obviously, performance of these functions directly by a state agency is impractical.
“The agency sets limits and advances directives as to how the foster parents are to behave toward the child — a situation not normally encountered by natural parents. The shared control and responsibility for the child is clearly set forth in the instruction pamphlets issued to foster parents.” Id., at 394. Agencies frequently prohibit corporal punishment; require that children over a certain age be given an allowance; forbid changes in the child’s sleeping arrangements or vacations out of State without agency approval; require the foster parent to discuss the child’s behavioral problems with the agency. Id., at 394-395. Furthermore, since the cost of supporting the child is borne by the agency, the responsibility, as well as the authority, of the foster parent is shared with the agency. Ibid.
Voluntary placement in foster care is entirely distinct from the “surrender” of both “the guardianship of the person and the custody” of a child under Soc. Serv. Law § 384, which frees the child for adoption. § 384 (2). “Adoption is the legal proceeding whereby a person takes another person into the legal relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person.” N. Y. Dom. Rel. Law § 110 (McKinney 1964). A child may also be freed for adoption by abandonment or consent. § 111 (McKinney Supp. 1976-1977); Soc. Serv. Law § 384r-b.
“[A]lthough the agency usually obtains legal custody in foster family care, the child still legally ‘belongs’ to the parent and the parent retains guardianship. This means that, for some crucial aspects of the child’s life, the agency has no authority to act. Only the parent can consent to surgery for the child, or consent to his marriage, or permit his enlistment in the armed forces, or represent him at law.” Kadushin 355. But see Soc. Serv. Law § 383-b.
The agreement transferring custody to the agency must inform the parent of these obligations. §§ 384-a (2) (c) (iii), (iv).
The Family Court is also empowered permanently to sever the ties of parent and child if the parent fails to maintain contact with the child while in foster care. § 384-b (4)-(7). See supra, at 828, and n. 21.
The record shows that in 1973-1974 approximately 80% of the children removed from foster homes in New York State after living in the foster home for one year or more were transferred to another foster placement. Thirteen percent were returned to the biological parents, and 7% were adopted. Tr. of Oral Arg. 34; Brief for Appellees 20.
This regulation, set out in full in n. 3, supra, was formerly numbered 18 N. Y. C. R. R. §450.14, and is referred to by that number in the opinion of the District Court.
The State argues that while § 450.10 provides minimum requirements for notice to the foster family of the agency’s intention to remove the child and the reasons for that decision, the close contact between the agency and the foster parent insures that in most circumstances the foster parent is informed well in advance of any projected removal. In fact, 18 N. Y. C. R. R. § 606.16 (1976) requires the agency in some circumstances to begin for the discharge of the children from foster care, in cooperation with all parties involved, as early as six months in advance. Brief for Appellants in No. 76-183, pp. 21-23.
This statute is set out in full in n. 3, supra.
A court, however, apparently may grant a stay in some circumstances. See, e. g., In re W., 77 Misc. 2d 374, 377, 355 N. Y. S. 2d 245, 249 (1974).
There is some dispute whether the procedures set out in 18 N. Y. C. R. R. § 450.10 and Soc. Serv. Law § 400 apply in the case of a foster child being removed from his foster home to be returned to his natural parents. Application of these procedures to children who have been placed voluntarily, for example, arguably conflicts with the requirement of § 384r-a (2) (a) that children in that situation be returned to the natural parent as provided in the placement agreement or within 20 days of demand. Similarly, if the child has been ordered returned by a court, it is unclear what purpose could be served by an administrative conference or hearing on the correctness of the decision to remove the child from the foster home. Moreover, since the § 400 hearing takes place after removal of the child from the foster home, the hearing would have no purpose if the child has been returned to its parents, since the agency apparently has no authority to take the child back from its parents against their will without court intervention.
Nevertheless, nothing in either the statute or the regulations limits the availability of these procedures to transfers within the foster-care system. Each refers to the decision to remove a child from the foster family home, and thus on its face each would seem to cover removal for the purpose of returning the child to its parents. Furthermore, it is undisputed on this record that the actual administrative practice in New York is to provide the conference and hearing in all cases where they are requested, regardless of the destination of the child. In the absence of authoritative state-court interpretation to the contrary, we therefore assume that these procedures are available whenever a child is removed from a foster family home.
SSC Procedure No. 5 is set out in full in App. to Brief for Appellants in No. 76-5193, pp. 54a-65a, and in Jurisdictional Statement of New York City Appellants A8.
The agency is required to initiate such a review when a child has remained in foster care for 18 months, § 392 (2) (a), and if the child remains in foster care, the court “shall rehear the matter whenever it deems necessary or desirable, or upon petition by any party entitled to notice in proceedings under this section, but at least every twenty-four months.” §392 (10).
If the agency already has guardianship as well as custody of the foster child, as in the case of a surrender or previous court order terminating the guardianship of the natural parent for neglect, see nn. 19, 22, supra, the court may simply order that the child be placed for adoption, § 392 (7) (d); if the agency does not have guardianship, as in the case of children placed in foster care temporarily either by court order or by voluntary placement, the court may direct the agency to initiate a proceeding to free the child for adoption under §§ 384 — b, 392 (7)(c).
Both the District Court, 418 F. Supp., at 284, and the appellees, Brief for Appellees 70-72, argue that § 392 does not permit the court to enter such an order, citing In re W., supra, at 376, 365 N. Y. S. 2d, at 248. But in that very case, the court ordered that the child remain with the foster family pending exhaustion of the remedies provided by §400, thus essentially converting that hearing into a preremoval remedy. See n. 27, supra. Moreover, other courts have granted such relief. In re S., 74 Misc. 2d 935, 347 N. Y. S. 2d 274 (1973). See also In re Denlow, 87 Misc. 2d 410, 384 N. Y. S. 2d 621 (1976); In re H., 80 Misc. 2d 593, 363 N. Y. S. 2d 73 (1974). This interpretation of the power of the court seems to be fully supported by the broad language of § 392 (7).
For further comment on this point, see Jenkins, Child Welfare as a Class System, in Children and Decent People 3, 11-12 (A. Schorr ed. 1974); Rein, Nutt, & Weiss, Foster Family Care: Myth and Reality, in Children and Decent People 24, 25-29 (A. Schorr ed. 1974) (hereafter Rein, Nutt, & Weiss).
See, e. g., the case of Rafael Serrano, the foster child of appellees Ralph and Christiane Goldberg, n. 1, supra.
Other factors alleged to bias agencies in favor of retention in foster care are the lack of sufficient staff to provide social work services needed by the natural parents to resolve their problems and prepare for return of the child; policies of many agencies to discourage involvement of the natural parents in the care of the child while in foster care; and systems of foster-care funding that encourage agencies to keep the child in foster care. Wald 677-679. See also E. Sherman, R. Neuman, & A. Shyne, Children Adrift in Foster Care: A Study of Alternative Approaches 4-5 (1973).
For an ‘example of this problem, see the case of intervenor Naomi Rodriguez, n. 5, supra.
Recent legislative reforms in New York that decrease agencies’ discretion to retain a child in foster care are apparently designed to meet these objections. For example, Soc. Serv. Law § 384-a (2) (a) gives parents of children in voluntary foster placement greater rights to the return of their children. Since the statute permits placement agreements of varied terms, however, and since many children in foster care are not voluntarily placed, there may still be situations in which the agency has considerable discretion in deciding whether or not to return the child to the natural parent. The periodic court review provided by § 392 is also intended in part to meet these objections, but critics of foster care have argued that given the heavy caseloads, such review may often be perfunctory. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 (3) Law & Contemp. Probs. 226, 274-275 (1975) (hereafter Mnookin II). Moreover, judges too may find it difficult, in utilizing vague standards like “the best interests of the child,” to avoid decisions resting on subjective values.
The New York Legislature has recognized the merit of this criticism. Social Serv. Law §384-b (l)(b), adopted in 1976, states:
“The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens.”
In New York City, 23.1% of foster children enter foster care when under one year of age, and 43% at age three or under. Child Welfare Information Services, supra, n. 9, Table No. 5. Cf. E. Sherman, R. Neuman, & A. Shyne, supra, at 24 (18% of foster-care children in Rhode Island study were under one year of age when they entered foster care, and 43% were under the age of three).
One study of parental contacts in New York City found that 57.4% of all foster children had had no contact with their natural parents for the previous six months. Child Welfare Information Services, Parental Visiting Information, New York City Reports, Table No. 1 (Dec. 31, 1976).
The development of such ties points up an intrinsic ambiguity of foster care that is central to this case. The warmer and more homelike environment of foster care is intended to be its main advantage over institutional child care, yet because in theory foster care is intended to be only temporary, foster parents are urged not be become too attached to the children in their care. Mnookin I 613. Indeed, the New York courts have upheld removal from a foster home for the very reason that the foster parents had become too emotionally involved with the child. In re Jewish Child Care Assn. (Sanders), 5 N. Y. 2d 222, 156 N. E. 2d 700 (1959). See also the ease of the Lhotans, named appellees in this case, n. 1, supra.
On the other hand, too warm a relation between foster parent and foster child is not the only possible problem in foster care. Qualified foster parents are hard to find, Kadushin 367-372, 415-417, and very little training is provided to equip them to handle the often complicated demands of their role, Rein, Nutt, & Weiss 44-45; it is'thus sometimes possible that foster homes may provide inadequate care. Indeed, situations in which foster children were mistreated or abused have been reported. Wald 645. And the social work services that are supposed to be delivered to both the natural and foster families are often limited, due to the heavy caseloads of the agencies. Kadushin 413; Mnookin II 274. Given these problems, and given that the very fact of removal from even an inadequate natural family is often traumatic for the child,. Wald 644-645, it is not surprising that one commentator has found “rather persuasive, if still incomplete, evidence that throughout the United States, children in foster care are experiencing high rates of psychiatric disturbance.” Eisenberg, The Sins of the Fathers: Urban Decay and Social Pathology, 32 Am. J. of Orthopsychiatry 5, 14 (1962).
It must be noted, however, that both appellee foster parents and intervening natural parents present incomplete pictures of the foster-care system. Although seeking relief applicable to all removal situations, the foster parents focus on intra-foster-care transfers, portraying a foster-care system in which children neglected by their parents and condemned to a permanent limbo of foster care are arbitrarily shunted about by social workers whenever they become attached to a foster home. The natural parents, who focus on foster children being returned to their parents, portray a system under which poor and minority parents, deprived of their children under hard necessity and bureaucratic pressures, are obstructed in their efforts to maintain relationships with their children and ultimately to regain custody, by hostile agencies and meddling foster parents. As the experiences of the named parties to this suit, nn. 1, 5, supra, and the critical studies of foster care cited, supra, at 833-838, demonstrate, there are elements of truth in both pictures. But neither represents the whole truth about the system.
Appellees have also apparently abandoned their claim that' the challenged procedures violate the Equal Protection Clause of the Fourteenth Amendment.
The dissenting judge argued that the court’s underlying premise was a holding “over the objection of the representative of the children . . . that the foster children have a ‘liberty’ interest in their relationship with the foster parents.” 418 F. Supp., at 288. If this was in fact the reasoning of the District Court, we do not see how it differs from a holding that the foster family relationship is entitled to privacy protection analogous to the natural family — the issue the District Court purported not to reach.
Appellants argue, with the dissenting judge below, id., at 288, that in any event appellee foster parents have no standing to rely upon a supposed right of the foster children to avoid “grievous loss,” because the foster children are independently represented by court-appointed counsel, who has consistently opposed the relief requested by appellees, and denied that the children have any such right.
This argument misunderstands the peculiar circumstances of this lawsuit. Ordinarily, it is true, a party would not have standing to assert the rights of another, himself a party in the litigation; the third party himself can decide how best to protect his interests. But children usually lack the capacity to make that sort of decision, and thus their interest is ordinarily represented in litigation by parents or guardians. In this case, however, the State, the natural parents, and the foster parents, all of whom share some portion of the responsibility for guardianship of the child, see supra, at 826-828, and nn. 16-18, are parties, and all contend that the position they advocate is most in accord with the rights and interests of the children. In this situation, the District Court properly appointed independent counsel to represent the children, so that the court could have the benefit of an independent advocate for the welfare of the children, unprejudiced by the possibly conflicting interests and desires of the other parties. It does not follow, however, that that independent counsel, who is not a guardian ad litem of the children, is solely authorized to determine the children’s best interest.
No party denies, or could deny, that there is an Art. Ill “case or controversy” between the foster parents and the defendant state officials concerning the validity of the removal procedures. Accordingly, their standing to raise the rights of the children in their attack on those procedures is a prudential question. Craig v. Boren, 429 U. S. 190, 193 (1976). We believe it would be most imprudent to leave entirely to court-appointed counsel the choices that neither the named foster children nor the class they represent are capable of mailing for themselves, especially in litigation in which all parties have sufficient attributes of guardianship that their views on the rights of the children should at least be heard.
There can be, of course, no doubt of appellees’ standing to assert this interest, which, to whatever extent it exists, belongs to the foster parents as much as to the foster children.
Moore v. East Cleveland, ante, p. 494 (plurality opinion); Roe v. Wade, 410 U. S. 113, 152-153 (1973); Wisconsin v. Yoder, 406 U. S. 205, 231-233 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965); id., at 495-496 (Goldberg, J., concurring); id., at 502-503 (White, J., concurring in judgment); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U. S. 390, 399-401 (1923).
See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972); Cleveland Board of Education v. LaFleur, 414 U. S. 632 (1974); Armstrong v. Manzo, 380 U. S. 545 (1965); May v. Anderson, 345 U. S. 528 (1953).
Of course, recognition of a liberty interest in foster families for purposes of the procedural protections of the Due Process Clause would not necessarily require that foster families be treated as fully equivalent to biological families for purposes of substantive due process review. Cf. Moore v. East Cleveland, ante, at 546-547 (White, J., dissenting).
The scope of these rights extends beyond natural parents. The “parent” in Prince itself, for example, was the child's aunt and legal custodian. 321 U. S., at 159. And see Moore v. East Cleveland, ante, at 504-506 (plurality opinion), 507-511 (Brennan, J., concurring).
Some Justices of the Court have suggested that, at least where the substantive protection of the Due Process Clause is involved, biological relationship alone is not sufficient to create a constitutionally protected “family.” Moore v. East Cleveland, ante, at 536-540 (Stewart, J., dissenting) 549 (White, J., dissenting).
Adoption, for example, is recognized as the legal equivalent of biological parenthood. See, e. g., N. Y. Dom. Rel. Law § 110, supra, n. 19.
The briefs dispute at some length the validity of the “psychological parent” theory propounded in J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child (1973). That book, on which appellee foster parents relied to some extent in the District Court, is indeed controversial. See, e. g., Strauss & Strauss, Book Review, 74 Colum. L. Rev. 996 (1974); Kadushin, Beyond the Best Interests of the Child: An Essay Review, 48 Soc. Serv. Rev. 508, 512 (1974). But this case turns, not on the disputed validity of any particular psychological theory, but on the legal consequences of the undisputed fact that the emotional ties between foster parent and foster child are in many eases quite close, and undoubtedly in some as close as those existing in biological families.
The legal status of families has never been regarded as controlling:
“Nor has the [Constitution] refused to recognize those family relationships unlegitimized by a marriage ceremony.” Stanley v. Illinois, 405 U. S., at 651.
The New York Court of Appeals has as a matter of state law “[p]articularly rejected . . . the notion . . . that third-party custodians may acquire some sort of squatter’s rights in another’s child.” Bennett v. Jeffreys, 40 N. Y. 2d 543, 552 n. 2, 356 N. E. 2d 277, 285 n. 2 (1976).
The judgment of the District Court contains a provision (see Jurisdictional Statements, Joint App. 36a, 37a), not suggested in the opinion, that “hearings need not be held when the foster child is to be removed . . . at the request of the foster parent.” At oral argument, counsel for the foster parents stated that this limitation was the result of “a practical consideration .... [I]f a foster parent feels that the child cannot stay with the foster parent any longer, it doesn't make sense to try and impose that. . . . [I]t's hard to contemplate a situation in which it would be in the best interest of a child to stay with people that had asked that the child be taken.” Tr. of Oral Arg. 49. As many as one-third of transfers between foster homes may be at the request of the foster parents. N. 15, supra.
“As of July 1, 1974, New York City has provided, at the foster parent’s request, as a substitute for or supplement to the agency conference, a pre-removal ‘independent review’ conducted ‘in accordance with the concepts of due process.’ Its salient features, as set forth in an internal memorandum of August 5, 1974, are as follows: (1) the review is heard before a supervisory official who has had no previous involvement with the decision to remove the child; (2) both the foster parents and the agency may be represented by counsel and each may present witnesses and evidence; (3) all witnesses must be sworn, unless stipulated otherwise, and all testimony is subject to cross-examination; (4) counsel for the foster parents must be allowed to examine any portion of the agency’s files used to support the proposal to remove the child; (5) either a tape recording or stenographic record of the hearing must be kept and made available to the parties at cost; and (6) a written decision, supported by reasons, must be rendered within five days and must include a reminder to the foster parents that they may still request a post-removal hearing under N. Y. C. R. R. §450.14.” 418 F. Supp., at 285.
The District Court itself apparently relied on similar logic, in exempting in its judgment removals requested by foster parents from the mandatory hearing requirement. See n. 55, supra. In terms of the emotional cohesion of the family, the difference between a foster parent who requests removal of the foster child, and one who merely consents to removal seems irrelevant.
In assessing the likelihood of erroneous decisions by the agency in the absence of elaborate hearing procedures, the fact that the agency bears primary responsibility for the welfare of the child, and maintains, through its caseworkers, constant contact with the foster family is relevant. The foster parent always has the opportunity to present information to the agency at this stage. We, of course, do not suggest that such informal “process” can ever do service for the fundamental requirements of due process. Cf. In re Gault, 387 U. S. 1 (1967). But it should not routinely be assumed that any decision made without the forms of adversary fact-finding familiar to the legal profession is necessarily arbitrary or incorrect.
Appointment of such representatives in each of the numerous cases in which the foster child is very young would, of course, represent a major administrative burden on the State. This burden would be balanced by little gain in accuracy of decisionmaking, since the appointed representative’s inquiry into the best interests of the child would essentially duplicate that already conducted by the agency and that to be conducted at the hearing by the administrative decisionmaker.
Moreover, the State’s interest in avoiding “fiscal and administrative burdens,” Mathews v. Eldridge, 424 U. S. 319, 335 (1976), is not the only interest that must be weighed against requiring still more elaborate hearing procedures. As the District Court acknowledged, where delicate judgments concerning “the often ambiguous indices of a child’s emotional attachments and psychological development” are involved, we must also consider the possibility that making the decisionmaking process increasingly adversary “might well impede the effort to elicit the sensitive and personal information required,” 418 F. Supp., at 286, or make the struggle for custody, already often difficult for the child, see, e. g., Kadushin 404, even more traumatic. In such a situation, there is a value in less formalized hearing procedures. See also n. 57, supra.
Since the class certified by the District Court embraces all foster parents who have had a foster child living with them for over one year, while § 392 is limited in application to children in foster care for 18 months, each class includes some children not included in the other. For example, a child who had been in foster care for 13 months, all of it with the same family, is a member of the certified class but not eligible for § 392 review. On the other hand, a child who has been in foster care for two years but not with the same family, is eligible for § 392 review but is not a member of the certified class.
In this Court, as in the District Court, the primary reliance of the defendants and intervenors has been on the adequacy of § 392 as a procedure for protecting the interests of the foster family, without as fully addressing the adequacy otherwise of the procedures provided by 18 N. Y. C. R. R. § 450.10 and Soc. Serv. Law § 400. Our consequent emphasis upon the adequacy of § 392 procedures as requiring reversal of the District Court is not to be understood to imply any view upon the adequacy of the alternative administrative remedies to protect those interests. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
116
] |
BROWN v. GENERAL SERVICES ADMINISTRATION et al.
No. 74-768.
Argued March 1-2, 1976
Decided June 1, 1976
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 835. Marshall, J., took no part in the consideration or decision of the ease.
Eñe Schnapper argued the cause for petitioner. With him on the briefs were Jack Greenberg, James M. Nabñt III, Charles Stephen Ralston, Melvyn R. Leventhal, Barry L. Goldstein, and Jeff Greenup.
Deputy Solicitor General Wallace argued the cause for respondents. With him on the brief were Solicitor General Bork, Assistant Attorney General Lee, Mark L. Evans, Robert E. Kopp, and Neil H. Koslowe.
Mr. Justice Stewart
delivered the opinion of the Court.
The principal question presented by this case is whether § 717 of the Civil Rights Act of 1964 provides the exclusive judicial remedy for claims of discrimination in federal employment.
The petitioner, Clarence Brown, is a Negro who has been employed by the General Services Administration since 1957. He is currently classified in grade GS-7 and has not been promoted since 1966. In December • 1970 Brown was referred, along with two white colleagues, for promotion to grade GS-9 by his supervisors. All three were rated “highly qualified,” and the promotion was given to one of the white candidates for the position. Brown filed a complaint with the GSA Equal Employment Opportunity Office alleging that racial discrimination had biased the selection process. That complaint was withdrawn when Brown was told that other GS-9 positions.would soon be available.
Another GS-9 position did become vacant in June 1971, for which the petitioner along with two others was recommended as “highly qualified.” Again a white applicant was chosen. Brown filed a second administrative complaint with the GSA Equal Employment Opportunity Office. After preparation and review of an investigative report, the GSA Regional Administrator notified the petitioner that there was no evidence that race had played a part in the promotion. Brown requested a hearing, and one was held before a complaints examiner of the Civil Service Commission. In February 1973, the examiner issued his findings and recommended decision. He found no evidence of racial discrimination; rather, he determined that Brown had not been advanced because he had not been “fully cooperative.”
The GSA rendered its final decision in March 1973. The agency’s Director of Civil Rights informed Brown by letter of his conclusion, that considerations of race had not entered the promotional process. The Director’s letter told Brown that if he chose, he might carry the administrative process further by lodging an appeal with the Board of Appeals and Review of the Civil Service Commission and that, alternatively, he could file suit within 30 days in federal district court.
Forty-two days later Brown filed suit in a Federal District Court. The complaint alleged jurisdiction under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U. S. C. § 2000e et seq. (1970 ed. and Supp. IV), “with particular reference to” § 717; under 28 U. S. C. § 1331 (general federal-question jurisdiction) ; under the Declaratory Judgment Act, 28 U. S. C. §§ 2201, 2202; and under the Civil Rights Act of 1866, as amended, 42 U. S. C. § 1981.
The respondents moved to dismiss the complaint for lack of subject-matter jurisdiction, on the ground that Brown had not filed the complaint within 30 days of final agency action as required by § 717 (c) of the Civil Rights Act of 1964, 42 XT. S. C. § 2000e-16 (c) (1970 ed., Supp. IV). The District Court granted the motion.
The Court of Appeals for the Second Circuit affirmed the judgment of dismissal. 507 F. 2d 1300 (1974). It held, first, that the § 717 remedy for federal employment discrimination was retroactively available to any employee, such as the petitioner, whose administrative complaint was pending at the time § 717 became effective on March 24, 1972. The appellate court held, second, that § 717 provides the exclusive judicial remedy for federal employment discrimination, and that the complaint had not been timely filed under that statute. Finally, the court ruled that if § 717 did not pre-empt other remedies, then the petitioner’s complaint was still properly dismissed because of his failure to exhaust available administrative remedies. We granted certio-rari, 421 U. S. 987 (1975), to consider the important issues of federal law presented by this case.
The primary question in this litigation is not difficult to state: Is §717 of the Civil Rights Act of 1964, as added by § 11 of the Equal Employment Opportunity Act of 1972, 42 U. S. C. § 2000e-16 (1970 ed., Supp, IV), the exclusive individual remedy available to a federal employee complaining of job-related racial discrimination? But the question is easier to state than it is to resolve. Congress simply failed explicitly to describe § 717’s position in the constellation of antidiscrimination law. We must, therefore, infer congressional intent in less obvious ways. As Mr. Chief Justice Marshall once wrote for the Court: “Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived . . . .” United States v. Fisher, 2 Cranch 358, 386 (1805).
Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin. 42 U. S. C. §§ 2000e-2, 2000e-3 (1970 ed. and Supp. IV). Until it was amended in 1972 by the Equal Employment Opportunity Act, however, Title VII did not protect federal employees. 42 U. S. C. §2000e(b). Although federal employment discrimination clearly violated both the Constitution, Bolling v. Sharpe, 347 U. S. 497 (1954), and statutory law, 5 U. S. C. § 7151, before passage of the 1972 Act, the effective availability of either administrative or judicial relief was far from sure. Charges of racial discrimination were handled parochially within each federal agency. A hearing examiner might come from outside the agency, but he had no authority to conduct an independent examination, and his conclusions and findings were in the nature of recommendations that the agency was free to accept or reject. Although review lay in the Board of Appeals and Review of the Civil Service Commission, Congress found “skepticism” among federal employees “regarding the Commission’s record in obtaining just resolutions of complaints and adequate remedies. This has, in turn, discouraged persons from filing complaints with the Commission for fear that doing so will only result in antagonizing their supervisors and impairing any future hope of advancement.”
If administrative remedies were ineffective, judicial relief from federal employment discrimination was even more problematic before 1972. Although an action seeking to enjoin unconstitutional agency conduct would lie, it was doubtful that backpay or other compensatory relief for employment discrimination was available at the time that Congress was considering the 1972 Act. For example, in Gnotta v. United States, 415 F. 2d 1271, the Court of Appeals for the Eighth Circuit had held in 1969 that there was no jurisdictional basis to support the plaintiff’s suit alleging that the Corps of Engineers had discriminatorily refused to promote him. Damages for alleged discrimination were held beyond the scope of the Tucker Act, 28 U. S. C. § 1346, since no express or implied contract was involved. 415 F. 2d, at 1278. And the plaintiff’s cause of action under the Administrative Procedure Act, 5 U. S. C. §§ 701-706, and the Mandamus Act, 28 U. S. C. § 1361, was held to be barred by sovereign immunity, since his claims for promotion would necessarily involve claims against the Treasury:
“A suit against an officer of the United States is one against the United States itself 'if the decree would operate against’ the sovereign; Hawaii v. Gordon, 373 U. S. 57, 58 . . . (1963) [,] or if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ Land v. Dollar, 330 U. S. 731, 738, . . . (1947); or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act,' Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 704, . . . (1949).” 415 F. 2d, at 1277.
See also Blaze v. Moon, 440 F. 2d 1348 (CA5 1971) (no jurisdiction over suit by a Negro alleging wrongful discharge from Corps of Engineers).
Concern was evinced during the hearings before the committees of both Houses over the apparent inability of federal employees to engage the judicial machinery in cases of alleged employment discrimination. See, e. g., Hearings on S. 2515 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., 296, 301, 308, 318 (1971); Hearings on H. R. 1746 before the General Subcommittee on Labor of the House Committee on Education and Labor, 92d Cong., 1st Sess., 320, 322, 385-386, 391-392 (1971). Although there was considerable disagreement over whether a civil action would lie to remedy agency discrimination, the committees ultimately concluded that judicial review was not available at all or, if available, that some forms of relief were foreclosed. Thus, the Senate Report observed: “The testimony of the Civil Service Commission notwithstanding, the committee found that an aggrieved Federal employee does not have access to the courts. In many cases, the employee must overcome a U. S. Government defense of sovereign immunity or failure to exhaust administrative remedies with no certainty as to the steps required to exhaust such remedies. Moreover, the remedial authority of the Commission and the courts has also been in doubt.” S. Rep. No. 92-415, p. 16 (1971). Similarly, the House Committee stated: “There is serious doubt that court review is available to the aggrieved Federal employee. Monetary restitution or back pay is not attainable. In promotion situations, a critical area of discrimination, the promotion is often no longer available.” H. R. Rep. No. 92-238, p. 25 (1971).
The conclusion of the committees was reiterated during floor debate. Senator Cranston, coauthor of the amendment relating to federal employment, asserted that it would, “[f]or the first time, permit Federal employees to sue the Federal Government in discrimination cases . . . .” 118 Cong. Rec. 4929 (1972). Senator Williams, sponsor and floor manager of the bill, stated that it “provides, for the first time, to my knowledge, for the right of an individual to take his complaint to court.” Id,, at 4922.
The legislative history thus leaves little doubt that Congress was persuaded that federal employees who were treated discriminatorily had no effective judicial remedy. And the case law suggests that that conclusion was entirely reasonable. Whether that understanding of Congress was in some ultimate sense incorrect is not what is important in determining the legislative intent in amending the 1964 Civil Rights Act to cover federal employees. For the relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was.
This unambiguous congressional perception seems to indicate that the congressional intent in 1972 was to create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination. We need not, however, rest our decision upon this inference alone. For the structure of the 1972 amendment itself fully confirms the conclusion that Congress intended it to be exclusive and pre-emptive.
Section 717 of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-16 (1970 ed., Supp. IV), proscribes federal employment discrimination and establishes an administrative and judicial enforcement system. Section 717 (a) provides that all personnel actions affecting federal employees and applicants for federal employment “shall be made free from any discrimination based on race, color, religion, sex, or national origin.”
Sections 717 (b) and (c) establish complementary administrative and judicial enforcement mechanisms designed to eradicate federal employment discrimination. Subsection (b) delegates to the Civil Service Commission full authority to enforce the provisions of subsection (a) “through appropriate remedies, including reinstatement or hiring of employees with or without back pay,” to issue “rules, regulations, orders and instructions as it deems necessary and appropriate” to carry out its responsibilities under the Act, and to review equal employment opportunity plans that are annually submitted to it by each agency and department.
Section 717 (c) permits an aggrieved employee to file a civil action in a federal district court to review his claim of employment discrimination. Attached to that right, however, are certain preconditions. Initially, the complainant must seek relief in the agency that has allegedly discriminated against him. He then may seek further administrative review with the Civil Service Commission or, alternatively, he may, within 30 days of receipt of notice of the agency's final decision, file suit in federal district court without appealing to the Civil Service Commission. If he does appeal to the Commission, he may file suit within 30 days of the Commission's final decision. In any event, the complainant may file a civil action if, after 180 days from the filing of the charge or the appeal, the agency or Civil Service Commission has not taken final action.
Sections 706 (f) through (k), 42 U. S. C. §§ 2000&-5 (f) through 2000e-5 (k) (1970 ed. and Supp. IV), which are incorporated “as applicable” by § 717 (d), govern such issues as venue, the appointment of attorneys, attorneys' fees, and the scope of relief. Section 717 (e), finally, retains within each governmental agency “primary responsibility to assure nondiscrimination in employment....''
The balance, completeness, and structural integrity of § 717 are inconsistent with the petitioner's contention that the judicial remedy afforded by § 717 (c) was designed merely to supplement other putative judicial relief. His view fails, in our estimation, to accord due weight to the fact that unlike these other supposed remedies/ § 717 does not contemplate merely judicial relief. Rather, it provides for a careful blend of administrative and judicial enforcement powers. Under the petitioner’s theory, by perverse operation of a type of Gresham’s law, § 717, with its rigorous administrative exhaustion requirements and time limitations, would be driven out of currency were immediate access to the courts under other, less demanding statutes permissible. The crucial administrative role that each agency together with the Civil Service Commission was given by Congress in the eradication of employment discrimination would be eliminated “by the simple expedient of putting a different label on [the] pleadings.” Preiser v. Rodriguez, 411 U. S. 475, 489-490 (1973). It would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.
The petitioner relies upon our decision in Johnson v. Railway Express Agency, 421 U. S. 454 (1975), for the proposition that Title VII did not repeal pre-existing remedies for employment discrimination. In Johnson the Court held that in the context of private employment Title VII did not pre-empt other remedies. But that decision is inapposite here. In the first place, there were no problems of sovereign immunity in the context of the Johnson case. Second, the holding in Johnson rested upon the explicit legislative history of the 1964 Act which “ 'manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.’ ” 421 U. S., at 459, quoting Alexander v. Gardner-Denver Co., 415 U. S. 36, 48 (1974). Congress made clear “ 'that the remedies available to the individual under Title VII are co-extensive with the indiv[i] dual's right to sue under the provisions of the Civil Rights Act of 1866, 42 U. S. C. § 1981, and that the two procedures augment each other and are not mutually exclusive.’ ” 421 U. S., at 459, quoting H. R. Rep. No. 92-238, p. 19 (1971). See also Jones v. Alfred H. Mayer Co., 392 U. S. 409, 415-417 (1968). There is no such legislative history behind the 1972 amendments. Indeed, as indicated above, the congressional understanding was precisely to the contrary.
In a variety of contexts the Court has held that a precisely drawn, detailed statute pre-empts more general remedies. In Preiser v. Rodriguez, supra, for example, state prisoners whose good-time credits had been canóeled for disciplinary reasons brought suit under the Civil Rights Act of 1871, as amended, 42 U. S. C. § 1983, in conjunction with a habeas corpus action. Although acknowledging that the civil rights statute was, by its terms, literally applicable, we held that challenges to the fact or duration of imprisonment appropriately lie only under habeas corpus, the “more specific act.” Permitting such challenges to be brought under the general, civil rights statute, where exhaustion is not required, would undermine the “strong policy requiring exhaustion of state remedies” when prisoners challenge the length of their confinement. 411 U. S., at 488-490. The Court has reached similar results in cases in which injured federal employees have claimed the right to proceed under facially applicable tort recovery statutes. E. g., United States v. Demko, 385 U. S. 149 (1966) (18 U. S. C. § 4126; Federal Tort Claims Act); Patterson v. United States, 359 U. S. 495 (1959) (Federal Employees’ Compensation Act; Suits in Admiralty Act); Johansen v. United States, 343 U. S. 427 (1952) (Federal Employees’ Compensation Act; Public Vessels Act). We have consistently held that a narrowly tailored employee compensation scheme pre-empts the more general tort recovery statutes. See also Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222 (1957); Stonite Products Co. v. Melvin Lloyd Co., 315 U. S. 561 (1942) (in patent cases, venue is governed exclusively by statute dealing specifically with patent cases; general venue statute held inapplicable).
In the case at bar, as in Preiser and the other cases cited above, the established principle leads unerringly to the conclusion that § 717 of the Civil Rights Act of 1964, as amended, provides the exclusive judicial remedy for claims of discrimination in federal employment.
We hold, therefore, that since Brown failed to file a timely complaint under § 717 (c), the District Court properly dismissed the case. Accordingly, the judgment is affirmed.
It is so ordered.
Mr. Justice Marshall took no part in the consideration or decision of this case.
After the petition for writ of certiorari was filed, the petitioner was laterally transferred to another Government agency. That transfer does not affect his claim for backpay or for equitable relief. The petitioner is still classified as a GS-7 and still wants the specific GS-9 position in the GSA for which he applied in 1971.
The letter stated in part:
“Therefore, based upon my findings, I am rendering the final agency decision on the complaint as follows:
“That the evidence in the case does not support the complaint of racial discrimination for promotion against you, but that you should receive career and performance counseling from your immediate supervisor to help you formulate plans to receive appropriate training and to correct your deficiencies as noted by management.
“If this decision does not meet with your satisfaction, you may file an appeal in writing, either in person or by mail, with the Board of Appeals and Review, U. S. Civil Service Commission, Washington, DC 20415. The Board's decision is the final administrative appeal. This appeal must be filed within 15 calendar days of receipt of this letter.
“If you choose to appeal to the Board of Appeals and Review, you retain the right to file a civil action in Federal district court within 30 calendar days after receipt of the Board’s final decision on your appeal. You also have the right to file a civil action in Federal district court within 30 calendar days of receipt of this letter or 180 days after filing an appeal with the Board of Appeals and Review if no decision has been made.”
Brown later moved for leave to amend his complaint to allege additional grounds of jurisdiction under 28 U. S. C. § 1343 (4) and the Tucker Act, 28 U. S. C. §§ 1346 (a) and (b), and to allege that more than $10,000 was in controversy. The District Court denied the motion, and the Court of Appeals did not review that order of denial.
The parties have apparently acquiesced in this holding by the Court of Appeals, and we have no occasion to disturb it.
S. Rep. No. 92-415, p. 14 (1971).
Ibid.; see H. R. Rep. No. 92-238, p. 24 (1971).
See, e. g., Bolling v. Sharpe, 347 U. S. 497 (1954); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952).
By parity of reasoning, sovereign immunity would, of course, also bar claims against federal agencies for damages and promotion brought under the Civil Rights Act of 1866, as amended, 42 R. S. C. § 1981, and under the general federal-question jurisdictional grant of 28 U. S. C. § 1331.
But see DeLong v. Hampton, 422 F. 2d 21 (CA3 1970) (jurisdiction in district court to review determination by the Civil Service Commission that plaintiff was properly dismissed).
The petitioner maintains that in 1972, despite adverse court decisions, 42 U. S. C. § 1981; the Mandamus Act, 28 U. S. C. § 1361 ; the Tucker Act, 28 U. S. C. § 1346; 28 U. S. C. § 1331 (general federal-question jurisdiction); and the Administrative Procedure Act, 5 U. S. C. § 702, all conferred jurisdiction on the federal courts in federal employment discrimination cases.
Title 42 U. S. C. §2000e-16 (1970 ed., Supp. IV) reads in full:
“(a) Discriminatory practices prohibited; employees or applicants for employment subject to coverage.
“All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies (other than the General Accounting Office) as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from non-appropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.
“(b) Civil Service Commission; enforcement powers; issuance of rules, regulations, etc.; annual review and approval of national and regional equal employment opportunity plans; review and evaluation of equal employment opportunity programs and publication of progress reports; consultations with interested parties; compliance with rules, regulations, etc.; contents of national and regional equal employment opportunity plans; authority of Librarian of Congress.
“Except as otherwise provided in this subsection, the Civil Service Commission shall have authority to enforce the provisions of subsection (a) of this section through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section, and shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Civil Service Commission shall—
“(1) be responsible for the annual review and approval of a national and regional equal employment opportunity plan which each department and agency and each appropriate unit referred to in subsection (a) of this section shall submit in order to maintain an affirmative program of equal employment opportunity for all such employees and applicants for employment;
“(2) be responsible for the review and evaluation of the operation of all agency equal employment opportunity programs, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each such department, agency, or unit; and
“(3) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to equal employment opportunity.
“The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions 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. The plan submitted by each department, agency, and unit shall include, but not be limited to—
“(1) provision for the establishment of training and education programs designed to provide a maximum opportunity for employees to advance so as to perform at their highest potential; and
“(2) a description of the qualifications in terms of training and experience relating to equal employment opportunity for the principal and operating officials of each such department, agency, or unit responsible for carrying out the equal employment opportunity program and of the allocation of personnel and resources proposed by such department, agency, or unit to carry out its equal employment opportunity program.
“With respect to employment in the Library of Congress, authorities granted in this subsection to the Civil Service Commission shall be exercised by the Librarian of Congress.
“(c) Civil action by employee or applicant for employment for redress of grievances; time for bringing of action; head of department, agency, or unit as defendant.
“Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Civil Service Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Civil Service Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, 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, in which civil action the head of the department, agency, or unit, as appropriate, shall be the. defendant.
“(d) Section 2000e-5 (f) through (k) of this title applicable to civil actions.
“The provisions of section 2000e-5 (f) through (k) of this title, as applicable, shall govern civil actions brought hereunder.
“(e) Government agency or official not relieved of responsibility to assure nondiscrimination in employment or equal employment opportunity.
“Nothing contained in this Act shall relieve any Government agency or official of its or his primary responsibility to assure nondiscrimination in employment as required by the Constitution and statutes or of its or his responsibilities under Executive Order 11478 relating to equal employment opportunity in the Federal Government.”
See n. 10, supra. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
60
] |
CENTRAL HARDWARE CO. v. NATIONAL LABOR RELATIONS BOARD et al.
No. 70-223.
Argued April 18, 1972
Decided June 22, 1972
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 548.
Ronald L. Aylward argued the cause for petitioner. With him on the briefs was Keith E. Mattern.
Norton J. Come argued the cause for respondent National Labor Relations Board. .With him on .the brief were Solicitor General Griswold and Peter G. Nash. Bernard Dunau argued the cause for respondent Retail Clerks Union Local 725. With him on the brief was Carl L. Taylor.
Briefs of amici curiae urging reversal were filed by Lawrence M. Cohen, Jerry Kronenberg, Gerard C. Smetana, and Alan Raywid for the American Retail Federation, and by Phil B. Hammond for Levitz Furniture Corp.
/. Albert W.oll, Laurence Gold, and Thomas-E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.
Me. Justice Powell
delivered the opinion of the Court.
Petitioner, Central Hardware Co. (Central), owns and operates two retail' hardware stores in Indianapolis, Indiana. Each store is housed in a large building, containing 70,000 square feet of floor space, and housing no other retail establishments. The stores are surrounded on three sides by ample parking facilities, accommodating approximately 350 automobiles. The parking lots are owned by Central, and are . maintained solely for the use of Central’s customers and employees. While there are other retail establishments in the vicin-. ity of Central’s stores, these establishments are not a part of a shopping center complex, and they maintain their own separate parking lots. . .
Approximately a week before Central opened its stores, the Retail Clerks Union, Local 725, Retail Clerks International Association, AFL-CIÓ (the Union), began an organization campaign at both stores. The campaign consisted primarily of solicitation by nonemployee Union organizers on Central’s parking lots. The nonemployee organizers confronted Central’s employees in the parking lots and- sought to persuade them to sign cards authorizing the Union to represent them in an appropriate bargaining unit. As a part of the organization campaign, an “undercover agent for the Union” was infiltrated into the employ of Central, receiving full-time salary from both the Union and the company. This agent solicited employees to join the Union, and obtained a list of the employees of the two stores which was about 80% complete.
Central had a no-solicitation rule which it enforced against all solicitational activities in its stores and on its parking lots. A number of employees complained to Central’s local, management that they were being harassed by the organizers, and these complaints were forwarded to Central’s corporate headquarters in St. Louis, Missouri. The St. Louis officials directed the Indianapolis management to enforce the nonemployee no-solicitation rule and keep all Union organizers off the company premises, including the parking lots. Although most of the nonemployee Union organizers had either left Indianapolis or ceased work on the Central organization campaign, the Indianapolis management had occasion to assert the nonemployee no-solicitation rule on several occasions.
One arrest was made when a field organizer, for the Union was confronted by the manager of one of the stores on its parking lot, and refused to leave after being requested to do so. The field organizer asserted, that he was a “customer” and. insisted upon entering the store. The police were called, and when the organizer persisted in his refusal to leave, he was arrested.
Shortly after Central received complaints from its employees as to harassment by the organizers, Central filed unfair labor* practice charges against the Union. The Union subsequently filed unfair labor practice charges against Central. After an investigation, the General Counsel of the National Labor Relations Board (the Board) dismissed Central’s charges against the Union, and issued a complaint against Central on the Unio'n’s ch'arges.-
The Board held that . Central’s nonemployee no-solicitation rule was overly broad, and that its enforcement violated §8 (a)(1) of the National Labor Relations Act. The Board reasoned that the character and use of Central’s parking lots distinguished the case from NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1056),. and brought it within the principle of Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 (1968).. 181 N. L. R. B. 491 (1970). A divided Court of Appeals for the Eighth Circuit agreed, and ordered enforcement of the Board’s order enjoining Central from enforcing any rule prohibiting nonemployee Union organizers from using its parking lots to solicit employees on behalf of the Union. 439 F. 2d 1321 (1971). We granted certiorari to consider whether the principle of Logan Valley is applicable to this case. 404 U. S. 1014 (1972). We conclude that it is not.
I
Section 7 of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U. S. C. § 157, guarantees to employees the'right “to self-organization, to form, join, or assist labor organizations.” This guarantee includes both the right of union officials to discuss organization with employees, and the right of employees to discuss organization among themselves. Section 8 (a)(1) of the Act, as amended, 29 U. S. C. § 158 (a)(1), makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” in § 7. But organization rights are not viable in a vacuum; their effectiveness depends in some measure on the ability of employees to learn the advantages and dis-' advantages of organization from others. Early in the history of the administration of the Act the Board recognized the importance of freedom of communication to the free exercise of organization rights. See Peyton Packing Co., 49 N. L. R. B. 828 (1943), enforced, 142 F. 2d 1009 (CA3), cert. denied, 323 U. S. 730 (1944).
In seeking to provide information essential to the free exercise of organization rights, union organizers have often éngaged in .conduct inconsistent with traditional notions of private property rights. The Board and the courts have the duty to resolve conflicts between organization rights and property rights, and to seek a proper accommodation between the two. This Court addressed the conflict which often arises between organization rights and property rights in NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956). The Babcock & Wilcox Co. operated a manufacturing plant on a 100-acre tract about one mile from a community of 21,000 people. The plant buildings were enclosed within a fence, employee access being through several gates. Approximately 90% of the employees drove to work in' private cars, and the company maintained a parking lot for the employees. Only employees and deliverymen normally' used the parking lot. The company had a rule forbidding the distribution of literature on company property. The Board found that the company’s parking lot and the walkway leading from it to the plant entrance were the only “safe and practicable” places in the vicinity of the plant for distribution of union literature, and held the company guilty of an unfair labor practice for enforcing the no-distribution rule and thereby denying union organizers limited access to company property. The Board ordered the company to rescind its no-distribution rule insofar as it related to nonemployee union representatives seeking to distribute union literature on the parking lot and walkway area.
The Court of Appeals for the Fifth Circuit refused enforcement of the Board’s order on the ground that the Act did not authorize the Board to impose a servitude . on an employer’s' property where no employee was involved. This- Court affirmed on the ground that the availability of alternative channels of communication made the intrusion on the employer’s property rights ordered by the Board unwarranted. The Court in Bab-cock stated the guiding principle for adjusting conflicts between § 7 rights and property rights:
“Organization rights are granted to workers by the same authority,'the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other. The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid organization. But when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize.” 351 U. S., at 112.
The principle of Babcock is limited to this accommodation between organization rights, and property rights. This principle requires a “yielding” of property rights only in the context of an organization campaign. Moreover, the allowed intrusion on property rights is limited to that necessary to facilitate the exercise of employees’ § 7 rights. After the requisite need for access to the employer’s property has been shown, the access is limited to (i) union organizers; (ii) prescribed non working areas of the employer’s premises; and (iii) the duration of organization activity. In short, the principle of accommodation announced in Babcock is limited to labor organization campaigns, and the “yielding” of property rights it may require is both temporary and minimal.
II
The principle applied in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 (1968), is quite different. While it is true that Logan Valley involved labor picketing, the decision rests on constitutional grounds; it is not a § 7 case.
Logan Valley had its genesis in Marsh v. Alabama, 326 U. S. 501 (1946). Marsh involved a “company town,” an economic anachronism rarely encountered today. The town was wholly owned by the Gulf Shipbuilding Corp., yet it had all of the characteristics of any other American town. Gulf Shipbuilding held title to all the land in the town, including that covered by streets and sidewalks. Gulf Shipbuilding also provided municipal services, such as sewerage service and police protection, to the residents of the town. A Jehovah’s Witness undertook to distribute religious literature on a sidewalk near the post office in the “business block” of the town, and was arrested on a trespassing charge. She was subsequently convicted of the crime of trespassing, and the Alabama courts upheld the conviction on appeal. This Court reversed, holding that Alabama could not permit a corporation to assume the functions of a municipal government and at the same time deny First Amendment rights through the application of the State’s criminal trespass law.
In Logan Valley, over a strong dissent by Mr. Justice Black, the author of Marsh,. the Court applied the reasoning of Marsh to a modern economic phenomenon, the shoppihg center complex. The Logan Valley Mall was a complex of retail establishments, which the Court regarded under the factual circumstances as the functional equivalent of the “community business block” of the company town in Marsh. The corporate owner of Logan Valley Mall obtained a state court injunction against peaceful picketing on the shopping center-property, and the Pennsylvania Supreme Court affirmed the issuance of the injunction on the ground that the picketing constituted a trespass on private property. This Court reversed, holding that Pennsylvania could not “delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.” 391 U. S., at 319-320.
III
The Board and the Court of Appeals held that Logan Valley rather than Babcock controlled this case. The Board asserts that the distinguishing feature between these two cases is that in Logan Valley the owner had “diluted his property interest by opening his property to the general public for his own economic advantage.” The emphasis, both in the argument on behalf of the jBoard and in the opinion below, is on the opening of the property “to the general public.”
This analysis misconceives the rationale of Logan Valley. Logan Valley involved a large commercial shopping center which the Court found had displaced, in certain relevant respects, the functions of the normal municipal “business block.” First and Fourteenth Amendment free-speech rights were deemed infringed under the facts of that case when the property owner invoked the trespass laws of the State against the pickets.
Before an owner of private property can be.subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use. The First and Fourteenth Amendments are limitations on state action, not on action by the owner of private property used only for private purposes. The only fact relied upon for the argument that Central's parking lots have acquired the characteristics of a public municipal facility is that they are “open to the public.”. Such an argument could be made with respect to almost every retail and service establishment in the country, regardless of size or location. To accept it would cut Logan Valley entirely away from its roots in Marsh. It would also constitute an unwarranted infringement of long-settled rights of private property protected by the Fifth and Fourteenth Amendments. We hold that the Board and the Court of Appeals erred in applying Logan Valley to this case.
The . Trial. Examiner concluded that no reasonable means of communication with employees were available to the nonemployee Union organizers other than solicitation in Central's parking lots. The Board adopted this conclusion. Central vigorously contends that this conclusion is not supported by substantial evidence in the record as a whole. The Court of Appeals did not consider this contention, because it viewed Logan Valley controlling rather than Babcock. The determination whether on the record as a whole there is substantial evidence to support agency findings is a matter entrusted primarily to the courts of appeals. Universal Camera Corp. v. NLRB, 340 U. S. 474 (1951). Since the Court Appeals has not yet Considered this question in. light the principles of NLRB v. Babcock & Wilcox Co., supra, the judgment is vacated, and the case will be remanded that court for such consideration.
is so ordered.
See Thomas v. Collins, 323 U. S. 516, 533-534 (1945).
Babcock & Wilcox Co., 109 N. L. R. B. 485, 486 (1954).
NLRB v. Babcock & Wilcox Co., 222 F. 2d 316 (CA5 1955).
Brief for the NLRB 20.
439 F. 2d, at 1326-1328.
For a full discussion of Logan Valley and the- circumstances in which it is applicable, see the decision of the Court today in Lloyd Corp. v. Tanner, post, p. 551. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
81
] |
WESTINGHOUSE ELECTRIC CORP. v. TULLY et al.
No. 81-2394.
Argued November 1, 1983
Decided April 24, 1984
Blackmun, J., delivered the opinion for a unanimous Court.
Paul M. Dodyk argued the cause for appellant. With him on the briefs was David A. Barrett.
Peter H. Schiff argued the cause for appellees. With him on the brief were Robert Abrams, Attorney General of New York, and Francis V. Dow, Assistant Attorney General.
George Deukmejian, Attorney General, and Charles C. Kobayashi, Deputy Attorney General, filed a brief for the State of California as ami-cus curiae.
Justice Blackmun
delivered the opinion of the Court.
In this case, we are confronted with the question of the constitutionality of a franchise tax credit afforded by the State of New York to certain income of Domestic International Sales Corporations.
H
The tax credit in issue was enacted as part of the New York Legislature’s response to additions to and changes in the United States Internal Revenue Code of 1954 effectuated by the Revenue Act of 1971, Pub. L. 92-178, §§501-507, 85 Stat. 535. In an effort to “provide tax incentives for U. S. firms to increase their exports,” H. R. Rep. No. 92-533, p. 9 (1971); S. Rep. No. 92-437, p. 12 (1971), Congress gave special recognition to a corporate entity it described as a “Domestic International Sales Corporation” or “DISC.” §§ 991-997 of the Code, 26 U. S. C. §§ 991-997. A corporation qualifies as a DISC if substantially all its assets and gross receipts are export-related. §§ 992(a), 993. Under federal law, a DISC is not taxed on its income. §991. Instead, a portion of the DISC’S income — labeled “deemed distributions” — is attributed to the DISC’s shareholders on a current basis, whether or not that portion is actually paid or distributed to them. § 995. Under the statutory provisions in effect during the calendar years 1972 and 1973 (the tax years in question in this case), 50% of a DISC’S income was deemed distributed to its shareholders. 85 Stat. 544. Taxes on the remaining income of the DISC — labeled “accumulated DISC income” — are deferred until either that accumulated income is actually distributed to the shareholders or the DISC no longer qualifies for special tax treatment. § 996 of the Code, 26 U. S. C. §996.
Enactment of the federal DISC legislation caused revenue officials in the State of New York some concern. New York does not generally impose its franchise tax on distributions received by a parent from a subsidiary; instead, the subsidiary is taxed directly to the extent it does business in the State. See N. Y. Tax Law §208.9(a)(1) (McKinney 1966). Given the State's tax structure, had New York followed the federal lead in not taxing DISCs, a DISC’S income would not have been taxed by the State. See New York State Division of the Budget, Report on A. 12108-A and S. 10544, pp. 1, 5-6 (May 23, 1972), reprinted in Bill Jacket of 1972 N. Y. Laws, ch. 778, pp. 13, 17-18 (Budget Report). A budget analyst reported to the legislature that if no provision were made to tax DISCs, New York might suffer revenue losses of as much as $20-$30 million annually. Id., at 20. On the other hand, the analyst warned that state taxation of DISCs would discourage their formation in New York and also discourage the manufacture of export goods within the State. Id., at 18.
With these conflicting considerations in mind, New York enacted legislation pertaining to the taxation of DISCs. 1972 N. Y. Laws, chs. 778 and 779 (McKinney), codified as N. Y. Tax Law §§208 to 219-a (McKinney Supp. 1983-1984). The enacted provisions require the consolidation of the receipts, assets, expenses, and liabilities of the DISC with those of its parent. § 208.9(i)(B). The franchise tax is then assessed against the parent on the basis of the consolidated amounts. In an attempt to “provide a positive incentive for increased business activity in New York State,” however, the legislature provided a “partially offsetting tax credit.” Budget Report, at 18. The result of the credit is to lower the effective tax rate on the accumulated DISC income reflected in the consolidated return to 30% of the otherwise applicable franchise tax rate. The DISC credit, significantly, is limited to gross receipts from export products “shipped from a regular place of business of the taxpayer within [New York].” §210.13(a)(2). The credit is computed by (1) dividing the gross receipts of the DISC derived from export property shipped from a regular place of business within New York by the DISC’S total gross receipts derived from the sale of export property; (2) multiplying that quotient (the DISC’S New York export ratio) by the parent’s New York business allocation percentage; (3) multiplying that product by the New York tax rate applicable to the parent; (4) multiplying that product by 70%; and (5) multiplying that product by the parent’s attributable share of the accumulated income of the DISC for the year. §§ 210.13(a)(2) to (5).
M
The basic facts are stipulated. Appellant Westinghouse Electric Corporation (Westinghouse) is a Pennsylvania corporation engaged in the manufacture and sale of electrical equipment, parts, and appliances. Westinghouse is qualified to do business in New York, and it regularly pays corporate income and franchise taxes to that State. Among Westinghouse’s subsidiaries is Westinghouse Electric Export Corporation (Westinghouse Export), a Delaware corporation wholly owned by Westinghouse, that qualifies as a federally tax-exempt DISC. Westinghouse Export acts as a commission agent on behalf of both Westinghouse and Westinghouse’s other affiliates for export sales of products manufactured in the United States and services related to those products. All of Westinghouse Export’s income in 1972 and 1973 consisted of commissions on export sales. On both its 1972 and 1973 federal income and New York State franchise tax returns, Westinghouse included as income, and paid taxes on, an amount of deemed distributed income equal to about half of Westinghouse Export’s income. In 1972, Westinghouse Export’s income was about $26 million, and Westinghouse included in its consolidated return approximately $13 million of income deemed distributed from Westinghouse Export. In 1973, the income of Westinghouse Export was approximately $58 million; Westinghouse reported almost $30 million of that amount as deemed distributed income. Westinghouse, however, did not include the DISC’S accumulated income in its consolidated returns.
The appellees, as the New York State Tax Commission (Tax Commission), sought to include in Westinghouse’s consolidated income the accumulated DISC income; that is, the Tax Commission computed Westinghouse’s taxable income by first combining all of Westinghouse Export’s income with that of Westinghouse, pursuant to N. Y. Tax Law §208.9(i) (B) (McKinney Supp. 1983-1984). The Commission gave Westinghouse the benefit of the DISC export credit for the approximately 5% of Westinghouse Export’s receipts each year that could be attributed to New York shipments. After applying the relevant allocation and tax percentages, the Tax Commission asserted deficiencies in Westinghouse’s franchise tax of $73,970 (later corrected to $71,970) plus interest for 1972 and $151,437 plus interest for 1973. App. 42, 46.
Westinghouse filed a petition for redetermination of the proposed deficiencies. By its petition, as later perfected, Westinghouse contended that by requiring it to compute its franchise tax liability on a consolidated basis with Westinghouse Export, the Tax Commission was taxing income that did not have a jurisdictional nexus to the State, in violation of the Commerce and Due Process Clauses of the United States Constitution. Westinghouse further contended that limiting the tax benefit of the DISC export credit to gross receipts from shipments attributable to a New York place of business violated the Commerce, Due Process, and Equal Protection Clauses. The Commission declined to entertain Westinghouse’s contentions, on the ground that, as an administrative agency, it lacked jurisdiction to pass upon “the constitutionality of the laws of the State of New York.” Id., at 47.
Westinghouse then brought suit in the New York Supreme Court for review of the tax determination, again raising its constitutional claims. The case was transferred to the Appellate Division. That court, by a 3-to-2 vote, found the portion of the law that requires accumulated income of the DISC to be added to the consolidated return, §208.9(i)(B), to be an unconstitutional burden on foreign commerce. 82 App. Div. 2d 988, 440 N. Y. S. 2d 397 (1981). The Appellate Division based its holding on the fact that Congress intended to exempt DISC income from current taxation. Id., at 989, 440 N. Y. S. 2d, at 399-400. This decision made it unnecessary for the court to consider the constitutionality of New York’s geographical limitation on the DISC export credit, because the credit applies only to accumulated DISC income. The Appellate Division, however, went on to reject Westinghouse’s constitutional challenges to New York’s taxation of deemed distributed income. Ibid., 440 N. Y. S. 2d, at 400.
The Tax Commission took an appeal to the New York Court of Appeals from that portion of the Appellate Division’s judgment invalidating §208.9(i)(B), and Westinghouse cross-appealed from that portion of the judgment upholding the taxation of deemed distributions. Westinghouse again made the constitutional arguments it had raised below. In a unanimous opinion, the Court of Appeals reinstated the determination of the Tax Commission. 55 N. Y. 2d 364, 434 N. E. 2d 1044 (1982). The Court of Appeals first held that Congress’ decision not to tax DISCs at the federal level did not pre-empt a State from taxing a DISC. Id., at 372-373, 434 N. E. 2d, at 1047-1048. The court also rejected Westinghouse’s argument that the State lacked the jurisdictional nexus necessary to satisfy the minimal due process standards on which the right to tax must be predicated. Finally, the court rejected Westinghouse’s claim that the credit provided for in §210.13(a) impermissibly subjected Westinghouse’s export sales from a non-New York place of business to a higher tax rate than that on comparable sales shipped from a regular place of business in New York. The court noted that the credit was devised by the State to provide shareholders of DISCs with state-tax incentives akin to those enacted by Congress. The only difference was that, while Congress had chosen to provide the benefit in the form of a tax deferral, the New York Legislature had elected to use a credit. Id., at 374-376, 434 N. E. 2d, at 1049-1050.
The court acknowledged that the credit was intended to ensure that New York would not lose its competitive position vis-á-vis other States, since other States were also expected to offer tax benefits to DISCs. It traced the steps required in calculating the tax credit and concluded: “Obviously, the business allocation percentage plays an integral role in computing the tax credit.” Id., at 375, 434 N. E. 2d, at 1050. Use of the business allocation percentage, the court reasoned, ensures that in taxing DISC income, the State is taxing only that DISC income that has a jurisdictional nexus with the State. The credit simply forgives a portion of the tax New York has a right to levy. Id., at 376, 434 N. E. 2d, at 1050. The portion of the tax to be forgiven is determined by reference to shipments of export property from a regular place of business in New York. The court was of the opinion that this method satisfies due process and that any effect on interstate commerce is too indirect to run afoul of the Commerce Clause. Ibid.
We noted probable jurisdiction only with respect to the question of the constitutionality of the DISC tax credit, 459 U. S. 1144 (1983), and we now reverse the judgment of the New York Court of Appeals in that respect.
III
The Tax Commission seeks to convince us that the DISC tax credit forgives merely a portion of the tax that New York has jurisdiction to levy. All the accumulated income of a DISC is attributed to its parent for tax purposes. Under unitary tax principles, however, if the parent has a regular place of business outside New York, the State will not actually tax the full amount of the accumulated income. Only a portion of the parent’s net income (which includes the accumulated DISC income) will be subject to tax in New York. That portion is determined by reference to a business allocation percentage determined by averaging the percentages of in-state property, payroll, and receipts. See N. Y. Tax Law § 210.3 (McKinney Supp. 1983-1984). This Court long has upheld, subject to certain restraints, the use of a formula-apportionment method to determine the percentage of a business’ income taxable in a given jurisdiction. Container Corp. v. Franchise Tax Board, 463 U. S. 159, 169-171 (1983); see Illinois Central R. Co. v. Minnesota, 309 U. S. 157 (1940); Hans Rees' Sons, Inc. v. North Carolina ex rel. Maxwell, 283 U. S. 123 (1931); Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, 266 U. S. 271 (1924); Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 (1920).
The Tax Commission’s argument that New York employs a constitutionally acceptable allocation formula, in our view, serves only to obscure the issue in this case. The acceptability of the allocation formula employed by the State of New York is not relevant to the question before us. The fact that New York is attempting to tax only a fairly apportioned percentage of a DISC’S accumulated income does not insulate from constitutional challenge the State’s method of allowing the DISC export credit. New York’s apportionment procedure determines what portion of a business’ income is within the jurisdiction of New York. Nothing about the apportionment process releases the State from the constitutional restraints that limit the way in which it exercises its taxing power over the income within its jurisdiction.
Here, Westinghouse argues that the State of New York has sought to exercise its taxing power over accumulated DISC income in a manner that offends the Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment. This challenge is not foreclosed by our holding that New York’s allocation of DISC income is constitutionally acceptable. See 459 U. S. 1144 (1983) (dismissing for want of a substantial federal question Westinghouse’s challenge to method of allocating DISC income to parent). “Fairly apportioned” and “nondiscriminatory” are not synonymous terms. It is to the question whether the method of allowing the credit is discriminatory in a manner that violates the Commerce Clause that we now turn.
The Tax Commission argues that multiplying the allowable credit by the New York export ratio of the DISC merely ensures that the State is not allowing a parent corporation to claim a tax credit with respect to DISC income that is not taxable by the State of New York. This argument ignores the fact that the percentage of the DISC’S accumulated income that is subject to New York franchise tax is determined by the parent’s business allocation percentage, not by the export ratio. In computing the allowable credit, the statute requires the parent to factor in its business allocation percentage. §210.13(a). This procedure alleviates the State’s fears that it will be overly generous with its tax credit, for once the adjustment of multiplying the allowable DISC export credit by the parent’s business allocation percentage has been accomplished, the tax credit has been fairly apportioned to apply only to the amount of the accumulated DISC income taxable to New York. From the standpoint of fair apportionment of the credit, the additional adjustment of the credit to reflect the DISC’S New York export ratio is both inaccurate and duplicative.
It is this second adjustment, made only to the credit and not to the base taxable income figure, that has the effect of treating differently parent corporations that are similarly situated in all respects except for the percentage of their DISCs’ shipping activities conducted from New York. This adjustment has the effect of allowing a parent a greater tax credit on its accumulated DISC income as its subsidiary DISC moves a greater percentage of its shipping activities into the State of New York. Conversely, the adjustment decreases the tax credit allowed to the parent for a given amount of its DISC’S shipping activity conducted from New York as the DISC increases its shipping activities in other States. Thus, not only does the New York tax scheme “provide a positive incentive for increased business activity-in New York State,” Budget Report, at 18, but also it penalizes increases in the DISC’S shipping activities in other States.
In determining whether New York’s method of allowing a DISC export credit violates the Commerce Clause, the foundation of our analysis is the basic principle that “ ‘[t]he very purpose of the Commerce Clause was to create an area of free trade among the several States.’” Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318, 328 (1977), quoting McLeod v. J. E. Dilworth Co., 322 U. S. 327, 330 (1944); accord, Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U. S. 366 (1976). The undisputed corollary of that principle is that “‘the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. . . . [T]he Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States,’” including the States’ power to tax. Boston Stock Exchange, 429 U. S., at 328, quoting Freeman v. Hewit, 329 U. S. 249, 252 (1946). For that reason, “[n]o State, consistent with the Commerce Clause, may ‘impose a tax which discriminates against interstate commerce ... by providing a direct commercial advantage to local business.’ ” Boston Stock Exchange, 429 U. S., at 329, quoting Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 458 (1959). See also Halliburton Oil Well Cementing Co. v. Reily, 373 U. S. 64 (1963); Nippert v. Richmond, 327 U. S. 416 (1946); I. M. Darnell & Son Co. v. Memphis, 208 U. S. 113 (1908); Guy v. Baltimore, 100 U. S. 434 (1880); Welton v. Missouri, 91 U. S. 275 (1876).
We have acknowledged that the delicate balancing of the national interest in free and open trade and a State’s interest in exercising its taxing powers requires a case-by-case analysis and that such analysis has left “‘much room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation.’” Boston Stock Exchange, 429 U. S., at 329, quoting Northwestern States, 358 U. S., at 457. In light of our decision in Boston Stock Exchange, however, we think that there is little room for such “controversy and confusion” in the present litigation. The lessons of that case, as explicated further in Maryland v. Louisiana, 451 U. S. 725 (1981), are controlling.
In both Maryland v. Louisiana and Boston Stock Exchange, the Court struck down state tax statutes that encouraged the development of local industry by means of taxing measures that imposed greater burdens on economic activities taking place outside the State than were placed on similar activities within the State. In Maryland v. Louisiana, the Court held that Louisiana’s “First-Use” tax — which imposed a tax on natural gas brought into the State while giving local users a series of exemptions and credits — violated the Commerce Clause because it “unquestionably discriminate[d] against interstate commerce in favor of local interests.” 451 U. S., at 756. Similarly, in Boston Stock Exchange, the Court held unconstitutional a New York stock-transfer tax that reduced the tax payable by nonresidents when the tax involved an in-state (rather than an out-of-state) sale and applied a maximum limit to the tax payable on any in-state (but not out-of-state) sale. See 429 U. S., at 332. The stock-transfer tax was declared unconstitutional because it violated the principle that “no State may discriminatorily tax the products manufactured or the business operations performed in any other State.” Id., at 337. The tax schemes rejected by this Court in both Maryland v. Louisiana and Boston Stock Exchange involved transactional taxes rather than taxes on general income. That distinction, however, is irrelevant to our analysis. The franchise tax is a tax on the income of a business from its aggregated business transactions. It cannot be that a State can circumvent the prohibition of the Commerce Clause against placing burdensome taxes on out-of-state transactions by burdening those transactions with a tax that is levied in the aggregate — as is the franchise tax — rather than on individual transactions.
Nor is it relevant that New York discriminates against business carried on outside the State by disallowing a tax credit rather than by imposing a higher tax. The discriminatory economic effect of these two measures would be identical. New York allows a 70% credit against tax liability for all shipments made from within the State. This provision is indistinguishable from one that would apply to New York shipments a tax rate that is 30% of that applied to shipments from other States. We have declined to attach any constitutional significance to such formal distinctions that lack economic substance. See, e. g., Maryland v. Louisiana, 451 U. S., at 756 (tax scheme imposing tax at uniform rate on in-state and out-of-state sales held to be unconstitutional because discrimination against interstate commerce was “the necessary result of various tax credits and exclusions” that benefited only in-state consumers of gas).
The Tax Commission contends that the DISC export credit is a subsidy to American export business generally, and as such, is consistent with congressional intent in establishing DISCs and with the Commerce Clause. We find no merit in this argument. While the Federal Government may seek to increase domestic employment and improve our balance-of-payments by offering tax advantages to those who produce in the United States rather than abroad, a State may not encourage the development of local industry by means of taxing measures that “invite a multiplication of preferential trade areas” within the United States, in contravention of the Commerce Clause. Dean Milk Co. v. Madison, 340 U. S. 349, 356 (1951). We note, also, that if the credit were truly intended to promote exports from the United States in general, there would be no reason to limit it to exports from within New York.
The Tax Commission argues that even if the tax is discriminatory, the burden it places on interstate commerce is not of constitutional significance. It points to the facts that New York is a State with a relatively high franchise tax and that the actual effect of the credit, when viewed in terms of the whole New York tax scheme, is slight. It argues that the credit was not intended to divert new activity into New York, but, rather, to prevent the loss of economic activity already in the State at the time the tax on accumulated DISC income was enacted. Whether the discriminatory tax diverts new business into the State or merely prevents current business from being diverted elsewhere, it is still a discriminatory tax that “forecloses tax-neutral decisions and . . . creates ... an advantage” for firms operating in New York by placing “a discriminatory burden on commerce to its sister States.” Boston Stock Exchange, 429 U. S., at 331. The State has violated the prohibition in Boston Stock Exchange against using discriminatory state taxes to burden commerce in other States in an attempt to induce “ ‘business operations to be performed in the home State that could more efficiently be performed elsewhere/” id., at 336, quoting Pike v. Bruce Church, Inc., 397 U. S. 137, 145 (1970), and to “‘impose an artificial rigidity on the economic pattern of the industry/” id., at 146, quoting Toomer v. Witsell, 334 U. S. 385, 404 (1948). When a tax, on its face, is designed to have discriminatory economic effects, the Court “need not know how unequal the Tax is before concluding that it unconstitutionally discriminates.” Maryland v. Louisiana, 451 U. S., at 760.
The manner in which New York allows corporations a tax credit on the accumulated income of their subsidiary DISCs discriminates against export shipping from other States, in violation of the Commerce Clause. The contrary judgment of the New York Court of Appeals is therefore reversed.
It is so ordered.
Specifically, § 992(a)(1) provides that a corporation qualifies for DISC treatment for any taxable year in which it
“is incorporated under the laws of any State and satisfies the following conditions for the taxable year:
“(A) 95 percent or more of the gross receipts (as defined in section 993(f)) of such corporation consist of qualified export receipts (as defined in section 993(a)),
“(B) the adjusted basis of the qualified export assets (as defined in section 993(b)) of the corporation at the close of the taxable year equals or exceeds 95 percent of the sum of the adjusted basis of all assets of the corporation at the close of the taxable year,
“(C) such corporation does not have more than one class of stock and the par or stated value of its outstanding stock is at least $2,500 on each day of the taxable year, and
“(D) the corporation has made an election pursuant to subsection (b) to be treated as a DISC and such election is in effect for the taxable year.” Under § 993(a)(1), “the qualified export receipts of a corporation are—
“(A) gross receipts from the sale, exchange, or other disposition of export property,
“(B) gross receipts from the lease or rental of export property, which is used by the lessee of such property outside the United States,
“(C) gross receipts for services which are related and subsidiary to any qualified sale, exchange, lease, rental, or other disposition of export property by such corporation,
“(D) gross receipts from the sale, exchange, or other disposition or qualified export assets (other than export property),
“(E) dividends (or amounts includible in gross income under section 951) with respect to stock of a related foreign export corporation (as defined in subsection (e)),
“(F) interest on any obligation which is a qualified export asset,
“(G) gross receipts for engineering or architectural services for construction projects located (or proposed for location) outside the United States, and
“(H) gross receipts for the performance of managerial services in furtherance of the production of other qualified export receipts of a DISC.”
The majority of DISCs have only one shareholder, for most are wholly owned by a single corporate parent. Internal Revenue Service, 3 Statistics of Income Bulletin, No. 2, p. 10 (1983).
Subsequent to the tax years in question, the law governing DISCs was changed to decrease the amount of DISC income given preferential treatment. The Tax Reform Act of 1976, Pub. L. 94-455, § 1101(a), 90 Stat. 1655, limited DISC benefits to taxable income attributable to gross receipts in excess of 67% of the average export gross receipts in a 4-year base period. DISCs with adjusted taxable income of $100,000 or less are exempt from that provision. §§ 995(e)(3) and (f) of the Code, 26 U. S. C. §§ 995(e)(3) and (f). The Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97-248, § 204(a), 96 Stat. 423, increased from 50% to 57.5%, for tax years beginning in 1983, the portion of DISC income deemed distributed to the DISC’S shareholders. § 291(a)(4) of the Code, 26 U. S. C. § 291(a)(4).
The State considered two possible methods of DISC taxation. Under the first, a DISC would be taxed directly on its income. Use of this method would encourage formation of DISCs outside the State, so that New York would obtain no tax revenue from them. A direct tax on DISCs would also engender administrative costs. In general, New York uses federal taxable income as the base from which to determine income taxable by the State. Since a DISC would have no federal taxable income, a method of determining a DISC’S taxable income for state-tax purposes would have to be devised. Budget Report, at 18.
Under the second method, a DISC’S income would be attributed to the DISC’S shareholders and taxed as income to them. New York revenue officials feared that full taxation of the DISC’S income in this manner would discourage the manufacture of export products within the State. Ibid.
A corporation’s business allocation percentage for New York tax purposes is computed according to a formula set forth in N. Y. Tax Law §210.3 (McKinney Supp. 1983-1984). The percentage is, basically, the average of the percentages of the corporation’s property situated, income earned, and payroll distributed within the State.
More precisely, Westinghouse Export’s reported income for 1972 was $25,987,000. The amount of the deemed distribution for 1972 was $12,956,500. App. 43.
Westinghouse Export’s reported income for 1973 was $57,948,738. The amount of the deemed distribution for 1973 was $29,838,006. Ibid.
The Tax Commission was willing to allow Westinghouse a $2,569.77 credit for the 4.771297% of Westinghouse Export’s 1972 receipts attributable to goods shipped from New York ports, and a $6,098.22 credit for the 5.523182% of the DISC’S 1973 receipts attributable to New York shipments. Id., at 46.
Hypothetical examples demonstrate that similarly situated corporations, each operating a wholly owned DISC, would face different tax assessments in New York depending on the location from which the DISC shipped its exports. For a parent corporation that has an income of $10,000, a wholly owned DISC with accumulated income of $500, and a New York business allocation percentage of 40%, and assuming an applicable New York tax rate of 10%, Table A shows the difference in New York tax liability in situations where the DISC ships 100%, 50%, or 0% of its exports from locations in New York:
TABLE A
% of DISC Shipment from New York 100% 50%_0%
Parent’s Income $10,000 $10,000 $10,000
DISC Accumulated Income 500 500 500
Consolidated Income 10,500 10,500 10,500
New York Business Allocation % 40% 40% 40%
Income Taxable by New York 4,200 4,200 4,200
New York Tax Rate 10% 10% 10%
Tax Liability (Pre-Credit) 420 420 420
DISC Credit Allowed 14_7_0_
Final Tax Assessment 406 413 420
The DISC credit allowed is computed by multiplying the percentage of the DISC’s export revenues derived from New York shipments (100%, 50% or 0%) by the parent’s New York business allocation percentage (40%); multiplying that product by the parent’s New York tax rate (10%); multiplying that product by the credit percentage (70%); and, finally, multiplying that product by the amount of the accumulated DISC income attributable to the parent ($500).
We are not unmindful of one factor that results when a corporation is induced to move more of its export business into the State of New York: the parent’s business allocation percentage will be adjusted upward to reflect the increased percentage of DISC activity in the State. The increased tax liability will more than offset the increased credit, so that the parent’s tax liability to the State of New York, in absolute terms, increases. The parent’s effective New York tax rate, however, decreases as its DISC does a greater percentage of its shipping from New York. In the next example, each parent is assumed to do 40% of its own business from New York, so that $4,000 of its income is attributable to New York activity. Each DISC has $500 of accumulated income, but differs from the others in terms of the percentage of its income that results from shipping exports from New York ports. Assuming that the same amount of payroll and property are required to generate each dollar of the DISC’S income, the business allocation percentage increases proportionately as the percentage of the DISC’S income derived from New York shipping activity increases:
TABLE B
% of DISC Shipment from New York 100% 50%_0%
Parent’s Income $10,000 $10,000 $10,000
DISC Accumulated Income 500 500 500
Consolidated Income 10,500 10,500 10,500
New York Business Allocation % 42.86% 40.48% 38.10%
Income Taxable by New York 4,500 4,250 4,000
New York Tax Rate 10% 10% 10%
Tax Liability (Pre-Credit) 450 425 400
DISC Credit Allowed 15 _7_ _0_
Final Tax Assessment 435 418 400
Effective Tax Rate on Income Taxable in New York 9.67% 9.84% 10%
The third example demonstrates the most pernicious effect of the credit scheme. In this example, each parent and its DISC maintain the same amount of business in New York as do the other parent-DISC organizations, but the DISCs differ with respect to the amount of export shipping they do from outside New York. Each parent has $10,000 of income and each does 40% of its own business in New York. In addition, each DISC ships the goods that account for $3,000 of its income from New York. The only difference among the three parent-DISC organizations is the amount of DISC activity each conducts outside New York. As the DISC conducts a greater amount of shipping from outside New York, the DISC export credit allowed the parent decreases. Thus, New York lowers the incentive it awards for in-state DISC activity as the DISC increases its out-of-state activity:
TABLE C
% of DISC Shipment from New York 100% 75% 60%
DISC Accumulated Income from New York Shipments $3,000 $3,000 $3,000
DISC Accumulated Income from Shipments from Other States _0_ 1,000 2,000
Total DISC Accumulated Income 3,000 4,000 5,000
Parent’s Income 10,000 10,000 10,000
Consolidated Income 13,000 14,000 15,000
New York Business Allocation % 53.85% 50% 46.67%
Income Taxable by New York 7,000 7,000 7,000
New York Tax Rate 10% 10% 10%
Tax Liability (Pre-credit) 700 700 700
DISC Credit Allowed 113 105 98
Final Tax Assessment 587 595 602
These examples illustrate what is inherent in the method devised by the New York Legislature for computing the DISC credit: the credit is awarded in a discriminatory manner on the basis of the percentage of a DISC’S shipping conducted from within the State of New York.
For example, Westinghouse was subject to a 9% tax rate in New York. On those shipments for which the 70% credit was allowed, the effective tax rate was 30% x 9%, or 2.7%.
In an effort to rebut the argument that the credit diverts economic activity from other States, the Tax Commission also submits that New York’s share of the Nation’s export business has declined since the institution of the credit. Brief for Appellees 26-27. This loss of export business does not refute appellant’s argument. Although the credit may not be large enough to halt or reverse the exodus of export business from New York, the discriminatory manner in which it is allowed no doubt has slowed the rate of decline in New York’s share of national export shipping.
The Tax Commission seeks to classify the tax credit at issue here as an indirect subsidy to export commerce, similar to provision and maintenance of ports, airports, waterways, and highways; to provision of police and fire protection; and to enactment of job-incentive credits and investment-tax credits. Id., at 21-22. We reiterate that it is not the provision of the credit that offends the Commerce Clause, but the fact that it is allowed on an impermissible basis, i. e., the percentage of a specific segment of the corporation’s business that is conducted in New York. As in Boston Stock Exchange, we do not “hold that a State may not compete with other States for a share of interstate commerce; such competition lies at the heart of a free trade policy. We hold only that in the process of competition no State may discriminatorily tax the products manufactured or the business operations performed in any other State.” 429 U. S., at 336-337.
In an attempt to illustrate the insignificance of the size and practical effect of the credit at issue, the Tax Commission reminds us that rejection of the credit will have little effect on Westinghouse’s tax bill for 1972 and 1973. In fact, in the absence of the credit, Westinghouse will owe approximately $8,500 more to the State of New York. See n. 8, supra; Tr. of Oral Arg. 20. This amount appears insignificant when compared to Westinghouse’s New York tax bill of approximately $1 million for the 1972-1973 period. See ibid. Although the extent of the discrimination does not affect our analysis, we note that the controversy here is hardly over a de minimis amount when considered from the perspective of the amount of credit Westinghouse forwent because its DISC shipped the majority of its goods from ports outside New York. Westinghouse received $8,500 in credit because only 5% of its DISC’S exports were shipped from New York. A similarly situated corporation whose DISC had conducted 100% of its export shipping from New York would have received a credit of approximately $170,000. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
DAVIS et al. v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al.
No. 436.
Argued October 13-14, 1970
Decided April 20, 1971
Burger, C. J., delivered the opinion for a unanimous Court.
Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Michael Davidson, Norman J. Chachkin, and Anthony G. Amsterdam.
Abram L. Philips, Jr., argued the cause for respondents Board of School Commissioners of Mobile County et al. With him on the brief were George F. Wood, John J. Sparkman, James B. Allen, and Jack Edwards. Samuel L. Stockman argued the cause for respondents Mobile County Council Parent-Teacher Associations et al. With him on the brief were W. A. Kimbrough, Jr., and John W. Adams, Jr.
Solicitor General Griswold argued the cause for the United States as amicus curiae. With him on the brief was Assistant Attorney General Leonard.
Briefs of amici curiae were filed by Albert P. Brewer, Governor, MacDonald Gallion, Attorney General, and Joseph D. Phelps, Special Assistant Attorney General, for the State of Alabama; by A. F. Summer, Attorney General, and Semmes Luckett, Special Assistant Attorney General, for the State of Mississippi; by Robert V. Light and Herschel H. Friday for the Little Rock School District et al., and by William L. Taylor, Richard B. Sobol, and Joseph L. Rauh, Jr., for the United Negro College Fund, Inc., et al.
Mr. Chief Justice Burger
delivered the opinion of the Court.
Petitioners in this case challenge as inadequate a school desegregation plan for Mobile County, Alabama. The county is large and populous, embracing 1,248 square miles and the city of Mobile. The school system had 73,500 pupils in 91 schools at the beginning of the 1969 academic year; approximately 58% of the pupils were white and 42% Negro. During the 1967-1968 school year, the system transported 22,000 pupils daily in over 200 school buses, both in the rural areas of the county and in the outlying areas of metropolitan Mobile.
The present desegregation plan evolved from one developed by the District Court in response to the decision of the Court of Appeals for the Fifth Circuit in Davis v. Board of School Comm’rs, 414 F. 2d 609 (CA5 1969), that an earlier desegregation plan formulated by the District Court on the basis of unified geographic zones was “constitutionally insufficient and unacceptable, and such zones must be redrawn.” The Court of Appeals held that that earlier plan had “ignored the unequivocal directive to make a conscious effort in locating attendance zones to desegregate and eliminate past segregation.” Id., at 610.
The District Court responded with a new zoning plan which left 18,623, or 60%, of the system's 30,800 Negro children in 19 all-Negro or nearly all-Negro schools. On appeal, the Court of Appeals reviewed all aspects of desegregation in Mobile County. Additional information was requested regarding earlier desegregation plans for the rural parts of the county, and those plans were approved. They are not before us now. The Court of Appeals concluded that with respect to faculty and staff desegregation the board had “almost totally failed to comply” with earlier orders, and directed the District Court to require the board to establish a faculty and staff ratio in each school “substantially the same” as that for the entire district. 430 F. 2d 883, 886. We affirm that part of the Court of Appeals’ opinion for the reasons given in Swann v. Charlotte-Mecklenburg Board of Education, ante, p. 1, at 19-20.
Regarding junior and senior high schools, the Court of Appeals reversed the District Court and directed implementation of a plan that was intended to eliminate the seven all-Negro schools remaining under the District Court’s scheme. This was to be achieved through pairing and adjusting grade structures within metropolitan Mobile, without bus transportation or split zoning. The Court of Appeals then turned to the difficult problem •of desegregating the elementary schools of metropolitan Mobile. The metropolitan area is divided by a major north-south highway. About 94% of the Negro students in the metropolitan area live on the east side of the highway between it and the Mobile River. The schools on that side of the highway are 65% Negro and 35% white. On the west side of the highway, however, the schools are 12% Negro and 88% white. Under the District Court’s elementary school plan for the metropolitan area, the eastern and western sections were treated as distinct, without either interlocking zones or transportation across the highway. Not surprisingly, it was easy to desegregate the western section, but in the east the District Court left 12 all-Negro or nearly all-Negro elementary schools, serving over 90% of all the Negro elementary students in the metropolitan area.
The Court of Appeals rejected this solution in favor of a modified version of a plan submitted by the Department of Justice. As further modified after a second appeal, this plan reduced the number of all-Negro or nearly all-Negro elementary schools from 12 to six schools, projected to serve 5,310 students, or about 50% of the Negro elementary students in the metropolitan area. Like the District Court’s plan, the Court of Appeals’ plan was based on treating the western section in isolation from the eastern. There were unified geographic zones, and no transportation of students for purposes of desegregation. The reduction in the number of all-Negro schools was achieved through pairing, rezoning, and adjusting grade structures within the eastern section. With yet further modifications not material here, this plan went into effect at the beginning of the 1970-1971 school year.
The enrollment figures for the 1970-1971 school year show that the projections on which the Court of Appeals based its plan for metropolitan Mobile were inaccurate. Under the Court of Appeals’ plan as actually implemented, nine elementary schools in the eastern section of metropolitan Mobile were over 90% Negro as of September 21, 1970 (instead of six as projected), and they housed 7,651 students, or 64% of all the Negro elementary school pupils in the metropolitan area. Moreover, the enrollment figures indicate that 6,746 Negro junior and senior high school students in metropolitan Mobile, or over half, were then attending all-Negro or nearly all-Negro schools, rather than none as projected by the Court of Appeals. These figures are derived from a report of the school board to the District Court; they were brought to our attention in a supplemental brief for petitioners filed on October 10, 1970, and have not been challenged by respondents.
As we have held, “neighborhood school zoning,” whether based strictly on home-to-school distance or on “unified geographic zones,” is not the only constitutionally permissible remedy; nor is it per se adequate to meet the remedial responsibilities of local boards. Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones. See Swann, supra, at 22-31. The measure of any desegregation plan is its effectiveness.
On the record before us, it is clear that the Court of Appeals felt constrained to treat the eastern part of metropolitan Mobile in isolation from the rest of the school system, and that inadequate consideration was given to the possible use of bus transportation and split zoning. For these reasons, we reverse the judgment of the Court of Appeals as to the parts dealing with student assignment, and remand the case for the development of a decree “that promises realistically to work, and promises realistically to work now.” Green v. County School Board, 391 U. S. 430, 439 (1968).
It is so ordered. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
SHAUGHNESSY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, v. UNITED STATES EX REL. ACCARDI.
No. 616.
Argued April 22, 1955.
Decided May 23, 1955.
Marvin E. Frankel argued the cause for petitioner. With him on the brief were Solicitor General SobelojJ, Assistant Attorney General Olney, Beatrice Rosenberg and /. F. Bishop.
Jack Wasserman argued the cause and filed a brief for respondent.
Me. Justice Clark
delivered the opinion of the Court.
We are called upon in this case to remove ambiguities from a previous opinion which, while clear enough to the trial court, appears to have conveyed a triplicity of meaning to the Court of Appeals. A year ago Accardi was here contesting the dismissal of his habeas corpus petition in which he attacked the refusal of the Board of Immigration Appeals to grant his application for suspension of deportation. Accardi v. Shaughnessy, 347 U. S. 260 (1954). The sole foundation of his claim was that “the Attorney General [is doing] precisely what the regulations forbid him to do: dictating the Board’s decision.” 347 U. S. 260, at 267. We remanded the petition to the trial court for a hearing on the question of “the Board’s alleged failure to exercise its own discretion, contrary to existing valid regulations.” It was alleged on information and belief that the Attorney General had prepared prior to the Board’s decision “a list of one hundred individuals whose deportation he sought . . .” as “unsavory characters”; that Accardi’s name was among the group; and that the “list . . . was circulated by the Department of Justice among all of its employees connected with the Immigration Service and the Board of Immigration Appeals” with the result that “since that time it has been impossible for [Accardi] to secure fair consideration of his case.” We concluded that, if Accardi could prove that the Board had not exercised its own discretion in the matter, he should receive “a new hearing before the Board without the burden of previous proscription by the list.”
On the remand, the District Court, after a full hearing, found that the Board members “reached their individual and collective decision on the merits, free from any dictation or suggestion . . .” and again dismissed the writ. The Court of Appeals reversed, one judge dissenting, 219 F. 2d 77. The opinion of the court based its conclusion on the ground that the “Attorney General’s statements [had] unconsciously influence[d] the Board members so that they felt obliged not to exercise their discretion and, without doing so, to decide against Accardi.” The chief judge, concurring in the result, thought that our prior opinion merely required Accardi to prove “that there was a list as alleged, that he was on it, and that this fact was known to the Board.” The dissenting judge, on the other hand, read our opinion as meaning “no more . . . than that [Accardi’s] allegations sufficiently charged ‘dictation’ by the Attorney General,” entitling Accardi to a hearing on the question of “whether the Board’s denial of discretionary relief represented its own untrammelled decision or one dictated by the Attorney General.” P. 90. He concluded that the finding of the trial judge was not clearly erroneous. We agree with the dissenting judge both as to the interpretation of our prior opinion and its application to the facts of this case.
The opinion of the court recognized that, before Accardi was entitled to another Board hearing, he had to prove that a majority of the Board not only knew of the “list” but were affected by it. However, the opinion concluded that the Board’s position that its judgment had not been affected by “the list” was incredible. We find nothing incredible in the uncontradicted testimony produced before the trial judge through a number of witnesses including the Board members. The record shows that in fact there was no list, as such, and hence that one could not have been circulated among the members of the Board; that the fanfare of publicity complained of was in connection with the Attorney General’s “deportation program”; that this program was never publicly related to Accardi until after the Board’s decision; that only one Board member knew Accardi was covered by the program, while two others and the Chairman never had such knowledge until after their decision; that the fifth member asserted that he “may have known [of Accardi’s inclusion in the program] but . . . couldn’t say”; and that no person in the Department of Justice ever directly or indirectly approached any Board member as to the matter. It seems to us that the record fully supports the District Court’s conclusion that the Board’s decision represented the free and undictated decision of each member. Among the eight witnesses who gave testimony concerning the matter, was the Attorney General. He testified that there was no list; that his investigation “indicated that [Accardi] was a racketeer and that is the reason [he] moved to deport him”; that he “never at any time discussed this matter with any member of the [Board].” In the face of such evidence, we do not believe that speculation on the effect of subconscious psychological pressures provides sufficient justification for rejecting the District Court’s finding as clearly erroneous.
Accardi emphasizes the trial court’s finding that the Board had notice of the program and of his inclusion therein. This “notice,” at most, was given only to the calendar clerk of the Board so that the hearing of certain cases might be expedited. The testimony that it was not furnished to members of the Board or the Chairman is undisputed.
We believe that Accardi has had the hearing required by our previous opinion and that he has failed to prove his case.
Accordingly, the judgment of the Court of Appeals is reversed and that of the District Court affirmed.
Reversed and remanded.
Mr. Justice Harlan took no part in the consideration or decision of this case.
Mr. Justice Jackson, dissenting, joined issue thus:
“We do not think that [the] validity [of the Board’s order] can be impeached by showing that [the Attorney General] overinfluenced members of his own staff whose opinion in any event would be only advisory.” 347 U. S., at 270. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
6
] |
KERN COUNTY LAND CO. v. OCCIDENTAL PETROLEUM CORP.
No. 71-1059.
Argued December 5-6, 1972
Decided May 7, 1973
White, J., delivered the opinion of the Court, in which Burger, C. J., and Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, in which Brennan and Stewart, JJ., joined, post, p. 605.
David R. Hyde argued the cause for petitioner. With him on the briefs were F. Arnold Daum, William E. Hegarty, and Immanuel Kohn.
Whitney North Seymour argued the cause for respondent. With him on the brief were Louis Nizer, Paul Martinson, and Bernhardt K. Wruble.
Me. Justice White
delivered the opinion of the Court.
Section 16 (b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U. S. C. § 78p (b), provides that officers, directors, and holders of more than 10% of the listed stock of any company shall be liable to the company for any profits realized from any purchase and sale or sale and purchase of such stock occurring within a period of six months. Unquestionably, one or more statutory purchases occur when one company, seeking to gain control of another, acquires more than 10% of the stock of the latter through a tender offer made to its shareholders. But is it a § 16 (b) “sale” when the target of the tender offer defends itself by merging into a third company and the tender offeror then exchanges his stock for the stock of the surviving company and also grants an option to purchase the latter stock that is not exercisable within the statutory six-month period? This is the question before us in this case.
I
On May 8, 1967, after unsuccessfully seeking to merge with Kern County Land Co. (Old Kern), Occidental Petroleum Corp. (Occidental) announced an offer, to expire on June- 8, 1967, to purchase on a first-come, first-served basis 500,000 shares of Old Kern common stock at a price of $83.50 per share plus a brokerage commission of $1.50 per share. By May 10, 1967, 500.000 shares, more than 10% of the outstanding shares of Old Kern, had been tendered. On May 11, Occidental extended its offer to encompass an additional 500.000 shares. At the close of the tender offer, on June 8, 1967, Occidental owned 887,549 shares of Old Kern.
Immediately upon the announcement of Occidental’s tender offer, the Old Kern management undertook to frustrate Occidental’s takeover attempt. A management letter to all stockholders cautioned against tender and indicated that Occidental’s offer might not be the best available, since the management was engaged in merger discussions with several companies. When Occidental extended its tender offer, the president of Old Kern sent a telegram to all stockholders again advising against tender. In addition, Old Kern undertook merger discussions with Tenneco, Inc. (Tenneco), and, on May 19, 1967, the Board of Directors of Old Kern announced that it had approved a merger proposal advanced by Tenneco. Under the terms of the merger, Tenneco would acquire the assets, property, and goodwill of Old Kern, subject to its liabilities, through “Kern County Land Co.” (New Kern), a new corporation to be formed by Tenneco to receive the assets and carry on the business of Old Kern. The shareholders of Old Kern would receive a share of Tenneco cumulative convertible preference stock in exchange for each share of Old Kern common stock which they owned. On the same day, May 19, Occidental, in a quarterly report to stockholders, appraised the value of the new Tenneco stock at $105 per share.
Occidental, seeing its tender offer and takeover attempt being blocked by the Old Kern-Tenneco “defensive” merger, countered on May 25 and 31 with two mandamus actions in the California courts seeking to obtain extensive inspection of Old Kern books and records. Realizing that, if the Old Kern-Tenneco merger were approved and successfully closed, Occidental would have to exchange its Old Kern shares for Tenneco stock and would be locked into a minority position in Tenneco, Occidental took other steps to protect itself. Between May 30 and June 2, it negotiated an arrangement with Tenneco whereby Occidental granted Tenneco Corp., a subsidiary of Tenneco, an option to purchase at $105 per share all of the Tenneco preference stock to which Occidental would be entitled in exchange for its Old Kern stock when and if the Old Kern-Tenneco merger was closed. The premium to secure the option, at $10 per share, totaled $8,866,230 and was to be paid immediately upon the signing of the option agreement. If the option were exercised, the premium was to be applied to the purchase price. By the terms of the option agreement, the option could not be exercised prior to December 9,1967, a date six months and one day after expiration of Occidental’s tender offer. On June 2, 1967, within six months of the acquisition by Occidental of more than 10% ownership of Old Kern, Occidental and Tenneco Corp. executed the option. Soon thereafter, Occidental announced that it would not oppose the Old KernTenneco merger and dismissed its state court suits against Old Kern.
The Old Kern-Tenneco merger plan was presented to and approved by Old Kern shareholders at their meeting on July 17, 1967. Occidental refrained from voting its Old Kern shares, but in a letter read at the meeting Occidental stated that it had determined prior to June 2 not to oppose the merger and that it did not consider the plan unfair or inequitable. Indeed, Occidental indicated that, had it been voting, it would have voted in favor of the merger.
Meanwhile, the Securities and Exchange Commission had refused Occidental’s request to exempt from possible § 16 (b) liability Occidental’s exchange of its Old Kern stock for the Tenneco preference shares that would take place when and if the merger transaction were closed. Various Old Kern stockholders, with Occidental’s interests in mind, thereupon sought to delay consummation of the merger by instituting various lawsuits in the state and federal courts. These attempts were unsuccessful, however, and preparations for the merger neared completion with an Internal Revenue Service ruling that consummation of the plan would result in a tax-free exchange with no taxable gain or loss to Old Kern shareholders, and with the issuance of the necessary approval of the merger closing by the California Commissioner of Corporations.
The Old Kern-Tenneco merger transaction was closed on August 30. Old Kern shareholders thereupon became irrevocably entitled to receive Tenneco preference stock, share for share in exchange for their Old Kern stock. Old Kern was dissolved and all of its assets, including “all claims, demands, rights and choses in action accrued or to accrue under and by virtue of the Securities Exchange Act of 1934 . . . ,” were transferred to New Kern.
The option granted by Occidental on June 2, 1967, was exercised on December 11, 1967. Occidental, not having previously availed itself of its right, exchanged certificates representing 887,549 shares of Old Kern stock for a certificate representing a like number of shares of Tenneco preference stock. The certificate was then endorsed over to the optionee-purchaser, and in return $84,229,185 was credited to Occidental’s accounts at various banks. Adding to this amount the $8,886,230 premium paid in June, Occidental received $93,905,415 for its Old Kern stock (including the 1,900 shares acquired prior to issuance of its tender offer). In addition, Occidental received dividends totaling $1,793,439.22. Occidental’s total profit was $19,506,419.22 on the shares obtained through its tender offer.
On October 17, 1967, New Kern instituted a suit under § 16 (b) against Occidental to recover the profits which Occidental had realized as a result of its dealings in Old Kern stock. The complaint alleged that the execution of the Occidental-Tenneco option on June 2, 1967, and the exchange of Old Kern shares for shares of Tenneco to which Occidental became entitled pursuant to the merger closed on August 30, 1967, were both “sales” within the coverage of § 16 (b). Since both acts took place within six months of the date on which Occidental became the owner of more than 10% of the stock of Old Kern, New Kern asserted that § 16 (b) required surrender of the profits realized by Occidental. New Kern eventually moved for summary judgment, and, on December 27, 1970, the District Court granted summary judgment in favor of New Kern. Abrams v. Occidental Petroleum Corp., 323 F. Supp. 570 (SDNY 1970). The District Court held that the execution of the option on June 2, 1967, and the exchange of Old Kern shares for shares of Tenneco on August 30, 1967, were “sales” under § 16 (b). The Court ordered Occidental to disgorge its profits plus interest. In a supplemental opinion, Occidental was also ordered to refund the dividends which it had received plus interest.
On appeal, the Court of Appeals reversed and ordered summary judgment entered in favor of Occidental. Abrams v. Occidental Petroleum Corp., 450 F. 2d 157 (CA2 1971). The Court held that neither the option nor the exchange constituted a “sale” within the purview of § 16 (b). We granted certiorari. 405 U. S. 1064 (1972). We affirm.
II
Section 16 (b) provides, inter alia, that a statutory insider must surrender to the issuing corporation “any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer . . . within any period of less than six months.” As specified in its introductory clause, § 16 (b) was enacted “[f]or the purpose of preventing the unfair use of information which may have been obtained by [a statutory insider] ... by reason of his relationship to the issuer.” Congress recognized that short-swing speculation by stockholders with advance, inside information would threaten the goal of the Securities Exchange Act to “insure the maintenance of fair and honest markets.” 15 U. S. C. § 78b. Insiders could exploit information not generally available to others to secure quick profits. As we have noted, “the only method Congress deemed effective to curb the evils of insider trading was a flat rule taking the profits out of a class of transactions in which the possibility of abuse was believed to be intolerably great.” Reliance Electric Co. v. Emerson Electric Co., 404 U. S. 418, 422 (1972). As stated in the report of the Senate Committee, the bill aimed at protecting the public “by preventing directors, officers, and principal stockholders of a corporation . . . from speculating in the stock on the basis of information not available to others.” S. Rep. No. 792, 73d Cong., 2d Sess., 9 (1934).
Although traditional cash-for-stock transactions that result in a purchase and sale or a sale and purchase within the six-month, statutory period are clearly within the purview of § 16 (b), the courts have wrestled with the question of inclusion or exclusion of certain “unorthodox” transactions. The statutory definitions of “purchase” and “sale” are broad and, at least arguably, reach many transactions not ordinarily deemed a sale or purchase. In deciding whether borderline transactions are within the reach of the statute, the courts have come to inquire whether the transaction may serve as a vehicle for the evil which Congress sought to prevent — the realization of short-swing profits based upon access to inside information — thereby endeavoring to implement congressional objectives without extending the reach of the statute beyond its intended limits. The statute requires the inside, short-swing trader to disgorge all profits realized on all “purchases” and “sales” within the specified time period, without proof of actual abuse of insider information, and without proof of intent to profit on the basis of such information. Under these strict terms, the prevailing view is to apply the statute only when its application would serve its goals. “[WJhere alternative constructions of the terms of § 16 (b) are possible, those terms are to be given the construction that best serves the congressional purpose of curbing short-swing speculation by corporate insiders.” Reliance Electric Co. v. Emerson Electric Co., 404 U. S., at 424. See Blau v. Lamb, 363 F. 2d 507 (CA2 1966), cert, denied, 385 U. S. 1002 (1967). Thus, “ [i] n interpreting the terms ‘purchase’ and ‘sale,’ courts have properly asked whether the particular type of transaction involved is one that gives rise to speculative abuse.” Reliance Electric Co. v. Emerson Electric Co., supra, at 424 n. 4.
In the present case, it is undisputed that Occidental became a “beneficial owner” within the terms of § 16 (b) when, pursuant to its tender offer, it “purchased” more than 10% of the outstanding shares of Old Kern. We must decide, however, whether a “sale” within the ambit of the statute took place either when Occidental became irrevocably bound to exchange its shares of Old Kern for shares of Tenneco pursuant to the terms of the merger agreement between Old Kern and Tenneco or when Occidental gave an option to Tenneco to purchase from Occidental the Tenneco shares so acquired.
III
On August 30, 1967, the Old Kern-Tenneco merger agreement was signed, and Occidental became irrevocably-entitled to exchange its shares of Old Kern stock for shares of Tenneco preference stock. Concededly, the transaction must be viewed as though Occidental had made the exchange on that day. But, even so, did the exchange involve a “sale” of Old Kern shares within the meaning of § 16 (b) ? We agree with the Court of Appeals that it did not, for we think it totally unrealistic to assume or infer from the facts before us that Occidental either had or was likely to have access to inside information, by reason of its ownership of more than 10% of the outstanding shares of Old Kern, so as to afford it an opportunity to reap.speculative, short-swing profits from its disposition within six months of its tender-offer purchases.
It cannot be contended that Occidental was an insider when, on May 8, 1967, it made an irrevocable offer to purchase 500,000 shares of Old Kern stock at a price substantially above market. At that time, it owned only 1,900 shares of Old Kern stock, far fewer than the 432,000 shares needed to constitute the 10% ownership required by the statute. There is no basis for finding that, at the time the tender offer was commenced, Occidental enjoyed an insider’s opportunity to acquire information about Old Kern’s affairs.
It is also wide of the mark to assert that Occidental, as a sophisticated corporation knowledgeable in matters of corporate affairs and finance, knew that its tender offer would either succeed or would be met with a “defensive merger.” If its takeover efforts failed, it is argued, Occidental knew it could sell its stock to the target company’s merger partner at a substantial profit. Calculations of this sort, however, whether speculative or not and whether fair or unfair to other stockholders or to Old Kern, do not represent the kind of speculative abuse at which the statute is aimed, for they could not have been based on inside information obtained from substantial stockholdings that did not yet exist. Accepting both that Occidental made this very prediction and that it would recurringly be an accurate forecast in tender-offer situations, we nevertheless fail to perceive how the fruition of such anticipated events would require, or in any way depend upon, the receipt and use of inside information. If there are evils to be redressed by way of deterring those who would make tender offers, § 16 (b) does not appear to us to have been designed for this task.
By May 10, 1967, Occidental had acquired more than 10% of the outstanding shares of Old Kern. It was thus a statutory insider when, on May 11, it extended its tender offer to include another 500,000 shares. We are quite unconvinced, however, that the situation had changed materially with respect to the possibilities of speculative abuse of inside information by Occidental. Perhaps Occidental anticipated that extending its offer would increase the likelihood of the ultimate success of its takeover attempt or the occurrence of a defensive merger. But, again, the expectation of such benefits was unrelated to the use of information unavailable to other stockholders or members of the public with sufficient funds and the intention to make the purchases Occidental had offered to make before June 8, 1967.
The possibility that Occidental had, or had the opportunity to have, any confidential information about Old Kern before or after May 11, 1967, seems extremely remote. Occidental was, after all, a tender offeror, threatening to seize control of Old Kern, displace its management, and use the company for its own ends. The Old Kern management vigorously and immediately opposed Occidental’s efforts. Twice it communicated with its stockholders, advising against acceptance of Occidental’s offer and indicating prior to May 11 and prior to Occidental’s extension of its offer, that there was a possibility of an imminent merger and a more profitable exchange. Old Kern’s management refused to discuss with Occidental officials the subject of an Old Kern-Occidental merger. Instead, it undertook negotiations with Tenneco and forthwith concluded an agreement, announcing the merger terms on May 19. Requests by Occidental for inspection of Old Kern records were sufficiently frustrated by Old Kern's management to force Occidental to litigate to secure the information it desired.
There is, therefore, nothing in connection with Occidental's acquisition of Old Kern stock pursuant to its tender offer to indicate either the possibility of inside information being available to Occidental by virtue of its stock ownership or the potential for speculative abuse of such inside information by Occidental. Much the same can be said of the events leading to the exchange of Occidental’s Old Kern stock for Tenneco preferred, which is one of the transactions that is sought to be classified a “sale” under § 16 (b). The critical fact is that the exchange took place and was required pursuant to a merger between Old Kern and Tenneco. That merger was not engineered by Occidental but was sought by Old Kern to frustrate the attempts of Occidental to gain control of Old Kern. Occidental obviously did not participate in or control the negotiations or the agreement between Old Kern and Tenneco. Cf. Newmark v. RKO General, 425 F. 2d 348 (CA2), cert, denied, 400 U. S. 854 (1970) ; Park & Tilford v. Schulte, 160 F. 2d 984 (CA2), cert, denied, 332 U. S. 761 (1947). Once agreement between those two companies crystallized, the course of subsequent events was out of Occidental’s hands. Old Kern needed the consent of its stockholders, but as it turned out, Old Kern's management had the necessary votes without the affirmative vote of Occidental. The merger agreement was approved by a majority of the stockholders of Old Kern, excluding the votes to which Occidental was entitled by virtue of its ownership of Old Kern shares. See generally Ferraiolo v. Newman, 259 F. 2d 342 (CA6 1958), cert, denied, 359 U. S. 927 (1959); Roberts v. Eaton, 212 F. 2d 82 (CA2 1954). Occidental, although registering its opinion that the merger would be beneficial to Old Kern shareholders, did not in fact vote at the stockholders’ meeting at which merger approval was obtained. Under California law, its abstention was tantamount to a vote against approval of the merger. Moreover, at the time of stockholder ratification of the merger, Occidental’s previous dealing in Old Kern stock was, as it had always been, fully disclosed.
Once the merger and exchange were approved, Occidental was left with no real choice with respect to the future of its shares of Old Kern. Occidental was in no position to prevent the issuance of a ruling by the Internal Revenue Service that the exchange of Old Kern stock for Tenneco preferred would be tax free; and, although various lawsuits were begun in state and federal courts seeking to postpone the merger closing beyond the statutory six-month period, those efforts were futile. The California Corporation Commissioner issued the necessary permits for the closing that took place on August 30, 1967. The merger left no right in dissenters to secure appraisal of their stock. Occidental could, of course, have disposed of its shares of Old Kern for cash before the merger was closed. Such an act would have been a § 16 (b) sale and would have left Occidental with a prima facie § 16 (b) liability. It was not, therefore, a realistic alternative for Occidental as long as it felt that it could successfully defend a suit like the present one. See generally Petteys v. Butler, 367 F. 2d 528 (CA8 1966), cert, denied, 385 U. S. 1006 (1967); Ferraiolo v. Newman, supra; Lynam v. Livingston, 276 F. Supp. 104 (Del. 1967); Blau v. Hodgkinson, 100 F. Supp. 361 (SDNY 1951). We do not suggest that an exchange of stock pursuant to a merger may never result in § 16 (b) liability. But the involuntary nature of Occidental’s exchange, when coupled with the absence of the possibility of speculative abuse of inside information, convinces us that § 16 (b) should not apply to transactions such as this one.
IY
Petitioner also claims that the Occidental-Tenneco option agreement should itself be considered a sale, either because it was the kind of transaction the statute was designed to prevent or because the agreement was an option in form but a sale in fact. But the mere execution of an option to sell is not generally regarded as a “sale.” See Booth v. Varian Associates, 334 F. 2d 1 (CA1 1964), cert, denied, 379 U. S. 961 (1965); Allis-Chalmers Mjg. Co. v. Gulf & Western Industries, 309 F. Supp. 75 (ED Wis. 1970); Marquette Cement Mjg. Co. v. Andreas, 239 F. Supp. 962 (SDNY 1965). And we do not find in the execution of the Occidental-Tenneco option agreement a sufficient possibility for the speculative abuse of inside information with respect to Old Kern’s affairs to warrant holding that the option agreement was itself a “sale” within the meaning of § 16 (b). The mutual advantages of the arrangement appear quite clear. As the District Court found, Occidental wanted to avoid the position of a minority stockholder with a huge investment in a company over which it had no control and in which it had not chosen to invest. On the other hand, Tenneco did not want a potentially troublesome minority stockholder that had just been vanquished in a fight for the control of Old Kern. Motivations like these do not smack of insider trading; and it is not clear to us, as it was not to the Court of Appeals, how the negotiation and execution of the option agreement gave Occidental any possible opportunity to trade on inside information it might have obtained from its position as a major stockholder of Old Kern. Occidental wanted to get out, but only at a date more than six months thence. It was willing to get out at a price of $105 per share, a price at which it had publicly valued Tenneco preferred on May 19 when the Tenneco-Old Kern agreement was announced. In any event, Occidental was dealing with the putative new owners of Old Kern, who undoubtedly knew more about Old Kern and Tenneco’s affairs than did Occidental. If Occidental had leverage in dealing with Tenneco, it is incredible that its source was inside information rather than the fact of its large stock ownership itself.
Neither does it appear that the option agreement, as drafted and executed by the parties, offered measurable possibilities for speculative abuse. What Occidental granted was a “call” option. Tenneco had the right to buy after six months, but Occidental could not force Tenneco to buy. The price was fixed at $105 for each share of Tenneco preferred. Occidental could not share in a rising market for the Tenneco stock See Silverman v. Landa, 306 F. 2d 422 (CA2 1962). If the stock fell more than $10 per share, the option might not be exercised, and Occidental might suffer a loss if the market further deteriorated to a point where Occidental was forced to sell. Thus, the option, by its very form, left Occidental with no choice but to sell if Tenneco exercised the option, which it was almost sure to do if the value of Tenneco stock remained relatively steady. On the other hand, it is difficult to perceive any speculative value to Occidental if the stock declined and Tenneco chose not to exercise its option. See generally Note, Put and Call Options Under Section 16 of the Securities Exchange Act, 69 Yale L. J. 868 (1960); H. Filer, Understanding Put and Call Options 96-111 (1959); G. Leffler, The Stock Market 363-378 (2d ed. 1957).
The option, therefore, does not appear to have been an instrument with potential for speculative abuse, whether or not Occidental possessed inside information about the affairs of Old Kern. In addition, the option covered Tenneco preference stock, a stock as yet unissued, unregistered, and untraded. It was the value of this stock that underlay the option and that determined whether the option would be exercised, whether Occidental would be able to profit from the exercise, and whether there was any real likelihood of the exploitation of inside information. If Occidental had inside information when it negotiated and signed the option agreement, it was inside information with respect to Old Kern. Whatever it may have known or expected as to the future value of Old Kern stock, Occidental had no ownership position in Tenneco giving it any actual or presumed insights into the future value of Tenneco stock. That was the critical item of intelligence if Occidental was to use the option for purposes of speculation. Also, the date for exercise of the option was over six months in the future, a period that, under the statute itself, is assumed to dissipate whatever trading advantage might be imputed to a major stockholder with inside information. See Comment, Stock Exchanges Pursuant to Corporate Consolidation: A Section 16 (b) “Purchase or Sale?,” 117 U. Pa. L. Rev. 1034,1054 (1969); Silverman v. Landa,, supra. By enshrining the statutory period into the option, Occidental also, at least if the statutory period is taken to accomplish its intended purpose, limited its speculative possibilities. Nor should it be forgotten that there was no absolute assurance that the merger, which was not controlled by Occidental, would be consummated. In the event the merger did not close, the option itself would become null and void.
Nor can we agree that we must reverse the Court of Appeals on the ground that the option agreement was in fact a sale because the premium paid was so large as to make the exercise of the option almost inevitable, particularly when coupled with Tenneco’s desire to rid itself of a potentially troublesome stockholder. The argument has force, but resolution of the question is very much a matter of judgment, economic and otherwise, and the Court of Appeals rejected the argument. That court emphasized that the premium paid was what experts had said the option was worth, the possibility that the market might drop sufficiently in the six months following execution of the option to make exercise unlikely, and the fact that here, unlike the situation in Bershad v. McDonough, 428 F. 2d 693 (CA7 1970), the optionor did not surrender practically all emoluments of ownership by executing the option. Nor did any other special circumstances indicate that the parties understood and intended that the option was in fact a sale. We see no satisfactory basis or reason for disagreeing with the judgment of the Court of Appeals in this respect.
The judgment of the Court of Appeals is affirmed.
So ordered.
“For the. purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any security of the issuer in the name and in behalf of the issuer if the issuer shall fail or refuse to bring such suit within sixty days after request or shall fail diligently to prosecute the same thereafter; but no such suit shall be brought more than two years after the date such profit was realized. This subsection shall not be construed to cover any transaction where such beneficial owner was not such both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the Commission by rules and regulations may exempt as not comprehended within the purpose of this subsection.” 15 U. S. C. § 78p (b).
Old Kern was a California corporation having substantial real estate holdings, including oil-producing lands, oil-exploration activities, cattle ranching, cattle-feeding operations, and interests in the manufacture of automotive parts, electronic systems and devices, and farm machinery and construction equipment. After the reorganization described in the text, Old Kern became known as the 600 California Corporation until its eventual dissolution under California law on October 6, 1967.
Occidental is the respondent in this Court. A California corporation with its principal place of business in California, Occidental is engaged in the production and sale of oil, gas, coal, sulphur, and fertilizers.
The Old Kern stock was registered pursuant to § 12 of the Securities Exchange Act of 1934, as amended, 15 U. S. C. § 781. The stock was a nonexempt, equity security for purposes of § 16 (b).
The Old Kern stock closed at 63% on Friday, May 8, 1967, the last trading day prior to the announcement of the tender offer. It had reached a high of 64ys and a low of 57% in 1967, a high of 76% and a low of 51% in 1966, a high of 71% and a low of 56 in 1965, and a high of 70% and a low of 56% in 1964. Thus, the $85-per-share tender-offer price represented a substantial profit for shareholders of Old Kern.
On May 10, Old Kern had 4,328,000 shares outstanding.
On May 18, 1967, Occidental filed a Form 3, Initial Statement of Beneficial Ownership of Securities, with the Securities and Exchange Commission indicating direct ownership of 507,055 shares of Old Kern stock; on June 9, 1967, Occidental filed a Form 4, Statement of Changes in Beneficial Ownership of Securities, for the month of May, indicating the purchase of an additional 376,326 shares of Old Kern stock, for a total ownership as of May 31, 1967, of 883,381 shares. An additional 4,168 shares were purchased by June 8, 1967, so that as of June 30, 1967, Occidental held 887,549 shares of Old Kern stock. This figure included 1,900 shares which Occidental purchased on the open market in April 1967. Section 16 (b) liability is not asserted with respect to these shares, because these purchases did not make Occidental a “beneficial owner” for purposes of § 16 (b).
Tenneco, a Delaware corporation, is a diversified industrial company with operations in natural gas transmission, oil and gas, chemicals, packaging, manufacturing, and shipbuilding. Tenneco is not a party to this litigation.
Although technically a sale of assets, the corporate combination has been consistently referred to by the parties as a “merger” and will be similarly denominated in this opinion. The only significance of the characterization is the fact that a sale of assets required, under California law, approval of only a majority of the Old Kern shareholders and provided no appraisal rights for dissenters.
New Kern, a Delaware corporation with its principal place of business in California, is the petitioner in this Court and is a wholly owned subsidiary of Tenneco Corp. Tenneco Corp. is, in turn, a wholly owned subsidiary of Tenneco and owns all of the capital stock or controlling interests in most of Tenneco’s nonpipeline operating subsidiaries. When first incorporated, New Kern was known as KCL Corp.
The annual dividend of $5.50 per share on the new Tenneco stock would be more than double the current annual dividend of $2.60 per share on the Old Kern stock. Each share of the new Tenneco preference stock was convertible into 3.6 shares of Tenneco common stock. During 1967, Tenneco common stock had sold at a high of 32% and a low of 20%. Moreover, in contrast to Occidental’s cash offer, the Tenneco exchange was expected to be, and was ultimately approved by the Internal Revenue Service as, free of capital gains tax.
Prior to any court ruling on Occidental’s mandamus petitions, Old Kern voluntarily permitted inspection of Old Kern’s general ledger, consolidated financial statements, consolidated journal entries, details of cash receipts from oil operations, supporting trial balances, and other records over a six-day period. A list of stockholders, however, was withheld.
The agreement covered 886,623 shares. This figure is 926 shares less than the number of Old Kern shares ultimately owned by Occidental. This discrepancy apparently results from uncertainty as to the number of shares tendered.
An outside investment banking firm in New York had determined that between $9 and $12 per share was a fair premium on an option on the Old Kern stock.
On that date, and on the date of the exercise of the option, Old Kern common stock was selling at approximately $95 per share.
Seeking to prevent its acquisition of Tenneco shares pursuant to the merger from being matched with the sale of those shares upon exercise of the option for purposes of establishing § 16 (b) liability, Occidental asked that the new Tenneco stock not be immediately registered pursuant to § 12 of the Securities Exchange Act of 1934, 15 U. S. C. § 78l. See 450 F. 2d 157, 160 n. 6.
The letter indicated that Occidental “did not consider it to be in its best interest, or the best interest of its shareholders, or the best interest of KCL Shareholders generally for it to [oppose] the transaction.” However, Occidental stated that “[i]n view of the fact that we would rather have worked out our own transaction with KCL, we shall not vote our KCL shares at the KCL Shareholder’s Meeting on July 17, 1967.” Under applicable California law, the abstention from voting was tantamount to opposing the merger.
This history of this litigation is reviewed in 600 California Corp. v. Harjean Co., 284 F. Supp. 843 (ND Tex. 1968).
Occidental answered asserting various affirmative defenses and shareholders, and one was subsequently begun. The four suits were counterclaims. Two suits had already been instituted by Old Kern consolidated.
In view of its disposition, the Court of Appeals did not reach Occidental’s contentions that only the purchases in excess of 10% of Old Kern’s stock, rather than all purchases made pursuant to the tender offer, should be included in calculating liability and that the awards of prejudgment interest and dividends were improper. Occidental also appealed from the dismissal of its counterclaims. The Court of Appeals dismissed Occidental’s appeal as moot.
For purposes of § 16 (b), a statutory insider includes a “beneficial owner, director, or officer.” 15 U. S. C. § 78p (b). The term “beneficial owner” refers to one who owns “more than 10 per centum of any class of any equity security (other than an exempted security) which is registered pursuant to section 781 [§ 12] of this title.” 15 U. S. C. § 78p (a).
The term “equity security” is defined to include “any stock or similar security; or any security convertible, with or without consideration, into such a security, or carrying any warrant or right to subscribe to or purchase such a security; or any such warrant or right; or any other security which the Commission shall deem to be of similar nature and consider necessary or appropriate, by such rules and regulations as it may prescribe in the public interest or for the protection of investors, to treat as an equity security.” 15 U. S. C. § 78c (a) (11).
The legislative history of § 16 (b) reveals a congressional effort to curb short-swing trading by insiders whose position gives them access to information not available to the investing public and the ability to influence corporate policy.
“Among the most vicious practices unearthed at the hearings before the subcommittee was the flagrant betrayal of their fiduciary duties by directors and officers of corporations who used their positions of trust and the confidential information which came to them in such positions, to aid them in their market activities. Closely allied to this type of abuse was the unscrupulous employment of inside information by large stockholders who, while not directors and officers, exercised sufficient control over the destinies of their companies to enable them to acquire and profit by information not available to others.” S. Rep. No. 1455, 73d Cong., 2d Sess., 55 (1934).
See also 10 S. E. C. Ann. Rep. 50 (1944); S. Rep. No. 792, 73d Cong., 2d Sess., 9 (1934).
“The Securities Exchange Act of 1934 aims to protect the interests of the public against the predatory operations of directors, officers, and principal stockholders of corporations by preventing them from speculating in the stock of the corporations to which they owe a fiduciary duty. ... By this section [16 (b)] it is rendered unlawful for persons intrusted with the administration of corporate affairs or vested with substantial control over corporations to use inside information for their own advantage.” S. Rep. No. 1455, 73d Cong., 2d Sess., 68 (1934).
The purpose and operation of § 16 (b) were explained as follows by one of its draftsmen.
“[Section 16 (b)] is to prevent directors receiving the benefits of short-term speculative swings on the securities of their own companies, because of inside information. The profit on such transaction under the bill would go to the corporation. You hold the director, irrespective of any intention or expectation to sell the security within 6 months after, because it will be absolutely impossible to prove the existence of such intention or expectation, and you have to have this crude rule of thumb, because you cannot undertake the burden of having to prove that the director intended, at the time he bought, to get out on a short swing.” Hearings on Stock Exchange Practices before the Senate Committee on Banking and Currency, 73d Cong., 2d Sess., pt. 15, p. 6557 (1934).
See generally Hearings on H. R. 7852 and H. R. 8720 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 85 (1934); Hearings on Stock Exchange Practices, supra, at 6463-6581 (1934); S. Rep. No. 792, 73d Cong., 2d Sess., 7-9 (1934); S. Rep. No. 1455, 73d Cong., 2d Sess., 55-68 (1934); H. R. Rep. No. 1383, 73d Cong., 2d Sess., 13-14 (1934). See also Blau v. Lamb, 363 F. 2d 507 (CA2 1966), cert, denied, 385 U. S. 1002 (1967); Smolowe v. Delendo Corp., 136 F. 2d 231 (CA2), cert, denied, 320 U. S. 751 (1943); Yourd, Trading in Securities by Directors, Officers and Stockholders: Section 16 of the Securities Exchange Act, 38 Mich. L. Rev. 133 (1939); Meeker & Cooney, The Problem of Definition in Determining Insider Liabilities Under Section 16 (b), 45 Va. L. Rev. 949 (1959); Comment, Stock Exchanges Pursuant to Corporate Consolidation: A Section 16 (b) “Purchase or Sale?,” 117 U. Pa. L. Rev. 1034 (1969).
The term, see 2 L. Loss, Securities Regulation 1069 (2d ed. 1961), has been applied to stock conversions, exchanges pursuant to mergers and other corporate reorganizations, stock reclassifications, and dealings in options, rights, and warrants.
“When used in this chapter, unless the context otherwise requires—
“(13) The terms ‘buy’ and ‘purchase’ each include any contract to buy, purchase, or otherwise acquire.
“(14) The terms ‘sale’ and ‘sell’ each include any contract to sell or otherwise dispose of.” 15 U. S. C. §§ 78c (a) (13), (14).
Several decisions have been read as to apply a so-called “objective” test in interpreting and applying § 16 (b). See, e. g., Smolowe v. Delendo Corp., supra; Park & Tilford v. Schulte, 160 F. 2d 984 (CA2), cert, denied, 332 U. S. 761 (1947); Heli-Coil Corp. v. Webster, 352 F. 2d 156 (CA3 1965). Under some broad language in those decisions, § 16 (b) is said to be applicable whether or not the transaction in question could possibly lend itself to the types of speculative abuse that the statute was designed to prevent. By far the greater weight of authority is to the effect that a “pragmatic” approach to § 16 (b) will best serve the statutory goals. See, e. g., Roberts v. Eaton, 212 F. 2d 82 (CA2), cert, denied, 348 U. S. 827 (1954) ; Ferraiolo v. Newman, 259 F. 2d 342 (CA6 1958), cert, denied, 359 U. S. 927 (1959); Blau v. Max Factor & Co., 342 F. 2d 304 (CA9), cert, denied, 382 U. S. 892 (1965); Blau v. Lamb, supra; Petteys v. Butler, 367 F. 2d 528 (CA8 1966), cert, denied, 385 U. S. 1006 (1967). For a discussion and critical appraisal of the various “approaches” to the interpretation and application of § 16 (b), see Lowenfels, Section 16 (b): A New Trend in Regulating Insider Trading, 54 Cornell L. Q. 45 (1968); Comment, Stock Exchanges Pursuant to Corporate Consolidation: A Section 16 (b) “Purchase or Sale?,” 117 U. Pa. L. Rev. 1034 (1969); Note, Reliance Electric and 16 (b) Litigation: A Return to the Objective Approach?, 58 Va. L. Rev. 907 (1972); Gadsby & Treadway, Recent Developments Under Section 16 (b) of the Securities Exchange Act of 1934, 17 N. Y. L. F. 687 (1971).
Our differences with the dissent as to the reach and scope of congressional intent and purpose are clear. If we are mistaken, or if Congress would now mandate a different result, the statutory remedy would not be difficult to fashion.
Both events occurred within six months of Occidental’s first acquisition of Old Kern shares pursuant to its tender offer. Although Occidental did not exchange its Old Kern shares until December 11, 1967, it is not contended that that date, rather than the date on which Occidental became irrevocably bound to do so, should control. Similarly, although the option was not exercised until December 11, 1967, no liability is asserted with respect to that event, because it occurred more than six months after Occidental’s last acquisition of Old Kern stock.
Although a “defensive merger” is one tactic available to incumbent management in its arsenal of antitender-offer weapons, it is by no means a foregone conclusion that it is the response that will be most often, much less invariably, employed. Incumbent management might, for instance, choose to exhort shareholders not to tender, employ various techniques to elevate the market price of the company’s stock in order to make the tender offer less attractive, institute legal proceedings, or increase the company’s outstanding stock. Any one of these devices might prove more attractive to incumbent management than a defensive merger which could prove to be highly detrimental to the enterprise. See Note, Defensive Tactics Employed by Incumbent Managements in Contesting Tender Offers, 21 Stan. L. Rev. 1104 (1969).
In Bershad v. McDonough, 428 F. 2d 693 (CA7 1970), the defendants were directors and greater-than-ten-percent stockholders of Cudahy Co. The defendants, within six months of their acquisition of beneficial ownership of Cudahy, granted an option to Smelting Refining & Mining Co. to purchase their Cudahy stock. The Seventh Circuit held that the grant of the option was a § 16 (b) “sale” of the Cudahy stock. The Court of Appeals in the present case distinguished Bershad as follows:
"That case came before the court of appeals on a finding by the district court that, under the circumstances there presented, the stock had in fact been sold within the six months period, although the option was not formally exercised until later. The district court had relied on a number of circumstances, the most significant being that the optionor gave the optionee an irrevocable proxy to vote the shares and that the optionor and one of his associate directors resigned as directors within a few days after the grant of the option and were replaced by officers of the optionee. In other words, the district court found in effect that the 'option’ was accompanied by a wink of the eye, and the court of appeals sustained this. Here there is no such finding, and no basis for one.” 450 F. 2d, at 165.
With respect to entering judgment for Occidental, the dissent simply has a different, but insufficiently persuasive, view of the facts from that of Judge Friendly and his colleagues. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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104
] |
ANDRUS, SECRETARY OF THE INTERIOR v. CHARLESTONE STONE PRODUCTS CO.
No. 77-380.
Argued April 18, 1978
Decided May 31, 1978
MARSHALL, J., delivered the opinion for a unanimous Court.
Sara Sun Beale argued the cause for petitioner. With her on the briefs were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Barnett, Carl Strass, and Larry A. Boggs.
Gerry Levenberg argued the cause for respondent. With him on the brief was Warwick C. Lamoreaux.
A brief of amici curiae urging reversal was filed for their respective States by Avrum Gross, Attorney General of Alaska; Bruce E. Babbitt, Attorney General of Arizona, and Dale Pontius, Assistant Attorney General; Evelle J. Younger, Attorney General of California, and Roderick Walston, Deputy Attorney General; J. D. MacFarlane, Attorney General of Colorado, and David W. Robbins, Deputy Attorney General; Wayne L. Kidwell, Attorney General of Idaho, and Josephine Beeman, Assistant Attorney General; Michael T. Greely, Attorney General of Montana; Paul L. Douglas, Attorney General of Nebraska, and Steven C. Smith, Assistant Attorney General; Robert List, Attorney General of Nevada, and George Campbell, Deputy Attorney General; Toney Anaya, Attorney General of New Mexico, and Richard A. Simms, Special Assistant Attorney General; Allen I. Olson, Attorney General of North Dakota, and Murray G. Sagsveen, Assistant Attorney General; James A. Redden, Attorney General of Oregon, and Clarence R. Kruger, Assistant Attorney General; William J. Janklow, Attorney General of South Dakota, and Warren R. Neufeld, Assistant Attorney General; Slade Gorton, Attorney General of Washington, and Charles B. Roe, Jr., Senior Assistant Attorney General; and V. Frank Mendicino, Attorney General of Wyoming, and Jack D. Palma II, Special Assistant Attorney General.
Maurice J. Nelson filed a brief for J. Alan Steele as amicus curiae.
Mr. Justice Marshall
delivered the opinion of the Court.
Under the basic federal mining statute, which derives from an 1872 law, “all valuable mineral deposits in lands belonging to the United States” are declared “free and open to exploration and purchase.” 30 U. S. C. § 22. The question presented is whether water is a "valuable mineral” as those words are used in the mining law.
I
A claim to federal land containing “valuable mineral deposits” may be “located” by complying with certain procedural requisites; one who locates a claim thereby gains the exclusive right to possession of the land, as well as the right to extract minerals from it. See generally 30 U. S. C. §§ 21-54; 1 American Law of Mining § 1.17 (1973). The claim at issue in this case, known as Claim 22, is one of a group of 23 claims near Las Vegas, Nev., that were located in 1942. In 1962, after respondent had purchased these claims, it discovered water on Claim 22 by drilling a well thereon. This water was used to prepare for commercial sale the sand and gravel removed from some of the 23 claims.
In 1965, the Secretary of the Interior filed a complaint with the Bureau of Land Management, seeking to have all of these claims declared invalid on the ground that the only minerals discovered on them were “common varieties” of sand and gravel, which had been expressly excluded from the definition of “valuable minerals” by a 1955 statute. § 3, 69 Stat. 368, 30 U. S. C. § 611. At the administrative hearing on the Secretary’s complaint, the principal issue was whether the sand and gravel deposits were “valuable” prior to the effective date of the 1955 legislation, in which case the claims would be valid. The Administrative Law Judge concluded after hearing the evidence that respondent had established pre-1955 value only as to Claim 10. On appeals taken by both respondent and the Government, the Interior Board of Land Appeals (IBLA) affirmed the Administrative Law Judge in all respects here relevant. 9 I. B. L. A. 94 (1973) ,
Respondent sought review in the United States District Court for the District of Nevada. The court concluded that the decisions of the Administrative Law Judge and the IBLA were not supported by the evidence and that “at least” Claims 1 through 16 were valid. App. to Pet. for Cert. 26a. The court further held “that access to Claim No. 22 must be permitted so that the water produced from the well on that claim may be made available to the operations on the valid claims.” Ibid. The IBLA’s decision was accordingly vacated, and the case remanded to the Department of the Interior.
On the Government’s appeal, the United States Court of Appeals for the Ninth Circuit affirmed. 553 F. 2d 1209 (1977). It agreed with the District Court as to Claims 1 through 16 and also agreed that respondent was entitled to access to the water on Claim 22. It grounded the latter conclusion, however, “upon a rationale other than that relied upon by the District Court,” id., at 1215, a rationale that had not been briefed or argued in either the District Court or the Court of Appeals. Noting that “[s]ince early times, water has been regarded as a mineral,” ibid., the appellate court stated that it could not assume “that Congress was not aware of the necessary glove of water for the hand of mining and [that] Congress impliedly intended to reserve water from those minerals allowed to be located and recovered,” id., at 1216. Since the water at Claim 22 “has an intrinsic value in the desert area” and has additional value at the particular site “as a washing agent for . . . sand and gravel,” the court ruled that respondent’s “claim for the extraction of [Claim 22’s] water is valid.” Ibid.
The difference between the District Court’s and the Court of Appeals’ rationales for allowing access to Claim 22 is a significant one. The District Court held only that respondent is entitled to use the water on the claim; the Court of Appeals, by contrast, held that the claim itself is valid. If the claim is indeed valid, respondent is not merely entitled to access to the water thereon, but also has exclusive possessory rights to the land and may keep others from making any use of it. By complying with certain procedures, moreover, respondent could secure a “patent” from the Government conveying fee simple title to the land. See 30 U. S. C. §§ 29, 37; 1 American Law of Mining § 1.23 (1973). See generally Union Oil Co. v. Smith, 249 U. S. 337, 348-349 (1919). In view of the significance of the determination that a mining claim to federal land is valid, the Government sought review here of the Court of Appeals’ sua sponte holding regarding Claim 22’s validity. The single question presented in the petition is “[w]hether water is a locatable mineral under the mining law of 1872.” Pet. for Cert. 2.
We granted certiorari, 434 U. S. 964 (1977), and we now reverse.
II
We may assume for purposes of this decision that the Court of Appeals was correct in concluding that water is a “mineral,” in the broadest sense of that word, and that it is “valuable.” Both of these facts are necessary to a holding that a claimant has located a “valuable mineral deposit” under the 1872 law, 30 U. S. C. § 22, but they are hardly sufficient.
This Court long ago recognized that the word “mineral,” when used in an Act of Congress, cannot be given its broadest definition. In construing an Act granting certain public lands, except “mineral lands,” to a railroad, the Court wrote:
“The word 'mineral’ is used in so many senses, dependent upon the context, that the ordinary definitions of the dictionary throw but little light upon its signification in a given case. Thus the scientific division of all matter into the animal, vegetable or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom .... Equally subversive of the grant would be the definition of minerals found in the Century Dictionary: as 'any constituent of the earth’s crust’ . . . .” Northern Pacific R. Co. v. Soderberg, 188 U. S. 526, 530 (1903).
In the context of the 1872 mining law, similar conclusions must be drawn. As one court observed, if the term “mineral” in the statute were construed to encompass all substances that are conceivably mineral, “there would be justification for making mine locations on virtually every part of the earth’s surface,” since “a very high proportion of the substances of the earth are in that sense 'mineral.' ” Rummell v. Bailey, 7 Utah 2d 137, 140, 320 P. 2d 653, 655 (1958). See also Robert L. Beery, 25 I. B. L. A. 287, 294-296 (1976) (noting that "common dirt,” while literally a mineral, cannot be considered locatable under the mining law); Holman v. Utah, 41 L. D. 314, 315 (1912); 1 American Law of Mining, supra, § 2.4, p. 168.
The fact that water may be valuable or marketable similarly is not enough to support a mining claim’s validity based on the presence of water. Many substances present on the land may be of value, and indeed it seems likely that land itself — especially land located just 15 miles from downtown Las Vegas, see 553 F. 2d, at 1211— has, in the Court of Appeals’ words, “an intrinsic value,” id., at 1216. Yet the federal mining law surely was not intended to be a general real estate law; as one commentator has written, “the Congressional mandate did not sanction the disposal of federal lands under the mining laws for purposes unrelated to mining.” 1 American Law of Mining, supra, § 1.18, p. 56; cf. Holman v. Utah, supra (distinguishing mining law from homestead and other agricultural entry laws). In order for a claim to be valid, the substance discovered must not only be a “valuable mineral” within the dictionary definition of those words, but must also be the type of valuable mineral that the 1872 Congress intended to make the basis of a valid claim.
Ill
The 1872 law incorporates two provisions involving water rights that derive from earlier mining Acts. See 17 Stat. 94-95. In 1866, in Congress’ first major effort to regulate mining on federal lands, it provided for the protection of the “vested rights” of “possessors and owners” “to the use of water for mining, agricultural, manufacturing or other purposes,” to the extent that these rights derive from “priority of possession” and “are recognized and acknowledged by the local customs, laws, and the decisions of courts.” 30 U. S. C. § 51. In 1870, Congress again emphasized its view that water rights derive from “local” law, not federal law, making “[a]ll patents granted . . . subject to any vested and accrued water rights ... as may have been acquired under or recognized by [the 1866 provision].” 30 U. S. C. § 52.
In discussing these mining law provisions on the subject of water rights, this Court has often taken note of the history of mining in the arid Western States. In 1879 Mr. Justice Field of California, writing for the Court, described in vivid terms the influx of miners that had shaped the water rights law of his State and its neighbors:
“The lands in which the precious metals were found belonged to the United States, and were unsurveyed Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches and canons, and probing the earth in all directions for the precious metals. . . . But the mines could not be worked without water. Without water the gold would remain for ever buried in the earth or rock. . . . The doctrines of the common law respecting the rights of riparian owners were not considered as applicable ... to the condition of miners in the mountains. . . . Numerous regulations were adopted, or assumed to exist, from their obvious justness, for the security of . . . ditches and flumes, and the protection of rights to water . . . .” Jennison v. Kirk, 98 U. S. 453, 457-458 (1879).
See also Basey v. Gallagher, 20 Wall. 670, 681-684 (1875) (Field, J.); Atchison v. Peterson, 20 Wall. 507, 510-515 (1874) (Field, J.). Over a half century later, Mr. Justice Sutherland set out this same history in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 154-155 (1935). He then explained that the water rights provisions of the 1866 and 1870 laws were intended to
“approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the non-navigable waters on the public domain.” Id., at 155.
Our opinions thus recognize that, although mining law and water law developed together in the West prior to 1866, with respect to federal lands Congress chose to subject only mining to comprehensive federal regulation. When it passed the 1866 and 1870 mining laws, Congress clearly intended to preserve “pre-existing [water] right[s]." Broder v. Natoma Water & Mining Co., 101 U. S. 274, 276 (1879). Less than 15 years after passage of the 1872 law, the Secretary of the Interior in two decisions ruled that water is not a locatable mineral under the law and that private water rights on federal lands are instead “governed by local customs and laws,” pursuant to the 1866 and 1870 provisions. Charles Lennig, 5 L. D. 190, 191 (1886); see William A. Chessman, 2 L. D. 774, 775 (1883). The Interior Department, which is charged with principal responsibility for “regulating the acquisition of rights in the public lands,” Cameron v. United States, 252 U. S. 450, 460 (1920), has recently reaffirmed this interpretation. Robert L. Beery, 25 I. B. L. A. 287 (1976).
In ruling to the contrary, the Court of Appeals did not refer to 30 U. S. C. §§ 51 and 52, which embody the 1866 and 1870 provisions; to our opinions construing these provisions; or to the consistent course of administrative rulings on this question. Instead, without benefit of briefing, the court below decided that “it would be incongruous ... to hazard that Congress was not aware of the necessary glove of water for the hand of mining.” 553 F. 2d, at 1216. Congress was indeed aware of this, so much aware that it expressly provided a water rights policy in the mining laws. But the policy adopted is a “passive” one, 2 Waters and Water Rights § 102.1, p. 53 (R. Clark ed. 1967); Congress three times (in 1866, 1870, and 1872) affirmed the view that private water rights on federal lands were to be governed by state and local law and custom. It defies common sense to assume that Congress, when it adopted this policy, meant at the same time to establish a parallel federal system for acquiring private water rights, and that it did so sub silentio through laws designed to regulate mining. In light of the 1866 and 1870 provisions, the history out of which they arose, and the decisions construing them in the context of the 1872 law, the notion that water is a “valuable mineral” under that law is simply untenable.
IV
The conclusion that Congress did not intend water to be locatable under the federal mining law is reinforced by consideration of the practical consequences that could be expected to flow from a holding to the contrary.
A
Many problems would undoubtedly arise simply from the fact of having two overlapping systems for acquisition of private water rights. Under the appropriation doctrine prevailing in most of the Western States, the mere fact that a person controls land adjacent to a body of water means relatively little; instead, water rights belong to “[t]he first appropriator of water for a beneficial use,” but only “to the extent of his actual use,” California Oregon Power Co. v. Beaver Portland Cement Co., supra, at 154; see Jennison v. Kirk, supra, at 458; W. Hutchins, Selected Problems in the Law of Water Rights in the West 30-32, 389-403 (1942); McGowen, The Development of Political Institutions on the Public Domain, 11 Wyo. L. J. 1, 14 (1957). Failure to use the water to which one is entitled for a certain period of time generally causes one’s rights in that water to be deemed abandoned. See generally 2 W. Hutchins, Water Rights Laws in the Nineteen Western States 256-328 (1974).
With regard to minerals located under federal law, an entirely different theory prevails. The holder of a federal mining claim, by investing $100 annually in the claim, becomes entitled to possession of the land and may make any use, or no use, of the minerals involved. See 30 U. S. C. § 28. Once fee title by patent is obtained, see supra, at 609, even the $100 requirement is eliminated.
One can readily imagine the legal conflicts that might arise from these differing approaches if ordinary water were treated as a federally cognizable '“mineral.” A federal claimant could, for example, utilize all of the water extracted from a well like respondent’s, without regard for the settled prior appropriation rights of another user of the same water. Or he might not use the water at all and yet prevent another from using it, thereby defeating the necessary Western policy in favor of “actual use” of scarce water resources. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S., at 154. As one respected commentator has written, allowing water to be the basis of a valid mining claim “could revive long abandoned common law rules of ground water ownership and capture, and . . . could raise horrendous problems of priority and extralateral rights.” We decline to effect so major an alteration in established legal relationships based on nothing more than an overly literal reading of a statute, without any regard for its context or history.
B
A final indication that water should not be held to be a locatable mineral derives from Congress’ 1955 decision to remove “common varieties” of certain minerals from the coverage of the mining law. 30 U. S. C. § 611; see supra, at 606-607, and n. 5. This decision was made in large part because of “abuses under the general mining laws by . . . persons who locate[d] mining claims on public lands for purposes other than that of legitimate mining activity.” H. R. Rep. No. 730, 84th Cong., 1st Sess., 5 (1955); see S. Rep. No. 554, 84th Cong., 1st Sess., 4-5 (1955). Apparently, locating a claim and obtaining a patent to federal land were so inexpensive that many “use[d] the guise of mining locations for nonmining purposes,” including the establishment of “filling stations, curio shops, cafes, . . . residencefs] [and] summer camp[s].” H. R. Rep. No. 730, p. 6; see S. Rep. No. 554, p. 5.
Water, of course, is among the most common of the earth’s elements. While it may not be as common in the federal lands subject to the mining law as it is elsewhere, it is nevertheless common enough to raise the possibility of abuse by those less interested in extracting mineral resources than in obtaining title to valuable land. See Robert L. Beery, 25 I. B. L. A., at 296-297. Given the unprecedented nature of the Court of Appeals’ decision, it is hardly surprising that the 1955 Congress did not include water on its list of “common varieties” of minerals that cannot confer validity on a mining claim. But the concerns that Congress addressed in the 1955 legislation indicate that water, like the listed minerals, should not be considered a locatable mineral under the 1872 mining law.
V
It has long been established that, when grants to federal land are at issue, any doubts “are resolved for the Government, not against it.” United States v. Union Pacific R. Co., 353 U. S. 112, 116 (1957). A fortiori, the Government must prevail in a case such as this, when the relevant statutory provisions, their historical context, consistent administrative and judicial decisions, and the practical problems with a contrary holding all weigh in its favor. Accordingly, the judgment of the Court of Appeals is
Reversed.
Act of May 10, 1872, 17 Stat. 91.
Title 30 U. S. C. § 22 provides in full:
“Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.”
Title 30 U. S. C. § 611 provides in pertinent part:
“No deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders and no deposit of petrified wood shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claim hereafter located under such mining laws: Provided, however, That nothing herein shall affect the validity of any mining location based upon discovery of some other mineral occurring in or in association with such a deposit. 'Common varieties’ as used in sections 601, 603, and 611 to 615 of this title does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value . . .
The question of value has traditionally been resolved by application of “complement[ary]” tests relating to whether “‘a person of ordinary prudence’ ” would have expended “ 'his labor and means’ ” developing the claim at issue and whether the minerals thereon could have been “ ‘extracted, removed and marketed at a profit.’ ” United States v. Coleman, 390 U. S. 599, 600, 602 (1968), quoting decisions of the Secretary of the Interior in Coleman and in Castle v. Womble, 19 L. D. 455, 457 (1894).
The Administrative Law Judge, in addition to holding that Claim 10 was valid based on its pre-1955 value, held that Claim 9 was valid because it provided reserve material for Claim 10. The IBLA reversed as to Claim 9, holding it invalid. 9 I. B. L. A., at 108.
The Secretary’s complaint also named two other claims, numbered 12A and 13A, that were located by respondent in 1961. Since location occurred after the relevant 1955 date, the Administrative Law Judge held these claims invalid. His decision regarding Claims 12A and 13A was upheld by both the IBLA, 9 I. B. L. A., at 106, and the District Court, App. to Pet. for Cert. 25a, and was not contested in the Court of Appeals, see 553 F. 2d 1209, 1210 n. 1 (CA9 1977).
Although the question of the District Court’s subject-matter jurisdiction was not raised in this Court or apparently in either court below, we have an obligation to consider the question sua sponte. See, e. g., Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U. S. 274, 278 (1977); Mansfield, Coldwater, & Lake Michigan R. Co. v. Swan, 111 U. S. 379, 382 (1884). Respondent’s complaint alleged jurisdiction based on the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq., and 28 U. S. C. §§ 1361, 1391 (e). App. 27A. Title 28 U. S. C. § 1391 (e) is a venue statute and cannot itself confer jurisdiction.
With regard to the APA, while it may have appeared to be a proper basis of jurisdiction in the Ninth Circuit at the time the complaint was filed in 1973, see Brandt v. Hickel, 427 F. 2d 63, 55 (CA9 1970), we have since held that “the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action,” Califano v. Sanders, 430 U. S. 99, 107 (1977). We need not decide whether jurisdiction would lie here under 28 U. S. C. § 1361, because jurisdiction in this action to review a decision of the Secretary of the Interior is clearly conferred by 28 U. S. C. § 1331 (a).
This general federal-question statute was amended in 1976 to eliminate the amount-in-controversy requirement with regard to actions “brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.” Pub. L. No. 94-574 § 2, 90 Stat. 2721. Hence the fact that in 1973 respondent in its complaint did not allege $10,000 in controversy is now of no moment. See Ralpho v. Bell, 186 U. S. App. D. C. 368, 376-377, n. 51, 569 F. 2d 607, 615-616, n. 51 (1977); Green v. Philbrook, 427 F. Supp. 834, 836 (Vt. 1977). Nor does it matter that the complaint does not in so many words assert § 1331 (a) as a basis of jurisdiction, since the facts alleged in it are sufficient to establish such jurisdiction and the complaint appeared jurisdictionally correct when filed. See Fort Sumter Tours, Inc. v. Andrus, 564 F. 2d 1119, 1123 n. 4 (CA4 1977); Harary v. Blumenthal, 555 F. 2d 1113, 1115 n. 1 (CA2 1977); Fitzgerald v. United States Civil Service Comm’n, 180 U. S. App. D. C. 327, 329 n. 1, 554 F. 2d 1186, 1188 n. 1 (1977).
In reaching this conclusion, the court correctly noted, 563 F. 2d, at 1216, that water is not listed among the “common varieties” of minerals withdrawn from location by 30 U. S. C. § 611. Hence the fact that respondent did not discover water on Claim 22 until after 1955 is irrelevant to the question of the validity of the claim. See supra, at 606-607, andn. 3. See also infra, at 617.
By referring to the intent of the 1872 Congress, we do not mean to imply that the only minerals locatable are those that were known to exist in 1872. But Congress’ general conception of what a “valuable mineral” was for purposes of mining claim location is of obvious relevance in construing the 1872 law.
Title 30 U. S. C. § 51 provides in full:
“Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but .whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.”
Title 30 U. S. C. § 52 provides in full:
“All patents granted, or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by section 51 of this title.”
The holder of a valid mining claim is generally understood to have an unlimited right to extract minerals from the claim, “even to exhaustion.” Union Oil Co. v. Smith, 249 U. S. 337, 349 (1919). Respondent suggests that this right could be limited in the context of a mining-law claim to water, if the law were construed to require the claimant to respect water rights previously vested under state law. Brief for Respondent 31 n. 8; see id., at 25-26.
Trelease, Federal-State Problems in Packaging Water Rights, in Water Acquisition for Mineral Development Institute Paper 9, pp. 9-17 n. 47 (Rocky Mt. Min. L. Fdn., 1978).
The Court of Appeals’ suggestion that a claim to water might be validated simply because of the “intrinsic value” of water “in the desert area,” 553 F. 2d, at 1216, makes abuse particularly likely, since the “intrinsic value” theory would substantially lessen a claimant’s burden of showing the “valuable” nature of his claim. See n. 4, supra. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
25
] |
SPERRY v. FLORIDA ex rel. FLORIDA BAR.
No. 322.
Argued March 25, 1963.
Decided May 27, 1963.
Carlisle M. Moore argued the cause for petitioner. With him-on the briefs were Oscar A. Mellin, LeRoy Hanscom, and Jack E. Hursh.
F. Trowbridge vom Baur argued the cause for respondent. With him on the brief were Shenvood Spencer, J. Lewis Hall, Donald J. Bradshaw and John Houston Gunn.
Briefs of amici curiae, urging reversal, were filed by Solicitor General Cox, Acting Assistant Attorney General Guilfoyle, Louis F. Claiborne and Morton Hollander for the United States; by John R. Turney, D. W. Markham and NuelD. Belnap for the Association of Interstate Commerce Commission Practitioners; by Roger Robb for the American Association of Registered Patent Attorneys and Agents; and by Arthur B. Hanson and Emmett E. Tucker, Jr. for the American Chemical Society.
Briefs of amici curiae, urging affirmance, were filed by F. Trowbridge vom Baur, H. H. Perry, Jr.,Wayland B. Cedarquist, Raymond Reisler and Warren H. Resh. for the American Bar Association; by Lyman Brownfield and Phillip K. Folk for numerous State Bar Associations; and by William H. Webb for the . American Patent Law Association.
Mr. Chief Justice Warren
delivered the opinion of the Court.
Petitioner is a practitioner registered to practice before the United States Patent Office. He has not been admitted to practice law before the Florida or any other baf. Alleging, among other things, that petitioner “is engaged in the unauthorized practice. of law, in that although' he is not a member of The Florida Bar, he nevertheless maintains an office ... in Tampa, Florida, . . . holds himself oút to the public as a Patent Attorney . . .• represents Florida clients before the United States Patent Office, ... has rendered opinions as to patentability, and . . . has prepared various legal instruments, including . . . applications and amendments to applications for letters patent, and filed same in the United States Patent Office in Washington, D. C.,” the Florida Bar instituted these proceedings in the Supreme Court of Florida, to enjoin the performance of these and other specified acts within the State. Petitioner filed an answer in which he admitted the above allegations but pleaded as a defense “that the work performed by him for Florida citizens is solely that work which is presented to the United States Patent Office and that he charges fees solely for his work of preparing and prosecuting patent applications and patent assignments and determinations incident to preparing and prosecuting patent applications and assignments.” Thereupon, the court granted the Bar’s motion for a summary decree and permanently enjoined the petitioner from pursuing the following activities in Florida until and unless he became a member of the State Bar:
“1. using the term 'patent attorney’ or holding himself out to be an attorney at law in this state in any field or phase of the law (we recognize that the respondent according to the record before us has already voluntarily ceased the <use of the word ‘attorney’) ;
“2. rendering legal opinions, including opinions as to patentability or infringement on patent rights ;
. “3. preparing, drafting and construing legal documents;
“4. holding himself out, in this state, as qualified to. prepare and prosecute applications for letters patent, and amendments thereto;
“5. preparation and prosecution of applications for letters patent, and amendments thereto, in this state ; and
“6. otherwise engaging in the practice of law.”
The Supreme Court of Florida concluded that petitioner’s conduct constituted the unauthorized practice of law which the State, acting under its police power, could properly prohibit, and that neither federal statute nor the Constitution of the United States empowered any federal body to authorize such conduct in Florida. 140 So. 2d 587.
In his petition for certiorari, petitioner attacked the injunction “only insofar as it prohibits him from engaging in the specific activities . . . [referred to.above], covered by his federal license to practice before the Patent Office. He does not claim that he has any right otherwise to engage in activities that would be regarded as the practice of law.” We granted certiorari, 371 U. S. 875, to consider the significant, but narrow, questions thus presented.
We do not question the determination that under Florida law the preparation and prosecution of patent applications for others constitutes the practice of law. Greenough v. Tax Assessors, 331 U. S. 486; Murdock v. Memphis, 20 Wall. 590. Such conduct inevitably requires the practitioner to consider and advise his clients as to the patentability of their inventions under the statutory criteria, 35 U. S. C. §§ 101-103, 161, 171, as well as to consider the advisability of relying upon alternative forms of protection which may be available under state law. It also involves his participation in the drafting of the specification and claims of the patent application, 35 U. S. C. § 112, which this Court long ago noted “constitute [s] one of the most difficult legal instruments to draw with accuracy,” Topliff v. Topliff, 145 U. S. 156, 171. And upon rejection of the application, the practitioner may also assist in the preparation of amendments, 37 CFR §§ 1.117-1.126, which frequently requires written argument to establish the patentability of the claimed invention under the applicable rules of law and in light of the prior art. 37 CFR § 1.119. Nor do we doubt that Florida has a substantial interest in regulating the practice of law within the State and that, in the absence of federal legislation, it could validly prohibit nonlaw-yers from engaging in this circumscribed form of patent practice.
But “the law of the State, though enacted in the exercise of powers not contraverted, must yield” when incompatible with federal legislation. Gibbons v. Ogden, 9 Wheat. 1, 211. Congress has provided that the Commissioner of Patents “may prescribe regulations governing the recognition and conduct of agents, attorneys,' or other persons representing applicants or other parties before the Patent Office,” 35 U. S. C. § 31, and the Commissioner, pursuant to § 31, has provided by regulation that “[a]n applicant for patent . . . may be represented by an attorney or agent authorized' to practice before the Patent Office in patent' cases.” 37 CFR § 1.31. (Emphasis added.) The current regulations establish two separate registers “on which are entered the names of all persons recognized as entitled to represent applicants before the Patent Office in the preparation and prosecution of applications for patent.” 37CFR.§ 1.341. (Emphasisadded.) One register is for attorneys at law, 37 CFR § 1.341 (a), and the other is for nonlawyer “agents.” 37 CFR § 1.341 (b).. A person may be admitted under either category only by establishing “that he is of good moral character and of good repute and possessed of the legal and scientific and technical qualifications necessary to enable him to render applicants for patents valuable service, and is otherwise competent to advise and assist them in the presentation and prosecution of their applications before the Patent Office.” 37 CFR § 1.341 (c).
The statute thus expressly permits the Commissioner to authorize practice before the Patent Office by nonlawyers, and the Commissioner has explicitly granted such authority. If the authorization is unqualified, then, by virtue of the' Supremacy Clause, Florida may not deny to those failing to meet its own qualifications the right to perform the functions within the scope of the federal authority. A State may not enforce licensing requirements which, though valid in the absence of federal regulation, give “the State’s licensing board a virtual power sof review over the federal determination” that a person or agency is qualified and entitled to perform certain functions, or which impose upon the performance of activity sanctioned by federal license additional conditions not contemplated by Congress. “No State law can hinder or obstruct the free use of a license granted under an act of Congress.” Pennsylvania v. Wheeling & B. Bridge Co., 13 How. 518, 566.
Respondent argues, however, that we must read into the authorization conferred by the federal statute and regulations the condition that such practice not be inconsistent with state law, thus leaving registered practitioners with the unqualified right to practice only in the physical presence of the Patent Office' and in the District of Columbia, where the Office is now located.
The only language in either the statute or regulations which affords any plausible support for this view is the provision in the regulations that “[registration in the Patent Office . . . shall only entitle the persons registered to practice before the Patent Office.” 37 CFR § 1.341. Respondent' suggests that the meaning of this limitation is clarified by reference to the predecessor provision, which provided that registration “shall not bé construed as authorizing persons not members of the bar to practice law.” 3 Fed. Reg. 2429. Yet the progression to the more circumscribed language without more tends to indicate that the provision was intended only to emphasize that registration in the Patent Office does not authorize the general practice of patent law, but sanctions only the performance of those services which are reasonably necessary and incident to the preparation and prosecution of patent applications. ■ That no more was intended is further shown by the contrast with the regulations governing practice before the Patent Office in trademark cases, also issued by the Commissioner of Patents. These regulations now provide that “[recognition of any person under this section is not to be construed as sanctioning or authorizing the performance of any acts regarded in the jurisdiction where performed as the unauthorized practice of law.” 37 CFR § 2.12 (d). The comparison is perhaps sufficiently telling. But any possible uncertainty as to the intended meaning of the Commissioner must be dispelled by the fact that when the present regulations were amended in 1948, it was first proposed to add a provision similar to that appearing in the trademark regulations. After objection had been leveled against the revision on the ground that it “indicated that • the office thinks that the states have the power to cir- . cumscribe and limit the rights of patent attorneys who are .not lawyers,” the more sweeping language was deleted and the wording modified to its present form.
Bereft of support in the regulations, respondent directs us to. the legislative history of the statute to confirm its understanding. that § 31 and its predecessor provisions were not designed to authorize practice not condoned by the State. Insofar as this history provides any insight into the intent of Congress, however, we are convinced, that the interpretation which respondent asks us to give the statute is inconsistent with the assumptions upon which Congress has acted for over a century.
Examination of the development of practice before the Patent Office and its governmental regulation reveals that: (1) nonlawyers have practiced before the Office from its inception, with the express approval of the Patent Office and to the knowledge of Congress; (2) during pro-, longed congressional study of unethical practices before the Patent Office, the right of nonlawyer agents to practice before the Office went unquestioned, and there was no suggestion that .abuses might be curbed by state regulation; (3) despite protests of the bar, Congress in enacting the Administrative Procedure Act refused to limit the right to practice before the administrative agencies to lawyers; and (4) the Patent Office has defended the value of nonlawyer practitioners while taking steps to protect the interests which a State has in prohibiting unauthorized practice of law. We find implicit in this history congressional (and. administrative) recognition that registration in the Patent Office confers a right to practice before the Office without regard to whether the State within whieh the practice is conducted would otherwise prohibit such conduct.
The power of the Commissioner of Patents to regulate practice before the Patent Office dates back to 1861, when Congress first provided that “for gross misconduct he may refuse to recognize any person as a patent agent, either generally or in any particular case . ...” The “Rules and Directions” issued by the Commissioner in 1869 provided that “[a]ny person of intelligence and good moral character may appear as the attorney in fact or agent of an applicant upon .filing proper power of attorney.” From the'outset, a substantial number of those appearing-in this capacity were engineers or chemists familiar with the technical subjects to which the patent application related. “Many of them were not members of the bar. It probably never occurred to anybody that they should be.”- Moreover, although a concentration of patent practitioners developed in Washington, D. C., the regulations have provided since the reorganization of the Patent Office in 1836 that personal attendance in Washington is unnecessary and that business with the Office should be transacted in writing. • The bulk of practitioners are now scattered throughout the country, and have been so distributed for many years. As a practical matter, if practitioners were not so located, and thus could not easily consult with the inventors' with whom they deal, their effectiveness would often be considerably impaired. Respondent’s suggestion that practice by nonlawyers was intended to be confined to the District of Columbia thus assumes either congressional-ignorance or disregard of long-established practice.
Despite the early recognition of nonlawyers by the Patent Office, these agents, not subject to the professional restraints of their lawyer brethren, were particularly responsible for the deceptive advertising and victimization of inventors which long plagued the Patent Office. To remedy these abuses, the Commissioner of Patents in 1899 first required registration of persons practicing before the Patent Office and, in 1918, required practitioners to obtain his prior approval of all advertising material which they distributed. It was to reach these same evils that § 31 was given much its present form when, in 1922, the statute was amended to expressly authorize the Commissioner to prescribe regulations for the recognition of agents and attorneys.
This modification of the statute, first proposed in 1912, was designed to provide for the “creation of a patent bar” and “to require a higher standard of qualifications for registry.” Although it was brought to the attention of the House Committee on Patents that practitioners included lawyers and nonlawyers alike, it was never suggested that agents would be subject to exclusion. In fact, although the Commissioner of Patents had at one time expressed the view that Patent Office abuses could be eliminated only by restricting practice to lawyers, his successor concluded that such a limitation would be unwise and during the pendency of this legislation recommended to Congress against such a limitation:
“It has been suggested many times that the privilege of practising before the Office should be granted only after examination similar to examinations held for admission to the bar. It is believed that this requirement would be too severe, as many persons not specially trained in the law and without any particular educational advantages may by careful study of the practice and of the useful arts learn adequately to prosecute applications. Fundamentally knowledge of the invention is more important than knowledge of the rules and is often possessed by men of a type of mind which does not acquire legal knowledge readily.”
Moreover, during the consideration in 1916 of another bill enacted to curb abusive advertising by patent practitioners, by prohibiting persons practicing before government agencies from using the names of government officials in their advertising literature, the same point was made on the floor of the House:
“Mr. OGLESBY. I will say to the gentleman that a good many men appear before the Patent Office who are not admitted attorneys. The commissioner stated at the hearing that he had considered the question as to whether or not anyone except, a regularly admitted attorney at Jaw should be excluded from practicing before the Patent Office, but for certain reasons thought, perhaps, he ought not to establish such a rule.”
Disclosure that persons were falsely holding themselves out to be registered patent practitioners led in 1938 to the enactment of legislation making such misrepresentation a criminal offense. This corrective legislation was under consideration for over a decade and originally contained several other provisions, including one which would have prohibited any person “duly registered to practice in the Patent Office . . . [from holding] himself out as a patent attorney, patent lawyer, patent solicitor, or patent counselor unless he is legally admitted to practice law in the State ... or in the District of Columbia.” During the extended consideration given the matter in both Houses of .Congress, the distinction between patent lawyers, who had been admitted to the bar, and nonlawyer agents, was repeatedly brought out; time and again it was made clear that the above provision was not intended to restrict practice by agents, but was designed only to prevent them from labeling themselves “patent attorneys,” as the Patent Office had theretofore permitted. The proposed bills would not have affected “any engineers or draftsmen from doing those things which they have always been doing before the Patent Office”; the bills sought “to bring about no change in the status- of the many men now registered and entitled to practice before-the Patent Office, regardless of whether they are members of the bar or not . . . .” (Emphasis added.) “[T]here are quite a number of solicitors of patents who are highly qualified and who are not members of the bar, who never graduated at law and were never admitted to the bar. But this bill doesn't disqualify those men. They can continue to qualify as patent agents.” • (Emphasis added.) When asked “[w]hat is going to be the difference in the legal prerogatives of the agents and the others that come in,” the Commissioner of Patents responded that “[tjheir rights in the Patent Office will be exactly the same. Their rights in the courts will be different.” (Emphasis added.) The House debates on the bill before Congress in 1930- reveal the same understanding:
“Mr. STAFFORD. ... I was under the impression that hereafter a person in order to practice before the Patent Office must be admitted to practice before some bar of a State.
“Mr. LaGUARDIA. That is my understanding.
“Mr. PERKINS. I will correct myself. He may be admitted to act as a patent agent, but after the passage of this act no one who is not admitted to the bar generally can hold himself out to be a patent attorney, patent lawyer, patent solicitor, or patent counselor.
“Mr. STAFFORD. A person without being a member of the bar may be registered as a patent agent to practice before the Commissioner of Patents?
“Mr. PERKINS. He may.”
Hence, during the period the 1922 statute was being considered,- and prior to its readoption in 1952, we find strong and unchallenged implications that registered agents have a right to practice before the Patent Office. The repeated efforts to assure Congress that no attempt was being made to limit this right are not without significance. Nor is it insignificant that we find no suggestion that the abuses being perpetrated by patent agents could or should be corrected by the States. To the contrary, reform was effected by the Patent Office, which now requires all practitioners to pass a rigorous examination, 37 CFR § 1.341 (c), strictly regulates their advertising, 37 CFR § 1.345, and demands that “[attorneys and agents appearing before the Patent Office . . . conform to the standards of ethical and professional conduct generally applicable to attorneys before the courts of the United States.” 37 CFR § 1.344.
Moreover, the extent to which specialized lay practitioners should be allowed to practice before some 40-odd federal administrative agencies, including the Patent Office, received continuing attention both in and out of Congress during the period prior to 1952. The Attorney General’s Committee on Administrative Procedure which, in 1941, studied the need for procedural reform in the administrative agencies, reported that “[e] specially among lawyers’ organizations there has been manifest a sentiment in recent years that only members of the bar should be admitted to practice before administrative agencies. The Committee doubts that a sweeping interdiction of nonlawyer practitioners would be wise . . . .” Ultimately it was provided in § 6 (a) of the Administrative Procedure Act that “[e]very party shall be accorded the right to appear in person or by or with counsel or other duly qualified representative in any agency proceeding. . . . Nothing herein shall be construed either to grant or to' deny to any person who is.not a lawyer the right to appear for or represent others before any agency or in any agency proceeding.” 60 Stat. 240; 5 U. S. C. § 1005 (a). Although the act thus disavows any.intention to change the existing.practice before any of the agencies, so that the right of nonlawyers to practice before each agency must be determined' by reference to the statute and regulations applicable to the particular agency, the history of § 6 (a) contains further recognition of the power of agencies to admit nonlawyers, and again we see no suggestion that this power is in any way conditioned on the approval of the State. The Chairman of the American Bar Association’s committee on administrative law testified before the House Judiciary Committee:
A great deal of complaint has been received from two sources. Number one is the lay practitioners before the various agencies, chiefly the Interstate Commerce Commission, who are afraid something might be said that would oust them from practice, On the other hand, there is a great deal of protest ■from the committees on unauthorized practice of the law in various, State, local, and municipal bar associations who are just as vehement in saying that these measures fail to recognize that' legal procedure must be confined to lawyers. But these bills do not eliminate the lay practitioner, if the administrative agency feels they have a function to perform and desires to admit him to practice.”
Despite the concern of the bar associations, the Senate Judiciary Committee reported that “nonlawyers, if permitted by the agency to practice before it, are not excluded from representing interested parties in administrative matters.” And in the House debates on this provision.we find the following instructive passage:
“Mr. AUSTIN. Mr. President, before the Senator leaves that thought, I wish to ask a question. I notice ... in .the section to which the Senator is referring, this language:
“ ‘Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or represent others before any agency or in any agency proceeding.’
“Is it not a fact that somewhere in the bill the distinguished Senator has reserved the right to a nonprofessional — that is, a man who is not a lawyer— to appear, if the agency having jurisdiction permits it? . That is, there is a discretion permitted, is there not? For example, take a case where a scientific expert would better represent before the Commission the interests involved than would a lawyer. The right to obtain that privilege is granted in the bill somewhere, is it not?
“Mr. McCARRAN. The Senator is correct; and in connection with that I wish to read from the Attorney General’s comment, as follows:
“ ‘This subsection does not deal with, or in any way qualify, the present power of an agency to regulate practice at its bar. It expressly provides, moreover, that nothing in the act shall be construed either to grant or to deny the right of nonlawyers to appear before agencies in a representative capacity. Control over this matter remains in the respectivé agencies.’
“That is the Attorney General’s observation.” (Emphasis added.)
It is also instructive to note that shortly after the adoption of the Administrative Procedure Act, the American Bar Association proposed the adoption of an “Administrative Practitioners Act.” Though limiting the powers of nonattorneys in respects not here relevant, the bill did provide that “authorized participation in agency proceedings” was permissible, without regard to whether the conduct constituted the practice of law in the State where performed.
Indicative of this same general understanding, we note that every state court considering the problem prior to 1952 agreed that the authority to participate in administrative'proceedings conferred by the Patent Office and by other federal agencies was either consistent with or preemptive of state law.
Finally, regard to the underlying considerations renders it difficult to conclude that Congress would have permitted a State to prohibit patent agents from operating within its boundaries had it expressly directed its attention to the problem. The rights conferred by the issuance of letters patent are federal rights. It is upon Congress that the Constitution' has bestowed the power “To promote the Progress of Science and useful Arts, by securing for limited Times to. Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” Art. I, § 8, cl. 8, and to take all steps necessary and proper to accomplish that end, Art. I, § 8, cl. 18, pur-, suant to which the Patent Office and its specialized bar .have been established. The Government, appearing as amicus curiae, informs the Court that of the 7,544 persons registered to practice before the Patent Office in November 1962, 1,801 were not lawyers and 1,687 others were not lawyers admitted to the bar of the State in which they were practicing. Hence, under the respondent’s view, one-quarter of the present practitioners would be subject to disqualification of to relocation in the District of Columbia and another one-fourth, unless reciprocity provisions for admission to the bar of the State in which they are practicing are available to them, might be forced to relocate, apply for.admission to the State’s bar, or discontinue practice. The disruptive effect which this could have upon Patent Office proceedings cannot be ignored. On the other hand, the State is primarily concerned with protecting its citizens from unskilled and unethical practitioners, interests which, as we have seen, the Patent Office now safeguards by testing- applicants for registration, and by insisting on the maintenance of high standards of integrity. Failure to comply with these standards may result in suspension or disbarment. 35 U. S. C. § 32; 37 CFR § 1.348. So successful have the efforts of the Patent Office been that the Office was able to inform the Hoover Commission that “there is no significant difference between lawyers and nonlawyers either with respect to their ability to handle the work or with respect to their ethical conduct.”
Moreover, since patent practitioners are authorized to practice only before the Patent Office, the State maintains control over the practice of law within its borders except to the limited extent necessary for the accomplishment of the federal objectives.
We have not overlooked respondent’s constitutional arguments, but find them singularly without merit. We have already noted the source of Congress’ power to grant patent rights. It has never been doubted that the establishment of the Patent Office to process patent applications is appropriate and, plainly adapted to the end of securing to inventors the exclusive right to their discoveries, nor can it plausibly be suggested that by taking steps to authorize competent persons to assist in the preparation of patent applications Congress has exceeded the bounds of what is necessary and proper to the accomplishment of this same end. Cf. Goldsmith v. United States Board of Tax Appeals, 270 U. S. 117; United States v. Duell, 172 U. S. 576. Congress having acted within the scope of the powers, “delegated to the United States by the Constitution,” it has not exceeded the limits of the Tenth Amendment despite the concurrent effects of its legislation upon a matter otherwise within the control of the State. “Interference with .the power of the States’ was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitution of .the States.” II Annals of Congress 1897 (remarks of Madison).- The Tenth Amendment “states but a truism that all is retained which has not been surrendered.” United States v. Darby, 312 U. S. 100, 124; Case v. Bowles, 327 U. S. 92, 102. Compare Miller, Inc., v. Arkansas, 352 U. S. 187. The authority of Congress is no less when the state power which it displaces would, otherwise have be'en exercised by the state judiciary rather-than by the state legislature. Cf. Pennsylvania R. Co. v. Public Service Comm’n, 250 U. S. 566. Finally, § 31 contains sufficient standards' to guide the Patent Office in its admissions policy to avoid the criticism that Congress has improperly delegated its powers to the administrative agency. Fahey v. Mallonee, 332 U. S. 245; Currin v. Wallace, 306 U. S. 1, 16-18.
It follows that the order enjoining petitioner must be vacated since it prohibits him from performing tasks which are incident to the preparation and prosecution of patent applications before the Patent Office. The judgment below is vacated and the case is 'remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Petitioner’s right to refer to himself as a “Patent Attorney” has been mooted by his voluntary discontinuance of the use of the term “attorney.”
See Konigsberg v. State Bar of California, 366 U. S. 36, 40-41; Schware v. Board of Bar Examiners of New Mexico, 353 U. S. 232, 239; West Virginia State Bar v. Earley, 144 W. Va. 504, 109 S. E. 2d 420; Gardner v. Conway, 234 Minn. 468, 48 N. W. 2d 788.
Act of July 19, 1952, c. 950, § I, 66 Stat. 795, 35 U. S. C. § 31:
“The Commissioner, subject to the approval of the Secretary of Commerce, may prescribe regulations governing the recognition and conduct of agents, attorneys, or other persons representing applicants or other parties before the Patent Office, and may require them, before being recognized as representatives of applicants or other persons, to show that they are of good moral character and reputation and are possessed of the necessary qualifications to render to applicants or other persons valuable service, advice, and assistance in the presentation or prosecution of their applications or other business before the Office.”
Miller, Inc., v. Arkansas, 352 U. S. 187, 190; First Iowa HydroElectric Coop. v. Federal Power Comm’n, 328 U. S. 152; cf. Castle v. Hayes Freight Lines, Inc., 348 U. S. 61; Cloverleaf Butter Co. v. Patterson, 315 U. S. 148.
Rice v. Santa F.e Elevator Corp., 331 U. S. 218, 235-236; Moran v. New Orleans, 112 U. S. 69; Sinnot v. Davenport, 22 How. 227; Gibbons v. Ogden, 9 Wheat. 1; Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 449 (dissenting opinion); cf. Hill v. Florida, 325 U. S. 538.
13 Fed.. Reg. 9596.
Proposed Revision of Patent Rules § 5.1, 611 O. G. Pat. Off., June 29, 1948, Supp. 8:
“Registration of attorneys and agents. . . . Registration in the Patent Office under the Drovisions of these rules shall not be construed as authorizing persons not members of the bar to practice law or to perform any acts regarded as practicing law in the jurisdiction where performed.”
“I think I know what you mean to say, but you have not said what you mean to say. If you stopped at the end of the first clause there and said that it does not authorize the persons not members of the bar to practice law, you might be closer to being right; but, as you have written it here, you have said that patent attorneys may not do in the states things which it may be necessary for them to do in order to prosecute their claims before the Patent Office.
“In other words, you are giving it to the states to say what a patent attorney may do rather than leaving it up to the Congress and to the laws of the United States.
' “I. may suggest that what patent attorneys do before the Patent Office might be construed as practicing law, were it not for the fact that their particular conduct is permitted by the acts of Congress and under the rules of the Patent Office.
"The states cannot pass laws derogating from the rights of the patent attorneys, as created by Congress and existing under the rules of the Patent Office. I think that the rule, as proposed, makes it possible for the states, or indicated that the Office thinks that the states have the power to circumscribe and limit the rights of patent attorneys who are not lawyers, which rights are created under the laws of Congress, and subject to the rules of the Patent Office rather than to regulation by the individual states.
“I think you would have no power to pass this particular part of your proposed rule.”
Remarks of A. P. Kane, Attorney, Hearing on Proposed Revision of Rules of Practice in Patent Cases, 281-282 (Sept. 30, 1948). See also id., at pp. 319-330.
Act of March 2, 1861, c. 88, §8, 12 Stat. 247; see also Act of July 8, 1870, c. 230, § 19, 16 Stat. 200, as amended, 66 Stat. 793, 35 U. S. C. §.6.
Rules and Directions for Proceedings in the Patent Office, § 127 (Aug. 1, 1869).
Letter from Edward S. Rogers, Hearings before House Committee on Patents on H. R. 5527, 70th Cong., 1st Sess. 84 (1928) ; cf. Hoosier Drill Co. v. Ingels, 15 O. G. Pat. Off. 1013; 2 Robinson,Patents, §431.
“Personal attendance of the applicant at the Patént Office, to obtain a patent, is unnecessary. The business can be done by correspondence, (free of postage) or by power of attorney.” Information to Persons. Having Business to Transact at the Patent Office, 8 (July 1836). In 1854, it was first provided that “[a]ll business with the office should be transacted in writing. . . .” Rules and Directions for Proceedings in the Patent Office,'§ 122 (Feb. 20, 1854). Compare 37 CFR § 1.2.
Roster of Attorneys and Agents Registered to Practice Before the U. S. Patent Offiee (1958); -Names and Addresses of Attorneys Practicing Before the U. S. Patent Office (1883); Testimony of T. E. Robertson, Commissioner of Patents, Hearings before House Committee on' Patents bn H. R. 699, 7.1st Cong., 2d Sess. 12. Commencing in 1848, the Commissioner for many years informed'inventors that “[i]f the services of Patent Agents are desired, able and competent persons engaged in that business can be found at their offices in this city, and in other cities.” Information to Persons Having Business to Transact at the Patent Office, Patent Agents or Attorneys (1848). (Emphasis deleted and added.)
See Berle, Inventions and Their Management, 189-190; Hoar, Patent Tactics and Law (3d ed.), 256-257; Woodling, Inventions and Their Protection (2d ed.), 289-290, 333; Rivise, Preparation and Prosecution of Patent Applications, §42.
See Hearings before House Committee on Patents on H. R. 5527, 70th Cong., 1st Sess. 16-18; 69 Cong. Rec. 6580; Spencer, The United States Patent Law System, 94r-96. Berle, 184-186. Compare H. R. Rep. No. 1622, 68th Cong., 2d Sess. 2-3; H. R. Rep. No. 364, 64th Cong., 1st Sess. 2; Information to Persons Having Business' to Transact at the Patent Office, Patent Agents or Attorneys (1848).
Rules of Practice in the United States Patent Office, § 17 (July 18, 1899). Compare ■§ 17 in the edition of June 18, 1897.
252 O. G. Pat. Off. 967. Compare 37 CFR § 1.345.
Act of February 18,' 1922, c. 58, § 3, 42 Stat. 390. Compare Act of July 8,1870, c. 230, § 19,16 Stat. 200, as amended, 35 U. S. C. §•6, and Act of July 4, 1884, e. 181, § 5, 23 Stat. 101, 5 U. S. C. § 493.
Letter from E. B. Moore, Commissioner of Patents, Hearings before House Committee on Patents on H. R. 23417, No. 1, 62d Cong., 2d Sess. 6-7. See also Hearings before House Committee on Patents on H. R. 210,-67th Cong., 1st Sess. 16; Commissioner of Patents, Annual Report, xii (1908).
The following colloquy regarding an identical bill introduced the session before passage occurred between Congressman Himes and the Commissioner of Patents:
“Mr. Himes. It seems to me that we should know just who the man practicing before the Patent Office happens to be. Must he be a member of the bar or are the requirements the same for the patent attorney who simply goes and gets a patent for his clients as the man that goes and practices before the Patent Office, before the Commissioner of Patents?
“Mr. RobertsoN. The Patent Office can register anyone who shows a degree of proficiency necessary to write specifications, whether or not he is a member of the bar.
‘.'Mr. Himes. He must not be a member of the bar?
. “Mr. RobertsoN. He need not be a member of the bar. That is not as bad as it sounds. Some of our best practitioners are not members of the bar. They are the older line of attorneys. There are some very fine ones who have been practicing before the Patent Office 30 or 40 years who are not members of the bar, but they are honest men, and there are some of the practitioners who are members of the bar who are not honest men. So it is a very difficult thing to reach.” Hearings before House Committee on Patents on H. R. 210; 67th Cong., 1st Sess. 15-16.
See also Hearings before House Committee on Patents on H. R. 5011, 5012, 7010, 66th Cong., 1st Sess. 281.
Commissioner of Patents, Annual Report, vi (1893).
Commissioner of Patents, Annual Report, xiv (1915).
Act of April 27, 1916, c. 89, 39 Stat. 54.
53 Cong: Rec. 6313.
Act of May 9, 1938, 52 Stat. 342; now 66 Stat. 796, 35 U. S. C. §33.
This was the so-called “Cramton bill,” H. R. 699, 71st Cong., 2d Sess.; H. R. 5527, 70th Cong., 1st Sess.; H. R. 5811, 69th Cong., 1st Sess.; H. R. 10735, ,69th Cong., 1st Sess.; H. R. 5790, 68th Cong., 1st Sess.
E. g., 69 Cong. Rec. 6580; Hearings before Senate Committee on Patents on H. R. 5527, 70th Cong., 1st Sess. 4-7, 51; Hearings before House Committee on Patents on H. R. 699, 71st Cong., 2d Sess. 34, 49.
E. g., 69 Cong. Rec. 65.80; S. Rep. No. 628, 71st Cong., 1st Sess. 4; Hearings before Senate Committee on Patents on H. R. 5527, 70th Cong., 1st Sess. 7, 59; Hearings before House Committee on Patents on H. R. 5527, 70th Cong., 1st Sess. 14r-25, 28-33, 56-76, 85-100; Hearings before Senate Committee on Patents on H. R. 699, 71st Cong., 2d Sess. 3, 5,10; Hearings before House Committee oii Patents on H. R. 699, 71st Cong., 2d Sess. 2-5, 41.
Prior to 1938, the Patent Office listed both lawyers and nonlaw-yers on a single register and referred to both as Patent Attorneys. The legislation which was proposed would not have prohibited nonlaw-yers previously registered from continuing to use this appellation. E. g., H. R. Rep. No. 947, 70th Cong., 1st Sess. 4. Although the séveral bills containing this provision failed to gain approval (though passing the House repeatedly), in 1938, the Commissioner, following suggestions made to him during the course of. the Committee hearings, Hearings before House Committee on Patents on H. R. 5811, 69th Cong., 1st Sess. 46; Hearings before House Committee on Patents on H. R. 5527, 70th Cong., 1st Sess. 20, 26-27, established separate registers for lawyers and for nonlawyer agents, 495 O. G. Pat. Off. 715, and has since prohibited agents so registered from representing themselves to be attorneys, solicitors or lawyers. See 37 CFR §§ 1.341, 1.345. The registration of those agents previously enrolled on the single register, of whom petitioner is one, was-not changed.
S. Rep. No. 1209, 70th Cong., 1st Sess. 1.
H. R. Rep. No. 947, 70th Cong., 1st Sess. 4;' S. Rep. No. 626, 71st Cong., 2d Sess. 4; H, R. Rep. No. 728, 71st Cong., 2d Sess. 3.
Statement of E. W. Bradford, Chairman of the Committee on Ethics of the American Patent Law Association, Hearings before House Committee on Patents on H. R. 699, 71st Cong., 2d Sess. 61.
Hearings before House Committee on Patents on H. R. 5527, 70th Cong., 1st Sess. 15.
72 Cong. Rec. 5467.
No changes of substance were intended by. the 1952 revision. S. Rep. No. 1979, 82d Cong., 2d Sess. 4; H. R. Rep. No. 1923, 82d Cong., 2d Sess. 6.
See Committee on Administrative Practice of the Bar Association of the District of Columbia, Report on Admissipn to and. Control Over;- Practice Before Federal Administrative Agencies (1938)-; Survey of the Legal Profession, Standards of Admission for Practice Before Federal Administrative Agencies (1953); House Committee-on Government Operations, Survey arid Study of Administrative Organization, Procedure, and Practice in the Federal Agencies, 85’th Cong., 1st Sess. (Comm. Print); Note, Proposed Restriction of Lay Practice Before Federal Administrative Agencies, 48 Col'. L. Rev. 120.
Attorney General’s Committee on Administrative Procedure, Final Report, 124 (1941). Compare Commission on Orgariization of the Executive Branch of the Government, Report to the Congress on Legal Services and Procedure, 32-35, '40-44 (1955,).
Hearings before House Committee on the Judiciary on Federal Administrative Procedure, 79th Cong., 1st Sess.' (Serial No. 19) 33-34, Legislative History of the Administrative Procedure Act, S. Doc. No. 248, 79th Cong., 2d'Sess. 79-80 (hereinafter referred to as “Leg-' islative History”).
S. Comm. Print on S. 7, 79th Cong., 1st Sess. 10 (June 1945), Legislative History 26.
92 Cong. Rec. 2156, Legislative History 316-317.
H. R. 2657, 80th Cong., 1st Sess. See Curry, Bills in Congress Sponsored by American Bar Association Seek to Prevent Nonlawyers From Practicing Before the Interstate Commerce Commission, 14 I. C. C. Pract. J. 491.
“Credentials for Agents
“Sec. 6. If any agency shall find it necessary in the public interest and in the interest of parties to agency proceedings before it to authorize practice by individuals not subject to section 5 and provides by generally .applicable rule therefor in any case in which the governing statute does not provide only for appearances in person or by attorney or counsel, any such individual may be admitted hereunder to practice as an agent before such agency except in proceedings pursuant to section 7 or 8 of the Administrative Procedure Act or in connection with ány form of compulsory process. ... On application, individuals subject -to this section who have been individually authorized to practice before any agency, have maintained such standing, are actively engaged in practice so permitted, and are so certified by the agency with a specification of the extent to which they have been so qualified to practice and have practiced shall be given credentials enabling them to continue such practice. Ño agency, and nothing in this Act, shall be deemed to permit any person to practice law in any place or render service save the authorized participation in agency proceedings by holders of credentials; and no person shall hold himself out, impliedly or expressly, as otherwise authorized hereunder.”
Chicago Bar Assn. v. Kellogg, 338 Ill. App. 618, 88 N. E. 2d 519 (1949) (Patent Office); Sharp v. Mida’s Research Bureau, 45 N. Y. S. 2d 690 (1943), aff’d, 48 N. Y. S. 2d 799 (1944) (Patent Office); Schroeder v. Wheeler, 126 Cal. App. 367, 14 P. 2d 903 (1932) (Patent Office); People ex rel. Colorado Bar Assn. v. Erbaugh, 42 Colo. 480, 94 P. 349 (1908) (Patent Office) (by implication); In re New York County Lawyers Assn. (In re Bercu), 273 App. Div. 524, 534-535, 78 N. Y. S. 2d 209, 218 (1948), aff’d, 299 N. Y. 728, 87 N. E. 2d 451 (1949) (Treasury and Tax Court) (by implication); Auerbacher v. Wood, 139 N. J. Eq. 599, 604, 53 A. 2d 800, 803 (1947), aff’d, 142 N. J. Eq. 484, 59 A. 2d 863 (1948) (N. L. R. B.); De Pass v. B. Harris Wool Co., 346 Mo. 1038, 144 S. W. 2d 146 (1940) (I. C. C.); Blair v. Motor Carriers Service Bureau, Inc., 40 Pa. D. & C. 413, 426 (1939) (I. C. C.); Bennett v. Goldsmith, 280 N. Y. 529, 19 N. E. 2d 927 (1939) (Immigration Department); Public Service Traffic Bureau, Inc., v. Haworth Marble Co., 40 Ohio App. 255, 178 N. E. 703 (1931) (I. C. C.) (dictum); In re Gibbs, 35 Ariz. 346, 355, 278 P. 371, 374 (1929) (Land Office) (dictum) ; Mulligan v. Smith, 32 Colo. 404, 76 P. 1063 (1904) (Land Office); see also In re Lyon, 301 Mass. 30, 16 N. E. 2d 74 (1938) (bankruptcy); Brooks v. Mandel-Witte Co., 54 P. 2d 992 (C. A. 2d Cir.), cert. denied, 286 U. S. 559 (1932) (Customs Court). Compare Lowell Bar Assn. v. Loeb, 315 Mass. 176, 184-185, 52 N. E. 2d 27, 33-34 (1943) (Treasury and Tax Court).
Normally, the state courts have deemed the authority granted by the federal agency to be closely circumscribed. E. g., Chicago Bar Assn. v. Kellogg, supra; In re Lyon, supra; Public Service Traffic Bureau, Inc., v. Haworth Marble Co., supra.
.In recent years divergence in opinion has developed. Compare Battelle Memorial Inst. v. Green, 133 U. S. P. Q. 49 (Ohio Ct. App. 1962) (Patent Office), and Noble v. Hunt, 95 Ga. App. 804, 99 S. E. 2d 345 (1957) (Treasury and Tax Court), with Agran v. Shapiro, 127 Cal. App. 2d Supp. 807, 273 P. 2d 619 (App. Dept. Super. Ct., 1954) (Treasury); Wisconsin v. Keller, 16 Wis. 2d 377, 114 N. W. 2d 796, now pending on certiorari as No. 429, 1962 Term (I. C. C.); Petition of Kearney, 63 So. 2d 630 (Fla. 1953) (Treasury and Tax Court); cf. Marshall v. New Inventor’s Club, Inc., 69 O. L. Abs. 578, 117 N. E. 2d 737 (C. P. 1953) (Patent Office).
State courts have frequently held practice before state administrative agencies by nonlawyers to constitute the unauthorized practice of law. E. g., People ex rel. Chicago Bar Assn. v. Goodman, 366 Ill. 346, 8 N. E. 2d 941, 111 A. L. R. 1, cert. denied, 302 U. S. 728; Clark v. Austin, 340 Mo. 467, 101 S. W. 2d 977. But compare State ex rel. Reynolds v. Dinger, 14 Wis. 2d 193, 109 N. W. 2d 685; Realty Appraisals Co. v. Astor-Broadway Holding Corp., 5 App. Div. 2d 36, 169 N. Y. S. 2d 121.
Of the 73 patent practitioners in Florida, 62 are not members of the Florida Bar.
Hexter Title & Abstract Co. v. Grievance Committee, 142 Tex. 506, 509, 179 S. W. 2d 946, 948; Lowell Bar Assn. v. Loeb, 315 Mass. 176, 180, 52 N. E. 2d 27, 31. Commission on Organization of the Executive Branch of the Government, Report of the Task Force on Legal Services and Procedure, Part VI, Appendices and Charts, 169 (1955).
Id., 158. The Patent Office noted the qualification that non-lawyers are able „to advertise. Compare Hearings before House Committee on Patents on H. R. 5527, 70th Cong., 1st Sess. 16-19, 71-72, 89, 90.
Because of-the breadth of the injunction issued in this case, we are not called upon to determine what functions are reasonably within the scope of the practice authorized by the Patent Office. The Commissioner has issued no regulations touching upon this point. We note, however, that a practitioner authorized to prepare patent applications must of course render opinions as to the patentability of the inventions brought to him, and that it is entirely reasonable for a practitioner to hold himself out as qualified to perform his specialized work, so long as he does not misrepresent the scope of his license. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
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93
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NEW YORK et al. v. FEDERAL ENERGY REGULATORY COMMISSION et al.
No. 00-568.
Argued October 3, 2001 —
Decided March 4, 2002
Lawrence G. Malone argued the cause and filed briefs for petitioners State of New York et al. in No. 00-568 and a brief for respondents State Public Service Commissions in No. 00-809. With him on the briefs were Jonathan D. Feinberg and Carl F. Patka.
Louis R. Cohen argued the cause and filed briefs for petitioner in No. 00-809 and a brief for respondent Enron Power Marketing, Inc., in No. 00-568. With him on the briefs were Joseph E. Killory, Jr., Jonathan J. Frankel, I. Jay Palansky, Jeffrey D. Watkiss, and Joseph R. Hartsoe. Briefs for respondents under this Court’s Rule 12.6 in support of petitioner in No. 00-809 were filed by James van R. Springer and Steven L. Miller for the Electric Power Supply Association; and by Sara D. Sckotland for the Electricity Consumers Resource Council et al. Briefs for respondents under this Court’s Rule 12.6 in support of petitioners in No. 00-568 were filed by Robert C. McDiarmid, Cynthia S. Bogorad, and Peter J. Hopkins for the Transmission Access Policy Study Group; and by Michael A. Mullett for Citizens Action Coalition of Indiana, Inc.
Deputy Solicitor General Kneedler argued the cause for respondents in both cases. With him on the brief for respondent Federal Energy Regulatory Commission were Acf-ing Solicitor General Underwood, Austin C. Schlick, Cynthia A. Marlette, and Timm L. Abendroth. Charles G. Cole, Alice E. Loughran, Edward H. Comer, and Barbara A. Hin-din filed a brief for the Edison Electric Institute, respondent in both cases.
Together with No. 00-809, Enron Power Marketing, Inc. v. Federal Energy Regulatory Commission et al., also on certiorari to the same court.
Bohdan R. Pankiw and John A. Levin filed a brief for the Pennsylvania Public Utility Commission as amicus curiae urging affirmance.
Briefs of amici curiae were filed for the State of California et al. by Bill Lockyer, Attorney General, Peter Siggins, Chief Deputy Attorney General, Rick Frank, Chief Assistant Attorney General, Morris Beatus, Senior Assistant Attorney General, Gary M. Cohen, and William Julian II; and for Electrical Engineers et al. by Charles J. Cooper.
Justice Stevens
delivered the opinion of the Court.
These cases raise two important questions concerning the jurisdiction of the Federal Energy Regulatory Commission (FERC or Commission) over the transmission of electricity. First, if a public utility “unbundles” — i. e., separates — the cost of transmission from the cost of electrical energy when billing its retail customers, may FERC require the utility to transmit competitors’ electricity over its lines on the same terms that the utility applies to its own energy transmissions? Second, must FERC impose that requirement on utilities that continue to offer only “bundled” retail sales?
In Order No. 888, issued in 1996 with the stated purpose of “Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities,” FERC answered yes to the first question and no to the second. It based its answers on provisions of the Federal Power Act (FPA), as added by §213, 49 Stat. 847, and as amended, 16 U. S. C. §824 et seq., enacted in 1935. Whether or not the 1935 Congress foresaw the dramatic changes in the power industry that have occurred in recent decades, we are persuaded, as was the Court of Appeals, that FERC properly construed its statutory authority.
I
In 1935, when the FPA became law, most electricity was sold by vertically integrated utilities that had constructed their own power plants, transmission lines, and local delivery systems. Although there were some interconnections among utilities, most operated as separate, local monopolies subject to state or local regulation. Their sales were “bundled,” meaning that consumers paid a single charge that included both the cost of the electric energy and the cost of its delivery. Competition among utilities was not prevalent.
Prior to 1935, the States possessed broad authority to regulate public utilities, but this power was limited by our cases holding that the negative impact of the Commerce Clause prohibits state regulation that directly burdens interstate commerce. When confronted with an attempt by Rhode Island to regulate the rates charged by a Rhode Island plant selling electricity to a Massachusetts company, which resold the electricity to the city of Attleboro, Massachusetts, we invalidated the regulation because it imposed a “direct burden upon interstate commerce.” Public Util. Comm’n of R. I. v. Attleboro Steam & Elec. Co., 273 U. S. 83, 89 (1927). Creating what has become known as the “Attleboro gap,” we held that this interstate transaction was not subject to regulation by either Rhode Island or Massachusetts, but only “by the exercise of the power vested in Congress.” Id., at 90.
When it enacted the FPA in 1935, Congress authorized federal regulation of electricity in areas beyond the reach of state power, such as the gap identified in Attleboro, but it also extended federal coverage to some areas that previously had been state regulated, see, e. g., id., at 87-88 (explaining, prior to the FPA’s enactment, that state regulations affecting interstate utility transactions were permissible if they did not directly burden interstate commerce). The FPA charged the Federal Power Commission (FPC), the predecessor of FERC, “to provide effective federal regulation of the expanding business of transmitting and selling electric power in interstate commerce.” Gulf States Util. Co. v. FPC, 411 U. S. 747, 758 (1973). Specifically, in § 201(b) of the FPA, Congress recognized the FPC’s jurisdiction as including “the transmission of electric energy in interstate commerce” and “the sale of electric energy at wholesale in interstate commerce.” 16 U. S. C. § 824(b). Furthermore, §205 of the FPA prohibited, among other things, unreasonable rates and undue discrimination “with respect to any transmission or sale subject to the jurisdiction of the Commission,” 16 U. S. C. §§824d(a)-(b), and §206 gave the FPC the power to correct such unlawful practices, 16 U. S. C. § 824e(a).
Since 1935, and especially beginning in the 1970’s and 1980’s, the number of electricity suppliers has increased dramatically. Technological advances have made it possible to generate electricity efficiently in different ways and in smaller plants. In addition, unlike the local power networks of the past, electricity is now delivered over three major networks, or “grids,” in the continental United States. Two of these grids — the “Eastern Interconnect” and the “Western Interconnect” — are connected to each other. It is only in Hawaii and Alaska and on the “Texas Interconnect”— which covers most of that State — that electricity is distributed entirely within a single State. In the rest of the country, any electricity that enters the grid immediately becomes a part of a vast pool of energy that is constantly moving in interstate commerce. As a result, it is now possible for power companies to transmit electric energy over long distances at a low cost. As FERC has explained, “the nature and magnitude of coordination transactions” have enabled utilities to operate more efficiently by transferring substantial amounts of electricity not only from plant to plant in one area, but also from region to region, as market conditions fluctuate. Order No. 888, at 31,641.
Despite these advances in technology that have increased the number of electricity providers and have made it possible for a “customer in Vermont [to] purchase electricity from an environmentally friendly power producer in California or a cogeneration facility in Oklahoma,” Transmission Access Policy Study Group v. FERC, 225 F. 3d 667, 681 (CADC 2000) (case below), public utilities retain ownership of the transmission lines that must be used by their competitors to deliver electric energy to wholesale and retail customers. The utilities’ control of transmission facilities gives them the power either to refuse to deliver energy produced by competitors or to deliver competitors’ power on terms and conditions less favorable than those they apply to their own transmissions. E. g., Order No. 888, at 31,643-31,644.
Congress has addressed these evolving conditions in the electricity market on two primary occasions since 1935. First, Congress enacted the Public Utility Regulatory Policies Act of 1978 (PURPA), 92 Stat. 3117, 16 U. S. C. §2601 et seq., to promote the development of new generating facilities and to conserve the use of fossil fuels. Because the traditional utilities controlled the transmission lines and were reluctant to purchase power from “nontraditional facilities,” PURPA directed FERC to promulgate rules requiring utilities to purchase electricity from “qualifying cogeneration and small power production facilities.” FERC v. Mississippi, 456 U.S. 742, 751 (1982); see 16 U.S.C. §824a-3(a).
Over a decade later, Congress enacted the Energy Policy Act of 1992 (EPAct), 106 Stat. 2776. This law authorized FERC to order individual utilities to provide transmission services to unaffiliated wholesale generators (i. e., to “wheel” power) on a case-by-case basis. See 16 U. S. C. §§ 824j-824k. Exercising its authority under the EPAct, FERC ordered a utility to “wheel” power for a complaining wholesale competitor 12 times, in 12 separate proceedings. Order No. 888, at 31,646. FERC soon concluded, however, that these individual proceedings were too costly and time consuming to provide an adequate remedy for undue discrimination throughout the market. Ibid.
Thus, in 1995, FERC initiated the rulemaking proceeding that led to the adoption of the order presently under review. FERC proposed a rule that would “require that public utilities owning and/or controlling facilities used for the transmission of electric energy in interstate commerce have on file tariffs providing for nondiscriminatory open-access transmission services.” Notice of Proposed Rule-making, FERC Stats. & Regs., Proposed Regs., 1988-1999, ¶ 32,514, p. 33,047, 60 Fed. Reg. 17662 (hereinafter NPRM). The stated purpose of the proposed rule was “to encourage lower electricity rates by structuring an orderly transition to competitive bulk power markets.” NPRM 33,048. The NPRM stated:
“The key to competitive bulk power markets is opening up transmission services. Transmission is the vital link between sellers and buyers. To achieve the benefits of robust, competitive bulk power markets, all wholesale buyers and sellers must have equal access to the transmission grid. Otherwise, efficient trades cannot take place and ratepayers will bear unnecessary costs. Thus, market power through control of transmission is the single greatest impediment to competition. Unquestionably, this market power is still being used today, or can be used, discriminatorily to block competition.” Id., at 33,049.
Rather than grounding its legal authority in Congress’ more recent electricity legislation, FERC cited §§205-206 of the 1935 FPA — the provisions concerning FERC’s power to remedy unduly discriminatory practices — as providing the authority for its rulemaking. See 16 U. S. C. §§824d-824e.
In 1996, after receiving comments on the NPRM, FERC issued Order No. 888. It found that electric utilities were discriminating in the “bulk power markets,” in violation of § 205 of the FPA, by providing either inferior access to their transmission networks or no access at all to third-party wholesalers of power. Order No. 888, at 31,682-31,684. Invoking its authority under §206, it prescribed a remedy containing three parts that are presently relevant.
First, FERC ordered “functional unbundling” of wholesale generation and transmission services. Id., at 31,654. FERC defined “functional unbundling” as requiring each utility to state separate rates for its wholesale generation, transmission, and ancillary services, and to take transmission of its own wholesale sales and purchases under a single general tariff applicable equally to itself and to others.
Second, FERC imposed a similar open access requirement on unbundled retail transmissions in interstate commerce. Although the NPRM had not envisioned applying the open access requirements to retail transmissions, but rather “would have limited eligibility to wholesale transmission customers,” FERC ultimately concluded that it was “irrelevant to the Commission’s jurisdiction whether the customer receiving the unbundled transmission service in interstate commerce is a wholesale or retail customer.” Id., at 31,689. Thus, “if a public utility voluntarily offers unbundled retail access,” or if a State requires unbundled retail access, “the affected retail customer must obtain its unbundled transmission service under a non-discriminatory transmission tariff on file with the Commission.” Ibid.
Third, FERC rejected a proposal that the open access requirement should apply to “the transmission component of bundled retail sales.” Id., at 31,699. Although FERC noted that “the unbundling of retail transmission and generation . . . would be helpful in achieving comparability,” it concluded that such unbundling was not “necessary” and would raise “difficult jurisdictional issues” that could be “more appropriately considered” in other proceedings. Ibid.
In its analysis of the jurisdictional issues, FERC distinguished between transmissions and sales. It explained:
“[Our statutory jurisdiction] over sales of electric energy extends only to wholesale sales. However, when a retail transaction is broken into two products that are sold separately (perhaps by two different suppliers: an electric energy supplier and a transmission supplier), we believe the jurisdictional lines change. In this situation, the state clearly retains jurisdiction over the sale of power. However, the unbundled transmission service involves only the provision of ‘transmission in interstate commerce’ which, under the FPA, is exclusively within the jurisdiction of the Commission. Therefore, when a bundled retail sale is unbundled and becomes separate transmission and power sales transactions, the resulting transmission transaction falls within the Federal sphere of regulation.” Id., at 31,781.
In 1997, in response to numerous petitions for rehearing and clarification, FERC issued Order No. 888-A, FERC Stats. & Regs., Regs. Preambles, July 1996-Dec. 2001, ¶ 31,048, p. 30,172,62 Fed. Reg. 12274. With respect to various challenges to its jurisdiction, FERC acknowledged that it did not have the “authority to order, sua sponte, open-access transmission services by public utilities,” but explained that § 206 of the FPA explicitly required it to remedy the undue discrimination that it had found. Order No. 888-A, at 30,202; see 16 U. S. C. §824e(a). FERC also rejected the argument that its failure to assert jurisdiction over bundled retail transmissions was inconsistent with its assertion of jurisdiction over unbundled retail transmissions. FERC repeated its explanation that it did not believe that regulation of bundled retail transmissions (i. e., the “functional unbundling” of retail transmissions) “was necessary,” and again stated that such unbundling would raise serious jurisdictional questions. Order No. 888-A, at 30,225. FERC did not, however, state that it had no power to regulate the transmission component of bundled retail sales. Id., at 30,225-30,226. Rather, FERC reiterated that States have jurisdiction over the retail sale of power, and stated that, as a result, “[o]ur assertion of jurisdiction . . . arises only if the [unbundled] retail transmission in interstate commerce by a public utility occurs voluntarily or as a result of a state retail program.” Id., at 30,226.
II
A number of petitions , for review of Order No. 888 were consolidated for hearing in the Court of Appeals for the District of Columbia. After considering a host of objections, the Court of Appeals upheld most provisions of the order. Specifically, it affirmed FERC’s jurisdictional rulings that are at issue in the present cases. 225 F. 3d, at 681.
The Court of Appeals first explained that the open access requirements in the orders — for both retail and wholesale transmissions — were “premised not on individualized findings of discrimination by specific transmission providers, but on FERC’s identification of a fundamental systemic problem in the industry.” Id., at 683. It held that FERC’s factual determinations were reasonable and that §§205 and 206 of the FPA gave the Commission authority to prescribe a mar-ketwide remedy for a marketwide problem. Interpreting Circuit precedent — primarily cases involving the transmission of natural gas, e. g., Associated Gas Distributors v. FERC, 824 F. 2d 981 (CADC 1987) — the Court of Appeals concluded that even though FERC’s general authority to order open access was “limited,” the statute made an exception “where FERC finds undue discrimination.” 225 F. 3d, at 687-688.
In its discussion of “Federal Versus State Jurisdiction over Transmission Services,” id., at 690-696, the Court of Appeals also endorsed FERC’s reasoning. The Court of Appeals first addressed the complaints of the state regulatory commissions that Order No. 888 “went too far” by going beyond the regulation of wholesale transactions and “asserting] jurisdiction over all unbundled retail transmissions.” Id,, at 691,692. The Court of Appeals concluded that the plain language of §201 of the FPA, which this Court has construed broadly, supported FERC’s regulation of transmissions in interstate commerce that were part of unbundled retail sales, as §201 gives FERC jurisdiction over the “transmission of electric energy in interstate commerce.” 16 U. S. C. § 824(b)(1). Even if the FPA were ambiguous, the Court of Appeals explained that, given the technological complexities of the national grids, it would have deferred to the Commission’s interpretation of §201 “as giving it jurisdiction over both wholesale and retail transmissions.” 225 F. 3d, at 694.
The Court of Appeals next addressed the complaints of transmission-dependent producers and wholesalers that Order No. 888 did not “go far enough.” Id., at 692. The Court of Appeals was not persuaded that FERC’s assertion of jurisdiction over unbundled retail transmission required FERC to assert jurisdiction over bundled retail transmissions or to mandate unbundling of retail transmissions. Id., at 694. Noting that the FPA “clearly contemplates state jurisdiction over local distribution facilities and retail sales,” the Court of Appeals held:
“A regulator could reasonably construe transmissions bundled with generation and delivery services and sold to a consumer for a single charge as either transmission services in interstate commerce or as an integral component of a retail sale. Yet FERC has jurisdiction over one, while the states have jurisdiction over the other. FERC’s decision to characterize bundled transmissions as part of retail sales subject to state jurisdiction therefore represents a statutorily permissible policy choice to which we must also defer under Chevron [U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984)].” Id., at 694-695.
Because of the importance of the proceeding, we granted both the petition of the State of New York et al. (collectively New York) questioning FERC’s assertion of jurisdiction over unbundled retail transmissions and the petition of Enron Power Marketing, Inc. (Enron), questioning FERC’s refusal to assert jurisdiction over bundled retail transmissions. 531 U. S. 1189 (2001). We address these two questions separately. At the outset, however, we note that no petitioner questions the validity of the order insofar as it applies to wholesale transactions: The parties dispute only the proper scope of FERC’s jurisdiction over retail transmissions. Furthermore, we are not confronted with any factual issues. Finally, we agree with FERC that transmissions on the interconnected national grids constitute transmissions in interstate commerce. See, e. g., FPC v. Florida Power & Light Co., 404 U. S. 453, 466-467 (1972); n. 5, supra.
Ill
The first question is whether FERC exceeded its jurisdiction by including unbundled retail transmissions within the scope of its open access requirements in Order No. 888. New York argues that FERC overstepped in this regard, and that such transmissions — because they are part of retail transactions — are properly the subject of state regulation. New York insists that the jurisdictional line between the States and FERC falls between the wholesale and retail markets.
As the Court of Appeals explained, however, the landscape of the electric industry has changed since the enactment of the FPA, when the electricity universe was “neatly divided into spheres of retail versus wholesale sales.” 225 F. 3d, at 691. As the Court of Appeals also explained, the plain language of the FPA readily supports FERC’s claim of jurisdiction. Section 201(b) of the FPA states that FERC’s jurisdiction includes “the transmission of electric energy in interstate commerce” and “the sale of electric energy at wholesale in interstate commerce.” 16 U. S. C. § 824(b). The unbundled retail transmissions targeted by FERC are indeed transmissions of “electric energy in interstate commerce,” because of the nature of the national grid. There is no language in the statute limiting FERC’s transmission jurisdiction to the wholesale market, although the statute does limit FERC’s sale jurisdiction to that at wholesale. See ibid.; cf. FPC v. Louisiana Power & Light Co., 406 U. S. 621, 636 (1972) (interpreting similar provisions of the Natural Gas Act, 15 U. S. C. § 717(b), to mean that FPC jurisdiction “applies to interstate 'transportation’ regardless of whether the gas transported is ultimately sold retail or wholesale”).
In the face of this clear statutory language, New York advances three arguments in support of its submission that the statute draws a bright jurisdictional line between wholesale transactions and retail transactions. First, New York contends that the Court of Appeals applied an erroneous standard of review because it ignored the presumption against federal pre-emption of state law; second, New York claims that other statutory language and legislative history shows a congressional intent to safeguard pre-existing state regulation of the delivery of electricity to retail customers; and third, New York argues that FERC jurisdiction over retail transmissions would impede sound energy policy. These arguments are unpersuasive.
The Presumption against Pre-emption
Pre-emption of state law by federal law can raise two quite different legal questions. The Court has most often stated a “presumption against pre-emption” when a controversy concerned not the scope of the Federal Government’s authority to displace state action, but rather whether a given state authority conflicts with, and thus has been displaced by, the existence of Federal Government authority. See, e. g., Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 715 (1985) (citing cases); see also Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996); Cipollone v. Liggett Group, Inc., 505 U. S. 504, 518 (1992). In such a situation, the Court “‘start[s] with the assumption that the historic police powers of the States were not to be superseded . . . unless that was the clear and manifest purpose of Congress.’ ” Hillsborough County, 471 U. S., at 715 (quoting Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977)). These are not such cases, however, because the question presented does not concern the validity of a conflicting state law or regulation.
The other context in which “pre-emption” arises concerns the rule “that a federal agency may pre-empt state law only when and if it is acting within the scope of its congressionally delegated authority[,] . . . [for] an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355, 374 (1986). This is the sort of case we confront here — defining the proper scope of the federal power. Such a case does not involve a “presumption against pre-emption,” as New York argues, but rather requires us to be certain that Congress has conferred authority on the agency. As we have explained, the best way to answer such a question— i. e., whether federal power may be exercised in an area of pre-existing state regulation — “is to examine the nature and scope of the authority granted by Congress to the agency.” Ibid. In other words, we must interpret the statute to determine whether Congress has given FERC the power to act as it has, and we do so without any presumption one way or the other.
As noted above, the text of the FPA gives FERC jurisdiction over the “transmission of electric energy in interstate commerce and ... the sale of electric energy at wholesale in interstate commerce.” 16 U. S. C. § 824(b). The references to “transmission” in commerce and “sale” at wholesale were made part of §201 of the statute when it was enacted in 1935. Subsections (c) and (d) of § 201 explain, respectively, the meaning of the terms “transmission” and “sale of electric energy at wholesale.” This statutory text thus unambiguously authorizes FERC to assert jurisdiction over two separate activities — transmitting and selling. It is true that FERC’s jurisdiction over the sale of power has been specifically confined to the wholesale market. However, FERC’s jurisdiction over electricity transmissions contains no such limitation. Because the FPA authorizes FERC’s jurisdiction over interstate transmissions, without regard to whether the transmissions are sold to a reseller or directly to a consumer, FERC’s exercise of this power is valid.
Legislative History
Attempting to discredit this straightforward analysis of the statutory language, New York calls our attention to numerous statements in the legislative history indicating that the 1935 Congress intended to do no more than close the “Attleboro gap,” by providing for federal regulation of wholesale, interstate electricity transactions that the Court had held to be beyond the reach of state authority in Attleboro, 273 U. S., at 89. To support this argument, and to demonstrate that the 1935 Congress did not intend to supplant any traditionally state-held jurisdiction, New York points to language added to the FPA in the course of the legislative process that evidences a clear intent to preserve state jurisdiction over local facilities. For example, § 201(a) provides that federal regulation is “to extend only to those matters which are not subject to regulation by the States.” 16 U. S. C. § 824(a). And § 201(b) states that FERC has no jurisdiction “over facilities used for the generation of electric energy or over facilities used in local distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy consumed wholly by the transmitter.” 16 U. S. C. § 824(b).
It is clear that the enactment of the FPA in 1935 closed the “Attleboro gap” by authorizing federal regulation of interstate, wholesale sales of electricity — the precise subject matter beyond the jurisdiction of the States in Attleboro. And it is true that the above-quoted language from § 201(a) concerning the States’ reserved powers is consistent with the view that the FPA was no more than a gap-closing statute. It is, however, perfectly clear that the original FPA did a good deal more than close the gap in state power identified in Attleboro. The FPA authorized federal regulation not only of wholesale sales that had been beyond the reach of state power, but also the regulation of wholesale sales that had been previously subject to state regulation. See, e. g., Attleboro, 273 U. S., at 85-86 (noting, prior to the enactment of the FPA, that States could regulate aspects of interstate wholesale sales, as long as such regulation did not directly burden interstate commerce). More importantly, as discussed above, the FPA authorized federal regulation of interstate transmissions as well as of interstate wholesale sales, and such transmissions were not of concern in Attle-boro. Thus, even if Attleboro catalyzed the enactment of the FPA, Attleboro does not define the outer limits of the statute’s coverage.
Furthermore, the portion of § 201(a) cited by New York concerning the preservation of existing state jurisdiction is actually consistent with Order No. 888, because unbundled interstate transmissions of electric energy have never been “subject to regulation by the States,” 16 U. S. C. § 824(a). Indeed, unbundled transmissions have been a recent development. As FERC explained, at the time that the FPA was enacted, transmissions were bundled with the energy itself, and electricity was delivered to both wholesale and retail customers as a complete, bundled package. Order No. 888, at 31,639. Thus, in 1935, there was neither state nor federal regulation of what did not exist.
Moreover, we have described the precise reserved state powers language in § 201(a) as a mere “ ‘policy declaration’ ” that “ ‘cannot nullify a clear and specific grant of jurisdiction, even if the particular grant seems inconsistent with the broadly expressed purpose.’” FPC v. Southern Cal. Edison Co., 376 U. S. 205, 215 (1964) (quoting Connecticut Light & Power Co. v. FPC, 324 U. S. 515, 527 (1945)); see also United States v. Public Util. Comm’n of Cal., 345 U. S. 295, 311 (1953). Because the FPA contains such “a clear and specific grant of jurisdiction” to FERC over interstate transmissions, as discussed above, the prefatory language cited by New York does not undermine FERC’s jurisdiction.
New York is correct to point out that the legislative history is replete with statements describing Congress’ intent to preserve state jurisdiction over local facilities. The senti-. ment expressed in those statements is incorporated in the second sentence of § 201(b) of the FPA, as codified in 16 U. S. C. § 824(b), which provides:
“The Commission shall have jurisdiction over all facilities for such transmission or sale of electric energy, but shall not have jurisdiction, except as specifically provided in this subchapter and subchapter III of this chapter, over facilities used for the generation of electric energy or over facilities used in local distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy consumed wholly by the transmitter.”
Yet, Order No. 888 does not even arguably affect the States’ jurisdiction over three of these subjects: generation facilities, transmissions in intrastate commerce, or transmissions consumed by the transmitter. Order No. 888 does discuss local distribution facilities, and New York argues that, as a result, FERC has improperly invaded the States’ authority “over facilities used in local distribution,” 16 U. S. C. § 824(b). However, FERC has not attempted to control local distribution facilities through Order No. 888. To the contrary, FERC has made clear that it does not have jurisdiction over such facilities, Order No. 888, at 31,969, and has merely set forth a seven-factor test for identifying these facilities, without purporting to regulate them, id., at 31,770-31,771.
New York also correctly states that the legislative history demonstrates Congress’ interest in retaining state jurisdiction over retail sales. But again, FERC has carefully avoided assuming such jurisdiction, noting repeatedly that “the FPA does not give the Commission jurisdiction over sales of electric energy at retail.” Id., at 31,969. Because federal authority has been asserted only over unbundled transmissions, New York retains jurisdiction of the ultimate sale of the energy. And, as discussed below, FERC did not assert jurisdiction over bundled retail transmissions, leaving New York with control over even the transmission component of bundled retail sales.
Our evaluation of the extensive legislative history reviewed in New York’s brief is affected by the importance of the changes in the electricity industry that have occurred since the FPA was enacted in 1935. No party to these cases has presented evidence that Congress foresaw the industry’s transition from one of local, self-sufficient monopolies to one of nationwide competition and electricity transmission. Nor is there evidence that the 1935 Congress foresaw the possibility of unbundling electricity transmissions from sales. More importantly, there is no evidence that if Congress had foreseen the developments to which FERC has responded, Congress would have objected to FERC’s interpretation of the FPA. Whatever persuasive effect legislative history may have in other contexts, here it is not particularly helpful because of the interim developments in the electric industry. Thus, we are left with the statutory text as the clearest guidance. That text unquestionably supports FERC’s jurisdiction to order unbundling of wholesale transactions (which none of the parties before us questions), as well as to regulate the unbundled transmissions of electricity retailers.
Sound Energy Policy
New York argues that FERC jurisdiction over unbundled retail transmission will impede sound energy policy. Specifically, New York cites the States’ interest in overseeing the maintenance of transmission lines and the siting of new lines. It is difficult for us to evaluate the force of these arguments because New York has not separately analyzed the impact of the loss of control over unbundled retail transmissions, as opposed to the loss of control over retail transmissions generally, and FERC has only regulated unbundled transactions. Moreover, FERC has recognized that the States retain significant control over local matters even when retail transmissions are unbundled. See, e. g., Order No. 888, at 31,782, n. 543 (“Among other things, Congress left to the States authority to regulate generation and transmission siting”); id., at 31,782, n. 544 (“This Final Rule will not affect or encroach upon state authority in such traditional areas as the authority over local service issues, including reliability of local service; administration of integrated resource planning and utility buy-side and demand-side decisions, including DSM [demand-side management]; authority over utility generation and resource portfolios; and authority to impose nonbypassable distribution or retail stranded cost charges”). We do note that the Edison Electric Institute, which is a party to these cases, and which represents that its members own approximately 70% of the transmission facilities in the country, does not endorse New York’s objections to Order No. 888. And, regardless of their persuasiveness, the sort of policy arguments forwarded by New York are properly addressed to the Commission or to the Congress, not to this Court. E. g., Chemehuevi Tribe v. FPC, 420 U. S. 395, 423 (1975).
IV
Objecting to FERC’s order from the opposite direction, Enron argues that the FPA gives FERC the power to apply its open access remedy to bundled retail transmissions of electricity, and, given FERC’s findings of undue discrimination, that FERC had a duty to do so. In making this argument, Enron persistently claims that FERC held that it had no jurisdiction to grant the relief that Enron seeks. That assumption is incorrect: FERC chose not to assert such jurisdiction, but it did not hold itself powerless to claim jurisdiction. Indeed, FERC explicitly reserved decision on the jurisdictional issue that Enron claims FERC decided. See Order No. 888, at 31,699 (explaining that Enron’s position raises “numerous difficult jurisdictional issues that we believe are more appropriately considered when the Commission reviews unbundled retail transmission tariffs that may come before us in the context of a state retail wheeling program”). Absent Enron’s flawed assumption, FERC’s ruling is clearly acceptable.
As noted above, in both Order No. 888 and rehearing Order No. 888-A, FERC gave two reasons for refusing to extend its open access remedy to bundled retail transmissions. First, FERC explained that such relief was not “necessary.” Order No. 888, at 31,699; see also Order No. 888-A, at 30,225. Second, FERC noted that the regulation of bundled retail transmissions “raises numerous difficult jurisdictional issues” that did not need to be resolved in the present context. Order No. 888, at 31,699; see also Order No. 888-A, at 30,225-30,226. Both of these reasons provide valid support for FERC’s decision not to regulate bundled retail transmissions.
First, with respect to FERC’s determination that it was not “necessary” to include bundled retail transmissions in its remedy, it must be kept in mind exactly what it was that FERC sought to remedy in the first place: a problem with the wholesale power market. FERC’s findings, as Enron itself recognizes, concerned electric utilities’ use of their market power to “‘deny their wholesale customers access to competitively priced electric generation,’” thereby “‘denying] consumers the substantial benefits of lower electricity prices.’ ” Brief for Petitioner in No. 00-809, pp. 12-13 (quoting NPRM 33,052) (emphasis added). The title of Order No. 888 confirms FERC’s focus: “Promoting Wholesale Competition Through Open Access Non-Biscriminatory Transmission Services . . . .” Order No. 888, at 31,632 (emphasis added). Indeed, FERC has, from the outset, identified its goal as “facilitat[ing] competitive wholesale electric power markets.” NPRM 33,049 (emphasis added).
To remedy the wholesale discrimination it found, FERC chose to regulate all wholesale transmissions. It also regulated unbundled retail transmissions, as was within its power to do. See Part III, supra. However, merely because FERC believed that those steps were appropriate to remedy discrimination in the wholesale electricity market does not, as Enron alleges, lead to the conclusion that the regulation of bundled retail transmissions was “necessary” as well. Because FERC determined that the remedy it ordered constituted a sufficient response to the problems FERC had identified in the wholesale market, FERC had no § 206 obligation to regulate bundled retail transmissions or to order universal unbundling.
Of course, it may be true that FERC’s findings concerning discrimination in the wholesale electricity market suggest that such discrimination exists in the retail electricity market as well, as Enron alleges. Were FERC to investigate this alleged discrimination and make findings concerning undue discrimination in the retail electricity market, § 206 of the FPA would require FERC to provide a remedy for that discrimination. See 16 U. S. C. § 824e(a) (upon a finding of undue discrimination, “the Commission shall determine the just and reasonable . . . regulation, practice, or contract . . . and shall fix the same by order”). And such a remedy could very well involve FERC’s decision to regulate bundled retail transmissions — Enron’s desired outcome. However, because the scope of the order presently under review did not concern discrimination in the retail market, Enron is wrong to argue that §206 requires FERC to provide a full array of retail-market remedies.
Second, we can agree with FERC’s conclusion that Enron’s desired remedy “raises numerous difficult jurisdictional issues,” Order No. 888, at 31,699, without deciding whether Enron’s ultimate position on those issues is correct. The issues raised by New York concerning FERC’s jurisdiction over unbundled retail transmissions are themselves serious. See Part III, supra. It is obvious that a federal order claiming jurisdiction over all retail transmissions would have even greater implications for the States’ regulation of retail sales — a state regulatory power recognized by the same statutory provision that authorizes FERC’s transmission jurisdiction. See 16 U. S. C. § 824(b) (giving FERC jurisdiction over “transmission of electric energy,”- but recognizing state jurisdiction over “any ... sale of electric energy” other than “sale of electric energy at wholesale”). But even if we assume, for present purposes, that Enron is correct in its claim that the FPA gives FERC the authority to regulate the transmission component of a bundled retail sale, we nevertheless conclude that the agency had discretion to decline to assert such jurisdiction in this proceeding in part because of the complicated nature of the jurisdictional issues. Like the Court of Appeals, we are satisfied that FERC’s choice not to assert jurisdiction over bundled retail transmissions in a rulemaking proceeding focusing on the wholesale market “represents a statutorily permissible policy choice.” 225 F.3d, at 694-695.
Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
FERC Stats. & Regs., Regs. Preambles, Jan. 1991-June 1996, ¶ 31,036, p. 31,632, 61 Fed. Reg. 21540 (1996). Order No. 888 also deals with the recovery of “stranded costs” by utilities, but this aspect of the order is not before us.
For example, in cases involving the interstate transmission of natural gas, we held that a State could regulate direct sales to consumers even when the gas was drawn from interstate mains, Pennsylvania Gas Co. v. Public Serv. Comm’n of N. Y. 252 U. S. 23 (1920); Public Util. Comm’n of Kan. v. Landon, 249 U. S. 236 (1919), but that a State could not regulate the rate at which gas from out-of-state producers was sold to independent distributing companies for resale to local consumers, Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U. S. 298, 309 (1924).
The FPA was enacted as Title II of the Public Utility Act of 1935, 49 Stat. 847. Title I of the Public Utility Act — not at issue here — regulated financial practices of interstate holding companies that controlled a large number of public utilities.
In Order No. 888, FERC noted that the optimum size of electric generation plants has shifted from the larger, 500 megawatt plants (with 10-year lead time) of the past to the smaller, 50-to-150 megawatt plants (with 1-year lead time) of the present. These smaller plants can produce energy at a cost of 3-to-5 cents per kilowatt-hour, as opposed to the older plants’ production cost of 4-to-15 cents per kilowatt-hour. Order No. 888, at 31,641.
See Brief for Respondent FERC 4-5. Over the years, FERC has described the interconnected grids in a number of proceedings. For example, in 1967, the FPC considered whether Florida Power & Light Co. (FPL) — a utility attached to what was then the regional grid for the southeastern United States — transmitted energy in interstate commerce as a result of that attachment. The FPC concluded that FPL’s transmissions were in interstate commerce: “[S]ince electric energy can be delivered virtually instantaneously when needed on a system at a speed of 186,000 miles per second, such energy can be and is transmitted to FPL when needed from out-of-state generators, and in turn can be and is transmitted from FPL to help meet out-of-state demands; . . . there is a cause and effect relationship in electric energy occurring throughout every generator and point on the FPL, Corp, Georgia, and Southern systems which constitutes interstate transmission of electric energy by, to, and from FPL.” In re Florida Power & Light Co., 37 F. P. C. 544, 549 (1967). This Court found the FPC’s findings sufficient to establish the FPC’s jurisdiction. FPC v. Florida Power & Light Co., 404 U. S. 453, 469 (1972).
As amici explain in less technical terms, “[ejnergy flowing onto a power network or grid energizes the entire grid, and consumers then draw undifferentiated energy from that grid.” Brief for Electrical Engineers et al. as Amici Curiae 2. As a result, explain amici, any activity on the interstate grid affects the rest of the grid. Ibid. Amici dispute the States’ contentions that electricity functions “the way water flows through a pipe or blood cells flow through a vein” and “can be controlled, directed and traced” as these substances can be, calling such metaphors “inaccurate and highly misleading.” Id., at 2, 5.
In addition to policing utilities’ anticompetitive behavior through the various statutory provisions that explicitly address the electric industry, discussed in more detail below, the Government has also used the antitrust laws to this end. For example, in Otter Tail Power Co. v. United States, 410 U. S. 366 (1973), the Court permitted the Government to seek antitrust remedies against a utility company which, among other things, refused to sell power at wholesale to some municipalities and refused to transfer competitors’ power over its lines. Id., at 368. The Court concluded that the FPA’s existence did not preclude the applicability of the antitrust laws. Id., at 372.
Later in the NPRM, FERC explained that § 206 of the FPA authorizes FERC to remedy unduly discriminatory practices, and found: “that utilities owning or controlling transmission facilities possess substantial market power; that, as profit maximizing firms, they have and will continue to exercise that market power in order to maintain and increase market share, and will thus deny their wholesale customers access to competitively priced electric generation; and that these unduly discriminatory practices will deny consumers the substantial benefits of lower electricity prices." NPRM 33,052.
While it concluded that “the rates, terms, and conditions of all unbundled transmission service” were subject to its jurisdiction, FERC stated that it would “give deference to state recommendations” regarding the regulation of retail transmissions “when state recommendations are consistent with our open access policies.” Order No. 888, at 31,689.
FERC also explained that it did not assert “jurisdiction to order retail transmission directly to an ultimate consumer,” id., at 31,781, and that States had “authority over the service of delivering electric energy to end users. . . . State regulation of most power production and virtually all distribution and consumption of electric energy is clearly distinguishable from this Commission’s responsibility to ensure open and nondiscriminatory interstate transmission service. Nothing adopted by the Commission today, including its interpretation of its authority over retail transmission or how the separate distribution and transmission functions and assets are discerned when retail service is unbundled, is inconsistent with traditional state regulatory authority in this area.” Id., at 81,782-31,783.
With respect to distinguishing “Commission-jurisdictional facilities used for transmission in interstate commerce” from “state-jurisdictional local distribution facilities,” id., at 31,783, FERC identified seven relevant factors, id., at 31,771,31,783-31,784. Recognizing the state interest in maintaining control of local distribution facilities, FERC further explained that, “in instances of unbundled retail wheeling that occurs as a result of a state retail access program, we will defer to recommendations by state regulatory authorities concerning where to draw the jurisdictional line under the Commission’s technical test for local distribution facilities____”
Id., at 31,783-31,785.
See FPC v. Florida Power & Light Co., 404 U. S. 453 (1972); Jersey Central Power & Light Co. v. FPC, 319 U. S. 61 (1943).
This reference is found twice in §201 of the FPA. Section 201(a), as codified in 16 U. S. C. § 824(a), states in full: “It is declared that the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation to the extent provided in this subchapter and subchapter III of this chapter and of that part of such business which consists of the transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States.” (Emphasis added.)
Section 201(b)(1), as codified in 16 U. S. C. § 824(b)(1), states in full: “The provisions of this subchapter shail apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce, but except as provided in paragraph (2) shall not apply to any other sale of electric energy or 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. The Commission shall have jurisdiction over all facilities for such transmission or sale of electric energy, but shall not have jurisdiction, except as specifically provided in this subchapter and subchapter III of this chapter, over facilities used for the generation of electric energy or over facilities used in local distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy consumed wholly by the transmitter.” (Emphasis added.)
Section 201(c) of the FPA, as codified in 16 U. S. C. § 824(c), explains that “[f]or the purpose of this subchapter, electric energy shall be held to be transmitted in interstate commerce if transmitted from a State and consumed at any point outside thereof; but only insofar as such transmission takes place within the United States.” Finally, §201(d), as codified in 16 U. S. C. § 824(d), states that the “term ‘sale of electric energy at wholesale’ when used in this subchapter, means a sale of electric energy to any person for resale.”
FERC recognized this point in reaching its jurisdictional conclusion: “Rather than claiming ‘new’ jurisdiction, the Commission is applying the same statutory framework to a business environment in which .. . retail sales and transmission service are provided in separate transactions. . . . Because these types of products and transactions were not prevalent in the past, the jurisdictional issue before us did not arise and ... the Commission cannot be viewed as ‘disturbing’ the jurisdiction of state regulators prior to and after the Attleboro case.” Order No. 888-A, at 30,339-30,340.
See, e. g., Brief for Petitioner in No. 00-809, p. 12 (“FERC . . . held itself powerless to address the vast majority of the problem”); id,, at 14 (“FERC determined, however, that it did not have authority to extend its functional unbundling remedy to transmissions for bundled retail sales”); id., at 18 (“FERC’s decision that it did not have jurisdiction to apply [an open access transmission tariff] to transmissions for bundled retail sales was contrary to law”); id., at 20 (“[FERC found] no jurisdiction when the cost of the transmission is bundled with the cost of power at retail”).
Surprisingly, FERC seemed to agree with Enron’s characterization of its holding at some places in its own brief. E. g., Brief for Respondent FERC 44-45 (“The Commission reasonably concluded that Congress has not authorized federal regulation of the transmission component of bundled retail sales of electric energy” (emphasis added)). Yet, FERC’s brief also stated more accurately that FERC had decided not to assert jurisdiction, rather than concluded that it lacked the power to do so. E. g., id., at 15 (“[FERC] was not asserting jurisdiction to order utilities to unbundle their retail services . ..”); id., at 49 (citing “the Commission’s reasonable decision not to override the States’ historical regulation of transmission that is bundled with a retail sale of energy”).
Indeed, given FERC’s acknowledgment “that recovery of legitimate stranded costs is critical to the successful transition of the electric utility industry from a tightly regulated, cost-of-service utility industry to an open access, competitively priced power industry,” NPRM 33,052, it was appropriate for FERC to confine the scope of its remedy to what was truly “necessary”: the broader the remedy, the more complicated FERC's already challenging goal of permitting utilities to recover stranded costs. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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43
] |
ATLANTIC REFINING CO. et al. v. PUBLIC SERVICE COMMISSION OF NEW YORK et al.
No. 518.
Argued May 20-21, 1959.
Decided June 22, 1959.
■ David T. Searls argued the cause for petitioners in No. 518. With him on a brief for petitioners were Roy W. Johns, Charles B. Ellard and Bernard A. Foster, Jr.- for Atlantic Refining Co., Gene M. Woodfin for Continental Oil Co., Gentry Lee arid Bernard A. Foster, Jr. for Cities Service Production Co., Robert O. Koch and Gene M. Woodfin for Tidewater Oil Co.
Harry S. Littman argued the cause for petitioner in No. 536. ' With him on the brief were William C. Braden,' Jr.- and Jack Werner.
Kent H. Brown argued the causes for the Public Service Commission of the State of New York, respondent. With him on the brief was George H. Kenny.
Edward S. Kirby argued the cause for the Public Service Electric & Gas Co., respondent. ■ With him on a joint brief for that Company and the Long Island Lighting Co., respondents, were David K. Kadane and Bertram D. Moll. ..
Willard W. Gatchell, Howard E. Wahrenbrock and William W. Boss filed a brief for the Federal Power Commission as amicus curiae.
Together with No. 536, Tennessee Gas Transmission Co. v. Public Service Commission of New York et al., also on certiorari to the same Court.
Mr. Justice Clark
delivered the opinion of the Court.
This proceeding tests the jurisdiction, as well as the discretion, of the Federal Power Commission in the certificating of the sale of natural gas under § 7 (e) of the Natural Gas Act of 1938, 52 Stat. 821, 56 Stat. 84, as amended, 15 U. S. C. § 717 et seq. . The Commission has issued a certificate of public convenience and necessity to petitioners, producers of natural gas, to sell to petitioner Tennessee Gas Transmission Co. 1.67 trillion cubic feet of natural gas at an initial price of 22.4 cents per MCF, including a tax of 1 cent per MCF. Continental Oil Co., 17 F. P. C. 880. In the same proceeding and on the same evidence it had twice refused to issue such an unconditional certificate because of insufficient evidence or testimony “on which to-base a finding that the public convenience and necessity requires the sale of these volumes of gas at the particular rate level here proposed.” On the second occasion it proposed to petitioners that the certificates be conditioned upon an initial price of 18 cents per MCF (including the 1-cent tax), to' be increased to 22.4 cents per MCF (including "the I-cent tax) after the first 24-hour delivery period, the latter rate to be subjected to the “just and reasonable” provisions of § 4 of the Act, 15 U. S. C. § 717c. The petitioners refused this proposal, and Tennessee advised the Commission that unless the certificates were issued without such'conditions, CATCO would not dedicate’its gas to the interstate market. Upon'rehearing, after argument but without additional evidence, the Commission issued the certificates declaring “important as is the issue of price, that as far as the public is concerned, the precise charge . that is made initially is less important than the assurance of this great supply of gas” for interstate markets. 17 F. P. C., at 881.
The respondents, other than the Public Service Commission of the State of New York, are public utilities in New York and New Jersey. They buy gas from petitioner Tennessee for distribution in those States. They’ and the New York Commission oppose the issuance of the certificates on the ground that their issuance will.increase the price of gas to consumers in those States, of whom there are over a million, using Tennessee’s gas. Upon the issuance of the certificates the respondents filed petitions for review with the Court of Appeals. It held that “Congress has not given thé Commission power to inquire into the issue of public convenience and necessity where, as here, the applicant circumscribes the scope of that inquiry by attaching a condition to its application requiring the Commission to forego the consideration of an element which may be necessary in the formulation of its judgment.” Public Service Comm’n of N. Y. v. Federal Power Comm’n, 257 F. 2d 717, 723. Concluding that'the Commission had no jurisdiction to conduct such “a limited inquiry,!’ ibid., it vacated the order granting the certificates and remanded the case to the Commission. The importance in the administration of the Act of the questions thus posed required the granting of certiorari, 358 U. S. 926 (1959). We have concluded that the Court of Appeals was in error in deciding that the Commission had no jurisdiction. However, for reasons hereafter developed we hold that the order of the Commission in granting the certificates was in error and we, therefore, affirm the judgment of the Court of Appeals.
The natural gas involved here is of a Miocene sand located below seabed out in the Gulf of Mexico some 15 to 25 miles offshore from Cameron and Vermilion Parishes, Louisiana. The petitioners in No. 518’ are each' independent natural gas producers. They jointly own oil and gas leases (25% to each company) which they obtained from Louisiana covering large acreages of the Continental Shelf off the Louisiana coast. Jurisdiction over the Continental Shelf is claimed by the United States and the question is now in litigation. The .Congress has continued existing leases in effect pending the outcome of the controversy over the title. 67 Stat. 462, 43 U. S. C. (Supp. I, 1954) §§ 1331-1343. The four companies’ joint venture has resulted in the .discovery of huge fields of natural gas and they have dedicated some 1.75 trillion cubic feet of gas from 95,000 acres of their leases to the petitioner Tennessee Gas Transmission Company, a natural gas company subject to the jurisdiction of the Commission. The latter is the petitioner in No. 536 which has been consolidated with No. 518.
The four contracts dedicating the gas to Tennessee run from each of the petitioner producers. The contracts call for an initial price of 22.4 cents per MCF for the gas, including 1-cent tax, with escalator clauses calling for periodic increases in specific amounts. In addition, they provide for Tennessee to receive the gas at platforms on the well sites out some 15 to 25 miles in- the Gulf. This requires it to build approximately 107 miles of pipeline from its nearest existing pipeline point to the offshore platforms at wellhead. The estimated cost was $16,315,412. It further appears that the necessity for the certificates was based on an application of Tennessee, Docket G-11107, in which Tennessee requested certification to enlarge and extend its facilities.. This program included the building of a pipeline from southeast Louisiana to Portland, Tennessee, which would carry a large proportion of the gas from these leases. Its cost was estimated at $85,000,000. In addition the contracts provide that Tennessee give free carriage from .the wells to the shore of all condensate or distillate in the gas for the account of producers who have the option to separate it from the gas at shore stations. We need not discuss the contract provisions more minutely, though respondents do claim that other requirements place a greater burden on Tennessee and in practical effect increase the stated price of the gas to it.
The Presiding Examiner on March 29, 1957, found that the sales were required by the public convenience and necessity. Continental Oil Co., 17 F. P. C. 563. While he found that the proposed price was higher than any price Tennessee was then paying, he pointed to other prices currently paid for onshore sales “for smaller reserves and smaller future potentials.” Id., at 571. The average weighted cost of gas to Tennessee he found would be increased, if the contract price was certificated, by .97 cent per MCF. However, he said that no showing had been made that this would lead to an increase in Tennessee’s rates to jurisdictional customers or result in an increase in the price governing its other purchases. He refused to condition the certificates on the acceptance of a lower price by the parties on the ground that no “showing of imprudence or of abuse of discretion by management,” ibid., had been made that indicated the proposed price could not be accepted temporarily as consistent with the. public convenience and necessity, pending review in a §. 5 (a) proceeding. However, he did condition his recommendation on the approval of Tennessee’s application in Docket G-11107 above mentioned.
The Commission, as we have indicated, took three strikes at the recommendations of the Examiner. On April 22 it reversed his-finding on public convenience and necessity because the evidence was insufficient as to price. It said:
“The importance of this issue in certificating this sale cannot easily be overemphasized. This is the largest reserve ever committed to one sale. This is the first sale from the newly developed .offshore fields from which large proportions of future gas supplies will be taken. This is the highest price level at which the sale of gas to Tennessee; Gas has been proposed.
“These factors make it abundantly evident that, in the public interest, this crucial sale should not be permanently certificated unless the rate level has been-shown to be in the public interest.” Id., at 575.
The Commission granted petitioners temporary certificates and remanded the proceeding to the Examiner “to determine at what rates the public convenience and necessity requires these sales” of natural gas to Tennessee under a permanent certificate. Id., at 576. The producers immediately moved for modification,- asserting that they could not present sufficient evidence “within any reasonable period in the. future” to meet the necessities of the remand and, further, could not “afford to commence, construction until at least the initial rate [question] is resolved.” The Commission on May 20, however, reiterated its belief that “the record does not contain sufficient evidence on which to base a finding that the public convenience and necessity requires the sale of the gas at that particular rate level.” 17 F. P. C. 732, 733-734. In an effort to ameliorate the situation represented by the producers, the Commission did grant the certificates but conditioned them upon the producers’, acceptance of an initial price of 17 cents per MCF (plus the 1-cent tax), which was the highest price theretofore paid by Tennessee in the Southwest. . It also agreed "that one day after the commencement of deliveries of gas the 17-cent price would be escalated to 21.4 cents (plusi.l cent for taxes), the increase to be collected under bond, subject to proof and refund under , the provisions of § 4 of the Act. This time Tennessee sought rehearing advising the Commission that the producers, would not accept the 17-cent initial price order of May 20 and that “the contracts will be terminated” with the consequent “loss of natural gas supplies” required for Tennessee’s customers. The Commission, after oral argument, did- not withdraw its previous findings in the matter but predicated its third order on “the primary consideration that the public served through the Tennessee Gas system is greatly in need of increased supplies of natural gas. ¡ . . In view of these circumstances and the fact that the record does not show that the 21.4-cent [plus 1 cent for taxes] rate is necessarily excessivej we agree with the presiding examiner that this certificate proceeding . . . should not assume the character of a rate proceeding under Section 5 (a).” 17 F. P. C. 880, 881. Asserting that it was of the opinion that it would be able “to adequately protect the public interest with respect to the matter of price,” ibid., it ordered the certificates issued and directed that since the price “is higher than Tennessee Gas is paying under any other contract, it should be subject to prompt investigation under Section- 5 (a) as to its reasonableness.” Id., at 882.
We note that the Commission did not seek certiorari here but has filed a brief amicus curiae. It does not urge reversal of the judgment but attacks the ground upon which the Court of Appeals bottomed its-remand, namely, lack of Commission jurisdiction to consider the limited proposal of petitioners. The Commission’s brief suggests that the Court not reach the issue tendered by petitioners, i. e., must the Commission, in a § 7 proceeding, decide whether the pro'poséd initial rate is just and reasonable? Instead, the Commission says, if the judgment must be affirmed it would be better to base the affirmance on the ground that its order “was not supported by sufficient evidence, and hénce constituted an abuse of discretion in. the circumstances of the particular case . . . .” Brief for the Federal Power Commission, p. .31. Petitioners oppose such a disposition, contending the evidence was quite substantial.
I. Jurisdiction of the Commission.
The Court of Appeals thought that the Commission had no jurisdiction to consider petitioners’ proposal because it was limited to a firm price agreed upon by the., parties applicant. Their refusal to accept certification at a lower price, even to the extent of canceling their, contracts and withholding the gas from interstate commerce, the court held, resulted in the Commission’s losing jurisdiction.- We do not believe that this follows. No sales, intrastate or interstate, of gas had ever been made from the leases involved here. The contracts under which the petitioners proposed to sell the gas in the interstate market were all conditioned on the issuance of certificates of phblic convenience and necessity. A failure by either party to secure such • certificates rendered the contracts subject to termination. Certainly the filing of the application for a certificate did not constitute a dedication to the interstate market of the gas recoverable under these leases. Nor is there doubt that the producers were at liberty to refuse conditional certificates proposed by the Commission’s second order. While the refusal might have been couched in more diplomatic language, it had no effect on the Commission’s power to act on the rehearing requested. Even, though the Commission did march up the hill only to march down again upon reaching the summit we cannot say that this about-face deprived, it of jurisdiction. We find nothing illegal' in- the petitioners’ rejection of the alternative price proposed by the Commission and their standing firm on their own. •
II.'The Validity of the Order:
The purpose of the Natural Gas Act was- to underwrite just and reasonable rates to the. consumers of natural gas. Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591 (1944). As the.original § 7 (c) provided, it Was “the intention of Congress; that natural gas shall be sold in interstate commerce for resale for, ultimate public consumption for domestic, commercial, industrial, or any other use at the lowest possible reasonable rate consistent with the maintenance of adequate service in the public interest.” 52 Stat. 825. The Act was so framed as to . afford consumers a complete, permanent and effective bond of protection from excessive rates and charges. The heart of the Act is found in those provisions requiring initially that any “proposed servicé, sale., operation, construction,. extension, or acquisition . . . will be required by the present or future public convenience and necessity,” § 7 (e), 15 U. S. C. § 717f (e), and that all rates and charges “made, demanded, or received” shall be “just and -reasonable,” § 4, 15 U. S. C. § 717c. . The Act prohibits such movements unless and until the Commission issues a certificate of public convenience and necessity therefor, § 7 (c), 15 U. S. C. § 717f (c). Section 7 (e) vests in the Commission control over the conditions under which gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval. The gas operator, although to this extent a captive subject to the jurisdiction of the Commission, is not without remedy to protect himself. He may, unless otherwise bound by contract, United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332 (1956), file new rate schedules with the Commission. This rate becomes effective upon its filing, subject to .the 5-month suspension provision of § 4 and the posting of a bond, where required. This not only gives the natural gas company opportunity to increase its rates where justified but likewise guarantees that the consumer may recover refunds for moneys paid under excessive increases. The overriding intent of the Congress to give full protective coverage to the consumer as to price is further emphasized in § 5 of the Act, 15 U. S. C. § 717d, which authorizes the Commission sua sponte, or otherwise, to institute an investigation into existing rates and charges and to fix them at a just and reasonable level. Under this section, however) the rate found by the Commission to be just and reasonable becomes effective prospectively only. Gas purchasers, therefore, have no protection from excessive charges collected during the pendency of a § 5 proceeding.
In view of this framework in which the Commission is authorized and directed to act, the initial certificating of a proposal under § 7 (e) of the Act as being required, by the public convenience and necessity becomes crucial. This is true because the delay incident to determination in § 5 proceedings through which initial certificated rates are reviewable appears nigh interminable. Although Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, was decided in 1954, cases instituted under § 5 are still in the investigative stage. This long delay, without the protection of refund, as is possible in a § 4 proceeding, would provide a windfall for the natural gas company with a consequent squall for the consumers. This the Congress did not intend. Moreover, the fact that the Commission was not given the power to suspend initial rates under. § 7 makes it the more important, as the Commission, itself says; that “this crucial sale should not be permanently certificated unless the rate level has been shown to-, be in the public interest.” 17 F. P. C. 563, 575.
This is especially true where, as here, the initial price will set a pattern in an area where enormous reserves of gas appear to be present. We note that in petitioners’ proof a map of the Continental Shelf area off of the coast of Louisiana shows that the leases here involved cover but 17 out of a blocked-out area covering some 900 blocks of 5,000 acres each. The potential of this vast acreage, in light of discoveries already' made as shown by the record, is stupendous. The Commission has found that the transaction here covers the largest reserve "ever committed to interstate commerce in a single sale. Indications are that it is but a puff in comparison to the enormous potentials present under the seabed of the- Gulf. The price certificated will in effect become the floor for future contracts in the area. This has been proven by conditions in southern Louisiána where prices have now vaulted from 17 cents to over 23 cents per MCF. New price plateaus will thus be created as new contracts are made and unless controlled will result in “exploitation” at the expense of the consumer, who eventually pays for the increases in his monthly bill.
It is true that the Act does not require a determination of just and reasonable rates in a § 7 proceeding as it does in one under- either § 4 or § 5. Nor 'do we. hold that a “just and reasonable” rate hearing is a prerequisite to the issuance of producer certificates. "What we do say is that the inordinate delay presently existing in the processing of § 5 proceedings requires a most careful scrutiny and responsible reaction to initial price proposals of producers under § 7. Their proposals must be supported by evidence showing their necessity to “the present or future public convenience and necessity” before permanent certificates are issued. This is not to say that rates are the only factor bearing on the public convenience and necessity, for § 7 (e) requires the Commission to evaluate all factors bearing on the public interest. The fact that prices have leaped from one plateau to the higher levels of another, as is indicated here,' does make price a consideration of primé importance. This is the more important during this formative period when the ground rules of producer regulation are being evolved. Where the application on its face or on presentation of evidence signals the existence of a situation that probably would not be in the public interest, ■ a permanent certificate should not be issued.
There is, of course, available in such a situation, a method by which the applicant and the Commission can arrive at a rate that is in keeping with the public convenience and necessity. The Congress, in § 7 (e), has authorized the Commission to. condition certificates in such manner as the public convenience and necessity may require. Where the proposed price is not in keeping with the public interest because it is out of line or because its approval might result in a triggering of general price rises or an increase in the applicant’s existing rates by reason of “favored nation” clauses or otherwise, the Commission in the exercise of its discretion might attach such conditions as it believes necessary.
This, is not an encroachment upon the initial rate-making privileges allowed natural gas companies under the' Act, United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, but merely the exercise of that duty imposed on the Commission to protect the public interest in determining whether the issuance of the certificate is required by the public convenience and necessity, which is the Act’s standard in § 7 applications. In granting such conditional certificates, • the Commission does not determine initial prices nor does it overturn those agreed upon by the parties. Rather, it so conditions the certificate that the consuming public may be protected while the justness and reasonableness- of the price fixed by the parties is being determined under other sections of the Act. Section 7 procedures in such situations thus act to hold the line awaiting adjudication of a just and reasonable rate. Thus the purpose of the Congress “to create a comprehensive and ” effective regulatory scheme,” Panhandle Eastern Pipe Line Co. v. Public Service Comm’n of Indiana, 332 U. S. 507, 520 (1947), is given full recognition. And § 7 is given onfy that scope necessary for “a single statutory scheme ^under which all rates are established initially by the natural gas companies, by contract or otherwise, and all rates are subject to being modified by the Commission . ...” United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, at 341. On the other hand, if unconditional certificates are issued where the rate is hot clearly shown to be required by the public convenience an'd necessity, relief is limited to § 5 proceedings, and, as we. have indicated, full protection of the public interest is not afforded.
Our examination of the record here indicates that there was insufficient evidence to support a finding of public convenience and necessity prerequisite to the issuance of the permanent certificates. The witnesses tendered developed little more information than was included in the printed contracts. As the proposed contract price was. higher than any paid by Tennessee, including offshore production in the West Delta area of Louisiana, it is surprising that evidence, if available, was not introduced as to the relative costs of production in the two submerged areas. Moreover the record indicates that the proposed price was some 70% higher than the weighted average cost of gas to Tennessee; still no effort was made to give the “reason why.” -More damaging, was the evidence that this price was greatly in excess of that which Tennessee pays, from any lease in southern Louisiana. Likewise the ■$16,000,000 pipeline to the producers’ wells was unsupported by evidence of practice or custom. Respondents contend — and it stands undenied — that this alone would add 2 cents per MCF to the cost of the gas. Again the free movement f distillates retained by the producers was “shrugged off” as being de.minimis, without any supporting data whatever. Nor was the evidence as to whether the certification of this price would “trigger” increases in leases with “favored nation” clauses convincing, and the claim that it would not lead to an increase in rates by Tennessee was not only unsupported but has already proven.unfounded.
Nor do we find any support whatever in the record for the conclusory finding on which the order was. based -that “the public served through the Tennessee Gas system is greatly, in need of increased supplies of natural gas.” 17 F. P. C. 880, 881. Admittedly any such- need was. ■wrapped up in the Commission’s action in Docket .G-11107, where Tennessee was asking for permission to enlarge its facilities. However, the two dockets were not consolidated and the Presiding Examiner conditioned his approval here on the granting of the application in Docket G-11Í07, no part of which record is here. Neither is there evidence supporting the finding that the producers “would seek to dispose of their gas elsewhere than to Tennessee Gas and the interstate market,” ibid. While the Commission says that statements were made in argument, apparently by counsel, that this was the ease, we find no such testimony. Since some 90% of all commercial gas moves into the interstate market, the sale of such vast quantities as available here would hardly be profitable except- interstate.
-These considerations require an affirmance of the judgment with instructions that the applications be remanded to the Commission for further proceedings.
It is so ordered.
Section 7(e), 15 U. S. C. § 717f (e), provides:
“(e) Except in the cases governed by the provisos contained in subsection (c) of this section, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operation, sale, service, construction, extension, or acquisition covered by the application, if it is found that the applicant is able and willing properly to do the acts and to perforin the service proposed and to conform to the provisions of the Act and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, sale, operation, construction; extension, or acquisition, to the extent authorized by the certificate, is or Will be required by the present or future, public'convenience arid necessity; otherwise such application ■ shall be denied. The Commission shall have’the power to attach to the issuance -of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.”
These are the Atlantic Refining. Company, Cities Service Production Company, Continental Oil Company, and Tidewater Oil Cpmpany, all petitioners in. No. 518 and sometimes known as CATCO.
Tennessee operates a pipeline system extending from gas fields in Texas and Louisiana through Arkansas, Mississippi,. Tennessee, Kentucky, West Virginia, Ohio, Pennsylvania, New Jersey, New York and into Massachusetts, New Hampshire, Rhode Island and Connecticut. It serves some 80 distributing companies which in turn serve millions of consumers in the various States which its pipeline traverses.
These increases were'later limited to 2 cents per MCF. The escalator, clauses apparently were inserted in lieu of “favored nation” clauses, but by letter, not a part of the contracts, “favored nation” clauses were to be substituted at a later date on certain contingencies.
The exact finding is as follows:
“Including the gas .which Tennessee proposes to purchase under these, contracts, some 240,000 M. c. f. per day (14.73 p. s. i. a.), it is estimated that the weighted average cost of all gas to Tennessee in 1958 will be some 13.70 cents per M. c. f., as compared with 12.73 cents if'the gas here, proposed to be purchased is excluded.” 17 F. P. C. 563, 570.
Thus is the .97-cent figure derived. It is, however, a misleading figure, for- the estimate for 1958 includes the 22.4-cent gas for only two months of 1958, November and December. There is no indication in the record as to what the cost increase .would be if the weighted average were calculated .by including the 22.4-cent gas for the full year.
The brief is not signed by the Solicitor General but by both the General'Counsel and the Solicitor of the Federal Power Commission.
The 1942 amendments to § 7, 56 Stat. 83, were not intended to change this declaration of purpose. See Hearings, House Interstate. and Foreign Commerce Committee, on H. R. 5249, 77th Cong., 1st Sess. 18-19; H. R. Rep. No. 1290, 77th Cong., 1st Sess.; S. Rep. No. 948, 77th Cong., 2d Sess.
Tennessee has subsequently filed an application with the F. P. C. requesting higher rates designed to produce some $19,000,000 additional annual revenue; Tennessee Gas Transmission Co., Docket G-17166. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
51
] |
SCHNEIDER v. RUSK, SECRETARY OF STATE.
No. 368.
Argued April 2, 1964.
Decided May 18, 1964.
Milton V. Freeman argued the cause for appellant. With him on the briefs were Robert E. Herzstein, Horst Kurnik and Charles A. Reich.
Bruce J. Terris argued the cause for appellee. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller and Beatrice Rosenberg.
Jack Wasserman, David Carliner and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
Mr. Justice Douglas
delivered the opinion of the Court.
The Immigration and Nationality Act of 1952, 66 Stat. 163, 269, 8 U. S. C. §§ 1101, 1484, provides by § 352:
“(a) A person who has become a national by naturalization shall lose his nationality by—
“(1) having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, except as provided in section 353 of this title, whether such residence commenced before or after the effective date of this Act . . . .” (Italics added.)
Appellant, a German national by birth, came to this country with her parents when a small child, acquired derivative American citizenship at the age of 16 through her mother, and, after graduating from Smith College, went abroad for postgraduate work. In 1956 while in France she became engaged to a German national, returned here briefly, and departed for Germany, where she married and where she has resided ever since. Since her marriage .she has returned to this country on two occasions for visits. Her husband is a lawyer in Cologne where appellant has been living. Two of her four sons, born in Germany, are dual nationals, having acquired American citizenship under § 301 (a) (7) of the 1952 Act. The American citizenship of the other two turns on this case. In 1959 the United States denied her a passport, the State Department certifying that she had lost her American citizenship under § 352 (a)(1), quoted above. Appellant sued for a declaratory judgment that she still is an American citizen. The District Court held against her, 218 F. Supp. 302, and the case is here on appeal. 375. U. S. 893.
The Solicitor General makes his case along the following lines.
Over a period of many years this Government has been seriously concerned by special problems engendered when naturalized citizens return for a long period to the countries of their former nationalities. It is upon this premise that the argument derives that Congress, through its power over foreign relations, has the power to deprive such citizens of their citizenship.
Other nations, it is said, frequently attempt to treat such persons as their own citizens, thus embroiling the United States in conflicts when it attempts to afford them protection. It is argued that expatriation is an alternative to withdrawal of diplomatic protection. It is also argued that Congress reasonably can protect against the tendency of three years’ residence in a naturalized citizen’s former homeland to weaken his or her allegiance to this country. The argument continues that it is not invidious discrimination for Congress to treat such naturalized citizens differently from the manner in which it treats native-born citizens and that Congress has the right to legislate with respect to the general class without regard to each factual violation. It is finally argued that Congress here, unlike the situation in Kennedy v. Mendoza-Martinez, 372 U. S. 144, was aiming only to regulate and not .to punish, and that what Congress did had been deemed appropriate not only by this country but by many others and is in keeping with traditional American concepts of citizenship.
We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1.
While the rights of citizenship of the native born derive from § 1 of the Fourteenth Amendment and the rights of the naturalized citizen derive from satisfying, free of fraud, the requirements set by Congress, the latter, apart from the exception noted, “becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.” Osborn v. Bank of United States, 9 Wheat. 738, 827. And see Luria v. United States, 231 U. S. 9, 22; United States v. MacIntosh, 283 U. S. 605, 624; Knauer v. United States, 328 U. S. 654, 658.
Views of the Justices have varied when it comes to the problem of expatriation.
There is one view that the power of Congress to take away citizenship for activities of the citizen is nonexistent absent expatriation by the voluntary renunciation of nationality and allegiance. See Perez v. Brownell, 356 U. S. 44, 79 (dissenting opinion of Justices Black and Douglas) ; Trop v. Dulles, 356 U. S. 86 (opinion by Chief Justice Warren). That view has not yet commanded a majority of the entire Court. Hence we are faced with the issue presented and decided in Perez v. Brownell, supra, i. e., whether the present Act violates due process. That in turn comes to the question put in the following words in Perez:
“Is the means, withdrawal of citizenship, reasonably calculated to effect the end that is within the power of Congress to achieve, the avoidance of embarrassment in the conduct of our foreign relations . . . ?” 356 U. S., at 60.
In that case, where an American citizen voted in a foreign election, the answer was in the affirmative. In the present case the question is whether the same answer should be given merely because the naturalized citizen lived in her former homeland continuously for three years. We think not.
Speaking of the provision in the Nationality Act of 1940, which was the predecessor of § 352 (a)(1), Chairman Dickstein of the House said that the bill would “relieve this country of the responsibility of those who reside in foreign lands and only claim citizenship when it serves their purpose.” 86 Cong. Rec. 11944. And the Senate Report on the 1940 bill stated:
“These provisions for loss of nationality by residence abroad would greatly lessen the task of the United States in protecting through the Department of State nominal citizens of this country who are abroad but whose real interests, as shown by the conditions of their foreign stay, are not in this country.” S. Rep. No. 2150, 76th Cong., 3d Sess., p. 4.
As stated by Judge Fahy, dissenting below, such legislation, touching as it does on the “most precious right” of citizenship (Kennedy v. Mendoza-Martinez, 372 U. S., at 159), would have to be justified under the foreign relations power “by some more urgent public necessity than substituting administrative convenience for the individual right of which the citizen is deprived.” 218 F. Supp. 302, 320.
In Kennedy v. Mendoza-Martinez, supra, a divided Court held that it was beyond the power of Congress to deprive an American of his citizenship automatically and without any prior judicial or administrative proceedings because he left the United States in time of war to evade or avoid training or service in the Armed Forces. The Court held that it was an unconstitutional use of congressional power because it took away citizenship as punishment for the offense of remaining outside the country to avoid military service, without, at the same time, affording him the procedural safeguards granted by the Fifth and Sixth Amendments. Yet even the dissenters, who felt that flight or absence to evade the duty of helping to defend the country in time of war amounted to manifest nonallegiance, made a reservation. Justice Stewart stated:
“Previous decisions have suggested that congressional exercise of the power to expatriate may be subject to a further constitutional restriction — a limitation upon the kind of activity which may be made the basis of denationalization. Withdrawal of citizenship is a drastic measure. Moreover, the power to expatriate endows government with authority to define and to limit the society which it represents and to which it is responsible.
“This Court has never held that Congress’ power to expatriate may be used unsparingly in every area in which it has general power to act. Our previous decisions upholding involuntary denationalization all involved conduct inconsistent with undiluted allegiance to this country.” 372 U. S., at 214.
This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make. Moreover, while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is “so unjustifiable as to be violative of due process.” Bolling v. Sharpe, 347 U. S. 497, 499. A native-born citizen is free to reside abroad indefinitely without suffering loss of citizenship. The discrimination aimed at naturalized citizens drastically limits their rights to live and work abroad in a way that other citizens may. It creates indeed a second-class citizenship. Living abroad, whether the citizen be naturalized or native born, is no badge of lack of allegiance and in no way evidences a voluntary renunciation of nationality and allegiance. It may indeed be compelled by family, business, or other legitimate reasons.
Reversed.
Mr. Justice Brennan took no part in the decision of this case.
The exceptions relate, inter alia, to residence abroad in the employment of the United States and are not relevant here.
For other aspects of the ease see 372 U. S. 224. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
27
] |
CITY NEWS & NOVELTY, INC. v. CITY OF WAUKESHA
No. 99-1680.
Argued November 28, 2000
Decided January 17, 2001
Ginsbubg, J., delivered the opinion for a unanimous Court.
Jeff Scott Olson argued the cause for petitioner. With him on the briefs were Richard L. Wilson, John H. Weston, G. Randall Garrou, and Cathy E. Crosson.
Curt R. Meitz argued the cause for respondent. With him on the brief were Vincent D. Moschella and Thomas C. Goldstein.
James A. Feldman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Waxman, Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Lisa Schiavo Blatt, Michael Jay Singer, and Howard S. Scher
Briefs of amici curiae urging reversal were filed for the American Booksellers Foundation for Free Expression et al. by Michael A. Bam-berger; for the American Charities for Reasonable Fund Raising Regulation, Inc., by Edward N. Mazlisk; and for the Liberty Project by Jodie L. Kelley.
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by James E. Doyle, Attorney General of Wisconsin, Thomas J. Balistreri, Assistant Attorney General, Bill Pryor, Attorney General of Alabama, Ken Salazar, Attorney General of Colorado, and Don Stenberg, Attorney General of Nebraska; for the Community Defense Counsel by Len L. Munsil and Scott D. Bergthold; for Morality in Media, Inc., et al. by Robin S. Whitehead and Bruce A. Taylor; and for the National League of Cities et al. by Richard Ruda and Charles A. Rothfeld.
Gary S. Edinger filed a brief for the Florida Cannabis Action Network, Inc;, as amicus curiae.
Justice Ginsburg
delivered the opinion of the Court.
In Freedman v. Maryland, 380 U. S. 51 (1965), a case involving a state motion-picture censorship scheme, the Court announced procedural requirements necessary to guard against unconstitutional prior restraint of expression. Those requirements included assurance of “a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.” Id., at 59. Twenty-five years later, in FW/PBS, Inc. v. Dallas, 493 U. S. 215 (1990), the Court applied some of the Freedman standards to a municipal ordinance conditioning the operation of sexually oriented businesses on receipt of a license. Unsuccessful applicants for an adult business license, the opinion announcing the judgment stated, must be accorded “an avenue for prompt judicial review.” 493 U. S., at 229.
Courts have divided over the meaning of FW/PBS’s “prompt judicial review” requirement. Some have held that the unsuccessful applicant for an adult business license must be assured a prompt judicial determination on the merits of the permit denial. See, e. g., Baby Tam & Co. v. Las Vegas, 154 F. 3d 1097, 1101-1102 (CA9 1998); 11126 Baltimore Blvd., Inc. v. Prince George’s County, 58 F. 3d 988, 999-1000 (CA4 1995) (en banc). Others, like the Court of Appeals of Wisconsin whose judgment is before us, 231 Wis. 2d 93, 115-116, 604 N. W. 2d 870, 882 (1999), have held that prompt access to court review suffices. See, e. g., Boss Capital, Inc. v. Casselberry, 187 F. 3d 1251, 1256-1257 (CA11 1999); TK’s Video, Inc. v. Denton County, 24 F. 3d 705, 709 (CA5 1994). We granted certiorari to resolve the conflict. 530 U. S. 1242 (2000). We now find, however, that the issue stemming from Freedman is not genuinely presented to us in this case. We therefore dismiss the petition and leave the judgment of the Wisconsin court undisturbed.
H — 1
The City of Waukesha, Wisconsin (City), requires sellers of sexually explicit materials to obtain and annually renew adult business licenses. See Waukesha Municipal Code §§8.195(2), (7) (1995), reprinted in App. to Pet. for Cert. 101, 104. Petitioner City News and Novelty, Inc. (City News), pursuant to a City license first obtained in 1989, owned and operated an adult-oriented shop in downtown Waukesha. In November 1995, City News applied for a renewal of its license, then due to expire in two months. In December 1995, Waukesha’s Common Council denied the application, finding that City News had violated the City’s ordinance by permitting minors to loiter on the premises, failing to maintain an unobstructed view of booths in the store, and allowing patrons to engage in sexual activity inside the booths. Wauke-sha’s refusal to renew City News’s license was upheld in administrative proceedings and on judicial review in the state courts.
Petitioning for certiorari, City News raised three questions. First, City News asserted that the persuasion burden had been improperly assigned to it. Second, City News urged that Waukesha’s ordinance unconstitutionally accorded City officials unbridled discretion to vary punishments for ordinance violations. Third, City News asked us to “resolve the conflict among the circuits concerning whether the guarantee of prompt judicial review that must accompany [an. adult business] licensing scheme means a prompt judicial determination or simply the right to promptly file for judicial review.” Pet. for Cert. 13. We granted the petition only on the third question.. Accordingly, City News cannot now contend that any of the substantive requirements governing adult business licenses in Waukesha conflict with the First Amendment. Nor does City News contend that the evidence failed to substantiate the charged violations. We now explain why City News is not properly situated to raise the question on which we granted review.
> — I
In letters sent to Waukesha two months after petitioning for review in this Court, City News gave notice that it would withdraw its renewal application and close its business upon the City’s grant of a license to another corporation, B. J. B., Inc., “a larger and more modern business” with which City News felt “it [could not] effectively compete.” Letters from Jeff Scott Olson to Vince Mosehella (June 12 and 19, 2000), Respondent’s Lodging, Vol. 1, Tab No. 14. Wau-kesha granted B. J. B.’s license application on June 20. It is undisputed that City News has ceased to operate as an adult business and no longer seeks to renew its license. Tr. of Oral Arg. 14-15.
Observing that City News neither now pursues nor currently expresses an intent to pursue a license under Wauke-sha law, Waukesha asserts that the case has become moot, for City News no longer has “a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U. S. 625, 631 (1979) (citing Powell v. McCormack, 395 U. S. 486, 496 (1969)). We agree that the case no longer qualifies for judicial review. Urging that the case remains fit for adjudication, City News tenders two points. We find' neither persuasive.
Noting that it “has never promised not to apply for a license” in the future, Reply Brief 1, City News first contends that, notwithstanding the voluntary termination of its license renewal effort, a live controversy remains under the Court’s reasoning in Erie v. Pap’s A. M., 529 U. S. 277 (2000). In our view, Erie differs critically from this case. In Erie, we similarly granted a petition to review a state-court judgment addressing an adult business’ First Amendment challenge to a city ordinance. We concluded that the controversy persisted, even though the adult business had shut down. We reached that conclusion, it is true, in part because the business “could again decide to operate.” Id., at 287. That speculation standing alone, however, did not shield the case from a mootness determination. Another factor figured prominently. The nude dancing entrepreneur in Erie sought “to have the case declared moot” after the business had “prevailed below,” obtaining a judgment that invalidated Erie’s ordinance. Id., at 288. Had we accepted the entrepreneur’s plea, then consistent with our practice when a case becomes moot on review from a state court, we would have dismissed the petition, leaving intact the judgment below. See ASARCO Inc. v. Radish, 490 U. S. 605, 621, n. 1 (1989); Erie, 529 U. S., at 305 (Scalia, J., concurring in judgment). Thus, had we declared Erie moot, the defendant municipality would have been saddled with an “ongoing injury,” i. e., the judgment striking its law. Id., at 288. And the plaintiff arguably would have prevailed in an “attemp[t] to manipulate the Court’s jurisdiction to insulate a favorable decision from review.” Ibid.
In this case, we confront no parallel circumstance. The adult enterprise before us left the fray as a loser, not a winner. Our dismissal here does not keep Waukesha under the weight of an adverse judgment, or deprive Waukesha of its victory in state court.. Nor does a mootness dismissal reward an arguable manipulation of our jurisdiction, for plaintiff City News, unlike the nude dancing entrepreneur in Erie, opposes a declaration of mootness.
City News also urges that it experiences ongoing injury because it is conclusively barred by Waukesha’s ordinance from reopening as an adult business until 2005. It is far from clear, however, whether City News actually suffers that disability. And as our prior discussion suggests, supra, at 283, a live controversy is not maintained by speculation that City News might be temporarily disabled from reentering a business that City News has left and currently asserts no plan to reenter. See Spencer v. Kemna, 523 U. S. 1, 15-16 (1998).
City News’s contention that it remains a qualified complainant also fails for a separate reason. Full briefing and argument have revealed that the question City News tendered, and which we took up for review, is not now and never was accurately reflective of City News’s grievance. Unlike the initial license applicant whose expression cannot begin prepermission (the situation of the complainant in Freedman), City News was already licensed to conduct an adult business and sought to fend off a stop order. Swift judicial review is the remedy needed by those held back from speaking. We do not doubt that an ongoing adult enterprise facing loss of its license to do business may allege First Amendment injuries. Such an establishment’s typical concern, however, is not the speed of court proceedings, but the availability of a stay of adverse action during the pendency of judicial review, however long that review takes.
Unlike the petitioner in Freedman, who sought, through swift court review, an end to the status quo of silence, City News sought to maintain, pendente lite, the status quo of speech (or expressive conduct). Brief for Petitioner 43-44. We venture no view on the merits of an argument urging preservation of speech (or expressive conduct) as the status quo pending administrative and judicial review proceedings. It suffices to point out that the question is not the one on which the courts have divided or on which we granted certiorari.
For the reasons stated, the writ of certiorari is
Dismissed.
City News appears to rely on the general rule that voluntary cessation of a challenged practice rarely moots a federal case. See, e. g., Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000). But that rule traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 66-67 (1987) (“Mootness doctrine ... protects plaintiffs from defendants who seek to evade sanction by predictable ‘protestations of repentance and reform.’ ”) (quoting United States v. Oregon State Medical Soc., 343 U. S. 326, 333 (1952)); see also Friends of Earth, 528 U. S., at 189 (Courts are not “compelled to leave ‘[t]he defendant . . . free to return to his old ways.’”) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283, 289, n. 10 (1982), in turn quoting United States v. W.T. Grant Co., 345 U. S. 629, 632 (1953)). That principle does not aid City News. For it is City News, not its adversary, whose conduct saps the controversy of vitality, and City News can gain nothing from our dismissal.
City News points to Waukesha’s rule that to receive an adult entertainment license, an applicant “shall not have been found to have previously violated [the adult business ordinance] within 5 years immediately preceding the date of the application.” Waukesha Municipal Code § 8.195(4)(a)(2) (1995), reprinted in App. to Pet. for Cert. 103. It was in 1995, however, that Waukesha last found City News to have violated the City ordinance. As City News recognizes, the disabilities from these violations expired in 2000. Reply Brief 2. City News asserts that it remains vulnerable to the bar because, in violation of the ordinance, it operated without a license into the year 2000. But this argument runs up against the facts that, since 1995, City News has not “been found” by Waukesha’s Common Council to have violated the ordinance, and that the council expressly permitted City News to continue in business during the pendency of state-court proceedings. See Petitioner’s Lodging, Tab No. 3. If City News seeks a license in the future, and if Waukesha attempts to invoke its five-year bar, nothing in the prior proceedings or in our disposition today will disable City News from contesting the bar’s application. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
IMMIGRATION AND NATURALIZATION SERVICE et al. v. DELGADO et al.
No. 82-1271.
Argued January 11, 1984
Decided April 17, 1984
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Stevens, and O’Connor, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 221. Powell, J., filed an opinion concurring in the result, post, p. 221. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 225.
Deputy Solicitor General Frey argued the cause for petitioners. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Elliott Schulder, and Patty Merkamp Stemler.
Henry R. Fenton argued the cause for respondents. With him on the brief were Gordon K. Hubei and Max Zimny
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by David M. Brodsky, Burt Neubome, and Charles S. Sims; and for the Mexican American Legal Defense and Education Fund, Inc., et al. by Michael Kantor and Alan Diamond.
Justice Rehnquist
delivered the opinion of the Court.
In the course of enforcing the immigration laws, petitioner Immigration and Naturalization Service (INS) enters employers’ worksites to determine whether any illegal aliens may be present as employees. The Court of Appeals for the Ninth Circuit held that the “factory surveys” involved in this case amounted to a seizure of the entire work forces, and further held that the INS could not question individual employees during any of these surveys unless its agents had a reasonable suspicion that the employee to be questioned was an illegal alien. International Ladies’ Garment Workers’ Union, AFL-CIO v. Sureck, 681 F. 2d 624 (1982). We conclude that these factory surveys did not result in the seizure of the entire work forces, and that the individual questioning of the respondents in this case by INS agents concerning their citizenship did not amount to a detention or seizure under the Fourth Amendment. Accordingly, we reverse the judgment of the Court of Appeals.
Acting pursuant to two warrants, in January and September 1977, the INS conducted a survey of the work force at Southern California Davis Pleating Co. (Davis Pleating) in search of illegal aliens. The warrants were issued on a showing of probable cause by the INS that numerous illegal aliens were employed at Davis Pleating, although neither of the search warrants identified any particular illegal aliens by name. A third factory survey was conducted with the employer’s consent in October 1977, at Mr. Pleat, another garment factory.
At the beginning of the surveys several agents positioned themselves near the buildings’ exits, while other agents dispersed throughout the factory to question most, but not all, employees at their work stations. The agents displayed badges, carried walkie-talkies, and were armed, although at no point during any of the surveys was a weapon ever drawn. Moving systematically through the factory, the agents approached employees and, after identifying themselves, asked them from one to three questions relating to their citizenship. If the employee gave a credible reply that he was a United States citizen, the questioning ended, and the agent moved on to another employee. If the employee gave an unsatisfactory response or admitted that he was an alien, the employee was asked to produce his immigration papers. During the survey, employees continued with their work and were free to walk around within the factory.
Respondents are four employees questioned in one of the three surveys. In 1978 respondents and their union representative, the International Ladies Garment Workers’ Union, filed two actions, later consolidated, in the United States District Court for the Central District of California challenging the constitutionality of INS factory surveys and seeking declaratory and injunctive relief. Respondents argued that the factory surveys violated their Fourth Amendment right to be free from unreasonable searches or seizures and the equal protection component of the Due Process Clause of the Fifth Amendment.
The District Court denied class certification and dismissed the union from the action for lack of standing, App. to Pet. for Cert. 58a-60a. In a series of cross-motions for partial summary judgment, the District Court ruled that respondents had no reasonable expectation of privacy in their workplaces which conferred standing on them to challenge entry by the INS pursuant to a warrant or owner’s consent. Id., at 49a-52a, 53a-55a, 56a-57a. In its final ruling the District Court addressed respondents’ request for injunctive relief directed at preventing the INS from questioning them personally during any future surveys. The District Court, with no material facts in dispute, found that each of the four respondents was asked a question or questions by an INS agent during one of the factory surveys. Id., at 46a. Reasoning from this Court’s decision in Terry v. Ohio, 392 U. S. 1 (1968), that law enforcement officers may ask questions of anyone, the District Court ruled that none of the respondents had been detained under the Fourth Amendment during the factory surveys, either when they were questioned or otherwise. App. to Pet. for Cert. 47a. Accordingly, it granted summary judgment in favor of the INS.
The Court of Appeals reversed. Applying the standard first enunciated by a Member of this Court in United States v. Mendenhall, 446 U. S. 544 (1980) (opinion of Stewart, J.), the Court of Appeals concluded that the entire work forces were seized for the duration of each survey, which lasted from one to two hours, because the stationing of agents at the doors to the buildings meant that “a reasonable worker ‘would have believed that he was not free to leave.’” 681 F. 2d, at 634 (quoting United States v. Anderson, 663 F. 2d 934, 939 (CA9 1981)). Although the Court of Appeals conceded that the INS had statutory authority to question any alien or person believed to be an alien as to his right to be or remain in the United States, see 66 Stat. 233, 8 U. S. C. § 1357(a)(1), it further held that under the Fourth Amendment individual employees could be questioned only on the basis of a reasonable suspicion that a particular employee being questioned was an alien illegally in the country. 681 F. 2d, at 639-645. A reasonable suspicion or probable cause to believe that a number of illegal aliens were working at a particular factory site was insufficient to justify questioning any individual employee. Id., at 643. Consequently, it also held that the individual questioning of respondents violated the Fourth Amendment because there had been no such reasonable suspicion or probable cause as to any of them.
We granted certiorari to review the decision of the Court of Appeals, 461 U. S. 904 (1983), because it has serious implications for the enforcement of the immigration laws and presents a conflict with the decision reached by the Third Circuit in Babula v. INS, 665 F. 2d 293 (1981).
The Fourth Amendment does not proscribe all contact between the police and citizens, but is designed “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U. S. 543, 554 (1976). Given the diversity of encounters between police officers and citizens, however, the Court has been cautious in defining the limits imposed by the Fourth Amendment on encounters between the police and citizens. As we have noted elsewhere: “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, supra, at 19, n. 16. While applying such a test is relatively straightforward in a situation resembling a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 212-216 (1979), the protection against unreasonable seizures also extends to “seizures that involve only a brief detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975). What has evolved from our cases is a determination that an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, “if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, supra, at 554 (footnote omitted); see Florida v. Royer, 460 U. S. 491, 502 (1983) (plurality opinion).
Although we have yet to rule directly on whether mere questioning of an individual by a police official, without more, can amount to a seizure under the Fourth Amendment, our recent decision in Royer, supra, plainly implies that interrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure. In Royer, when Drug Enforcement Administration agents found that the respondent matched a drug courier profile, the agents approached the defendant and asked him for his airplane ticket and driver’s license, which the agents then examined. A majority of the Court believed that the request and examination of the documents were "permissible in themselves.” Id., at 501 (plurality opinion); see id., at 523, n. 3 (opinion of Rehnquist, J.). In contrast, a much different situation prevailed in Brown v. Texas, 443 U. S. 47 (1979), when two policemen physically detained the defendant to determine his identity, after the defendant refused the officers’ request to identify himself. The Court held that absent some reasonable suspicion of misconduct, the detention of the defendant to determine his identity violated the defendant’s Fourth Amendment right to be free from an unreasonable seizure. Id., at 52.
What is apparent from Royer and Brown is that police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. Cf. Schneckloth v. Bustamonte, 412 U. S. 218, 231-234 (1973). Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment. But if the person refuses to answer and the police take additional steps — such as those taken in Brown— to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure. United States v. Mendenhall, 446 U. S., at 554; see Terry v. Ohio, 392 U. S., at 21.
The Court of Appeals held that “the manner in which the factory surveys were conducted in this case constituted a seizure of the workforce” under the Fourth Amendment. 681 F. 2d, at 634. While the element of surprise and the systematic questioning of individual workers by several INS agents contributed to the court’s holding, the pivotal factor in its decision was the stationing of INS agents near the exits of the factory buildings. According to the Court of Appeals, the stationing of agents near the doors meant that “departures were not to be contemplated,” and thus, workers were “not free to leave.” Ibid. In support of the decision below, respondents argue that the INS created an intimidating psychological environment when it intruded unexpectedly into the workplace with such a show of officers. Besides the stationing of agents near the exits, respondents add that the length of the survey and the failure to inform workers they were free to leave resulted in a Fourth Amendment seizure of the entire work force.
We reject the claim that the entire work forces of the two factories were seized for the duration of the surveys when the INS placed agents near the exits of the factory sites. Ordinarily, when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers’ voluntary obligations to their employers. The record indicates that when these surveys were initiated, the employees were about their ordinary business, operating machinery and performing other job assignments. While the surveys did cause some disruption, including the efforts of some workers to hide, the record also indicates that workers were not prevented by the agents from moving about the factories.
Respondents argue, however, that the stationing of agents near the factory doors showed the INS’s intent to prevent people from leaving. But there is nothing in the record indicating that this is what the agents at the doors actually did. The obvious purpose of the agents’ presence at the factory doors was to insure that all persons in the factories were questioned. The record indicates that the INS agents’ conduct in this case consisted simply of questioning employees and arresting those they had probable cause to believe were unlawfully present in the factory. This conduct should have given respondents no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer. If mere questioning does not constitute a seizure when it occurs inside the factory, it is no more a seizure when it occurs at the exits.
A similar conclusion holds true for all other citizens or aliens lawfully present inside the factory buildings during the surveys. The presence of agents by the exits posed no reasonable threat of detention to these workers while they walked throughout the factories on job assignments. Likewise, the mere possibility that they would be questioned if they sought to leave the buildings should not have resulted in any reasonable apprehension by any of them that they would be seized or detained in any meaningful way. Since most workers could have had no reasonable fear that they would be detained upon leaving, we conclude that the work forces as a whole were not seized.
The Court of Appeals also held that “detentive questioning” of individuals could be conducted only if INS agents could articulate “objective facts providing investigators with a reasonable suspicion that each questioned person, so detained, is an alien illegally in this country.” 681 F. 2d, at 638. Under our analysis, however, since there was no seizure of the work forces by virtue of the method of conducting the factory surveys, the only way the issue of individual questioning could be presented would be if one of the named respondents had in fact been seized or detained. Reviewing the deposition testimony of respondents, we conclude that none were.
The questioning of each respondent by INS agents seems to have been nothing more than a brief encounter. None of the three Davis Pleating employees were questioned during the January survey. During the September survey at Davis Pleating, respondent Delgado was discussing the survey with another employee when two INS agents approached him and asked him where he was from and from what city. When Delgado informed them that he came from Mayaguez, Puerto Rico, the agent made an innocuous observation to his partner and left. App. 94. Respondent Correa's experience in the September survey was similar. Walking from one part of the factory to another, Correa was stopped by an INS agent and asked where she was bom. When she replied “Huntington Park, [California],” the agent walked away and Correa continued about her business. Id., at 115. Respondent Labonte, the third Davis Pleating employee, was tapped on the shoulder and asked in Spanish, “Where are your papers?” Id., at 138. Labonte responded that she had her papers and without any further request from the INS agents, showed the papers to the agents, who then left. Finally, respondent Miramontes, the sole Mr. Pleat employee involved in this case, encountered an agent en route from an office to her worksite. Questioned concerning her citizenship, Miramon-tes replied that she was a resident alien, and on the agent’s request, produced her work permit. The agent then left. Id., at 120-121.
Respondents argue that the manner in which the surveys were conducted and the attendant disruption caused by the surveys created a psychological environment which made them reasonably afraid they were not free to leave. Consequently, when respondents were approached by INS agents and questioned concerning their citizenship and right to work, they were effectively detained under the Fourth Amendment, since they reasonably feared that refusing to answer would have resulted in their arrest. But it was obvious from the beginning of the surveys that the INS agents were only questioning people. Persons such as respondents who simply went about their business in the workplace were not detained in any way; nothing more occurred than that a question was put to them. While persons who attempted to flee or evade the agents may eventually have been detained for questioning, see id., at 50, 81-84, 91-93, respondents did not do so and were not in fact detained. The manner in which respondents were questioned, given its obvious purpose, could hardly result in a reasonable fear that respondents were not free to continue working or to move about the factory. Respondents may only litigate what happened to them, and our review of their description of the encounters with the INS agents satisfies us that the encounters were classic consensual encounters rather than Fourth Amendment seizures. See Florida v. Royer, 460 U. S. 491 (1983); United States v. Mendenhall, 446 U. S. 544 (1980).
Accordingly, the judgment of the Court of Appeals is
Reversed.
Respondents Herman Delgado, Ramona Correa, and Francisca La-bonte worked at Davis Pleating, while Marie Miramontes, the fourth respondent, was employed by Mr. Pleat. Both Delgado and Correa are United States citizens, while Labonte and Miramontes are permanent resident aliens.
The District Court never ruled directly on respondents’ Fifth Amendment claim, apparently reasoning that since respondents’ Fourth Amendment rights had not been violated, their Fifth Amendment right had also not been violated. The Court of Appeals also never ruled on respondents’ Fifth Amendment claim, and we decline to do so.
The Court of Appeals ruled that the District Court did not abuse its discretion in denying class certification. In light of its disposition of respondents’ Fourth Amendment claims, the Court of Appeals declined to resolve the union’s appeal from the District Court’s determination that the union lacked standing to raise its members’ Fourth Amendment claims. 681 F. 2d. at 645. n. 24.
Although the issue was the subject of substantial discussion at oral argument, the INS does not contest that respondents have standing to bring this case. They allege the existence of an ongoing policy which violated the Fourth Amendment and which will be applied to their workplace in the future. Cf. Allee v. Medrano, 416 U. S. 802 (1974). Part of their argument is clearly based on the INS’s detention of illegal aliens found working at the two factories. Respondents, however, can only premise their right to injunctive relief on their individual encounters with INS agents during the factory surveys. See infra, at 221.
Contrary to respondents’ assertion, it also makes no difference in this case that the encounters took place inside a factory, a location usually not accessible to the public. The INS officers were lawfully present pursuant to consent or a warrant, and other people were in the area during the INS agents’ questioning. Thus, the same considerations attending contacts between the police and citizens in public places should apply to the questions presented to the individual respondents here.
In her deposition respondent Miramontes described an incident that occurred during the October factory survey at Mr. Pleat, in which an INS agent stationed by an exit attempted to prevent a worker, presumably an illegal alien, from leaving the premises after the survey started. The worker walked out the door and when an agent tried to stop him, the worker pushed the agent aside and ran away. App. 125-126. An ambiguous, isolated incident such as this fails to provide any basis on which to conclude that respondents have shown an INS policy entitling them to in-junctive relief. See Rizzo v. Goode, 423 U. S. 362 (1976); cf. Allee v. Medrano, supra; Hague v. CIO, 307 U. S. 496 (1939).
Respondents Delgado and Labonte both left the building during the INS survey, Delgado to load a truck and Labonte to observe INS activities outside the building. App. 98, 136. Neither of them stated in their depositions that the INS agents in any way restrained them from leaving the building, or even addressed any questions to them upon leaving. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
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"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
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] | [
67
] |
KUNZ v. NEW YORK.
No. 50.
Argued October 17, 1950.
Decided January 15, 1951.
Osmond K. Fraenkel argued the cause and filed a brief for appellant.
Seymour B. Quel argued the cause for appellee. With him on the brief were John P. McGrath and Joseph J. Lucchi.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
New York City has adopted an ordinance which makes it unlawful to hold public worship meetings on the streets without first obtaining a permit from the city police commissioner. Appellant, Carl Jacob Kunz, was convicted and fined $10 for violating this ordinance by holding a religious meeting without a permit. The conviction was affirmed by the Appellate Part of the Court of Special Sessions, and by the New York Court of Appeals, three judges dissenting, 300 N. Y. 273, 90 N. E. 2d 455 (1950). The case is here on appeal, it having been urged that the ordinance is invalid under the Fourteenth Amendment.
Appellant is an ordained Baptist minister who speaks under the auspices of the “Outdoor Gospel Work,” of which he is the director. He has been preaching for about six years, and states that it is his conviction and duty to “go out on the highways and byways and preach the word of God.” In 1946, he applied for and received a permit under the ordinance in question, there being no-question that appellant comes within the classes of persons entitled to receive permits under the ordinance. This permit, like all others, was good only for the calendar year in which issued. In November, 1946, his permit was revoked after a hearing by the police commissioner. The revocation was based on evidence that he had ridiculed and denounced other religious beliefs in his meetings.
Although the penalties of the ordinance apply to anyone who “ridicules and denounces other religious beliefs,” the ordinance does not specify this as a ground for permit revocation. Indeed, there is no mention in the ordinance of any power of revocation. However, appellant did not seek judicial or administrative review of the revocation proceedings, and any question as to the propriety of the revocation is not before us in this case. In any event, the revocation affected appellant’s rights to speak in 1946 only. Appellant applied for another permit in 1947, and again in 1948, but was notified each time that his application was “disapproved,” with no reason for the disapproval being given. On September 11, 1948, appellant was arrested for speaking at Columbus Circle in New York City without a permit. It is from the conviction which resulted that this appeal has been taken.
Appellant’s conviction was thus based upon his failure to possess a permit for 1948. We are here concerned only with the propriety of the action of the police commissioner in refusing to issue that permit. Disapproval of the 1948 permit application by the police commissioner was Justified by the New York courts on the ground that a permit had previously been revoked “for good reasons.” It is noteworthy that there is no mention in the ordinance of reasons for which such a permit application can be refused. This interpretation allows the police commissioner, an administrative official, to exercise discretion in denying subsequent permit applications on the basis of his interpretation, at that time, of what is deemed to be conduct condemned by the ordinance. We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.
In considering the right of a municipality to control the use of public streets for the expression of religious views, we start with the words of Mr. Justice Roberts that “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. C. I. O., 307 U. S. 496, 515 (1939). Although this Court has recognized that a statute may be enacted which prevents serious interference with normal usage of streets and parks, Cox v. New Hampshire, 312 U. S. 569 (1941), we have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places. In Cantwell v. Connecticut, 310 U. S. 296 (1940), this Court held invalid an ordinance which required a license for soliciting money for religious causes. Speaking for a unanimous Court, Mr. Justice Roberts said: “But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.” 310 U. S. at 307. To the same effect are Lovell v. Griffin, 303 U. S. 444 (1938); Hague v. C. I. O., 307 U. S. 496 (1939); Largent v. Texas, 318 U. S. 418 (1943). In Saia v. New York, 334 U. S. 558 (1948), we reaffirmed the invalidity of such prior restraints upon the right to speak: "We hold that § 3 of this ordinance is unconstitutional on its face, for it establishes a previous restraint on the right of free speech in violation of the First Amendment which is protected by the Fourteenth Amendment against State action. To use a loudspeaker or amplifier one has to get a permit from the Chief of Police. There are no standards prescribed for the exercise of his discretion.” 334 U. S. at 559-560.
The court below has mistakenly derived support for its conclusion from the evidence produced at the trial that appellant’s religious meetings had, in the past, caused some disorder. There are appropriate public remedies to protect the peace and order of the community if appellant’s speeches should result in disorder or violence. “In the present case, we have no occasion to inquire as to the permissible scope of subsequent punishment.” Near v. Minnesota, 283 U. S. 697, 715 (1931). We do not express any opinion on the propriety of punitive remedies which the New York authorities may utilize. We are here concerned with suppression — not punishment. It is sufficient to say that New York cannot vest restraining control over the right to speak on religious subjects in an administrative official where there are no appropriate standards to guide his action.
Reversed.
Mr. Justice Black concurs in the result.
[For opinion of Mr. Justice Frankfurter, concurring in the result, see ante, p. 273.]
Section 435-7.0 of chapter 18 of the Administrative Code of the City of New York reads as follows:
“a. Public worship.- — It shall be unlawful for any person to be concerned or instrumental in collecting or promoting any assemblage of persons for public worship or exhortation, or to ridicule or denounce any form of religious belief, service or reverence, or to preach or expound atheism or agnosticism, or under any pretense therefor, in any street. A clergyman or minister of any denomination, however, or any person responsible to or regularly associated with any church or incorporated missionary society, or any lay-preacher, or lay-reader may conduct religious services, or any authorized representative of a duly incorporated organization devoted to the advancement of the principles of atheism or agnosticism may preach or expound such cause, in any public place or places specified in a permit therefor which may be granted and issued by the police commissioner. This section shall not be construed to prevent any congregation of the Baptist denomination from assembling in a proper place for the purpose of performing the rites of baptism, according to the ceremonies of that church.
“b. Interference with street services. — It shall be unlawful for any person to disturb, molest or interrupt any clergyman, minister, missionary, lay-preacher or lay-reader, who shall be conducting religious services by authority of a permit, issued hereunder, or any minister or people who shall be performing the rite of baptism as permitted herein, nor shall any person commit any riot or disorder in any such assembly.
“c. Violations. — Any person who shall violate any provision of this section, upon conviction thereof, shall be punished by a fine of not more than twenty-five dollars, or imprisonment for thirty days, or both.”
This ordinance was previously challenged in People v. Smith, 263 N. Y. 255, 188 N. E. 745, appeal dismissed for want of a substantial federal question, Smith v. New York, 292 U. S. 606 (1934). Smith, who had not applied for a permit under the ordinance, argued that the regulation of religious speakers alone constituted an unreasonable classification. None of the questions involved in the instant appeal were presented in the previous case.
The New York Court of Appeals has construed the ordinance to require that all initial requests for permits by eligible applicants must be granted. 300 N. Y. at 276, 90 N. E. 2d at 456.
The New York Court of Appeals said: “The commissioner had no reason to assume, and no promise was made, that defendant wanted a new permit for any uses different from the disorderly ones he had been guilty of before.” 300 N. Y. at 278, 90 N. E. 2d at 457. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
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"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
BELTRAN v. MYERS, DIRECTOR, CALIFORNIA STATE DEPARTMENT OF HEALTH, et al.
No. 80-5303.
Argued March 24, 1981
Decided May 18, 1981
Gill Deford argued the cause for petitioner. With him on the briefs was Neal S. Dudomtz.
Richard J. Magasin, Deputy Attorney General of California, argued the cause for respondents. With him on the brief were George Deukmejian, Attorney General, Thomas E. War-riner, Assistant Attorney General, and Anne 8. Pressman and Donald A. Robinson, Deputy Attorneys General.
Robert Abrams, Attorney General of New York, Shirley Adelson Seigel, Solicitor General, Clifford A. Royael, and Stephen H. Sachs, Attorney General of Maryland, filed a brief for the Attorney General of New York et al. as amici curiae urging affirmance.
Per Curiam.
We granted a writ of certiorari, 449 U. S. 951 (1980), to review a decision of the United States Court of Appeals for the Ninth Circuit, holding that California’s “transfer-of-assets” statute applicable to “medically needy” recipients of Medicaid benefits does not conflict with governing federal law. Dawson v. Myers, 622 F. 2d 1304 (1980). Petitioner is an individual considered “medically needy” under California’s Medicaid plan, who represents the class of all such persons who have been denied Medicaid benefits because of previous transfers of assets for less than full consideration. She argues that this exclusion is impermissible because it is based on a rule applicable only to “medically needy” recipients, and could not apply under federal law to “categorically needy” recipients.
After our grant of certiorari on November 3, 1980, Congress passed § 5 of Pub. L. 96-611, 94 Stat. 3567 (Dec. 28, 1980) (the “Boren-Long Amendment”), which made material changes in the law in this area. This section creates a presumption that assets disposed of for less than full consideration within the preceding 24 months should be included in the resources of an applicant for SSI benefits. The applicant can overcome this presumption with “convincing evidence to establish that the transaction was exclusively for some . . . purpose” other than establishing eligibility. § 5 (a) (amending § 1613 of the Social Security Act, 42 U. S. C. § 1382b). This section goes on to allow state Medicaid plans to apply similar rules to Medicaid recipients — including both the categorically needy and the medically needy. Pub. L. 96-611, § 5 (b), 94 Stat. 3568 (amending § 1902 of the Social Security Act, 42 U. S. C. § 1396a). It states that if the state plan includes a transfer-of-assets rule, it shall specify a procedure for implementing the denial of benefits “which, except as provided in paragraph (2), is not more restrictive than the procedure specified” for SSI. Paragraph (2) provides that where the uncompensated value of the disposed-of resources exceeds $12,000, the States may impose a period of ineligibility exceeding 24 months, as long as this period bears “a reasonable relationship to such uncompensated value.”
In sum, it would appear that in the future the States will be permitted to impose transfer-of-assets restrictions generally similar to that of California. This change will take effect on July 1, 1981, Pub. L. 96-611, § 2, 94 Stat. 3567 — a matter of weeks from now. This raises the question whether it is appropriate for the Court to decide the merits of the underlying dispute as considered by the Court of Appeals.
We have determined that the change caused by the recent statutory amendment requires reconsideration of the decision below by the Court of Appeals. Because of the statutory change, the federal standards governing state plans with respect to transfer-of-asset rules have been altered significantly. Although it is fair to say that Congress generally endorsed rules like California’s, the detailed provisions recently enacted may require some changes in the California rule. We note in particular that California seems to include the residence of the claimant among the assets that may not be given away without a corresponding loss in Medicaid coverage. Under the Boren-Long Amendment, however, arguably such an asset must be excluded. Petitioner should have the opportunity to argue the validity of the California law under the new federal law — an issue that was not addressed by the parties in this Court.
We vacate the decision below, and remand this case to the Court of Appeals for reconsideration of its decision in light of the recent statutory change.
It is so ordered.
“Medically needy” persons are included in the categories of Medicaid recipients — aged, blind, disabled, or dependent children — which are derived from Social Security welfare programs. They have income levels, however, that are too high to qualify for regular income assistance under the Supplemental Security Income (SSI) or Aid to Families with Dependent Children programs, and for this reason are distinguished from “categorically needy” recipients. 42 CFR §435.4 (1980).
The California rule is set out in Cal. Welf. & Inst. Code Ann. § 14015 (West 1980). This statute provides in part:
“[A]ny transfer of the holdings by gift or, knowingly, without adequate and reasonable consideration, shall be presumed to constitute a gift of property with intent to qualify for assistance and such act shall disqualify the owner for further aid for a period determined under standards established by the director, and in no event for less than half of the period that the capital value of the transferred property would have supplied the person’s maintenance needs based on his circumstances at the time of his transfer plus the cost of any needed medical care.”
See n. 1, supra. The categorically needy receive Medicaid benefits merely by virtue of their eligibility for income assistance under the SSI or AFDC programs. Since that eligibility has not, until recently, been conditioned on a person’s retention of existing assets, States could not apply a transfer-of-assets disqualification to the categorically needy.
Petitioner’s claim here is that she must be accorded the same treatment under the terms of 42 U. S. C. §§ 1396a (a)(10)(C), (17) (B). See also 42 CFR §435.401 (1980).
Petitioner herself was penalized by California for a gift of her home to relatives.
The amendment to § 1613 of the Social Security Act, 42 U. S. C. § 1382b, in § 5 (a) of Pub. L. 96-611, 94 Stat. 3567, provides for consideration in the SSI program of any disposed of resources “(but subject to the exclusions under subsection (a)).” Subsection (a) of §1613, 42 U. S. C. § 1382b (a), provides for exclusion from consideration of a claimant’s home, household effects, and certain other items. If the new law has the effect of allowing uncompensated disposal of these excluded items without corresponding reductions in SSI benefits, it may also have the effect of requiring States to ignore transfer of these same assets in administering Medicaid. See Pub. L. 96-611, § 5 (b), 94 Stat. 3568 (providing that the state plan’s “procedure” cannot be more restrictive than the rules applicable to SSI, except that the period of ineligibility may be longer than 24 months if the value of the assets exceeds $12,000). See also 126 Cong. Rec. 33928 (1980) (Sen. Long) (“Generally, State [Medicaid] rules could not be more restrictive than the Federal SSI rule except that the period of disqualification could be longer than 24 months in cases where a very large disposal of assets — more than $12,000 — is involved”). But see Senate Committee on Finance, Spending Reductions: Recommendations Required by the Reconciliation Process in Section 3 (a) (15) of H. Con. Res. 307, the First Budget Resolution for Fiscal Year 1981, 96th Cong., 2d Sess., 20 (Comm. Print 1980) (analysis of an identical amendment of the SSI statute included in S. 2885, 96th Cong., 2d Sess., § 511 (1980)) (“the committee amendment would require that any resources which an individual has given away or sold for less than fair market value would still be considered as available for his support, during the 2 years following the transfer of the asset”) (emphasis added). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
CROWN SIMPSON PULP CO. et al. v. COSTLE, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY
No. 79-797.
Decided March 17, 1980
Per Curiam.
Pursuant to § 301 of the Federal Water Pollution Control Act (Act), as added by the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 844, and amended by the Clean Water Act of 1977, 91 Stat. 1582, 33 U. S. C. § 1311 (1976 ed. and Supp. II), the Environmental Protection Agency (EPA) promulgates regulations limiting the amount of. effluent that can be discharged into navigable waters from a category or class of point sources of pollution. Requirements for particular plants or mills are implemented through National Pollutant Discharge Elimination System (NPDES) permits. EPA issues NPDES permits directly except in those States authorized by EPA to issue permits through their own programs. §§ 402 (b), 402 (c) of the Act, 33 U. S. C. §§ 1342 (b), 1342 (c) (1976 ed. and Supp. II). EPA is notified of the actions taken by state permit-issuing authorities and may veto the issuance of any permit by state authorities by objecting in writing within 90 days. § 402 (d)(2), 33 U. S. C. § 1342 (d)(2) (1976 ed., Supp. II). This case presents the question of whether the EPA’s action denying a variance and disapproving effluent restrictions contained in a permit issued by an authorized state agency is directly reviewable in the United States Court of Appeals under § 509 (b) of the Act, 86 Stat. 892, 33 U. S. C. § 1369 (b).
Petitioners operate bleached kraft pulpmills which discharge pollutants into the Pacific Ocean near Eureka, Cal. In 1976, they sought NPDES permits from the California Regional Water Resources Board, North Coast Region (Regional Board). The Director of EPA’s Region IX Enforcement Division objected to the permits proposed by the Regional Board. Petitioners sought direct review of the EPA’s action in the Court of Appeals for the Ninth Circuit.
Those direct review proceedings were stayed pending action by the California State Water Resources Control Board (State Board). The State Board set aside the orders of the Regional Board and proposed to issue new permits in their stead. App. to Pet. for Cert. 54. It granted petitioners’ requests for variances from EPA’s effluent limitations for Biochemical Oxygen' Demand (BOD) and pH, but established alternative effluent limitations for BOD and pH to apply in case ÉPA disapproved the variances in the proposed permits. EPA denied the requested variances and vetoed the permits to the extent that they exempted petitioners from full compliance with the BOD and pH effluent limitations. Petitioners brought a direct review action in the Ninth Circuit, which was consolidated with the actions which they had individually filed earlier.
The Court of Appeals dismissed the petitions for lack of jurisdiction. 599 F. 2d 897 (1979). It concluded that it had no jurisdiction under § 509 (b)(1)(E) of the Act, 33 U. S. C. § 1369 (b)(1)(E), which provides for review in the courts of appeals of actions “approving or promulgating any effluent limitation or other limitation. . . .” The Court of Appeals found this subsection inapplicable since EPA did not approve or promulgate anything when it rejected a proposed permit. 599 F. 2d, at 902. Further, the court found that the subsection applied to effluent limitations affecting categories of point sources rather than to decisions affecting particular plants only. Ibid.
The court also found jurisdiction lacking under § 509 (b) (1) (F) of the Act, 33 U. S. C. § 1369 (b)(1)(F), which provides for review in the courts of appeals of EPA actions “in issuing or denying any permit under [§ 402 of the Act]. . . .” The court recognized that in States where EPA itself administers the permit program, this subsection unquestionably provides for direct review in the courts of appeals. 599 F. 2d, at 903. However, because California administers its own permit-issuing program, EPA in the present case did no more than veto an NPDES permit proposed by the state authority. The Court of Appeals found that under its decision in Washington v. EPA, 573 F. 2d 583 (1978) (Scott Paper), EPA’s veto of a state-issued permit did not constitute “issuing or denying” a permit and therefore did not clothe the court with jurisdiction.
District Judge Renfrew, sitting by designation, concurred in the majority’s analysis of § 509 (b)(1) (E), and also agreed that the § 509 (b) (1) (F) question was foreclosed by Scott Paper. 599 F. 2d, at 905. However, Judge Renfrew, believing that Scott Paper was wrongly decided, urged the Court of Appeals to take the present case en banc in order to consider overruling that decision. He argued that vesting jurisdiction in the courts of appeals under § 509 (b)(1)(F) would best comport with the congressional goal of ensuring prompt resolution of challenges to EPA’s actions and would recognize that EPA’s veto of a state-issued permit is functionally similar to its denial of a permit in. States which do not administer an approved permit-issuing program.
We agree with the concurring opinion and hold that the Court of Appeals had jurisdiction over this action under § 509 (b) (1) (F). When EPA, as here, objects to effluent limitations contained in a state-issued permit, the precise effect of its action is to “den[y]” a permit within the meaning of § 509 (b)(1)(F). Under the contrary construction of the Court of Appeals, denials of NPDES permits would be reviewable at different levels of the federal-court system depending on the fortuitous circumstance of whether the State in which the case arose was or was not authorized to issue permits. Moreover, the additional level of judicial review in those States with permit-issuing authority would likely cause delays in resolving disputes under the Act. Absent a far clearer expression of congressional intent, we are unwilling to read the Act as creating such a seemingly irrational bifurcated system. We therefore grant the petition for cer-tiorari, reverse the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion.
So ordered.
We refer to the Administrator of EPA and to the Agency itself as EPA.
Section 402 was amended in 1977, after the permits in the present case were vetoed, to give EPA the power, which it did not then have, to issue its own permit if the State fails to meet EPA’s objection within a specified time. § 402 (d) (4) of the Act, as added, 91 Stat. 1599, 33 U. S. C. § 1342 (d)(4) (1976 ed., Supp. II). We do not consider the impact, if any, of this amendment on the jurisdictional issue presented herein.
The EPA has authorized the State of California to administer the NPDES program through the State Water Resources Control Board. The Regional Board exercises power delegated by the latter agency.
EPA’s national effluent limitations for the bleached segment of the American paper industry were substantially upheld in Weyerhaeuser Co. v. Costle, 191 U. S. App. D. C. 309, 590 F. 2d 1011 (1978).
The petitions challenging the actions of the Regional Board became moot once the State Board set aside the Regional Board’s orders. The only live administrative decision under review at the time of the Court of Appeals’ decision would appear to be that of the State Board.
State-proposed NPDES permits are issued under authority of § 402 (b) of the Act, 33 U. S. C. § 1342 (b) (1976 ed. and Supp. II).
Because we find that the Court of Appeals had jurisdiction over this action under § 509 (b) (1) (F), we do not decide whether it might also have had jurisdiction under § 509 (b) (1) (E).
Cf. E. I. du Pent de Nemours & Co. v. Train, 430 U. S. 112, 127-128, n. 18 (1977).
Our holding is consistent with the approach taken by the Court of Appeals for the Sixth Circuit, Republic Steel Corp. v. Costle, 581 F. 2d 1228, 1230, n. 1 (1978), cert. denied, 440 U. S. 909 (1979); Ford Motor Co. v. EPA, 567 F. 2d 661, 668 (1977), and with dicta in the Second and Ninth Circuits, Mianus River Preservation Comm. v. Administrator, EPA, 541 F. 2d 899, 909 (CA2 1976); Shell Oil Co. v. Train, 585 F. 2d 408, 412 (CA9 1978). The Court of Appeals in the present case relied on decisions holding that the EPA’s failure to object to a state-issued permit is not reviewable in the courts of appeals under § 509. Save the Bay, Inc. v. Administrator, EPA, 556 F. 2d 1282 (CA5 1977); Mianus River Preservation Comm., supra. However, those cases may be distinguishable because EPA’s failure to object, as opposed to its affirmative veto of a state-issued permit, would not necessarily amount to “Administrator’s action” within the meaning of §509 (b)(1). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
32
] |
BARNHART, COMMISSIONER OF SOCIAL SECURITY v. SIGMON COAL CO., INC., et al.
No. 00-1307.
Argued November 7, 2001
Decided February 19, 2002
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scaua, Kennedy, Soutee, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, in which O’Connor and Breyer, JJ., joined, post, p. 462.
Paul R. Q. Wolfson argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Acting As sistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Mark B. Stern, and Jeffrey Clair.
Peter Buscemi argued the cause for the Trustees of the United Mine Workers of America Combined Benefit Fund as amici curiae urging reversal. With him on the brief were John R. Mooney, Mark J. Murphy, and David W. Allen.
John R. Woodrum argued the cause for respondents. With him on the briefs was Harold R. Montgomery.
Grant Crandall filed a brief for the United Mine Workers of America as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Bellaire Corp. by Donald B. Ayer, Jonathan C. Rose, and Thomas A Smock; for R. G. Johnson Co., Inc., by Mary Lou Smith; and for USX Corp. et al. by David J. Laurent.
Justice Thomas
delivered the opinion of the Court.
This case arises out of the Commissioner of Social Security’s assignment, pursuant to the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act or Act), 26 U. S. C. § 9701 et seq. (1994 ed. and Supp. V), of 86 retired coal miners to the Jericol Mining, Inc. (Jericol). The question presented is whether the Coal Act permits the Commissioner to assign retired miners to the successors in interest of out-of-business signatory operators. The United States Court of Appeals for the Fourth Circuit held that it does not. Sigmon Coal Co. v. Apfel, 226 F. 3d 291 (2000). We affirm.
HH
The Coal Act reconfigured the system for providing private health care benefits to retirees in the coal industry. In restructuring this system, Congress had to contend with over half a century of collective-bargaining agreements between the coal industry and the United Mine Workers of America (UMWA), the coal miners’ union. Tensions between coal operators and the UMWA had often led to lengthy strikes with serious economic consequences for both the industry and its employees. Confronted with an industry fraught with contention, Congress was faced with a difficult task.
This was not the first time that the Federal Government had been called on to intervene in negotiations within the industry. Such tensions motivated President Truman, in 1946, to issue an Executive Order directing the Secretary of the Interior to take possession of all bituminous coal mines and to negotiate with the UMWA over changes in the terms and conditions of miners’ employment. See Eastern Enterprises v. Apfel, 524 U. S. 498, 504-505 (1998) (plurality opinion) (quoting 11 Fed. Reg. 5593 (1946)). These negotiations culminated in the first of many agreements that resulted in the creation of benefit funds compensating miners, their dependents, and their survivors. 524 U. S., at 505.
Subsequently, in 1947, the UMWA and several coal operators-entered into a collectively bargained agreement, the National Bituminous Coal Wage Agreement (NBCWA), which established a fund under which three trustees “were given authority to determine,” among other things, the allocation of benefits to miners and their families. Id., at 505-506. Further disagreement prompted the parties to negotiate another NBCWA in 1950. The following year, the Bituminous Coal Operators’ Association (BCOA) was created as a multi-employer bargaining association and primary representative for the coal operators in their negotiations with the UMWA. Id., at 506.
While the NBCWA was amended occasionally and new NBCWAs were adopted in 1968 and 1971, the terms and structure of the 1950 agreement remained largely unchanged between 1950 and 1974. Ibid. In 1974, in order to comply with the Employee Retirement Income Security Act of 1974, 29 U. S. C. § 1001 et seq. (1994 ed. and Supp. V), the UMWA and the BCOA negotiated a new agreement to finance benefits. 524 U. S., at 509. The 1974 NBCWA created four trusts that replaced the 1950 fund.
These benefit plans quickly developed financial problems. Thus, in 1978 the parties executed another NBCWA. This agreement assigned responsibility for the health care of active and retired employees to the respective coal mine operators who were signatories to the earlier NBCWAs, and left the 1974 Benefit Plan in effect only for those retirees whose former employers were no longer in business. Id., at 510.
Nonetheless, financial problems continued to plague the plans “as costs increased and employers who had signed the 1978 NBCWA withdrew from the agreement, either to continue in business with nonunion employees or to exit the coal business altogether.” Id., at 511. “As more and more coal operators abandoned the Benefit Plans, the remaining signatories were forced to absorb the increasing cost of covering retirees left behind by exiting employers.” Ibid. Pursuant to yet another NBCWA, the UMWA and the BCOA in 1988 attempted to remedy the problem, this time by imposing withdrawal liability on NBCWA signatories that seceded from the benefit plans.
Despite these efforts, the plans remained in serious financial crisis and, by June 1991, the 120,000 individuals who received health benefits from the funds were in danger of losing their benefits. Frieden, Congress Ponders Fate of Coal Miners’ Fund, 10 Business & Health 65 (Sept. 1992) (hereinafter Frieden). About 60% of these individuals were retired miners and their dependents whose former employers were no longer contributing to the benefit plans. Another 15% worked for employers that were no longer UMWA-represented or were never unionized. Karr, Union, Nonunion Coal Companies Head for Showdown on Retirement Benefits, Wall Street Journal, Mar. 3,1992, p. A6 (hereinafter Karr). These troubles were further aggravated by rising health care costs. Frieden 65.
The UMWA threatened to strike if a legislative solution was not reached. Karr A6. And BCOA members, which included those coal firms that were currently signatories to NBCWAs, threatened that they would not renew their commitments to cover retiree costs when their contracts expired.' Ibid. Following another strike and much unrest, Secretary of Labor Elizabeth Dole created the Advisory Commission on United Mine Workers of America Retiree Health Benefits (Coal Commission), which studied the problem and proposed several solutions. Eastern Enterprises, 524 U. S., at 511-512. In particular, the Coal Commission focused on how to finance the health care benefits of orphaned retirees.
Congress considered these and other proposals and eventually reconfigured the allocation of health benefits for coal miner retirees by enacting the Coal Act in 1992. Crafting the legislative solution to the crisis, however, was no easy task. The Coal Act was passed amidst a maelstrom of contract negotiations, litigation, strike threats, a Presidential veto of the first version of the bill and threats of a second veto, and high pressure lobbying, not to mention wide disagreements among Members of Congress.
The Act “merged the 1950 and 1974 Benefit Plans into a new multiemployer plan called the United Mine Workers of America Combined Benefit Fund (Combined Fund).” Id., at 514; see 26 U. S. C. § 9702(a) (1994 ed.). The Combined Fund “is financed by annual premiums assessed against 'signatory coal operators,’ i. e., coal operators that signed any NBCWA or any other agreement requiring contributions to the 1950 or 1974 Benefits Plans.” Eastern Enterprises, 524 U. S., at 514. Where the signatory is no longer in business, the statute assigns liability for beneficiaries to a defined group of “related persons.” Ibid.; see §§ 9706(a), 9701(c)(2), (7). The Coal Act charged the Commissioner of Social Security with assigning each eligible beneficiary to a signatory operator or its related persons. § 9706(a). The statute identifies specific categories of signatory operators (and their related persons) and requires the Commissioner to assign beneficiaries among these categories in a particular order. Ibid. The Coal Act also ensures that if a beneficiary remains unassigned because no existing company falls within the aforementioned categories, then benefits will be financed by the Combined Fund, either with funds transferred from interest earned on the Department of the Interior’s Abandoned Mine Reclamation Fund or from an additional premium imposed on all assigned signatory operators on a pro rata basis. See §§ 9704(a), (d), 9705(b).
•II
Respondent Jericol was formed in 1973 as Irdell Mining, Inc. (Irdell). Shortly thereafter, Irdell and another company purchased the coal mining operating assets of Shackle-ford Coal Company, a company that was a signatory to a coal wage agreement while it was in business. Sigmon Coal Co. v. Apfel, 33 F. Supp. 2d 505, 507 (WD Va. 1998). They acquired the right to use the Shackleford name and assumed responsibility for Shackleford’s outstanding contracts, including its collective-bargaining agreement with the UMWA. App. 23-24, 26. “There was no common ownership between Irdell and Shackleford.” 226 F. 3d, at 297. Irdell subsequently changed its name, operating as the Shackleford Coal Company until 1977, when it again changed its name to Jeri-col. The new company was a signatory only to the 1974 NBCWA.
Acting pursuant to § 9706(a), between 1993 and 1997, the Commissioner assigned premium responsibility for over 100 retired miners and dependents to Jericol. Of these, 86 were assigned under § 9706(a)(3) because they had worked for Shackleford and the Commissioner determined that as a “successor” or “successor in interest” to the original Shackle-ford, Jericol qualified as a “related person" to Shackleford. The others were assigned because they had actually worked for Jericol. Jericol appealed most of the Commissioner’s determinations, arguing that the assignments were erroneous both because Jericol was not a successor in interest to Shack-leford and because Jericol was not a related person to Shack-leford. See, e. g., Pet. for Cert. 45a~62a.
Dissatisfied with the outcome of administrative proceedings, respondent Sigmon Coal-Company, Inc., and Jericol filed suit against the Commissioner, arguing that he wrongfully assigned retirees and dependents to Jericol. 33 F. Supp. 2d, at 506. The District Court concluded that the classification regime of the Coal Act does not provide, directly or indirectly, “for liability to be laid at the door of successors of defunct signatory operators.” Id., at 509. The District Court ordered the Commissioner to withdraw the challenged assignments and enjoined the Commissioner from assigning additional retirees to Jericol on the basis that it is a related person to the original Shackleford.
The Commissioner appealed, arguing that a “straight reading” of the statute shows that a successor in interest to a signatory operator qualifies as a related person, thereby permitting the assignment of the retirees and dependents to Jericol. 226 F. 3d, at 303. Alternatively, the Commissioner argued that the District Court’s “reading . . . produces inexplicable, anomalous results that are clearly at odds with congressional intent.” Ibid.
“[D]eclin[ing] the Commissioner’s invitation to rewrite the Coal Act,” the United States Court of Appeals for the Fourth Circuit affirmed. Id., at 294. The Court of Appeals concluded that the “statute is clear and unambiguous” and that the court was “bound to read it exactly as it is written.” Ibid. Accordingly, the court held that Jericol was not a “related person” to Shackleford and thus could not be held responsible for Shackleford’s miners. The Court of Appeals rejected the Commissioner’s arguments that this reading either contravenes congressional intent or begets “some fairly odd results.” Id., at 305, 307. Rather, the Court of Appeals found plausible Jericol’s explanation that the plain text of the Act was consistent with Congress’ desire to promote the sale of coal companies and to respond to complaints by coal operators that they were being required to pay benefits for retired miners who had neither worked for them nor maintained any other relationship with them. Id., at 307. A plausible explanation, the court concluded, “is all we need to reject the assertion that the Coal Act’s definition of ‘related person’ is, on its face, absurd.” Id., at 308. Alternatively, the court reasoned, even if the literal text of the statute produced an arguably anomalous result, “we are not simply free to ignore unambiguous language because we can imagine a preferable version.” Ibid. This was not one of those rare cases, the court concluded, where Congress had drafted a statute that “produced an absurdity ‘so gross as to shock the general moral or common sense.’ ” Ibid, (quoting Maryland Dept. of Ed. v. Department of Veterans Affairs, 98 F. 3d 165, 169 (CA4 1996)).
We granted certiorari, 532 U. S. 993 (2001), and now affirm.
III
As in all statutory construction cases, we begin with the language of the statute. The first step “is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997) (citing United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 240 (1989)). The inquiry ceases “if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” 519 U. S., at 340.
With respect to the question presented in this case, this statute is unambiguous. The statutory text instructs that the Coal Act does not permit the Commissioner to assign beneficiaries to the successor in interest of a signatory operator. The statute provides:
“For purposes of this chapter, the Commissioner of Social Security shall, before October 1,1993, assign each coal industry retiree who is an eligible beneficiary to a signatory operator which (or any related person with respect to which) remains in business in the following order:
“(1) First, to the signatory operator which—
“(A) was a signatory to the 1978 coal wage agreement or any subsequent coal wage agreement, and
“(B) was the most recent signatory operator to employ the coal industry retiree in the coal industry for at least 2 years.
“(2) Second, if the retiree is not assigned under paragraph (1), to the signatory operator which—
“(A) was a signatory to the 1978 coal wage agreement or any subsequent coal wage agreement, and
“(B) was the most recent signatory operator to employ the coal industry retiree in the coal industry.
“(3) Third, if the retiree is not assigned under paragraph (1) or (2), to the signatory operator which employed the coal industry retiree in the coal industry for a longer period of time than any other signatory operator prior to the effective date of the 1978 coal wage agreement.” 26 U. S. C. § 9706(a) (1994 ed.).
In this case, the Commissioner determined that because Shackleford is a pre-1978 signatory and employed the disputed miners for over 24 months, assignment must be made under category 3. It then assigned the miners to Jericol after determining that Jericol was a successor in interest to Shackleford and was therefore a “related person” to Shackle-ford. 226 F. 3d, at 298.
We disagree with the Commissioner’s reasoning. Because the disputed retirees were employees of Shackleford, the “signatory operator” that sold its assets to Jericol (then-Irdell) in 1973, the Commissioner can only assign them to Jericol if it is a “related person” to Shackleford. The statute provides that “a person shall be considered to be a related person to a signatory operator if that person” falls within one of three categories:
“(i) a member of the controlled group of corporations (within the meaning of section 52(a)) which includes such signatory operator;
“(ii) a trade or business which is under common control (as determined under section 52(b)) with such signatory operator; or
“(iii) any other person who is identified as having a partnership interest or joint venture with a signatory operator in a business within the coal industry, but only if such business employed eligible beneficiaries, except that this clause shall not apply to a person whose only interest is as a limited partner.” § 9701(e)(2).
In addition, the last sentence of § 9701(c)(2)(A) states that “[a] related person shall also include a successor in interest of any person described in elause (i), (ii), or (iii).”
Although the Commissioner maintains that Jericol is a “related person” to Shackleford, Jericol does not fall within any of the three specified categories defining a “related person.” There is no contention that it was ever a member of a controlled group of corporations including Shackleford, that it was ever a business under common control with Shackleford, or that it ever had a partnership interest or engaged in a joint venture with Shackleford. Therefore, liability for these beneficiaries may attach to Jericol only if it is a successor in interest to an entity described in §§9701(c)(2)(A)(i)-(iii). Because Jericol is a successor in interest only to Shackleford, Jericol will be liable only if a signatory operator itself, here Shackleford, falls within one of these categories. None of the three categories, however, includes the signatory operator itself.
Nor should we infer as much, as it is a general principle of statutory construction that when “ ‘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) (quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972)). Where Congress wanted to provide for successor liability in the Coal Act, it did so explicitly, as demonstrated by other sections in the Act that give the option of attaching liability to “successors” and “successors in interest.”
For example, § 9706(b)(2) provides that with respect to beneficiaries of the Combined Fund, “[i]f a person becomes a successor of an assigned operator after the enactment date [of the Coal Act], the assigned operator may transfer the assignment of an eligible beneficiary ... to such successor, and such successor shall be treated as the assigned operator with respect to such eligible beneficiary for purposes of this chapter.” (Emphasis added.) The subsection also provides, however, that “the assigned operator transferring such assignment (and any related person) shall remain the guarantor of the benefits provided to the eligible beneficiary under this chapter.” Ibid. While this provision gives a postenactment successor the option of transferring the assignment and assuming the signatory operator’s liability, it does not address the liability of preenactment successors.
Further, §9711 enumerates the continuing obligations of Individual Employer Plans (IEPs) maintained pursuant to a 1978 or subsequent coal wage agreement. Section 9711(g)(1) provides that “[f]or [the] purposes of” IEPs and the 1992 UMWA Benefit Plan, “[t]he term ‘last signatory operator’ shall include a successor in interest of such operator.” Thus, in §9711, Congress gave “last signatory operator” a subsection-specific definition that extends the IEP obligations of a preenactment signatory operator to include its “successors in interest.”
Those subsections stand in direct contrast to the provisions implicated here: §§ 9701(c)(1), (2), and (4), which define “signatory operator,” “related persons,” and “last signatory operator,” respectively, “[f]or [the] purposes of this section,” and do not specify that they include or impose liability on the signatory operator’s successor in interest.
Despite the unambiguous language of the statute with respect to those entities to whom successor liability attaches, the Commissioner essentially asks that we read into the statute mandatory liability for preenactment successors in interest to signatory operators. This we will not do. “We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.” Russello, supra, at 23. Congress wrote the statute in a manner that provides for liability only for successors in interest to certain signatory operators. If Congress meant to make a preenactment successor in interest like Jericol liable, it could have done so clearly and explicitly.
Therefore, because the statute is explicit as to who may be assigned liability for beneficiaries and neither the “related persons” provision nor any other provision states that successors in interest to signatory operators may be assigned liability, the plain language of the statute necessarily precludes the Commissioner from assigning the disputed miners to Jericol.
IV
The Commissioner admits that the “statute does not state in haec verba that an assignment may be made to a direct successor in interest of the entity that was the signatory operator itself.” Brief for Petitioner 10. Nonetheless, the Commissioner concludes that, in light of the text, structure, and purposes of the Coal Act, such direct successors in interest are included within the liability scheme and should be responsible for a signatory operator’s Combined Fund premiums if the signatory operator itself is defunct and there is no other “related person” still in business. Ibid. We address the Commissioner’s arguments below.
A
The Commissioner proposes several readings of the statute. First, the Commissioner argues that, because the last sentence of § 9701(c)(2)(A) states that the term “related person” “includefs]” a successor in interest of “any person described in clause (i), (ii), or (iii),” and because these clauses mention the “signatory operator” itself, the signatory operator is “described” in clause (i) by virtue of the express reference. Brief for Petitioner 24.
The text of the statute does not support this reading. Where Congress wanted to include successors in interest, it did so clearly and explicitly. See supra, at 452-453. Each category of “related persons” describes a definitive group of persons. § 9701(c)(2). Congress neither created a separate category for signatory operators nor included signatory operators within these categories. It is unlikely that Congress intended to attach liability to a group such as successors in interest to signatory operators through a general clause that was meant to reach persons “described” in one of three explicit categories.
Second, the Commissioner argues that, under § 9701(c)(2) (A)(i), a signatory operator is necessarily a member of a controlled group of corporations that includes itself. Brief for Petitioner 24. This subsection provides that “related persons” include “a member of the controlled group of corporations (within the meaning of section 52(a)) which includes such signatory operator.” §.9701(e)(2)(A)(i). Thus, according to the Commissioner’s logic, if corporation A is a member of a controlled group that includes corporations A, B, and C, then a “successor in interest” of a member of the group of corporations A, B, and C includes a successor in interest of corporation A. Ibid.
Standing alone, the subsection supports the Commissioner’s argument that a signatory operator is necessarily a member of a group of corporations that includes itself. But this provision cannot be divorced from the clause that begins the related persons provision: “A person shall be considered to be a related person to a signatory operator if that person is — § 9701(c)(2)(A) (emphasis added). Under the Commissioner’s reading, the signatory operator would be related to itself. But just as it makes little sense to say that I am a related person to myself, it makes little sense to say that a signatory operator is a related person to itself. The statute therefore necessarily implies that a “related person” is a separate entity from a signatory operator. Moreover, the Commissioner’s argument only works where the signatory operator is actually part of a “controlled group of corporations.” The Commissioner does not account for the situation where a signatory operator is not part of a controlled group. And because the Commissioner does not contend that Shackleford was part of such a controlled group of corporations, this argument, in any event, has no force here.
B
The Commissioner also contends that the background, legislative history, and purposes of the Coal Act confirm that Congress intended that liability for a signatory operator’s employees could be placed on the signatory’s direct successor in interest.
1
As support, the Commissioner turns to the floor statements of Senators Malcolm Wallop and Jay Rockefeller, arguing that, because these Senators sponsored the Coal Act, their views are entitled to special weight. In particular, the Commissioner relies on an explanation of the legislation placed into the record by Senator Wallop, making the point that, in addition to the three categories of related persons, “the statute provides that related persons” includes “(iv) in specific instances successors to the collective bargaining agreement obligations of a signatory operator.” 138 Cong. Rec. 34002 (1992). The Commissioner also points to Senator Rockefeller’s statement that “[t]he term ‘signatory operator,’ as defined in new section 9701(c)(1), includes a successor in interest of such operator.” Id., at 34033.
Floor statements from two Senators cannot amend the clear and unambiguous language of a statute. We see no reason to give greater weight to the views of two Senators than to the collective votes of both Houses, which are memorialized in the unambiguous statutory text.
2
The Commissioner also argues that construing the related person provision to exclude a signatory’s direct successor in interest would be contrary to Congress’ stated purpose of ensuring that each Combined Fund beneficiary’s health care costs is borne (if possible) by the person with the most direct responsibility for the beneficiary, not by persons that had no connection with the beneficiary or by the public fisc. The Commissioner contends that the Court should choose a construction of the statute that effectuates Congress’ “overriding purpose” of avoiding a recurrence of the orphan retiree catastrophe, which was caused in large part by operators avoiding responsibility for their beneficiaries by changing their corporate structures, selling assets, or ceasing operations. See Brief for Petitioner 30.
The Commissioner further suggests that the Court of Appeals’ construction of the statute leads to the counter-intuitive result that a direct successor in interest of a signatory may not be made responsible for a signatory’s beneficiaries — even though such successor liability would be supported by the background principles of successorship— while a more distantly related successor in interest of a corporate affiliate of a signatory operator may be made responsible for the signatory’s beneficiaries. Thus, the Commissioner appears to request that the Court invoke some form of an absurd results test. Id., at 32 (citing United States v. X-Citement Video, Inc., 513 U. S. 64, 70-71 (1994); United States v. Brown, 333 U. S. 18, 27 (1948)).
Respondents correctly note that the Court rarely invokes such a test to override unambiguous legislation. Moreover, respondents offer several explanations for why Congress would have purposefully exempted successors in interest of a signatory operator from the “related person” definition. First, respondents argue that coal operators undoubtedly would have opposed legislation that seriously expanded their liability with respect to miners that they had never employed, and that it is hard to imagine that the 1988 signatory companies would have agreed to a compromise that exposed them to open-ended statutory liability linked to decades of buying, selling, and trading property. Brief for Respondents 39-43.
Second, respondents speculate that Congress may have concluded that injecting coal industry successor issues into the Commissioner’s task, of allocating liability for more than 100,000 UMWA retirees and dependents would consume a disproportionate share of the agency’s resources, create gridlock in the assignment process, precipitate endless operator challenges under the Coal Act’s administrative review process, and thwart implementation of the program. Id., at 43-45. Finally, respondents suggest that Congress could have been concerned about the adverse impact that successor liability might have had on the valuation and sale of union companies and properties. Id., at 45-46.
Where the statutory language is clear and unambiguous, we need neither accept nor reject a particular “plausible” explanation for why Congress would have written a statute that imposes liability on the successors of the companies that fall within the categories of §§ 9701(c)(2)(A)(i) — (iii) but not on successors to the signatory operators themselves. Dissatisfied with the text of the statute, the Commissioner attempts to search for and apply an overarching legislative purpose to each section of the statute. Dissatisfaction, however, is often the cost of legislative compromise. And negotiations surrounding enactment of this bill tell a typical story of legislative battle among interest groups, Congress, and the President. See supra, at 445-446, and nn. 6-7. Indeed, this legislation failed to ease tensions among many of the interested parties. Its delicate crafting reflected a compromise amidst highly interested parties attempting to pull the provisions in different directions. See, e. g., 6 Legislative History 4569-4571. As such, a change in any individual provision could have unraveled the whole. It is quite possible that a bill that assigned liability to successors of signatory operators would not have survived the legislative process. The deals brokered during a Committee markup, on the floor of the two Houses, during a joint House and Senate Conference, or in negotiations with the President, however, are not for us to judge or second-guess.
Our role is to interpret the language of the statute enacted by Congress. This statute does not contain conflicting provisions or ambiguous language. Nor does it require a narrowing construction or application of any other canon or interpretative tool. “We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992) (quoting Rubin v. United States, 449 U. S. 424, 430 (1981)) (citations omitted). We will not alter the text in order to satisfy the policy preferences of the Commissioner. These are battles that should be fought among the political branches and the industry. Those parties should not seek to amend the statute by appeal to the Judicial Branch.
C
The Commissioner’s final argument is that, even if the Coal Act did not affirmatively provide that responsibility for combined fund premiums may be imposed on a signatory’s direct successor, it was reasonable for the Commissioner to conclude that direct successors of a signatory operator should be responsible for the operator’s employees. Congress, however, did not delegate authority to the Commissioner to develop new guidelines or to assign liability in a manner inconsistent with the statute. In the context of an unambiguous statute, we need not contemplate deferring to the agency’s interpretation. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984).
Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
A signatory operator is a “coal operatofr] that signed any [National Bituminous Coal Wage Agreement] or any other agreement requiring contributions to the 1950 or 1974 Benefit Plans.” Eastern Enterprises v. Apfel, 524 U. S. 498, 514 (1998); see also 26 U. S. C. § 9701(c)(1) (1994 ed.) (“The term ‘signatory operator’ means a person which is or was a signatory to a coal wage agreement”).
In Eastern Enterprises, 524 U. S., at 504-514, we discussed at great length the history of negotiations between the coal industry and the UMWA over the provision of employee benefits to coal miners. We provide only a brief summary here.
These trusts included the UMWA 1950 Benefit Plan and Trust (1950 Benefit Plan), which provided nonpension benefits including medical benefits for miners who retired before January 1, 1976, and the UMWA 1974 Benefit Plan and Trust (1974 Benefit Plan), which provided such benefits for active miners and those who retired after 1975. Id., at 509.
The term “orphan retirees” encompassed both “true orphans,” whose former employers were no longer in business, and “reachback orphans,” whose former employers were still in business but no longer signatories to a coal wage agreement and possibly no longer in the coal business. House Committee on Ways and Means, Development and Implementation of the Coal Industry Retiree Health Benefit Act of 1992,104th Cong., 1st Sess., 1 (Comm. Print 1995) (hereinafter Development).
See, e. g., McGlothlin v. Connors, 142 F. R. D. 626 (WD Va. 1992). This lawsuit involved the beneficiaries of the 1950 Benefit Plan and the 1974 Benefit Plan, the trustees, and the BCOA. The District Court Judge encouraged them to “zealously seek passage of a bill in Congress to permit the transfer of other funds now in the possession of the Trustees, which are in excess of any future projected needs, to finance the Benefit Trusts.” Id., at 646.
Under the original proposal, introduced by Senator Jay Rockefeller, benefits would have been financed through taxes on the entire coal industry and premiums collected from reachback companies that were considered responsible for specific orphans. Development 12. With support from both the UMWA and the BCOA, but not the Private Benefits Alliance (PBA), a group of nonunion companies, Congress originally passed this bill as part of a comprehensive tax package. See Karr A6. President Bush, however, vetoed the entire package, in part because of the coal tax provisions. Tax Package Veto Kills Bailout Plan; Rockefeller Vows to Find Another Way, Mine Regulation Reporter, Mar. 27, 1992, 1992 WL 2219562. Members of Congress continued to push for legislation, using a comprehensive energy bill as the vehicle. While Senator Rockefeller attempted to add the coal tax provision to the energy bill, his measure was strongly opposed by a number of Senators and by the Bush administration. Cloture Motion on Energy Bill Fails but Dole Says Resolution of Dispute Over Controversial Coal Tax May Be Near; Bush Threatens Veto if it Remains, Foster Natural Gas Report, No. 1886, July 23,1992, p. 1. After much negotiation, the final version of the bill did not include the tax provision and provided that only companies that were party to the NBCWAs would be required to cover retiree health costs. Senate Adopts Compromise Amendment on Funding of Miner Health Benefits, 147 BNA Daily Labor Report No. 147, p. A-12 (July 30, 1992).
The UMWA and the BCOA, for example, had joined forces to support legislation that would require nonunion companies to share in the cost of providing the health benefits, thereby shifting the burden of paying into the funds to the entire industry. By contrast, the PBA, the alliance of nonunion companies, insisted that because they never employed any of the retirees, they should not be forced to pick up the other companies’ obligations. Karr A6.
The term “beneficiary” refers to an individual who “(1) is a coal industry retiree who, on July 20, 1992, was eligible to receive, and receiving, benefits from the 1950 UMWA Benefit Plan or the 1974 UMWA Benefit Plan, or (2) on such date was eligible to receive, and receiving, benefits in either such plan by reason of a relationship to such retiree.” § 9703(f).
Jericol did not appeal the most recent 1997 assignment to the Commissioner, arguing that it had already filed suit and should not be required to exhaust its administrative remedies before seeking relief given the similarity of the law and facts underlying each assignment of Shackleford’s miners to Jericol. The District Court agreed. Sigmon Coal Co. v. Apfel, 33 F. Supp. 2d 505, 508 (WD Va. 1998).
In this case, we are only reviewing whether Jericol is a related person to Shackleford.
Sigmon Coal joined Jericol as a plaintiff apparently because they are related persons under the Coal Act, 26 U. S. C. § 9701(c)(2) (1994 ed.), and thus jointly and severally responsible for any amounts due from either. § 9704(a). See 33 F. Supp. 2d, at 506, n. 3.
The rules applicable to successors of signatory operators who maintain such plans are provided in §§ 9711(g)(1) and (2); § 9711(g)(2) discusses the obligations of a person who becomes a successor of a last signatory operator postenactment, and is nearly identical to § 9706(b)(2).
Placed in its proper context, this statement is entirely consistent with the statutory text. Senator Wallop noted first that the bill makes “each such related person fully responsible for the signatory operator’s obligation to provide benefits under the Act should the signatory no longer be in business, or otherwise fail to fulfill its obligations under the Act.” 138 Cong. Rec., at 34002 (emphasis added). After listing the three categories of related persons, Senator Wallop then added category (iv): “in specific instances successors to the collective bargaining agreement obligations of a signatory operator — are equally obligated with the signatory operator to pay for continuing health care coverage.” Ibid, (emphasis added). To begin with, it must be noted that Senator Wallop did not state that all successors are responsible for the beneficiaries. Rather, he narrowed the group with the qualifying phrase “in specific instances.” And Senator Wallop did not suggest that responsibility attaches to successors in interest to signatory operators. Instead, the “successors to the collective bargaining agreement obligations” are nothing more than those entities that he previously identifies as “fully responsible for the signatory operator’s obligation”: the related persons categorized in clauses (i)-(iii). Consequently, the statement is consistent with the final sentence of the related persons definition which provides that “[a] related person shall also include a successor in interest of any person described in clause (i), (ii), or (iii).” § 9701(c)(2)(A).
We need look to only the statutory text to know that the definition in fact does not include the successor in interest. See § 9701(c)(1) (“The term ‘signatory operator’ means a person which is or was a signatory to a coal wage agreement”). See supra, at 455.
Despite the dissent’s assertion that we should defer to what it characterizes as “clear evidence of coherent congressional intent,” post, at 462 (opinion of Stevens, J.), the dissent points to only two sentences in the Congressional Record. Even if we were to believe that floor statements can amend clear statutory language, these statements can hardly be characterized as “clear evidence.” To begin with, the dissent mischaracter-izes Senator Wallop’s statement, neglecting to explain its context and to include the qualifying phrase “in specific instances.” See supra, at 457, n. IS. Absent support from Senator Wallop’s statement, the dissent is left only with Senator Rockefeller’s explanation. The dissent essentially contends that we should use a single sentence in a long colloquy to effect a major change in the statute. However, the dissent fails to note that the House passed the bill on October 5, 1992, three days before Senator Rockefeller made his statement. See 6 Legislative History of the Energy Policy Act of 1992 (Committee Print compiled for the Senate Committee on Energy and Natural Resources by the Library of Congress), p. 4678 (1994) (hereinafter Legislative History). There is no indication that Senator Rockefeller’s version of the provision garnered the support of the House, the Senate, and the President. And, given that the House had already passed the bill, the dissent’s additional reliance on the absence of a response to the Senators’ explanation simply makes no sense. See post, at 468-469. Moreover, were we to adopt this form of statutory interpretation, we would be placing an obligation on Members of Congress not only to monitor their colleague’s floor statements but to read every word of the Congressional Record including written explanations inserted into the record. This we will not do. The only “evidence” that we need rely on is the clear statutory text.
The Commissioner asks that the Court apply the background principles of successorship, as articulated in the Court’s treatment of labor, employment, and benefit statutes, that a corporate entity’s liability under a statutory scheme should be attributed to the entity’s direct successor in interest. Brief for Petitioner 36-40. But in the Coal Act, Congress expressly delineated those parties to which it sought to attach responsibility. Where a statute provides an explicit and all-inclusive scheme that does not include successors in interest to signatory operators, and where there is no indication that Congress intended that the statute be supplemented by reference to background principles, we will not import these principles into our analysis.
The dissent makes the conclusory assertion that our “interpretation of the statute . .. recreates the same difficulties that beset the NBCWAs and that Congress explicitly sought to avoid.” See post, at 471. The dissent, however, provides no data for its conclusory assertion. Nor does it explain how our interpretation “recreates the same difficulties that beset the NBCWAs.” Ibid. And the dissent ignores the fact that the new scheme broadly expanded the group of persons responsible for beneficiaries. Thus, the fact that Congress declined to attach liability to one group of persons tells us nothing about the new system’s viability.
Respondents argue that successor liability covering 40 years of pre-Act transactions could have exploded the number of Combined Fund beneficiaries potentially assignable to the 1988 signatory operators. See Brief for Respondents 41. It would have been difficult for the 1988 signatories to estimate their potential liability under a legislative fix that included successor liability. Thousands of pre-1976 UMWA retirees were potential candidates for assignment to a 1988 NBCWA signatory under such broad based successor liability.
If Congress had retroactively burdened coal asset purchasers for financial shortfalls arising from failures under a private party contract, respondents argue, future purchasers would be wary about paying fair market value for coal property. Such concerns might destabilize the unionized industry’s economic underpinning, at a time when many assigned operators might need to raise money to help defray costs imposed by the Act.
The UMWA’s lobbying efforts precipitated a lawsuit by the Pittston Coal Company, which sued the UMWA for $250 million, alleging “that at the conclusion of the 1989-1990 strike, the union promised not to lobby on behalf of legislation making ‘reachback’ companies resume payments to the” retiree health system. UMW Denies Breaching Pittston Pact, 17 Coal Outlook, Dec. 6,1993,1993 WL 2678868. “Pittston accused the union of violating a promise not to lobby for industry wide taxation to bail out two retiree health funds.” UMW, Pittston Reach Tentative Deal, 18 Coal Outlook, June 20,1994,1994 WL 2480375. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
105
] |
BEST et al. v. HUMBOLDT PLACER MINING CO. et al.
No. 52.
Argued December 10, 1962. —
Decided January 14, 1963.
Roger P. Marquis argued the cause for petitioners. With him on the brief were Solicitor General Cox, Stephen J. Poliak and A. Donald Mileur.
Charles L. Gilmore argued the cause and filed a brief for respondents.
Mr. Justice Douglas
delivered the opinion of the Court.
The United States sued in the District Court to condemn certain property needed for the construction of the Trinity River Dam and Reservoir in California, to obtain immediate possession of it, and to secure title to it, the complaint asking that the United States be allowed to reserve authority to have the validity of mining claims determined in administrative proceedings before the Bureau of Land Management of the Department of the Interior. The District Court allowed the United States a writ of possession; but no other issues in the action have been determined. See 185 F. Supp. 290.
The United States later instituted a contest proceeding in the local land office of the Bureau seeking an administrative determination of the validity of respondents’ mining claims and alleged that the land embraced within respondents’ claims is nonmineral in character and that minerals have not been found within the limits of the claims in sufficient quantities to constitute a valid discovery. Respondents, who had 30 days to answer the administrative complaint or have the allegations taken as confessed, brought the present suit to enjoin the officials of the Department of the Interior from proceeding with the administrative action. The District Court granted summary judgment for the United States. 185 F. Supp. 290. The Court of Appeals reversed, 293 F. 2d 553. The case is here on a petition for certiorari which we granted. 368 U. S. 983.
We deal here with a unique form of property. A mining claim on public lands is a possessory interest in land that is “mineral in character” and as respects which discovery “within the limits of the claim” has been made. Cameron v. United States, 252 U. S. 450, 456. The discovery must be of such a character that “a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine.” Castle v. Womble, 19 L. D. 455, 457; Chrisman v. Miller, 197 U. S. 313, 322; Cameron v. United States, supra, p. 459. A locator who does not carry his claim to patent does not lose his mineral claim, though he does take the risk that his claim will no longer support the issuance of a patent. United States v. Houston, 66 L. D. 161, 165. It must be shown before a patent issues that at the time of the application for patent “the claim is valuable for minerals,” worked-out claims not qualifying. United States v. Logomarcini, 60 L. D. 371, 373.
Respondents’ mining claims are unpatented, the title to the lands in controversy still being in the United States. The claims are, however, valid against the United States if there has been a discovery of mineral within the limits of the claim, if the land& are still mineral, and if other statutory requirements have been met. Cameron v. United States, supra. The determination of the validity of claims against the public lands was entrusted to the General Land-Office in 1812 (2 Stat. 716) and transferred to the Department of the Interior on its creation in 1849. 9 Stat. 395. Since that time, the Department has been granted plenary authority over the administration of public lands, including mineral lands; and it has been given broad authority to issue regulations concerning them. Cameron v. United States, supra—an opinion written by Mr. Justice Van Devanter, who, as Assistant Attorney General for the Interior L>epartment from 1897 to 1903, did more than any other person to give character and distinction to the administration of the public lands— illustrates the special role of the Department of the Interior in that field. Cameron claimed a valid mineral discovery on public lands. His claim was rejected in administrative proceedings. Cameron, however, would not vacate the land and the United States sued to oust him. The Court said:
“By general statutory provisions the execution of the laws regulating the acquisition of rights in the public lands and the general care of these lands is confided to the land department, as a special tribunal; and the Secretary of the Interior, as .the head of the department, is charged with seeing that this authority is rightly exercised to the end that valid claims may be recognized, invalid ones eliminated, and the rights of the public preserved. . . .
“A mining location which has not gone to patent is of no higher quality and no more immune from attack and investigation than are unpatented claims under the homestead and kindred laws. If valid, it gives to the claimant certain exclusive possessory rights, and so do homestead and desert claims. But no right arises from an invalid claim of any kind. All must conform to the law under which they are initiated; otherwise they work an unlawful private appropriation in derogation of the rights of the public.
“Of course, the land department has no power to strike down any claim arbitrarily, but so long as the legal title remains in the Government it does have power, after proper notice and upon adequate hearing, to determine whether the claim is valid and, if it be found invalid, to declare it null and void.” 252 U. S. 450, 459-460.
“Due process in such case implies notice and a hearing. But this does not require that the hearing must be in the courts, or forbid an inquiry and determination in the Land Department.” Orchard v. Alexander, 157 U. S. 372, 383. If a patent has not issued, controversies over the claims “should be solved by appeal to the land department and not to the courts.” Brow v. Hitchcock, 173 U. S. 473, 477. And see Northern Pacific R. Co. v. McComas, 250 U. S. 387, 392.
The Court of Appeals wrote nothing in derogation of these principles. It concluded, however, that since the United States went into the District Court to condemn these property interests and to get immediate possession, the validity of the claims was, of necessity, left to judicial determination. Its conclusion rested primarily on Rule 71A of the Federal Rules of Civil Procedure. That Rule, after describing the way in which the issue of compensation shall be determined, concludes with the sentence “Trial of all issues shall otherwise be by the court.”
Yet courts that try issues sometimes wait,until the administrative agency that has special competence in the field has ruled on them. The controversies within the Court over the appropriateness of that procedure in given situations is well known, though there is no dispute over the soundness of the* Abilene doctrine, adumbrated by Chief Justice White in Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426. It is difficult to imagine a more appropriate case for invocation of the jurisdiction of an administrative agency for determination of one of the issues involved in a judicial proceeding. Cf. Thompson v. Magnolia Petroleum Co., 309 U. S. 478; Thompson v. Texas Mexican R. Co., 328 U. S. 134, 146-151. Congress has entrusted the Department of the Interior with the management of the public domain and prescribed the process by which claims against the public domain may be perfected. The United States, which holds legal title to the lands, plainly can prescribe the procedure which any claimant must follow to acquire rights in the public sector.
Respondents protest, saying that if they are remitted to the administrative proceeding, they will suffer disadvantages in that the procedures before the District Court are much less onerous on claimants than those before the Department of the Interior. We express no views on those contentions, as each of them can appropriately be raised in the administrative proceedings and reserved for judicial review.
The United States is not foreclosed from insisting on resort to the administrative proceedings for a determination of the validity of those claims. It may take property pursuant to its power of eminent domain, either by entering into physical possession of the property without a court order, or by instituting condemnation proceedings under various Acts of Congress. United States v. Dow, 357 U. S. 17, 21. Title to the property passes later, though the entry into possession marks the taking, gives rise to the claim for compensation, and fixes the date as of which the property is to be valued. Id., p. 22. Institution of suit is one way to obtain immediate possession; and we see nothing incompatible between the use of that means to obtain possession and the use of the administrative proceedings to determine title. Cf. United States v. 93.970 Acres, 360 U. S. 328. No purpose would be served by forcing the United States to abandon that orderly procedure in favor of physical seizure, leaving the claimant to a suit under the Tucker Act. See United States v. Dow, supra, p. 21.
We conclude that the institution of the suit in the District Court was an appropriate way of obtaining immediate possession, that it was not inconsistent with the administrative remedy for determining the validity of the mining claims, and that the District Court acted properly in holding its hand until the issue of the validity of the claims has been resolved by the agency entrusted by Congress with the task:
Reversed.
See S. Doc. No. 113, 81st Cong., 1st Sess. 120, stating that the project will require 10,000 acres.
See Appeals and Contests Regulation of the Bureau of Land Management, 43 CFR, 1962 Supp., §221.67.
Id., §221.64.
30 U. S. C. §§21, 22, 26; General Mining Regulation of the Bureau of Land Management, 43 CFR §§ 185.1-185.3.
See 5 TJ. S. C. § 485; 43 U. S. C. § 2.
See 30 U. S. C. § 22, 43 U. S. C. § 1201.
Claimants today may appeal the Examiner’s decision to the Director of the Bureau (43 CFR., 1962 Supp., §221.1), from him to the Secretary {id., § 221.31), and from there to the courts. Foster v. Seaton, 271 F. 2d 836.
We are told that nine hearing Examiners are assigned to mining-claim cases, that mining claims comprise from 75% to 85% of their hearings, and that in the fiscal year 1960-1961, 322 mining-law cases (involving 1,162 separate claims) were brought before the hearing Examiners. Of these, 81 cases (343 claims) were closed on procedural grounds without a hearing; in 241 eases (involving 819 claims), hearings on the merits were held and decisions rendered by the hearing Examiner; in 90 of these cases, appeals were taken to the Director of the Bureau of Land Management.
In the fiscal year 1961 there were a total of 27,228 mining-claim adjudication cases closed during the year. These included 7,457 title-transfer cases (e. g., patent applications and land-disposition conflicts), and approximately 20,000 mining-claim investigations by the Bureau’s mining engineers for the purpose of determining validity or invalidity. See Annual Report, Director, Bureau of Land Management, 1961, pt. 4, pp. 86-120 (Statistical Appendix).
Respondents say (1) that in the District Court value would be determined as of the time of the taking, while before the agency value is determined as of the date of the hearing before the Examiner; (2) that the strictures on proof of “discovery” in the administrative proceedings are so great that they could not be satisfied unless the Trinity Basin Reservoir were drained; (3) that in the District Court value could be established by a showing of valuable deposits of gold, while before the Examiner a claim could be established only on proof that mines were actually operating at a profit. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
25
] |
UNITED STATES PATENT AND TRADEMARK OFFICE, et al., Petitioners
v.
BOOKING.COM B. V.
No. 19-46
Supreme Court of the United States.
Argued May 4, 2020
Decided June 30, 2020
Sarah T. Harris, General Counsel, Thomas W. Krause, Solicitor, Christina J. Hieber, Senior Counsel, Molly R. Silfen, Associate Solicitor, United States Patent and Trademark Office, Alexandria, Va., Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Erica L. Ross, Assistant to the Solicitor, General, Mark R. Freeman, Daniel Tenny, Weili J. Shaw, Attorneys, Department of Justice, Washington, D.C., for Petitioners.
David H. Bernstein, Jared I. Kagan, Debevoise & Plimpton LLP, Jonathan E. Moskin, Foley & Lardner LLP, New York, NY, Lisa S. Blatt, Sarah M. Harris, Eden Schiffmann, John B. Swanson, Williams & Connolly LLP, Washington, DC, for Respondent.
Justice GINSBURG delivered the opinion of the Court.
This case concerns eligibility for federal trademark registration. Respondent Booking.com, an enterprise that maintains a travel-reservation website by the same name, sought to register the mark "Booking.com." Concluding that "Booking.com" is a generic name for online hotel-reservation services, the U. S. Patent and Trademark Office (PTO) refused registration.
A generic name-the name of a class of products or services-is ineligible for federal trademark registration. The word "booking," the parties do not dispute, is generic for hotel-reservation services. "Booking.com" must also be generic, the PTO maintains, under an encompassing rule the PTO currently urges us to adopt: The combination of a generic word and ".com" is generic.
In accord with the first- and second-instance judgments in this case, we reject the PTO's sweeping rule. A term styled "generic.com" is a generic name for a class of goods or services only if the term has that meaning to consumers. Consumers, according to lower court determinations uncontested here by the PTO, do not perceive the term "Booking.com" to signify online hotel-reservation services as a class. In circumstances like those this case presents, a "generic.com" term is not generic and can be eligible for federal trademark registration.
I
A
A trademark distinguishes one producer's goods or services from another's. Guarding a trademark against use by others, this Court has explained, "secure[s] to the owner of the mark the goodwill" of her business and "protect[s] the ability of consumers to distinguish among competing producers." Park 'N Fly, Inc. v. Dollar Park & Fly, Inc. , 469 U.S. 189, 105 S.Ct. 658, 83 L.Ed.2d 582, 198 (1985) ; see S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946) (trademark statutes aim to "protect the public so it may be confident that, in purchasing a product bearing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get"). Trademark protection has roots in common law and equity. Matal v. Tam , 582 U. S. ----, ----, 137 S.Ct. 1744, 1751, 198 L.Ed.2d 366 (2017). Today, the Lanham Act, enacted in 1946, provides federal statutory protection for trademarks. 60 Stat. 427, as amended, 15 U.S.C. § 1051 et seq. We have recognized that federal trademark protection, supplementing state law, "supports the free flow of commerce" and "foster[s] competition." Matal , 582 U. S., at ----, ---- - ----, 137 S.Ct., at 1751-1752, 1752-1753 (internal quotation marks omitted).
The Lanham Act not only arms trademark owners with federal claims for relief; importantly, it establishes a system of federal trademark registration. The owner of a mark on the principal register enjoys "valuable benefits," including a presumption that the mark is valid. Iancu v. Brunetti , 588 U. S. ----, ----, 139 S.Ct. 2294, 2297-2298, 204 L.Ed.2d 714 (2019) ; see §§ 1051, 1052. The supplemental register contains other product and service designations, some of which could one day gain eligibility for the principal register. See § 1091. The supplemental register accords more modest benefits; notably, a listing on that register announces one's use of the designation to others considering a similar mark. See 3 J. McCarthy, Trademarks and Unfair Competition § 19:37 (5th ed. 2019) (hereinafter McCarthy). Even without federal registration, a mark may be eligible for protection against infringement under both the Lanham Act and other sources of law. See Matal , 582 U. S., at ---- - ----, 137 S.Ct., at 1752-1753.
Prime among the conditions for registration, the mark must be one "by which the goods of the applicant may be distinguished from the goods of others." § 1052 ; see § 1091(a) (supplemental register contains "marks capable of distinguishing ... goods or services"). Distinctiveness is often expressed on an increasing scale: Word marks "may be (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful." Two Pesos, Inc. v. Taco Cabana, Inc. , 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992).
The more distinctive the mark, the more readily it qualifies for the principal register. The most distinctive marks-those that are " 'arbitrary' ('Camel' cigarettes), 'fanciful' ('Kodak' film), or 'suggestive' ('Tide' laundry detergent)"-may be placed on the principal register because they are "inherently distinctive." Wal-Mart Stores, Inc. v. Samara Brothers, Inc. , 529 U.S. 205, 210-211, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000). "Descriptive" terms, in contrast, are not eligible for the principal register based on their inherent qualities alone. E.g. , Park 'N Fly, Inc. v. Dollar Park & Fly, Inc. , 718 F.2d 327, 331 (CA9 1983) ("Park 'N Fly" airport parking is descriptive), rev'd on other grounds, 469 U.S. 189, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985). The Lanham Act, "liberaliz[ing] the common law," "extended protection to descriptive marks." Qualitex Co. v. Jacobson Products Co. , 514 U.S. 159, 171, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995). But to be placed on the principal register, descriptive terms must achieve significance "in the minds of the public" as identifying the applicant's goods or services-a quality called "acquired distinctiveness" or "secondary meaning." Wal-Mart Stores , 529 U.S. at 211, 120 S.Ct. 1339 (internal quotation marks omitted); see § 1052(e), (f). Without secondary meaning, descriptive terms may be eligible only for the supplemental register. § 1091(a).
At the lowest end of the distinctiveness scale is "the generic name for the goods or services." §§ 1127, 1064(3), 1065(4). The name of the good itself (e.g. , "wine") is incapable of "distinguish[ing] [one producer's goods] from the goods of others" and is therefore ineligible for registration. § 1052 ; see § 1091(a). Indeed, generic terms are ordinarily ineligible for protection as trademarks at all. See Restatement (Third) of Unfair Competition § 15, p. 142 (1993); Otokoyama Co. v. Wine of Japan Import, Inc. , 175 F.3d 266, 270 (CA2 1999) ("[E]veryone may use [generic terms] to refer to the goods they designate.").
B
Booking.com is a digital travel company that provides hotel reservations and other services under the brand "Booking.com," which is also the domain name of its website. Booking.com filed applications to register four marks in connection with travel-related services, each with different visual features but all containing the term "Booking.com."
Both a PTO examining attorney and the PTO's Trademark Trial and Appeal Board concluded that the term "Booking.com" is generic for the services at issue and is therefore unregistrable. "Booking," the Board observed, means making travel reservations, and ".com" signifies a commercial website. The Board then ruled that "customers would understand the term BOOKING.COM primarily to refer to an online reservation service for travel, tours, and lodgings." App. to Pet. for Cert. 164a, 176a. Alternatively, the Board held that even if "Booking.com" is descriptive, not generic, it is unregistrable because it lacks secondary meaning.
Booking.com sought review in the U. S. District Court for the Eastern District of Virginia, invoking a mode of review that allows Booking.com to introduce evidence not presented to the agency. See § 1071(b). Relying in significant part on Booking.com's new evidence of consumer perception, the District Court concluded that "Booking.com"-unlike "booking"-is not generic. The "consuming public," the court found, "primarily understands that BOOKING.COM does not refer to a genus, rather it is descriptive of services involving 'booking' available at that domain name." Booking.com B.V. v. Matal , 278 F.Supp.3d 891, 918 (2017). Having determined that "Booking.com" is descriptive, the District Court additionally found that the term has acquired secondary meaning as to hotel-reservation services. For those services, the District Court therefore concluded, Booking.com's marks meet the distinctiveness requirement for registration.
The PTO appealed only the District Court's determination that "Booking.com" is not generic. Finding no error in the District Court's assessment of how consumers perceive the term "Booking.com," the Court of Appeals for the Fourth Circuit affirmed the court of first instance's judgment. In so ruling, the appeals court rejected the PTO's contention that the combination of ".com" with a generic term like "booking" "is necessarily generic." 915 F. 3d 171, 184 (2019). Dissenting in relevant part, Judge Wynn concluded that the District Court mistakenly presumed that "generic.com" terms are usually descriptive, not generic.
We granted certiorari, 589 U. S. ----, 140 S.Ct. 489, 205 L.Ed.2d 290 (2019), and now affirm the Fourth Circuit's decision.
II
Although the parties here disagree about the circumstances in which terms like "Booking.com" rank as generic, several guiding principles are common ground. First, a "generic" term names a "class" of goods or services, rather than any particular feature or exemplification of the class. Brief for Petitioners 4; Brief for Respondent 6; see §§ 1127, 1064(3), 1065(4) (referring to "the generic name for the goods or services"); Park 'N Fly , 469 U.S. at 194, 105 S.Ct. 658 ("A generic term is one that refers to the genus of which the particular product is a species."). Second, for a compound term, the distinctiveness inquiry trains on the term's meaning as a whole, not its parts in isolation. Reply Brief 9; Brief for Respondent 2; see Estate of P. D. Beckwith, Inc. v. Commissioner of Patents , 252 U.S. 538, 545-546, 40 S.Ct. 414, 64 L.Ed. 705 (1920). Third, the relevant meaning of a term is its meaning to consumers. Brief for Petitioners 43-44; Brief for Respondent 2; see Bayer Co. v. United Drug Co. , 272 F. 505, 509 (SDNY 1921) (Hand, J.) ("What do the buyers understand by the word for whose use the parties are contending?"). Eligibility for registration, all agree, turns on the mark's capacity to "distinguis[h]" goods "in commerce." § 1052. Evidencing the Lanham Act's focus on consumer perception, the section governing cancellation of registration provides that "[t]he primary significance of the registered mark to the relevant public ... shall be the test for determining whether the registered mark has become the generic name of goods or services." § 1064(3).
Under these principles, whether "Booking.com" is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services. Thus, if "Booking.com" were generic, we might expect consumers to understand Travelocity-another such service-to be a "Booking.com." We might similarly expect that a consumer, searching for a trusted source of online hotel-reservation services, could ask a frequent traveler to name her favorite "Booking.com" provider.
Consumers do not in fact perceive the term "Booking.com" that way, the courts below determined. The PTO no longer disputes that determination. See Pet. for Cert. I; Brief for Petitioners 17-18 (contending only that a consumer-perception inquiry was unnecessary, not that the lower courts' consumer-perception determination was wrong). That should resolve this case: Because "Booking.com" is not a generic name to consumers, it is not generic.
III
Opposing that conclusion, the PTO urges a nearly per se rule that would render "Booking.com" ineligible for registration regardless of specific evidence of consumer perception. In the PTO's view, which the dissent embraces, when a generic term is combined with a generic top-level domain like ".com," the resulting combination is generic. In other words, every "generic.com" term is generic according to the PTO, absent exceptional circumstances.
The PTO's own past practice appears to reflect no such comprehensive rule. See, e.g. , Trademark Registration No. 3,601,346 ("ART.COM" on principal register for, inter alia , "[o]nline retail store services" offering "art prints, original art, [and] art reproductions"); Trademark Registration No. 2,580,467 ("DATING.COM" on supplemental register for "dating services"). Existing registrations inconsistent with the rule the PTO now advances would be at risk of cancellation if the PTO's current view were to prevail. See § 1064(3). We decline to adopt a rule essentially excluding registration of "generic.com" marks. As explained below, we discern no support for the PTO's current view in trademark law or policy.
A
The PTO urges that the exclusionary rule it advocates follows from a common-law principle, applied in Goodyear's India Rubber Glove Mfg. Co. v. Goodyear Rubber Co. , 128 U.S. 598, 9 S.Ct. 166, 32 L.Ed. 535 (1888), that a generic corporate designation added to a generic term does not confer trademark eligibility. In Goodyear , a decision predating the Lanham Act, this Court held that "Goodyear Rubber Company" was not "capable of exclusive appropriation." Id. , at 602, 9 S.Ct. 166. Standing alone, the term "Goodyear Rubber" could not serve as a trademark because it referred, in those days, to "well-known classes of goods produced by the process known as Goodyear's invention." Ibid. "[A]ddition of the word 'Company' " supplied no protectable meaning, the Court concluded, because adding "Company" "only indicates that parties have formed an association or partnership to deal in such goods." Ibid. Permitting exclusive rights in "Goodyear Rubber Company" (or "Wine Company, Cotton Company, or Grain Company"), the Court explained, would tread on the right of all persons "to deal in such articles, and to publish the fact to the world." Id. , at 602-603, 9 S.Ct. 166.
"Generic.com," the PTO maintains, is like "Generic Company" and is therefore ineligible for trademark protection, let alone federal registration. According to the PTO, adding ".com" to a generic term-like adding "Company"-"conveys no additional meaning that would distinguish [one provider's] services from those of other providers." Brief for Petitioners 44. The dissent endorses that proposition: "Generic.com" conveys that the generic good or service is offered online "and nothing more." Post , at 2309.
That premise is faulty. A "generic.com" term might also convey to consumers a source-identifying characteristic: an association with a particular website. As the PTO and the dissent elsewhere acknowledge, only one entity can occupy a particular Internet domain name at a time, so "[a] consumer who is familiar with that aspect of the domain-name system can infer that BOOKING.COM refers to some specific entity." Brief for Petitioners 40. See also Tr. of Oral Arg. 5 ("Because domain names are one of a kind, a significant portion of the public will always understand a generic '.com' term to refer to a specific business ...."); post , at 2312 - 2313 (the "exclusivity" of "generic.com" terms sets them apart from terms like "Wine, Inc." and "The Wine Company"). Thus, consumers could understand a given "generic.com" term to describe the corresponding website or to identify the website's proprietor. We therefore resist the PTO's position that "generic.com" terms are capable of signifying only an entire class of online goods or services and, hence, are categorically incapable of identifying a source.
The PTO's reliance on Goodyear is flawed in another respect. The PTO understands Goodyear to hold that "Generic Company" terms "are ineligible for trademark protection as a matter of law "-regardless of how "consumers would understand" the term. Brief for Petitioners 38. But, as noted, whether a term is generic depends on its meaning to consumers. Supra , at 2304. That bedrock principle of the Lanham Act is incompatible with an unyielding legal rule that entirely disregards consumer perception. Instead, Goodyear reflects a more modest principle harmonious with Congress' subsequent enactment: A compound of generic elements is generic if the combination yields no additional meaning to consumers capable of distinguishing the goods or services.
The PTO also invokes the oft-repeated principle that "no matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise ..., it cannot deprive competing manufacturers of the product of the right to call an article by its name." Abercrombie & Fitch Co. v. Hunting World, Inc. , 537 F.2d 4, 9 (CA2 1976). That principle presupposes that a generic term is at issue.
But the PTO's only legal basis for deeming "generic.com" terms generic is its mistaken reliance on Goodyear .
While we reject the rule proffered by the PTO that "generic.com" terms are generic names, we do not embrace a rule automatically classifying such terms as nongeneric. Whether any given "generic.com" term is generic, we hold, depends on whether consumers in fact perceive that term as the name of a class or, instead, as a term capable of distinguishing among members of the class.
B
The PTO, echoed by the dissent, post , at 2314 - 2315, objects that protecting "generic.com" terms as trademarks would disserve trademark law's animating policies. We disagree.
The PTO's principal concern is that trademark protection for a term like "Booking.com" would hinder competitors. But the PTO does not assert that others seeking to offer online hotel-reservation services need to call their services "Booking.com." Rather, the PTO fears that trademark protection for "Booking.com" could exclude or inhibit competitors from using the term "booking" or adopting domain names like "ebooking.com" or "hotel-booking.com." Brief for Petitioners 27-28. The PTO's objection, therefore, is not to exclusive use of "Booking.com" as a mark, but to undue control over similar language, i.e. , "booking," that others should remain free to use.
That concern attends any descriptive mark. Responsive to it, trademark law hems in the scope of such marks short of denying trademark protection altogether. Notably, a competitor's use does not infringe a mark unless it is likely to confuse consumers. See §§ 1114(1), 1125(a)(1)(A) ; 4 McCarthy § 23:1.50 (collecting state law). In assessing the likelihood of confusion, courts consider the mark's distinctiveness: "The weaker a mark, the fewer are the junior uses that will trigger a likelihood of consumer confusion." 2 id. , § 11:76. When a mark incorporates generic or highly descriptive components, consumers are less likely to think that other uses of the common element emanate from the mark's owner. Ibid. Similarly, "[i]n a 'crowded' field of look-alike marks" (e.g. , hotel names including the word "grand"), consumers "may have learned to carefully pick out" one mark from another. Id. , § 11:85. And even where some consumer confusion exists, the doctrine known as classic fair use, see id. , § 11:45, protects from liability anyone who uses a descriptive term, "fairly and in good faith" and "otherwise than as a mark," merely to describe her own goods. 15 U.S.C. § 1115(b)(4) ; see KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. , 543 U.S. 111, 122-123, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004).
These doctrines guard against the anticompetitive effects the PTO identifies, ensuring that registration of "Booking.com" would not yield its holder a monopoly on the term "booking." Booking.com concedes that "Booking.com" would be a "weak" mark. Tr. of Oral Arg. 66. See also id. , at 42-43, 55. The mark is descriptive, Booking.com recognizes, making it "harder ... to show a likelihood of confusion." Id. , at 43. Furthermore, because its mark is one of many "similarly worded marks," Booking.com accepts that close variations are unlikely to infringe. Id. , at 66. And Booking.com acknowledges that federal registration of "Booking.com" would not prevent competitors from using the word "booking" to describe their own services. Id. , at 55.
The PTO also doubts that owners of "generic.com" brands need trademark protection in addition to existing competitive advantages. Booking.com, the PTO argues, has already seized a domain name that no other website can use and is easy for consumers to find. Consumers might enter "the word 'booking' in a search engine," the PTO observes, or "proceed directly to 'booking.com' in the expectation that [online hotel-booking] services will be offered at that address." Brief for Petitioners 32. Those competitive advantages, however, do not inevitably disqualify a mark from federal registration. All descriptive marks are intuitively linked to the product or service and thus might be easy for consumers to find using a search engine or telephone directory. The Lanham Act permits registration nonetheless. See § 1052(e), (f). And the PTO fails to explain how the exclusive connection between a domain name and its owner makes the domain name a generic term all should be free to use. That connection makes trademark protection more appropriate, not less. See supra , at 2305 - 2306.
Finally, even if "Booking.com" is generic, the PTO urges, unfair-competition law could prevent others from passing off their services as Booking.com's. Cf. Genesee Brewing Co. v. Stroh Brewing Co. , 124 F.3d 137, 149 (CA2 1997) ; Blinded Veterans Assn. v. Blinded Am. Veterans Foundation , 872 F.2d 1035, 1042-1048 (CADC 1989). But federal trademark registration would offer Booking.com greater protection. See, e.g. , Genesee Brewing , 124 F.3d at 151 (unfair-competition law would oblige competitor at most to "make more of an effort" to reduce confusion, not to cease marketing its product using the disputed term); Matal , 582 U. S., at ----, 137 S.Ct., at 1753 (federal registration confers valuable benefits); Brief for Respondent 26 (expressing intention to seek protections available to trademark owners under the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) ); Brief for Coalition of .Com Brand Owners as Amici Curiae 14-19 (trademark rights allow mark owners to stop domain-name abuse through private dispute resolution without resorting to litigation). We have no cause to deny Booking.com the same benefits Congress accorded other marks qualifying as nongeneric.
* * *
The PTO challenges the judgment below on a sole ground: It urges that, as a rule, combining a generic term with ".com" yields a generic composite. For the above-stated reasons, we decline a rule of that order, one that would largely disallow registration of "generic.com" terms and open the door to cancellation of scores of currently registered marks. Accordingly, the judgment of the Court of Appeals for the Fourth Circuit regarding eligibility for trademark registration is
Affirmed.
A domain name identifies an address on the Internet. The rightmost component of a domain name-".com" in "Booking.com"-is known as the top-level domain. Domain names are unique; that is, a given domain name is assigned to only one entity at a time.
For simplicity, this opinion uses the term "trademark" to encompass the marks whose registration Booking.com seeks. Although Booking.com uses the marks in connection with services, not goods, rendering the marks "service marks" rather than "trademarks" under 15 U.S.C. § 1127, that distinction is immaterial to the issue before us.
The U. S. Patent and Trademark Office (PTO) suggests that the primary-significance test might not govern outside the context of § 1064(3), which subjects to cancellation marks previously registered that have "become" generic. See Reply Brief 11; Tr. of Oral Arg. 19. To so confine the primary-significance test, however, would upset the understanding, shared by Courts of Appeals and the PTO's own manual for trademark examiners, that the same test governs whether a mark is registrable in the first place. See, e.g. , In re Cordua Restaurants, Inc. , 823 F.3d 594, 599 (CA Fed. 2016) ; Nartron Corp. v. STMicroelectronics, Inc. , 305 F.3d 397, 404 (CA6 2002) ; Genesee Brewing Co. v. Stroh Brewing Co. , 124 F.3d 137, 144 (CA2 1997) ; Trademark Manual of Examining Procedure § 1209.01(c)(i), p. 1200-267 (Oct. 2018), http://tmep.uspto.gov. We need not address today the scope of the primary-significance test's application, for our analysis does not depend on whether one meaning among several is "primary." Sufficient to resolve this case is the undisputed principle that consumer perception demarcates a term's meaning.
The PTO notes only one possible exception: Sometimes adding a generic term to a generic top-level domain results in wordplay (for example, "tennis.net"). That special case, the PTO acknowledges, is not presented here and does not affect our analysis. See Brief for Petitioners 25, n. 6; Tr. of Oral Arg. 25-26.
In passing, the PTO urges us to disregard that a domain name is assigned to only one entity at a time. That fact, the PTO suggests, stems from "a functional characteristic of the Internet and the domain-name system," and functional features cannot receive trademark protection. Brief for Petitioners 32. "[A] product feature is functional, and cannot serve as a trademark," we have held, "if it is essential to the use or purpose of the article or if it affects the cost or quality of the article." TrafFix Devices, Inc. v. Marketing Displays, Inc. , 532 U.S. 23, 32, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001) (internal quotation marks omitted); see § 1052(e) (barring from the principal registrar "any matter that, as a whole, is functional"). This case, however, does not concern trademark protection for a feature of the Internet or the domain-name system; Booking.com lays no claim to the use of unique domain names generally. Nor does the PTO contend that the particular domain name "Booking.com" is essential to the use or purpose of online hotel-reservation services, affects these services' cost or quality, or is otherwise necessary for competitors to use. In any event, we have no occasion to decide the applicability of § 1052(e) 's functionality bar, for the sole ground on which the PTO refused registration, and the sole claim before us, is that "Booking.com" is generic.
Evidence informing that inquiry can include not only consumer surveys, but also dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a term's meaning. Surveys can be helpful evidence of consumer perception but require care in their design and interpretation. See Brief for Trademark Scholars as Amici Curiae 18-20 (urging that survey respondents may conflate the fact that domain names are exclusive with a conclusion that a given "generic.com" term has achieved secondary meaning). Moreover, difficult questions may be presented when a term has multiple concurrent meanings to consumers or a meaning that has changed over time. See, e.g. , 2 J. McCarthy, Trademarks and Unfair Competition § 12:51 (5th ed. 2019) (discussing terms that are "a generic name to some, a trademark to others"); id. , § 12:49 ("Determining the distinction between generic and trademark usage of a word ... when there are no other sellers of [the good or service] is one of the most difficult areas of trademark law."). Such issues are not here entailed, for the PTO does not contest the lower courts' assessment of consumer perception in this case. See Pet. for Cert. I; Brief for Petitioners 17-18. For the same reason, while the dissent questions the evidence on which the lower courts relied, post , at 2312 - 2313, 2313 - 2314, we have no occasion to reweigh that evidence. Cf. post , at 2309 (SOTOMAYOR, J., concurring). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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93
] |
ROWOLDT v. PERFETTO, ACTING OFFICER IN CHARGE, IMMIGRATION AND NATURALIZATION SERVICE.
No. 5.
Argued November 13-14, 1956. — Restored to the calendar for reargument June 24, 1957. — Reargued October 14, 1957.
Decided December 9, 1957.
David Rein argued the cause on the original argument, and with Joseph Forer on the reargument, for petitioner. With them on the brief on the original argument was Ann Fagan Ginger,
Carl H. Imlay argued the cause on the original argument, and Oscar H. Davis on the reargument, for respondent. With Mr. Imlay on the briefs were Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg. Mr. Davis was also on the brief on the reargument.
Mr. Justice Frankfurter
delivered the opinion of the Court.
Petitioner is an alien who has been ordered deported by virtue of § 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006, for past membership in the Communist Party. He attacks the judgment below on the ground — the only claim we need to consider — that he was not a “member” of the Communist Party within the scope of that section.
Petitioner is an alien who entered the United States in 1914 and, except for a short interval in Canada, has resided here continuously. The finding of “membership” by the hearing officer rested on petitioner’s own testimony. He stated that he joined the Communist Party in “the spring or summer of 1935,” paid dues, attended meetings, and remained a member “until I got arrested [in deportation proceedings] and that was at the end of 1935. When I was arrested, I finished the Communist Party membership . . . At a later point in his testimony, petitioner stated that he was probably a member for approximately one year.
He then explained his reasons for joining the Communist Party:
“The purpose was probably this — it seemed to me that it came hand in hand — the Communist Party and the fight for bread. It seemed to me like this— let’s put it this way — that the Communist Party and the Workers’ Alliance had one aim — to get something to eat for the people. I didn’t know it was against the law for aliens to join the Communist Party and the Workers’ Alliance. . . .”
In response to a question whether his joining the Communist Party was “motivated by dissatisfaction in living under a democracy,” the following colloquy took place:
“A. No, not by that. Just a matter of having no jobs at that time. Everybody around me had the idea that we had to fight for something to eat and clothes and shelter. We were not thinking then— anyways the fellows around me, of overthrowing anything. We wanted something to eat and something to crawl into.
“Q. You say 'fight for something to eat and crawl into.’ What do you mean by that term?
“A. We had to go and ask those who had it — that was the courthouse at that time. We petitioned city, state and national government. We did and we succeeded. We finally got unemployment laws and a certain budget. Even at the few communist meetings I attended, nothing was ever said about overthrowing anything. All they talked about was fighting for the daily needs. That is why we never thought much of joining those parties in those days.”
The other activity bearing on petitioner’s membership in the Communist Party was discussed in the following colloquy:
“Q. Were you an active worker in the Communist Party?
“A. The only active work I did was running the bookstore for a while.
“Q. What sort of bookstore was it?
“A. Oh, all kinds of literature — all kinds of writers in the whole world — Strachey, Marx, Lenin’s writing and others. Socialism and all that stuff.
“Q. Did you own the bookstore?
“A. No. I didn’t get a pennyjthere.
“Q. What was the arrangement there?
“A. I was kind of a salesman in there, but the Communist Party ran it.
“Q. You secured this employment through your membership in the Communist Party?
“A. Yes.
“Q. Was this store an official outlet for communist literature?
“A. Yes.”
Petitioner testified that he never advocated change of government by force or violence and he also gave his unilluminating understanding of, and beliefs about, the principles of communism. His account of the circumstances and motives that led him to join the Communist Party stood unchallenged and was evidently accepted at face value.
This testimony was all given during an examination of petitioner by the Immigration and Naturalization Service in 1947. At the hearing below, in 1951, petitioner refused to answer whether he had ever been a member of the Communist Party on the ground that the answers might incriminate him. The hearing officer found, from the evidence in the record, that petitioner “was a member of the Communist Party of the United States in 1935.” On appeal, to both the Assistant Commissioner, Adjudications Division of the Immigration and Naturalization Service, and subsequently the Board of Immigration Appeals, this finding was held supported by the record. Petitioner then sought a writ of habeas corpus from the District Court for the District of Minnesota. Both the District Court and, on appeal, the Court of Appeals for the Eighth Circuit held that the evidence produced at the hearing was sufficient to sustain the finding that petitioner was a “member” of the Communist Party. 228 F. 2d 109. As the case involves an application of Galvan v. Press, 347 U S. 522, we granted certiorari. 350 U. S. 993.
The authority for the order deporting petitioner derives from the Internal Security Act of 1950, as amended by the Act of March 28, 1951, 65 Stat. 28. As indicated, its evidentiary support rests entirely on petitioner’s testimony before an immigration inspector in 1947. The transcript of that hearing was the foundation of the administrative proceedings that resulted in the order now under review. The adequacy of that testimony to sustain the order must be judged by the Internal Security Act of 1950, which was amended by § 1 of the Act of March 28, 1951, 65 Stat. 28, set forth in the margin.
As pointed out in Galvan v. Press, supra, at 527, the legislative history of this amendatory statute shows that the three specified qualifications are not to be applied as narrow exceptions but are to be considered as illustrative of the spirit in which the rigorous provisions regarding deportability of § 22 (2) are to be construed. There must be a substantial basis for finding that an alien committed himself to the Communist Party in consciousness that he was “joining an organization known as the Communist Party which operates as a distinct and active political organization . . . .” 347 U. S., at 528.
Bearing in mind the solidity of proof that is required for a judgment entailing the consequences of deportation, particularly in the case of an old man who has lived in this country for forty years, cf. Ng Fung Ho v. White, 259 U. S. 276, 284, we cannot say that the unchallenged account given by petitioner of his relations to the Communist Party establishes the kind of meaningful association required by the alleviating Amendment of 1951 as expounded by its sponsor, Senator McCarran, and his legislative collaborator, Senator Ferguson. (See 97 Cong. Rec. 2368 and 2387.) All that the Immigration authorities went on is what the petitioner himself said, for his truthfulness was not called into question. From his own testimony in 1947, which is all there is, the dominating impulse to his “affiliation” with the Communist Party may well have been wholly devoid of any “political” implications. To be sure, he was a “salesman” in a Communist book store, but he “didn’t get a penny there.”
Presumably he had to live on something and further inquiry might have elicited that he was getting the necessities of life for his work in the book store. Nor is there a hint in the record that this was not a bona fide book shop.
Accordingly, we are of the opinion that the record before us is all too insubstantial to support the order of deportation. The differences on the facts between Gal-van v. Press, supra, and this case are too obvious to be detailed.
Judgment reversed.
That section amended the Act of October 16, 1918, 40 Stat. 1012, as amended, to provide:
“[See. 1] That any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
“(2) Aliens who, at any time, shall be or shall have been members of any of the following classes:
“(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States ....
“Sec. 4. (a) Any alien who was at the time of entering the United States, or has been at any time thereafter, ... a member of any one of the classes of aliens enumerated in section 1 (2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.”
The substance of the relevant portion of this provision was incorporated in the Immigration and Nationality Act of 1952, 66 Stat. 163, 205, 8 U. S. C. § 1251 (a) (6) (C).
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Attorney General is hereby authorized and directed to provide by regulations that the terms ‘members of’ and ‘affiliated with’ where used in the Act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary, and shall not include membership or affiliation which is or was solely (a) when under sixteen years of age, (b) by operation of law, or (c) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes.” See 16 Fed. Reg. 2907. These three exclusions from the substantive provision were, so far as deportations are concerned, repealed by the Immigration and Nationality Act of 1952, 66 Stat. 163, 280; however, as the text of this opinion makes clear, we are not deciding this case on the basis of (c), supra. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
67
] |
PATTERSON, SECRETARY OF WAR, et al. v. LAMB.
No. 229.
Argued January 7, 1947.
Decided January 20, 1947.
Frederick Bernays Wiener argued the cause for petitioners. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett and Paul A. Sweeney.
Roger Robb argued the cause for respondent. With him on the brief were Samuel T. Ansell and Mahlon C. Master son.
Mr. Justice Black
delivered the opinion of the Court.
On October 28, 1944, respondent brought this action in the United States District Court for the District of Columbia against the then Secretary of War and Adjutant General of the Army. He prayed for a judgment declaring that he had served in the United States Army from November 11, 1918 (Armistice Day) until November 14, 1918, and that for this service he was entitled to a certificate of honorable discharge from the Army, instead of the certificate of “Discharge from Draft” which had been issued to him. He also prayed for a mandatory injunction to compel issuance to him of a certificate of honorable discharge from the Army.
The complainant alleged that on November 9, 1918, he received a communication from his local draft board directing him to report to the board at Davenport, Iowa, for “immediate military service” at 9 a. m., November 11, 1918, and stating that from that day and hour he would be “a soldier in the military service of the United States”; that he reported as ordered, and was made the leader of the drafted group there assembled which was to board a train that day for a mobilization camp at Camp Dodge, Iowa; that during the day he was told that because of the Armistice the draft call had been canceled; that he and the other draftees would not go to Camp Dodge, but could return home, still soldiers, and await further orders; that four days later he received a notice from his board that by telegraphic order of the Provost Marshal, acting under instructions of the President, all induction orders throughout the Nation had been canceled, and all registrants, who, like himself, had been inducted but not entrained, were discharged from the Army; and that cancellation of their induction orders would have the effect of an honorable discharge from the Army. He further alleged that in January, 1919, he received a certificate dated November 14, 1918, entitled “Discharge from Draft,” accompanying which was a check for four dollars ($4.00) bearing the notation “Final Pay”; that because of the foregoing circumstances he had always assumed that his discharge had the effect of an honorable discharge from the Army; that he had obtained certain tax exemptions from the State of Iowa on the ground that he had such a discharge, but was later authoritatively denied the exemptions by reason of a decision of the state supreme court, Lamb v. Kroeger, 233 Iowa 730, 8 N. W. 2d 405; that it was after this decision that he applied for and was denied an honorable discharge by the Secretary and Adjutant General.
The District Court sustained petitioners’ motion to dismiss the complaint on the ground that it failed to state a cause of action for which relief could be granted. Other grounds of the motion, not passed on by the District Court, were that the alleged cause of action was not justiciable, was barred by laches, and that the type of certificate to be issued draftees under the circumstances alleged was a matter solely within the discretion of the Secretary of War and not a subject for judicial review. The Court of Appeals reversed, rejecting all the grounds set up in the motion to dismiss. 81 U. S. App. D. C. —, 154 F. 2d 319. This holding not only decided important questions concerning the power of the War Department, but also upset twenty-five years of important War Department rulings and practices which have affected, and will hereafter affect, the status and claims of thousands of draftees of the First World War. This called for our review, and we granted certiorari.
Whether and to what extent the courts have power to review or control the War Department’s action in fixing the type of discharge certificates issued to soldiers, is a question that we need not here determine; nor need we decide whether the action should have been dismissed because of laches. For we are satisfied that the War Department was within its power in granting a discharge from draft rather than the type of discharge it granted soldiers who performed military service after having become fully and finally absorbed into that service.
The only statute which directly bears upon “certificates of discharge” for enlisted men, Article of War 108, set out below, does not particularly prescribe the types or contents of certificates authorized to be granted. But pursuant to authority granted by Congress, the War Department many years ago promulgated Army Regulation No. 150 which provided for three types of certificates of discharge: honorable, dishonorable, and unclassified. An honorable discharge was one granted to a soldier whose conduct in service had been such as to warrant his reenlistment. This regulation was well suited to fit cases of soldiers who had enlisted under ordinary conditions, had seen service and had been discharged in the course of regular Army routine. On its face, however, it shows how poorly it was adapted to fit the extraordinary circumstances bound to develop in connection with a nation-wide program for passing upon acceptances, rejections, and discharges of draftees in the course of their progress from their homes to their complete and final integration into the Army. So, after' the passage of the 1917 Draft Act, 40 Stat. 76, the War Department, on January 12, 1918, issued its Circular No. 651 in which it made provision for men discharged from draft as distinguished from men discharged from the Army. This provision, in effect when respondent reported for induction, had particular, though not necessarily exclusive, reference to draftees rejected for one reason or another at mobilization camps after their induction at their local draft boards. But despite the fact that draftees became subject to military law and duty from the moment of their arrival for entrainment at the local board, Selective Service Regulation 174-176 provided that they nevertheless were not finally accepted for military service, and could be rejected after arrival at camp. And it was not until they had been finally accepted that they could or would be assigned to full-fledged duty as soldiers.
The Discharge from Draft Form No. 638, referred to in Circular No. 651, was originally prepared for draftees rejected at camp after induction “on account of physical unfitness, dependency, etc.” Form No. 638 had been in use long prior to the respondent’s rejection on the ground that the Government did not need his services after the Armistice. Had the Armistice not been declared, had respondent gone on to Camp Dodge, and had he then been rejected for any reason there, he would have received, not an honorable discharge from the Army, but a “Discharge from Draft.” Yet we are asked to give the regulations and certificates a judicial construction, contrary to the Army’s construction, whereby respondent, who got no farther than his local board, would stand in a better status than the tens of thousands of other draftees who came much closer to complete integration into the Army than he ever did.
An argument to support this contention is that the telegraphic order issued from Army headquarters on Armistice Day, which canceled entrainment orders for respondent and about 155,000 other draftees then ready for entrainment, provided that all of them were “discharged from the Army.” But that same order stated that “The issue of formal papers of discharge will be considered and determined later” and that the purpose of the telegraphic order was “merely to cancel outstanding calls and stop the entrainment thereunder of men for the Army.” And when “the issue of formal papers of discharge” was “later” considered, it resulted in War Department Circular No. Ill of 1918. That circular was the follow-up of the President’s Armistice Day draft cancellation order, and as foreshadowed by the Armistice Day order, this circular prescribed with definiteness the type of “formal papers of discharge” which this respondent and others like him would later receive. It was a “Discharge from Draft.”
No statute or previous Army Regulation had provided for the extraordinary situation which developed on Armistice Day and which made it necessary for the President to halt the processing of these thousands of men and direct that they return to their homes. When this new situation arose, it was certainly within the province of the War Department to provide for its solution by, among other things, issuing to those returned home an appropriate form of certificate, whether of the honorable discharge variety, a “discharge from draft,” or some special form designed specifically for the occasion. Respondent was inducted into the Army and was discharged before he reached a mobilization camp for final processing. His discharge adequately indicates these facts. The law demands no more.
Reversed.
The Secretary of War and The Adjutant General against whom the action was originally instituted are no longer in office; their successors have been properly substituted as parties.
See Denby v. Berry, 51 App. D. C. 335, 279 F. 317, 263 U. S. 29; Davis v. Woodring, 111 F. 2d 523; Palmer v. United States, 72 Ct. Cl. 401; Wilbur v. United States, 281 U. S. 206; cf. 58 Stat. 286, 38 U. S. C. Supp. IV, § 693h.
“No enlisted man, lawfully inducted into the military service of the United States, shall be discharged from said service without a certificate of discharge, signed by a field officer of the regiment or other organization to which the enlisted man belongs . . .” 39 Stat. 619, 668.
18 Stat. 337, 10 U. S. C. § 16; see also United States v. Eliason, 16 Pet. 291, 301-302.
Paragraph 150 of the Army Regulations of 1913, corrected to April 15,1917, was as follows:
“150. Blank forms for discharge and final statements will be furnished by the Adjutant General’s Department and will be retained in the personal custody of company commanders. Discharge certificates will be used in the discharge of enlisted men and for no other purpose, and will be of three classes: For honorable discharge, for discharge, and for dishonorable discharge.
They will be used as follows:
1. The blank for honorable discharge, when the soldier’s conduct has been such as to warrant his reenlistment and his service has been honest and faithful.
2. The blank for dishonorable discharge, for dishonorable discharge by sentence of a court martial or a military commission.
3. The blank for discharge when the soldier is discharged except as specified under sections 1 and 2 of this paragraph (C. A. R.
Nos. 14 and 34).”
Cf. Gibson v. United States, 329 U. S. 338; Dodez v. United States, 329 U. S. 338. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
23
] |
SUN OIL CO. v. FEDERAL POWER COMMISSION.
No. 321.
Argued April 26, 1960.
Decided June 27, 1960.
Leo J. Hoffman argued the cause for petitioner. With him on the brief were Martin A. Row, Robert E. May and Omar L. Crook.
Howard E. Wahrenbrock argued the cause for respondent. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub, Samuel D. Slade, Willard W. Gatchell and Peter H. Schiff.
Mr. Justice Brennan
delivered the opinion of the Court.
This case presents many of the same issues as Sunray Mid-Continent Oil Co. v. Federal Power Comm’n, ante, p. 137. Petitioner, Sun Oil Company, is an independent producer making sales of natural gas to transmission companies in interstate commerce for ultimate resale to the public. In 1947 it entered into a contract with the Southern Natural Gas Company, a transmission company, for the sale of natural gas which petitioner controlled in the Gwinville Gas Field in Jefferson Davis and Simpson Counties, Mississippi. The term of the contract was 10 years and the sales price was roughly eight cents per Mcf.
After this Court’s decisions in Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, on June 7, 1954, the Commission, in a series of orders, required independent producers engaging in jurisdictional sales on or after the date of the decision to apply for certificates of public convenience and necessity pursuant to § 7 (c) of the Natural Gas Act. Under protest, petitioner applied for a certificate “authorizing the sale of natural gas in the circumstances . . . described” in its application. The described circumstances consisted simply of a reference to its contract with Southern Natural, which was at the same time submitted by petitioner as its rate schedule. In an abbreviated and consolidated proceeding disposing of over 100 separate docket certificate applications from 40-odd independent producers, scattered from Colorado and New Mexico to West Virginia, the Commission on May 28, 1956, ordered issued to petitioner and each of the other applicants a certificate of public convenience and necessity, in the terms set out in the margin. Petitioner’s contract-rate-schedule was accepted as its FPC Gas Rate Schedule No. 55.
The 1947 contract between petitioner and Southern Natural expired on August 26, 1957. The parties however entered into a new 20-year contract for continued sale of gas from the same field, commencing on September, 3, 1957. The contract called for an initial price increase of roughly 150 per cent, to 20 cents per Mcf. Petitioner took the view that the certificate it had received in 1956 was limited in term to the duration of the old contract. It accordingly filed an application for a new certificate covering the new contract, and filed the new contract as an initial rate schedule under the new certificate, pursuant to § 5 of the Act. The Commission, in a letter order of September 12, 1957, rejected the certificate application as duplicative of petitioner’s existing certificate to make sales from the field in question, and rejected the rate-schedule filing on the ground that the purported initial rate schedule was actually a change in its existing Schedule No. 55. A motion for reconsideration was later denied; and at the same time the Commission ordered suspended, under § 4 (e) of the Act, the effectiveness of the rates in the new contract, which petitioner had, after their rejection as an initial rate schedule, filed under protest, as rate changes pursuant to § 4 (d). 18 F. P. C. 609, 611. After an application for rehearing of the suspension order was rejected, petitioner petitioned for review of all these orders of the Commission in the Court of Appeals for the Fifth Circuit. That court affirmed, by a divided vote. 266 F. 2d 222. We granted certiorari. 361 U. S. 880.
Petitioner’s contention here, as it was below, is that the initial certificate it obtained in 1956 was to remain in effect only during the life of the 1947 contract. This in its view would leave it free to discontinue interstate sales after the 1957 expiration of the contract, or to apply for a new certificate for new sales, and, not unimportantly, file the new sales contract as an initial rate schedule thereunder rather than as a rate change. We reject this contention and affirm the judgment of the Court of Appeals.
First. The major part of petitioner’s argument is based on a want of authority in the Commission, over objection, to grant an independent producer a certificate for a longer duration than the term of a sales contract which its application seeks permission to fulfill. To be sure, if the Commission had no such authority, we might take pains to read the petitioner’s application as seeking a certificate so limited in time, though, as compared with Sunray’s in the companion case, it is highly inexplicit as to its desire that only a term certificate be issued. But we have held today in the Simmy case, ante, p. 137, that in these circumstances the Commission has authority to tender a permanent certificate under an application for a term certificate; and accordingly this keystone of petitioner's argument falls.
Second. Of course, if, despite its authority to grant a permanent certificate, the Commission had in 1956 actually granted a term certificate to petitioner, petitioner would after the term have been free to apply for a new certificate to authorize the sale under the new contract. But we agree with the Commission that the 1956 certificate was a permanent one. The application itself, under the construction we have given the statute in Sunray, did not with any explicitness ask for a limited certificate. It asked for one “authorizing the sale of natural gas” under the 1947 contract; but as we said in Sunray, a permanent certificate would do that. See, ante, p. 149. And the certificate issued makes no reference to any limitation of time. This is in contrast' with explicit references to the limitation in those instances where the Commission had previously issued term certificates. The Commission’s order, which blanketed the many applications before it in the mass proceeding, is no more explicit about limitation than the application, and refers, in fact, to the certificate as both “authorizing the sale” of natural gas, and authorizing a “service,” which accords with our construction of § 7 (e) in Sunray. Under these circumstances we would hardly see any basis for overturning the Commission’s view that no limitation as to time was implied. Cf. Andrew C. Nelson, Inc., v. United States, 355 U. S. 554, 560.
Moreover, if there were any doubt as to the matter, it would be removed by the fact that the batch of certificates containing petitioner’s was issued at a time when the Commission was asserting that it lacked even the power to issue a term certificate. The certificate in question was issued May 28, 1956. The Commission had taken the position that it lacked such authority on July 25, 1955, in Sunray Oil Corp., 14 F. P. C. 877. It was not until October 29, 1956, that judicial rejection of the Commission’s position occurred. Sunray Mid-Con tinent Oil Co. v. Federal Power Comm’n, 239 F. 2d 97, reversed on other grounds, 353 U. S. 944. Nothing in petitioner’s application shows an attempt to take issue with that conception of the Commission, which of course would mean that every certificate granted under its influence would be intended to be permanent. It would surpass belief to say that under these circumstances the Commission tendered and the applicants received these certificates under the assumption that they were limited in time to the terms of the contracts on which the applications were based.
[For opinion of Mr. Justice Frankfurter, concurring in Mr. Justice Harlan’s dissenting opinion, see ante, p. 159.]
[For dissenting opinion of Mr. Justice Harlan, joined by Mr. Justice Frankfurter, Mr. Justice Whittaker and Mr. Justice Stewart, see ante, p. 159.]
Affirmed.
The pertinent provisions of § 7 (c) are set forth in our opinion in the Sunray case, ante, p. 149, n. 15.
“The Commission ORDERS:
“(A) A certificate of public convenience and necessity be and is hereby issued, upon the terms and conditions of this order/ authorizing the sale by Applicant of natural gas in interstate commerce for resale, together with the operation of any facilities, subject to the jurisdiction of the Commission, used for the sale of natural gas in interstate commerce, as hereinbefore described and as more fully described in the application and exhibits in this proceeding.
“(B) The certificate issued herein shall be deemed accepted and of full force and effect, unless refused in writing and under oath by Applicant within 30 days from issuance of this order.
“(C) The certificate is not transferable and shall be effective only so long as Applicant continues the acts or operations hereby authorized in accordance with the provisions of the Natural Gas Act, and the applicable rules, regulations and orders of the Commission.
“(D) The grant of the certificate herein shall not be construed as a waiver of the requirements of Section 4 of the Natural Gas Act, or of Section 154 of the Commission’s Rules and Regulations thereunder requiring the filing of rate schedules for the service herein authorized, and is without prejudice to any findings or orders which have been or may hereafter be made by the Commission in any proceeding now pending or hereafter instituted by or against the Applicant. Further, our action in this proceeding shall not foreclose nor prejudice any future proceedings or objection relating to the operation of any price or related provision in the gas purchase contracts herein involved.”
There are slight discrepancies in comparison between the old and new rates, due to the fact that they are computed on somewhat different pressure bases. The Commission states that giving effect to the difference would somewhat increase the spread between the old and the new rates.
For the pertinent provisions, see the Sunray opinion, ante, p. 144, n. 11.
For the provisions, see the Sunray opinion, ante, p. 145, n. 13.
The Commission takes the position that an order suspending a rate change under § 4 (e) is not directly reviewable in the Court of Appeals. But since the very same issues are presented in this case by the Commission’s rejection of the application for a new certificate, and its rejection of the filing of the 1957 contract rate as an initial rate under § 4 (e), which orders are concededly reviewable in the Court of Appeals, all the contested issues raised before the Commission were properly subject to review in.the proceedings below and here, as the Commission concedes. If the Commission was in error in rejecting the application for a new certificate and the purported initial rate filing, the § 4 (e) rate change filing, which the petitioner made under protest, doubtless would be withdrawn.
See, e. g., Louisiana-Nevada Transit Co., 2 F. P. C. 546, 549 (10 years); Ray Phebus, 2 F. P. C. 1044, 1045 (8 years); Southern Natural Gas Co., 8 F. P. C. 688, 689 (1 year).
While the Court of Appeals there affirmed the Commission’s order on other grounds from those on which it had proceeded — for which action the Court of Appeals’ judgment was reversed here — the Commission had, before the Court of Appeals, maintained its position that it was without authority to grant a limited term certificate. 239 F. 2d, at 100, n. 7. It abandoned that position when application for certiorari was made here. 353 U. S. 944. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
51
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INTERSTATE COMMERCE COMMISSION v. MECHLING, doing business as A. L. MECHLING BARGE LINE, et al.
No. 72.
Argued February 12, 13, 1947.
Decided March 31, 1947.
Daniel H. Kunkel argued the cause for appellant. With him on the brief was Daniel W. Knowlton.
David 0. Mathews argued the cause for the United States and the Secretary of Agriculture. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Berge, Edward Dumbauld, W. Carroll Hunter and James K. Knudsen.
Edward B. Hayes argued the cause for Mechling, appellee.
Nuel D. Belnap argued the cause for the Inland Waterways Corporation, appellee. With him on the brief were Luther M. Walter, John S, Burchmore and Robert N. Burchmore.
Mr. Justice Black
delivered the opinion of the Court.
A District Court of three judges enjoined in part an order of the Interstate Commerce Commission, and the case is here on appeal under 28 U. S. C. §§ 47, 47a, and 345. The Commission order specifically relates to the railroad rate for grain transported from Chicago, Illinois, to New York and other eastern points, after that grain has been transported to Chicago from the west by connecting rail or water carriers on through bills of lading. In such through shipments the through rate is a combination of distinctly separate rates charged respectively for shipments from the west to Chicago and from Chicago to the east. The charge fixed for the last leg of the shipment is called, in railroad parlance, a “reshipping” or “proportional” rate. It is lower from Chicago to the east than a “local” rate charged for a shipment from Chicago to the east which originates in Chicago. See Atchison, T. & S. F. R. Co. v. United States, 279 U. S. 768, 771.
For many years eastern railroads have carried grain east from Chicago at reshipping rates 8% cents per hundred pounds lower than local rates. Up to 1939 this Chicago-to-the-east reshipping rate had been identical for grain, whether brought to Chicago by a connecting railroad, connecting lake steamer, or connecting barge. Although barge lines were much slower than railroads, they were less expensive to operate and therefore could afford to transport freight much more cheaply than railroads. The result was that the barge-rail rate from a point in the west to eastern destinations was considerably cheaper than the all-rail rate from that point—the difference being measured by the relative cheapness of shipping over the barge leg of the through route. Because of the cheaper barge rates, much of the railroads’ grain freight business from localities which could be served by either barge or rail shifted to the barges after 1933 when barge service from western grain localities to Chicago was resumed. This was the barge versus rail competitive situation which existed when in 1939 the eastern railroads filed schedules with the Commission which imposed on ex-barge grain the local rate from Chicago east, but allowed ex-rail and ex-lake grain the benefit of the 8% cent lower “reshipping” rates on the eastern haul. The result of this rate schedule would have been that, although barge lines could still have carried grain from the west to Chicago much more cheaply than the railroads could, by the time the grain had been reshipped to New York or other eastern points, the barge-rail carriage would have been more expensive to the shipper than all-rail carriage. This would have put the barge lines at a competitive disadvantage with railroads in barge-served localities. At the Commission hearing to test the validity of the higher ex-barge grain rates, a railroad representative candidly stated that the purpose of the proposal was to “drive this business off the water and back onto the rails where it belongs.” 248 I. C. C. 307, 321. This purpose would most probably have been accomplished had the high ex-barge reshipping rates gone into effect.
The Commission, after a hearing, made an order which left the railroad-proposed higher rates in effect, but stated that “in a proper proceeding we might prescribe proportional rates on the ex-barge traffic lower than local rates or joint barge-rail rates lower than the combinations.” 248 I. C. C. 307, 311. A District Court set aside the Commission’s order on the ground that fixing higher rates for ex-barge grain than for ex-rail and ex-lake grain “discriminates against water competition by the users of barges.” Cargill, Inc. v. United States, 44 F. Supp. 368, 375. On appeal this Court reversed, saying that its decision carried “no implication of approval of any rates here involved.” Interstate Commerce Commission v. Inland Waterways Corp., 319 U. S. 671, 691. It reserved for future consideration in a proceeding before the Commission the amount, if any, which the eastern railroads could increase “reshipping” rates for ex-barge over those for ex-lake and ex-rail grain. Id. at 687-688, 691.
The Commission has now considered and decided that question in a proper proceeding. 262 I. C. C. 7. It found the originally proposed 8% cent higher rates for ex-barge grain to be unlawful and required the eastern roads to cancel the schedules fixing those increased reshipping rates. This part of the Commission’s order has not been challenged. But it also concluded that ex-barge grain rates east from Chicago would be reasonable and lawful even though they were 3 cents per hundred pounds higher than rates for ex-rail and ex-lake grain. Consequently, the Commission provided that its order cancelling the scheduled reshipping rate increase was “without prejudice to the filing of new schedules in conformity with the findings herein.” Thus, the effect of the whole order was to permit, if not require, the railroads to charge higher reshipment rates for ex-barge than for ex-lake and ex-rail grain. Under these rates, barge-rail grain shipments would be a trifle less expensive than all-rail transportation between the same points. But the through barge-rail transportation would cost more than it would have if the through rates had accurately reflected the cheaper in-bound barge rates. The Commission considered these higher rates for ex-barge grain, which resulted in higher through rates, justified so long as there remained to ex-barge grain “a fair opportunity to move in competition with lake-rail and all-rail traffic.”
Appellees then filed this action in the District Court against the Commission and the United States to cancel, annul, and enjoin enforcement of the order, insofar as it permitted the railroads to put these new higher ex-barge grain rates into effect. The complaints charged that the order was in violation of the Interstate Commerce Act as amended by the Transportation Act of 1940, 54 Stat. 898. It was contended that the order was void because it approved railroad rates which penalized ex-barge grain to the extent of 3 cents per hundred pounds, solely because the grain had been transported to Chicago in barges, and without evidence or adequate findings that it cost the railroads 3 cents more to transport ex-barge than it cost to transport ex-rail or ex-lake grain. The United States, represented by the Department of Justice, appearing as a defendant, admitted these allegations. The Interstate Commerce Commission intervened and defended the order. After a hearing, the District Court found that the allegations were sustained. Accordingly, it set aside and enjoined enforcement of the order to the extent that it permitted the 3-cent extra charge. The result of the District Court’s judgment was to leave in effect the long-existing eastern railroad rates which provide the same rates for carrying ex-barge, ex-lake, and ex-rail grain east from Chicago.
Judicial review of the findings of fact and the expert judgments of the Interstate Commerce Commission where the Commission acts within its statutory authority is extremely limited. And § 307 (d) of the 1940 Act authorizes the Commission “in the case of a through route” to “prescribe such reasonable differentials as it may find to be justified between all-rail rates and the joint rates in connection with such common carrier by water.” Cf. United States v. Chicago Heights Trucking Co., 310 U. S. 344, 352-353; Board of Trade of Kansas City v. United States, 314 U. S. 534, 546. But the congressional debates and committee reports on the 1940 Act and the statutory provisions which emerged from this legislative background show that Congress enunciated positive policies and specific limiting standards which it expected the Commission to follow in fixing rates, including “differentials” between all-rail and water-rail rates. The provisions of the Transportation Act of 1940 which brought water carriers under Interstate Commerce Commission jurisdiction were vigorously opposed in Congress by those who feared that the Commission might raise barge rates in order to enable railroads better to compete with inherently cheaper water transportation. These opponents were repeatedly assured by sponsors of the 1940 Act who advocated Commission regulation of water transportation that the questioned legislation unequivocally required the Commission to fix rates which would preserve for shippers the inherent advantages of barge transportation: lower cost of equipment, operation, and therefore service. As Senator Wheeler, spokesman of the Interstate Commerce Committee of which he was chairman, pointed out on the floor of the Senate, the 1940 Act contains at least three separate provisions, a prime purpose of which is to protect the water carrier’s natural advantages. The Act’s declaration of policy emphasizes that the Act must be “so administered as to recognize and preserve the inherent advantages” of “all modes of transportation subject to . . . this Act.” 54 Stat. 898, 899, 49 U. S. C. notes preceding §§ 1, 301, 901. In order that the inherent advantages might be preserved § 305 (c), 54 Stat. 898, 935, 49 U. S. C. § 905 (c), provided that “Differences in . . . rates . . . and practices of a water carrier in respect of water transportation from those in effect by a rail carrier with respect to rail transportation shall not be deemed to constitute unjust discrimination ... or an unfair or destructive competitive practice . . . .” And § 307 (f), 54 Stat. 898, 938, 49 U. S. C. §907 (f), requiring the Commission, in fixing rates, to consider “the effect of rates upon the movement of traffic by the . . . carriers for which the rates are prescribed,” emphasized that the Commission must consider in fixing rates “. . . the need, in the public interest, of adequate and efficient water transportation service at the lowest cost consistent with the furnishing of such service . . . .” In addition § 3 (4) of the pre-existing Act which forbade carriers to “discriminate in their rates, fares, and charges between connecting lines,” 41 Stat. 479, was amended by the 1940 Act specifically to include water carriers, such as these barge lines, within the definition of connecting carriers. 54 Stat. 898, 903-904, 49 U. S. C. § 3 (4). Finally § 2 of the pre-existing Act has long forbidden the Commission to authorize railroads to charge one person more than another for “a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions 24 Stat. 379, 380, 40 U. S. C. § 2.
The foregoing provisions flatly forbid the Commission to approve barge rates or barge-rail rates which do not preserve intact the inherent advantages of cheaper water transportation, but discriminate against water carriers and the goods they transport. Concretely, the provisions mean in this case that Chicago-to-the-east railroads cannot lawfully charge more for carrying ex-barge than for carrying ex-lake or ex-rail grains to and from the same localities, unless the eastern haul of the ex-barge grain costs the eastern railroads more to haul than does ex-rail or ex-lake grain. And § 307 (d), authorizing the Commission to fix differentials as between through water-rail and through all-rail rates, does not authorize the Commission to neutralize the effective prohibitions of the other provisions which were strengthened in 1940 expressly to prevent a discrimination against water carriers.
The basic error of the Commission here is that it seemed to act on the assumption that the congressional prohibitions of railroad rate discriminations against water carriers were not applicable to such discriminations if accomplished by through rates. But this assumption would permit the destruction or curtailment of the advantages to shippers of cheap barge transportation whenever the transported goods were carried beyond the end of the barge line. This case proves that. For while Chicago is a great grain center, it cannot consume all barge-transported grain. That grain, like other grain coming to Chicago for marketing or processing, is reshipped to distant destinations. To penalize its transportation in barges by charging discriminatory rates from Chicago to its final destination has precisely the same consequence as would follow from raising barge rates inbound to Chicago. Recognizing that it could not require these barge carriers to raise these inbound rates which it accepted as reasonable, the Commission has here approved an order which would bring about the same prohibited result by raising the railroad rates charged by eastern roads for ex-barge grain shipments east from Chicago. Congress has forbidden this.
The Commission did not approve increases in these reshipping rates on the ground that the eastern roads were not receiving a fair return for carrying ex-barge grain. And the grounds on which the Commission rested its order do not support the rates approved. Most of the argument of the Commission in support of its conclusions and order treated matters which had no relation to what the reshipping rates from Chicago should be. The length of the total barge-rail haul emphasized by the Commission, however significant it might be under other circumstances, has no relevance here. For the lower rates allowed ex-rail and ex-lake grains include carriage for distances identical with the ex-barge hauls. Nor is the Commission’s order supported by its conclusion that it is “inequitable” for the barges to charge a much lower rate for the inbound grain haul than the competitive western railroads can afford to charge for the same haul, resulting in barge-rail rates lower than all-rail rates from the same localities. For this is no reason for authorizing a higher rate to eastern railroads which do not compete with the barges at all. If the western railroads need relief from the competition of barges, that is a question wholly unrelated to the rates of eastern roads. Furthermore, Congress has decided this question of equitable rates as between railroads and barges. It has declared in unmistakable terms that the “inherent advantage” of the lower cost of barge carriage as compared with that of railroads must be passed on to those who ship by barge. It is therefore not within the province of the Commission to adjust rates, either to equalize the transportation cost of barge shippers with that of shippers who do not have access to barge service or to protect the traffic of railroads from barge competition. For Congress left the Commission no discretionary power to approve any type of rates which would reduce the “inherent advantage” of barge transportation in whole or in part. Cf. Mitchell v. United States, 313 U. S. 80, 97.
Related to the question just discussed, is the Commission’s contention here that permitting reshipping rates for ex-barge grain to remain equal to the rates for ex-rail and ex-lake grain will cause “incurable chaos” in and disrupt the national rail rate structure which reflects many interrelated conditions governing the transportation of grain from west of Chicago to eastern markets. The Commission does not show how any possible disruption of railroad rate structure arises from giving shippers the full inherent advantage of cheaper barge rates, other than that competing railroads have lost traffic to the barge lines. As we have pointed out, Congress knew that barge line rates were cheaper than rail rates, wanted the shippers to get full benefit of them, and left the Commission no power to take that benefit away from shippers by adjusting rail-barge traffic competition or rates. But we note incidentally that these rates had been equal prior to 1939 without any apparent disruption of the total structure. The possibility of such a disruption does not remotely justify discriminations against barge traffic which actually deprive shippers and the barge companies of the inherent advantages of water transportation guaranteed to them by Congress. See United States v. Chicago, M. & St. P. R. Co., 294 U. S. 499, 506-510. Nor is the fact that barge-rail rates, from certain places in the west through Chicago to the east, are less than local rail rates from Chicago east, an adequate reason for increasing the east-of-Chicago part of the through barge-rail rate. The initiation of new rates with such a disparity in through rail rates as compared with local rail rates would, of course, be forbidden by § 4 of the Act as amended in the absence of Commission approval. But, insofar as the inherent cheapness of the barge leg of the through route produces a disparity between barge-rail rates and local rail rates, Congress has said that the Act must be so administered as to preserve, not eliminate or reduce the disparity.
Carriage of ex-barge grain by eastern roads may conceivably entail more service and therefore greater costs than are involved in carrying ex-rail or ex-lake grain. If so, the eastern roads may, in certain circumstances, be justified in receiving an extra charge for that extra service wherever it is rendered. But the extra service must fit the extra charge and cannot justify lump sum rate increases which cut into the inherent advantages of cheaper barge transportation which Congress intended to guarantee to shippers. Here the Commission found in broad general terms, without limitation to the localities where barge and rail compete, that “on the average” ex-rail grain from all the west requires less terminal and transit service east of Chicago than does grain moving by barge from the relatively few barge terminals. As to terminal service, it noted that some rail grain traffic going through Chicago without stopping receives no terminal service at all, whereas all barge grain shipments must be unloaded in Chicago and reloaded on freight cars. But all ex-lake grain reshipped from Chicago and an unspecified amount of ex-rail grain stopped in Chicago for processing requires exactly the same terminal service as is rendered there for ex-barge grain. Yet there is no greater rate charged for ex-barge and ex-rail grain which receives this same terminal service. The formula used here which lumps all through rail grain rates, irrespective of the services rendered, to give rail-carried grain a preferred rate over barge-carried grain, is indistinguishable in cause and consequence from an order which directly raises barge rates to relieve the railroads from barge competition. In any event, there has been no showing by the Commission as to how much, if any, of the 3-cent reshipping rate increase is attributable to the fact that ex-barge grain requires more terminal service on the average than does ex-rail grain.
The Commission also pointed out in its decision that rail rates from the west to Chicago (which we must assume on this record are fair and reasonable for the services performed) permit three transit stops west of Chicago without extra charge. Thus some ex-rail grain, unlike ex-barge and ex-lake grain, has already been processed en route to or in Chicago before it ever reaches the eastern lines, reducing the likelihood that it will require further transit service on the route from Chicago to the east. But ex-lake grain which enjoys the proportional rates with the approval of the Commission apparently is not processed before arriving at Chicago, or before reshipment on the eastern lines, and consequently requires the same transit service on the eastern haul as is required by ex-barge grain. Similar transit service is required for the unspecified amounts of ex-rail grain not processed east of Chicago. But the Commission made no finding that the eastern reshipping rates permit transit service east of Chicago without extra charge. Probably the reason that it did not make such a finding is that carriers usually make a specific extra charge for transit service. See Central R. Co. of N. J. v. United States, 257 U. S. 247; Atchison, T. & S. F. R. Co. v. United States, supra, 777, 780. And the record here shows that eastern railroads make extra charges for transit service rendered ex-barge grain east of Chicago. The Commission makes no showing why, if the existing railroad charges for each individual transit operation is insufficient to cover that operation’s costs, those charges cannot be adjusted alike for the ex-rail, ex-lake, and ex-barge shipments which require this service. In any event, partial compensation of eastern roads for additional transit costs cannot be made in a manner which singles out ex-barge grain for discriminatory treatment in violation of the Interstate Commerce Act.
To justify increasing the reshipping rates of ex-barge grain the Commission would have to make findings supported by evidence to show how much greater is the cost to the eastern roads of reshipping ex-barge grain than of reshipping ex-lake or ex-rail grain moving from the same localities and requiring the same service as does the ex-barge grain. Cf. Florida v. United States, 282 U. S. 194, 212; North Carolina v. United States, 325 U. S. 507, 520. The unsifted averages put forward by the Commission do not measure the allegedly greater costs nor indeed show that they exist.
Affirmed.
Mr. Justice Frankfurter would sustain the order of the Interstate Commerce Commission, because he deems it amply supported by adequate findings of the Commission differentiating the average circumstances and conditions surrounding all-rail and lake-rail transportation from those affecting barge-rail transportation, 262 I. C. C. 27-28, and these findings are not without support in evidence.
The eastern points are in New York and adjacent states and in New England. It is around shipments from Chicago to this territory that this rate controversy chiéfly revolves. The proposed new rate increases also related to grain shipments from Chicago to the so-called central territory. The reasons supporting the conclusion we reach apply equally to the central territory increases, and consequently we need not treat them separately.
See 246 I. C. C. 353, 361, 364, 383; 262 I. C. C. 7, 41.
There was barge service from the grain section west of Chicago to that city from 1886 to 1907 when it was discontinued. Such barge service was resumed in 1933. See 262 I. C. C. 7, 20.
The ex-barge proportionals fixed by the Commission were uniformly 5.5 cents lower than local rates from Chicago to the east and 3 cents higher than ex-barge and ex-lake proportionals.
Appellees are (1) A. L. Mechling, a barge water carrier between Chicago and points in Illinois, Missouri, and Iowa; (2) Inland Waterways Corporation which transports grain by barges between, among other points, Kansas City and Chicago; (3) the Secretary of Agriculture, who is authorized by statute to make complaints to the Interstate Commerce Commission, and to seek judicial relief with respect to rates and charges for the transportation of farm products.
Two procedural points are raised by the Commission which need not be discussed at length. The first is that the District Court’s preliminary injunction was too broad because it enjoined the Commission from permitting the controversial rates to become effective. This question is now moot, but see Inland Steel Co. v. United States, 306 U. S. 153, 159-160. The second procedural point urged relates to the District Court’s order requiring the Commission to serve notice of appeal on the United States. We see no error in this, and even if there were, it could not be prejudicial in connection with the Commission’s rights on this appeal. Since the United States was necessarily a party in the District Court, 28 U. S. C. 46; Lambert Run Coal Co. v. Baltimore & O. R. Co., 258 U. S. 377, 382, we think the District Court cannot be held in error for requiring service of the notice of the Commission’s appeal.
54 Stat. 898, 937 ; 49 U. S. C. § 907d. In the original proceedings before the Commission, the last evidence was heard and the record was closed before the 1940 Transportation Act became a law. Interstate Commerce Commission v. Inland Waterways Cory., 319 U. S. 671, 678. The present proceedings are fully governed by the 1940 Act.
Illustrative of the attitude of Congress is this exchange between Senator Lucas and Senator Wheeler, Chairman of the Interstate Commerce Committee :
“Mr. Lucas. . . . The town in which I live is a focal point for the transportation of wheat and corn down the Illinois. The price of wheat and corn at the elevator there is always 2 or 3 cents higher than it is at elevators some 25 or 30 miles farther inland because of the difference between the rates by rail and those by water.
“Under the bill, as I understand it, the Interstate Commerce Commission would have the power, and it would be its duty, to fix rates on the Illinois River with respect to the transportation of that wheat and corn. Would it be possible for .the Interstate Commerce Commission to fix the rate the same as the railroad rate from that point to St. Louis?
“Mr. Wheeler. Not if the Commission does its duty, because the bill specifically provides that it must take into consideration the inherent advantages of the water carrier. Everyone agrees that goods can be shipped more cheaply by water than by rail.” 84 Cong. Rec. 5879 (1939).
Chairman Lea of the House Committee on Interstate Commerce stated in debate that:
“The bill very plainly, about as plainly as language can be written, provides for the protection of the inherent advantages of water transportation as contrasted with other means of transportation. In fixing rates the water carrier is assured the advantages of the cheaper rate at which he can transport property.” 84 Cong. Rec. 9862 (1939).
See also 84 Cong. Rec. 5883, 6125-6128, 6131, 6149 (1939), and Conference Report, 86 Cong. Rec. 10172 (1940).
84 Cong. Rec. 5873-5876, 5883, 6131 (1939).
The Commission stated that “The barge rates yield fair returns to the barge carriers, and, for the purpose of this proceeding, may be accepted as reasonable.” 262 I. C. C. 7, 19.
The Commission expressed concern that “the barge-rail rates are far below the all-rail rates from the same and other Illinois origins. This is an inequitable situation giving rise to requests for reductions in the all-rail rates from the Illinois and central territory origins, and it is difficult to see, with such extreme disparities, how such requests could properly be denied. . . . there is a substantial production of corn in central territory. While the farmers therein did not appear at the hearing to show that they were hurt by this situation, such evidence was adduced by others in the same relative position . . . This is what is meant by the statement . . . that the present ex-barge proportionals from Chicago jeopardize the all-rail rate structure.” 262 I. C. C. at 20. In United States v. Chicago, M. & St. P. R. Co., 294 U. S. 499, 509, this Court said of an earlier Commission rate decision made on the basis of preserving the over-all rate structure from disruption: “We are warned . . , that a change once permitted has a tendency to spread. The acceptance of the new schedule for Milwaukee will lead, it is said, to requests for proportionate reductions by other lines in Indiana ... in Illinois and even in Kentucky, the outcome being characterized in the argument of counsel, though not in the report, as a rate war between the roads. . . . The point of the decision is not that present rates are sound, but that they must be maintained, even if unsound, for fear of a rate war which might spread beyond control. The danger is illusory. The whole situation is subject to the power of the Commission, which may keep the changes within bounds.”
See § 6, Transportation Act of 1940, 54 Stat. 898, 904, 49 U. S. C. § 4.
The Commission stated that “on the average, as compared with the ex-barge grain, the movement under the ex-rail proportionals . . . requires less terminal service at the gateway . . . less transit service at intermediate points in official territory, and less line-haul service to the southern portion." 262 I. C. C. at 28.
The Commission’s statement was that, “Like the lake-rail traffic, the barge-rail traffic requires transfer of lading and a full origin terminal service at the interchange port. ... it never moves in continuous through transportation.” 262 I. C. C. 7, 21.
A similar precise statement does not appear in the Commission’s decision with reference to terminal services rendered ex-rail grain. It assumed throughout its discussion, however, as shown by its reliance on averages, that a large but unspecified amount of all-rail grain shipments receive the same terminal services as does ex-barge grain.
There is apparently no processing of barge-carried grain in Chicago. The railroads there charge 3.25-4.5 cents per hundred lbs. to switch barge grain at Chicago from riverside elevators to processing plants. 262 I. C. C. 7, 24.
It is noteworthy that in its previous consideration of these same ex-barge grain reshipment rates, the Commission was satisfied that “the physical carriage beyond the reshipping point is substantially the same” in ex-rail, ex-lake, and ex-barge shipments. 248 I. C. C. 307, 311. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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65
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THOMPSON, TRUSTEE, MISSOURI PACIFIC RAILROAD CO. v. UNITED STATES et al.
No. 513.
Argued April 23, 1952.
Decided June 2, 1952.
Toll R. Ware argued the cause for appellant. With him on the brief were T. T. Railey and Geo. W. Holmes.
Samuel R. Howell argued the cause for the Interstate Commerce Commission, appellee. With him on the brief was Daniel W. Knowlton.
Solicitor General Perlman, Assistant Attorney General Morison and Ralph S. Spritzer submitted on brief for the United States, appellee.
B. W. La Tourette and G. M. Rebman submitted on brief for the Omaha Grain Exchange, appellee.
Me. Chief Justice Vinson
delivered the opinion of the Court.
The sole question before the Court in this case concerns the content of the term “through route” as used in the Interstate Commerce Act.
The question arises out of a controversy as to the shipment of grain to market from points in Kansas on the Central Branch of the Missouri Pacific Railroad. From Lenora, Kansas, a typical origin point, grain may be shipped eastward to the Kansas City market over Missouri Pacific lines via Atchison, Kansas, at a rate of 19 cents per hundred pounds. The Missouri Pacific also provides service from Lenora to Omaha, Nebraska, via Atchison, at the rate of 25.5 cents. Midway between Lenora and Atchison, at Concordia, Kansas, the Missouri Pacific connects with a line of the Chicago, Burlington & Quincy Railroad running in a northeasterly direction to Omaha. Concordia is listed by the carriers as a point for interchange of traffic and there is evidence that the Missouri Pacific and the Burlington offer through transportation via Concordia from Lenora to points on the Burlington line short of Omaha. But there is no evidence that any shipment has ever been made from Lenora to Omaha via the Burlington line or that the carriers have ever offered through service over that route, although the haul from Lenora to Omaha via the Burlington is approximately the same length as the haul from Lenora to Kansas City over the lines of the Missouri Pacific.
The Omaha Grain Exchange complained to the Interstate Commerce Commission that the rates published by appellant, Trustee for the Missouri Pacific, on grain shipped from Lenora and other Kansas origins are unreasonable and discriminate against Omaha in violation of Sections 1 and 3 of the Interstate Commerce Act. In the complaint it was contended that the route to Omaha via Concordia and the Burlington line “is a practicable through route as provided in Section 15 of the Interstate Commerce Act, and that the rates to the market of Omaha should be no greater than the rates to the market of Kansas City.”
Section 15 (3) of the Act provides that—
“The Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, after full hearing upon complaint or upon its own initiative without complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by carriers subject to this part, . . . 54 Stat. 911, 49 U. S. C. § 15 (3).
The Commission’s power to establish through routes is limited by a provision of Section 15 (4), quoted in the margin, whenever such action would require a carrier to short haul itself. Under that Section, a carrier may be required to short haul itself only where its own line makes the existing through route “unreasonably long as compared with another practicable through route which could otherwise be established,” or where the Commission makes special findings that a proposed through route “is needed in order to provide adequate, and more efficient or more economic, transportation.” Establishment of a new through route from Lenora to Omaha, via the Burlington, would compel the Missouri Pacific to permit use of the Lenora-Concordia portion of its line in the new through route to Omaha in competition with the Missouri Pacific’s own route from Lenora to Omaha via Atchison. As a result, establishment of a new through route as requested by the Omaha Grain Exchange admittedly invokes the restriction against short hauling in Section 15 (4).
The parties dispute whether, on the record in this case, there is sufficient basis for making the findings required by Section 15 (3) and (4) for the establishment of a through route. We do not reach this question because there was no attempt to make the inquiry and findings required by Section 15, the Commission finding that a through route from Lenora to Omaha via Concordia and the Burlington line was already in existence and, therefore, did not have to be “established.” The Commission granted relief to the complainant Omaha Grain Exchange by finding that the sum of the local rate from Lenora to Concordia published by appellant and the local rate from Concordia to Omaha published by the Burlington (totaling 30 cents per hundred pounds) is an “unreasonable” rate over the route from Lenora to Omaha via the Burlington. Appellant was ordered to provide transportation of grain from Lenora to Omaha at rates not exceeding the rates charged by the Missouri Pacific on like traffic to Kansas City (19 cents). The Commission did not consider the reasonableness of the rate published by appellant for the route from Lenora to Omaha via Atchison, nor is there any finding that the local rate from Lenora to Concordia published by appellant is itself either unreasonable or discriminatory. 278 I. C. C. 519, affirming Division 2,272 I. C. C. 368.
Appellant sued in the District Court to enjoin enforcement of the Commission’s order on the sole ground that the Commission erred in finding the existence of a through route from Lenora to Omaha via the Burlington with the result that the order, in effect, establishes a new through route without complying with the requirements of Section 15 (3) and (4) of the Act. A three-judge District Court, one judge dissenting, sustained the Commission’s order and dismissed appellant’s complaint. The District Court concluded that “evidence of physical interchange connection at Concordia, plus long established joint rates to some points on the Burlington short of Omaha, plus combination rates to Omaha,” furnished sufficient evidentiary basis for the Commission’s finding of the existence of a through route. 101 F. Supp. 48. The case is here on direct appeal. 28 U. S. C. (Supp. IV) § 1253.
Under the Interstate Commerce Act, a carrier must not only provide transportation service at reasonable rates over its own lines but has the additional duty “to establish reasonable through routes with other such carriers, and just and reasonable rates . . . applicable thereto.” Through routes may be, and ordinarily are, established by the voluntary action of connecting carriers. Since 1906, through routes may also be established by order of the Interstate Commerce Commission. In that year, Congress authorized the Commission to establish through routes “provided no reasonable or satisfactory through route exists.” In 1910, Congress first empowered the Commission to establish alternate through routes but restricted this power by adding the forerunner of present Section 15 (4) to prevent the Commission from establishing any through route requiring a carrier to short haul itself unless the existing route was unreasonably long compared to the proposed route.
The Commission’s effort to limit by construction the impact of the short-hauling restriction on its power to establish through routes was rejected by this Court in United States v. Missouri Pacific R. Co., 278 U. S. 269 (1929). Following this decision, the Commission asked Congress to delete completely the short-hauling restriction. In the Transportation Act of 1940, Congress refused to eliminate the restriction against short hauling, but adopted a compromise under which the restriction against short hauling was retained subject to a new exception applicable only where the Commission makes the special findings listed in the amended Section 15 (4).
Confronted with this consistent legislative refusal to eliminate the short-hauling restriction on its power to establish through routes, the Commission justifies its order on the ground that a "through route” from Lenora to Omaha via the Burlington was already in existence. If the Commission has correctly applied the term “through route” in this case, the Commission’s restricted power to “establish” through routes under Section 15 (3) and (4) is not relevant to this case. The statutory term “through route,” used throughout the Interstate Commerce Act, has been defined by this Court as follows:
“A ‘through route’ is an arrangement, express or implied, between connecting railroads for the continuous carriage of goods from the originating point on the line of one carrier to destination on the line of another. Through carriage implies a ‘through rate.’ This ‘through rate’ is not necessarily a ‘joint rate.’ It may be merely an aggregation of separate rates fixed independently by the several carriers forming the ‘through route’; as where the ‘through rate’ is ‘the sum of the locals’ on the several connecting lines or is the sum of lower rates otherwise separately established by them for through transportation. Through Routes and Through Rates, 12 I. C. C. 163,166.”
The Commission decision cited by the Court was summarized as follows in the Commission’s 21st Annual Report to Congress:
“A through route is a continuous line of railway formed by an arrangement, express or implied, between connecting carriers. . . . Existence of a through route is to be determined by the incidents and circumstances of the shipment, such as the billing, the transfer from one carrier to another, the collection and division of transportation charges, or the use of a proportional rate to or from junction points or basing points. These incidents named are not to be regarded as exclusive of others which may tend to establish a carrier’s course of business with respect to through shipments.”
In short, the test of the existence of a “through route” is whether the participating carriers hold themselves out as offering through transportation service. Through carriage implies the existence of a through route whatever the form of the rates charged for the through service.
In this case there is no evidence that any through transportation service has ever been offered from Lenora to Omaha via the Burlington. The carriers’ course of business negatives the existence of any such through route. The fact that appellant’s line connects with the Burlington at Concordia does not aid the Commission in proving the existence of a through route, since the power to establish through routes under Section 15 (3) and (4) also presupposes such physical connection. And the showing that appellant publishes a local rate from Lenora to Concordia and that the Burlington publishes a local rate from Concordia to Omaha proves only that each carrier complies with the statutory duty to publish rates for transportation service between points on its own lines.
The only remaining evidence urged in support of the Commission’s finding that a through route from Lenora to Omaha via the Burlington already exists is the showing that the Missouri Pacific and the Burlington offer through service from Lenora to points on the Burlington line short of Omaha. Under Section 1 (4) of the Interstate Commerce Act, the Missouri Pacific is required to establish reasonable through routes. In conformity with that Section, the Missouri Pacific furnishes through service from Lenora to Omaha on its own lines via Atchison and, since its own lines do not serve points on the Burlington line short of Omaha, it offers through service to such points in conjunction with the Burlington. Through service to points short of Omaha cannot be used as evidence of the existence of a through route to Omaha unless we are to hold that compliance with Section 1 (4) causes the Missouri Pacific to lose its right to serve Omaha via its own lines, a right guaranteed by Section 15 (4). We reject the Commission’s argument that the existence of through routes from Lenora to points on the Burlington line short of Omaha proves the existence of a through route to Omaha via the Burlington as requiring an unwarranted distortion of the statutory pattern.
The United States, having joined in defense of the Commission’s order in the District Court and on motion to affirm in this Court, has filed a memorandum conceding that the Commission erred in finding that through routes over the Burlington line already exist. The Commission continues to support its order, but the logical conclusion of the theory advanced by the Commission is that through routes exist between all points throughout the country wherever physical rail connections are available. If there is no through carriage over any combination of connecting carriers, the Commission under its present theory would never have to establish through routes under Section 15 (3) and (4) but could divert traffic to any route between two points by ordering reduction of the sum of the local rates over that route. Acceptance of this argument would mean that Congress’ insistence on protecting carriers from being required to short haul themselves could be evaded whenever the Commission chose to alter the form of its order. The Commission, by using the form of order employed in this case, could also divert traffic from existing through routes to the lines of a weak carrier solely to assist that carrier to meet its financial needs, thereby evading completely the applicable prohibition of Section 15 (4), before the Court in United States v. Great Northern R. Co., 343 U. S. 562 (decided this day). In short, acceptance of the Commission’s argument would mean that the acts of Congress since 1906 granting the Commission only a carefully restricted power to establish through routes have been unnecessary surplusage.
We hold that the Commission’s efforts to support its finding that a through route from Lenora to Omaha via the Burlington line already exists are inconsistent with the meaning of the term “through route” as used in the Interstate Commerce Act. Since there is admittedly no evidence that the Missouri Pacific ever offered through transportation service over the route in question, the Commission’s order is without evidentiary support under the accepted tests for determining the existence of a through route. Accordingly, the judgment of the District Court dismissing appellant’s complaint must be
Reversed.
49 U. S. C. § 1 et seq.
See 49 U. S. C. §§ 1 (5) (a), 3 (1).
“In establishing any such through route the Commission shall not (except as provided in section 3, and except where one of the carriers is a water line) require any carrier by railroad, without its consent, to embrace in such route substantially less than the entire length of its railroad and of any intermediate railroad operated in conjunction and under a common management or control therewith, which lies between the termini of such proposed through route, (a) unless such inclusion of lines would make the through route unreasonably long as compared with another practicable through route which could otherwise be established, or (b) unless the Commission finds that the through route proposed to be established is needed in order to provide adequate, and more efficient or more economic, transportation: Provided, however, That in prescribing through routes the Commission shall, so far as is consistent with the public interest, and subject to the foregoing limitations in clauses (a) and (b), give reasonable preference to the carrier by railroad which originates the traffic. . . .” 54 Stat. 911-912, 49 U. S. C. § 15 (4).
The short-hauling provisions are discussed and applied in Pennsylvania R. Co. v. United States, 323 U. S. 588 (1945).
49 U. S. C. §1 (4).
34 Stat. 584, 590. In I. C. C. v. Northern Pacific R. Co., 216 U. S. 538 (1910), this Court held that the restrictions on the Commission’s power to establish through routes were judicially enforceable.
36 Stat. 539, 552. See S. Rep. No. 355, 61st Cong., 2d Sess. 9-10 (1910).
The Commission first asked Congress to" adopt the narrow construction of the short-hauling restriction rejected by this Court in United States v. Missouri Pacific R. Co., supra. Ann. Rep. I. C. C. (1929) 89; id. (1930) 97; id. (1931) 83-84, 121; id. (1932) 102. When the Federal Transportation Coordinator recommended that the short-hauling restriction be eliminated, S. Doc. No. 152, 73d Cong., 2d Sess. 92-94 (1934), the Commission urged Congress to follow the Coordinator's recommendation. Ann. Rep. I. C. C. (1937) 106; id. (1938) 122.
In the 74th Congress, S. 1636 and H. R. 5364 were introduced to enact the Commission’s recommendation, the Senate bill was reported favorably, S. Rep. No. 1970, 74th Cong., 2d Sess. (1936), but no further action was taken. In the 75th Congress, similar bills were introduced, S. 1261 and H. R. 4341, the Senate bill was reported favorably, S. Rep. No. 404, 75th Cong., 1st Sess. (1937), and was passed by the Senate, 81 Cong. Rec. 8603 (1937), but no further action was taken.
In the 76th Congress, bills to delete the short-hauling restriction were again introduced, S. 1085 and H. R. 3400. At the same time, the extensive revision of the Interstate Commerce Act which became the Transportation Act of 1940 was being considered. S. 2009. A Senate Committee included in its over-all revision the “through-routes provision long advocated by the Commission,” S. Rep. No. 433, 76th Cong., 1st Sess. 6, 21-22 (1939), and the Transportation Act, so amended, was passed by the Senate. The Transportation Act as passed by the House did not provide for any change in Section 15 (4). The present form of Section 15 (4) emerged as Section 10 (b) of the Transportation Act of 1940. 54 Stat. 898, 911-912. See Conference Reports: H. R. Rep. No. 2016, 76th Cong., 3d Sess. 64r-65 (1940); H. R. Rep. No. 2832, 76th Cong., 3d Sess. 70-71 (1940).
49 U. S. C. §§ 1 (4), 6 (1), 15 (3) (4) (8); 49 U. S. C. (Supp. IV) § 5b (4).
St. Louis Southwestern R. Co. v. United States, 245 U. S. 136, 139, note 2 (1917). See also Great Northern R. Co. v. United States, 81 F. Supp. 921, 924 (D. Del. 1948), affirmed, 336 U. S. 933 (1949).
Ann. Rep. I. C. C. (1907) 75-76.
Compare Beaman Elevator Co. v. Chicago & N. W. R. Co., 155 I. C. C. 313 (1929), where the Commission held that proof of one shipment on a through bill of lading over a certain route was not sufficient to show the existence of a through route because that one shipment was not representative of the carriers’ course of business.
49 U. S. C. §6 (1).
The District Court indicated that such through service was offered on joint rates, but appellant states in this Court that such through service was offered on a through rate made up of a combination of the applicable local rates. We need not pause over this conflict since “through routes” from Lenora to points on the Burlington short of Omaha are implied from the fact of through carriage, and are not dependent upon the form of the rates charged. See St. Louis Southwestern R. Co. v. United States, note 11, supra, and United States v. Great Northern R. Co., 343 U. S. 562 (decided this day).
49 U. S. C. § 1 (4).
For example, in United States v. Missouri Pacific R. Co., supra, the Missouri Pacific furnished through traffic over its own lines from Memphis westward to Ft. Smith, Arkansas, and beyond. The Ft. Smith, Subiaeo & R. I. R. Co., desirous of obtaining additional traffic, asked the Commission to establish a through route from Memphis to Ft. Smith via the connecting lines of the Rock Island Railroad, the Subiaco and a line of the Missouri Pacific. The Commission ordered the establishment of, the through route with through rates at the same level as the rates then charged over the existing through route between Memphis and Ft. Smith. This Court held the order invalid as infringing upon the rights of the Missouri Pacific under the short-hauling provisions of Section 15 (4). If the Commission is correct in this case, it could have accomplished the forbidden result merely by altering the form of its order — i. e., instead of ordering establishment of a new through route, the Commission could have assumed the existence of a through route from Memphis to Ft. Smith via the lines of the Rock Island, the Subiaco and the Missouri Pacific and accomplished the identical result by ordering reduction of the sum of the local rates over each portion of the route to the level of the rate over the existing through route.
Virginian R. Co. v. United States, 272 U. S. 658 (1926), is inapposite since through routes were there found to be in existence but commercially closed solely because of unreasonable and discriminatory rates charged by the Virginian over its portion of the route. In this case, there is no finding that the local rate charged by the Missouri Pacific from Lenora to Concordia is either unreasonable or discriminatory. Similarly, the decision in Atchison, T. & S. F. R. Co. v. United States, 279 U. S. 768 (1929), is not applicable to the facts of this case.
The Commission’s argument that appellant’s rates discriminate against Omaha in violation of Section 3 (1) of the Act and thereby cause appellant to lose the protection of Section 15 (4) is without substance because the Commission did not consider whether the rates charged by the Missouri Pacific over its own lines are discriminatory, much less make any finding to that effect. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
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] | [
65
] |
UNEMPLOYMENT COMPENSATION COMMISSION OF ALASKA et al. v. ARAGON et al.
No. 25.
Argued February 27,1946. Reargued November 13,1946.—
Decided December 9, 1946.
Marshall P. Madison argued the cause for petitioners. With him on the briefs were E. Coke Hill and Francis R, Kirkham.
Herbert Resner argued the cause and filed a brief for respondents.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
In May, 1940, the individual respondents filed claims for unemployment benefits with the Unemployment Compensation Commission of the Territory of Alaska. After an initial determination by an examiner and after decision by a referee, the Commission held that the claimants were disqualified from receiving benefits for a period of eight weeks, since their unemployment was due to a labor dispute in active progress within the meaning of the Alaska Unemployment Compensation Law. The United States District Court affirmed the Commission’s holding in all particulars. The Circuit Court of Appeals reversed, one judge dissenting. We granted certiorari because of the public importance of the questions involved.
Among the petitioners are three corporations engaged principally in the business of salmon fishing, canning, and ma.rlcpit.ing. One of the companies owns canneries and other facilities at Karluk, Chignik, and Bristol Bay, Alaska. The other two companies operate only at Bristol Bay. Catching and canning salmon is a seasonal activity. The companies customarily hire workers at San Francisco at the beginning of the season, transport them to the Alaskan establishments, and Return them to San Francisco at the season’s end. Similar operations are carried on by other companies out of other west coast ports, notably Seattle and Portland. The individual respondents are all members of the Alaska Cannery Workers Union Local No. 5, and each worked in Alaska for one of the three companies during the 1939 season. Local No. 6 is the recognized bargaining agent of the cannery workers in the San Francisco area.
In 1939, as had been the practice for some years, the union entered into a written agreement with the companies, covering in considerable detail the matters of wages, hours, conditions of employment, and the like. After the end of the 1939 season, the companies terminated the agreement then in effect, which made necessary the negotiation of a new contract for the 1940 season. Consequently, on March 6, 1940, the companies through their authorized agent, Alaska Salmon Industry, Inc., invited the union to enter into negotiations for a new agreement. In a series of meetings held shortly thereafter, serious disagreement appeared which quickly developed into an impasse on the question of wages. The union demanded wages equal to or in excess of those paid under the terms of the 1939 agreement. The companies offered wages which for the most part were below those paid in 1939. On April 1,1940, the union caused the negotiations as to the wage issue to be transferred from San Francisco to Seattle, where an attempt was being made to effect a coastwide agreement to cover all west coast companies carrying on salmon operations in Alaska. . Local No. 5, however, refused to sign a “memorandum” agreement incorporating such terms as might result from the concurrent Seattle negotiations.
On April 3, the companies notified the union that if operations were to be carried on in Karluk and Chignik during the 1940 season, an agreement with respect to the former would have to be reached by April 10 and with respect to the latter by April 12. Although negotiations proceeded up to the deadlines, the parties arrived at no understanding, and on April 22 Alaska Salmon Industry, Inc., formally announced that no operations would be carried on in Karluk and Chignik during 1940. Meetings continued, however, in an effort to come to an understanding with respect to Bristol Bay before the arrival of the May 3d deadline which had been set for those operations. Although federal mediators intervened in an attempt to discover a suitable compromise, the deadline date passed without agreement. It appears that, after May 3, negotiations continued in Seattle, where a contract affecting only canners and workers operating out of ports other than San Francisco was finally executed on May 29. The companies and union which are involved in this case were specifically excluded from the terms of the 1940 Seattle agreement.
Shortly after May 3, the individual respondents filed claims for unemployment benefits with the Alaska Unemployment Compensation Commission. The Commission, acting through an examiner, held that respondents were disqualified from receiving payments for the statutory period of eight weeks under the provisions of § 5 (d) of the Alaska law. At the time this case arose, that section stated in part: “An individual shall be disqualified for benefits ... (d) For any week with respect to which the Commission finds that his total or partial unemployment is due to a labor dispute which is in active progress at the factory, establishment or other premises at which he is or was last employed; provided, that such disqualification shall not exceed the 8 weeks immediately following the beginning of such dispute . . .”
In pursuance of the appeal provisions of the statute, respondents asked for a review of the examiner’s determination. The Commission, in response to this application, appointed a Referee to pass on the disputed claims. The scope of the hearings was confined to the issue of whether the unemployment of the claimants was caused by the existence of a labor dispute. At the end of the proceedings, the Referee came to the conclusion that, although there was a labor dispute in existence initially, the dispute was no longer “in active progress” after the passing of the dates fixed by the companies for consummation of the working agreements. Consequently, the disqualification under § 5 (d) with respect to each of the localities was held no longer to attach after the passage of the respective deadline dates.'
The Commission, on appeal, reversed the Referee’s decision and held that, within the meaning of the Alaska law, a labor dispute was in active progress throughout the entire eight-week statutory period of disqualification beginning with the opening of the season in each locality. Consequently, no benefits were payable until the expiration of the disqualification period. The United States District Court affirmed the Commission’s decision in all particulars. The Circuit Court of Appeals, with one judge dissenting, reversed, however, on the ground that the labor dispute was not physically at the Alaska canneries where the individual respondents had been last employed.
We are met at the outset with the contention that the facts of this case do not present a “labor dispute” within the meaning of § 5 (d) of the Alaska Act. Respondents urge that the term must be narrowly construed to require a strike or leaving of employment which, in turn, calls for a presently-existing employment relation at the time the dispute arises. According to this view, the term would not cover a situation, such as presented here, where the controversy precedes the employment. Respondents would justify this restricted construction on the ground that the Unemployment Compensation Law is remedial legislation, and any provision limiting benefits under the Act should be narrowly interpreted.
The term “labor dispute” is not defined in the statute. The term appears in the Act in one other connection, however. Section 5 (c) (2) (A) provides that benefits under the Act will not be denied any individual, otherwise eligible, who refuses to accept new work “if the position offered is vacant due directly to a strike, lockout, or other labor dispute.” The Social Security Act of 1935 requires that the state or territorial law contain a provision to this effect before the legislation can be approved by the Social Security Board. Obviously, for the purposes of § 5 (c)(2)(A), the term, “labor dispute,” has a broader meaning than that attributed to it by respondents. Unless the Territorial Legislature intended to give a different meaning to the same language appearing in another subdivision of the same section, the term must be given a broader meaning than that contended for by the respondents, for the purposes of § 5 (d) as well. We need not determine whether “labor dispute” must in all cases be construed as broadly as it is defined in the Norris-LaGuardia Act and the National Labor Relations Act. But here there was full-scale controversy. Companies engaged in carrying on a seasonal business were ranged against a union representing seasonal workers who had been employed by the companies in the previous year. Dispute there certainly was; and the subject of that dispute consisted of matters usually contested in labor disputes as that term is normally understood. Since we find nothing to indicate that the Territorial Legislature intended a contrary result, we conclude that the Commission might properly find a “labor dispute” here presented within the meaning of § 5 (d) of the Alaska Act.
We think that there is evidence in the record to support the Commission’s conclusion that respondents’ unemployment was “due” to a labor dispute insofar as that holding relates to the individual respondents employed in 1939 by the Alaska Packers Association and the Red Salmon Canning Company. At the hearings before the Referee, the respondents attempted to establish that the companies called off their 1940 operations for reasons other than their inability to negotiate a satisfactory labor agreement. It was argued, for example, that the companies feared a poor catch as a result of governmental restrictions on fishing applicable to the 1940 season. The evidence adduced before the Referee indicates that both of the above-mentioned companies made extensive preparations for the 1940 operations. In anticipation, equipment and supplies of the value of several hundred thousand dollars were purchased. Ships were prepared and held in readiness for the expeditions. The Referee found that these companies negotiated in good faith and failed to operate in Alaska during the 1940 season only because of their inability to negotiate satisfactory labor agreements before the passing of the deadline dates. There is evidence that the Alaska Packers Association expected to hire about two-thirds the number of workers in 1940 it had employed in 1939. But there is nothing in the record to establish that any of the claimants in this action would have been unemployed as a result of this contemplated curtailment in activity, or, if any of the respondents would have been affected, which of their number would have been unemployed. It appears that the Red Salmon Canning Company expected to use the same number of workers in 1940 as in 1939, or possibly a few more. Under these circumstances, we think that the Commission’s finding that the unemployment was “due” to the labor dispute should stand insofar as it relates to the claimants indicated.
But a different situation is presented with reference to the respondents employed by the Alaska Salmon Company in 1939. That company has an establishment only at Bristol Bay. On April 30, three days before the deadline relating to the Bristol Bay operations, Alaska Salmon withdrew from the negotiations with the union and announced that it was unable to send an expedition to Alaska in 1940. The Referee found that the withdrawal was caused primarily by factors other than the company’s inability to negotiate a satisfactory labor contract. At the hearings before the Referee, counsel for the company stipulated that, even though the other companies had negotiated a labor agreement with the union before the deadline date, Alaska Salmon would have conducted no operations out of San Francisco in 1940 after its withdrawal from negotiations. We conclude that the record does not support the finding of the Commission that the respondents employed by the Alaska Salmon Company in 1939 were unemployed “due” to a labor dispute at the establishment at which last employed.
Respondents urge that, assuming their unemployment was due to a labor dispute, there was no labor dispute in active progress,” within the meaning of the Act, after the passage of the deadline dates. It is argued that when the expeditions were abandoned by the companies, the dispute must necessarily have terminated since there was no possible way in which negotiations could have brought about a settlement. It should be observed, however, that the record does not reveal that negotiations abruptly terminated with the passing of the last deadline date. Conferences continued at Seattle in which both the companies and the union were represented. The respondents considered the negotiations sufficiently alive to make an offer of terms at least as late as May 29. Even if it be assumed that at some time within the eight-week period of disqualification the point was reached when all possibility of settlement disappeared, it does not follow that the Commission’s finding of a dispute in “active progress” must be overturned. Here, as in Labor Board v. Hearst Publications, Inc., 322 U. S. 111, 131 (1944), the question presented “is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially.” To sustain the Commission’s application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings. The “reviewing court’s function is limited.” All that is needed to support the Commission’s interpretation is that it has “warrant in the record” and a “reasonable basis in law.” Labor Board v. Hearst Publications, Inc., supra; Rochester Telephone Corp. v. United States, 307 U. S. 125 (1939).
Applying these tests, we are unable to say that the Commission’s construction was irrational or without support in the record. The Commission apparently views a dispute as “active” during the continuance of a work stoppage induced by a labor dispute. That agency might reasonably conclude that the unemployment resulting from such work stoppage is not of the “involuntary” nature which the statute was designed to alleviate, as indicated by the statement of public policy incorporated in the Act by the Territorial Legislature. We see nothing in such a view to require our substituting a different construction from that made by the Commission entrusted with the responsibility of administering the statute.
Nor can we accept the argument of the majority of the Court of Appeals that since negotiations between the companies and the workers were carried on in San Francisco and Seattle, the dispute could not be said to be “at” the Alaskan establishments as required by the statute. So far as we are able to determine, this issue was injected for the first time by the opinion of the majority of the Court of Appeals. The contention does not seem to have been raised or pressed by respondents up to that point. The responsibility of applying the statutory provisions to the facts of the particular case was given in the first instance to the Commission. A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action. Nor do we find the argument advanced below convincing on its merits. It is clear that the subject matter of the dispute related to the operation of the Alaskan establishments. As a result of the dispute, the normal activities involved in catching and canning salmon were not carried on throughout the 1940 season at any of those establishments. We do not consider significant the fact that the companies and the union did not negotiate at the canneries or on the ships in Alaskan waters. A legislature familiar with the nature of seasonal operations carried on in the Territory could hardly have been unaware of the fact that companies and workers customarily carried on negotiations far distant from the Alaskan establishments. It seems unlikely that it was intended that this ordinary and usual procedure should defeat the disqualification for benefits incorporated in the Act. Furthermore, it should be observed that the respondent union voluntarily entered into the negotiations conducted at San Francisco and Seattle and at no time challenged the propriety of this practice. Thus if we assume with respondents that this issue is properly presented for consideration, we conclude that under the circumstances of this case the dispute was “at the factory, establishment, or other premises” in the sense intended by the Territorial Legislature.
For the reasons stated, the judgment of the Circuit Court of Appeals is affirmed insofar as it holds that the statutory eight-week period of disqualification is inapplicable to the individual respondents employed by the Alaska Salmon Company in 1939. In all other particulars, the judgment of the Circuit Court of Appeals is reversed and the case remanded to the District Court with instructions to remand for further proceedings pursuant to this opinion.
Extraordinary Session Laws of Alaska, 1937, Chapter 4 as amended by Chapters 1 and 51, Session Laws of Alaska, 1939.
The Alaska statute is part of the legislative scheme for unemployment compensation induced by the provisions of the Social Security Act of 1935. 49 Stat. 620, 626-627, 640. It is said that forty-three states and territories have provisions similar to those in the Alaska law disqualifying from unemployment benefits persons unemployed due to a labor dispute.
As provided by Benefit Regulation No. 10 of the Alaska Unemployment Compensation Commission, the season at Karluk extends from April 5 to September 5, at Chignik from April 1 to September 10, and at Bristol Bay from May 5 to August 25.
Section 6 (c) and §6 (d), Chapter 1, Session Laws of Alaska, 1939.
The Referee found that there had been unemployment due to a labor dispute in active progress at Karluk from April 5, when the season opened, to April 10, the deadline date, and at Chignik from April 1 to April 12. Since the deadline date with respect to Bristol Bay was set two days before the season opened there, the Referee found that there was no dispute in active progress at those plants.
This procedure was in pursuance of § 6 (e) of the Act as amended by Chapter 1, Session Laws of Alaska, 1939.
Section 6 (i) of the Act provides that within thirty days after the decision of the Commission has become final, any party aggrieved may secure judicial review in the United States District Court. The section states, “In any judicial proceeding under this Section, the findings of the Commission as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said Court shall be confined to questions of law.”
A number of state courts in construing similar legislation have found “labor disputes” to have existed in situations where no contractual employment relation presently existed. Each of these cases involved a work stoppage in the interval between the expiration of an old labor contract and the consummation of a new agreement. Miners in General Group v. Hix, 123 W. Va. 637, 17 S. E. 2d 810 (1941); Ex parte Pesnell, 240 Ala. 457, 199 So. 726 (1940); Barnes v. Hall, 285 Ky. 160, 146 S. W. 2d 929 (1940); Block Coal & Coke Co. v. United Mine Workers of America, 177 Tenn. 247, 148 S. W. 2d 364, 149 S. W. 2d 469 (1941); Sandoval v. Industrial Comm’n, 110 Colo. 108, 130 P. 2d 930 (1942).
49 Stat. 640, 26 U. S. C. § 1603 (5) (A).
47 Stat. 70, 29 U. S. C. § 101. The Norris-LaGuardia Act contains the following definition: “The term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.” 47 Stat. 73, 29 U. S. C. § 113 (c). A number of state courts have found this and the similar definition in the National Labor Relations 'Act persuasive in their construction of the term appearing in unemployment compensation legislation similar to the Alaska Act. Miners in General Group v. Hix, 123 W. Va. 637, 17 S. E. 2d 810 (1941); Barnes v. Hall, 285 Ky. 160, 146 S. W. 2d 929 (1940); Ex parte Pesnell, 240 Ala. 457, 199 So. 726 (1940); Sandoval v. Industrial Comm’n, 110 Colo. 108, 130 P. 2d 930 (1942). The Alabama legislature incorporated the definition appearing in the Norris-LaGuardia Act into the Alabama unemployment compensation act. Ala. Code, Tit. 26 §214 (A).
49 Stat. 449,29 U. S. C. § 151.
The Examiner, the Referee, the Commission, the District Court, and presumably the Circuit Court of Appeals all found a “labor dispute” to have existed, at least before the arrival of the deadline dates.
The “Declaration of Territorial Public Policy” states that “Involuntary unemployment is ... a subject of general interest and concern which requires appropriate action by the legislature.” It is further stated that the public welfare demands the compulsory setting aside of unemployment reserves “for the benefit of persons unemployed through no fault of their own." Chapter 4, Extraordinary Session Laws of Alaska, 1937. (Italics supplied.)
Several state courts have concluded that the disqualification relating to unemployment due to a labor dispute is a reflection of the broad policy of the legislation to compensate only persons involuntarily unemployed. Barnes v. Hall, 285 Ky. 160, 146 S. W. 2d 929 (1940); Deshler Broom Factory v. Kinney, 140 Neb. 889, 2 N. W. 2d 332 (1942); Sandoval v. Industrial Commission, 110 Colo. 108, 130 P. 2d 930 (1942).
Labor Board v. Hearst Publications, supra; Rochester Telephone Corp. v. United States, supra. Cf. Social Security Board v. Nierotko, 327 U.S. 358 (1946).
Section 6 (h) of the Act states-that judicial review of the Commission’s decision “shall be permitted only after any party claiming to be aggrieved thereby has exhausted his administrative remedies as provided by this Act.” Cf. Myers v. Bethlehem, Shipbuilding Corp., 303 U. S. 41, 50-51 (1938); Regal Knitwear Co. v. Labor Board, 324 U. S. 9, 13 (1945); Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 196-197 (1941). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
DOWELL et al. v. BOARD OF EDUCATION OF OKLAHOMA CITY PUBLIC SCHOOLS et al.
No. 603.
Decided December 15, 1969
Jack Greenberg and James M. Nabrit III for Dowel] et al., and Calvin W. Hendrickson for Sanger et al., petitioners.
J. Harry Johnson and Leslie L. Conner for the Board of Education of Oklahoma City Public Schools et al., and V. P. Crowe, C. Harold Thweatt, George F. Short, and Norman E. Reynolds for McWilliams et al., respondents.
Per Curiam.
In this school desegregation case, the District Court for the Western District of Oklahoma, by order entered August 13, 1969, approved respondent Oklahoma City School Board’s proposal for furthering desegregation of some Oklahoma City schools by revising school attend-anee boundaries effective September 2, 1969, the start of the 1969-1970 school year. The order also decreed that the School Board prepare and submit on or before November 1, 1969, a comprehensive plan for the complete desegregation of the entire school system. In-tervenors of the “McWilliams Class” appealed to the Court of Appeals for the Tenth Circuit from the provision of the order which approved implementation of the School Board’s proposed boundary changes by September 2, 1969, and sought a stay of that provision pending decision of the appeal. The Court of Appeals, on August 27, 1969, instead of limiting relief to the requested stay, summarily vacated the District Court’s approval of the School Board’s proposal. The Court of Appeals held that consideration of the proposal was inappropriate “at this stage of the proceedings” and should await the District Court’s “consideration and adoption of a full and comprehensive plan for the complete desegregation and integration of the Oklahoma City School system as contemplated in the court’s order of August 13, 1969.”
The petition for certiorari is granted. The Court of Appeals erred in holding that the District Court’s approval of the School Board’s plan must be vacated because consideration of the proposal was inappropriate except in the context of a comprehensive city-wide plan. The burden on a school board is to desegregate an unconstitutional dual system at once. Green v. County School Board, 391 U. S. 430, 439 (1968); Alexander v. Holmes County Board of Education, ante, p. 19. Since the District Court ordered the desegregation measures into effect, and since the petitioners did not object to their scope, the Court of Appeals should have permitted their implementation pending argument and decision of the appeal. Alexander v. Holmes County Board of Education, supra. The order of the Court of Appeals is therefore vacated and the case is remanded to that court promptly to hear and determine, consistently with Alexander, all pending appeals from the District Court order.
It is so ordered.
The petition was filed pursuant to an expedited schedule specified by Mr. Justice Brennan when on petitioners’ application he, as Acting Circuit Justice, vacated the order of the Court of Appeals and reinstated that of the District Court, pending action by this Court on the petition.
We are informed by the parties that the School Board on September 12, 1969, also filed an appeal from the District Court’s approval of the Board’s proposal, and another appeal from the District Court’s denial on September 11, 1969, of the Board’s application for amendment of the August 13 order to extend from November 1, 1969, to March 31, 1970, the time for filing of a comprehensive desegregation plan for secondary schools. The District Court granted the Board’s application as to a plan for desegregation of the elementary schools. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
FAHEY, FEDERAL HOME LOAN BANK COMMISSIONER, et al. v. MALLONEE et al.
No. 687.
Argued April 30, 1947.
Decided June 23, 1947.
Oscar H. Davis argued the cause for appellants. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Robert L. Stern, Paul A. Sweeney, Kenneth G. Heisler, Ray E. Dougherty and Mose Silverman.
Wyckoff Westover argued the cause for Mallonee et al., appellees. With him on the brief was Daniel W. O’Donohue, Jr.
Charles K. Chapman argued the cause and filed a brief for the Long Beach Federal Savings & Loan Association, appellee.
By special leave of Court, Everett W. Mattoon, Deputy Attorney General, argued the cause for the State of California, as amicus curiae, urging affirmance. With him on the brief was Fred N. Howser, Attorney General.
Louis W. Myers, Pierce Works and Richard Fitzpatrick submitted on brief for the Federal Home Loan Bank of Los Angeles, appellee.
Robert H. Wallis and Raymond Tremaine submitted on brief for Wallis, appellee.
Harry 0. Wallace submitted on brief for the Title Service Company, appellee.
Mr. Justice Jackson
delivered the opinion of the Court.
A specially constituted three-judge District Court has summarily, without trial, entered final judgment ousting a Conservator who, on orders of the Federal Home Loan Bank Commissioner, had taken possession of the Long Beach Federal Savings and Loan Association. It granted this and other relief on the principal ground that § 5 (d) of the Home Owners’ Loan Act of 1933, as amended, violates Article I, §§ 1 and 8 of the Constitution.
The Federal Home Loan Bank Administration on May 20, 1946, without notice or hearing, appointed Ammann conservator for the Association and he at once entered into possession. The grounds assigned were that the Association was conducting its affairs in an unlawful, unauthorized and unsafe manner, that its management was unfit and unsafe, that it was pursuing a course injurious to, and jeopardizing the interests of, its members, creditors and the public. Plaintiffs at once commenced this class action in the right of the Association against the Conservator and Fahey, Chairman of the Federal Home Loan Bank Board, the Association as a nominal defendant, and several others not important to the issue here. The complaint alleged that the Conservator and the Chairman had seized the property without due process of law, motivated by malice and ill will, and that the seizure for various reasons was in violation of the Constitution. It asked return of the Association to its former management, permanent injunction against further interference, and other relief. Other parties in interest intervened. Temporary restraining orders issued and a three-judge court was duly convened.
Personal service was secured upon Ammann, the Conservator, but Fahey, the Federal Home Loan Bank Commissioner, officially an inhabitant of the District of Columbia, could not be served in California. A motion for substituted service, therefore, was granted and process was served upon him in the District of Columbia. It was believed that this was authorized by Judicial Code, § 57, 28 U. S. C. § 118. Ammann moved to dismiss the complaint on the ground that it failed to state a cause of action. Fahey appeared specially to move dismissal or quashing return of service on him upon the ground that he could not, in his official capacity, be sued in California and had not been served properly with process. Neither had answered the complaint, nor had their time to do so expired, when final judgment was granted against them.
The three-judge court set a variety of pending motions for argument and, after argument mainly on the constitutionality of § 5 (d), with only pleadings and motion papers before it, held the section unconstitutional, ordered removal of the Conservator, permanently enjoined the authorities from holding an administrative hearing on the matter, permanently enjoined an apprehended merger, restored the institution to its former management, ordered the Conservator to account and enjoined these authorities “from ever asserting any claims, right, title or interest" in or to the Association’s property. 68 F. Supp. 418. The case is here on direct appeal. 50 Stat. 752-53, 28 U. S. C. §§ 349a, 380a.
It is manifest that whatever merit there may be in various subsidiary and collateral questions, this drastic decree can stand only if the section, as applied here, is unconstitutional.
Its defect is said to consist of delegation of legislative functions to the supervising authority without adequate standards of action or guides to policy. Section 5 (d) of the Act gives to the Board “full power to provide in the rules and regulations herein authorized for the reorganization, consolidation, merger, or liquidation of such associations, including the power to appoint a conservator or a receiver to take charge of the affairs of any such association, and to require an equitable readjustment of the capital structure of the same; and to release any such association from such control and permit its further operation.” 48 Stat. 133, 12 U. S. C. § 1464 (d). This, the District Court held, was unconstitutional delegation of the congressional function. It relied on Panama Refining Co. v. Ryan, 293 U. S. 388, and Schechter Corp. v. United States, 295 U. S. 495.
Both cited cases dealt with delegation of a power to make federal crimes of acts that never had been such before and to devise novel rules of law in a field in which there had been no settled law or custom. The latter case also involved delegation to private groups as well as to public authorities. Chief Justice Hughes emphasized these features, saying that the Act under examination was not merely to deal with practices “which offend against existing law, and could be the subject of judicial condemnation without further legislation, or to create administrative machinery for the application of established principles of law to particular instances of violation. Rather, the purpose is clearly disclosed to authorize new and controlling prohibitions through codes of laws which would embrace what the formulators would propose, and what the President would approve, or prescribe, as wise and beneficent measures for the government of trades and industries in order to bring about their rehabilitation, correction and development, according to the general declaration of policy in section one.” Schechter Corp. v. United States, 295 U. S. 495, 535.
The savings and loan associations with which § 5 (d) deals, on the other hand, are created, insured and aided by the Federal Government. It may be that explicit standards in the Home Owners’ Loan Act would have been a desirable assurance of responsible administration. But the provisions of the statute under attack are not penal provisions as in the case of Lanzetta v. New Jersey, 306 U. S. 451, or United States v. Cohen Grocery Co., 255 U. S. 81. The provisions are regulatory. They do not deal with unprecedented economic problems of varied industries. They deal with a single type of enterprise and with the problems of insecurity and mismanagement which are as old as banking enterprise. The remedies which are authorized are not new ones unknown to existing law to be invented by the Board in exercise of a lawless range of power. Banking is one of the longest regulated and most closely supervised of public callings. It is one in which accumulated experience of supervisors, acting for many states under various statutes, has established well-defined practices for the appointment of conservators, receivers and liquidators. Corporate management is a field, too, in which courts have experience and many precedents have crystallized into well-known and generally acceptable standards. A discretion to make regulations to guide supervisory action in such matters may be constitutionally permissible while it might not be allowable to authorize creation of new crimes in uncharted fields.
The Board adopted rules and regulations governing appointment of conservators. They provided the grounds upon which a conservator might be named, and they are the usual and conventional grounds found in most state and federal banking statutes. They are sufficiently explicit, against the background of custom, to be adequate for proper administration and for judicial review if there should be a proper occasion for it.
It is complained that these regulations provide for hearing after the conservator takes possession instead of before. This is a drastic procedure. But the delicate nature of the institution and the impossibility of preserving credit during an investigation has made it an almost invariable custom to apply supervisory authority in this summary manner. It is a heavy responsibility to be exercised with disinterestedness and restraint, but in the light of the history and customs of banking we cannot say it is unconstitutional.
In this case an administrative hearing was demanded and specifications were asked as to the charges against the management of the Association. The hearing was granted and a statement of complaints against the management was furnished.
The causes for the appointment of a conservator as therein set forth by the Board included withdrawals by the president without proper voucher therefor; payment of salaries and fees not commensurate with services rendered; a director’s unlawful removal of a cashier’s check in the amount of $50,000 during an examination by Federal Home Loan Bank examiners; leasing properties of the Association for a twenty-year period on terms which would not provide adequate consideration to the Association; use of the Association for personal gain of one or more officers and directors; failure to maintain proper accounts and to make proper reports; and falsification of records. It also charged certain manipulations of the affairs of another institution by the president of this institution.
The plaintiffs nevertheless demanded and obtained an injunction to prevent the administrative hearing and they have therefore cut off the making of a record as to whether these charges are well-founded. Nor did the trial court take evidence on the subject. We must assume that-the supervising authorities would be able to sustain the statements of fact and to justify the conclusions in their changes for the purpose of determining the case without trial. We are therefore unable to agree with the court below that the section is invalid and hence that regardless of the charges the management was free to go on undisciplined and unchecked.
But even if the section were defective, which we think it is not in a constitutional sense, another obstacle stands in the way of ousting this conservator.
The Long Beach Federal Savings and Loan Association was organized in 1934 under § 5 of the Home Owners’ Loan Act of 1933, subsection (d) of which is now sought to be declared unconstitutional. The present management obtained a charter which provided that the Association “shall at all times be subject to the provisions of the Home Owners’ Loan Act of 1933, providing for Federal savings and loan associations, and to any amendments thereof, and to any valid rules and regulations made thereunder as the same may be amended from time to time,” and that it might be “liquidated, merged, consolidated, or reorganized, as is provided in the rules and regulations for Federal savings and loan associations . . . .” In 1937, upon the Association’s request, an amended charter was issued which likewise provided that the Association was to exercise its powers subject to the Home Owners’ Loan Act and regulations issued thereunder.
This is a stockholder’s derivative action in which plaintiffs sue only in the right of the Association. It is an elementary rule of constitutional law that one may not “retain the benefits of the Act while attacking the constitutionality of one of its important conditions.” United States v. San Francisco, 310 U. S. 16, 29. As formulated by Mr. Justice Brandeis, concurring in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 348, “The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.”
In the name and right of the Association it is now being asked that the Act under which it has its existence be struck down in important particulars, hardly severable from those provisions which grant its right to exist. Plaintiffs challenge the constitutional validity of the only provision under which proceedings may be taken to liquidate or conserve the Association for the protection of its members and the public. If it can hold the charter that it obtained under this Act and strike down the provision for terminating its powers or conserving its assets, it may perpetually go on, notwithstanding any abuses which its management may perpetrate. It would be intolerable that the Congress should endow an association with the right to conduct a public banking business on certain limitations and that the Court at the behest of those who took advantage from the privilege should remove the limitations intended for public protection. It would be difficult to imagine a more appropriate situation in which to apply the doctrine that one who utilizes an Act to gain advantages of corporate existence is estopped from questioning the validity of its vital conditions. We hold that plaintiffs are estopped, as the Association would be, from challenging the provisions of the Act which authorize the Board to prescribe the terms and conditions upon which a conservator may be named.
There are other important and difficult questions raised in the case which it becomes unnecessary to decide.
Objection is made to the administrative hearing upon the ground that it is before the same authority which has preferred the charges and that it cannot be expected, therefore, to be fair and impartial and that the Act does not provide for judicial review of the Board’s determination on the hearing. We cannot agree that courts should assume in advance that an administrative hearing may not be fairly conducted. We do not now decide whether the determination of the Board in such proceeding is subject to any manner of judicial review. The absence from the statute of a provision for court review has sometimes been held not to foreclose review. Stark v. Wickard, 321 U. S. 288; Federal Reserve Board v. Agnew, 329 U. S. 441; Administrative Procedure Act, 5 U. S. C. A. § 1009. Nor do we mean to be understood that if supervising authorities maliciously, wantonly and without cause destroy the credit of a financial institution, there are not remedies.
One of the allegations of the complaint is that it was intended that this institution would be merged with other institutions to the injury of its shareholders. The allegation seems to be based on the fact that a different institution with which the management of the Long Beach institution was connected was merged by the authorities in a way that was highly objectionable to some of the shareholders and aroused concern of the public authorities. We find no explicit threat to merge the Long Beach institution and there is no such finding by the court below. The Government has assured us at the bar .that there is no plan for such a merger in contemplation. Nevertheless, such a merger was enjoined. In view of the absence of a finding of the threat or of evidence to sustain one, we accept the Government’s assurance that merger will not follow and, hence, we do not consider it necessary to discuss the legality of hypothetical mergers.
Since the judgment that has been rendered against the Conservator, who was duly served with process, must be reversed, we find it unnecessary to decide whether Fahey was an indispensable party or was properly brought into the case by substituted service.
It is obvious that there is more to this litigation than meets the eye on the pleadings. The plaintiffs’ charges that ill will and malice actuated the supervising authorities, as well as the charges of the defendants that the institution has been mismanaged and that the management is unfit, are alike undetermined by the courts below, and we make no determination or intimation concerning the merits of these issues or as to other remedies or relief than that in the judgment before us.
Our decision is that it was error in the court below to hold the section unconstitutional, to oust the Conservator or to enjoin any of his proceedings or to enjoin the administrative Hearing, and this without prejudice to any other administrative or judicial proceedings which may be warranted by law. The judgment is
Reversed.
Mr. Justice Douglas concurs in the result.
Mr. Justice Rutledge concurs in the result and in the Court’s opinion insofar as it rests upon the ground that the controlling statute, § 5 (d) of the Home Owners’ Loan Act of 1933, is not unconstitutional.
The Rules and Regulations for the Federal Savings and Loan System provide in part as follows:
Part 206. Appointment of Conservator or Receiver.
§206.1. Receiver or conservator; appointment, (a) Whenever, in the opinion of the Federal Home Loan Bank Administration, any Federal savings and loan association:
(1) Is conducting its business in an unlawful, unauthorized, or unsafe manner;
(2) Is in an unsound or unsafe condition, or has a management which is unsafe or unfit to manage a Federal savings and loan association;
(3) Cannot with safety continue in business ;
(4) Is impaired in that its assets do not have an aggregate value (in the judgment of the Federal Home Loan Bank Administration) at least equal to the aggregate amount of its liabilities to its creditors, members, and all other persons;
(5) Is in imminent danger of becoming impaired;
(6) Is pursuing a course that is jeopardizing or injurious to the interests of its members, creditors, or the public;
(7) Has suspended payment of its obligations;
(8) Has refused to submit its books, papers, records, or affairs for inspection to any examiner or lawful agent appointed by the Federal Home Loan Bank Administration;
(9) Has refused by the refusal of any of its officers, directors, or employees to be examined upon oath by the Federal Home Loan Bank Administration or its representative concerning its affairs; or
(10) Has refused or failed to observe a lawful order of the Federal Home Loan Bank Administration,
the Federal Home Loan Bank Administration may appoint the Federal Savings and Loan Insurance Corporation receiver for such Federal association, which appointment shall be for the purpose of liquidation, or the Federal Home Loan Bank Administration may appoint a conservator for such Federal association to conserve the assets of the association pending further disposition of its affairs. The appointment shall be by order, which order shall state on which of the above causes the appointment is based. Any conservator so appointed shall furnish bond for himself and his employees, in form and amount and with surety acceptable to the Governor of the Federal Home Loan Bank System, or any Deputy or Assistant Governor, but no bond shall be required of the Federal Savings and Loan Insurance Corporation as receiver. The conservator or receiver shall forthwith upon appointment take possession of the association and, at the time such conservator or receiver shall demand possession, such conservator or receiver shall notify the officer or employee of the association, if any, who shall be in the home office of the association and appear to be in charge of such office, of the action of the Federal Home Loan Bank Administration. The Secretary of the Federal Home Loan Bank Administration shall, forthwith upon adoption thereof, mail a certified copy of the order of appointment to the address of the association as it shall appear on the records of the Federal Home Loan Bank Administration and to each director of the association, known by the Secretary to be such, at the last address of each as the same shall appear on the records of the Federal Home Loan Bank Administration. If such certified copy of the order appointing the conservator or receiver is received at the offices of the association after the taking of possession by the conservator or receiver, such conservator or receiver shall hand the same to any officer or director of the association who may make demand therefor.
§ 206.2. Hearing on appointment. Within fourteen days (Sundays and holidays included) after the appointment of a conservator or receiver for a Federal association not at the time of such appointment in the hands of a conservator, such Federal association, which has not, by its board of directors, consented to or requested the appointment of a conservator or receiver, may file an answer and serve a written demand for a hearing, authorized by its board of directors, which demand shall state the address to which notice of hearing shall be sent. Upon receipt of such answer and written demand for a hearing the Federal Home Loan Bank Administration shall issue and serve a notice of hearing upon the institution by mailing a copy of the order of hearing to the address stated in the demand therefor and shall conduct a hearing, at which time and place the Federal association may appear and show cause why the conservator or receiver should not have been appointed and why an order should be entered by the Federal Home Loan Bank Administration discharging the conservator or receiver. Such hearing shall be held either in the district of the Federal Home Loan Bank of which such Federal association is a member or in Washington, D. C., as the Federal Home Loan Bank Administration shall determine, unless the association otherwise consents in writing. Such hearing may be held before the Federal Home Loan Bank Commissioner or before a trial examiner or hearing officer, as the Federal Home Loan Bank Administration shall determine. Such Federal association, which has not, by its board of directors, consented to or requested the appointment of a conservator or receiver, may, within seven days (Sundays and holidays included) of such appointment, serve a written or telegraphic demand, authorized by its board of directors, upon the Federal Home Loan Bank Administration for a more definite statement of the cause or causes for the action. The time of service upon the Federal Home Loan Bank Administration for the purposes of this section shall be the time of receipt by the Secretary of the Federal Home Loan Bank Administration.
§ 206.4. Discharge of conservator or receiver. An order of the Federal Home Loan Bank Administration discharging a conservator and returning the association to its management shall restore to such Federal association all its rights, powers and privileges and shall restore the rights, powers and privileges of its officers and directors, all as of the time specified in such order, except as such order may otherwise provide. An order of the Federal Home Loan Bank Administration discharging a receiver and returning the association to its management shall by operation of law and without any conveyance or other instrument, act or deed, restore to such Federal association all its rights, powers and privileges, revest in such Federal association the title to all its property, and restore the rights, powers and privileges of its officers and directors, all as of the time specified in such order, except as such order may otherwise provide. 24 C. F. R. Cum. Supp. § 206.1 et seq., as amended, 24 C. F. R. 1943 Supp. § 206.1.
Bank Conservation Act of March 9, 1933, § 203, 48 Stat. 2-3, 12 U. S. C. §203; Banking Act of 1933, §31, 48 Stat. 194, 12 U. S. C. §71a; National Housing Act, §406, 48 Stat. 1259-60, 12 U. S. C. § 1729. E. g., New York Banking Law, § 606, 4 McKinney’s Consolidated Laws of New York, pp. 708-709, (pocket part, 1946) 125-26; Page’s Ohio General Code Ann., § 687; 1 Deering’s California General Laws, Act 986, § 13.11; Massachusetts Laws Ann. c. 167, § 22; c. 170B, § 4; Jones Illinois Stat. Ann., § 14.40.
See note 2. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"National Credit Union Administration",
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"National Mediation Board",
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] | [
45
] |
SELECTIVE SERVICE SYSTEM et al. v. MINNESOTA PUBLIC INTEREST RESEARCH GROUP et al.
No. 83-276.
Argued April 23, 1984
Decided July 5, 1984
Burger, C. J., delivered the opinion of the Court, in which White, Rehnquist, Stevens, and O’Connor, JJ., joined, and in Parts I, II-B, III, and IV of which Powell, J., joined. Powell, J., filed an opinion concurring in part and concurring in the judgment, post, p. 859. Brennan, J., post, p. 862, and Marshall, J., post, p. 862, filed dissenting opinions. Blackmun, J., took no part in the decision of the case.
Solicitor General Lee argued the cause for appellants. With him on the briefs were Acting Assistant Attorney General Willard, Deputy Solicitor General Bator, John H. Garvey, and Neil H. Koslowe.
William J. Keppel argued the cause for appellees. With him on the brief was E. Gail Suchman
Peter B. Ellis filed a brief for the Trustees of Boston University as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for Swarthmore College et al. by Thomas P. Preston and Robert D. Williams; and for the University of Minnesota et al. by Stephen S. Dunham, William P. Donohue, Roderick K. Daane, Patricia Eames, and James D. Miller.
Chief Justice Burger
delivered the opinion of the Court.
We noted probable jurisdiction to decide (a) whether § 12(f) of the Military Selective Service Act, 96 Stat. 748, 50 U. S. C. App. § 462(f), which denies federal financial assistance under Title IV of the Higher Education Act of 1965 to male students who fail to register for the draft under the Act, is a bill of attainder; and (b) whether § 12(f) compels those students who elect to request federal aid to incriminate themselves in violation of the Fifth Amendment.
I
Section 3 of the Military Selective Service Act, 62 Stat. 605, as amended, 50 U. S. C. App. §453, empowers the President to require every male citizen and male resident alien between the ages of 18 and 26 to register for the draft. Sections 12(b) and (c) of that Act impose criminal penalties for failure to register. On July 2, 1980, President Carter issued a Proclamation requiring young men to register within 30 days of their 18th birthday. Presidential Proclamation No. 4771, 3 CFR 82 (1981).
Appellee students (hereafter appellees) are anonymous individuals who were required to register before September 1,1982. On September 8, Congress enacted the Department of Defense Authorization Act of 1983, Pub. L. 97-252, 96 Stat. 718. Section 1113(a) of that Act added § 12(f) to the Military Selective Service Act. Section 12(f)(1) provides that any person who is required to register and fails to do so “in accordance with any proclamation” issued under the Military Selective Service Act “shall be ineligible for any form of assistance or benefit provided under title IV of the Higher Education Act of 1965.” Section 12(f)(2) requires applicants for Title IV assistance to file with their institutions of higher education a statement attesting to their compliance with the draft registration law and regulations issued under it. Sections 12(f)(3) and (4) require the Secretary of Education, in agreement with the Director of Selective Service, to prescribe methods for verifying such statements of compliance and to issue implementing regulations.
Regulations issued in final form on April 11, 1983, see 48 Fed. Reg. 15578, provide that no applicant may receive Title IV aid unless he files a statement of compliance certifying that he is registered with the Selective Service or that, for a specified reason, he is not required to register. 34 CFR § 668.24(a) (1983). The regulations allow a student who has not previously registered, although required to do so, to establish eligibility for Title IV aid by registering, filing a statement of registration compliance, and, if required, verifying that he is registered. § 668.27(b)(1). The statement of compliance does not require the applicant to state the date that he registered.
In November 1982 the Minnesota Public Interest Research Group filed a complaint in the United States District Court for the District of Minnesota seeking to enjoin the operation of § 12(f). The District Court dismissed the Minnesota Group for lack of standing but allowed three anonymous students to intervene as plaintiffs. 557 F. Supp. 923 (1983); 557 F. Supp. 925 (1983). The intervenors alleged that they reside in Minnesota, that they need financial aid to pursue their educations, that they intend to apply for Title IV assistance, and that they are legally required to register with the Selective Service but have failed to do so. This suit was informally consolidated with a separate action brought by three other anonymous students making essentially the same allegations as the intervenors.
In March 1983 the District Court granted a preliminary injunction restraining the Selective Service System from enforcing § 12(f). After finding that appellees had demonstrated a threat of irreparable injury, the court held that appellees were likely to succeed on the merits. First, the District Court thought it likely that § 12(f) was a bill of attainder. The court interpreted the statutory bar to student aid as applicable to students who registered late. Thus interpreted, the statute “clearly singles out an ascertainable group based on past conduct” and “legislatively determines the guilt of this ascertainable group.” Doe v. Selective Service System, 557 F. Supp. 937, 942, 943 (1983). The court viewed the denial of aid as punishment within the meaning of the Bill of Attainder Clause because it “deprives students of the practical means to achieve the education necessary to pursue many vocations in our society.” Id., at 944. Second, the District Court found it likely that § 12(f) violated appel-lees’ Fifth Amendment privilege against compelled self-incrimination. In the District Court’s view, the statement of compliance required by § 12(f)(2) compels students who have not registered for the draft and need financial aid to confess to the fact of nonregistration, which is a crime. 50 U. S. C. App. § 462(a).
On June 16, 1983, the District Court entered a permanent, nationwide injunction against the enforcement of § 12(f). The court held that the regulations making late registrants eligible for aid were inconsistent with the statute and concluded that the statute was an unconstitutional attainder. It also held the statute to violate appellees’ constitutional privilege against compelled self-incrimination.
On June 29, we stayed the District Court’s June 16 order pending the timely docketing and final disposition of this appeal. Selective Service System v. Doe, 463 U. S. 1215. We noted probable jurisdiction on December 5, 1983, 464 U. S. 1006, and we reverse.
II
The District Court held that § 12(f) falls within the category of congressional actions that Art. I, § 9, cl. 3, of the Constitution bars by providing that “[n]o Bill of Attainder . . . shall be passed.” A bill of attainder was most recently described by this Court as “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Administrator of General Services, 433 U. S. 425, 468 (1977); see United States v. O’Brien, 391 U. S. 367, 383, n. 30 (1968); United States v. Lovett, 328 U. S. 303, 315 (1946). Appellants argue that § 12(f) does not satisfy any of these three requirements, i. e., specification of the affected persons, punishment, and lack of a judicial trial.
A
In forbidding bills of attainder, the draftsmen of the Constitution sought to prohibit the ancient practice of the Parliament in England of punishing without trial “specifically designated persons or groups.” United States v. Brown, 381 U. S. 437, 447 (1965). Historically, bills of attainder generally named the persons to be punished. However, “[t]he singling out of an individual for legislatively prescribed punishment constitutes an attainder whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons.” Communist Party of United States v. Subversive Activities Control Board, 367 U. S. 1, 86 (1961). When past activity serves as “a point of reference for the ascertainment of particular persons ineluctably designated by the legislature” for punishment, id., at 87, the Act may be an attainder. See Cummings v. Missouri, 4 Wall. 277, 324 (1867).
In Cummings the Court struck down a provision of the Missouri post-Civil War Reconstruction Constitution that barred persons from various professions unless they stated under oath that they had not given aid or comfort to persons engaged in armed hostility to the United States and had never “‘been a member of, or connected with, any order, society, or organization, inimical to the government of the United States.’” Id., at 279. The Court recognized that the oath was required, not “as a means of ascertaining whether parties were qualified” for their professions, id., at 320, but rather to effect a punishment for having associated with the Confederacy. Although the State Constitution did not mention the persons or groups required to take the oath by name, the Court concluded that in creating a qualification having no possible relation to their fitness for their chosen professions, the Constitution was intended “to reach the person, not the calling.” Ibid.
On the same day that it decided Cummings, the Court struck down a similar oath that was required for admission to practice law in the federal courts. Ex parte Garland, 4 Wall. 333 (1867). Like the oath considered in Cummings, the oath “operate[d] as a legislative decree of perpetual exclusion” from the practice of law, id., at 377, since past affiliation with the Confederacy prevented attorneys from taking the oath without perjuring themselves. See Cummings v. Missouri, supra, at 327. In both Cummings and Garland, the persons in the group disqualified were defined entirely by irreversible acts committed by them.
The District Court in this case viewed § 12(f) as comparable to the provisions of the Reconstruction laws declared unconstitutional in Cummings and Garland, because it thought the statute singled out nonregistrants and made them ineligible for aid based on their past conduct, i. e., failure to register. To understand the District Court’s analysis, it is necessary to turn to its construction of the statute. The court noted that § 12(f) disqualifies applicants for financial assistance unless they have registered “in accordance with any proclamation issued under [§3 of the Military Selective Service Act],” and that Proclamation No. 4771 requires those born after January 1, 1963, to register within 30 days of their 18th birthday. See 3 CFR 82 (1981). In the court’s view, the language of § 12(f), coupled with the Proclamation’s 30-day registration requirement, precluded late registrants from qualifying for Title IV aid. Having construed § 12(f) as precluding late registration, the District Court read the statute to be retrospective, in that it denies financial assistance to an identifiable group — nonregistrants—based on their past conduct. The District Court acknowledged that implementing regulations would allow students who had not previously registered to become eligible for Title IV benefits by registering, see 34 CFR § 668.27(b)(1) (1983), but the court declared those regulations to be void because they conflicted with what the District Court viewed as § 12(f )’s requirement of registration within the time prescribed by Proclamation No. 4771.
We reject the District Court’s view that § 12(f) requires registration within the time fixed by Proclamation No. 4771. That view is plainly inconsistent with the structure of § 12(f) and with the legislative history. Subsection (f)(4) of the statute requires the Secretary of Education to issue regulations providing that “any person” to whom the Secretary proposes to deny Title IV assistance shall be given notice of the proposed denial and “not less than thirty days” after such notice to “establis[h] that he has complied with the registration requirement.” 50 U. S. C. App. § 462(f)(4). The statute clearly gives nonregistrants 30 days after receiving notice that they are ineligible for Title IV aid to register for the draft and qualify for aid. See 34 CFR § 668.27(b)(1) (1983). To require registration within the time fixed by the Presidential Proclamation would undermine this provision allowing “any person” 30 days after notification to establish compliance with the registration requirement. This was clearly a grace period.
The District Court also ignored the relevant legislative history. Congress’ purpose in enacting § 12(f) was to encourage registration by those who must register, but have not yet done so. Proponents of the legislation emphasized that those failing to register timely can qualify for aid by registering late. The District Court failed to take account of this legislative purpose. See Heckler v. Edwards, 465 U. S. 870 (1984). Nor did its construction of § 12(f) give adequate deference to the views of the Secretary of Education, who had helped to draft the statute. Miller v. Youakim, 440 U. S. 125, 144 (1979); see 128 Cong. Rec. 18363 (1982) (remarks of Rep. Solomon).
The judicial function is “not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations,” CSC v. Letter Carriers, 413 U. S. 548, 571 (1973). Section 12(f) does not make late registrants ineligible for Title IV aid.
Because it allows late registration, § 12(f) is clearly distinguishable from the provisions struck down in Cummings and Garland. Cummings and Garland dealt with absolute barriers to entry into certain professions for those who could not file the required loyalty oaths; no one who had served the Confederacy could possible comply, for his status was irreversible. By contrast, § 12(f)’s requirements, far from irreversible, can be met readily by either timely or late filing. “Far from attaching to . . . past and ineradicable actions,” ineligibility for Title IV benefits “is made to turn upon continuingly contemporaneous fact” which a student who wants public assistance can correct. Communist Party of United States v. Subversive Activities Control Board, 367 U. S., at 87.
B
Even if the specificity element were deemed satisfied by § 12(f), the statute would not necessarily implicate the Bill of Attainder Clause. The proscription against bills of attainder reaches only statutes that inflict punishment on the specified individual or group. In determining whether a statute inflicts punishment within the proscription against bills of attainder, our holdings recognize that the severity of a sanction is not determinative of its character as punishment. Flemming v. Nestor, 363 U. S. 603, 616, and n. 9 (1960). That burdens are placed on citizens by federal authority does not make those burdens punishment. Nixon v. Administrator of General Services, 433 U. S., at 470; United States v. Lovett, 328 U. S., at 324 (Frankfurter, J., concurring). Conversely, legislative intent to encourage compliance with the law does not establish that a statute is merely the legitimate regulation of conduct. Punishment is not limited solely to retribution for past events, but may involve deprivations inflicted to deter future misconduct. United States v. Brown, 381 U. S., at 458-459. It is thus apparent that, though the governing criteria for an attainder may be readily indicated, “each case has turned on its own highly particularized context.” Flemming v. Nestor, supra, at 616.
In deciding whether a statute inflicts forbidden punishment, we have recognized three necessary inquiries: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes”; and (3) whether the legislative record “evinces a congressional intent to punish.” Nixon, supra, at 473, 475-476, 478. We conclude that under these criteria § 12(f) is not a punitive bill of attainder.
1
At common law, bills of attainder often imposed the death penalty; lesser punishments were imposed by bills of pains and penalties. The Constitution proscribes these lesser penalties as well as those imposing death. Cummings v. Missouri, 4 Wall., at 323. Historically used in England in times of rebellion or “violent political excitements,” ibid., bills of pains and penalties commonly imposed imprisonment, banishment, and the punitive confiscation of property. Nixon, supra, at 474. In our own country, the list of punishments forbidden by the Bill of Attainder Clause has expanded to include legislative bars to participation by individuals or groups in specific employments or professions.
Section 12(f) imposes none of the burdens historically associated with punishment. As this Court held in Flemming v. Nestor, supra, at 617, “the sanction is the mere denial of a noncontractual governmental benefit. No affirmative disability or restraint is imposed,” and Congress has inflicted “nothing approaching the ‘infamous punishment’ of imprisonment” or other disabilities historically associated with punishment.
Congress did not even deprive appellees of Title IV benefits permanently; appellees can become eligible for Title IV aid at any time simply by registering late and thus “carry the keys of their prison in their own pockets.” Shillitani v. United States, 384 U. S. 364, 368 (1966). A statute that leaves open perpetually the possibility of qualifying for aid does not fall within the historical meaning of forbidden legislative punishment.
2
Our inquiry does not end with a determination that § 12(f) does not inflict punishment in its historical sense. To ensure that the Legislature has not created an impermissible penalty not previously held to be within the proscription against bills of attainder, we must determine whether the challenged statute can be reasonably said to further nonpunitive goals. Nixon, 433 U. S., at 475-476.
The legislative history reflects that § 12(f) represents the considered congressional decision to further nonpunitive legislative goals. Congress was well aware that more than half a million young men had failed to comply with the registration requirement. The legislators emphasized that one of the primary purposes of § 12(f) was to encourage those required to register to do so.
Conditioning receipt of Title IV aid on registration is plainly a rational means to improve compliance with the registration requirement. Since the group of young men who must register for the draft overlaps in large part with the group of students who are eligible for Title IV aid, Congress reasonably concluded that § 12(f) would be a strong tonic to many nonregistrants.
Section 12(f) also furthers a fair allocation of scarce federal resources by limiting Title IV aid to those who are willing to meet their responsibilities to the United States by registering with the Selective Service when required to do so. As one Senator stated:
“This amendment seeks not only to increase compliance with the registration requirement but also to insure the most fair and just usage of Federal education benefits. During these times of extreme budgetary constraints, times when even the most worthwhile programs are cut back drastically, this Government has every obligation to see that Federal dollars are spent in the most fair and prudent manner possible. ... If students want to further their education at the expense of their country, they cannot expect these benefits to be provided without accepting their fair share of the responsibilities to that Government.”
Certain aspects of the legislation belie the view that § 12(f) is a punitive measure. Section 12(f) denies Title IV benefits to innocent as well as willful nonregistrants. Yet punitive legislation ordinarily does not reach those whose failure to comply with the law is not willful. Thus, in stressing that the legislation would reach unintentional violators, 128 Cong. Rec. 18355-18356 (1982) (remarks of Rep. Solomon); id., at 18357 (remarks of Rep. Simon); id., at 9666 (remarks of Sen. Stennis), proponents indicated that they intended to regulate all nonregistrants, rather than to single out intentional nonregistrants for punishment. In this same nonpunitive spirit, Congress also allowed all nonregistrants to qualify for Title IV aid simply by registering late, instead of choosing to punish willful nonregistrants by denying them benefits even if they registered belatedly.
We see therefore that the legislative history provides convincing support for the view that, in enacting § 12(f) Congress sought, not to punish anyone, but to promote compliance with the draft registration requirement and fairness in the allocation of scarce federal resources. Section 12(f) clearly furthers nonpunitive legislative goals.
C
Because § 12(f) does not single out an identifiable group that would be ineligible for Title IV aid or inflict punishment within the meaning of Bill of Attainder Clause, we hold that the District Court erred in striking down § 12(f) as an impermissible attainder.
Ill
Appellees assert that § 12(f) violates the Fifth Amendment by compelling nonregistrants to acknowledge that they have failed to register timely when confronted with certifying to their schools that they have complied with the registration law. Pointing to the fact that the willful failure to register within the time fixed by Proclamation No. 4771 is a criminal offense punishable under §§ 12(a) and (b), they contend that § 12(f) requires them — since in fact they have not registered — to confess to a criminal act and that this is “compulsion” in violation of their Fifth Amendment rights.
However, a person who has not registered clearly is under no compulsion to seek financial aid; if he has not registered, he is simply ineligible for aid. Since a nonregistrant is bound to know that his application for federal aid would be denied, he is in no sense under any “compulsion” to seek that aid. He has no reason to make any statement to anyone as to whether or not he has registered.
If appellees decide to register late, they could, of course, obtain Title IV aid without providing any information to their school that would incriminate them, since the statement to the school by the applicant is simply that he is in compliance with the registration law; it does not require him to disclose whether he was a timely or a late registrant. See n. 2, supra. A late registrant is therefore not required to disclose any incriminating information in order to become eligible for aid.
Although an applicant who registers late need not disclose that fact in his application for financial aid, appellants concede that a late registrant must disclose that his action is untimely when he makes a late registration with the Selective Service; the draft registration card must be dated and contain the registrant’s date of birth. 32 CFR § 1615.4 (1983). This raises the question whether § 12(f) violates appellees’ Fifth Amendment rights because they must register late in order to get aid and thus reveal to the Selective Service the failure to comply timely with the registration law. Appel-lees contend that, under our holding in Lefkowitz v. Turley, 414 U. S. 70, 83-84 (1973), the very risk that they will be ineligible for financial aid constitutes “compulsion” within the meaning of the Fifth Amendment.
In Turley we held that “the plaintiffs’ [architects’] disqualification from public contracting for five years as a penalty for asserting a constitutional privilege is violative of their Fifth Amendment rights.” Id., at 83. However, nonregistrants such as appellees are not in the same position as potential public contractors in Turley. An 18-year-old male who refuses to register is, of course, subject to prosecution for failure to register, but he is not compelled by law to acknowledge his failure to comply. Only when he registers — including a late registration — will he be asked to state his date of birth and thus acknowledge that he did not timely register.
None of these appellees has registered and thus none of them has been confronted with a need to assert a Fifth Amendment privilege when asked to disclose his date of birth. Unlike the architects in Turley, these appellees have not been denied the opportunity to register and in no sense have they been disqualified for financial aid “for asserting a constitutional privilege.” Ibid.
It is well settled that, “in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not ‘compelled’ him to incriminate himself,” Minnesota v. Murphy, 465 U. S. 420, 427 (1984); “[ajnswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying,” Gardner v. Broderick, 392 U. S. 273, 276 (1968). However, these appellees, not having sought to register, have had no occasion to assert their Fifth Amendment privilege when asked to state their dates of birth; the Government has net refused any request for immunity for their answers or otherwise threatened them with penalties for invoking the privilege as in Turley. Under these circumstances, § 12(f) does not violate their Fifth Amendment rights by forcing them to acknowledge during the registration process they have avoided that they have registered late.
> I — I
We conclude that § 12(f) does not violate the proscription against bills of attainder. Nor have appellees raised a cognizable claim under the Fifth Amendment.
The judgment of the District Court is
Reversed.
Justice Blackmun took no part in the decision of this case.
Title IV of the Higher Education Act of 1965, 20 U. S. C. § 1070 et seq., provides financial assistance to qualified students in postsecondary educational programs. Title IV aid is available at both colleges and universities, as well as at numerous kinds of business, trade, and technical schools. §§ 1085(b), (c), 1088.
The regulations include a model statement of registration compliance that the Secretary of Education has indicated satisfies the requirements of 34 CFR § 668.24(a) (1983):
“STATEMENT OF EDUCATIONAL PURPOSE/ REGISTRATION COMPLIANCE
“_I certify that I am not required to be registered with Selective Service, because:'
“_I am female.
“_I am in the armed services on active duty (Note: Members of the Reserves and National Guard are not considered on active duty.)
“_I have not reached my 18th birthday.
“_I was born before 1960.
“_I am a permanent resident of the Trust Territory of the Pacific Islands or the Northern Mariana Islands.
“_I certify that I am registered with Selective Service.
“Signature:_
“Date:_
“NOTICE: You will not receive title IV financial aid unless you complete this statement and, if required, give proof to your school of your registration compliance. . . .” 34 CFR § 668.25 (1983).
We agree with appellants that the statute does not single out an identifiable group and that the denial of Title IV aid does not constitute punishment. Appellants also argue that § 12(f) does not dispense with a judicial trial, noting that a hearing is provided in the event of disagreement between the applicant and the Secretary about whether the applicant has registered, § 12(f)(4), and that the decision made at that hearing is subject to judicial review. Appellants’ argument is meritless. Congress has not provided a judicial trial to those affected by the statute.
128 Cong. Rec. 18356 (1982) (remarks of Rep. Whitehurst); ibid. (remarks of Rep. Solomon); id., at 18369 (remarks of Rep. Stratton); id., at 9664 (remarks of Sen. Hayakawa); id., at 9666 (remarks of Sen. Jepsen).
Id., at 18356 (remarks of Rep. Whitehurst); id., at 18357 (remarks of Rep. Simon); id., at 18368 (remarks of Rep. Montgomery); id., at 18369 (remarks of Rep. Stratton). As Senator Stennis stated:
“I thought of the proposition here where some youngster might have overlooked signing up or might have misunderstood it or had not been correctly informed, but he is not going to be penalized for that because he still has complete control of the situation. All he will have to do is just to comply with the law, and that will automatically make him eligible so far as this prohibition or restriction is concerned.” Id., at 9666.
As the Solicitor General points out, one construction of the statute that avoids a constitutional problem is to make aid contingent on registration in the manner, but not the time, required by any proclamation. See Presidential Proclamation No. 4771, 3 CFR 84 (1981) (“Persons who are required to be registered shall comply with the registration procedures and other rules and regulations prescribed by the Director of Selective Service”).
All of the appellees in this case had failed to comply with the registration requirements when § 12(f) was enacted. As to 18-year-olds who have entered the class of nonregistrants after August 9, 1982 — 30 days before the enactment of § 12(f) — the statute is clearly prospective; ineligibility for financial aid is merely a deprivation in addition to potential criminal liability for the failure to register for the draft.
“The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation.” 328 U. S., at 324.
See, e. g., United States v. Brown, 381 U. S. 437 (1965), in which Communist Party members were barred from offices in labor unions; United States v. Lovett, 328 U. S. 303 (1946), in which the law in question cut off salaries to three named Government employees; Cummings v. Missouri, 4 Wall. 277 (1867), in which a priest was disqualified from practicing as a clergyman; and Ex parte Garland, 4 Wall. 333 (1867), in which lawyers were barred from the practice of law.
Appellees argue that the underpinnings of Flemming have been removed by Goldberg v. Kelly, 397 U. S. 254, 262 (1970), and Mathews v. Eldridge, 424 U. S. 319, 332 (1976). Goldberg held only that public assistance “benefits are a matter of statutory entitlement for persons qualified to receive them,” 397 U. S., at 262, and that due process affords qualified recipients a pretermination evidentiary hearing to guard against erroneous termination. The Court stressed that “the crucial factor in this context ... is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.” Id., at 264 (emphasis in original). Mathews reached the same conclusion with respect to disability benefits. Even Flemming noted that the interest of a covered employee under the Social Security Act “fall[s] within the protection from arbitrary governmental action afforded by the Due Process Clause,” 363 U. S., at 611, while holding that Congress’ disqualification of certain deportees from receipt of Social Security benefits was not an attainder, id., at 617.
See, e. g., 128 Cong. Rec. 18356 (1982) (remarks of Rep. Solomon); id., at 9666 (remarks of Sen. Jepsen).
See id., at 18356 (remarks of Rep. Solomon); id., at 18369 (remarks of Rep. Stratton); id., at 9664 (remarks of Sen. Hayakawa); id., at 9666 (remarks of Sen. Stennis); ibid, (remarks of Sen. Jepsen).
The Military Selective Service Act, 50 U. S. C. App. §453, requires certain males between the ages of 18 and 26 to register. Those who fail to register, though required to do so, are a significant part of the class to which Title IV assistance is otherwise offered. Title IV aid is available for a broad range of postsecondary educational programs at colleges, universities, and vocational schools. 20 U. S. C. § 1085(a); see n. 1, supra.
128 Cong. Rec. 9664-9665 (1982) (remarks of Sen. Hayakawa); see also id., at 9664 (remarks of Sen. Mattingly); id., at 18356 (remarks of Rep. Montgomery).
Applying the third part of the Nixon test, the District Court concluded that § 12(f) is a punitive measure. But the District Court relied in part on the statements of legislators who opposed the statute because they thought the statute punished nonregistrants. 128 Cong. Rec. 18358-18359 (1982) (remarks of Rep. Edgar); id., at 18359-18360 (remarks of Rep. Goldwater); id., at 9666 (remarks of Sen. Durenberger). These statements are entitled to little, if any, weight, since they were made by opponents of the legislation. Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 394-395 (1951).
The District Court also relied on several isolated statements expressing understandable indignation over the decision of some nonregistrants to show their defiance of the law. See 128 Cong. Rec. 18356 (1982) (remarks of Rep. Montgomery); id., at 9665 (remarks of Sen. Hayakawa). But such statements do not constitute “the unmistakable evidence of punitive intent which ... is required before a Congressional enactment of this kind may be struck down.” Flemming v. Nestor, 363 U. S. 603, 619 (1960).
The dissent reads Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968), to create in this case an exception to the normal rule requiring assertion of the Fifth Amendment privilege. In Marchetti and Grosso, however, anyone who asserted the privilege on a wagering return did not merely call attention to himself; the very filing necessarily admitted illegal gambling activity. Those cases are therefore clearly distinguishable on their facts. See Grosso, at 73 (Brennan, J., concurring); United States v. Sullivan, 274 U. S. 259, 263 (1927).
Appellees also assert that § 12(f) violates equal protection because it discriminates against less wealthy nonregistrants. That argument is meritless. Section 12(f) treats all nonregistrants alike, denying aid to both the poor and the wealthy. But even if the statute discriminated against poor nonregistrants because more wealthy nonregistrants could continue to pay for their postsecondary educations, the statute must be sustained if rationally related to a legitimate Government interest. Harris v. McRae, 448 U. S. 297, 322-324 (1980). That standard is easily met here, because § 12(f) is rationally related to the legitimate Government objectives of encouraging registration and fairly allocating scarce federal resources. See supra, at 854. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"National Mediation Board",
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] | [
106
] |
NATIONAL LABOR RELATIONS BOARD v. C & C PLYWOOD CORP.
No. 53.
Argued November 15, 1966.
Decided January 9, 1967.
Daniel M. Friedman argued the cause for petitioner. On the brief were Solicitor General Marshall, Arnold Ordman, Dominick L. Manoli, Norton J. Come and Lawrence M. Joseph.
George J. Tichy argued the cause and filed a brief for respondent.
Mr. Justice Stewart
delivered the opinion of the Court.
The respondent employer was brought before the National Labor Relations Board to answer a complaint that its inauguration of a premium pay plan during the term of a collective agreement, without prior consultation with the union representing its employees, violated the duties imposed by §§ 8 (a)(5) and (1) of the National Labor Relations Act. The Board issued a cease-and-desist order, rejecting the claim that the respondent’s action was authorized by the collective agreement. The Court of Appeals for the Ninth Circuit refused, however, to enforce the Board’s order. It reasoned that a provision in the agreement between the union and the employer, which “arguably” allowed the employer to institute the premium pay plan, divested the Board of jurisdiction to entertain the union’s unfair labor practice charge. 351 F. 2d 224. We granted certiorari to consider a substantial question of federal labor law. 384 U. S. 903.
In August 1962, the Plywood, Lumber, and Saw Mill Workers Local No. 2405 was certified as the bargaining representative of the respondent’s production and maintenance employees. The agreement which resulted from collective bargaining contained the following provision:
“Article XVII
“WAGES
“A. A classified wage scale has been agreed upon by the Employer and Union, and has been signed by the parties and thereby made a part of the written agreement. The Employer reserves the right to pay a premium rate over and above the contractual classified wage rate to reward any particular employee for some special fitness, skill, aptitude or the like. The payment of such a premium rate shall not be considered a permanent increase in the rate of that position and may, at sole option of the Employer, be reduced to the contractual rate . . .
The agreement also stipulated that wages should be “closed” during the period it was effective and that neither party should be obligated to bargain collectively with respect to any matter not specifically referred to in the contract. Grievance machinery was established, but no ultimate arbitration of grievances or other disputes was provided.
Less than three weeks after this agreement was signed, the respondent posted a notice that all members of the “glue spreader” crews would be paid $2.50 per hour if their crews met specified biweekly (and later weekly) production standards, although under the “classified wage scale” referred to in the above quoted Art. XVII of the agreement, the members of these crews were to be paid hourly wages ranging from $2.15 to $2.29, depending upon their function within the crew. When the union learned of this premium pay plan through one of its members, it immediately asked for a conference with the respondent. During the meetings between the parties which followed this request, the employer indicated a willingness to discuss the terms of the plan, but refused to rescind it pending those discussions.
It was this refusal which prompted the union to charge the respondent with an unfair labor practice in violation of §§ 8 (a)(5) and (1). The trial examiner found that the respondent had instituted the premium pay program in good-faith reliance upon the right reserved to it in the collective agreement. He, therefore, dismissed the complaint. The Board reversed. Giving consideration to the history of negotiations between the parties, as well as the express provisions of the collective agreement, the Board ruled the union had not ceded power to the employer unilaterally to change the wage system as it had. For while the agreement specified different hourly pay for different members of the glue spreader crews and allowed for merit increases for “particular employee[s],” the employer had placed all the members of these crews on the same wage scale and had made it a function of the production output of the crew as a whole.
In refusing to enforce the Board’s order, the Court of Appeals did not decide that the premium pay provision of the labor agreement had been misinterpreted by the Board. Instead, it held the Board did not have jurisdiction to find the respondent had violated § 8 (a) of the Labor Act, because the “existence ... of an unfair labor practice [did] not turn entirely upon the provisions of the Act, but arguably upon a good-faith dispute as to the correct meaning of the provisions of the collective bargaining agreement . . . .” 351 F. 2d, at 228.
The respondent does hot question the proposition that an employer may not unilaterally institute merit increases during the term of a collective agreement unless some provision of the contract authorizes him to do so. See Labor Board v. J. H. Allison & Co., 165 F. 2d 766 (C. A. 6th Cir.), cert. denied, 335 U. S. 814. Cf. Beacon Piece Dyeing Co., 121 N. L. R. B. 953 (1958). The-argument is, rather, that since the contract contained a provision which might have allowed the respondent to institute the wage plan in question, the Board was powerless to determine whether that provision did authorize the respondent’s action, because the question was one for a state or federal court under § 301 of the Act.
In evaluating this contention, it is important first to point out that the collective bargaining agreement contained no arbitration clause. The contract did provide grievance procedures, but the end result of those procedures, if differences between the parties remained unresolved, was economic warfare, not “the therapy of arbitration.” Carey v. Westinghouse Corp., 375 U. S. 261, 272. Thus, the Board’s action in this case was in no way inconsistent with its previous recognition of arbitration as “an instrument of national labor policy for. composing contractual differences.” International Harvester Co., 138 N. L. R. B. 923, 926 (1962), aff’d sub nom. Ramsey v. Labor Board, 327 F. 2d 784 (C. A. 7th Cir.), cert. denied, 377 U. S. 1003.
The respondent’s argument rests primarily upon the legislative history of the 1947 amendments to the National Labor Relations Act. It is said that the rejection by Congress of a bill which would have given the Board unfair labor practice jurisdiction over all breaches of collective bargaining agreements shows that the Board is without power to decide any case involving the interpretation of a labor contract. We do not draw that inference from this legislative history.
When Congress determined that the Board should not have general jurisdiction over all alleged violations of collective bargaining agreements and that such matters should be placed within the jurisdiction of the courts, it was acting upon a principle which this Court had already recognized:
“The Railway Labor Act, like the National Labor Relations Act, does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them.”
Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, 318 U. S. 1, 6. To have conferred upon the National Labor Relations Board generalized power to determine the rights of parties under all collective agreements would have been a step toward governmental regulation of the terms of those agreements. We view Congress’ decision not to give the Board that broad power as a refusal to take this step.
But in this case the Board has not construed a labor agreement to determine the extent of • the contractual rights which were given the union by the employer. It has not imposed its own view of what the terms and conditions of the labor agreement should be. It has done no more than merely enforce a statutory right which Congress considered necessary to allow labor and management to get on with the process of reaching fair terms and conditions of employment — “to provide a means by which agreement may be reached.” The Board’s interpretation went only so far as was necessary to determine that the union did not agree to give up these statutory safeguards. Thus, the Board, in necessarily construing a labor agreement to decide this unfair labor practice case, has not exceeded the jurisdiction laid out for it by Congress.
This conclusion is reinforced by previous. judicial recognition that a contractual defense does not divest the Labor Board of jurisdiction. For example, in Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, the legality of an employer’s refusal to reinstate strikers was based upon the Board’s construction of a “no strike” clause in the labor agreement, which the employer contended allowed it to refuse to take back workers who had walked out in protest over its unfair labor practice. The strikers applied to the Board for reinstatement and back pay. In giving the requested relief, the Board was forced to construe the scope of the “no strike” clause. This Court, in affirming, stressed that the whole case turned “upon the proper interpretation of the particular contract . . . .” 350 U. S., at 279. Thus, Mastm Plastics stands squarely against the respondent’s theory as to the Board’s lack of power in the present case.
If the Board in a, case like this had no jurisdiction to consider a collective agreement prior to an authoritative construction by the courts, labor organizations would face inordinate delays in obtaining vindication of their statutory rights. Where, as here, the parties have not provided for arbitration, the union would have to institute a court action to determine the applicability of the premium pay provision of the collective bargaining agreement. If it succeeded in court, the union would then have to go back to the Labor Board to begin an unfair labor practice proceeding. It is not unlikely that this would add years to the already lengthy period required to gain relief from the Board. Congress cannot have intended to place such obstacles in the way of the Board’s effective enforcement of statutory duties. For in the labor field, as in few others, time is crucially important in obtaining relief. Amalgamated Clothing Workers v. Richman Bros. Co., 348 U. S. 511, 526 (dissenting opinion).
The legislative history of the Labor Act, the precedents interpreting it, and the interest of its efficient administration thus all lead to the conclusion that the Board had jurisdiction to deal with the unfair labor practice charge in this case. We hold that the Court of Appeals was in error in deciding to the contrary.
The remaining question, not reached by the Court of Appeals, is whether the Board was wrong in concluding that the contested provision in the collective agreement gave the respondent no unilateral right to institute its premium pay plan. In reaching this conclusion, the Board relied upon its experience with labor relations and the Act’s clear emphasis upon the protection of free collective bargaining. We cannot disapprove of the Board’s approach. For the law of labor agreements cannot be based upon abstract definitions unrelated to the context in which the parties bargained and the basic regulatory scheme underlying that context. See Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich. L. Rev. 1 (1958): Nor can we say that the Board was wrong in holding that the union had not forgone its statutory right to bargain about the pay plan inaugurated by the respondent. For the disputed contract provision referred to increases for “particular employee[s],” not groups of workers. And there was nothing in it to suggest that the carefully worked out wage differentials for various members of the glue spreader crew could be invalidated by the respondent’s decision to pay all members of the crew the same wage.
The judgment is accordingly reversed and the case is remanded to the Court of Appeals with directions to enforce the Board’s order.
Reversed and remanded.
National Labor Relations Act, as amended, §§ 8 (a)(5) and (1), 61 Stat. 140-141, 29 U. S. C. §§ 158 (a)(5) and (1).
The NLRB’s order directed respondent to bargain with the union upon the latter’s request and similarly to rescind any payment plan which it had unilaterally instituted.
“Article XVII
“B. It is mutually agreed that the attached classified wage scale shall be effective upon the signing of this Working Agreement with wages closed for the term of that agreement. . . .”
“Article XIX
“WAIVER OF DUTY TO BARGAIN
“The parties acknowledge that during negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter of collective bargaining, and that the understanding and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Employer and Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right and each agree that the other shall not be obligated to bargain collectively with respect to any subject matter not specifically referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement.”
Workers in the three job classifications composing the glue spreader crews were to receive the following wages:
Core Layer.:. $2.29/hour
Core Feeder. $2.24/hour
Sheet Turner. $2.15/hour
The trial examiner found that “quite some time prior” to the execution of the contract, the respondent’s general manager had proposed an “incentive bonus system” within the department where the glue spreader crews worked. The union’s representative, however, declared that the union would not agree to such a plan. Sometime later in the negotiations, the respondent again made reference to the fact that it was “giving thought” to incentive pay, but the trial examiner was unable to conclude that this reference was related to the premium pay provision that eventually appeared in the contract.
For illustrations of the limited discretion which the Labor Act allows employers concerning the wages of employees represented by certified unions, see Labor Board v. Katz, 369 U. S. 736; Labor Board v. Crompton-Highland Mills, Inc., 337 U. S. 217.
§ 301, Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185.
The Court of Appeals in this case relied upon its previous decision in Square D Co. v. Labor Board, 332 F. 2d 360. But Square D involved a collective agreement that provided for arbitration. See Note, Use of an Arbitration Clause, 41 Ind. L. J. 455, 469 (1966).
See also Cloverleaf Div. of Adams Dairy Co., 147 N. L. R. B. 1410, 1416 (1964), where the Board made the following observation to justify, in part, its decision to construe a labor contract in the course of an unfair labor practice proceeding:
“. . .it affirmatively appears that neither party has even so much as sought to invoke arbitration. Nor is this a case involving an alleged unfair labor practice, the existence of which turns primarily on an interpretation of specific contractual provisions, unquestionably encompassed by the contract’s arbitration provisions, and coming to us in a context that makes it reasonably probable that arbitration settlement of the contract dispute would also put at rest the unfair labor practice controversy in a manner sufficient to effectuate the policies of the Act.” (Footnotes omitted.)
Cf. Spielberg Mfg. Co., 112 N. L. R. B. 1080 (1955).
An earlier version of the Senate bill contained the following provision:
“Sec. 8. (a) It shall be an unfair labor practice for an employer- — •
“(6) to violate the terms of a collective-bargaining agreement or the terms of an agreement to submit a labor dispute to arbitration . . . .” Section 8 (b) (5) of the same bill imposed a similar limitation upon labor organizations. S. 1126, 80th Cong., 1st Sess., 1 Legis. History of LMRA 109-111, 114. Neither of these provisions was in the bill enacted into law.
§ 301, Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185.
Congress was also concerned with the possibility of conflicting decisions that would result from placing all questions of contract interpretation before both the Board and the courts. See 93 Cong. Rec. 4033, 2 Legis. History of LMRA 1043 (remarks of Senator Murray); 93 Cong. Rec. 6443, 2 Legis. History of LMRA 1539. But such a possibility does not arise in a case like the present one, since courts have no jurisdiction to enforce the union’s statutory rights under §§ 8 (a) (5) and (1).
In Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, the employer was charged with a violation of §§ 8 (a)(1), (2) and (3), and not with a failure to bargain. But nothing is suggested that would justify distinguishing the case on that ground.
The precise nature of the union’s case in court is not readily apparent. If damages for breach of contract were sought, the union would have difficulty in establishing the amount of injury caused by respondent’s action. For the real injury in this case is to the union’s status as bargaining representative, and it would be difficult to translate such damage into dollars and cents. If an injunction were sought to vindicate the union’s contractual rights, the problem of the applicability of the Norris-LaGuardia Act would .have to be faced. A federal injunction issuing from a court with § 301 jurisdiction might be barred by § 7 of that Act. See International Union of Electrical Workers v. General Electric Co., 341 F. 2d 571 (C. A. 2d Cir.); Local No. 861 v. Stone & Webster Corp., 163 F. Supp. 894 (D. C. W. D. La.). Cf. Sinclair Refining Co. v. Atkinson, 370 U. S. 195; Publishers’ Assn. v. New York Mailers’ Union, 317 F. 2d 624 (C. A. 2d Cir.), cert. granted, 375 U. S. 901, judgment vacated in part for dismissal as moot, 376 U. S. 775. Whether a state injunction might be similarly barred in suits governed by federal labor law, Teamsters Local v. Lucas Flour Co., 369 U. S. 95, is an open question. See Charles Dowd Box Co. v. Courtney, 368 U. S. 502, 514, n. 8. Thus, it may be that the only remedy in court which would be available to the union would be a suit for a declaratory judgment, assuming such a suit in these circumstances would be maintainable under state or federal law.
The instant charge, for example, was filed July 31, 1963.
The respondent points to two other labor contracts in its area to support its version of the provision here in question, but those agreements, even if relevant, fall short of substantiating its position. In one, a premium was paid to members of two-man crews who accomplished prescribed production goals. But the respondent does not show that this premium leveled a wage differential set up by the collective bargaining agreement. In the other, a lumber company’s head sawyer received an hourly bonus if the plant exceeded a certain monthly output. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
81
] |
BRYANT et al. v. YELLEN et al.
No. 79-421.
Argued March 25, 1980
Decided June 16, 1980
White, J., delivered the opinion for a unanimous Court.
Northcutt Ely and Charles W. Bender argued the cause for petitioners in all cases. With Mr. Ely on the briefs for petitioner Imperial Irrigation District in No. 79-435 were Reginald L. Knox, Jr., Frederick H. Ritts, Robert F. Pietrowski, Jr., Ralph J. GUlis, and Charles E. Corker. With Mr. Bender on the briefs for petitioners Bryant et al. in No. 79-421 were Patrick Lynch, James V. Selna, and John F. Baum. George Deukmejian, Attorney General, R. H. Connett, Assistant Attorney General, and Douglas B. Noble, Deputy Attorney General, filed a brief for the State of California, petitioner in all cases.
Arthur Brunwasser argued the cause and filed a brief for respondents in all cases. Solicitor General McCree argued the cause for the United States in all cases. With him on the brief were Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Mark I. Levy, Peter R. Steenland, Jr., Raymond N. Zagone, and Dirk D. Snel.
Together with No. 79-425, California et al. v. Yellen et al., and No. 79-435, Imperial Irrigation District et al. v. Yellen et al., also on certiorari to the same court.
Robert Marvin Teets, Jr., Christopher E. Hamilton, Ralph Santiago Abascal, Ellen Josephson, and Sidney M. Wolinsky filed a brief for Pedro Duarte et al. as amici curiae urging affirmance in all eases.
Mr. Justice White
delivered the opinion of the Court.
When the Boulder Canyon Project Act, 45 Stat. 1057, 43 U. S. C. § 617 et seg. (Project Act), became effective in 1929, a large area in Imperial Valley, Cal., was already being irrigated by Colorado River water brought to the Valley by a privately owned delivery and distribution system. Pursuant to the Project Act, the United States constructed and the Imperial Irrigation District (District) agreed to pay for a new diversion dam and a new canal connecting the dam with the District. The Project Act was supplemental to the reclamation laws, which as a general rule limited water deliveries from reclamation projects to 160 acres under single ownership. The Project Act, however, required that the Secretary of the Interior (Secretary) observe rights to Colorado River water that had been perfected under state law at the time the Act became effective. In the course of contracting with the District for the building of the new dam and canal and for the delivery of water to the District, the United States represented that the Project Act did not impose acreage limitations on lands that already had vested or present rights to Colorado River water. The United States officially adhered to that position until 1964 when it repudiated its prior construction of the Project Act and sued the District, claiming that the 160-acre limitation contained in the reclamation law applies to all privately owned lands in the District, whether or not they had been irrigated in 1929. The District Court found for the District and its landowners, 322 P. Supp. 11 (SD Cal. 1971), but the Court of Appeals reversed and sustained the Government’s position, 559 F. 2d 509 (CA9 1977). We now reverse the Court of Appeals with respect to those lands that were irrigated in 1929 and with respect to which the District has been adjudicated to have a perfected water right as of that date, a water right which, until 1964, the United States Department of the Interior officially represented foreclosed the application of acreage limitations. The judgment is otherwise vacated.
I
Imperial Valley is an area located south of the Saltón Sea in southeastern California. It lies below sea level, and is an arid desert in its natural state. In 1901, however, irrigation began in the Valley, using water diverted from the Colorado River, which in that area marks the border between California and Arizona. Until at least 1940, irrigation water was brought to the Valley by means of a canal and distribution system that were completely privately financed. On June 25, 1929, when the Project Act became effective, the District was diverting, transporting, and delivering water to 424,145 acres of privately owned and very productive farmland in Imperial Valley. Under neither state law nor private irrigation arrangements in existence in Imperial Valley prior to 1929 was there any restriction on the number of acres that a single landholder could own and irrigate.
Prior to 1929 and for several years thereafter, the water diverted from the Colorado River was carried to the Valley through the Alamo Canal, which left the river north of the border with Mexico but then traversed Mexican territory for some 50 miles before turning northward into Imperial Valley. This distribution system, entirely privately financed and owned, comprised approximately 1,700 miles of main and lateral canals, all serving to divert and deliver the necessary waters to the lands in Imperial Valley.
The Project Act was the culmination of the efforts of the seven States in the Colorado River Basin to control flooding, regulate water supplies on a predictable basis, allocate waters among the Upper and Lower Basin States and among the States in each basin, and connect the river to the Imperial Valley by a canal that did not pass through Mexico. In 1922, the seven States executed the Colorado River Compact (Compact) allocating the waters of the river between the Upper and Lower Basins, and among other things providing in Art. VIII that “[p]resent perfected rights to the beneficial use of waters of the Colorado River System are unimpaired by this compact.” The Project Act, passed in 1928 and effective in 1929, implemented and ratified the Compact; contained its own formula for allocating Lower Basin water among California, Arizona, and Nevada, Arizona v. California, 373 U. S. 546 (1963); and authorized the construction of the works required for the harnessing and more efficient utilization of the unruly river. The principal works of the Project, consisting of the Hoover Dam at Black Canyon and the storage facilities behind it, served to implement the division of the Compact. The dam was completed and storage began in 1935.
Section 1 of the Project Act, which provided for the dam at Black Canyon, also authorized the construction of a new canal, the All-American Canal, which would replace the Alamo Canal and would traverse only territory located in the United States. A new diversion dam for Imperial Valley water was also authorized. Section 1 went on to provide that no charge should be made for the storage or delivery of irrigation or potable water to Imperial or Coachella Valley.
Section 4 (a) of the Project Act conditioned the effectiveness of the Act on the ratification of the Compact by the signatory States. Section 4 (b), as well as requiring contractual provision for the repayment of specified costs with respect to the Hoover Dam, required that before any money was appropriated for the Imperial Yalley works, the Secretary was to make provision for revenues “by contract or otherwise” to insure payment of all “expenses of construction, operation, and maintenance of said main canal and appurtenant structures in the manner provided in the reclamation law.” Section 5 authorized the Secretary to contract for the storage of water and for its delivery at such points on the river and the canal as were agreed upon. Contracts were to be for permanent service and were required before any person would be entitled to stored water.
Section 6 of the Project Act, of critical importance in these cases, mandated that the works authorized by § 1 were to be used: “First, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses and satisfaction of present perfected rights in pursuance of Article VIII of said Colorado River compact; and third, for power.” Section 9 authorized the opening to entry of the public lands that would become irrigable by the Project but in tracts not greater than 160 acres in size in accordance with the provisions of the reclamation law.
Section 14 provided that the Project Act should be deemed supplemental to the reclamation law, “which said reclamation law shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided.” The “reclamation law” referred to was defined in § 12 as the Act of June 17, 1902 (Reclamation Act), 32 Stat. 388, and Acts amendatory thereof and supplemental thereto. One of the statutes amendatory of or supplemental to the Reclamation Act was the Omnibus Adjustment Act of 1926 (1926 Act), § 46 of which, 44 Stat. (part 2) 649, 43 U. S. C. § 423e, forbade delivery of reclamation project water to any irrigable land held in private ownership by one owner in excess of 160 acres, and required owners to execute recordable contracts for the sale of excess lands before such lands could receive project water.
Pursuant to the Project Act, the United States and the District entered into a contract on December 1, 1932, providing for the construction of the Imperial Dam and the All-American Canal. The District undertook to pay the cost of the works, and to include within itself certain public lands of the United States and other specified lands. The United States undertook to deliver to the Imperial Dam the water which would be carried by the new canal to the various lands to be served by it. The contract contained no acreage limitation provision. Pursuant to this contract, the United States constructed the Imperial Dam in the Colorado River — some distance below Black Canyon but upriver from the existing point of diversion — and the All-American Canal connecting the dam and Imperial Valley. Use of the canal began in 1940, and by 1942 it carried all Colorado River water used by Imperial Valley.
Article 31 of the contract between the District and the United States provided that the United States would not be' bound by the contract until and unless court proceedings had been instituted by the District and a final judgment obtained confirming the authorization and the validity of the contract. Such an action, entitled Hewes v. All Persons, No. 15460, Superior Court, Imperial County, was instituted' and final judgment was entered on July 1, 1933, confirming the validity of the contract in all respects. App. to Pet. for Cert, in No. 79-435, pp. 120a-154a. In connection with these proceedings, the then Secretary, Ray Lyman Wilbur, on February 24, 1933, submitted a letter to the District dealing with the question whether the 160-acre limitation of the reclamation law was applicable in Imperial Valley. Among other things, the letter stated:
“Upon careful consideration the view, was reached that this limitation does not apply to lands now cultivated and having a present water right. These lands, having already a water right, are entitled to have such vested right recognized without regard to the acreage limitation mentioned. Congress evidently recognized that these lands had a vested right when the provision was inserted that no charge shall be made for the storage, use, or delivery of water to be furnished these areas.”
The trial court in the Hewes case expressly found and concluded that eligibility for project water was not limited to 160-acre tracts in single ownership. An appeal in the case was dismissed before judgment. The United States was not a party to the action.
The Wilbur letter expressing the view that lands under irrigation at the time the Project Act was passed and having a present water right were not subject to the 160-acre limitation remained the official view of the Department of the Interior until 1964 when the Department adopted the view of its then Solicitor that the limitation should have applied to all Imperial Valley lands in private ownership.
Meanwhile, it having become apparent that neither the Compact nor the Project Act settled to the satisfaction of the Lower Basin States how the water allocated to them should be divided, an original action was begun in this Court in 1952 to settle this fundamental question and related issues, including the ascertainment of present perfected rights the unimpaired preservation of which was required by both the Compact and the Project Act. After more than 10 years of litigation, the opinion in Arizona v. California was handed down on June 3, 1963. 373 U. S. 546. Although the dispute among the Lower Basin States was at the heart of the controversy, for present purposes the primary aspect of the case was the recognition given to present perfected rights in the opinion and the ensuing decrees.
The opinion recognized that under § 14 of the Project Act, the construction, operation, and management of the works were to be subject to the provisions of the reclamation law, except as the Act otherwise provided, and that one of the most significant limitations in the Project Act on the Secretary’s authority to contract for the delivery of water is the requirement to satisfy present perfected rights, “a matter of intense importance to those who had reduced their water rights to actual beneficial use at the time the Act became effective.” 373 U. S., at 584. The decree, which was entered on March 9, 1964, 376 U. S. 340, defined a perfected right as:
“[A] water right acquired in accordance with state law, which right has been exercised by the actual diversion of a specific quantity of water that has been applied to a defined area of land or to definite municipal or industrial works. . . .” Id., at 341.
Present perfected rights were defined as those perfected rights "existing as of June 25, 1929, the effective date of the Boulder Canyon Project Act.” Ibid. The decree also provided for the future determination of the specific present perfected rights in each of the Lower Basin States. A supplemental decree was eventually forthcoming, 439 U. S. 419 (1979), and in that decree the Imperial Irrigation District was adjudged to have a present perfected right
“in annual quantities not to exceed (i) 2,600,000 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 424,145 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901.” Id., at 429.
As already indicated, the Department of the Interior repudiated the Wilbur interpretation of the Project Act in 1964. It then sought to include its revised position in a renegotiated contract with the District. When the District refused to accept the Department’s position, the United States sued the District in 1967 for a declaratory judgment that the excess-acreage limitation of § 46 applied to all private lands in the Valley. The District Court permitted several Imperial Valley landowners to intervene as defendants representing the certified class of all landowners owning more than 160 acres. It then ruled against the Government, holding for several reasons that “the land limitation provisions of reclamation law have no application to privately owned lands lying within the Imperial Irrigation District” and that the District is not bound to observe such limitations. 322 P. Supp., at 27. The Department of the Interior recommended and the Solicitor General decided, after reviewing the case, that an appeal not be prosecuted on behalf of the United States. In consequence, respondents, a group of Imperial Valley residents, who had been given leave to participate as amici in the District Court and who desired to purchase the excess lands that might become available if § 46 were held applicable, attempted to intervene for purpose of appeal, but the District Court denied the motion. The Court of Appeals reversed the denial, 559 P. 2d, at 543-544, and proceeded to hold that the appealing intervenors had standing under Art. Ill of the Constitution; that Hewes v. All Persons was not conclusive with respect to acreage limitation; that the clear import of §46 and the Project Act was that the 160-acre limitation is applicable to the Imperial Valley; and that the Department’s administrative practice over the years did not bar application of the limitation to the Valley.
Because of the importance of these cases, we granted the petitions for writs of certiorari filed by the District, the landowners, and the State of California. 444 U. S. 978 (1979).
II
As a preliminary matter, we agree with the Court of Appeals that the respondents who sought to enter the suit when the United States forwent an appeal from the District Court’s adverse decision had standing to intervene and press the appeal on their own behalf. Respondents, most of whom are farmworkers, reside in Imperial Valley. The essence of their claim was that they desired to purchase farmlands in Imperial Valley and that if § 46 were applied as they believed it should be, there would be excess lands available for purchase at prices below the market value for irrigated land. The Court of Appeals, although recognizing that no owner of excess lands would be required to sell, concluded that it would be highly improbable that all owners of excess lands would prefer to withdraw their irrigable lands from agriculture in order to avoid § 46. In these circumstances, the Court of Appeals ruled that under Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977), and other cases, respondents had standing even though they could not with certainty establish that they would be able to purchase excess lands if § 46 were held applicable.
This was a proper application of our cases. It being unlikely that any of the 800 owners of excess lands would sell land at below current market prices absent the applicability of § 46 and it being likely that excess lands would become available at less than market prices if § 46 were applied, the Court of Appeals properly concluded that respondents had a sufficient stake in the outcome of the controversy to afford them standing to appeal the District Court’s decision.
Ill
We are unable, however, to agree with the Court of Appeals that Congress intended that the 160-acre limitation of the 1926 Act would apply to the lands under irrigation in Imperial Valley in 1929. Under § 14 of the Project Act, the construction, operation, and management of the project works were to be governed by the reclamation law, but only if not otherwise provided for in the Project Act. Section 46 of the 1926 Act is one of the reclamation laws; and its acreage limitation, which expressly applies to contracts for “constructing, operating, and maintaining” project works, would appear to govern the delivery of project water unless its applicability is foreclosed by some other provision of the Project Act. The Court of Appeals, erroneously we think, found no such preclusion in § 6 of the Act. >
Concededly, nothing in § 14, in § 46, or in the reclamation law in general would excuse the Secretary from recognizing his obligation to satisfy present perfected rights in Imperial Valley that were provided for by Art. VIII of the Compact and § 6 of the Project Act and adjudicated by this Court in Arizona v. California, 373 U. S. 546 (1963). The Court of Appeals neverthless held that § 46 could be applied consistently with § 6 because the perfected rights in Imperial Valley were owned by and would be adjudicated to the District, not to individual landowners, who were merely members of a class for whose benefit the water rights had been acquired and held in trust. Individual farmers, the Court of Appeals said, had no right under the law to a particular proportion of the District’s water. Applying § 46 and denying water to excess lands not sold would merely require reallocation of the water among those eligible to receive it and would not reduce the water which the District was entitled to have delivered in accordance with its perfected rights.
We find this disposition of the § 6 defense to the application of the 1926 Act’s acreage limitation to be unpersuasive. Arizona v. California, supra, at 584, recognized that “one of the most significant limitations” on the Secretary’s power under the Project Act was the requirement that he satisfy present perfected rights, a matter of great significance to those who had reduced their water rights to beneficial use prior to 1929. Accordingly, in our initial decree, the perfected right protected by § 6 was defined with some care: a right that had been acquired in accordance with state law and that had been exercised by the actual diversion of a specific quantity of water and its application to a defined area of land. In our supplemental decree, entered prior to the opinion of the Court of Appeals denying rehearing and rehearing en banc, there was decreed to the District a present perfected water right of 2.6 million acre-feet of diversions from the mainstream or the quantity of water necessary to supply the consumptive use required to irrigate 424,145 acres and related uses, whichever was less, with a priority date of 1901. 439 U. S., at 429. We thus determined that, as of 1929, the District had perfected its rights under state law to divert the specified amount of water and had actually diverted that water to irrigate the defined quantity and area of land. As we see it, the Court of Appeals failed to take adequate account of § 6 of the Project Act and its implementation in our opinion and decrees filed in the Arizona v. California litigation.
In the first place, it bears emphasizing that the § 6 perfected right is a water right originating under state law. In Arizona v. California, we held that the Project Act vested in the Secretary the power to contract for project water deliveries independent of the direction of § 8 of the Reclamation Act to proceed in accordance with state law and of the admonition of § 18 of the Project Act not to interfere with state law. 373 U. S., at 586-588. We nevertheless clearly recognized that § 6 of the Project Act, requiring satisfaction of present perfected rights, was an unavoidable limitation on the Secretary’s power and that in providing for these rights the Secretary must take account of state law. In this respect, state law was not displaced by the Project Act and must be consulted in determining the content and characteristics of the water right that was adjudicated to the District by our decree.
It may be true, as the Court of Appeals said, that no individual farm in the District has a permanent right to any specific proportion of the water held in trust by the District. But there is no doubt that prior to 1929 the District, in exercising its rights as trustee, delivered water to individual farmer beneficiaries without regard to the amount of land under single ownership. It has been doing so ever since. There is no suggestion, by the Court of Appeals or otherwise, that as a matter of state law and absent the interposition of some federal duty, the District did not have the right and privilege to exercise and use its water right in this manner. Nor has it been suggested that the District, absent some duty or disability imposed by federal law, could have rightfully denied water to individual farmers owning more than 160 acres. Indeed, as a matter of state law, not only did the District’s water right entitle it to deliver water to the farms in the District regardless of size, but also the right was equitably owned by the beneficiaries to whom the District was obligated to deliver water.
These were important characteristics of the District’s water right as of the effective date of the Project Act, and the question is whether Congress intended to effect serious changes in the nature of the water right by doing away with the District’s privilege and duty to service farms regardless of their size. We are quite sure that Congress did not so intend and that to hold otherwise is to misunderstand the Project Act and the substantive meaning of “present perfected rights” as defined by this Court’s decree.
The Court of Appeals said it would not be a breach of trust by a water district to obey the dictates of § 46, relying on Ivanhoe Irrig. Dist. v. All Parties and Persons, 53 Cal. 2d 692, 712, 350 P. 2d 69, 81 (1960). But the issue here is whether § 46 applies to lands already being irrigated in 1929. In the Ivanhoe proceedings, the courts were not dealing with perfected rights to water that the project there involved would furnish, nor with a Project Act that specifically required present perfected rights to be satisfied. Here, we are dealing with perfected rights protected by the Project Act; and because its water rights are to be interpreted in the light of state law, the District should now be as free of land limitations with respect to the land it was irrigating in 1929 as it was prior to the passage of the Project Act. To apply § 46 would go far toward emasculating the substance, under state law, of the water right decreed to the District, as well as substantially limiting its duties to, and the rights of, the farmer-beneficiaries in the District.
It should also be recalled that we defined a present perfected right as one that had not only been acquired pursuant to state law but as one that had also been exercised by the diversion of water and its actual application to a specific area of land. We did not intend to decree a water right to the District under this definition, conditioned upon proof of actual diversion and use, but nevertheless to require the District to terminate service to the lands on the basis of which the right was decreed. The District has itself no power to require that excess lands be sold, and it is a contradiction in terms to say, as the Court of Appeals did, that the District has present perfected rights but that § 46 requires it to terminate deliveries to all persons with excess lands who refuse to sell. We consequently hold that the perfected water right decreed to the District may be exercised by it without regard to the land limitation provisions of § 46 of the 1926 Act or to any similar provisions of the reclamation laws.
IV
The legislative history of the Project Act, which spans several years, raises no doubt in our minds about the foregoing construction of the Act. Our attention has been called to nothing in the relevant materials indicating that although Congress was careful to preserve present perfected rights in § 6, other provisions of the Project Act were nevertheless intended to invoke acreage limitation with respect to lands already being irrigated in Imperial Valley by means of water diverted from the Colorado River and delivered to the Valley by the District’s own works. Indeed, the version of the Project Act passed in the House contained an express acreage limitation applicable to all privately owned lands; but the Senate substituted the provisions of its own bill, which did not contain an acreage limitation expressly applicable to lands then being irrigated, and it was this version which became the Project Act despite objections in the Senate that the bill should be amended to limit water deliveries to 160 acres under single ownership. There is nothing in this chain of events to suggest that Congress intended § 14, by bringing the 1926 Act into play, to interfere with the delivery of water to those lands already under irrigation in Imperial Valley and having present perfected rights that the Secretary was bound to recognize. If anything, the inference from the legislative history is to the contrary. This is not to say that we rely strongly on legislative materials in construing the Project Act. Statements by the opponents of a bill and failure to enact suggested amendments, although they have some weight, are not the most reliable indications of congressional intention. Ernst & Ernst v. Hochfelder, 425 U. S. 185, 204, n. 24 (1976); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381-382, n. 11 (1969). But we do say that the respondents have not called our attention to anything in the hearings, Committee Reports or floor debates suggesting in any substantial way that our construction of the Project Act is in error.
There can be little question that the contemporary construction of the Project Act by the parties to the 1932 contract was that the acreage limitation did not apply to lands in the District presently being irrigated. Secretary Wilbur, in his letter of February 24, 1933, stated that early in the negotiations on the All-American Canal contract, the question was raised as to the 160-acre limitation, and the view was reached that the limitation did not apply to lands that were under cultivation and having a present water right. There is no reason to doubt that the parties went forward on this basis, especially since language in early drafts of the contract which might have indicated an acreage limitation was eliminated in thé course of the negotiations. The Imperial Valley system was a going concern at the time, and the Alamo Canal continued to supply the water to the Valley for another 10 years. It is thus a fair inference that both the Imperial Valley landowners and the United States proceeded on the assumption that the 160-acre limit was of no concern to those who were receiving water from the Alamo Cañal. This contemporaneous view of the Project Act, which supports our own construction of the legislation, was not officially repudiated by the Secretary until 1964. It is also a matter of unquestioned fact that in the ensuing years the Secretary has delivered water to the District pursuant to its contract and that the 160-acre provision of the reclamation laws has to this date never been an operative limitation with respect to lands under irrigation in 1920.
V
There remains a further consideration. The parties stipulated and the District Court found that at the outset of this litigation, the District was irrigating approximately 14,000 more acres than the 424,145 acres under irrigation in 1929. If, in light of our perfected rights holding, an Art. Ill case or controversy remains with respect to the applicability of acreage limitations to this additional 14,000 acres, there would remain to be disposed of those arguments of petitioners for reversing the Court of Appeals which we have not addressed and which, if sustained, would exempt from acreage limitations all privately owned lands in Imperial Valley, a result which the District Court seemingly embraced. The parties, however, have not separately addressed the status of this additional 14,000 acres; nor does the record invite us to deal further with this case without additional proceedings in the lower court. We do not know, for example, whether the District is still irrigating the additional 14,000 acres, whether any of the 14,000 acres consists of lands held in excess of 160 acres, or whether for some other reason of fact or law there is not now a controversy that requires further adjudication. Even if a live dispute remains, it would be helpful to have the Court of Appeals, or the District Court in the first instance if the Court of Appeals deems it advisable, adjudicate the status of the 14,000 acres, freed of any misapprehensions about the applicability of the 160-acre limitation to lands under irrigation in 1929.
Accordingly, the judgment of the Court of Appeals is reversed with respect to those lands that were irrigated on June 25, 1929, and with respect to which the District has been adjudicated to have a perfected water right as of that date. The judgment is otherwise vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
So ordered.
Under California law, an irrigation district is a public corporation governed by a board of directors, usually elected by voters in the district. It is empowered to distribute and otherwise administer water for the beneficial use of its inhabitants and to levy assessments upon the lands served for the payment of its expenses.
The parties stipulated that the value of agricultural products in the Valley, overall, increased from some $4 million in 1909 to approximately $200 million in 1965.
The Colorado River was subject to flooding. In 1905, the river broke through its banks and flooded the Alamo Canal and Imperial Valley. The California Development Co., then the major force in Imperial Valley, sought financial assistance from the Southern Pacific Co. whose tracks were threatened by the floodwaters. The railroad, taking as security a controlling interest in the California Development Co., returned the river to its channel and ultimately foreclosed on its security, transferring these interests to the District. The District acquired certain mutual water companies in 1922-1923 and has been solely responsible since that time for the diversion, transportation, and distribution of water from the Colorado River to the Imperial Valley.
Difficulties also arose because the Alamo Canal passed through Mexican territory and hence was partly subject to Mexican sovereignty. As a Senate Committee remarked, a new canal would “end an intolerable situation, under which the Imperial Valley now secures its sole water supply from a canal running for many miles through Mexico. . . .” S. Rep. No. 592, 70th Cong., 1st Sess., 8 (1928).
The provision apparently resulted from the concern of the farmers of Imperial Valley that after two decades of productive reliance on the Alamo Canal Project, their existing water rights might be impaired by the Compact aEocation. Delph Carpenter, one of the draftsmen of the Compact, testified in hearings on a precursor of the Project Act as follows:
“During the deliberations of the Colorado River Commission at Santa Fe, and after 10 days’ work, a sketch or outline of the progress was released to the press, stating what had happened and the proposed terms of a treaty. . . . The Imperial VaEey representatives were immediately responsive. They came before the Commission and presented their claims with great vigor. . , .
“In view of that claim, coming as it did from people who cultivated upward of half a million acres of very valuable land,. . . Article VIII of the compact was drawn at the last session of the proceedings.” Hearings Pursuant to S. Res. 320 before the Senate Committee on Irrigation and Reclamation, 68th Cong., 2d Sess., pt. 1, p. 678 (1925).
The genesis of the Project Act and of the Colorado River Compact is described at greater length in Arizona v. California, 373 U. S. 546, 552-562 (1963).
Coachella Valley is an area lying north of Imperial Valley across the Saltón Sea. Unlike Imperial Valley, it was not being irrigated with Colorado River water in 1929. Coachella Yalley is not involved in these cases.
Section 4 (a) also contained provisions which, together with the Secretary’s power under § 5 to contract for storage and delivery of water with particular water users and with § 8’s tying the Project Act and the Compact together, provided the basis for the Court’s holding in Arizona v. California that the Project Act itself sufficiently revealed the intent of Congress with respect to the division of the project water among the Lower Basin States.
Section 46 provides in relevant part:
“No water shall be delivered upon the completion of any new project or new division of a project until a contract or contracts in form approved by the Secretary of the Interior shall have been made with an irrigation district or irrigation districts organized under State law providing for payment by the district or districts of the cost of constructing, operating, and maintaining the works during the time they are in control of the United States, such cost of constructing to be repaid within such terms of years as the Secretary may find to be necessary, in any event not more than forty years from the date of public notice hereinafter referred to, and the execution of said contract or contracts shall have been confirmed by a decree of a court of competent jurisdiction.”
In 1942, pursuant to this provision, the District expanded its boundaries to include 271,588 acres of the unpatented public lands.
The All-American Canal system was not declared completed until 1952. By that time, pursuant to the 1932 contract, the care, operation, and maintenance of the system, with specified exceptions, had been transferred to the District, although title to the Imperial Dam and the canal remained in the United States. Repayment of construction charges commenced on March 1, 1955. The District’s financial obligation was determined to be approximately $25 million, repayable in 40 annual installments, without interest. All payments to date have been made 'from net power revenues derived from the sale of electrical energy generated by hydro-electrical facilities of the All-American Canal, facilities which cost the District approximately $15 million.
The Act of May 15, 1922, ch. 190, § 1, 42 Stat. 541, 43 U. S. C. § 511, authorized the Secretary to contract with irrigation districts but provided that no contract under the section “shall be binding on the United States until the proceedings on the part of the district for the authorization of the execution of the contract with the United States shall have been confirmed by decree of a court of competent jurisdiction, or pending appellate action if ground for appeal be laid.” The 1926 Act also required that the “execution” of the contracts referred to in the section be judicially confirmed.
In addition, the law of California specified preconditions to the effectiveness of water district contracts. Approval by the governing body was required as well as by district members voting in an election for that purpose. A district was also permitted to submit the contract to Superior Court for validation proceedings. The decree in Hewes v. All Persons, discussed in the text, concluded that California law had been satisfied in all respects.
App. 177a, 71 I. D. 496, 530 (1964). Secretary Wilbur’s letter referred specifically only to the applicability of § 5 of the Reclamation Act to the privately owned district lands. Five days later, the Assistant Commissioner and Chief Counsel of the Bureau of Reclamation, Porter W. Dent, issued a letter confirming that the Department’s interpretation likewise applied to § 46 of the 1926 Act. App. 179a, 71 I. D., at 531.
Finding of Fact No. 35 in pertinent part said that under the 1932 contract, “the delivery of water will not be limited to 160 acres in a single ownership . . . and that water service to lands regardless of the size of ownership will not be in any manner affected by said contract, so far as the size of individual ownership is concerned.” App. to Pet. for Cert, in No. 79-435, p. 144a. Conclusion of Law No. XI stated that “neither the United States nor Imperial Irrigation District is limited by the terms of said contract or by any law applicable thereto in the delivery of water to any maximum acreage of land held in a single ownership.” Id., at 149a.
As the District Court pointed out, there was no. suggestion by anyone during the construction of the All-American Canal that acreage limitations would be applicable to lands under cultivation in 1929. And based on its own “thorough review of Departmental policy,” the District Court also concluded that the Wilbur interpretation of the Project Act remained the official view of the United States “during the incumbencies of six successor Secretaries and four Presidential administrations.” 322 F. Supp. 11, 26 (SD Cal. 1971).
In 1942, in response to inquiry from the Federal Land Bank as to the applicability of the 160-acre limitation in Imperial Valley, the Commissioner of the Bureau of Reclamation replied in the negative. In 1944, Assistant Commissioner of Reclamation Wame testified before a Senate Subcommittee that “the limitation was never applied under the law to the Imperial Valley, except as a matter of new lands and went on to make the Wilbur letter part of the Subcommittee’s record. Hearings on H. R. 3961 before a Subcommittee of the Senate Committee on Commerce, 78th Cong., 2d Sess., pt. 4, pp. 599, 76L-765 (1944).
In 1945, the Solicitor of the Interior Department ruled that the 160-acre limitation was applicable to Coachella Valley. 71 I. D., at 533. In the course of the opinion, he also disagreed with the Wilbur letter with respect to Imperial Valley, but did not purport to overrule it. In 1948, Secretary Krug, in response to an inquiry from a veterans’ organization, issued a letter affirming the Department’s adherence to the Wilbur ruling. App. 253a~254a.
In 1952, after several years of negotiations, changes were effected in the 1932 contract between the District and the United States, but the Department did not insist that an acreage limitation be included or that the Wilbur position be abandoned.
In response to inquiry from the Solicitor General in 1958, the then Solicitor of the Department of the Interior reaffirmed the Department’s position with respect to the Wilbur letter. Id,, at 255a-260a. The Solicitor General, however, without the concurrence of the Department, answered the inquiry of the Special Master in Arizona v. California, suggesting that the question of acreage limitations was irrelevant to the proceedings before the Master but also indicating in a footnote his disagreement with the Wilbur letter and the Department’s position. App. 260a-263a. Also in 1958, the Solicitor General expressed the same opinion in the Ivanhoe litigation. Brief for United States as Amicus Curiae in Ivanhoe Irrig. Dist. v. McCracken, O. T. 1957, Nos. 122 et al., p. 37, n. 9. It was not until 1964 that the Secretary repudiated the Department’s prior position. 71 I. D. 496.
The District Court found that there were some 800 owners in the District owning in the aggregate approximately 233,000 acres of excess land. 322 F. Supp., at 12.
As indicated in a memorandum for the file prepared by the Solicitor General, the essence of the case for him was that an official construction of the Project Act had been made by the Department and followed for 38 years. To overturn such a longstanding administrative decision did “not strike [the Solicitor General] as good administration, or good government.” 126 Cong. Rec. 3281 (1980). He concluded that an appeal to the Court of Appeals should not be taken because it would not, and, in his view, should not be successful. His second reason was prophetic.
Excess land offered for sale pursuant to § 46 must be sold at a price fixed by the Secretary of the Interior “on the basis of its actual bona fide value at the date of appraisal without reference to the proposed construction of the irrigation works. . . .” The Secretary may “cancel the water right attaching to the land” if it is sold for a different price. Because the federal reclamation project has added substantially to the value of land in the District, excess lands would be sold at prices far below their current fair market values. Since purchasers of such land would stand to reap significant gains on resale, the absence of detailed information about respondents' financial resources does not defeat respondents’ claim of standing. Even if improvements to the land, such as installation of drainage systems, have enhanced its value, the potential windfall would remain and petitioners would possess a further incentive for offering excess lands for sale — to recoup the value of improvements — rather than withdrawing them from agricultural uses.
While the prospect of windfall profits could attract a large number of potential purchasers of the excess lands, respondents’ interest is not “shared in substantially equal measure by all or a large class of citizens,” Warth v. Seldin, 422 U. S. 490, 499 (1975), because respondents are residents of the Imperial Valley who desire to purchase the excess land for purposes of farming.
In a subsequent opinion denying rehearing, the Court of Appeals reaffirmed that respondents had standing. 595 F. 2d 525 (1979). The court rejected the argument that because the District had repaid more than one-half of the construction costs of the irrigation project the Secretary no longer had the authority to fix sale prices for excess land. Section 46 provides in pertinent part that “until one-half the construction charges against said lands shall have been fully paid no sale of any such lands shall carry the right to receive water unless and until the purchase price involved in such sale is approved by the Secretary of the Interior. . . The Court of Appeals concluded that this portion of § 46 did not apply with respect to the initial breakup of excess lands for which the Secretary must fix the sale price “on the basis of its actual bona fide value at the date of appraisal without reference to the proposed construction of the irrigation works.”
Ever since its enactment in 1902, the reclamation law has generally limited to 160 acres the amount of private land in single ownership eligible to receive water from a reclamation project. This limitation helps open project lands to settlement by farmers of modest means, insures wide distribution of the benefits of federal projects, and guards against the possibility that speculators will earn windfall profits from the increase in value of their lands resulting from the federal project. See also Ivanhoe Irrig. Dist. v. McCracken, 357 U. S. 275, 292 (1958). The excess-acreage limitation has been retained in successive statutes culminating in § 46 of the 1926 Act.
This was the Special Master’s recommended definition. We accepted it over the objection of California. In requiring actual diversion of water and its application to a defined area of land, the definition did not reach all appropriative water rights under state law. See Report of Special Master, Arizona v. California, O. T. 1960, No. 8 Orig., pp. 307-309 (hereinafter Special Master Report).
In terms of reclamation law generally, the import of the Court’s opinion in this respect was considerably narrowed in California v. United States, 438 U. S. 645 (1978), but the latter case did not question the description of the Secretary’s power under the Project Act itself.
While the source of present perfected rights is to be found in state law, the question of whether rights provided by state law amount to present perfected rights within the meaning of § 6 is obviously one of federal law. See Ivanhoe Irrig. Dist. v. McCracken, supra, at 289; California v. United States, supra, at 668-669, n. 21, 671-673, 678, n. 31.
Ivanhoe Irrig. Dist. v. All Parties and Persons, 47 Cal. 2d 597, 624-625, 306 P. 2d 824, 840 (1957), rev’d sub nom. Ivanhoe Irrig. Dist. v. McCracken, 357 U. S. 275 (1958). As beneficiaries of the trust, the landowners have a legally enforceable right, appurtenant to their lands, to continued service by the District. Erwin v. Gage Canal Co., 226 Cal. App. 2d 189, 194-195, 37 Cal. Rptr. 901, 903-904 (1964); South Pasadena v. Pasadena Land & Water Co., 152 Cal. 579, 588, 93 P. 490, 494 (1908). The District is obligated not only to continue delivery, but also to apportion water distributed for irrigation purposes ratably to each landowner in accordance with his share of the total assessments in the District. Cal. Water Code Ann. §22250 (West 1956).
In the Ivanhoe litigation, the California Supreme Court originally determined that to deny water to farms in excess of 160 acres in single ownership would contravene § 22250, and would work a denial of due process and equal protection of the laws. Following this Court’s decision that the 160-acre limitations contained in irrigation contracts for the Central Valley Project were mandated by federal reclamation law, the California Supreme Court, on remand, held that in light of this Court’s opinion, water could be denied to farms exceeding the acreage limitation without violating state law. Ivanhoe Irrig. Dist. v. All Parties and Persons, 53 Cal. 2d 692, 350 P. 2d 69 (1960). However, the court’s decision made clear that absent an overriding provision of federal law imposing an acreage limitation, state law debars an irrigation district from denying water to farms on the basis of size.
In Ivanhoe Irrig. Dist. v. McCracken, supra, at 292, the Court remarked that where a particular project has been exempted from the acreage limitation because of its peculiar circumstances, “the Congress has always made such exemption by express enactment.” As we have explained, we have little trouble in concluding that the Project Act’s provision for the satisfaction of perfected rights acquired under state law is an effective expression that the acreage limitation would be inapplicable to the lands served under such rights. As the Special Master observed in Arizona v. California, “the congressional intention was to insure that persons actually applying water to beneficial use would not have their uses disturbed by the erection of the dam and the storage of water in the reservoir.” Special Master Report 309.
Indeed, the Department of the Interior observed in 1946 that the administrative practice under § 46 had usually been “to refuse to deliver water to any lands, excess or nonexcess, until the owner of excess land has executed the recordable contract agreeing to dispose of the excess.” Department of Interior, Landownership Survey on Federal Reclamation Projects 47 (1946).
The United States urges that § 6 merely specifies priorities among those entitled to water from the Project and is irrelevant in determining entitlement itself. The argument has no merit.
The Project Act was the result of the fourth attempt by Congressman Swing and Senator Johnson of California to cause the Federal Government to move forward with such an undertaking. Their first bills were introduced in 1922, in the 67th Congress. The fourth set of bills, which were successful, were introduced in 1927, in the 70th Congress. Congressional action was completed on December 18, 1928, and the President’s signature followed on December 21 of that year.
Respondents point out that although the District was to repay the cost of the All-American Canal and the Imperial Dam, the repayment obligation carried no interest. We should not hold, it is urged, that Congress intended this permanent subsidy to large landholders. Rather, we should find that the benefits of the Project to the District justify the application of § 46 and the requirement that excess landholdings be sold. We think, however, that Congress struck the balance between public and private rights and determined to respect those rights to Colorado River water that had been put to use as of 1929. The Project Act recited its purposes as “controlling the floods, improving navigation and regulating the flow of the Colorado River, providing for storage and for the delivery of the stored waters thereof for reclamation of public lands and other beneficial uses exclusively within the United States. . . .” Section 1 of the Act, 45 Stat. 1057, 43 U. S. C. § 617. The 1932 contract between the District and the United States contained nearly identical recitals as to the purposes of the Project. It also recited that there were public lands already within the District and required that substantial additional acreages of public and private lands be included within the District. The District Court found that certain national interests were advanced by the Project:
“1) The inclusion within the District by annexation, pursuant to Article 34 of the contract between the Government and the District dated December 1, 1932, of some 250,000 acres of Government lands.
“2) Added capacity in the Canal for the servicing of such lands and some 11,000 acres of Indian land.
“3) Plood control for the purpose of preserving the Laguna Dam and protecting the Yuma Reclamation Project as well as protecting the public lands and private interests in Imperial Valley.
“4) The control of silt because of the federal government’s problem in handling silt in the Yuma Project.
“5) The need to build a canal on All-American soil to put the United States in a position to bargain with the Mexican Government over the use of the water of the Colorado River.
“6) It enabled the United States Government to reclaim and put to use large tracts of public and Indian lands of the United States in Coachella Valley.” 322 F. Supp., at 19.
The District Court concluded that Congress was aware of the water rights held in Imperial Valley and determined to exempt them from the acreage limitations “in recognition of the fact that the All-American Canal Project was not merely an arid lands reclamation project, but was a special purpose program designed for national purposes, including water negotiations with Mexico, as well as for regional agricultural development.” Id., at 22.
The Senate Report on S. 728, S. Rep. No. 592, 70th Cong., 1st Sess. (1928), stated several purposes of the Project, one of which was that it would “end an intolerable situation, under which the Imperial Valley now secures its sole water supply from a canal running for many miles through Mexico, as well as make possible the reclamation of public lands lying around the rim of the present cultivated section of the valley.” Id., at 8. The Report also stated as follows:
“The all-American canal will carry a portion of the conserved waters to where they can be used for irrigation and domestic purposes. Looked at in a somewhat narrow way, it represents a cooperative enterprise between Imperial irrigation district, which serves the present irrigated area in Imperial Valley, the Coachella County water district, a public district embracing in its limits the Coachella Valley, and the United States as owner of approximately 200,000 acres of public land about the rim of Imperial Valley, and about 11,000 acres of Indian lands now without water but possessing the same possibilities of development with water as the fertile lands in the valley. Neither Imperial irrigation district, the Coa-chella district, nor the United States could afford alone to build a canal from the river. Acting in conjunction, the canal is entirely feasible.” Id., at 21.
The House Report on H. R. 5773, H. R. Rep. No. 918, 70th Cong., 1st Sess., 6 (1928), also identified one of the purposes of the Project as ending the “intolerable situation” which existed in Imperial Valley:
“This valley now secures its sole water supply by a canal which runs for some 60 miles through Mexico. The all-American canal will furnish a substitute for this and at the same time carry the water at an elevation sufficient to make possible, at some future date, the irrigation of additional land, mostly public, lying about the rim of the cultivated area.”
The matter had been called to the Secretary’s attention by a memorandum of February 7 from Porter W. Dent, the Assistant Commissioner and General Counsel of the Bureau of Reclamation. His memorandum contained almost identical language to that in the Secretary’s later letter. Mr. Dent said:
“Early in the negotiations connected with the All-American Canal contract the question was raised regarding whether and to what extent the 160-acre limitation is applicable to lands to be irrigated from this proposed canal. So far as I am advised, all who have given this matter consideration agree that this limitation does not apply to lands now cultivated and having a present water right. The view has been, and is, I believe, that these lands having already a water right, are entitled to have such right recognized without regard to the acreage limitation mentioned.” App. 220a.
This was the case despite the fact that in 1945 in the course of concluding that the lands in Coachella Valley were subject to the acreage limitation, the Department’s Solicitor also took exception to the Wilbur view with respect to Imperial Valley. The Solicitor’s opinion, however, totally ignored the existence of present perfected rights in Imperial Valley and their absence in Coachella. His view as to Imperial Valley did not prevail, in any event, for in 1948, Secretary Krug expressly declined to depart from the Department’s consistent adherence to the Wilbur view that the Project Act did not require limiting water deliveries in Imperial Valley to 160 acres under single ownership. Furthermore, in 1952, when the District and the Department negotiated a revision of the 1932 contract in some respects, there was no effort made by the Department to insist on a limitation provision.
The Department’s repudiation of its prior position in 1964 was based on its Solicitor’s view that § 46 of the 1926 Act applied to Imperial Valley by virtue of § 14 of the Project Act and that under that section no farmer in Imperial Valley could have project water for more than 160 acres of land. Excess lands must either be sold or the District must deny water to them. The Solicitor’s opinion, however, gave only cursory attention to § 6. After stating that the proper rule of construction in cases such as he was considering was that “rights, privileges and immunities not expressly granted are reserved,” the opinion went on to conclude:
“For the same reason the requirement in section 6 for 'satisfaction of present perfected rights’ cannot be read as insulating the District lands from acreage limitation. It is not in plain terms an exemption from the limitations of reclamation law in connection with the obligation to repay the cost of Imperial Dam and the All-American Canal.” 71 I. D., at 511.
We agree with the District Court’s conclusion that this is a totally inadequate conception of perfected rights.
Petitioners contend that contrary to 28 U. S. C. § 1738, the Court of Appeals failed to give the same full faith and credit to the Hewes decision as that decision would have by law or usage in the courts of California. They urge that the United States embraced and consistently adhered to a construction of the Project Act that would exempt from acreage limitations all privately owned lands in the District, a position which the Government should not now be permitted to repudiate. They also argue that quite apart from § 6, the structure and other provisions of the Project Act negate the applicability of acreage limitations to privately owned lands in Imperial Yalley. Finally, they present a view of the legislative history of the Project Act that they claim supports the inference that Congress intended to exempt from acreage limitations any and all lands that the District might subsequently take into itself and irrigate with project water.
We note, further, that there has passed the Senate and is pending in the House a measure that would exempt lands in the District from the reach of acreage limitations in the reclamation law. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
25
] |
MOUNTAIN STATES TELEPHONE & TELEGRAPH CO. v. PUEBLO OF SANTA ANA
No. 84-262.
Argued February 20, 1985
Decided June 10, 1985
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and White, Rehnquist, and O’Connor, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Blackmun, JJ., joined, post, p. 255. Powell, J., took no part in the decision of the case.
Kathryn Marie Krause argued the cause for petitioner. With her on the briefs were William H. Allen and Russell H. Carpenter, Jr.
Scott E. Borg argued the cause for respondent. With him on the brief was Richard W. Hughes.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Lee, F. Henry Habicht II, Deputy Solicitor General Claiborne, Edwin S. Kneedler, and Robert L. Klarquist; for the State of New Mexico by Paul Bardacke, Attorney General, Charlotte TJram and Bruce Thompson, Assistant Attorneys General, and Hugh W. Parry, Special Assistant Attorney General; for the City of Escondido et al. by John R. Schell, Kent H. Foster, Paul D. Engstrand, and Donald R. Lincoln; for Atchison, Topeka and Santa Fe Railway Co. by Gus Svolos, John R. Cooney, Lynn H. Slade, and John S. Thai; and for Public Service Company of New Mexico by Robert H. Clark.
Briefs of amici curiae urging affirmance were filed for the All Indian Pueblo Council et al. by L. Lamar Parrish and Catherine Baker Stetson; for the Pueblo de Acoma by Peter C. Chestnut; and for the Pueblo of Taos by William C. Schaab.
Justice Stevens
delivered the opinion of the Court.
In 1928, Mountain States Telephone and Telegraph Company purchased an easement from the Pueblo of Santa Ana for a telephone line. Mountain States contends that the conveyance of this easement was valid under §17 of the Pueblo Lands Act of 1924, 43 Stat. 641, because it was “first approved by the Secretary of the Interior.” The Pueblo contends that §17 only authorizes such transfers “as may hereafter be provided by Congress,” and that Congress never provided legislation authorizing the conveyance of Pueblo lands with the approval of the Secretary. Both constructions find some support in the language of § 17.
I — I
Congress enacted the 1924 legislation “to provide for the final adjudication and settlement of a very complicated and difficult series of conflicting titles affecting lands claimed by the Pueblo Indians of New Mexico.” The Committee Reports review the unique and “interesting history of the Pueblo Indians” and explain why special remedial legislation was necessary.
“These Indians were found by Coronado and the first Spanish explorers in 1541, many of them residing in villages and occupying the same lands that the Pueblo Indians now occupy.” From the earliest days, the Spanish conquerors recognized the Pueblos’ rights in the lands that they still occupy, and their ownership of these lands was confirmed in land grants from the King of Spain. Later, the independent Government of Mexico extended limited civil and political rights to the Pueblo Indians, and confirmed them in the ownership of their lands.
The United States acquired the territory that is now New Mexico in 1848 under the Treaty of Guadalupe-Hidalgo. During the period between 1848 and 1910, when New Mexico became a State, inhabitants of that territory — and members of the bar who advised them — generally believed that the Pueblo Indians had the same unrestricted power to dispose of their lands as non-Indians whose title had originated in Spanish grants. This view was supported by decisions of the Supreme Court of the Territory of New Mexico, and by this Court’s square holding in United States v. Joseph, 94 U. S. 614 (1877), that the Pueblo Indians were not an “Indian tribe” protected by the Nonintercourse Act. As a result, it was thought that the Pueblo Indians could convey good title to their lands notwithstanding the Act’s prohibition of any “purchase, grant, lease, or other conveyance of lands . . . from any . . . tribe of Indians.” 4 Stat. 730, 25 U. S. C. §177.
The prevailing opinion concerning the unique status of the Pueblo Indians was drawn into question as a result of the attempt by federal authorities to regulate the liquor trade with the Pueblos. They orginally brought charges under an 1897 criminal statute prohibiting the sale of liquor to any “Indian.” Relying on Joseph, however, the Territorial Supreme Court held, in 1907, that the Pueblos were not “Indians” within the meaning of the statute. In response, the New Mexico Enabling Act of 1910 expressly required that the new State’s Constitution prohibit “the introduction of liquors into Indian country, which term shall also include all lands now owned or occupied by the Pueblo Indians of New Mexico.” In United States v. Sandoval, 231 U. S. 28 (1913), the Court noted that whatever doubts there previously were about the applicability of the Indian liquor statute to the Pueblos, “Congress, evidently wishing to make sure of a different result in the future, expressly declared” in the Enabling Act that “it should include them.” 231 U. S., at 38.
The narrow question decided in the Sandoval case was that the dependent status of the Pueblo Indians was such that Congress could expressly prohibit the introduction of intoxicating liquors into their lands under its power “To regulate Commerce . . . with the Indian Tribes.” U. S. Const., Art. I, § 8, cl. 3. In reaching that decision, however, the Court rejected the factual premises that had supported its judgment in Joseph, and suggested that “the observations there made respecting the Pueblos were evidently based upon statements in the opinion of the territorial court, then under review, which are at variance with other recognized sources of information, now available, and with the long-continued action of the legislative and executive departments.” 231 U. S., at 49. The Court’s disapproval of Joseph strongly implied that the restraints on alienation contained in the Nonintercourse Act — as well as the liquor statute — might apply to the Pueblos. As a result, the validity of all non-Indian claims to Pueblo lands was placed in serious doubt.
Relying on the rule established in Joseph, 3,000 non-Indians had acquired putative ownership of parcels of real estate located inside the boundaries of the Pueblo land grants. The Court’s decision in Sandoval cast a pall over all these titles by suggesting that the Pueblos had been wrongfully dispossessed of their lands, and that they might have the power to eject the non-Indian settlers. After conducting extensive hearings on the problem, Congress drafted and enacted the Pueblo Lands Act of 1924. The stated purpose of the Act was to “settle the complicated questions of title and to secure for the Indians all of the lands to which they are equitably entitled.” S. Rep. No. 492, 68th Cong., 1st Sess., 5 (1924).
II
Under the Act, a Public Lands Board, composed of the Secretary of the Interior, the Attorney General, and a third person to be appointed by the President of the United States, was established to determine conflicting claims to the Pueblo lands. § 2, 43 Stat. 636. The Board was instructed to issue a report setting forth the metes and bounds of the lands of each Pueblo that were found not to be extinguished under the rules established in the Act. Ibid. Continuous, open, and notorious adverse possession by non-Indian claimants, coupled with the payment of taxes from 1889 to the date of enactment in 1924, or from 1902 to 1924 if possession was under color of title, sufficed to extinguish a Pueblo’s title. §4. The Board’s reports were to be implemented by suits to quiet title in the United States District Court for the District of New Mexico. §§ 1, 3.
The Act also directed the Board to award the Pueblos compensation for the value of any rights that were extinguished if they “could have been at any time recovered for said Indians by the United States by seasonable prosecution.” §6. Settlers who had occupied their lands in good faith, but whose claims were rejected, might receive compensation for the value of any improvements they had erected on their lands, or for the full value of their lands if they had purchased those lands and entered them before 1912 under a deed purporting to convey title. §§ 7, 15.
After the Board determined who owned each parcel of land, the Act foresaw that some consolidation of each Pueblo’s land holdings might occur. The Board was directed to identify any parcels adjacent to a Pueblo settlement that should be purchased from non-Indian owners for transfer to the Pueblo. §8. In addition, §16 of the Act authorized the Secretary of the Interior, with consent of the Pueblo, to sell any lands owned by the Pueblo that were “situate among lands adjudicated or otherwise determined in favor of non-Indian claimants and apart from the main body of the Indian land.”
The foregoing provisions of the Pueblo Lands Act were all designed to settle the consequences of past transactions. In contrast, the section we must construe in this case — § 17— was entirely concerned with transactions in Pueblo lands that might occur in the future. It provides:
“No right, title, or interest in or to the lands of the Pueblo Indians of New Mexico to which their title has not been extinguished as hereinbefore determined shall hereafter be acquired or initiated by virtue of the laws of the State of New Mexico, or in any other manner except as may hereafter be provided by Congress, and no sale, grant, lease of any character, or other conveyance of lands, or any title or claim thereto, made by any pueblo as a community, or any Pueblo Indian living in a community of Pueblo Indians, in the State of New Mexico, shall be of any validity in law or in equity unless the same be first approved by the Secretary of the Interior.” 43 Stat. 641-642 (emphasis added).
The question to be decided here is whether the second clause — the language following the word “and” — indicates that a Pueblo may convey good title to its lands with the approval of the Secretary of the Interior.
I — I J-H HH
In 1905 Mountain States’ predecessor allegedly acquired a right-of-way and constructed a telephone line across land owned by the Pueblo of Santa Ana. App. 8. Presumably the 1905 conveyance would have been invalid under the Non-intercourse Act. See n. 17, swpra. In all events, in 1927 the United States, acting as guardian for the Pueblo of Santa Ana, brought an action in the United States District Court for the District of New Mexico to quiet title to the lands of that Pueblo.
While the litigation was pending, the Pueblo entered into a right-of-way agreement with Mountain States granting it an easement “to construct, maintain and operate a telephone and telegraph pole line” on the land now in dispute. App. 39. The agreement was forwarded to the Secretary of the Interior by the Bureau of Indian Affairs with the recommendation that it be approved under § 17. Id., at 181-183. This agreement was approved, and the approval was received, and endorsed on the right-of-way agreement. Id., at 43. On the Government’s motion, id., at 36, the District Court thereafter dismissed Mountain States from the quiet title action on the ground that it had “secured good and sufficient title to the right of way and premises in controversy ... in accordance with the provisions of Section 17 of the Pueblo Lands Act.”
Mountain States removed the telephone line in 1980. On October 10 of that year, the Pueblo brought this action claiming trespass damages for the period prior to the removal of the line. The District Court granted partial summary judgment for the Pueblo on the issue of liability, holding that the grant of the right-of-way in 1928 was not authorized by § 17. Id., at 86-92.
The Court of Appeals allowed an interlocutory appeal under 28 U. S. C. § 1292(b) and affirmed. 734 F. 2d. 1402 (CA10 1984). The court held that Pueblo lands were protected by the Nonintercourse Act prior to 1924 and that § 17 of the Pueblo Lands Act did not authorize any conveyance of such lands. It reasoned:
“The two clauses of § 17 of the Pueblo Lands Act are joined by the conjunctive ‘and.’ To us that means exactly what it says. No alienation of the Pueblo lands shall be made ‘except as may hereafter be provided by Congress’ and no such conveyance ‘shall be of any validity in law or in equity unless the same be first approved by the Secretary of the Interior.’ Two things are required. First, the lands must be conveyed in a manner provided by Congress. Second, the Secretary of the Interior must approve. As to the first, at the time of the agreement between the Pueblo and [Mountain States], Congress had provided nothing. Hence, the first condition was not met. The fact that Congress had provided no method makes the approval of the Secretary meaningless. The operation of the second clause depends on compliance with the first clause.” Id., at 1406.
The Court of Appeals considered and rejected Mountain States’ reliance on the legislative history of the 1924 Act and its construction by the Secretary of the Interior.
Our concern that the Court of Appeals’ interpretation of the Act might have a significant effect on other titles acquired pursuant to § 17 led us to grant certiorari. 469 U. S. 879 (1984). We now reverse.
HH <
The word “hereafter” in the first clause of § 17 supports the Court of Appeals’ interpretation of the Act. Read literally, the statute seems to state unequivocally that no interest in Pueblo lands can be acquired “except as may hereafter be provided by Congress” — or, stated somewhat differently, until Congress enacts yet another statute concerning the lands of the Pueblo Indians of New Mexico.
The problem with this construction of the statute is that the requirement of the Secretary’s approval in the second clause of § 17 would be a nullity until Congress acts. Even if a later Congress did enact another statute authorizing the alienation of Pueblo lands, that Congress would be entirely free to accept or reject that requirement. Neither the Pueblo nor the Court of Appeals has offered any plausible reason for attributing this futile design to the 68th Congress. In light of “the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative,” Colautti v. Franklin, 439 U. S. 379, 392 (1979), the second clause of § 17 cannot be read as limiting the power of Congress to legislate in the “hereafter.”
The Court of Appeals’ literal interpretation of the first clause of § 17 would also nullify the effect of § 16. See n. 18, supra. The design of the Pueblo Lands Act indicates that Congress thought some consolidation of Pueblo land holdings might be desirable in connection with the claims settlement program to be promptly implemented by the Pueblo Lands Board. See supra, at 245-246. To this end, § 16 purports to authorize conveyances of Pueblo lands with the consent of the governing authorities of the Pueblo and the approval of the Secretary of the Interior. If the Court of Appeals’ literal construction of § 17 were accepted, the consolidation of properties foreseen by § 16 could have been implemented only as Congress might thereafter provide. It is inconceivable that Congress would have inserted § 16 in the comprehensive settlement scheme provided in the Act if it did not expect it to be effective forthwith.
Finally, the practical effect of the Court of Appeals’ interpretation is to apply the requirements of the Nonintercourse Act to voluntary transfers of Pueblo lands. In 1924, Congress logically could have adopted any of three approaches to voluntary transfers. It could have left the matter to be decided by the courts; applied the rule of the Nonintercourse Act; or adopted a new rule of law. A review of the structure of the statute convinces us that Congress followed the last course.
In arguing that § 17 simply extended the provisions of the Nonintercourse Act to the Pueblos, the Pueblo relies on language in the first clause of the section. However, it is the second — not the first — clause of § 17 that closely resembles the language and structure of the Nonintercourse Act:
Section 17:
“[N]o sale, grant, lease of any character, or other conveyance of lands, or any title or claim thereto, made by any pueblo as a community, or any Pueblo Indian living in a community of Pueblo Indians, in the State of New Mexico, shall be of any validity in law or in equity unless the same be first approved by the Secretary of the Interior.” Nonintercourse Act:
“[N]o purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.”
The language is slightly — but significantly — altered to provide for approval by the Secretary of the Interior instead of ratification by Congress.
In any case, if Congress had intended to apply the Nonin-tercourse Act to these lands, it is difficult to understand why it did not say so in simple language. When Congress considered it appropriate in the Act to extend generally applicable Indian statutes to the Pueblos it did so with concise language directed to that end. Indeed, in view of subsequent events, Congress might have achieved that result simply by omitting § 17 from the Act and leaving the matter to the courts. See n. 17, supra. In our view, it is much more likely that Congress intended to authorize a different procedure for Pueblo lands in view of their unique history — a history that is discussed at some length in the Committee Reports.
V
There is another reading of the statute that better harmonizes the two clauses of § 17 with the structure of the entire Act and with “its contemporary legal context.” After the Joseph decision, it was generally assumed that questions of title to Pueblo lands were to be answered by reference to New Mexico law, rather than to federal law. In 1924, Congress was legislating without the benefit of a clear holding from this Court that the Pueblos had been completely assimilated to the status of Indian tribes whose land titles were protected by federal law. Sandoval had established that the Indian liquor law applied to the Tribe, and had strongly implied that the Nonintercourse Act would also apply; but Congress surely wanted to make clear that state law, for the future, was entirely pre-empted in this area, and that Congress had assumed complete jurisdiction over these lands. The first clause of §17 is fairly read as a flat prohibition against reliance on New Mexico law in connection with future transactions involving Pueblo lands. After 1924, alienation of those lands, voluntary or involuntary, was only to occur if sanctioned by federal law.
While the first clause of § 17 refers generally to the acquisition of any “right, title, or interest in . . . lands of the Pueblo Indians,” the second clause refers to any “sale, grant, lease ... or other conveyance of lands.” This language plainly refers to transfers of land freely made by a Pueblo. The second clause of § 17 is logically interpreted as providing a firm command, as a matter of federal law, that no future conveyance should be valid without the approval of the Secretary of the Interior. The language suggests that Congress assumed that the Secretary of the Interior could adequately protect the interests of the Pueblos in connection with future land transactions. This construction is supported by the language of § 16 allowing for the consolidation of Pueblo lands with the consent of the Pueblo and if “the Secretary of the Interior deems it to be for the best interest of the Indians.”
This interpretation of §17 gives both clauses a meaning that is consistent with the remainder of the statute and with the historical situation of the Pueblos. It is consistent with the limited legislative history available, and is supported by the contemporaneous opinion of the Secretary of the Interior and the Federal District Judge who placed a stamp of approval on this transaction and numerous others in the years following the enactment of the Pueblo Lands Act in 1924. The uniform contemporaneous view of the Executive Officer responsible for administering the statute and the District Court with exclusive jurisdiction over the quiet title actions brought under the Pueblo Lands Act “is entitled to very great respect.” These individuals were far more likely to have had an understanding of the actual intent of Congress than judges who must consider the legal implications of the transaction over half a century after it occurred.
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice Powell took no part in the decision of this case.
43 Stat. 641. See infra, at 246, for the complete text of § 17.
S. Rep. No. 492, 68th Cong., 1st Sess., 3 (1924).
Ibid. The House Report incorporates the Senate Report in verbatim text. H. R. Rep. No. 787, 68th Cong., 1st Sess. (1924).
S. Rep. No. 492, at 3.
The 1924 Act affected “20 Pueblos . . . with a total Indian population of between 6,500 and 8,000. Each Pueblo consists of about 17,000 acres of land within its exterior boundaries, or a total of 340,000 acres in all.” Ibid.
Treaty of Peace, Friendship, Limits, and Settlement between the United States of America and the Mexican Republic, 9 Stat. 922.
United States v. Lucero, 1 N. M. 422 (1869); Pueblo of Nambe v. Romero, 10 N. M. 58, 61 P. 122 (1900); cf. United States v. Mares, 14 N. M. 1, 88 P. 1128 (1907).
In concluding that the Pueblos were excluded from the coverage of the Nonintercourse Act, the Court primarily relied upon its understanding of Pueblo culture:
“ ‘For centuries . . . the pueblo Indians have lived in villages, in fixed communities, each having its own municipal or local government. . . . [T]hey are a peaceable, industrious, intelligent, honest, and virtuous people. They are Indians only in feature, complexion, and a few of their habits; in all other respects superior to all but a few of the civilized Indian tribes of the country, and the equal of the most civilized thereof. . . .’
“. . . When it became necessary to extend the laws regulating intercourse with the Indians over our new acquisitions from Mexico, there was ample room for the exercise of those laws among the nomadic Apaches, Comanches, Navajoes, and other tribes whose incapacity for self-government required both for themselves and for the citizens of the country this guardian care of the general government.
“The pueblo Indians, if, indeed, they can be called Indians, had nothing in common with this class. The degree of civilization which they had attained centuries before, their willing submission to the laws of the Mexican government. . . and their absorption into the general mass of the population ... all forbid the idea that they should be classed with the Indian tribes for whom the intercourse acts were made . . . .” United States v. Joseph, 94 U. S., at 616-617 (quoting United States v. Lucero, 1 N. M., at 453).
The current version of the Nonintercourse Act was enacted as § 12 of the Trade and Intercourse Act of 1834:
“[N]o purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.” 4 Stat. 730, 25 U. S. C. § 177.
Section 12 of the 1834 Act is the last in a series of enactments beginning with § 4 of the Indian Trade and Nonintercourse Act of 1790. 1 Stat. 138. See County of Oneida v. Oneida Indian Nation of New York, 470 U. S. 226, 231-232 (1985). In 1851, Congress extended the provisions of “the laws now in force regulating trade and intercourse with the Indian tribes” to “the Indian tribes in the Territor[y] of New Mexico.” 9 Stat. 587.
29 Stat. 506.
United States v. Mares, 14 N. M., at 4, 88 P., at 1129.
36 Stat. 558.
“[B]y an uniform course of action beginning as early as 1854 and continued up to the present time, the legislative and executive branches of the Government have regarded and treated the Pueblos of New Mexico as dependent communities entitled to its aid and protection, like other Indian tribes, and, considering their Indian lineage, isolated and communal life, primitive customs and limited civilization, this assertion of guardianship over them cannot be said to be arbitrary but must be regarded as both authorized and controlling.” 231 U. S., at 47.
“These hearings disclosed that there are now approximately 3,000 claimants to lands within the exterior boundaries of the Pueblo grants. The non-Indian claimants with their families comprise about 12,000 persons. With few exceptions, the non-Indian claims range from a town lot of 25 feet front to a few acres in extent. It was stated, however, in the hearings by all parties that probably 80 percent of the claims are not resisted by the Indians and only about 20 percent pf the number will be contested.” S. Rep. No. 492, at 5.
“The fact that the United States may... at any time in the future take steps to oust persons in possession of lands within these Pueblo grants, and the continuing uncertainty as to title, has cast a cloud on all lands held by white people within the Pueblo areas. . . . The mortgage value of the lands is almost nothing; [and] sales, leases, and transfers have been discontinued . . . Hearings on S. 3865 and S. 4223 before the Subcommittee Considering Bills Relative to the Pueblo Indian Lands of the Senate Committee on Public Lands and Surveys, 67th Cong., 4th Sess., 51 (1923) (Senate Hearings) (report submitted with the testimony of R. E. Twitchell, Special Assistant to the Attorney General).
Ibid.; Hearings on H. R. 13452 and H. R. 13674 before the House Committee on Indian Affairs, 67th Cong., 4th Sess. (1923).
The Act itself did not purport to resolve the question whether the Non-intercourse Act applied to the Pueblos; § 4 provided that the statutes of limitations in that section were “in addition to any other legal or equitable defenses which [the claimants] may have or have had under the laws of the Territory and State of New Mexico.” 43 Stat. 637. In November 1924 the Government docketed an appeal in this Court arguing that the Pueblos had always been wards of the United States, and that adverse judgments entered in 1910 and 1916 in quiet title actions brought by the Pueblo of Laguna could not bar a later quiet title action brought by the United States on the Pueblo’s behalf concerning the same parcel of real estate. The Government filed a motion to expedite consideration of the case, informing the Court of the enactment of the Pueblo Lands Act, and noting that “[t]he Chairman [of the Pueblo Lands Board] has informed the Attorney General that an early determination of this ease will be helpful to the Board in the discharge of its duties and functions under this Act.” Motion to Advance of United States, O. T. 1925, No. 208, p. 2. In holding that the quiet title action was not barred, the Court expressly observed that the Pueblos were “Indian tribes” within the meaning of the Nonintercourse Act. United States v. Candelaria, 271 U. S. 432, 441-442 (1926). The practical result was that non-Indian claimants to Pueblo lands could only raise the defenses set out in §4. Unlike Candelaria, the present controversy involves a transaction that occurred after the passage of the Pueblo Lands Act and which is therefore governed by § 17.
The complete text of § 16 provides:
“That if any land adjudged by the court or said lands board against any claimant be situate among lands adjudicated or otherwise determined in favor of non-Indian claimants and apart from the main body of the Indian land, and the Secretary of the Interior deems it to be for the best interest of the Indians that such parcels so adjudged against the non-Indian claimant be sold, he may, with the consent of the governing authorities of the pueblo, order the sale thereof, under such regulations as he may make, to the highest bidder for cash; and if the buyer thereof be other than the losing claimant, the purchase price shall be used in paying to such losing claimant the adjudicated value of the improvements aforesaid, if found under the provisions of section 15 hereof, and the balance thereof, if any, shall be paid over to the proper officer, or officers, of the Indian community, but if the buyer be the losing claimant, and the value of his improvements has been adjudicated as aforesaid, such buyer shall be entitled to have credit upon his bid for the value of such improvements so adjudicated.”
The consideration paid for the easement was $101.60 or 80 cents a pole for 127 poles. App. 181.
The Government’s motion read in part:
“[Subsequent to the institution of this suit [Mountain States] has obtained a deed from the Pueblo of Santa Ana approved April 13,1928, by the Secretary of the Interior in accordance with Section 17 of the Pueblo Lands Act of June 7, 1924, and . . . thereby [Mountain States] has obtained, for an adequate consideration, good and sufficient title to the right of way in controversy herein between [the Pueblo] and [Mountain States].” Id,., at 36.
Id,., at 37. Mountain States has argued that the 1928 dismissal precludes the Pueblo from challenging the validity of the 1928 right-of-way agreement. Brief for Petitioner 39-47. The Court of Appeals held that the dismissal of the quiet title action in 1928 was not a ruling on the merits that would bar this action. 734 F. 2d 1402, 1407-1408 (CA10 1984). In view of our disposition of the case, however, we do not evaluate the merits of this contention.
Congress did pass Acts in 1926, 44 Stat. 498 and 1928, 45 Stat. 442, authorizing the condemnation of rights-of-way over Pueblo lands, but these Acts were enacted in response to Pueblos that refused to make voluntary conveyances of easements to utilities and common carriers. See H. R. Rep. No. 955, 69th Cong., 1st Sess., 2 (1926). Thus, the 1926 and 1928 Acts were designed to supplement the authority provided in the second clause of § 17, not replace it.
For example, § 4 of the Act recognized that a Pueblo might bring its own action to quiet title “Provided, however, That any contract entered into with any attorney or attorneys by the Pueblo Indians of New Mexico, to carry on such litigation shall be subject to and in accordance with existing laws of the United States.” 43 Stat. 637; S. Rep. No. 492, at 7.
Francis Wilson, a representative for the Pueblos, apparently originated the first draft of § 17. In a letter to the Commissioner of Indian Affairs he explained that “Section 17 of the Bill is, we think the shortest way to prevent present conditions from recurring or existing again. . . . This section is intended to cover the same ground as [the Nonintercourse Act] but it is changed so as to accord with the conditions of the Pueblo Indians.” App. to Brief in Opposition 12.
See Cannon v. University of Chicago, 441 U. S. 677, 699 (1979).
The Pueblo argues that the specific authority conferred by § 16 would be superfluous if § 17 is interpreted as generally authorizing conveyances with the approval of the Secretary. Provisions similar to § 16, however, were contained in early versions of the bill that did not contain § 17, see S. Rep. No. 1175, 67th Cong., 4th Sess., 5 (1923); H. R. Rep. No. 1730, 67th Cong., 4th Sess., 3, 7 (1923), and it was probably considered to be an isolated element in the comprehensive claims settlement procedure established by the Act, rather than a provision of general applicability like § 17. Section 16 was also no doubt designed to encourage the Secretary to take the initiative in urging the Pueblos to consolidate their land holdings after the Board’s work was completed.
The word “hereafter” in the first clause of § 17 remains a puzzle even under this interpretation. It may be that Congress inadvertently used the word “hereafter” when it intended to say “herein” or “hereinafter”; or perhaps when the word “hereafter” was included in the bill, the subsequent date of enactment might have been regarded as part of the “hereafter.” In any case, this ambiguity in the first clause of § 17 does not alter the clarity of the rule of law established in the second.
During the Senate Hearings the Chairman of the Subcommittee considering the bills on the Pueblo lands problem referred to the desirability of authorizing the Pueblos to convey their lands with the approval of the Secretary:
“Senator Lenroot. Have we not general legislation that provides for the alienation of Indian lands with the consent of the Secretary of the Interior?
“Commissioner Burke. Certainly, as to all Indians, except the Pueblos.
“Senator Lenroot. They are not included in the statute?
“Commissioner Burke. No; and no tribal lands can be alienated except by act of Congress. This land is not allotted.
“Mr. Wilson [representing Pueblos]. There is special legislation covering [the Five Civilized Tribes], and in the Sandoval case the court, in speaking of the tenure to lands of the Pueblo tenants, compared them directly with the tenure of the Five Civilized Tribes. That is patented land, but there was a parallel drawn in the mind of the court, which intended to convey the idea that the Pueblo lands could be handled in precisely the same way as the land of the Five Civilized Tribes.
“Senator Lenroot. I should like to have you consider whether it might not [be] advisable to provide that these lands may be sold or alienated with the consent of both the Pueblo and the Secretary of the Interior.
“Mr. Wilson. That is probably going to be quite desirable under some conditions. In fact we have at different times rather encouraged the idea that if they could make swaps and transfers they could get their lands into much better condition. In fact that was the policy at one time that we had with reference to it.
“Senator Lenroot. Mr Commissioner, would there be any objection to that on the part of the Government.
“Commissioner Burke. I do not think so. I think there should be authority so that where it was in the interest of the Indians, they might convey, but I would have it under strict supervision of the Department.” Senate Hearings, at 155.
Sections 16 and 17, authorizing conveyances of Pueblo lands with the approval of the Secretary of the Interior, appeared in later versions of the bill. See also n. 24, supra.
In 1926, a Special Assistant to the Attorney General offered the same construction of the second clause of § 17 that we adopt today. See App. to Brief for Petitioner 3a-4a. As a result of this construction, the Secretary approved at least 8 other conveyances involving the Pueblo of Santa Ana, between 1926 and 1958, App. 112-115,129-180, and more than 50 involving other Pueblos. Many of the early transactions also involved dismissals from quiet title actions brought by the United States under the Pueblo Lands Act. See Brief for United States as Amicus Curiae 23; supra, at 247-248.
§§ 1, 3, 43 Stat. 636.
Edwards’ Lessee v. Darby, 12 Wheat. 206, 210 (1827). See also Zenith Radio Corp. v. United States, 437 U. S. 443, 450-451 (1978); Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 315 (1933). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
25
] |
FEIN v. SELECTIVE SERVICE SYSTEM LOCAL BOARD NO. 7 OF YONKERS, NEW YORK, et al.
No. 70-58.
Argued October 12, 1971
Decided March 21, 1972
BlackmüN, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNAN and White, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 381. Marshall, J., filed a dissenting opinion, in which Stewart, J.,, joined, post, p. 387. Powell and RehNQUist, JJ., took no part in the consideration or decision of the case.
Michael B. Standard argued the cause for petitioner. With him on the briefs was David Rosenberg.
Solicitor General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Gray, Morton Hollander, and Robert E. Kopp.
Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Me. Justice Blackmun
delivered the opinion of the Court.
Petitioner Oliver T. Fein is a doctor of medicine. In February 1969 he filed this pre-induction suit in the United States District Court for the Southern District of New York. Jurisdiction was asserted under the federal-question statute, 28 U. S. C. § 1331, under the civil rights statute, 28 U. S. C. § 1343, and under the federal-officer statute, 28 U. S. C. § 1361. Fein challenged, on due process grounds, the constitutionality of his Selective Service appeal procedures and sought declaratory and injunctive relief that would prevent his induction into military service. The defendants are Fein’s local board at Yonkers, New York, the Appeal Board for the Southern District, the State Selective Service Director, and the National Appeal Board.
In an unreported memorandum decision, the District Court dismissed the complaint for want of jurisdiction. A divided panel of the Second Circuit affirmed. 430 F. 2d 376 (1970). Certiorari was granted, 401 U. S. 953 (1971), so that this Court might consider the important question whether § 10 (b) (3) of the Military Selective Service Act of 1967, 50 U. S. C. App. § 460 (b) (3), permits this pre-induction challenge to Selective Service appeal procedures.
I
Fein, born May 5, 1940, registered with his Yonkers local board at age 18. He was assigned a II-S student deferment during his undergraduate years at Swarth-more College and, subsequently, during the period of his attendance at Case-Western Reserve University School of Medicine. Upon graduation from medical school, Fein was assigned a II-A occupational deferment because of his internship at Cleveland Metropolitan General Hospital.
In September 1967, while still an intern, Fein wrote his local board “to declare myself a conscientious objector to war and the institution which propagates war, the military.” He requested and received SSS Form 150 for conscientious objectors. He promptly completed and returned the form to the local board.
In the form Fein stated: He believes in a Supreme Being. The beliefs from which his conscientious objection springs include the concepts that “human beings are primarily 'good,’ ” that this goodness “can only be realized, if human beings are allowed to fulfill their potential,” and that “all human beings are fundamentally equal, in terms of their value as human beings.” War violates “this essential being in all men . . . .” It “fosters irresponsibility for inhuman and cruel acts.” It “demands a style of fife, which is violent and hierarchical. It curbs and extinguishes rather than expands man’s potential.” The “substance of my beliefs stems from this common foundation of all religions. Thus my beliefs are not merely a personal moral code, but are ideals which emanate from centuries of religious tradition.” He attributes the shaping of his beliefs to four principal sources: his parents, the church he formerly belonged to (a Lutheran body), the civil rights movement, and medicine. He believes “in the power and values of moral and ethical force,” but rejects “violent force” except perhaps in defense of self or of a loved one. His ideals were not articulated by age 18, but he began to formulate them at Swarthmore. Then followed a trip to the South; his break with his church ; a summer in Germany where he learned of “biased American journalism about Cuba”; his helping organize a trip by students to Cuba; his interest in SNCC; his work in the slums of San Francisco; his settling in Cleveland’s “Negro ghetto” during his first year at medical school; his then “full commitment to non-violence”; his contact with Students for a Democratic Society, which provided “a framework for working out my ideals about justice and equality”; and his “commitment to cooperative living and the poor community [which] stands as a mature expression of my beliefs.”
Upon receiving Fein’s Form 150 and letters supportive of his claim, the local board invited him to appear personally before it. He did so on November 15, 1967. After the interview the board denied him a 1-0 classification “at this time.” Inasmuch as Fein then held his II-A classification, this action by the board was consistent with Selective Service Regulation 32 CFR § 1623.2 providing that a registrant be placed in the lowest class for which he is eligible.
In February 1968, however, Fein was reclassified I-A. He immediately asked for another personal appearance before the board. The request was granted and he appeared on May 27. The board then classified him as 1-0 and thus gave him his desired conscientious objector classification.
On June 4 the State Director, pursuant to 32 CFR § 1626.1, wrote the appeal board requesting an appeal and stating, “It is our opinion that the registrant would not qualify for a. 1-0 classification as a conscientious objector.” Notice of this was given Dr. Fein by mail. Fein then wrote seeking “a statement indicating the basis for the State Director’s appeal” and an opportunity to reply. No explanation was forthcoming.
The local board forwarded the file to the appeal board. Accompanying the file was a so-called “brief.” This, as petitioner has conceded, was merely a summary of the file prepared by a lay employee of the board. The appeal board, by a unanimous 4-0 vote on June 20, classified Dr. Fein I-A and thus rejected his claim to conscientious objector status. The board stated no reasons for its decision. Fein was notified of his reclassification.
Under 32 CFR § 1627.3 a registrant was not entitled to take an appeal to the presidential, or national, appeal board from an adverse classification by the state appeal board made by a unanimous vote. Fein was in this position. Accordingly, he wrote the National Director of Selective Service in July and asked that the Director appeal on his behalf under 32 CFR § 1627.1 (a). Fein’s letter to the Director was detailed. It emphasized his above-stated beliefs and the way of life to which those beliefs had guided him. “It should be clear, that I am willing to serve my country, but only in activities consistent with my conscience.” Fein outlined the administrative proceedings and listed five claimed inequities: (1) the appeal board’s rejection, upon the appeal by the State Director, of the local board’s classification; (2) the failure of the Director to state the basis for his challenge; (3) the absence of an opportunity to submit supplemental information before the file was forwarded; (4) the absence of an opportunity to rebut the State Director’s decision to take an appeal; and (5) the absence of an opportunity for a personal appearance before the appeal board.
On July 31 Fein was ordered to report for induction September 6.
The National Director, however, complied with Fein’s request and noted an appeal. Fein’s outstanding induction order was canceled. He again asked the State Director for a statement of reasons. He was now advised that in the State Director’s opinion he did not qualify for a Class 1-0 deferment and that the decision to appeal “was based upon the information contained in [his] selective service file.”
On November 26, 1968, the national board, by a vote of 3-0, classified Dr. Fein I-A. No reason for this action was stated.
No new order that Fein report for induction has been issued.
Fein then instituted this suit. The complaint alleged that the statute and regulations governing Fein’s classification and appeal violated the Due Process Clause of the Fifth Amendment in that they did not provide for a statement of reasons to the registrant for the State Director’s decision to appeal, or for the appeal board’s subsequent decision denying Fein a 1-0 classification. It also alleged that the defendants acted unconstitutionally by failing to provide Fein with the statements of reasons, by failing to permit him to submit additional material for consideration by the appeal boards, and by refusing him an opportunity to rebut the State Director’s decision to appeal.
The District Court did not reach the merits of the constitutional claims. While expressing concern about Fein’s ability to establish jurisdiction, the court assumed, arguendo, that he had done so, but then concluded that the suit was barred by § 10 (b)(3).
The Second Circuit affirmed, 430 F. 2d, at 377-380, relying, as did the District Court, upon Oestereich v. Selective Service Board, 393 U. S. 233 (1968); Clark v. Gabriel, 393 U. S. 256 (1968); and Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), aff’d, 393 U. S. 316 (1969). One judge, in separate concurrence, 430 F. 2d, at 380, also thought that Fein had failed to establish the jurisdictional amount required under 28 U. S. C. § 1331. The third judge, citing the same cases as did the majority, dissented on the statutory issue; on the merits he would have ruled in Fein’s favor. 430 F. 2d, at 380-388.
II
The case pivots, of course, upon the meaning and reach of § 10 (b)(3), and this Court’s decisions in Oestereich, Gabriel, and Boyd, all supra, and in Breen v. Selective Service Board, 396 U. S. 460 (1970).
Section 10 (b) (3) states flatly that a classification decision of the local board “shall be final, except where an appeal is authorized . . .” and that the classification decision on appeal also “shall be final. . . .” It further provides, “No judicial review shall be made of the classification or processing of any registrant ... except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction . . . .” Even then, the review “shall go to the question of the jurisdiction . . . only when there is no basis in fact for the classification
The finality language appeared in conscription statutes prior to the 1967 Act. See Selective Draft Act of May 18, 1917, §4, 40 Stat. 80; Selective Training and Service Act of 1940, § 10 (a)(2), 54 Stat. 893; and Selective Service Act of 1948, §10 (b)(3), 62 Stat. 619. The Court construed this finality language, however, as indicating a congressional intent to restrict only the scope of judicial review and not to deprive the registrant of all access to the courts. See, for example, Estep v. United States, 327 U. S. 114 (1946), and McKart v. United States, 395 U. S. 185 (1969). But judicial relief was confined to the “no basis in fact” situation. Estep, supra, at 122-123; McKart, supra, at 196.
The “except” clause and the “no basis in fact” language came into § 10 (b) (3) with the- 1967 statute by way of prompt congressional reaction provoked by the Second Circuit’s decision in Wolff v. Selective Service Local Bd., 372 F. 2d 817 (1967). See H. R. Rep. No. 267, 90th Cong., 1st Sess., 30-31; 113 Cong. Rec. 15426.
Section 10 (b)(3), as so amended, was promptly challenged. In Oestereich the Court refrained from striking down the statute on constitutional grounds. It held, however, that pre-induction judicial review was available to that petitioner who, as a divinity student, claimed his local board had wrongfully denied him a statutory exemption from military service. To rule otherwise “is to construe the Act with unnecessary harshness.” And, “No one, we believe, suggests that § 10 (b) (3) can sustain a literal reading.” This construction, it was said, leaves the section “unimpaired in the normal operations of the Act.” 393 U. S., at 238. See Gutknecht v. United States, 396 U. S. 295, 303 (1970), where reference was made to the “unusual circumstances” of Oestereich.
In the companion Gabriel case, on the other hand, the registrant was asserting a conscientious objector claim. The Court said:
“Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the Board’s statutory authority to take action which appellee challenges, and that action inescapably involves a determination of fact and an exercise of judgment. . . . To allow pre-induction judicial review of such determinations would be to permit precisely the kind of ‘litigious interruptions of procedures to provide necessary military manpower' (113 Cong. Rec. 15426 (report by Senator Russell on Conference Committee action)) which Congress sought to prevent when it enacted § 10 (b)(3).” 393 U. S., at 258-259.
The constitutionality of the statute again was upheld. Id., at 259. Mr. Justice Douglas, separately concurring, noted hypothetical fact situations as to which he might take a different view and then observed:
“But in my view it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service Bd., [393 U. S. 233], to warrant pre-induction review of its actions.” 393 U. S., at 260.
Oestereich was complemented by Breen a year later with respect to a registrant statutorily entitled to a deferment rather than to an exemption. See also Kolden v. Selective Service Board, 397 U. S. 47 (1970).
Finally, pre-induction review was denied under § 10 (b)(3) in Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), a decision affirmed here, 393 U. S. 316 (1969), with only a single reference to Gabriel, decided just four weeks before. In Boyd, four registrants, each classified I-A, challenged student deferment on the ground that it discriminated against those financially unable to attend college. They did not otherwise contest their own I-A classifications.
Thus Oestereich, Gabriel, Breen, and Boyd together establish the principles (a) that § 10 (b) (3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or deferment, deprives the registrant of the classification to which, otherwise and concededly, he is entitled by statute, and (b) that § 10 (b) (3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant. In the latter case the registrant’s judicial review is confined — and constitutionally so — to the situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus. By these cases the Court accommodated constitutional commands with the several provisions of the Military Selective Service Act and the expressed congressional intent to prevent litigious interruption of the Selective Service process.
Ill
These principles do not automatically decide Fein’s case. The doctor, unlike Oestereich and unlike Breen, cannot and does not claim a statutory exemption or a statutory deferment on the basis of objectively established and conceded status. On the other hand, while Gabriel focuses on the administrative and discretionary process, it does not necessarily foreclose Fein’s claim. This is so because Fein challenges the constitutionality of the very administrative procedures by which, he claims, the presentation of his case was adversely affected.
This was the aspect of the Oestereich and Breen decisions that concerned Mr. Justice Harlan. 393 U. S., at 239; 396 U. S., at 468-469. He would have allowed pre-induction judicial review of a procedural challenge on constitutional grounds if it presented no “opportunity for protracted delay” in the system’s operations, and if the issue was beyond the competence of the board to hear and determine. This view, however, commanded the vote of no other member of the Court.
We again conclude that the line drawn by the Court between Oestereich and Breen, on the one hand, and Gabriel and, inferentially, Boyd, on the other, is the appropriate place at which, in the face of the bar of § 10 (b)(3), to distinguish between availability and unavailability of pre-induction review. We therefore adhere to the principles established by those cases.
We further conclude that, as measured against the facts of Fein’s case, it is Gabriel, and not Oestereich and Breen, that is controlling. Unlike the registrants in Oestereich and Breen, Fein’s claimed status is not one that was factually conceded and thus was assured by the statute upon objective criteria. His administrative classification action was, in contrast, a product of the “process” and the “system of classification,” as the petitioner stressed at oral argument. It turned “on the weight and credibility of the testimony,” as Mr. Justice Douglas noted in his concurrence in Gabriel, 393 U. S., at 259. And it was “dependent upon an act of judgment by the Board.” Gabriel, 393 U. S., at 258.
The case strikes us, as did Gabriel, as representative of a category that, if allowed pre-induction review, would tend to promote the “litigious interruptions of procedures to provide necessary military manpower” that Congress intended to prevent. 113 Cong. Rec. 15426. The conscientious objector claim is one ideally fit for administrative determination.
We are not persuaded, as has been suggested, that the local board’s grant of the 1-0 classification equates with the conceded exemption and deferment involved in Oestereich and Breen. Objective certainty of status is lacking; in addition, the respective rulings of the two appeal boards were themselves based on an evaluation of the same file and yet were opposite to that of the local board. It is true that in Oestereick and Breen a result favorable to the registrant was also reversed, but there the change came about only by the board’s consideration of extraneous circumstances apart from the merits of the underlying claims.
Finally, we find no merit in the petitioner’s argument, apparently asserted for the first time in this Court, that a local board’s determination, on a conscientious objector claim, favorable to the registrant is not amenable to the appeal procedures prescribed by the Act. Section 10 (b) (3), by its terms, makes a board’s decision final subject to appeal and we see no confinement of that right of appeal to the registrant alone so as to nullify the regulations’ express grant of appellate power to the State Director as well as to the registrant. The statute, furthermore, is specific as to the President’s right to review.
The conclusion we have reached makes it unnecessary to consider in any detail the propositions, urged by the respondents, that the petitioner has not demonstrated the presence of the jurisdictional amount required under 28 U. S. C. § 1331, and that his arguments are premature because he is presently not the subject of an outstanding induction order.
IV
All this does not mean, however, that this decision assures Dr. Fein’s immediate induction into military service. Events since the inception and trial of the case indicate otherwise:
A. The 1971 Statute. By Pub. L. 92-129, § 101 (a) (36), 85 Stat. 353, approved September 28, 1971, the following new section, 50 U. S. C. App. § 471a (1970 ed. Supp. I), was added to the 1967 Act, now renamed the Military Selective Service Act:
“Procedural Rights
“Sec. 22. (a) It is hereby declared to be the purpose of this section to guarantee to each registrant asserting a claim before a local or appeal board, a fair hearing consistent with the informal and expeditious processing which is required by selective service cases.
“(b) Pursuant to such rules and regulations as the President may prescribe—
“(1) Each registrant shall be afforded the opportunity to appear in person before the local or any appeal board of the Selective Service System to testify and present evidence regarding his status.
“(4) In the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.”
A registrant thus is now statutorily entitled to a personal appearance before a local or appeal board and, on request, to a statement of reasons for any decision of the board adverse to him. This 1971 addition to the statute does not, by its terms, purport to be retroactive.
B. The Emerging Regulations. In implementation of the new statute, the administrative regulations have been undergoing change. Some amendments were promulgated effective December 10, 1971. 36 Fed. Reg. 2337T-23385. Others were promulgated effective March 11, 1972. 37 Fed. Reg. 5120-5127. From these it appears that all, or nearly all, the procedural features about which Dr. Fein complains in the present case have been changed administratively. Specifically: (1) When an appeal is taken by the State Director “he shall place in the registrant’s file a written statement of his reasons for taking such appeal.” The local board shall notify the registrant in writing of the action and the reasons therefor, and advise him that the registrant may request a personal appearance before the appeal board. §§ 1626.3 (a) and (b). (2) At such personal appearance the registrant may present evidence, discuss his classification, point out the class or classes in which he thinks he should have been placed, and may direct attention to any information in his file that he believes the local board has overlooked or to which it has given insufficient weight. He may present such further information as he believes will assist the board. The registrant, however, may not be represented before an appeal board by anyone acting as attorney and he shall not be entitled to present witnesses. §§ 1624.4 (e) and (d). (3) If the appeal board classifies the registrant in a class other than the one he requested, it shall record its reasons therefor in his file. The local board shall inform the registrant of such reasons in writing at the time it mails his notice of classification. § 1626.4 (i). (4) On the director’s appeal to the national board the registrant may request an appearance. § 1627.3 (d). At that appearance the registrant may present evidence, other than witnesses, bearing on his classification. There, too, he may discuss his classification, point out the class or classes in which he thinks he should have been placed, and direct attention to any information in his file that he believes the local board overlooked or to which it has given insufficient weight. He may also present such further information as he believes will assist the national board in determining his proper classification. §§ 1627.4 (c) and (e). (5) If the national board classifies the registrant in a class other than the one he requested it shall record its reasons therefor in his file and on request by the registrant it shall furnish him a brief statement of the reasons for its decision. § 1627.4 (h).
Thus, under present procedure effective in part since December 10, 1971, and in part since March 11, 1972, complaints about one’s inability to appear before appeal boards, about not being given reasons for adverse classifications, and about inability to present additional material at the appellate stages are all alleviated and, indeed, eliminated.
C. The Change in the Government’s Position. In their brief filed prior to the adoption of the 1971 Act, the respondents acknowledged the appearance of “a relatively recent line of authority” exemplified by United States v. Haughton, 413 F. 2d 736 (CA9 1969), to the effect that the failure of a local board to articulate in writing the reason for its denial of a conscientious objector classification is a fatal procedural flaw when the registrant has made a prima facie case for such status. Brief 52-53. The rationale is that some statement of reasons is necessary for “meaningful” review of the administrative decision when the registrant’s claim has met the statutory criteria or has placed him prima facie within the statutory exemption, and his veracity is the principal issue.
The respondents appropriately noted, however, that these decisions were all so-called post-induction cases in the sense that they were appeals from convictions under § 12 (a), 50 U. S. C. App. §462 (a). The respondents accordingly took the position that this line of authority, however appropriate it might be for post-induction review, did not support or justify an exception to the bar of § 10 (b) (3) against pre-induction review of the processing or classifying of registrants.
In a memorandum filed here since the 1971 Act in No. 70-251, Joseph v. United States, cert. granted, 404 U. S. 820 (1971), the Government has now taken the position that “[although this judicial rule [of Haughton and its progeny] finds little support in early precedent ... we do not think it appropriate to contend that it is erroneous.” The Government also notes that the requirement for an administrative statement of reasons “seems fully consistent with the new statutory . . . and regulatory . . . provisions on this point.” Memo 13, 14.
While Joseph also is a conviction case and is not one on pre-induction review, its obvious significance for Fein is that if the doctor is ever again called for induction, the rule of Haughton will provide a defense for him unless and until the requirements of the new statute and regulations are fulfilled. Whether this necessitates a complete reprocessing of Fein’s case is a matter we leave in the first instance to the administrative authorities.
The judgment of the Court of Appeals is therefore to be affirmed. We express no view upon the merits of Dr. Fein’s conscientious objector claim other than to observe the obvious, namely, that his claim is not frivolous.
Affirmed.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
“The decisions of such local board shall be final, except where an appeal is authorized and is taken in accordance with such rules and regulations as the President may prescribe. . . . The decision of such appeal boards shall be final in cases before them on appeal unless modified or changed by the President. The President, upon appeal or upon his own motion, shall have power to determine all claims or questions with respect to inclusion for, or exemption or deferment from training and service under this title . . . and the determination of the President shall be final. No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant. . . .” 50 U. S. C. App. §460 (b)(3).
Section 10 (b) (3) of the 1967 Act was amended by Pub. L. 92-129, §101 (a) (26), 85 Stat. 351, approved Sept. 28, 1971. The amendment, however, did not change that portion of § 10 (b) (3) quoted above.
Tr. of Oral. Arg. 22.
The provision is now 32 CFR § 1627.1 (b).
S. Rep. No. 209, 90th Cong., 1st Sess., 10, contained the observation that a registrant may also challenge his classification by post-induction habeas corpus. See Witmer v. United States, 348 U. S. 375, 377 (1955).
Tr. of Oral Arg. 13, 18.
Id., at 16-18.
See also United States v. Edwards, 450 F. 2d 49 (CA1 1971); United States v. Lenhard, 437 F. 2d 936 (CA2 1970); Scott v. Commanding Officer, 431 F. 2d 1132 (CA3 1970); United States v. Broyles, 423 F. 2d 1299 (CA4 1970); United States v. Stetter, 445 F. 2d 472 (CA5 1971); United States v. Washington, 392 F. 2d 37 (CA6 1968); United States v. Lemmens, 430 F. 2d 619 (CA7 1970); United States v. Cummins, 425 F. 2d 646 (CA8 1970); United States v. Pacheco, 433 F. 2d 914 (CA10 1970).
See Gonzales v. United States, 348 U. S. 407, 415 (1955). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
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"National Credit Union Administration",
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"National Enforcement Commission",
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"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
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"National Security Agency",
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"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
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"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
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"Unidentifiable",
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"NO Admin Action",
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] | [
106
] |
AMOCO PRODUCTION CO. et al. v. VILLAGE OF GAMBELL et al.
No. 85-1239.
Argued January 12, 1987
Decided March 24, 1987
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, Powell, and O’Connor, JJ., joined, and in Parts I and III of which Stevens and Scalia, JJ., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia, J., joined, post, p. 555.
Assistant Attorney General Habicht argued the cause for petitioners in No. 85-1406. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Wallace, Richard J. Lazarus, Anne S. Almy, Jacques B. Gelin, David C. Shilton, and Ralph W. Tarr. E. Edward Bruce argued the cause for petitioners in No. 85-1239. With him on the briefs were Brice M. Clagett, Bobby R. Burchfield, and Carl J. D. Bauman.
Donald S. Cooper argued the cause for respondents. With him on the brief was Carol H. Daniel.
Together with No. 85-1406, Hodel, Secretary of the Interior, et al. v. Village of Gambell et al., also on certiorari to the same court.
Alvin J. Ziontz filed a brief for North Slope Borough et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Alaska by Harold M. Brawn, Attorney General, and Deborah Vogt, Assistant Attorney General; for the State of California ex reí. Van de Kamp et al. by John K. Van de Kamp, Attorney General of California, Theodora Berger, Assistant Attorney General, Ken Alex, Deputy Attorney General, Fred Silverman, Solicitor of Delaware, Jim Smith, Attorney General of Florida, Corinne K. A. Watanabe, Attorney General of Hawaii, Robert T. Stephan, Attorney General of Kansas, Paul Bardacke, Attorney General of New Mexico, Michael C. Turpén, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Jim Mattox, Attorney General of Texas, Mary Sue Terry, Attorney General of Virginia, and Bronson C. La Follette, Attorney General of Wisconsin; and for the Natural Resources Defense Council et al. by Larry Silver and Michael Axline.
Ronald A. Zumbrun and Robin L. Rivett filed a brief for the Resource Development Council for Alaska, Inc., et al. as amici curiae.
Justice White
delivered the opinion of the Court.
Petitioner Secretary of the Interior granted oil and gas leases to petitioner oil companies in the Norton Sound (Lease Sale 57) and Navarin Basin (Lease Sale 83) areas of the Bering Sea under the Outer Continental Shelf Lands Act (OCSLA), 67 Stat. 462, as amended, 43 U. S. C. § 1331 et seq. (1982 ed. and Supp. III). The Court of Appeals for the Ninth Circuit directed the entry of a preliminary injunction against all activity in connection with the leases because it concluded that it was likely that the Secretary had failed to comply with § 810 of the Alaska National Interest Lands Conservation Act (ANILCA), 94 Stat. 2371, 16 U. S. C. §3120, prior to issuing the leases. We granted certiorari, 476 U. S. 1157, and we now reverse.
I — I
When the Secretary of the Interior proposed Outer Continental Shelf (OCS) Lease Sale 57, the Alaska Native villages of Gambell and Stebbins sought to enjoin him from proceeding with the sale, claiming that it would adversely affect their aboriginal rights to hunt and fish on the OCS and that the Secretary had failed to comply with ANILCA § 810(a), 16 U. S. C. § 3120(a), which provides protection for natural resources used for subsistence in Alaska. The District Court denied their motion for a preliminary injunction and thereafter granted summary judgment in favor of the Secretary and oil company intervenors, holding that the villagers had no aboriginal rights on the OCS and that ANILCA did not apply to the OCS.
The Court of Appeals for the Ninth Circuit affirmed the District Court’s ruling on aboriginal rights, although on different grounds, and reversed the ruling on the scope of ANILCA §810. People of Gambell v. Clark, 746 F. 2d 572 (1984) (Gambell I). With respect to the claim of aboriginal rights, the court assumed without deciding that the villagers once had aboriginal rights to hunt and fish in the Norton Sound, but concluded that these rights had been extinguished by § 4(b) of the Alaska Native Claims Settlement Act (ANCSA), 85 Stat. 690, 48 U. S. C. § 1603(b). That section provides:
“All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished.” (Emphasis added.)
The Court of Appeals construed the phrase “in Alaska” to mean “the geographic region, including the contiguous continental shelf and the waters above it, and not merely the area within the strict legal boundaries of the State of Alaska.” 746 F. 2d, at 675. Finding the phrase ambiguous, the court examined the legislative history and concluded that Congress wrote the extinguishment provision broadly “to accomplish a complete and final settlement of aboriginal claims and avoid further litigation of such claims.” Ibid. The court then concluded that ANILCA § 810 had the same geographical scope as ANCSA § 4(b):
“[The villages] make a compelling argument that the provisions of Title VIII of [ANILCA] protecting subsistence uses were intended to have the same territorial scope as provisions of the earlier Claims Settlement Act extinguishing Native hunting and fishing rights. The two statutory provisions are clearly related. When Congress adopted the Claims Settlement Act it was aware that extinguishing Native rights might threaten subsistence hunting and fishing by Alaska Natives. . . . It is a reasonable assumption that Congress intended the preference and procedural protections for subsistence uses mandated by Title VIII of [ANILCA] to be coextensive with the extinguishment of aboriginal rights that made those measures necessary.” 746 F. 2d, at 579-580.
The court found support for this view in ANILCA’s legislative history. But, according to the Court of Appeals, “[t]he most compelling reason for resolving the ambiguous language of Title VIII in favor of coverage of outer continental shelf lands and waters is that Title VIII was adopted to benefit the Natives.” Id., at 581. The court acknowledged the familiar rule of statutory construction that doubtful expressions must be resolved in favor of Indians. See Alaska Pacific Fisheries v. United States, 248 U. S. 78, 89 (1918). It then remanded to the District Court the questions whether the Secretary had substantially complied with ANILCA § 810 in the course of complying with other environmental statutes, and if not, whether the leases should be voided.
In compliance with the Court of Appeals’ decision, the Secretary prepared a postsale evaluation of possible impacts on subsistence uses from Lease Sale 57. The Secretary found that the execution of the leases, which permitted lessees to conduct only limited preliminary activities on the OCS, had not and would not significantly restrict subsistence uses. He further found that the exploration stage activities, including seismic activities and exploratory drilling, that had occurred in Norton Sound had not significantly restricted subsistence uses and were not likely to do so in the future. Finally, he found that, if development and production activities were ever conducted, which was not likely, they might, in the event of a major oilspill, significantly restrict subsistence uses for limited periods in limited areas.
In April 1985, the villages sought a preliminary injunction in the District Court against exploratory activities in Norton Sound. At the same time, the village of Gambell, joined by Nunam Kitlutsisti, an organization of Yukon Delta Natives, filed a complaint seeking to void Lease Sale 83 and to enjoin imminent exploratory drilling in the Navarin Basin. The District Court consolidated the motions for preliminary injunctions and denied them. It found that respondents had established a strong likelihood of success on the merits. Although the Secretary, in the EIS’s for the Five Year Leasing Plan and for the Norton Sound and Navarin Basin Lease Sales, had evaluated in some detail the effect of OCS oil and gas development on subsistence resources and had considered alternatives which would reduce or eliminate the impact on these resources, the Secretary failed to comply with ANILCA because “he did not have the policy precepts of ANILCA in mind at the time of evaluation.” App. to Pet. for Cert, in No. 85-1239, pp. 57a-58a. And with respect to the postsale evaluation for Lease Sale 57, the District Court concluded that because development and production activities, if they ever occurred, could significantly restrict subsistence uses in certain areas, the Secretary was required to conduct the hearing and make the findings required by §§ 810(a)(1) — (8) prior to conducting the lease sale. Nevertheless, the court concluded that injunctive relief was not appropriate based on the following findings:
“(1) That delay in the exploration of the OCS may cause irreparable harm to this nation’s quest for new oil resources and energy independence. Expedited exploration as a policy is stated in OCSLA. See 43 U. S. C. § 1332(3);
“(2) That exploration will not significantly restrict subsistence resources; and
“(3) That the Secretary continues to possess power to control and shape the off-shore leasing process. Therefore, if the ANILCA subsistence studies require alteration of the leasing conditions or configuration the Secretary will be able to remedy any harm caused by the violation.” Id., at 62a-63a.
Accordingly, applying the traditional test for a preliminary injunction, the court concluded that the balance of irreparable harm did not favor the movants; in addition, the public interest favored continued oil exploration and such exploration in this case would not cause the type of harm that ANILCA was designed to prevent.
Respondents appealed from the District Court’s denial of a preliminary injunction. The Ninth Circuit reversed. People of Gambell v. Hodel, 774 F. 2d 1414 (1985) (Gambell II). The court, agreeing that the villages had established a strong likelihood of success on the merits, concluded that the District Court had not properly balanced irreparable harm and had not properly evaluated the public interest. Relying on its earlier decision in Save Our Ecosystems v. Clark, 747 F. 2d 1240, 1250 (1984), the court stated: “‘Irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action.’” 774 F. 2d, at 1423. It ruled that “injunctive relief is the appropriate remedy for a violation of an environmental statute absent rare or unusual circumstances.” Ibid. “Unusual circumstances” are those in which an injunction would interfere with a long-term contractual relationship, Forelaws on Board v. Johnson, 743 F. 2d 677 (CA9 1984), or would result in irreparable harm to the environment, American Motorcyclist Assn. v. Watt, 714 F. 2d 962, 966 (CA9 1983). 774 F. 2d, at 1423-1425. The court found no such circumstances in the instant case. The Ninth Circuit also concluded that the policy declared in OCSLA to expedite exploration of the OCS had been superseded by ANILCA’s policy to preserve the subsistence culture of Alaska Natives. Finally, the court rejected arguments that it was improper to apply Gambell I retroactively to Lease Sale 83.
I — I HH
Petitioners assert that the Ninth Circuit erred in directing the grant of a preliminary injunction. We addressed a similar contention in Weinberger v. Romero-Barcelo, 456 U. S. 305 (1982). The District Court in that case found that the Navy had violated the Federal Water Pollution Control Act (FWPCA), 33 U. S. C. § 1251 et seq. (1982 ed. and Supp. Ill), by discharging ordnance into the sea without a permit. 456 U. S., at 307-308. The court ordered the Navy to apply for a permit but refused to enjoin weapons-training operations during the application process because the Navy’s “technical violations” were not causing any “appreciable harm” to the quality of the water and an injunction would cause grievous harm to the Navy’s military preparedness and therefore to the Nation. Id., at 309-310. The First Circuit reversed and directed the District Court to enjoin all Navy activities until it obtained a permit, concluding that the traditional equitable balancing of competing interests was inappropriate where there was an absolute statutory duty to obtain a permit. Id., at 310-311. We reversed, acknowledging at the outset the fundamental principle that an injunction is an equitable remedy that does not issue as of course. Id., at 311. We reviewed the well-established principles governing the award of equitable relief in federal courts. Id., at 311-313. In brief, the bases for injunctive relief are irreparable injury and inadequacy of legal remedies. In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Although particular regard should be given to the public interest, “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.” Id., at 313. Finally, we stated:
“Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles. . . . ‘Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.’” Ibid, (quoting Porter v. Warner Holding Co., 328 U. S. 395, 398 (1946)).
Applying these principles, we concluded that the purpose of the FWPCA — to restore and maintain the integrity of the Nation’s waters — would not be undermined by allowing the statutory violation to continue during the permit application process because the ordnance was not polluting the water. 456 U. S., at 314-315. The First Circuit had erroneously-focused on the integrity of the permit process rather than on the integrity of the Nation’s waters. Moreover, the permit process was not completely circumvented since the District Court ordered the Navy to apply for a permit. An injunction against all discharges was not the only means of ensuring compliance with the Act and we found nothing in the Act’s language and structure or legislative history which suggested that Congress intended to deny courts their traditional equitable discretion.
We see nothing which distinguishes Romero-Barcelo from the instant case. The purpose of ANILCA § 810 is to protect Alaskan subsistence resources from unnecessary destruction. Section 810 does not prohibit all federal land use actions which would adversely affect subsistence resources but sets forth a procedure through which such effects must be considered and provides that actions which would significantly restrict subsistence uses can only be undertaken if they are necessary and if the adverse effects are minimized. There is no clear indication in § 810 that Congress intended to deny federal district courts their traditional equitable discretion in enforcing the provision, nor are we compelled to infer such a limitation. Like the First Circuit in Romero-Barcelo, the Ninth Circuit erroneously focused on the statutory procedure rather than on the underlying substantive policy the process was designed to effect — preservation of subsistence resources. The District Court’s refusal to issue a preliminary injunction against all exploration activities did not undermine this policy. The District Court, after reviewing the EIS’s for the Secretary’s Five Year Leasing Plan and for Lease Sales 57 and 83, as well as the § 810 study prepared after Gambell I, expressly found that exploration activities would not significantly restrict subsistence uses. The Court of Appeals did not conclude that this factual finding was clearly erroneous. The District Court also found that “the Secretary continues to possess power to control and shape the off-shore leasing process,” App. to Pet. for Cert, in No. 85-1239, p. 63a, referring to the four distinct stages under OCSLA, particularly the requirement for secretarial approval of a development and production plan, 43 U. S. C. § 1351. See n. 6, supra. The Court of Appeals did not dispute that the Secretary could meaningfully comply with ANILCA § 810 in conjunction with his review of production and development plans. Instead, the court stated that “[i]rreparable damage is presumed, when an agency fails to evaluate thoroughly the environmental impact of a proposed action.” 774 F. 2d, at 1423 (emphasis added). This presumption is contrary to traditional equitable principles and has no basis in ANILCA. Moreover, the environment can be fully protected without this presumption. Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i. e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment. Here, however, injury to subsistence resources from exploration was not at all probable. And on the other side of the balance of harms was the fact that the oil company petitioners had committed approximately $70 million to exploration to be conducted during the summer of 1985 which they would have lost without chance of recovery had exploration been enjoined. Id., at 1430.
We acknowledged in Romero-Barcelo the important role of the “public interest” in the exercise of equitable discretion. The District Court concluded that the public interest in this case favored continued oil exploration, given OCSLA’s stated policy and the fact that “such exploration will not cause the type of harm, 'a restriction in subsistence uses or resources, that ANILCA was designed to prevent.” App. to Pet. for Cert, in No. 85-1239, p. 63a. The Court of Appeals concluded, however, that the public interest favored injunctive relief because the interests served by federal environmental statutes, such as ANILCA, supersede all other interests that might be at stake. We do not read ANILCA to have repealed OCSLA. Congress clearly did not state in ANILCA that subsistence uses are always more important than development of energy resources, or other uses of federal lands; rather, it expressly declared that preservation of subsistence resources is a public interest and established a framework for reconciliation, where possible, of competing public interests.
Accordingly, the Ninth Circuit erred in directing the issuance of a preliminary injunction.
I — I H-I 1 — l
Petitioners also contend that the Court of Appeals erred in holding that ANILCA § 810 applies to the OCS. We agree. By its plain language, that provision imposes obligations on federal agencies with respect to decisions affecting use of federal lands within the boundaries of the State of Alaska. Section 810 applies to “public lands.” Section 102 of ANILCA, 16 U. S. C. §3102, defines “public lands,” and included terms, for purposes of the Act as follows:
“(1) The term ‘land’ means lands, waters, and interests therein.
“(2) The term ‘Federal land’ means lands the title to which is in the United States after December 2, 1980.
“(3) The term ‘public lands’ means land situated in Alaska which, after December 2, 1980, are Federal lands, except [land selected by the State of Alaska or granted to the State under the Alaska Statehood Act, 72 Stat. 339, or any other provision of federal law, land selected by a Native Corporation under ANCSA, and lands referred to in ANCSA § 19(b), 43 U. S. C. § 1618(b)].” (Emphasis added.)
The phrase “in Alaska” has a precise geographic/political meaning. The boundaries of the State of Alaska can be delineated with exactitude. The State of Alaska was “admitted into the Union on an equal footing with the other States,” and its boundaries were defined as “all the territory, together with the territorial waters appurtenant thereto, now included in the Territory of Alaska.” Alaska Statehood Act (Statehood Act) §§ 1, 2, 72 Stat. 339. The Submerged Lands Act of 1953, 67 Stat. 29, as amended, 43 U. S. C. § 1301 et seq. (1982 ed. and Supp. Ill), was made applicable to the State. Statehood Act § 6(m), 72 Stat. 343. Under § 4 of the Submerged Lands Act, 43 U. S. C. § 1312, the seaward boundary of a coastal State extends to a line three miles from its coastline. At that line, the OCS commences. OCSLA § 2(a), 43 U. S. C. § 1331(a). By definition, the OCS is not situated in the State of Alaska. Nevertheless, the Ninth Circuit concluded that “in Alaska” should be construed in a general, “nontechnical” sense to mean the geographic region of Alaska, including the Outer Continental Shelf. 746 F. 2d, at 579. We reject the notion that Congress was merely waving its hand in the general direction of northwest North America when it defined the scope of ANILCA as “Federal lands” “situated in Alaska.” Although language seldom attains the precision of a mathematical symbol, where an expression is capable of precise definition, we will give effect to that meaning absent strong evidence that Congress actually intended another meaning. “[DJeference to the supremacy of the Legislature, as well as recognition that Congressmen typically vote on the language of a bill, generally requires us to assume that ‘the legislative purpose is expressed by the ordinary meaning of the words used/” United States v. Locke, 471 U. S. 84, 95 (1985) (quoting Richards v. United States, 369 U. S. 1, 9 (1962)). This is not that “exceptional case” where acceptance of the plain meaning of a word would “thwart the obvious purpose of the statute.” Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 571 (1982) (internal quotations omitted).
Nothing in the language or structure of ANILCA compels the conclusion that “in Alaska” means something other than “in the State of Alaska.” The subsistence-protection provisions of the statute must be viewed in the context of the Act as a whole. ANILCA’s primary purpose was to complete the allocation of federal lands in the State of Alaska, a process begun with the Statehood Act in 1958 and continued in 1971 in ANCSA. To this end, it provided for additions to the National Park System, National Wildlife Refuge System, National Forest System, National Wild and Scenic Rivers System, and National Wilderness Preservation System, and also provided for the establishment of a National Conservation Area and National Recreation Area, within the State of Alaska. Titles II-VII, 94 Stat. 2377-2422. The Act also provided means to facilitate and expedite the conveyance of federal lands within the State to the State of Alaska under the Statehood Act and to Alaska Natives under ANCSA. Titles IX and XIV, 94 Stat. 2430-2448, 2491-2549. The remaining federal lands within the State were left available for resource development and disposition under the public land laws. The other provisions of ANILCA have no express applicability to the OCS and need not be extended beyond the State of Alaska in order to effectuate their apparent purposes. It is difficult to believe that Congress intended the subsistence protection provisions of Title VIII, alone among all the provisions in the Act, to apply to the OCS. It is particularly implausible because the same definition of “public lands” which defines the scope of Title VIII applies as well to the rest of the statute (with the exceptions noted at n. 13, supra).
There is a lone reference to the OCS in the statute, in § 1001(a), 16 U. S. C. § 3141(a), and it is for the purpose of ensuring that the provision does not apply to the OCS. Section 1001 provides for a study of oil and gas resources, wilderness characteristics, and wildlife resources of the “North Slope”:
“(a) The Secretary shall initiate and carry out a study of all Federal lands (other than submerged lands on the Outer Continental Shelf) in Alaska north of 68 degrees north latitude and east of the western boundary of the National Petroleum Reserve — Alaska, other than lands included in the National Petroleum Reserve — Alaska and in conservation system units established by this Act.”
The Secretary suggests that Congress included the parenthetical excluding the OCS out of an abundance of caution because “North Slope” is defined in a related statute — the Alaska Natural Gas Transportation Act of 1976, 15 U. S. C. §719 et seq. (1982 ed. and Supp. Ill) — to include the OCS. See 15 U. S. C. § 719b. Whatever the reason for caution, it is apparent from ANILCA § 1008(a), 16 U. S. C. § 3148(a), that Congress did not intend “Federal lands in Alaska” to include the OCS despite the parenthetical in § 1001(a). Section 1008(a) requires the Secretary to “establish, pursuant to the Mineral [Lands] Leasing Act of 1920, as amended [30 U. S. C. § 181 et seq. (1982 ed. and Supp. Ill)], an oil and gas leasing program on the Federal lands of Alaska not subject to the study required by section 1001 of this Act, other than lands included in the National Petroleum Reserve — Alaska.” (Emphasis added.) Congress clearly did not intend this program to extend to the OCS; OCSLA, rather than the Mineral Lands Leasing Act, governs mineral leasing on the OCS. See 43 U. S. C. § 1338(a)(1).
Title VIII itself suggests that it does not apply to the OCS. Section 810 places the duty to perform a subsistence evaluation on “the head of the Federal agency having primary jurisdiction over such lands.” Unlike onshore lands, no federal agency has “primary jurisdiction” over the OCS; agency jurisdiction turns on the particular activity at issue. See G. Coggins & C. Wilkinson, Federal Public Land and Resources Law 434 (1981).
The similarity between the language of ANILCA and its predecessor statutes, the Statehood Act and ANCSA, also refutes the contention that Congress intended “Alaska” to include the OCS. In the Statehood Act, Congress provided that the State of Alaska could select over 100 million acres from the vacant and unreserved “public lands of the United States in Alaska” within 25 years of its admission. Statehood Act §6(b), 72 Stat. 340. Similarly, in ANCSA, Congress allowed Native Alaskans to select approximately 40 million acres of “Federal lands and interests therein located in Alaska,” with the exception of federal installations and land selections of the State of Alaska under the Statehood Act. 43 U. S. C. §§ 1602(e), 1610(a), 1611. We agree with the Secretary that “[i]t is inconceivable that Congress intended to allow either the State of Alaska or Native Alaskans to select portions of the OCS — ‘a vital national resource reserve held by the [government] for the public’ (43 U. S. C. 1332(3)).” Brief for Petitioners in No. 85-1406, p. 33. Clearly, the purpose of these provisions was to apportion the land within the boundaries of the State of Alaska. The nearly identical language in ANILCA strongly suggests a similar scope for that statute.
When statutory language is plain, and nothing in the Act’s structure or relationship to other statutes calls into question this plain meaning, that is ordinarily “the end of the matter.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984). “Going behind the plain language of a statute in search of a possibly contrary congressional intent is a step to be taken cautiously even under the best of circumstances.” United States v. Locke, 471 U. S., at 95-96 (internal quotations omitted). ANILCA’s legislative history does not evidence a congressional intent contrary to our reading of the statutory language. Significantly, the legislative history nowhere expressly indicates that the subsistence provisions apply to the OCS. The Ninth Circuit relied on a number of remarks made during the floor debates which were not specifically addressed to the scope of ANILCA in general or the subsistence provisions in particular. 746 F. 2d, at 579. The central issue of the floor debates was the appropriate balance between exploitation of natural resources, particularly energy resources, and dedication of land to conservation units. A number of Congressmen addressed the amount of oil expected to be recovered from the OCS offshore of Alaska in the context of this balancing and, in doing so, referred to “Alaska” in a manner which included the OCS. Representative Udall, Chairman of the House Committee on Interior and Insular Affairs, and floor manager of the bill, for example, sought to assure Members that the bill he favored did not inordinately restrict energy development:
“The experts tell us that most of the oil and gas is not going to be from onshore. . . . Offshore in Alaska there are 203 million acres of sedimentary basin. Let me tell the Members how much of that is put out of production by this bill so that they cannot get it. The answer is zero. Every single acre of offshore oil sedimentary basin potential in Alaska is going to be open for oil drilling and prospecting. The State owns some of it beneath the high water mark, and the Federal Government owns the rest.
“Under other legislation those submerged lands are open, are going to be explored and developed, and that should be 203 million acres.” 125 Cong. Rec. 9900 (1979) (emphasis added); see also id., at 11128.
This casual use of the phrase “in Alaska” in a floor debate does not carry the same weight that it does in the definitional section of the statute. Spoken language is ordinarily less precise than written language; Representative Udall could easily have intended to say “offshore of Alaska.” Indeed, the obvious thrust of his statement was that ANILCA does not apply to the OCS; rather, OCSLA governs offshore oil development. Numerous statements by other legislators reveal a common understanding — consistent with the plain meaning of the statutory language — that ANILCA simply “has nothing to do with the Outer Continental Shelf,” id., at 11170 (remarks of Rep. Emery).
Finally, we reject the Ninth Circuit’s reliance on the familiar rule of statutory construction that doubtful expressions must be resolved in favor of Indians. 746 F. 2d, at 681. There is no ambiguity here which requires interpretation. “The canon of construction regarding the resolution of ambiguities . . . does not permit reliance on ambiguities that do not exist; nor does it permit disregard of the clearly expressed intent of Congress.” South Carolina v. Catawba Indian Tribe, 476 U. S. 498, 506 (1986).
The judgment of the Ninth Circuit with respect to the entry of a preliminary injunction and the applicability of ANILCA §810 to the OCS is reversed. We do not decide here the scope of ANCSA § 4(b). Respondents’ cross-petition on this issue, No. 86-1608, is granted, the Court of Appeals’ judgment that § 4(b) extinguished aboriginal rights on the OCS is vacated, and this question is remanded to the Court of Appeals for decision in light of this opinion.
It is so ordered.
The oil company lessees and the Secretary of the Interior separately petitioned for certiorari, Nos. 85-1239 and 85-1406 respectively, presenting the same four questions: (1) whether the Ninth Circuit’s rule that a district court must enter a preliminary injunction whenever it finds a likely violation of an environmental statute, absent extraordinary circumstances, conflicts with Weinberger v. Romero-Barcelo, 456 U. S. 305 (1982); (2) whether ANILCA § 810 applies to the Outer Continental Shelf; (3) whether the Ninth Circuit’s ruling that the Secretary of the Interior must fully comply with § 810’s requirements prior to leasing and exploration, when a significant restriction of subsistence uses is not expected until the development and production stage, conflicts with Secretary of Interior v. California, 464 U. S. 312 (1984); and (4) whether the Ninth Circuit’s decision applying ANILCA to the OCS should be given retroactive effect. Our answer to the second question disposes of the third and fourth questions. Respondent Alaska Natives cross-petitioned, No. 85-1608, from the Court of Appeals’ ruling that the Alaska Native Claims Settlement Act, 43 U. S. C. § 1601 et seq. (1982 ed. and Supp. Ill), extinguished their aboriginal rights on the OCS. The cross-petition has been held pending our disposition in Nos. 85-1239 and 85-1406.
Section 810(a), 16 U. S. C. § 3120(a), provides:
“In determining whether to withdraw, reserve, lease, or otherwise permit the use, occupancy, or disposition of public lands under any provision of law authorizing such actions, the head of the Federal agency having primary jurisdiction over such lands or his designee shall evaluate the effect of such use, occupancy, or disposition on subsistence uses and needs, the availability of other lands for the purposes sought to be achieved, and other alternatives which would reduce or eliminate the use, occupancy, or disposition of public lands needed for subsistence purposes. No such withdrawal, reservation, lease, permit, or other use, occupancy or disposition of such lands which would significantly restrict subsistence uses shall be effected until the head of such Federal agency—
“(1) gives notice to the appropriate State agency and the appropriate local committees and regional councils established pursuant to section 3115 of this title;
“(2) gives notice of, and holds, a hearing in the vicinity of the area involved; and
“(3) determines that (A) such a significant restriction of subsistence uses is necessary, consistent with sound management principles for the utilization of the public lands, (B) the proposed activity will involve the minimal amount of public lands necessary to accomplish the purposes of such use, occupancy or other disposition, and (C) reasonable steps will be taken to minimize adverse impacts upon subsistence uses and resources resulting from such actions.”
The villages appealed and moved to enjoin the issuance of the leases pending appeal. The Ninth Circuit denied the motion and on May 10, 1983, 59 tracts were leased for bonus payments totaling over $300 million. While the appeal was pending, the Secretary approved exploration plans submitted by the lessees under 43 U. S. C. § 1340 (1982 ed. and Supp. Ill) and they proceeded with exploration during the summer of 1984. The Secretary also proceeded with Lease Sale 83 on April 17, 1984, which resulted in the leasing of 163 tracts for total bonus payments of over $500 million.
As explained by the Ninth Circuit, “[ajboriginal title or right is a right of exclusive use and occupancy held by Natives in lands and waters used by them and their ancestors prior to the assertion of sovereignty over such areas by the United States.” 746 F. 2d, at 574. See Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 667-669 (1974); see also F. Cohen, Handbook of Federal Indian Law 486-493 (1982).
The Coastal Zone Management Act, 16 U. S. C. § 1451 et seq. (1982 ed. and Supp. Ill), Marine Protection, Research, and Sanctuaries Act, 16 U. S. C. § 1431 et seq. (1982 ed. and Supp. Ill), Marine Mammal Protection Act, 16 U. S. C. § 1361 et seq. (1982 ed. and Supp. Ill), Fishery Conservation and Management Act, 16 U. S. C. § 1801 et seq. (1982 ed. and Supp. Ill), Endangered Species Act, 16 U. S. C. § 1531 et seq. (1982 ed. and Supp. Ill), and National Environmental Policy Act, 42 U. S. C. §4331 et seq. (1982 ed. and Supp. Ill), all apply to activities on the OCS. Pursuant to the National Environmental Policy Act (NEPA), the Department of the Interior drafted in 1982 a 332-page Final Environmental Impact Statement (EIS) on proposed Lease Sale 57. Interior analyzed in the EIS the effects that the lease sale, and subsequent exploration, development, and production, could conceivably have on “subsistence uses,” as defined by ANILCA §803, 16 U. S. C. §3113. The EIS documented the fish and shellfish, sea mammal, bird, and land animal resources utilized by the villages in the region, including Gambell and Stebbins, and analyzed the sensitivity of these resources to oilspills, other exploration and development impacts, and harvest pressure. EIS 47-53, 136-148. The EIS also considered the sociocultural impact of changes in the availability of subsistence resources. Interior concluded as follows:
“While some changes in local subsistence use and take may occur with this proposal, the probability of significant disturbance, in the form of long-term reduction of subsistence take, large-scale disruption of subsistence harvesting activities, or significant reductions in primary resources utilized for subsistence is unlikely for the region as a whole. For Savoonga, and to a lesser extent other ‘big sea mammal hunting’ villages (Diomede, Gambell, King Island, Wales) due to a relatively greater vulnerability to oilspill events, the short-term disturbance is more likely, particularly during the peak development period.” EIS 142.
A comparable EIS was drafted in 1983 for Lease Sale 83. The Secretary had also previously prepared an EIS in conjunction with his Five Year Leasing Plan.
As we explained in Secretary of Interior v. California, 464 U. S., at 337, there are four distinct statutory stages to developing an oil well on the OCS: “(1) formulation of a 5-year leasing plan by the Department of the Interior; (2) lease sales; (3) exploration by the lessees; (4) development and production. Each stage involves separate regulatory review that may, but need not, conclude in the transfer to lease purchasers of rights to conduct additional activities on the OCS.” The Secretary examined the effects on subsistence uses of Lease Sale 57 itself, present and future exploratory activities, and development and production activities, which the Secretary estimated had a 13% probability of being undertaken. App. to Pet. for Cert, in No. 85-1406, pp. 81a-106a. The Secretary stressed that a definite evaluation with respect to the latter stage could only be made if and when plans for development and production were submitted and that a separate § 810 evaluation would be prepared at that time. The Secretary relied to a considerable degree on the 1982 Final EIS.
The Secretary approved exploration plans for the Navarin Basin after the decision in Gambell I and accordingly made explicit ANILCA evaluations. See App. to Pet. for Cert, in No. 85-1406, pp. 107a-115a. The lessees planned exploration activities for the summer of 1985.
We noted that, in addition to a court order to apply for a permit, the FWPCA could be enforced through fines and criminal penalties, 33 U. S. C. §§ 1319(c) and (d). 456 U. S., at 314. The Ninth Circuit believed that the absence of such enforcement provisions in ANILCA distinguished the FWPCA and Romero-Barcelo. 774 F. 2d, at 1426, n. 2. It stated that the injunctive relief it granted was the only means of insuring compliance under § 810. The Court of Appeals was incorrect. Here, as in Romero-Barcelo, compliance could be obtained through the simple means of an order to the responsible federal official to comply. The Secretary had not complied with § 810 only because he interpreted ANILCA not to apply to the OCS.
We distinguished TV A v. Hill, 437 U. S. 153 (1978), in which we had held that Congress, in the Endangered Species Act of 1973, 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq. (1982 ed. and Supp. Ill), had foreclosed the traditional discretion possessed by an equity court and had required the District Court to enjoin completion of the Tellieo Dam in order to preserve the snail darter, an endangered species. That statute contains a flat ban on destruction of critical habitats of endangered species and it was conceded that completion of the dam would destroy the critical habitat of the snail darter. We stated:
“Refusal to enjoin the action would have ignored the ‘explicit provisions of the Endangered Species Act.’ 437 U. S., at 173. Congress, it appeared to us, had chosen the snail darter over the dam. The purpose and language of the statute [not the bare fact of a statutory violation] limited the remedies available to the District Court; only an injunction could vindicate the objectives of the Act.” 456 U. S., at 314.
The Ninth Circuit erroneously relied on TVA v. Hill. 774 F. 2d, at 1426, n. 2. It is clear that this case is similarly distinguishable from Hill.
Implicit in this finding was the finding that the lease-sale stage had not significantly restricted subsistence uses.
OCSLA declares it to be the policy of the United States that “the outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.” 43 U. S. C. § 1332(3).
Finally, the Ninth Circuit distinguished Romero-Barcelo on the ground that the District Court in that case refused to issue a permanent injunction after a trial on the merits whereas in this case the District Court denied preliminary injunctive relief. We fail to grasp the significance of this distinction. The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success. See, e. g. University of Texas v. Camenisch, 451 U. S. 390, 392 (1981). Despite the preliminary nature of the proceeding, the record before the District Court was complete enough to allow it to decide that exploration activities would not significantly restrict subsistence resources. The fact that, on another record, such a conclusion could not be made with any degree of confidence is a factor to be considered under the traditional equitable balancing of interests but hardly suggests that the balancing test itself must be abandoned.
Section 102 provides that the definitions apply to the entire Act, except that in Title IX, which provides for implementation of ANCSA and the Alaska Statehood Act, 72 Stat. 339, and in Title XIV, which amends ANCSA and related provisions, the terms shall have the same meaning as they have in ANCSA and the Alaska Statehood Act.
The Ninth Circuit stated: “In strikingly similar circumstances, the Supreme Court has twice given an expansive and non-technieal interpretation to geographical terms to achieve Congress’s apparent purpose to protect native fisheries. Hynes v. Grimes Packing Co., 337 U. S. 86, 110-116 . . . (1949); Alaska Pacific Fisheries v. United States, 248 U. S. 78, 89 . . . (1918).” 746 F. 2d, at 580. The question in Alaska Pacific Fisheries was the geographic scope of “the body of lands known as Annette Islands,” the reservation of the Metlakahtla Indians, in particular: whether the reservation embraced only the uplands or included the intervening and surrounding waters. Similarly, the issue in Hynes was whether the phrase “any other public lands which are actually occupied by Indians or Eskimos within said Territory” authorized the Secretary of the Interior to include in the Karluk Reservation the waters to a distance of 3,000 feet from the shore. 337 U. S., at 91, 92. In both cases, we concluded that, in light of the purposes of the reservations, the phrases were properly interpreted to include a band of adjacent waters. These cases clearly are inap-posite. Unlike “Alaska,” the phrases in issue did not have precise geographic/political meanings which would have been commonly understood, without further inquiry, to exclude the waters. There is no plain meaning to “the body of lands” of an island group, 248 U. S., at 89, and clearly none to “public lands which are actually occupied by Indians or Eskimos.” The meaning of the phrases had to be derived from their context in the statutes.
Petitioners also assert that the OCS plainly is not “Federal land” because the United States does not claim “title” to the OCS. See ANILCA § 102(2), 16 U. S. C. § 3102(2). The United States may not hold “title” to the submerged lands of the OCS, but we hesitate to conclude that the United States does not have “title” to any “interests therein.” Certainly, it is not clear that Congress intended to exclude the OCS by defining public lands as “lands, waters, and interests therein” “the title to which is in the United States.” We also reject the assertion that the phrase “public lands,” in and of itself, has a precise meaning, without reference to a definitional section or its context in a statute. See Hynes v. Grimes Packing Co., 337 U. S., at 114-116.
ANILCA is comprised of 15 titles and spans 181 pages of the Statutes at Large, 94 Stat. 2371-2551. The subsistence protection provisions are contained in Title VIII. 94 Stat. 2422-2430, 16 U. S. C. §§ 3111-3126.
Congress clearly articulated this purpose:
“(a) In order to preserve for the benefit, use, education, and inspiration of present and future generations certain lands and waters in the State of Alaska that contain nationally significant natural, s.eenic, historic, archeological, geological, scientific, wilderness, cultural, recreational, and wildlife values, the units described in the following titles are hereby established.
“(d) This Act provides sufficient protection for the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska, and at the same time provides adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people; accordingly, the designation and disposition of the public lands in Alaska pursuant to this Act are found to represent a proper balance between the reservation of national conservation system units and those public lands necessary and appropriate for more intensive use and disposition, and thus Congress believes that the need for future legislation designating new conservation system units, new national conservation areas, or new national recreation areas, has been obviated thereby.” ANILCA § 101,16 U. S. C. § 3101 (emphasis added).
The House Report declared the following to be the purpose of the bill:
“The principal purpose of H. R. 39 is [sic] amended and reported by the Committee on Interior and Insular Affairs is to designate approximately 120 million acres of Federal land in Alaska for protection of their resource values under permanent Federal ownership and management.... It virtually completes the public land allocation process in Alaska which began with the Statehood Act of 1958 which granted the State the right to select approximately 104 million acres of public land; this land grant is less than 30 percent complete. The Federal land disposal process was continued by the Alaska Native Claims Settlement Act of 1971 which granted Alaska Natives the right to select approximately 44 million acres of federal land; this process is only one-eighth complete.” H. R. Rep. No. 96-97, pt. 1, p. 135 (1979).
See also H. R. Rep. No. 96-97, pt. 2, p. 89 (1979); S. Rep. No. 96-413, p. 126 (1979).
Title I sets forth the Act’s purposes and definitions. Titles X and XV pertain to mineral resources. Title XI governs transportation and utility systems in and across, and access into, conservation system units, Title XII provides for federal-state cooperation, and Title XIII contains miscellaneous administrative provisions.
The Ninth Circuit relied on this provision in support of its conclusion that the phrase “in Alaska” is ambiguous and can be read to include the OCS. See 746 F. 2d, at 575.
See also 125 Cong. Rec. 9893 (1979) (remarks of Rep. Vento) (“[The Udall-Anderson bill] provides for the potential exploration and development of approximately 95 percent of the onshore areas which have either high or favorable potential for oil and gas and 100 percent of the offshore potential sites, which . . . comprises two-thirds of Alaska’s oil potential”); id., at 9907 (remarks of Rep. Young) (“I will tell the Members this: The person who supports offshore drilling in Alaska first over onshore drilling is doing a great disservice to the environment”); id., at 11174 (remarks of Rep. Huckaby) (“Alaska’s offshore oil potential is estimated to be some 16 to 25 billion barrels”).
See also 126 Cong. Rec. 21889 (1980) (remarks of Sen. Bayh) (“100 percent of the offshore sites would remain available to exploration”); id., at 21657 (remarks of Sen. Cranston) (same); id., at 18747 (remarks of Sen. Hart) (“[M]ost of Alaska’s undiscovered oil and gas lies offshore, and so would not be affected by these land designations”); 125 Cong. Rec. 11450 (1979) (remarks of Rep. Kostmayer) (“Two hundred and five million acres offshore are untouched by the Udall-Anderson bill”).
The Ninth Circuit also relied on the fact that ANILCA’s subsistence provisions, as finally enacted, cover all federal lands in Alaska and that its saving clause, 16 U. S. C. § 3125, specifies that the subsistence provisions do not affect the Magnuson Fishery Conservation and Management Act (FCMA), 90 Stat. 331, 16 U. S. C. § 1801 et seq. (1982 ed. and Supp. III). 746 F. 2d, at 581. Under the FCMA, the United States asserts exclusive fishery management authority in the fishery conservation zone which commences at the boundary of the coastal States and extends 200 miles from the coast. 16 U. S. C. §§ 1811, 1812(1). According to the Court of Appeals, the inclusion of the FCMA in the saving clause indicates that ANILCA applies to the OCS. However, the FCMA also applies to “anad-romous species throughout the migratory range of each such species beyond the fishery conservation zone,” which would include waters within the State of Alaska. 16 U. S. C. § 1812(2). Thus, there is no need to interpret “Alaska” to include the OCS in order to give meaning to the FCMA’s inclusion in the saving clause. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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25
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BENNETT, SECRETARY OF EDUCATION v. KENTUCKY DEPARTMENT OF EDUCATION
No. 83-1798.
Argued January 8, 1985
Decided March 19, 1985
O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Rehnquist, and Stevens, JJ., joined, and in Parts I, II, IV, and V of which White and Blackmun, JJ., joined. Powell, J., took no part in the consideration or decision of the case.
Deputy Solicitor General Getter argued the cause for petitioner. With him on the briefs were Solicitor General Lee and Harriet S. Shapiro.
Robert L. Chenoweth, Assistant Deputy Attorney General of Kentucky, argued the cause for respondent. With him on the brief was David L. Armstrong, Attorney General.
FredH. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, and Norman J. Chachkin filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Texas et al. by Richard L. Arnett, Jim Mattox, Attorney General of Texas, David Richards, Executive Assistant Attorney General, J. Patrick Wiseman, Assistant Attorney General, Thomas J. Miller, Attorney General of Iowa, Stephen H. Sachs, Attorney General of Maryland, PaulL. Douglas, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, William E. Isaeff, Chief Deputy Attorney General, andL. DuaneWoodard, Attorney General of Colorado; and for the National Association of Counties et al. by Joyce Holmes Benjamin and Stewart A. Baker.
Justice O’Connor
delivered the opinion of the Court.
This case, like Bennett v. New Jersey, ante, p. 632, concerns an effort by the Federal Government to recover Title I funds that were allegedly misused by a State. There is no contention here that changes in statutory provisions should apply to previous grants. Instead, the dispute is whether the Secretary correctly demanded repayment based on a determination that Kentucky violated requirements that Title I funds be used to supplement, and not to supplant, state and local expenditures for education. Although the Court of Appeals for the Sixth Circuit found that the Secretary’s determination was based on a reasonable interpretation of Title I and its implementing regulations, the court nonetheless excused the State from repayment on the grounds that there was no evidence of bad faith and the State’s programs complied with a reasonable interpretation of the law. Kentucky v. Secretary of Education, 717 F. 2d 943, 948 (1983). We granted certiorari, 469 U. S. 814 (1984), and because we disagree with the standard adopted by the Court of Appeals, we reverse.
H-1
As explained more fully in Bennett v. New Jersey, ante, at 634-636, Title I of the Elementary and Secondary Education Act of 1965, Pub. L. 89-10, 79 Stat. 27, as amended, 20 U. S. C. §2701 et seq., provided federal grants to support compensatory education programs for disadvantaged children. In order to assure that federal funds would be used to support additional services that would not otherwise be available, the Title I program from the outset prohibited the use of federal grants merely to replace state and local expenditures. This prohibition initially was contained in regulations, see 45 CFR § 116.17(f) (1966); 45 CFR § 116.17(h) (1968), and explained in a program guide distributed to state education agencies. Office of Education, Title I Program Guide No. 44, ¶¶ 4.1, 7.1 (1968). Despite the regulations, the Office of Education received public complaints that Title I funds were being used to replace state and local funds that otherwise would have been spent for participating children. See S. Rep. No. 91-634, pp. 9-10 (1970). Congress responded by amending Title I in 1970 to add a provision that specifically prohibited supplanting. Id., at 9-10, 14-15. That provision, in effect when the grants involved in this case were made, required that Title I funds be used
“(i) as to supplement and, to the extent practical, increase the level of funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs and projects assisted under this subchapter, and (ii) in no case, as to supplant such funds from non-Federal sources.” 20 U. S. C. § 241e(a)(3)(B) (1970 ed.).
Title I regulations elaborated upon the statutory prohibition on the use of federal funds to supplant state and local funds:
“Each application for a grant . . . shall contain an assurance that the use of the grant funds will not result in a decrease in the use for educationally deprived children residing in that project area of State or local funds, which, in the absence of funds under Title I of the Act, would be made available for that project area and that neither the project area nor the educationally deprived children residing therein will otherwise be penalized in the application of State and local funds because of such a use of funds under Title I of the Act. . . . Federal funds made available ... (1) will be used to supplement, and to the extent practical increase, the level of State and local funds that would, in the absence of such Federal funds, be made available for the education of pupils participating in that project; (2) will not be used to supplant State and local funds available for the education of such pupils.” 45 CFR § 116.17(h) (1974).
In 1976, federal auditors found that Kentucky had approved Title I programs for fiscal year 1974 that violated the prohibitions on supplanting. App. 11-21. The disputed programs involved “readiness classes” offered by 50 local education agencies for educationally disadvantaged children in place of regular first- and second-grade classes. App. to Pet. for Cert. 22a. Participating students received their entire academic instruction in the readiness classes, and a substantial number of the students were expected to be promoted to the next higher grade level the following year. App. 16-17. Title I funds were used to pay all the instructional salaries and a portion of the administrative support costs for the readiness classes. App. to Pet. for Cert. 22a. Students in these classes did receive locally funded “enrichment services,” i. e., art, physical education, music, and library, that were available to students enrolled in regular classes. Ibid. It is not disputed, however, that Title I funds defrayed substantially all the costs of educating students in the readiness classes. App. 15, 17. The auditors concluded that supplanting of state and local expenditures had occurred for children in readiness classes who were promoted to the next higher regular grade. Id., at 17, 19; App. to Pet. for Cert. 30a. Based on this finding, the auditors estimated that $704,237 in Title I funds had been misused, and the Department issued a final determination letter demanding repayment. App. 22-23.
Kentucky sought further administrative review. The Education Appeal Board (Board), after extensive proceedings, issued an initial decision in 1981 sustaining the auditors’ findings. App. to Pet. for Cert. 17a-32a. The Board rejected the State’s argument that the supplanting provisions were satisfied because state and local funding was not reduced for the school districts, schools, or grade levels involved. Id., at 24a. The statutory and regulatory provisions, the Board concluded, clearly required that state and local expenditures be maintained for pupils participating in programs supported by Title I. Id., at 24a-25a. On remand from the Secretary, id., at 33a-35a, the Board reaffirmed its initial decision. Id., at 36a-37a. The Secretary subsequently affirmed the Board’s finding that supplanting had occurred, but reduced the demanded repayment to $338,034 to reflect the benefits presumed to result from smaller pupil-teacher ratios in the readiness classes. Id., at 38a-42a.
In reviewing the final order demanding repayment, the Court of Appeals acknowledged that the Secretary’s interpretation of the supplanting prohibition was reasonable and would govern subsequent grants. 717 F. 2d, at 946-947, 948. Nonetheless, the court concluded that Kentucky was not liable for misusing Title I funds during fiscal year 1974. The Court of Appeals viewed the issue to be “the fairness of imposing sanctions upon the Commonwealth of Kentucky for its ‘failure to substantially comply’ with the requirements [of Title I].” Id., at 947, quoting 20 U. S. C. §§1234b(a), 1234c(a). The statute and regulations concerning supplanting, the court maintained, were not “unambiguous.” 717 F. 2d, at 948. Moreover, Congress specifically gave state and local officials discretion to develop particular programs to be supported by Title I funds. Ibid. In these circumstances, the Court of Appeals concluded that it would be unfair to assess a penalty against Kentucky where there was no evidence of bad faith and the disputed programs complied with a reasonable interpretation of the law. Ibid. Relying on Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981), the court further reasoned that the State did not accept Title I funds with “knowing acceptance” of the condition the Secretary now seeks to impose, and therefore the Federal Government was not justified in demanding repayment. 717 F. 2d, at 950.
II
We note initially that the Court of Appeals erred in.characterizing the issue to be the fairness of imposing sanctions against the State for its failure to comply substantially with the requirements of Title I. Although recovery of misused Title I funds clearly is intended to promote compliance with the requirements of the grant program, a demand for repayment is more in the nature of an effort to collect upon a debt than a penal sanction. See Bell v. New Jersey, 461 U. S. 773, 782 (1983). The State gave certain assurances as a condition for receiving the federal funds, and if those assurances were not complied with, the Federal Government is entitled to recover amounts spent contrary to the terms of the grant agreement. Id., at 791. More specifically, the State gave assurances that Title I funds would be used only for programs which had been reviewed and approved by the state education agency and which met applicable statutory and regulatory requirements. 20 U. S. C. §241f(a)(l) (1976 ed.). The issue in this case is not the fairness of imposing punitive measures, but instead whether the Secretary properly determined that Kentucky failed to fulfill its assurances by approving programs that violated the requirements of Title I.
Because of the nature of the obligation to repay misused funds, we also disagree with the suggestion by the court below that substantial compliance with applicable legal requirements affects liability. The Court of Appeals relied on provisions which authorize the Secretary, pursuant to specified procedures, to withhold funds or to issue cease-and-desist orders if a recipient fails to comply substantially with the law. 20 U. S. C. §§ 1234b(a), 1234c(a). Cf. §2836 (specific authority to withhold Title I funds). These references to substantial compliance in provisions governing prospective relief do not by their own terms apply to the recovery of misused funds. Cf. § 1234a(c) (filing of application by recipient for review of audit determination does not affect authority of Secretary to take other adverse actions); 124 Cong. Rec. 20612 (1978) (remarks of Rep. Corrada) (noting that post-audit recovery and withholding are distinct enforcement mechanisms). Other provisions that address the Secretary’s authority to demand repayment do not limit liability to instances where there is failure to comply substantially with grant obligations. See §§1226a-l, 1234a, 2835(b). This silence cannot be ascribed to legislative inattention to the details concerning recovery of misused funds. Congress specifically limited liability for repayment to expenditures made in the five years preceding the final written notice of liability and also authorized the Secretary, in certain circumstances, to settle claims involving less than $50,000. §§1234a(f), 1234a(g). Given the detailed provisions concerning audit determinations contained in § 1234a, we do not believe that Congress intended impliedly to engraft upon that section the “substantial compliance” standard expressly stated in §§ 1234b and 1234c for prospective relief.
Nor do we think that the absence of bad faith absolves a State from liability if funds were in fact spent contrary to the terms of the grant agreement. In Bell v. New Jersey we explained that where a State obtains grants by providing assurances that the funds will be used on programs that comply with Title I, the State has no right to retain funds that are in fact misused, 461 U. S., at 787, 790-791. See also S. Rep. No. 91-634, at 10,. 84 (assurances must be enforced and misused funds recovered). Our discussion in no way suggested that the “misuse” of Title I funds depended on any subjective intent attributable to grant recipients. Instead, Bell v. New Jersey indicates that funds were misused if the State did not fulfill its assurances that it would abide by the conditions of Title I. 461 U. S., at 790-791. Provisions of the 1978 Amendments clarifying the Secretary’s right to recover misused funds also do not condition that right on a recipient’s bad faith. Indeed, Congress expressly placed on the grantees the burden of “demonstrat[ing] the allowability of [disputed] expenditures” in proceedings before the Education Appeal Board. 20 U. S. C. § 1234a(b). There is no indication that grantees may avoid repayment by showing that improper expenditures were made in good faith.
Finally, we do not agree that Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), bars recovery of misused Title I funds because the State did not accept the grant with “knowing acceptance” of its terms. In Pennhurst, we rejected the argument that acceptance of federal grants under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. §6000 et seq., required States to provide mentally handicapped persons with appropriate treatment in the least restrictive environment. Such a requirement, we noted, would have imposed a “massive” and “largely indeterminate” financial obligation on the States. 451 U. S., at 24. We observed: “Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds.” Ibid. The requisite clarity in this case is provided by Title I; States that chose to participate in the program agreed to abide by the requirements of Title I as a condition for receiving funds. Bell v. New Jersey, 461 U. S., at 790, and n. 17. There was no ambiguity with respect to this condition, and Pennhurst does not suggest that the Federal Government may recover misused federal funds only if every improper expenditure has been specifically identified and proscribed in advance.
J — I I — I I — (
In reviewing a determination by the Secretary that a State has misused Title I funds, a court should consider whether the findings are supported by substantial evidence and reflect an application of the proper legal standards. Bennett v. New Jersey, ante, at 646; Bell v. New Jersey, supra, at 792. The disagreement in this case concerns whether the Secretary properly determined that the readiness programs approved by Kentucky violated assurances that Title I funds would be used to supplement state and local expenditures. The Government argues that a reviewing court should simply defer to the Secretary’s interpretation of the requirements of Title I so long as it is reasonable. Without disputing the reasonableness of the interpretation advanced by the Secretary, Kentucky contends that because the grant program was in the nature of a contract, any ambiguities with respect to the obligations of the State must be resolved against the party who drafted the agreement, i. e., the Federal Government. Thus, the parties dispute the fundamental nature of the obligations assumed under Title I: the Government suggests that the State guaranteed that the use of the funds would satisfy whatever interpretation of the program requirements the Secretary might reasonably adopt; the State argues that liability for the misuse of funds results only if grants were spent in violation of an unambiguous requirement.
The contentions of the parties can be properly evaluated only against the background of the actual operation of Title I. The grant program provided federal aid for compensatory education for disadvantaged children, but expressly left the selection and development of particular projects to local control. State education agencies approved program applications and monitored compliance by local school districts, obtained funds from the Federal Government, and subsequently channeled the money back to the local level. Thus, the States essentially served as conduits for what became a massive flow of federal funds. Title I grew from an annual appropriation of $959 million in 1966 to more than $3 billion by 1981, and assisted compensatory education programs in every State and in more than 14,000 school districts. See 2 U. S. Dept, of Education, Fiscal Year 1981 Annual Evaluation Report 3 (1981); National Institute of Education, Administration of Compensatory Education xiii (1977) (hereinafter NIE Report). During the period involved in this case, fiscal year 1974, Kentucky received more than $32 million in Title I funds. App. 11.
Although Congress in 1965 articulated the general goals of Title I, the statute and the initial regulations did not precisely outline the permissible means for implementing those goals. Uncertainty in this regard was compounded by the fact that during the first years following the passage of Title I, the Office of Education did not vigorously enforce the requirements of the program. See L. McDonnell & M. McLaughlin, Education Policy and the Role of the States 13, 90-91 (1982); Murphy, Title I of ESEA: The Politics of Implementing Federal Education Reform, 41 Harv. Ed. Rev. 35, 41-45 (1971). In 1970, Congress acknowledged that funds had been misused because of weaknesses in administration, and directed the Office of Education to strengthen its monitoring of the program requirements. S. Rep. No. 91-634, at 8-10. Management of Title I by the Office of Education improved during the 1970’s, but problems in clarifying the program requirements remained. See J. Berke & M. Kirst, Federal Aid to Education: Who Benefits? Who Governs? 377-378 (1972). Congress in 1974 directed the NIE to conduct a comprehensive 3-year study of federal compensatory education programs, including Title I. Pub. L. 93-380, §821, 88 Stat. 599.
The NIE study was the primary impetus for the Education Amendments of 1978. In considering those Amendments, Congress noted evidence that the Office of Education was “implementing administrative requirements in a manner which is neither clear nor consistent, and that this inconsistency is confusing States and local education agencies about their obligations.” H. R. Rep. No. 95-1137, p. 49, (1978); S. Rep. No. 95-856, p. 27 (1978). This confusion, Congress observed, resulted in part from the diffuse legal framework for Title I. In addition to the statutory provisions and the regulations, the Office of Education sent program guides to state education agencies explaining the requirements and their application to particular situations. Id., at 34; H. R. Rep. No. 95-1137, at 55. Office of Education Program Review teams visited local Title I projects and provided advice, and the Office also sent interpretative letters in response to state and local inquiries. NIE Report 18, 27; Office of Education, Title I Program Guide No. 24 (1968) (compilation of interpretative letters).
Congress accepted the NIE’s conclusion that many of the questions concerning the requirements of Title I would be resolved if the various materials prepared by the Office of Education were “assembled, summarized, and interrelated.” S. Rep. No. 95-856, at 34; H. R. Rep. No. 95-1137, at 55. Accordingly, the 1978 Amendments directed the agency to prepare a policy manual compiling the applicable statutes, regulations, advisory opinions, and other materials. 20 U. S. C. §2837. Congress indicated that such a manual would help to “ensure that federal officials uniformly interpret, apply, and enforce Title I requirements throughout the country.” S. Rep. No. 95-856, at 138; H. R. Rep. No. 95-1137, at 161. The NIE study and the extensive review of Title I’s administration by Congress indicate that the requirements of the program, while not always clear, evolved and became more specific over time and were explained in materials beyond the statute and its implementing regulations.
Although we agree with the State that Title I grant agreements had a contractual aspect, see Bennett v. New Jersey, ante, at 638, the program cannot be viewed in the same manner as a bilateral contract governing a discrete transaction. Cf. United States v. Seckinger, 397 U. S. 203, 210 (1970) (“[A] contract should be construed most strongly against the drafter, which in this case was the United States”). Unlike normal contractual undertakings, federal grant programs originate in and remain governed by statutory provisions expressing the judgment of Congress concerning desirable public policy. See R. Cappalli, Rights and Remedies Under Federal Grants 53-55 (1979). Title I, for example, involved multiple levels of government in a cooperative effort to use federal funds to support compensatory education for disadvantaged children. The Federal Government established general guidelines for the allocation and use of funds, and the States agreed to follow those guidelines in approving and monitoring specific projects developed and operated at the local level. Given the structure of the grant program, the Federal Government simply could not prospectively resolve every possible ambiguity concerning particular applications of the requirements of Title I. Cf. Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51, 64 (1984). Moreover, the fact that Title I was an ongoing, cooperative program meant that grant recipients had an opportunity to seek clarification of the program requirements. Accordingly, we do not believe that ambiguities in the requirements should invariably be resolved against the Federal Government as the drafter of the grant agreement.
We find it unnecessary here to adopt the Government’s suggestion that the Secretary may rely on any reasonable interpretation of the requirements of Title I to determine that previous expenditures violated the grant conditions. Our review of the operation of Title I explains how the States assumed an intermediary role in monitoring compliance with requirements that were not always clear. In this particular context, we are reluctant to conclude that the States guaranteed that their performance under the grant agreements would satisfy whatever interpretation of the terms might later be adopted by the Secretary, so long as that interpretation is not “arbitrary, capricious, or manifestly contrary to [Title I].” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). As we noted in Bennett v. New Jersey, ante, at 639, 646, the State agreed to comply with, and its liability is determined by, the legal requirements in place when the grants were made. Consequently, in evaluating past expenditures, the Secretary’s interpretation of the requirements of Title I should be informed by the statutory provisions, regulations, and other guidelines provided by the Department at that time. As explained infra, we have no occasion in this case to address the circumstances, if any, in which the Secretary could impose liability for expenditures made in reliance upon an earlier interpretation provided by the Department, cf. Bell v. New Jersey, 461 U. S., at 794 (White, J., concurring), or to decide if a State may be held liable where its interpretation of an ambiguous requirement is more reasonable than an interpretation advanced by the Secretary after the grants were made.
We agree with the Secretary that the readiness classes approved by Kentucky clearly violated existing statutory and regulatory provisions that prohibited supplanting. It is undisputed that Title I funds were used to pay substantially all
I — I <1 the costs for the basic education of students in the readiness classes. Absent these classes funded by Title I, the participating students would have received instruction in regular classes supported by state and local funds. Both the statutory provision and the implementing regulations expressly required that Title I funds not be used to supplant state and local funds for the pupils participating in Title I programs. The statute declared that Title I funds must be used “to supplement. . . the level of funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs and projects assisted under this subchapter, and ... in no case, ... to supplant such funds from non-Federal sources.” 20 U. S. C. § 241e(a)(3)(B) (1970 ed.). The applicable regulation similarly provided: “Federal funds made available . . . will be used to supplement, and to the extent practical increase, the level of State and local funds that would ... be made available for the education of pupils participating in that project [and] will not be used to supplant State and local funds available for the education of such pupils.” 45 CFR § 116.17(h) (1974).
Based on the language of the statute and the regulation, we cannot agree that there was an ambiguity whether the supplanting prohibition would be satisfied if state and local funding was maintained at the level of the school district, school, or grade. Separate statutory provisions required that state and local spending not be reduced at the level of school districts, 20 U. S. C. §241g(c)(2) (1970 ed.); 45 CFR § 116.45 (1974), or individual schools. 20 U. S. C. §241e(a)(3)(C) (1970 ed.); 45 CFR § 116.26 (1974). See generally NIE Report 9-10 (explaining relationship of various provisions). Although funding was maintained at the level of particular grades, because Title I students were placed in separate classes supported by federal funds, the consequence was to increase per-pupil state and local expenditures for students who remained in regular first- and second-grade classes. No plausible reading of the statute or regulations suggests that this result comports with the prohibitions on supplanting. As noted by the Board, if the State was uncertain on this point, it could have sought clarification from the Office of Education. App. to Pet. for Cert. 27a. In fact, the grant applications approved by the State expressly required the local school districts to explain:
“How will you organize the program to assure that children participating in the component activity will receive this Title I service in addition to services to which they are ordinarily entitled from state and local school funds?” Ibid.
Kentucky, moreover, has not shown that the position now taken by the Secretary is inconsistent with earlier guidelines provided by the Department. The State notes that Office of Education Program Review teams visited schools in Kentucky in which the readiness classes were offered and made no objection to the classes. Nonetheless, Kentucky does not challenge the finding by the Education Appeal Board, see id., at 23a, that there is no evidence in the record that the teams reviewed the financing of the readiness classes. Kentucky further contends that the ambiguity of the supplanting provisions is demonstrated by the fact that the Secretary modified the Board’s order to reduce the demanded repayment. This argument is unpersuasive. The modification reflects the Secretary’s determination that Title I funds provided some additional benefits to the students in the readiness classes because the classes had smaller pupil-teacher ratios, but it does not cast any doubt on the Board’s finding that supplanting occurred.
We note, finally, that the possibility that application of the supplanting provisions might be unclear-in other contexts does not affect our resolution of this case. Congress, in considering the 1978 Amendments, observed that the supplanting regulations had been applied in an unclear and inconsistent manner. See H. R. Rep. No. 95-1137, at 29, 49; S. Rep. No. 95-856, at 15, 27. This situation resulted in part from debate within the Office of Education concerning the desirability and practicality of measuring supplanting at the level of expenditures upon individual students. See NIE Report 29-38. Difficult questions of interpretation may well arise in determining if a particular program violated the supplanting provisions, and we do not suggest that the prior position of the Department is irrelevant in this regard. We conclude, however, that the programs approved by Kentucky for fiscal year 1974 clearly violated then-existing requirements for Title I, and therefore neither ambiguity in the application of those requirements to other situations nor the policy debates that later arose within the Office of Education avail the State here.
V
We hold that the Secretary properly determined that Kentucky violated its assurances by approving the readiness classes and thereby misused funds received under Title I. Before the Court of Appeals, Kentucky also challenged the calculation of the amount to be repaid. The Court of Appeals did not address this argument, 717 F. 2d, at 950, and the State may renew its contentions in this regard on remand. Accordingly, the judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Powell took no part in the consideration or decision of this case.
Justice White and Justice Blackmun join only Parts I, II, IV, and V of this opinion.
The Office of Education was the predecessor to the present Department of Education and was responsible for the administration of Title I until 1980. See Bell v. New Jersey, 461 U. S. 773, 776, n. 1 (1983). Unless the distinction is significant, we will refer to both the Office of Education and the Department of Education as the Department. Ibid.
In Bell v. New Jersey we held that provisions in the 1978 Amendments expressly authorizing judicial review of final decisions by the Secretary or the Board applied retroactively. 461 U. S., at 777-778, and n. 3. We declined to decide, however, whether the provisions allowing the Secretary to recover misused funds were also retroactive, id., at 782, because we held that § 415 of the General Education Provisions Act, Pub. L. 91-230, 84 Stat. 170, 20 U. S. C. § 1226a-1, created a right to impose liability on the States. 461 U. S., at 784, 791. Neither the language of § 415 nor Bell v. New Jersey suggests that the Secretary’s right to recover is affected by a recipient’s substantial compliance with the law. Given our conclusion that the references to substantial compliance in §§ 1234b and 1234c do not limit the right to repayment provided in § 1234a, we need not decide whether the latter section is remedial, rather than substantive, and thus retroactive. Cf. Bennett v. New Jersey, ante, at 637 (substantive standards of 1978 Amendments are not retroactive).
Although the view of a later Congress does not definitively establish the meaning of an earlier enactment, it does have some persuasive value. Bell v. New Jersey, 461 U. S., at 784-785. Accordingly, we note that Congress has rejected a proposal to amend the audit provisions to add a substantial compliance standard. See 130 Cong. Rec. H7902-H7903 (July 26, 1984) (§ 808(a) of H. R. 11); id., at H10756 (Oct. 2, 1984) (deletion of § 808(a) in conference). Similarly, when a proposal to excuse liability for funds misused before 1978 was debated and ultimately defeated on a point of order, Members of Congress noted that the Department had sought repayment notwithstanding the absence of bad faith or fraud on the part of recipients. See 127 Cong. Rec. 10644 (1981) (remarks of Sen. Thurmond); id., at 10646 (remarks of Sen. Stennis). These actions suggest that later Congresses understood that liability is not conditioned on substantial compliance or bad faith.
At oral argument before the Board, the State argued that some “measure of estoppel” should operate against the Department and moved to reopen the record to present additional evidence. The Board ruled that estoppel would not apply absent affirmative misconduct by the Government, and because Kentucky had not alleged such misconduct, it declined to reopen the record. App. to Pet. for Cert. 28a. The Court of Appeals did not discuss estoppel arguments, and Kentucky acknowledged before this Court that it was not making any estoppel claim. Tr. of Oral Arg. 39, 43. Accordingly, we do not address the application of the defense of estoppel. Cf. Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51, 60 (1984) (reserving issue of assertion by private party of estoppel against Government).
Because the disputed expenditures violated a substantive requirement concerning the use of Title I funds, we do not address in this case whether the Secretary could demand repayment for no more than a technical violation of a grant agreement. Cf. Bell v. New Jersey, 461 U. S., at 794 (White, J., concurring). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
29
] |
ALLEN et al. v. STATE BOARD OF ELECTIONS et al.
No. 3.
Argued October 15, 1968.
Decided March 3, 1969.
Norman C. Amaker argued the cause for appellants in No. 3. With him on the brief were Jack Greenberg, James M. Nabrit III, Oliver W. Hill, S. W. Tucker, Henry L. Marsh III, and Anthony G. Amsterdam. Armand Derfner and Elliott C. Lichtman argued the cause for appellants in Nos. 25, 26, and 36. Lawrence Aschenbrenner was on the brief for appellants in Nos. 25 and 26. With Mr. Derfner on the brief for appellants in No. 36 were Alvin J. Bronstein and Richard B. Sobol.
R. D. Mcllwaine III, First Assistant Attorney General of Virginia, argued the cause for appellees in No. 3. With him on the brief were Robert Y. Button, Attorney General, William R. Blandjord, and William C. Carter. William A. Allain and Will S. Wells, Assistant Attorneys General of Mississippi, argued the cause for appellees in Nos. 25, 26, and 36. With Mr. Allain on the brief for appellees in No. 25 were Joe T. Patterson, Attorney General, and Dudley W. Conner. With Mr. Wells on the briefs for appellees in Nos. 26 and 36 was Mr. Patterson.
Assistant Attorney General Poliak argued the cause for the United States, as amicus curiae, urging reversal in Nos. 25, 26, and 36. With him on the brief were Solicitor General Grisioold, Louis F. Claiborne, Francis X. Bey-tagh, Jr., and Nathan Lewin.
Together with No. 25, Fairley et al. v. Patterson, Attorney General of Mississippi, et al., No. 26, Bunion et al. v. Patterson, Attorney General of Mississippi, et al., and No. 36, Whitley et al. v. Williams, Governor of Mississippi, et al., on appeal from the United States District Court for the Southern District of Mississippi, argued on October 16, 1968.
Mr. Chief Justice Warren
delivered the opinion of the Court.
These four cases, three from Mississippi and one from Virginia, involve the application of the Voting Rights Act of 1965 to state election laws and regulations. The Mississippi cases were consolidated on appeal and argued together in this Court. Because of the grounds on which we decide all four cases, the appeal in the Virginia case is also disposed of by this opinion.
In South Carolina v. Katzenbach, 383 U. S. 301 (1966), we held the provisions of the Act involved in these cases to be constitutional. These cases merely require us to determine whether the various state enactments involved are subject to the requirements of the Act.
We gave detailed treatment to the history and purposes of the Voting Rights Act in South Carolina v. Katzenbach, supra. Briefly, the Act implemented Congress’ firm intention to rid the country of racial discrimination in voting. It provided stringent new remedies against those practices which have most frequently denied citizens the right to vote on the basis of their race. Thus, in States covered by the Act, literacy tests and similar voting qualifications were suspended for a period of five years from the last occurrence of substantial voting discrimination. However, Congress apparently feared that the mere suspension of existing tests would not completely solve the problem, given the history some States had of simply enacting new and slightly different requirements with the same discriminatory effect. Not underestimating the ingenuity of those bent on preventing Negroes from voting, Congress therefore enacted § 5, the focal point of these cases.
Under § 5, if a State .covered by the Act passes any “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964,” no person can be deprived of his right to vote “for failure to comply with” the new enactment “unless and until” the State seeks and receives a declaratory judgment in the United States District Court for the District of Columbia that the new enactment “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.” 79 Stat. 439, 42 U. S. C. § 1973c (1964 ed., Supp. I). See Appendix, infra.
. However, § 5 does not necessitate that a covered State obtain a declaratory judgment action before it can enforce any change in its election laws. It provides that a State may enforce a new enactment if the State submits the new provision to the Attorney General of the United States and, within 60 days of the submission, the Attorney General does not formally object to the new statute or regulation. The Attorney General does not act as a court in approving or disapproving the state legislation. If the Attorney General objects to the new enactment, the State may still enforce the legislation upon securing a declaratory judgment in the District Court for the District of Columbia. Also, the State is not required to first submit the new enactment to the Attorney General as it may go directly to the District Court for the District of Columbia. The provision for submission to the Attorney General merely gives the covered State a rapid method of rendering a new state election law enforceable. Once the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by § 5.
In these four cases, the States have passed new laws or issued new regulations. The central issue is whether these provisions fall within the prohibition of § 5 that prevents the enforcement of “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” unless the State first complies with one of the section's approval procedures.
No. 25, Fairley v. Patterson, involves a 1966 amendment to § 2870 of the Mississippi Code of 1942. The amendment provides that the board of supervisors of each county may adopt an order providing that board members be elected at large by all qualified electors of the county. Prior to the 1966 amendment, all counties by law were divided into five districts; each district elected one member of the board of supervisors. After the amendment, Adams and Forrest Counties adopted the authorized orders, specifying that each candidate must run at large, but also requiring that each candidate be a resident of the county district he seeks to represent.
The appellants are qualified electors and potential candidates in the two counties. They sought a declaratory judgment in the United States District Court for the Southern District of Mississippi that the amendment to § 2870 was subject to the provisions of § 5 of the Act and hence could not be enforced until the State complied with the approval requirements of § 5.
No. 26, Bunton v. Patterson, concerns a 1966 amendment to § 6271-08 of the Mississippi Code. The amendment provides that in 11 specified counties, the county-superintendent of education shall be appointed by the board of education. Before the enactment of this amendment, all these counties had the option of electing or appointing the superintendent. Appellants are qualified electors and potential candidates for the position of county superintendent of education in three of the counties covered by the 1966 amendment. They sought a declaratory judgment that the amendment was subject to § 5, and thus unenforceable unless the State complied with the § 5 approval requirements.
No. 36, Whitley v. Williams, involves a 1966 amendment to § 3260 of the Mississippi Code, which changed the requirements for independent candidates running in general elections. The amendment makes four revisions: (1) it establishes a new rule that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election; (2) the time for filing a petition as an independent candidate is changed to 60 days before the primary election from the previous 40 days before the general election; (3) the number of signatures of qualified electors needed for the independent qualifying petition is increased substantially; and (4) a new provision is added that each qualified elector who signs the independent qualifying petition must personally sign the petition and must include his polling precinct and county. Appellants are potential candidates whose nominating petitions for independent listing on the ballot were rejected for failure to comply with one or more of the amended provisions.
In all three of these cases, the three-judge District Court ruled that the amendments to the Mississippi Code did not come within the purview of and are not covered by § 5, and dismissed the complaints. Appellants brought direct appeals to this Court. We consolidated the cases and postponed consideration of jurisdiction to a hearing on the merits. 392 U. S. 902 (1968).
No. 3, Allen v. State Board of Elections, concerns a bulletin issued by the Virginia Board of Elections to all election judges. The bulletin was an attempt to modify the provisions of § 24 — 252 of the Code of Virginia of 1950 which provides, inter alia, that “any voter [may] place on the official ballot the name of any person in his own handwriting The Virginia Code (§ 24— 251) further provides that voters with a physical incapacity may be assisted in preparing their ballots. For example, one who is blind may be aided in the preparation of his ballot by a person of his choice. Those unable to mark their ballots due to any other physical disability may be assisted by one of the election judges. However, no statutory provision is made for assistance to those who wish to write in a name, but who are unable to do so because of illiteracy. When Virginia was brought under the coverage of the Voting Rights Act of 1965, Virginia election officials apparently thought that the provision in § 24-252, requiring a voter to cast a write-in vote in the voter’s own handwriting, was incompatible with the provisions of § 4 (a) of the Act suspending the enforcement of any test or device as a prerequisite to voting. Therefore, the Board of Elections issued a bulletin to all election judges, instructing that the election judge could aid any qualified voter in the preparation of his ballot, if the voter so requests and if the voter is unable to mark his ballot due to illiteracy.
Appellants are functionally illiterate registered voters from the Fourth Congressional District of Virginia. They brought a declaratory judgment action in the United States District Court for the Eastern District of Virginia, claiming that § 24-252 and the modifying bulletin violate the Equal Protection Clause of the Fourteenth Amendment and the Voting Rights Act of 1965. A three-judge court was convened and the complaint dismissed. A direct appeal was brought to this Court and we postponed consideration of jurisdiction to a hearing on the merits. 392 U. S. 902 (1968).
In the 1966 elections, appellants attempted to vote for a write-in candidate by sticking labels, printed with the name of their candidate, on the ballot. The election officials refused to count appellants’ ballots, claiming that the Virginia election law did not authorize marking ballots with labels. As the election outcome would not have been changed had the disputed ballots been counted, appellants sought only prospective relief. In the District Court, appellants did not assert that § 5 precluded enforcement of the procedure prescribed by the bulletin. Rather, they argued § 4 suspended altogether the requirement of § 24-252 that the voter write the name of his choice in the voter’s own handwriting. Appellants first raised the applicability of § 5 in their jurisdictional statement filed with this Court. We are not precluded from considering the applicability of § 5, however. The Virginia legislation was generally attacked on the ground that it was inconsistent with the Voting Rights Act. Where all the facts are undisputed, this Court may, in the interests of judicial economy, determine the applicability of the provisions of that Act, even though some specific sections were not argued below.
We postponed consideration of our jurisdiction in these cases to a hearing on the merits. Therefore, before reaching the merits, we first determine whether these cases are properly before us on direct appeal from the district courts.
I.
These suits-were instituted by private citizens; an initial question is whether private litigants may invoke the jurisdiction of the district courts to obtain the relief requested in these suits. 28 U. S. C. § 1343 provides: “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: . . . (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.” Clearly, if § 5 authorizes appellants to secure the relief sought, the district courts had jurisdiction over these suits.
The Voting Rights Act does not explicitly grant or deny private parties authorization to seek a declaratory judgment that a State has failed to comply with the provisions of the Act. However, § 5 does provide that “no person shall be denied the right to vote for failure to comply with [a new state enactment covered by, but not approved under, § 5].” Analysis of this language in light of the major purpose of the Act indicates that appellants may seek a declaratory judgment that a new state enactment is governed by § 5. Further, after proving that the State has failed to submit the covered enactment for § 5 approval, the private party has standing to obtain an injunction against further enforcement, pending the State’s submission of the legislation pursuant to § 5.
The Act was drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens. South Carolina v. Katzenbach, supra, at 308, 309. Congress realized that existing remedies were inadequate to accomplish this purpose and drafted an unusual, and in some aspects a severe, procedure for insuring that States would not discriminate on the basis of race in the enforcement of their voting laws.
The achievement of the Act’s laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General. For example, the provisions of the Act extend to States and the subdivisions thereof. The Attorney General has a limited staff and often might be unable to uncover quickly new regulations and enactments passed at the varying levels of state government. It is consistent with the broad purpose of the Act to allow the individual citizen standing to insure that his city or county government complies with the § 5 approval requirements.
We have previously held that a federal statute passed to protect a class of citizens, although not specifically authorizing members of the protected class to institute suit, nevertheless implied a private right of action. In J. I. Case Co. v. Borak, 377 U. S. 426 (1964), we were called upon to consider § 14 (a) of the Securities Exchange Act of 1934. 48 Stat. 895, 15 II. S. C. § 78n (a). That section provides that it shall be “unlawful for any person ... [to violate] such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” We held that “[w]hile this language makes no specific reference to a private right of action, among its chief purposes is 'the protection of investors,’ which certainly implies the availability of judicial relief where necessary to achieve that result.” 377 U. S., at 432.
A similar analysis is applicable here. The guarantee of § 5 that no person shall be denied the right to vote for failure to comply with an unapproved new enactment subject to § 5, might well prove an empty promise unless the private citizen were allowed to seek judicial enforcement of the prohibition.
l-H H-1
Another question involving the jurisdiction of the district courts is presented by § 14 (b) of the Act. It provides that “[n]o court other than the District Court for the District of Columbia . . . shall have jurisdiction to issue any declaratory judgment pursuant to [§ 5] or any restraining order or temporary or permanent injunction against the execution or enforcement of any provision of this Act . . . 79 Stat. 445, 42 U. S. C. § 1973Z (b) (1964 ed., Supp. I). The appellants sought declaratory judgments that the state enactments were subject to § 5 of the Act; appellees thus argue that these actions could be initiated only in the District Court for the District of Columbia.
Section 14 (b) must be read with the Act’s other enforcement provisions. Section 12 (f) provides that the district courts shall have jurisdiction over actions brought pursuant to § 12 (d) to enjoin a person from acting when “there are reasonable grounds to believe that [such person] is about to engage in any act or practice prohibited by [§ 5].” These § 12 (f) injunctive actions are distinguishable from the actions mentioned in § 14 (b). The § 14 (b) injunctive action is one aimed at prohibiting enforcement of the provisions of the Voting Rights Act, and would involve an attack on the constitutionality of the Act itself. See Katzenbach v. Morgan, 384 U. S. 641 (1966). On the other hand, the § 12 (f) action is aimed at prohibiting the enforcement of a state enactment that is for some reason violative of the Act. Cf. United States v. Ward, 352 F. 2d 329 (C. A. 5th Cir. 1965); Perez v. Rhiddlehoover, 247 F. Supp. 65 (D. C. E. D. La. 1965).
A similar distinction is possible with respect to declaratory judgments. A declaratory judgment brought by the State pursuant to § 5 requires an adjudication that a new enactment does not have the purpose or effect of racial discrimination. However, a declaratory judgment action brought by a private litigant does not require the Court to reach this difficult substantive issue. The only issue is whether a particular state enactment is subject to the provisions of the Voting Rights Act, and therefore must be submitted for approval before enforcement. The difference in the magnitude of these two issues suggests that Congress did not intend that both can be decided only by the District of Columbia District Court. Indeed, the specific grant of jurisdiction to the district courts in § 12 (f) indicates Congress intended to treat “coverage” questions differently from “substantive discrimination” questions. See Perez v. Rhiddlehoover, supra, at 72.
Moreover, as we indicated in South Carolina v. Katzenbach, supra, the power of Congress to require suits to be brought only in the District of Columbia District Court is grounded in Congress’ power, under Art. Ill, § 1, to “ordain and establish” inferior federal tribunals. We further noted Congress did not exceed constitutional bounds in imposing limitations on “litigation against the Federal Government. . . .” 383 U. S., at 332 (emphasis added). Of course, in declaratory judgment actions brought by private litigants, the United States will not be a party. This distinction further suggests interpreting § 14 (b) as applying only to declaratory judgment actions brought by the State.
There are strong reasons for adoption of this interpretation. Requiring that declaratory judgment actions be brought in the District of Columbia places a burden on the plaintiff. The enormity of the burden, of course, will vary with the size of the plaintiff’s resources. Admittedly, it would be easier for States to bring § 5 actions in the district courts in their own States. However, the State has sufficient resources to prosecute the actions easily in the Nation’s Capital; and, Congress has power to regulate which federal court shall hear suits against the Federal Government. On the other hand, the individual litigant will often not have sufficient resources to maintain an action easily outside the district in which he resides, especially in cases where the individual litigant is attacking a local city or county regulation. Thus, for the individual litigant, the District of Columbia burden may be sufficient to preclude him from bringing suit.
We hold that the restriction of § 14 (b) does not apply to suits brought by private litigants seeking a declaratory judgment that a new state enactment is subject to the approval requirements of § 5, and that these actions may be brought in the local district court pursuant to 28 U. S. C. § 1343 (4).
III.
A final jurisdictional question remains. These actions were all heard before three-judge district courts. We have jurisdiction over an appeal brought directly from the three-judge court only if the three-judge court was properly convened. Pennsylvania Public Utility Comm’n v. Pennsylvania R. Co., 382 U. S. 281 (1965); Zemel v. Rusk, 381 U. S. 1, 5 (1965); see 28 U. S. C. § 1253. Appellants initially claimed that the statutes and regulations in question violated the Fifteenth Amendment. However, by stipulation these claims were removed from the cases prior to a hearing in the District Court and the cases were submitted solely on the question of the applicability of § 5. We held in Swift & Co. v. Wickham, 382 U. S. 111, 127 (1965), that a three-judge court is not required under 28 U. S. C. § 2281 if the state statute is attacked on the grounds that it is in conflict with a federal statute and consequently violates the Supremacy Clause. These suits involve such an attack and, in the absence of a statute authorizing a three-judge court, would not be proper before a district court of three judges.
Appellants maintain that § 5 authorizes a three-judge court in suits brought by private litigants to enforce the approval requirements of the section. The final sentence of § 5 provides that “[a]ny action under this section shall be heard and determined by a court of three judges . . . and any appeal shall lie to the Supreme Court.” 42 U. S. C. § 1973c (1964 ed., Supp. I) (emphasis added). Appellees argue that this sentence refers only to the action specifically mentioned in the first sentence of § 5 (i e., declaratory judgment suits brought by the State) and does not apply to suits brought by the private litigant.
As we have interpreted § 5, suits involving the section may be brought in at least three ways. First, of course, the State may institute a declaratory judgment action. Second, an individual may bring a suit for declaratory judgment and injunctive relief, claiming that a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny. Third, the Attorney General may bring an injunctive action to prohibit the enforcement of a new regulation because of the State’s failure to obtain approval under § 5. All these suits may be viewed as being brought “under” § 5. The issue is whether the language “under this section” should be interpreted as authorizing a three-judge action in these suits.
We have long held that congressional enactments providing for the convening of three-judge courts must be strictly construed. Phillips v. United States, 312 U. S. 246 (1941). Convening a three-judge court places a burden on our federal court system, and may often result in a delay in a matter needing swift initial adjudication. See Swift & Co. v. Wickham, supra, at 128. Also, a direct appeal may be taken from a three-judge court to this Court, thus depriving us of the wise and often crucial adjudications of the courts of appeals. Thus we have been reluctant to extend the range of cases necessitating the convening of three-judge courts. Ibid.
However, we have not been unaware of the legitimate reasons that prompted Congress to enact three-judge-court legislation. See Swift & Co. v. Wickham, supra, at 116-119. Notwithstanding the problems for judicial administration, Congress has determined that three-judge courts are desirable in a number of circumstances involving confrontations between state and federal power or in circumstances involving a potential for substantial interference with government administration. The Voting Rights Act of 1965 is an example. Federal supervision over the enforcement of state legislation always poses difficult problems for our federal system. The problems are especially difficult when the enforcement of state enactments may be enjoined and state election procedures suspended because the State has failed to comply with a federal approval procedure.
In drafting § 5, Congress apparently concluded that if the governing authorities of a State differ with the Attorney General of the United States concerning the purpose or effect of a change in voting procedures, it is inappropriate to have that difference resolved by a single district judge. The clash between federal and state power and the potential disruption to state government are apparent. There is no less a clash and potential for disruption when the disagreement concerns whether a state enactment is subject to § 5. The result of both suits can be an injunction prohibiting the State from enforcing its election laws. Although a suit brought by the individual citizen may not involve the same federal-state confrontation, the potential for disruption of state election procedures remains.
Other provisions of the Act indicate that Congress was well aware of the extraordinary effect the Act might have on federal-state relationships and the orderly operation of state government. For example, § 10, which prohibits the collection of poll taxes as a prerequisite to voting, contains a provision authorizing a three-judge court when the Attorney General brings an action “against the enforcement of any requirement of the payment of a poll tax as a precondition to voting . . . .” 79 Stat. 442, 42 U. S. C. §§ 1973h (a)-(c) (1964 ed., Supp. I). See also 42 ü. S. C. § 1973b (a) (1964 ed., Supp. I).
We conclude that in light of the extraordinary nature of the Act in general, and the unique approval requirements of § 5, Congress intended that disputes involving the coverage of § 5 be determined by a district court of three judges.
IV.
Finding that these cases are properly before us, we turn to a consideration of whether these state enactments are subject to the approval requirements of § 5. These requirements apply to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting . . . .” 42 U. S. C. § 1973c (1964 ed., Supp. I). The Act further provides that the term “voting” “shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing ... or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.” §14 (c)(1), 79 Stat. 445, 42 U. S. C. § 19731 (c)(1) (1964 ed., Supp. I). See Appendix, infra. Appellees in the Mississippi cases maintain that § 5 covers only those state enactments which prescribe who may register to vote. While accepting that the Act is broad enough to insure that the votes of all citizens should be cast, appellees urge that § 5 does not cover state rules relating to the qualification of candidates or to state decisions as to which offices shall be elective.
Appellees rely on the legislative history of the Act to support their view, citing the testimony of former Assistant Attorney General Burke Marshall before a subcommittee of the House Committee on the Judiciary:
“Mr. Corman. We have not talked at all about whether we have to be concerned with not only who can vote, but who can run for public office and that has been an issue in some areas in the South in 1964. Have you given any consideration to whether or not this bill ought to address itself to the qualifications for running for public office as well as the problem of registration?
“Mr. Marshall. The problem that the bill was aimed at was the problem of registration, Congressman. If there is a problem of another sort, I would like to see it corrected, but that is not what we were trying to deal with in the bill.”
Appellees in No. 25 also argue that § 5 was not intended to apply to a change from district to at-large voting, because application of § 5 would cause a conflict in the administration of reapportionment legislation. They contend that under such a broad reading of § 5, enforcement of a reapportionment plan could be enjoined for failure to meet the § 5 approval requirements, even though the plan had been approved by a federal court. Appellees urge that Congress could not have intended to force the States to submit a reapportionment plan to two different courts.
We must reject a narrow construction that appellees would give to § 5. The Voting Rights Act was 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. Moreover, compatible with the decisions of this Court, the Act gives a broad interpretation to the right to vote, recognizing that voting includes "all action necessary to make a vote effective.” 79 Stat. 445, 42 U. S. C. § 19731(c)(1) (1964 ed., Supp. I). See Reynolds v. Sims, 377 U. S. 533, 555 (1964). We are convinced that in passing the Voting Rights Act, Congress intended that state enactments such as those involved in the instant cases be subject to the § 5 approval requirements.
The legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way. For example, § 2 of the Act, as originally drafted, included a prohibition against any “qualification or procedure.” During the Senate hearings on the bill, Senator Fong expressed concern that the word “procedure” was not broad enough to cover various practices that might effectively be employed to deny citizens their right to vote. In response, the Attorney General said he had no objection to expanding the language of the section, as the word “procedure” “was intended to be all-inclusive of any kind of practice.” Indicative of an intention to give the Act the broadest possible scope, Congress expanded the language in the final version of § 2 to include any “voting qualifications or prerequisite to voting, or standard, practice, or procedure.” 42 U. S. C. § 1973 (1964 ed., Supp. I).
Similarly, in the House hearings, it was emphasized that § 5 was to have a broad scope:
“Mr. Katzenbach. The justification for [the approval requirements] is simply this: Our experience in the areas that would be covered by this bill has been such as to indicate frequently on the part of State legislatures a desire in a sense to outguess the courts of the United States or even to outguess the Congress of the United States. . . . [A]s the Chairman may recall ... at the time of the initial school desegregation, . . . the legislature passed I don’t know how many laws in the shortest period of time. Every time the judge issued a decree, the legislature . . . passed a law to frustrate that decree.
“If I recollect correctly, the school board was ordered to do something and the legislature immediately took away all authority of the school boards. They withdrew all funds from them to accomplish the purposes of the act.” House Hearings 60.
Also, the remarks of both opponents and proponents during the debate over passage of the Act demonstrate that Congress was well aware of another admonition of the Attorney General. He had stated in the House hearings that two or three types of changes in state election law (such as changing from paper ballots to voting machines) could be specifically excluded from § 5 without undermining the purpose of the section. He emphasized, however, that there were “precious few” changes that could be excluded “because there are an awful lot of things that could be started for purposes of evading the 15th amendment if there is the desire to do so.” House Hearings 95. It is significant that Congress chose not to include even these minor exceptions in § 5, thus indicating an intention that all changes, no matter how small, be subjected to § 5 scrutiny.
In light of the mass of legislative history to the contrary, especially the Attorney General’s clear indication that the section was to have a broad scope and Congress’ refusal to engraft even minor exceptions, the single remark of Assistant Attorney General Burke Marshall cannot be given determinative weight. Indeed, in any case where the legislative hearings and debate are so voluminous, no single statement or excerpt of testimony can be conclusive. Also, the question of whether § 5 might cause problems in the implementation of reapportionment legislation is not properly before us at this time. There is no direct conflict between our interpretation of this statute and the principles involved in the reapportionment cases. The argument that some administrative problem might arise in the future does not establish that Congress intended that § 5 have a narrow scope; we leave to another case a consideration of any possible conflict.
The weight of the legislative history and an analysis of the basic purposes of the Act indicate that the enactment in each of these cases constitutes a “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” within the meaning of § 5.
No. 25 involves a change from district to at-large voting for county supervisors. The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot. See Reynolds v. Sims, 377 U. S. 533, 555 (1964). Voters who are members of a racial minority might well be in the majority in one district, but in a decided minority in the county as a whole. This type of change could therefore nullify their ability to elect the candidate of their choice just as would prohibiting some of them from voting.
In No. 26 an important county officer in certain counties was made appointive instead of elective. The power of a citizen’s vote is affected by this amendment; after the change, he is prohibited from electing an officer formerly subject to the approval of the voters. Such a change could be made either with or without a discriminatory purpose or effect; however, the purpose of § 5 was to submit such changes to scrutiny.
The changes in No. 36 appear aimed at increasing the difficulty for an independent candidate to gain a position on the general election ballot. These changes might also undermine the effectiveness of voters who wish to elect independent candidates. One change involved in No. 36 deserves special note. The amendment provides that no person who has voted in a primary election may thereafter be placed on the ballot as an independent candidate in the general election. This is a “procedure with respect to voting” with substantial impact. One must forgo his right to vote in his party primary if he thinks he might later wish to become an independent candidate.
The bulletin in No. 3 outlines new procedures for casting write-in votes. As in all these cases, we do not consider whether this change has a discriminatory purpose or effect. It is clear, however, that the new procedure with respect to voting is different from the procedure in effect when the State became subject to the Act; therefore, the enactment must meet the approval requirements of § 5 in order to be enforceable.
In these cases, as in so many others that come before us, we are called upon to determine the applicability of a statute where the language of the statute does not make crystal clear its intended scope. In all such cases we are compelled to resort to the legislative history to determine whether, in light of the articulated purposes of the legislation, Congress intended that the statute apply to the particular cases in question. We are of the opinion that, with the exception of the statement of Assistant Attorney General Burke Marshall, the balance of legislative history (including the statements of the Attorney General and congressional action expanding the language) indicates that § 5 applies to these cases. In saying this, we of course express no view on the merit of these enactments; we also emphasize that our decision indicates no opinion concerning their constitutionality.
Y.
Appellees in the Mississippi cases argue that even if these state enactments are covered by § 5, they may now be enforced, since the State submitted them to the Attorney General and he has failed to object. While appellees admit that they have made no “formal” submission to the Attorney General, they argue that no formality is required. They say that once the Attorney General has become aware of the state enactment, the enactment has been “submitted” for purposes of § 5. Appellees contend that the Attorney General became aware of the enactments when served with a copy of appellees’ briefs in these cases.
We reject this argument. While the Attorney General has not required any formal procedure, we do not think the Act contemplates that a “submission” occurs when the Attorney General merely becomes aware of the legislation, no matter in what manner. Nor do we think the service of the briefs on the Attorney General constituted a “submission.” A fair interpretation of the Act requires that the State in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act.
VI.
Appellants in the Mississippi cases have asked this Court to set aside the elections conducted pursuant to these enactments and order that new elections be held under the pre-amendment laws. The Solicitor General has also urged us to order new elections if the State does not promptly institute § 5 approval proceedings. We decline to take corrective action of such consequence, however. These § 5 coverage questions involve complex issues of first impression — issues subject to rational disagreement. The state enactments were not so clearly subject to § 5 that the appellees’ failure to submit them for approval constituted deliberate defiance of the Act. Moreover, the discriminatory purpose or effect of these statutes, if any, has not been determined by any court. We give only prospective effect to our decision, bearing in mind that our judgment today does not end the matter so far as these States are concerned. They remain subject to the continuing strictures of § 5 until they obtain from the United States District Court for the District of Columbia a declaratory judgment that for at least five years they have not used the “tests or devices” prohibited by § 4. 42 U. S. C. § 1973b (a) (1964 ed., Supp. I).
In No. 3 the judgment of the District Court is vacated; in Nos. 25, 26, and 36 the judgments of the District Court are reversed. All four cases are remanded to the District Courts with instructions to issue injunctions restraining the further enforcement of the enactments until such time as the States adequately demonstrate compliance with § 5.
It is so ordered.
APPENDIX TO OPINION OF THE COURT.
Changes in the Mississippi statutes are indicated as follows: material added by amendment is italicized and material deleted by amendment is underscored. Portions of the statutes unchanged by amendment are printed in plain roman.
Section 5 of the Voting Rights Act of 1965:
“Whenever a State or political subdivision with respect to which the prohibitions set forth in section 4 (a) [42 U. S. C. § 1973b (a) ] are in effect 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 or effect on November 1, 1964, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General’s failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court.” 79 Stat. 439, 42 U. S. C. § 1973c (1964 ed., Supp. I).
The Act further provides:
“The terms ‘vote’ or ‘voting’ shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this Act, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election.” 79- Stat. 445, 42 U. S. C. § 1973Í (c)(1) (1964 ed., Supp. I).
Section 2870 of the Mississippi Code:
“Each county shall be divided into five (5) districts, with due regard to equality of population and convenience of situation for the election of members of the boards of supervisors, but the districts as now existing shall continue until changed. The qualified electors of each district shall elect, at the next general election, and every four (4) years thereafter, in their district, one (1) member of the board of supervisors; and the board, by unanimous vote of all members elected or when so ordered by a vote of the majority of the qualified electors of the districts affected voting in an election as hereinafter provided, may at any time, except as hereinafter provided, change or alter the district, the boundaries to be entered at large in the minutes of the proceedings of the board.
“The board, upon the petition of twenty-five per cent (25%) of the qualified electors of the county, asking that the districts of the county be changed, or altered, and setting out in such petition the changes, or alterations desired, shall call a special election for a date which shall be not less than thirty (30), nor more than sixty (60) days from the date of the presentation of the petition to the assembled board. A majority of the qualified electors of the county shall determine the issue of such election.
“Provided, however, that in any county in the state having a supervisors district containing more than fifty per cent (50%) of the population of the county according to the last federal census and/or more than fifty per cent (50%) of the assessed valuation of the county, the issue of the election heretofore provided for shall be determined by a majority of those participating in said election.
“Provided further, however, that in any county in the state bordering on the Gulf of Mexico or Mississippi Sound and having a population in excess of eighty thousand (80,000) according to the last federal census, the issue of the election heretofore provided for shall be determined by a majority of the qualified electors of the county, and if such majority fail to vote affirmatively, no new petition shall be considered for four (4) years. Each such election shall be based upon a petition of twenty-five per cent (25%) of the qualified electors of the county, and to which petition shall be attached a map or plat defining the boundaries of each beat as proposed by said map or plat, and the election thereon shall be on such proposal.
“And the board, whenever a majority of the qualified electors of the county shall have voted to change or alter the existing districts to those set forth and described in the petition, shall at its first meeting thereafter establish said proposed districts by order on its minutes, to be effective on the first day of January following; and in default thereof, may be commanded to do so by writ of mandamus.
“When - the districts are changed, by the qualified electors in an election as aforesaid, the board, of its own motion, shall not change or alter said districts within four (4) years thereafter.
“The board of supervisors of any county may adopt an order providing that all the qualified electors of the county shall be eligible to vote for each member of the board of supervisors but each candidate shall be a resi dent of the district which he proposes to represent; said order to be adopted and published in a newspaper having general circulation in the county at least twelve {12) months prior to the next general election wherein said supervisors are elected.
“If twenty per cent (20%) of the qualified electors of the county shall present the board of supervisors with a petition objecting to such alternate method within sixty {60) days after the adoption and final publication of any such alternative method, then the board of supervisors shall call an election after publishing notice thereof in a newspaper published in the county once a week for at least three (3) weeks prior to such election and the question on the ballot shall be whether the entire electorate of the county shall be required to vote for the members of the board of supervisors at large, or whether the qualified electors in the said districts shall vote for the candidate in that district. If the majority of those voting vote that all the qualified electors shall be eligible to vote for candidates in each district, then thereafter all elections for members of boards of supervisors shall so be held. If not, members of the boards of supervisors shall continue to be elected by the electorate of their respective districts and the board of supervisors shall not be permitted to adopt this alternative method of electing members of boards of supervisors again until two {2) years have transpired.
“This act shall not be construed to affect any supervisor now holding office until the expiration and end of his present term of office.”
Section 6271-08 of the Mississippi Code:
“(b) Notwithstanding the provisions of subsection (a) hereof, the office of county superintendent of education may be made appointive in any county in the manner herein provided. Upon the filing of a petition signed by not less than twenty per cent (20%) of the qualified electors of such county, it shall be the duty of the board of supervisors of such county, within sixty (60) days after the filing of such petition, to call a special election at which there shall be submitted to the qualified electors of such county the question of whether the office of county superintendent of education of said county shall continue to be elective or shall be filled by appointment by the county board of education of said county. Provided, however, that where a Class Three county having an area in excess of eight hundred twenty-five (825) square miles has a county unit school system comprising less than an entire county, the petition shall only be signed by electors residing within the county unit school district and only electors of said district shall vote on the proposition of appointing the county superintendent of education. The order calling such special election shall designate the date upon which same shall be held and a notice of such election, signed by the clerk of the board of supervisors, shall be published once a week for at least three (3) consecutive weeks in at least one (1) newspaper published in such county. The first publication of such notice shall be made not less than twenty-one (21) days prior to the date fixed for such election and the last publication shall be made not more than seven (7) days prior to such date. If no newspaper is published in such county then such notice shall be given by publication of same for the required time in some newspaper having a general circulation in such county and, in addition, by posting a copy of such notice for at least twenty-one (21) days next preceding such election at three (3) public places in such county, one (1) of which shall be at the door of the county courthouse in each judicial district. Said election shall be held, as far as is practicable, in the same manner as other elections are held in such county and all qualified electors of the county may vote therein. If a majority of such qualified electors who vote in such election shall vote in favor of the appointment of the county superintendent of education by the county board of education then, at the expiration of the term of the county superintendent of education then in office, the county superintendent of education of said county shall not be elected but shall thereafter be appointed by the county board of education for a term of not more than four (4) years; otherwise, said office shall remain elective. No special election shall be held in any county under the provisions of this subsection more often than once in every four (4) years, and no change from the elective to the appointive method of the selection of the county superintendent of education shall become effective except at the expiration of the term of the county superintendent of education in office at the time such election is held.
“In any county of the first class lying wholly within a levee district and within which there is situated a city of more than forty thousand (40,000) population according to the last decennial federal census the county superintendent of education shall hereafter be appointed by the county board of education as above provided.
“In any county of the second class wherein Interstate Highway 55 and State Highway 22 intersect and which is also traversed in tohole or in part by U. S. Highways 49 and 51, and State Highways 16, 17 and 1$ and the Natchez Trace;,in any Class Four county having a population in excess of twenty-five thousand (25,000) according to the 1960 Federal census, traversed by U. S. Interstate Highway 55 and wherein Mississippi Highways 12 and 17 intersect; in any comity created after 1916 through which the Yazoo River flows; in any Class Four county having a land area of six hundred ninety-five (695) square miles, bordering on the State of Alabama, wherein the Treaty of Dancing Rabbit was signed and wherein U. S. Highway J+5 and Mississippi Highway 14 intersect; in any county hordering on the Mississippi River wherein lies the campus of a land-grant institution or lands contiguous thereto owned by the institution; in any county lying within the Yazoo-Mississippi Delta Levee District, hordering upon the Mississippi River, and having a county seat with a population in excess of twenty-one thousand (21,000) according to the Federal census of 1960; in any county having a population of twenty-six thousand seven hundred fifty-nine (26,759) according to the 1960 Federal census, and wherein U. S. Highway 51 and U. S. Highway 84 and the Illinois Central Railroad and the Mississippi Central Railroad intersect; in any Class Three county wherein is partially located a national forest and wherein U. S. Highway 51 and Mississippi Highway 28 intersect, with a 1960 Federal census of twenty-seven ■thousand fifty-one (27,051) and a 1968 assessed valuation of $16,692,804-00; the county superintendent of education hereafter shall he appointed by the county hoard of education.
“In any county hordering on the Gulf of Mexico or Mississippi Sound, having therein a test facility operated by the National Aeronautics and Space Administration, the county superintendent of education shall he appointed by the county hoard of education beginning January 1, 1972.”
Section 3260 of the Mississippi Code:
“The ballot shall contain the names of all candidates who have been put in nomination, not less than forty (40) days previous to the day of the election, by the primary election of any political party. There shall be printed on the ballots the names of all persons so nominated, whether the nomination be otherwise known or not, upon the written request of one or more of the candidates so nominated, or of any qualified elector who will make oath that he was a participant in the primary election, and that the person whose name is presented by him was nominated by such primary election. No person who has voted in a primary election shall thereafter have his name placed upon the ballot as an independent candidate for any office to be determined by the general election; any independent candidate must qualify on or before the time established by statute for qualification of candidates seeking nominations in primary elections. The commissioner shall also have printed on the ballot in any general or special election the name of any candidate who, not having been nominated by a political party, shall have been requested to be a candidate for any office as an independent candidate by a petition filed on or before the statutory time with said commissioner not less than forty (40) days prior to the election, and signed by not less than the following number of qualified electors:
“(a) For an office elected by the state at large, not less than one thousand (1,000) ten thousand {10,000) qualified electors.
“(b) For an office elected by the qualified electors of a supreme court district, not less than three hundred (300) three thousand five hundred {3,600) qualified electors.
“(c) For an office elected by the qualified electors of a congressional district, not less than two hundred (200) two thousand {2,000) qualified electors.
“(d) For an office elected by the qualified electors of a circuit or chancery court district, not less than one hundred (100) one thousand {1,000) qualified electors.
“(e) For an office elected by the qualified electors of a county, a senatorial district, or floatorial [sic] district, a supervisors district, or a municipality having a population of one thousand (1,000) or more, not less than ten per cent {10%) of the qualified electors of said county, senatorial district, supervisors district, or municipality, or not less than five hundred (500), fifty (50) qualified electors, whichever is the lesser.
“(f) For an office elected by the qualified electors of a supervisors district or a municipality having a population of less than one thousand (1,000), not less than fifteen (15) ten per cent (10%) of the qualified electors of said supervisors district or municipality.
“Each elector shall personally sign said petition which signature shall not he counted unless same includes his polling precinct and county.
“There shall he attached to each petition above provided for upon the time of filing with said commission, a certificate from the appropriate registrar or registrars showing the number of qualified electors appearing upon each such petition which the registrar shall furnish to the petitioner upon request.
“Unless the petition required above shall be filed not less than forty (40) days prior to the election, Unless the petition required above shall be filed not later than the time required for primary elections, the name of the person requested to be a candidate, unless nominated by a political party, shall not be placed upon the ballot. The ballot shall contain the names of each candidate for each office, and such names shall be listed under the name of the political party such candidate represents.”
Section 24-252 of the Code of Virginia of 1950:
“Insertion of names on ballots. — At all elections except primary elections it shall be lawful for any voter to place on the official ballot the name of any person in his own handwriting thereon [sic] and to vote for such other person for any office for which he may desire to vote and mark the same by a check (V) or cross (x or +) mark or a line ( — ) immediately preceding the name inserted. Provided, however, that nothing contained in this section shall affect the operation of § 24-251 of the Code of Virginia. No ballot, with a name or names placed thereon in violation of this section, shall be counted for such person.”
The Bulletin issued by the State Board of Elections:
“On August 6, 1965, the ‘Voting Rights Act of 1965’ enacted by the Congress of the United States became effective and is now in force in Virginia. Under the provisions of this Act, any person qualified to vote in the General Election to be held November 2, 1965, who is unable to mark or cast his ballot, in whole or in part, because of a lack of literacy (in addition to any of the reasons set forth in Section 24-251 of the Virginia Code) shall, if he so requests, be aided in the preparation of his ballot by one of the judges of election selected by the voter. The judge of election shall assist the voter, upon his request, in the preparation of his ballot in accordance with the voter’s instructions, and shall not in any manner divulge or indicate, by signs or otherwise, the name or names of the person or persons for whom any voter shall vote.
“These instructions also apply to precincts in which voting machines are used.”
79 Stat. 437, 42 U. S. C. § 1973 et seq. (1964 ed., Supp. I).
In all four cases a three-judge court was convened., Nos. 25, 26, and 36 are direct appeals from the United States District Court for the Southern District of Mississippi. No. 3 is a direct appeal from the United States District Court for the Eastern District of Virginia.
Both States involved in these eases have been determined to be covered by the Act. 30 Fed. Reg. 9897 (August 6, 1965).
See H. R. Rep. No. 439, 89th Cong., 1st Sess., 10-11; S. Rep. No. 162, pt. 3, 89th Cong., 1st Sess., 8, 12.
At the oral argument in the Mississippi cases, Assistant Attorney General Poliak stated that the Department of Justice had received 251 submissions from the States under § 5. He further stated that the Department withheld consent in only one case, and that was where the change was contrary to a prior court decision on the same issue. He said that in two other instances the State inadvertently incorporated by reference another section of state law that contained a prohibited test or device. Transcript of Argument 63.
See Appendix, infra.
In all three cases from Mississippi the original complaint contained other grounds for relief; however, before hearing in the District Court, the parties stipulated that the only issue for decision was whether § 5 applied.
See Appendix, infra.
See Appendix, infra.
The suit was first brought in 1966. Pending a decision on the merits, a three-judge District Court ordered appellants placed on the 1966 general election ballot. Whitley v. Johnson, 260 F. Supp. 630 (D. C. S. D. Miss. 1966). Later, other members of the class which appellants represent were denied places on the ballot for the 1967 general election for failing to comply with the amendment’s requirements.
No. 25, 282 F. Supp. 164, 165 (D. C. S. D. Miss. 1967); No. 26, 281 F. Supp. 918 (D. C. S. D. Miss. 1967).
Appellants assert that this Court has jurisdiction on direct appeal under 28 U. S. C. § 1253 and 42 U. S. C. § 1973c (1964 ed., Supp. I).
Emphasis added. See Appendix, infra.
79 Stat. 438, 42 U. S. C. § 1973b (a) (1964 ed., Supp. I). The Act defines “test or device” as “any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter . . . .” 79 Stat. 438, 42 U. S. C. § 1973b (c) (1964 ed., Supp. I).
See Appendix, infra.
Allen v. State Board of Elections, 268 F. Supp. 218 (D. C. E. D. Va. 1967). The District Court ruled that the requirement that write-in votes be in the voter’s own handwriting was not unconstitutional ; the court further ruled that § 24r-252 was not suspended by § 4 of the Voting Rights Act as it was not a “test or device” as defined by the Act.
See Boynton v. Virginia, 364 U. S. 454, 457 (1960); cf. Bell v. Maryland, 378 U. S. 226, 237-242 (1964); Silver v. United States, 370 U. S. 717, 718 (1962).
Section 12 (f) of the Act, 79 Stat. 444, 42 U. S. C. § 1973j (f) (1964 ed., Supp. I), provides: “The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section and shall exercise the same without regard to whether a person asserting rights under the provisions of this Act shall have exhausted any administrative or other remedies that may be provided by law.” (Emphasis added.)
Appellants have argued this section necessarily implies that private parties may bring suit under the Act, relying on the language “a person.” While this argument has some force, the question is not free from doubt, since the specific references throughout the other subsections of § 12 are to the Attorney General. E. g., §§ 12 (d) and 12 (e). However, we find merit in the argument that the specific references to the Attorney General were included to give the Attorney General power to bring suit to enforce what might otherwise be viewed as “private” rights. See United States v. Baines, 362 U. S. 17, 27 (1960).
In any event, there is certainly no specific exclusion of private actions. Section 12 (f) is at least compatible with 28 U. S. C. § 1343 and might be viewed as authorizing private actions.
It is important to distinguish the instant cases from those brought by a State seeking a declaratory judgment that its new voting laws do not have a discriminatory purpose or effect. Cf. Apache County v. United States, 256 F. Supp. 903 (D. C. D. C. 1966). In the latter type of cases the substantive questions necessary for approval (i. e., discriminatory purpose or effect) are litigated, while in the cases here decided the only question is whether the new legislation must be submitted for approval.
Appellees argue that § 5 only conferred a new “remedy” on the Attorney General of the United States. They argue that it gave citizens no new “rights,” rather it merely gave the Attorney General a more effective means of enforcing the guarantees of the Fifteenth Amendment. It is unnecessary to reach the question of whether the Act creates new “rights” or merely gives plaintiffs seeking to enforce existing rights new “remedies.” However the Act is viewed, the inquiry remains whether the right or remedy has been conferred upon the private litigant.
The enforcement provisions provide that the Attorney General “may institute ... an action” or “may ... file ... an application for an order.” 79 Stat. 443, 42 U. S. C. §§ 1973] (d), (e) (1964 ed., Supp. I) (emphasis added).
Of course the private litigant could always bring suit under the Fifteenth' Amendment. But it was the inadequacy of just these suits for securing the right to vote that prompted Congress to pass the Voting Rights Act. South Carolina v. Katzenbach, supra, at 309.
As of January 1968, the Attorney General had brought only one action to force a State to comply with § 5. United States Commission on Civil Rights, Political Participation 164-165 (1968).
It is significant that the United States has urged that private litigants have standing to seek declaratory and injunctive relief in these suits. Memorandum of the United States as Amicus Curiae 8, n. 7.
79 Stat. 444, 42 U. S. C. §§ 1973j (d), (f) (1964 ed., Supp. I).
This jurisdictional question does not apply to No. 3, however. In No. 3, the three-judge court also considered and ruled on appellants’ claims that the Virginia statute and regulations were in conflict with the Constitution. 268 F. Supp. 218, 220 (D. C. E. D. Va. 1967). Thus, No. 3 is properly before this Court on direct appeal. 28 U. S. C. § 1253.
See, e. g., 42 Stat. 168, 7 U. S. C. § 217 (suits to restrain enforcement of orders of the Secretary of Agriculture); 28 U. S. C. § 2282 (suits to enjoin enforcement of federal statute); 63 Stat. 479, 49 U. S. C. § 305 (g) (suits to review negative orders of the ICC).
Hearings on H. It. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, p. 74 (hereinafter House Hearings).
For example, appellees argue that even though a redistricting plan had been approved by a federal district court, under a broad interpretation of § 5, the Attorney General might bring suit under § 12 (d) (79 Stat. 444, 42 U. S. C. § 1973j (d) (1964 ed., Supp. I)) seeking an injunction because the State had failed to comply with the approval requirements of § 5.
Appellees in No. 3 also argue that § 5 does not apply to the regulation in their case, because that regulation was issued in an attempt to comply with the provisions of the Voting Rights Act. They argue that if § 5 applies to the Virginia regulation, covered States would be prohibited from quickly complying with the Act. We cannot accept this argument, however. A State is not exempted from the coverage of § 5 merely because its legislation is passed in an attempt to comply with the provisions of the Act. To hold otherwise would mean that legislation, allegedly passed to meet the requirements of the Act, would be exempted from § 5 coverage— even though it would have the effect of racial discrimination. It is precisely this situation Congress sought to avoid in passing § 5.
“Congress knew that some of the States covered by § 4 (b) of the Act had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees. Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself.” South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966).
Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, pp. 191-192 (hereinafter Senate Hearings):
“Senator Fong. . . . Mr. Attorney General, turning to section 2 of the bill, which reads as follows:
“ ‘No voting qualification or procedure shall be imposed or applied to deny or abridge the right to vote on account of race or color — ’ there is no definition of the word ‘procedure’ here. I am a little afraid that there may be certain practices that you may not be able to include in the word ‘procedure.’
“For example, if there should be a certain statute in a State that says the registration office shall be open only 1 day in 3, or that the hours will be so restricted, I do not think you can bring such a statute under the word ‘procedure.’ Could you?
“Attorney General Katzenbach. I would suppose that you could if it had that purpose. I had thought of the word ‘procedure’ as
including any kind of practice of that kind if its purpose or effect was to deny or abridge the right to vote on account of race or color.
“Senator Fong. The way it is now written, do you think there may be a possibility that the Court would hassle over the word ‘procedure’? Or would, probably, it allow short registration days or restricted hours to escape this provision of the statute?
“Attorney General Katzenbach. I do not believe so, Senator, although the committee might consider that. The language was used in the 1964 act on a similar matter, did use the terms ‘standards, practices, or procedures.’ Perhaps that would be broader than simply the word ‘procedure’ and perhaps the committee might consider making that point clear.
“Senator Fong. You would have no objection to expanding the word ‘procedure’?
“Attorney General Katzenbach. No; it was intended to be all-inclusive of any kind of practice.
“Senator Fong. I know that in section 3 (a) you have very much in detail spelled out the words ‘test or device.’
“Attorney General Katzenbach. Yes.
“Senator Fong. But you have not spelled out the word ‘procedure.’ I think that the word ‘procedure’ should be spelled out a little more.
“Attorney General Katzenbach. I think that is a good suggestion, Senator.”
E. g., Ill Cong. Rec. 10727 (remarks of Senator Tydings); 111 Cong. Rec. 10725 (remarks of Senator Talmadge); 111 Cong. Rec. 8303 (remarks of Senator Hart).
“The House and Senate Committees on the Judiciary each held hearings for nine days and received testimony from a total of 67 witnesses. More than three full days were consumed discussing the bill on the floor of the House, while the debate in the Senate covered 26 days in all.” South Carolina v. Katzenbach, 383 U. S. 301, 308-309 (1966). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
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"Department or Secretary of the Treasury",
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"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
KARAHALIOS v. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1263
No. 87-636.
Argued January 17, 1989
Decided March 6, 1989
White, J., delivered the opinion for a unanimous Court.
Thomas R. Duffy argued the cause for petitioner. With him on the briefs were Glenn M. Taubman and Todd G. Brower.
H. Stephen Gordon argued the cause fpr respondent. With him on the brief were David Silbennan and Laurence Gold.
Richard G. Taranto argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Fried, Deputy Solicitor General Wallace, William E. Persina, and Arthur A. Horowitz.
Gregory O’Duden and Elaine Kaplan filed a brief for the National Treasury Employees Union as amicus curiae urging affirmance.
Justice White
delivered the opinion of the Court.
The question before the Court is whether Title VII of the Civil Service Reform Act of 1978 (CSRA or Act), 5 U. S. C. § 7101 et seq. (1982 ed. and Supp. IV), confers on federal employees a private cause of action against a breach by a union representing federal employees of its statutory duty of fair representation. Because we decide that Congress vested exclusive enforcement authority over this duty in the Federal Labor Relations Authority (FLRA) and its General Counsel, we agree with the Court of Appeals that no private cause of action exists. Hence we affirm.
Petitioner, Efthimios Karahalios, is a Greek language instructor for the Defense Language Institute/Foreign Language Center, Presidio of Monterey, California (Institute). Karahalios was not a union member but was within a bargaining unit of professional employees for which respondent, the National Federation of Federal Employees, Local 1263 (Union), was the exclusive bargaining agent. In 1976, the Institute reopened its “course developer” position, for which opening Karahalios applied. Previously, the position had been occupied by one Simon Kuntelos, who had been demoted to instructor in 1971, when the Institute first abolished the course developer position. Because Kuntelos declined to seek the reopened job through the competitive application process, Karahalios won the position after scoring 81 on the required examination.
Kuntelos filed a grievance, asserting that the Institute’s job award to Karahalios infringed the collective-bargaining agreement, and that Kuntelos should have been assigned the position without a competitive application process. The Union agreed to arbitrate on behalf of Kuntelos (a Union board member), and successfully argued that the position be declared vacant for refilling. Because promotion selection procedures had altered, Kuntelos was permitted considerably more time on the examination. He scored 83, and in May 1978, the Institute reassigned the course developer opening to Kuntelos and demoted Karahalios to instructor-ship status.
The Institute denied Karahalios’ direct protest against the substitution; likewise, the Union refused to prosecute his grievances because of a perceived conflict of interest with its previous Kuntelos advocacy. Karahalios filed unfair labor practice charges with the FLRA challenging both adverse decisions: He alleged, first, that the Institute violated its collective-bargaining agreement; and, second, that the Union breached its duty of fair representation. The General Counsel of the FLRA upheld Karahalios’ second charge, and ordered that a complaint be issued against the Union. The Union and the FLRA’s Regional Director, however, entered into a settlement whereby the Union posted notice guaranteeing representation to all employees seeking a single position. The General Counsel rejected Karahalios’ contention on appeal that the settlement provided him no relief.
Karahalios then filed a damages suit in the District Court, restating his charges against the Institute and the Union. The District Court, in its first of three published orders, dismissed on jurisdictional grounds Karahalios’ claim against the Institute, but declared judicially cognizable his unfair labor practice charge against the Union. Specifically, the District Court held that 28 U. S. C. § 1331 supports jurisdiction because the CSRA’s grant of exclusive union representation impliedly supplies to federal employees a private right of action to safeguard their right to fair representation. After trial, the District Court ruled that the Union’s actions — notably its decisions to arbitrate for Kuntelos without consulting, or even notifying, Karahalios, and, subsequently, to refuse to represent Karahalios — breached its duty of fair representation owed to him. The court confined damages to attorney’s fees, however, explaining that both applicants were too similarly matched to allow judicial distinction.
The Court of Appeals reversed, stating that the CSRA’s statutory scheme, which creates both an express duty of fair representation and a remedy in the FLRA for infringement of this duty, precludes implication of a parallel right to sue in federal courts. We granted Karahalios’ petition for certio-rari. 486 U. S. 1041 (1988).
Prior to 1978, labor relations in the federal sector were governed by a 1962 Executive Order administered by a Federal Labor Relations Council whose decisions were not subject to judicial review. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U. S. 89, 91-92 (1983). Since 1978, Title VII of the CSRA has been the controlling authority. Of particular relevance here, 5 U. S. C. § 7114(a)(1) provides that a labor organization that has been accorded the exclusive right of representing employees in a designated unit “is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.” This provision is “virtually identical” to that found in the Executive Order and is the source of the collective-bargaining agent’s duty of fair representation. See National Federation of Federal Employees, Local 1453, 23 F. L. R. A. 686, 690 (1986). This duty also parallels the fair representation obligation of a union in the private sector that has been found implicit in the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq. (1982 ed. and Supp. IV), and the Railway Labor Act (RLA), 44 Stat. 577, as amended, 45 U. S. C. § 151 et seq. See Vaca v. Sipes, 386 U. S. 171, 180-183 (1967); Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 205-207 (1944).
Title VII also makes it clear that a breach of the duty of fair representation is an unfair labor practice, for it provides that it is “an unfair labor practice for a labor organization . . . to otherwise fail or refuse to comply with any provision of this chapter.” §7116(b)(8). Under §7118, unfair labor practice complaints are adjudicated by the FLRA, which is authorized to order remedial action appropriate to carry out the purposes of Title VII, including an award of backpay against either the agency or the labor organization that has committed the unfair practice.
There is no express suggestion in Title VII that Congress intended to furnish a parallel remedy in a federal district court to enforce the duty of fair representation. The Title provides recourse to the courts in only three instances: with specified exceptions, persons aggrieved by a final FLRA order may seek review in the appropriate court of appeals, § 7123(a); the FLRA may seek judicial enforcement of its orders, § 7123(b); and temporary injunctive relief is available to the FLRA to assist it in the discharge of its duties, § 7123(d).
Petitioner nevertheless insists that a cause of action to enforce the Union’s fair representation duty should be implied. Such a claim poses an issue of statutory construction: The “ultimate issue is whether Congress intended to create a private cause of action,” California v. Sierra Club, 451 U. S. 287, 293 (1981) (citations omitted); see also Touche Ross & Co. v. Redington, 442 U. S. 560, 569 (1979). Unless such “congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.” Thompson v. Thompson, 484 U. S. 174 (1988). It is also an “elemental canon” of statutory construction that where a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies. Trans-america Mortgage Advisers, Inc. v. Lewis, 444 U. S. 11, 19 (1979). In such cases, “[i]n the absence of strong indicia of contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.” Middlesex County Sewerage Authority v. Sea Clammers, 453 U. S. 1, 15 (1981); see also Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S. 134, 147 (1985); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 93 (1981).
These guideposts indicate that the Court of .Appeals was quite correct in concluding that neither the language nor the structure of the Act shows any congressional intent to provide a private cause of action to enforce federal employees unions’ duty of fair representation. That duty is expressly recognized in the Act, and an administrative remedy for its breach is expressly provided for before the FLRA, a body created by Congress to enforce the duties imposed on agencies and unions by Title VII, including the duty of fair representation. Nothing in the legislative history of Title VII has been called to our attention indicating that Congress contemplated direct judicial enforcement of the union’s duty. Indeed, the General Counsel of the FLRA was to have exclusive and final authority to issue unfair labor practice complaints, and only those matters mentioned in § 7123 were to be judicially reviewable. H. R. Rep. No. 95-1403, p. 52 (1978). All complaints of unfair labor practices were to be filed with the FLRA. S. Rep. No. 95-969, p. 107 (1978). Furthermore, Title VII contemplates the arbitration of unsettled grievances, but a House proposal that the duty to ar- ■ bitrate could be enforced in federal court in the first instance was ultimately rejected. See H. R. Conf. Rep. No. 95-1717, p. 157 (1978). There exists no equivalent to § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185, which permits judicial enforcement of private collective-bargaining contracts.
Petitioner, however, relies on another source to find the necessary congressional intent to provide him with a cause of action. Petitioner urges that Title VII was modeled after the NLRA and that the authority of the FLRA was meant to be similar to that of the National Labor Relations Board (NLRB). Because this Court found implicit in the NLRA a private cause of action against unions to enforce their fair representation duty even after the NLRB had construed the NLRA to make a breach of the duty an unfair labor practice, petitioner argues that Congress must have intended to preserve this judicial role under Title VII. Much of the argument rests on our decision in Vaca v. Sipes, supra. There are, however, several difficulties with this argument.
In the first place, Title VII is not a carbon copy of the NLRA, nor is the authority of the FLRA the same as that of the NLRB. The NLRA, like the RLA, did not expressly make a breach of the duty of fair representation an unfair labor practice and did not expressly provide for the enforcement of such a duty by the NLRB. That duty was implied by the Court because members of bargaining units were forced to accept unions as their exclusive bargaining agents. Because employees had no administrative remedy for a breach of the duty, we recognized a judicial cause of action on behalf of the employee. This occurred both under the RLA, Steele v. Louisville & Nashville R. Co., supra; Trainmen v. Howard, 343 U. S. 768 (1952), and also under the LMRA, Syres v. Oil Workers, 350 U. S. 892 (1955); Vaca v. Sipes, supra. Very dissimilarly, Title VII of the CSRA not only expressly recognizes the fair representation duty but also provides for its administrative enforcement.
To be sure, prior to Vaca, the NLRB had construed §§7 and 8(b) of the NLRA to impose a duty of fair representation on union bargaining agents and to make its breach an unfair labor practice. See Miranda Fuel Co., 140 N. L. R. B. 181 (1962), enf. denied, NLRB v. Miranda Fuel Co., 326 F. 2d 172 (CA2 1963). The issue in Vaca, some years later, was whether, in light of Miranda Fuel Co., the courts still had jurisdiction to enforce the unions’ duty. As we understood our inquiry, it was whether Congress, in enacting § 8(b) in 1947, had intended to oust the courts of their role of enforcing the duty of fair representation implied under the NLRA. We held that the “tardy assumption” of jurisdiction by the NLRB was insufficient reason to abandon our prior cases, such as Syres.
In the case before us, there can be no mistaking Congress’ intent to create a duty previously without statutory basis, and no mistaking the authority of the FLRA to enforce that duty. Also, because the courts played no role in enforcing a union’s fair representation duty under Executive Order No. 11491 §10e, 3 CFR 861 (1966-1970 Comp.), and subsequent amended orders, under the pre-CSRA regulatory regime, there was not in this context any pre-existing judicial role that at least arguably Congress intended to preserve.
Moreover, in Vaca and the earlier cases, it was stressed that by providing for exclusive bargaining agents, the pertinent statutes deprived bargaining unit employees of their individual rights to bargain for wages, hours, and working conditions. Hence it was critical that unions be required to represent all in good faith. Again, Title VII operates in a different context. As the United States as amicus explains, federal employment does not rest on contract in the private sector sense; nor is it clear that the deprivation a federal employee suffers from the election of a bargaining agent — if there is such a deprivation — is comparable to the private sector predicament. Moreover, the collective-bargaining mechanisms created by Title VII do not deprive employees of recourse to any of the remedies otherwise provided by statute or regulation. See the CSRA, 5 U. S. C. §§ 7114(a)(5) and 7121(e)(1).
We also note that Vaca rested in part on the fact that private collective-bargaining contracts were enforceable in the federal courts under LMRA §301. Because unfair representation claims most often involve a claim of breach by the employer and since employers are suable under § 301, the implied fair representation cause of action allows claims against an employer and a union to be adjudicated in one action. Section 301 has no equivalent under Title VII; there is no provision in that Title for suing an agency in federal court.
We therefore discern no basis for finding congressional intent to provide petitioner with a cause of action against the Union. Congress undoubtedly was aware from our cases such as Cort v. Ash, 422 U. S. 66 (1975), that the Court had departed from its prior standard for resolving a claim urging that an implied statutory cause of action should be recognized, and that such issues were being resolved by a straightforward inquiry into whether Congress intended to provide a private cause of action. Had Congress intended the courts to enforce a federal employees union’s duty of fair representation, we would expect to find some evidence of that intent in the statute or its legislative history. We find none. Just as in United States v. Fausto, 484 U. S. 439, 445 (1988), we held that the CSRA’s “integrated scheme of administrative and judicial review” foreclosed an implied right to Court of Claims review, we follow a similar course here. See also Bush v. Lucas, 462 U. S. 367, 388 (1983). To be sure, courts play a role in CSRA § 7116(b)(8) fair representation cases, but only sitting in review of the FLRA. To hold that the district courts must entertain such cases in the first instance would seriously undermine what we deem to be the congressional scheme, namely to leave the enforcement of union and agency duties under the Act to the General Counsel and the FLRA and to confine the courts to the role given them under the Act.
Accordingly the judgment of the Court of Appeals is
Affirmed.
Section 7114(a)(1) reads, in full: “A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents, and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.”
The Executive Order precursor provision likewise was interpreted to impose on federal unions the duty of fair representation. See National Federation of Federal Employees, Local 1153, 23 F. L. R. A., at 690.
Because such orders were not legislative, courts generally refused judicial enforcement. See, e. g.. Kuhn v. National Association of Letter Carriers, Branch 5, 570 F. 2d 757, 760-761 (CA8 1978). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
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] | [
46
] |
BARNHART, COMMISSIONER OF SOCIAL SECURITY v. WALTON
No. 00-1937.
Argued January 16, 2002 —
Decided March 27, 2002
Jeffrey A. Lamken argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, John C. Hoyle, and Mark S. Davies.
Kathryn L. Pryor argued the cause for respondent. With her on the brief was James W. Speer.
Rochelle Bobroff, Michael Schuster, and Robert E. Rains filed a brief for AARP et al. as amici curiae urging affirmance.
Justice Breyer
delivered the opinion of the Court.
The Social Security Act authorizes payment of disability insurance benefits and Supplemental Security Income to individuals with disabilities. See 49 Stat. 622, as amended, 42 U. S. C. §401 et seq. (1994 ed. and Supp. V) (Title II disability insurance benefits); §1381 et seq. (Title XVI supplemental security income). For both types of benefits the Act defines the key term “disability” as an
“inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” § 423(d)(1)(A) (1994 ed.) (Title II) (emphasis added); accord, § 1382c(a)(3)(A) (1994 ed., Supp. V) (Title XVI).
This case presents two questions about the Social Security Administration’s interpretation of this definition.
First, the Social Security Administration (which we shall call the Agency) reads the term “inability” as including a “12 month” requirement. In its view, the “inability” (to engage in any substantial gainful activity) must last, or must be expected to last, for at least 12 months. Second, the Agency reads the term “expected to last” as applicable only when the “inability” has not yet lasted 12 months. In the case of a later Agency determination — where the “inability” did not last 12 months — the Agency will automatically assume that the claimant failed to meet the duration requirement. It will not look back to decide hypothetically whether, despite the claimant’s actual return to work before 12 months expired, the “inability” nonetheless might have been expected to last that long.
The Court of Appeals for the Fourth Circuit held both these interpretations of the statute unlawful. We hold, to the contrary, that both fall within the Agency’s lawful interpretive authority. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Consequently, we reverse.
I
In 1996 Cleveland Walton, the respondent, applied for both Title II disability insurance benefits and Title XVI Supplemental Security Income. The Agency found that (1) by October 31,1994, Walton had developed a serious mental illness involving both schizophrenia and associated depression; (2) the illness caused him then to lose his job as a full-time teacher; (3) by mid-1995 he began to work again part time as a cashier; and (4) by December 1995 he was working as a cashier full time.
The Agency concluded that Walton’s mental illness had prevented him from engaging in any significant work, i. e., from “engaging] in any substantial gainful activity,” for 11 months — from October 31, 1994 (when he lost his teaching job) until the end of September 1995 (when he earned income sufficient to rise to the level of “substantial gainful activity”). See 20 CFR §§404.1574, 416.974 (2001). And because the statute demanded an “inability to engage in any substantial gainful activity” lasting 12, not 11, months, Walton was not entitled to benefits.
Walton sought court review. The District Court affirmed the Agency’s decision, but the Court of Appeals for the Fourth Circuit reversed. Walton v. Apfel, 235 F. 3d 184, 186-187 (2000). The court said that the statute’s 12-month duration requirement modifies the word “impairment,” not the word “inability.” Id., at 189. It added that the statute’s “language ... leaves no doubt” that there is no similar “duration requirement” related to an “inability” (to engage in substantial gainful activity). Ibid. It concluded that, because the statute’s language “speaks clearly” and is “unambiguous,” Walton was entitled to receive benefits despite agency regulations restricting benefits to those unable to work for a 12-month period. Ibid.
The court went on to decide that, in any event, Walton qualified because, prior to Walton’s return to work, one would have “expected” his “inability” to last 12 months. Id., at 189-190. It conceded that the Agency had made Walton’s actual return to work determinative on this point. See 20 CFR §§ 404.1520(b), 1592(d)(2) (2001). But it found unlawful the Agency regulations that gave the Agency the benefit of hindsight — on the ground that they conflicted with the statute’s clear command. 235 F. 3d, at 190.
For either reason, the Fourth Circuit concluded, Walton became “entitled” to Title II benefits no later than April 1995, five months after the onset of his illness. See 42 U.S.C. §§423(a)(l)(D)(i), 423(a)(l)(D)(ii) (providing for a 5-month “waiting period” before a claimant is “entitled” to benefits), 423(c)(2)(A) (1994 ed.). It added that Walton’s later work as a cashier was legally beside the point. That work simply counted as part of a 9-month “trial work period,” which the statute grants to those “entitled” to Title II benefits, and which it permits them to perform without loss of benefits. § 422(c).
The Government sought certiorari. It pointed out that the Fourth Circuit’s first holding conflicts with those of other Circuits, compare 235 F. 3d, at 189-190, with Titus v. Sulli van, 4 F. 3d 590, 594-595 (CA8 1993), and Alexander v. Richardson, 451 F. 2d 1185 (CA10 1971). It added that the Fourth Circuit’s views were contrary to well-settled law and would create additional Social Security costs of $80 billion over 10 years. We granted the writ. We now reverse.
II
The statutory definition of “disability” has two parts. First, it requires a certain kind of “inability,” namely, an “inability to engage in any substantial gainful activity.” Second, it requires an “impairment,” namely, a “physical or mental impairment,” which provides “reason” for the “inability.” The statute adds that the “impairment” must be one that “has lasted or can be expected to last . . . not less than 12 months.” But what about the “inability”? Must it also last (or be expected to last) for the same amount of time?
The Agency has answered this question in the affirmative. Acting pursuant to statutory rulemaking authority, 42 U. S. C. §§ 405(a) (Title II), 1383(d)(1) (Title XVI), it has promulgated formal regulations that state that a claimant is not disabled “regardless of [his] medical condition,” if he is doing “substantial gainful activity.” 20 CFR § 404.1520(b) (2001). And the Agency has interpreted this regulation to mean that the claimant is not disabled if “within 12 months after the onset of an impairment ... the impairment no longer prevents substantial gainful activity.” 65 Fed. Reg. 42774 (2000). Courts grant an agency’s interpretation of its own regulations considerable legal leeway. Auer v. Robbins, 519 U. S. 452, 461 (1997); Udall v. Tallman, 380 U. S. 1, 16-17 (1965). And no one here denies that the Agency has properly interpreted its own regulation.
Consequently, the legal question before us is whether the Agency’s interpretation of the statute is lawful. This Court has previously said that, if the statute speaks clearly “to the precise question at issue,” we “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U. S., at 842-843. If, however, the statute “is silent or ambiguous with respect to the specific issue,” we must sustain the Agency’s interpretation if it is “based on a permissible construction” of the Act. Id., at 843. Hence we must decide (1) whether the statute unambiguously forbids the Agency’s interpretation, and, if not, (2) whether the interpretation, for other reasons, exceeds the bounds of the permissible. Ibid.; see also United States v. Mead Corp., 533 U. S. 218, 227 (2001).
First, the statute does not unambiguously forbid the regulation. The Fourth Circuit believed the contrary primarily for a linguistic reason. It pointed out that, linguistically speaking, the statute’s “12-month” phrase modifies only the word “impairment,” not the word “inability.” And to that extent we agree. After all, the statute, in parallel phrasing, uses the words “which can be expected to result in death.” And that structurally parallel phrase makes sense in reference to an “impairment,” but makes no sense in reference to the “inability.”
Nonetheless, this linguistic point is insufficient. It shows that the particular statutory provision says nothing explicitly about the “inability’s” duration. But such silence, after all, normally creates ambiguity. It does not resolve it.
Moreover, a nearby provision of the statute says that an
“individual shall be determined to be under a disability only if his . . . impairment... [is] of such severity that he is not only unable to do his previous work but cannot... engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) (Title II); accord, § 1382c(a)(3)(B) (Title XVI).
In other words, the statute, in the two provisions, specifies that the “impairment” must last 12 months and also be severe enough to prevent the claimant from engaging in virtually any “substantial gainful work.” The statute, we concede, nowhere explicitly says that the “impairment” must be that severe (i e., severe enough to prevent “substantial gainful work”) for 12 months. But that is a fair inference from the language. See Brief for AARP et al. as Amici Curiae 13 (conceding that an impairment must remain of “disabling severity” for 12 months). At the very least the statute is ambiguous in that respect. And, if so, then it is an equally fair inference that the “inability” must last 12 months. That is because the latter statement (i. e., that the claimant must be unable to “engage in any substantial gainful activity” for a year) is the virtual equivalent of the former statement (i. e., that the “impairment” must remain severe enough to prevent the claimant from engaging in “substantial gainful work” for a year). It simply rephrases the same point in a slightly different \yay.
Second, the Agency’s construction is “permissible.” The interpretation makes considerable sense in terms of the statute’s basic objectives. The statute demands some duration requirement. No one claims that the statute would permit an individual with a chronic illness — say, high blood pressure — to qualify for benefits if that illness, while itself lasting for a year, were to permit a claimant to return to work after only a week, or perhaps even a day, away from the job. The Agency’s interpretation supplies a duration requirement, which the statute demands, while doing so in a way that consistently reconciles the statutory “impairment” and “inability” language.
In addition, the Agency’s regulations reflect the Agency’s own longstanding interpretation. See Social Security Ruling 82-52, p. 106 (cum. ed. 1982) (“In considering ‘duration,’ it is the inability to engage in [substantial gainful activity] that must last the required 12-month period”); Disability Insurance State Manual §316 (Sept. 9, 1965), Government Lodging, Tab C, §316 (“Duration of impairment refers to that period of time during which an individual is continuously unable to engage in substantial gainful activity because of” an impairment); OASI Disability Insurance Letter No. 39 (Jan. 22, 1957), id., Tab A, p. 1 (duration requirement refers to the “expected duration of the medical impairment” at a “level of severity sufficient to preclude” substantial gainful activity”). And this Court will normally accord particular deference to an agency interpretation of “longstanding” duration. North Haven Bd. of Ed. v. Bell, 456 U. S. 512, 522, n. 12 (1982).
Finally, Congress has frequently amended or reenacted the relevant provisions without change. E. g., Social Security Amendments of 1965, § 303(a)(1), 79 Stat. 366; see also S. Rep. No. 404, 89th Cong., 1st Sess., pt. I, pp. 98-99 (1965) (“[T]he committee’s bill . . . provide[s] for the payment of disability benefits for an insured worker who has been or can be expected to be totally disabled throughout a continuous period of 12 calendar months” (emphasis added)); id., at 98 (rejecting effort to provide benefits to those with “short-term, temporary disabilities],” defined as inability to work for six months); H. R. Rep. No. 92-231, p. 56 (1971) (“No benefit is payable, however, unless the disability is expected to last (or has lasted) at least 12 consecutive months” (emphasis added)); S. Rep. No. 744, 90th Cong., 1st Sess., 49 (1967) (“The committee also believes . . . that an individual who does substantial gainful work despite an impairment or impairments that otherwise might be considered disabling is not disabled for purposes of establishing a period of disability”). These circumstances provide further evidence — if more is needed — that Congress intended the Agency’s interpretation, or at least understood the interpretation as statutorily permissible. Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 845-846 (1986).
Walton points in reply to Title II language stating that a claimant who is “under a disability . . . shall be entitled to a . . . benefit . . . beginning with the first month after” a “waiting period” of “five consecutive calendar months . . . throughout which” he “has been under a disability.” 42 U. S. C. §§423(a)(l)(D)(i), 423(c)(2)(A). He adds that this 5-month “waiting period” assures a lengthy period of time during which the applicant (who must be “under a disability” throughout) has been unable to work. And it thereby provides ironclad protection against the claimant who suffers a chronic, but only briefly disabling, disease, such as the claimant who suffers high blood pressure in our earlier example. See supra, at 219. This claim does not help Walton, however, for it shows, at most, that the Agency might have chosen other reasonable time periods — a matter not disputed. Regardless, Walton’s “waiting period” argument could work only in respect to Title II, not Title XVI. Title XVI has no waiting period, though it uses identical definitional language. And Walton does not explain why we should interpret the same statutory words differently in closely related contexts. See Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 342 (1994) (“ ‘[Identical words used in different parts of the same act are intended to have the same meaning’ ” (quoting Sorenson v. Secretary of Treasury, 475 U. S. 851, 860 (1986) (some internal quotation marks omitted)).
Walton also asks us to disregard the Agency’s interpretation of its formal regulations on the ground that the Agency only recently enacted those regulations, perhaps in response to this litigation. We have previously rejected similar arguments. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 741 (1996); United States v. Morton, 467 U. S. 822, 835-836, n. 21 (1984).
Regardless, the Agency’s interpretation is one of long standing. See supra, at 220. And the fact that the Agency previously reached its interpretation through means less formal than “notice and comment” rulemaking, see 5 U. S. C. §553, does not automatically deprive that interpretation of the judicial deference otherwise its due. Cf. Chevron, 467 U. S., at 843 (stating, without delineation of means, that the “ ‘power of an administrative agency to administer a congres-sionally created ... program necessarily requires the formulation of policy’ ” (quoting Morton v. Ruiz, 415 U. S. 199, 231 (1974))). If this Court’s opinion in Christensen v. Harris County, 529 U. S. 576 (2000), suggested an absolute rule to the contrary, our later opinion in United States v. Mead Corp., 533 U. S. 218 (2001), denied the suggestion. Id., at 230-231 (“[T]he want of” notice and comment “does not decide the case”). Indeed, Mead pointed to instances in which the Court has applied Chevron deference to agency interpretations that did not emerge out of notice-and-comment rule-making. 533 U. S., at 230-231 (citing NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 256-257 (1995)). It indicated that whether a court should give such deference depends in significant part upon the interpretive method used and the nature of the question at issue. 533 U. S., at 229-231. And it discussed at length why Chevron did not require deference in the circumstances there present — a discussion that would have been superfluous had the presence or absence of notice-and-comment rulemaking been dispositive. 533 U. S., at 231-234.
In this case, the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time all indicate that Chevron provides the appropriate legal lens through which to view the legality of the Agency interpretation here at issue. See United States v. Mead Corp., supra; cf. also 1 K. Davis & R. Pierce, Administrative Law Treatise §§ 1.7, 3.3 (3d ed. 1994).
For these reasons, we find the Agency’s interpretation lawful.
Ill
Walton’s second claim is more complex. For purposes of making that claim, Walton assumes what we have just decided, namely, that the statute’s “12 month” duration requirements apply to both the “impairment” and the “inability” to work requirements. Walton also concedes that he returned to work after 11 months. But Walton claims that his work from month 11 to month 12 does not count against him because it is part of a “trial work” period that the statute grants to those “entitled” to Title II benefits. See 42 U. S. C. § 422(c). And Walton adds, he was “entitle[d]” to benefits because — even though he returned to work after 11 months — his “impairment” and his “inability” to work were nonetheless “expected to last” for at least “12 months” before he returned to work.
To illustrate Walton’s argument, we simplify the actual circumstances. We imagine: (1) On January 1, Year One, Walton developed (a) a severe impairment, which (b) made him unable to work; (2) Eleven (not twelve) months later, on December 1, Year One, Walton returned to work; (3) On July 1, Year Two, the Agency adjudicated, and denied, Walton’s claim for benefits. Walton argues that, even though he returned to work after 11 months, had the Agency looked at the matter, not ex post, but as if it were looking prior to his return to work, the Agency would have had to conclude that both his “impairment” and his “inability” to work “can be expected to last for a continuous period of not less than 12 months.” § 423(d)(1)(A). He consequently satisfied the 12-month duration requirement and became “entitled” to benefits before he returned to work; he was in turn entitled to a “trial work” period; and his subsequent work as a cashier, being “trial work,” should not count against him.
The Agency’s regulations plainly reject this view of the statute. They say, “You are not entitled to a trial work period” if “you perform work ... within 12 months of the onset of the impairment(s)... and before the date of any notice of determination or decision finding ... you ... disabled.” 20 CFR § 404.1592(d)(2) (2001). This regulation means that the Agency, deciding before the end of Year One, might have found that Walton’s impairment (or inability to work) “can be expected to last” for 12 months. But the Agency, deciding after Year One in which Walton in fact returned to work, would not ask whether his impairment (or inability to work) could have been expected to last 12 months.
The legal question is whether this Agency regulation is consistent with the statute. The Court of Appeals, accepting Walton’s view, concluded that it is not. It said that the Agency’s rules — permitting the use of hindsight when reviewing claims — are inconsistent with the statute’s plain language, 235 F. 3d, at 191. And, here, other courts have agreed. See Salamalekis v. Commissioner of Soc. Sec., 221 F. 3d 828 (CA6 2000); Newton v. Chater, 92 F. 3d 688 (CA8 1996); Walker v. Secretary of Health and Human Servs., 943 F. 2d 1257 (CA10 1991); McDonald v. Bowen, 818 F. 2d 559 (CA7 1986).
Nonetheless, we believe that Agency regulation is lawful. See Chevron, supra, at 843. The statute is ambiguous. It says nothing about how the Agency, when it adjudicates a matter after Year One, is to treat an earlier return to work. Its language “can be expected to last” 12 months, 42 U. S. C. § 423(d)(1)(A), simply does not say as of what time the law measures the “expectation.” Indeed, from a linguistic perspective, the phrase “can be expected” foresees a decision-maker who is looking into the future, not a decisionmaker who is in the future, looking back into the past in order to see what then “was,” “could be,” or “could have been” expected. And read in context, the purpose of the phrase “can be expected to last” might be one of permitting the Agency to award benefits before 12 months have expired, not one of denying the Agency the benefit of hindsight. See 65 Fed. Reg., at 42780; cf. also S. Rep. No. 404, at 99.
At the same time, the Agency’s regulation seems a reasonable, hence permissible, interpretation of the statute. In effect it treats a pre-Agency-decision actual return to work, e. g., Walton’s return in December Year One, as if it were determinative of the expectation question. With Year Two’s hindsight, Walton’s “inability” to work “can” not “be expected to last 12 months.” And use of that hindsight avoids the need for the Year Two decisionmaker in effect to answer a highly unwieldy question in what grammarians might call the pluperfect future tense.
Of course, administrators and judges are capable of answering hypothetical questions of this kind. But here the question concerns what must be a eontrary-to-faet speculation about the future. It is a speculation that, however often raised, would rarely prove easy to resolve. And the statute’s purpose does not demand its resolution. Indeed, one might ask why, other things being equal, a claimant who returns to work too early ordinarily to qualify for benefits nonetheless should qualify if but only if that return was a kind of medical surprise. Of course, as Walton says, such a rule would help encourage (or at least not discourage) a claimant’s early return to work. See generally S. Rep. No. 1856,86th Cong., 2d Sess., 15-16 (1960). But the statute does not demand that the Agency make of this desirable end an overriding interpretive principle. And the Agency has recognized and addressed the problem of work disincentives in other ways. See, e. g., 20 CFR §§ 404.1574(c), 404.1575(d) (2001).
The statute’s complexity, the vast number of claims that it engenders, and the consequent need for agency expertise and administrative experience lead us to read the statute as delegating to the Agency considerable authority to fill in, through interpretation, matters of detail related to its administration. See Schweiker v. Gray Panthers, 453 U. S. 34, 43-44 (1981). The interpretation at issue here is such a matter. The statute’s language is ambiguous. And the Agency’s interpretation is reasonable.
We conclude that the Agency’s regulation is lawful.
* * *
The judgment of the Fourth Circuit is
Reversed. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
105
] |
ALEXANDER et al. v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al.
No. 77-874.
Argued December 5, 1978
Decided April 17, 1979
Marshall, J., delivered the opinion for a unanimous Court.
John Vanderstar argued the cause for petitioners in No. 77-874 and for respondents in No. 77-1463. With him on the briefs were Theodore Voorhees, Jr., Richard L. Zweig, Paul Levy, and Florence Wagman Roisman.
William C. Bryson argued the cause for respondents in No. 77-874 and petitioners in No. 77-1463. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Barnett, Jacques B. Gelin, and Robert L. Klarquist.
Together with No. 77-1463, Harris, Secretary of Housing and Urban Development, et al. v. Cole et al., on certiorari to the United States Court of Appeals for the District of Columbia Circuit.
Me. Justice Marshall
delivered the opinion of the Court.
These cases require us to interpret the definition of a “displaced person” set forth in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Relocation Act), 84 Stat. 1894, 42 U. S. C. §4601 et seq. Section 101 (6) of the Act defines a “displaced person” as
“any person who . . . moves ... as a result of the acquisition of . . . real property, ... or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency....” 42 U. S. C. § 4601 (6).
Relocation benefits are available under the Act for individuals and businesses that satisfy either the “acquisition” or “written order” clause of this definition. Because the Courts of Appeals for the Seventh and District of Columbia Circuits have adopted conflicting interpretations of the written order clause, we granted certiorari. 437 U. S. 903 (1978).
Both cases involve housing projects that the Department of Housing and Urban Development (HUD) acquired after the projects’ sponsors defaulted on federally insured loans. We must determine whether the written order clause encompasses the tenants required to vacate those housing projects, even though HUD’s orders to vacate were not motivated by a governmental acquisition of property to further a public program or project.
I
A
Petitioners in No. 77-874 are 17 former tenants of the Riverhouse Tower Apartments, a low- and middle-income housing project in Indianapolis, Indiana. This complex was built in the late 1960’s by a private nonprofit corporation, Riverhouse Apartments, Inc., whose mortgage HUD insured and subsidized pursuant to § 221 (d) (3) of the National Housing Act, 75 Stat. 150, as amended, 12 U. S. C. § 17152 (d)(3). Upon completion of the project, the Government National Mortgage Association (GNMA) purchased the mortgage from the private lender in accordance with § 221 (d)(3) of the Housing Act. When Riverhouse Apartments, Inc., defaulted on the loan in July 1970, GNMA assigned the mortgage to HUD in exchange for payment of the statutory mortgage benefits. Three years later, HUD initiated foreclosure proceedings, and a court-appointed receiver assumed operation of the project until HUD purchased the property at a foreclosure sale in August 1974.
HUD initially retained a management agent to continue operating the newly acquired project. However, the condition of the property had deteriorated so seriously during the period of default that HUD soon decided to close the apartment complex. Notices to quit were served on all remaining tenants in November 1974, and by the following February, the buildings were vacant. HUD refused to provide relocation benefits for these dislocated tenants or to disclose its plans regarding the terminated project.
Petitioners then initiated this action in Federal District Court, claiming, inter alia, that they were “displaced persons” entitled to assistance under the Relocation Act. Construing the written order clause of § 101 (6) literally, the tenants argued that they had moved upon receiving written orders to vacate property acquired by a Government agency. The District Court rejected this statutory construction and granted summary judgment for HUD. Blades v. Dept. of HUD, Civ. No. IP 74-706-C (SD Ind., July 1, 1976). The Court of Appeals for the Seventh Circuit affirmed. In its view, § 101 (6) encompasses only displacements for programs designed to benefit the public as a whole or to fulfill a public'need, not dislocations caused by the irretrievable failure of a public housing project. 555 F. 2d 166, 169-170 (1977).
B
The tenants in No. 77-1463 formerly occupied the Sky Tower apartment complex built in Washington, D. C., during the 1950’s. A nonprofit corporation purchased Sky Tower in 1970, intending to convert a number of its small “garden” apartments into larger units for low- and moderate-income families. HUD agreed to assist in the rehabilitation by insuring the corporation’s mortgage on the complex and subsidizing its interest payments, pursuant to § 236 of the National Housing Act, 82 Stat. 498, as amended, 12 U. S. C. § 1715z 1. Difficulties with two successive general contractors eventually prevented the corporate sponsor from making interest payments on its loan. As a result, the mortgagee declared the sponsor in default, foreclosed on the mortgage, and conveyed title to HUD in exchange for the statutory mortgage insurance benefits. See 12 U. S. C. §§ 1713 (g), (k).
After acquiring title to Sky Tower in June 1973, HUD hired a management agent to continue operating the partially rehabilitated complex. By September 1974, however, HUD realized that Sky Tower’s deteriorated condition would render any further efforts at rehabilitation futile. The agency therefore planned to demolish the buildings and sell the land to private developers for construction of single-family homes. When the 72 families living in the complex were ordered to vacate, HUD declined to extend assistance under the Relocation Act.
A group of the Sky Tower tenants brought this suit in Federal District Court, challenging HUD’s decision to raze the complex and its refusal to provide full relocation benefits. The District Court preliminarily enjoined HUD from completing the demolition, and subsequently granted summary judgment for the tenants on the benefits issue. Civ. Action No. 74-1872 (DC, Sept. 12, 1975). A divided panel of the Court of Appeals for the District of Columbia Circuit agreed that these tenants were “displaced persons” under the written order clause of § 101 (6). 187 U. S. App. D. C. 156, 161, 571 F. 2d 590, 595 (1977). In so ruling, the Court of Appeals rejected HUD’s argument that § 101 (6) reaches only persons dislocated by an agency’s purposeful acquisition of property for use in certain types of government programs. The court instead considered the written order clause applicable whenever an agency orders persons to vacate so that property can be devoted to a federal program “ 'designed for the benefit of the public as a whole.’ ” 187 U. S. App. D. C., at 161, 571 F. 2d, at 595. In the court’s view, HUD’s demolition plan met this description. Ibid.
II
Section 101 (6) of the Relocation Act, as previously indicated, provides that a “displaced person” is one who moves “as a result of the acquisition of . . . real property, ... or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency . . . .” 42 U. S. C. § 4601 (6). In neither case do the tenants claim coverage under the “acquisition” clause of § 101 (6), which reaches persons dislocated by the actual procurement of property for a federal program or project. Brief for Respondents in No. 77-1463, p. 15, and n. 17; Tr. of Oral Arg. 10. Hence, these tenants’ eligibility for relocation assistance turns on the meaning of the definition’s written order clause. More precisely, their eligibility depends on the import of two critical phrases not specifically defined in the Act, “acquiring agency” and “for a program or project.”
The tenants contend that “acquiring agency” simply denotes a governmental body that has previously acquired property and that eventually orders persons to vacate. In contrast, HUD reads the phrase as a shorthand description of an agency currently engaged in the process of acquiring property. Under HUD’s construction, the written order clause contains an implicit acquisition requirement. The clause thus construed does not apply unless an agency’s proposed acquisition of property directly causes issuance of the displacing order, whereas the tenants’ interpretation demands no immediate causal connection between the procurement of property and the order to vacate.
The parties also disagree about the proper referent for the phrase, “for a program or project.” HUD contends that this phrase modifies the acquisition requirement included in the written order clause. Consequently, “for a program or project” specifies the agency’s original purpose in acquiring property, not just its purpose in issuing an order to vacate. Under this construction, the written order clause applies only if an agency issues its notice to vacate pursuant to an actual or proposed acquisition of property intended to further a federal program. Thus, tenants of a housing project acquired by the Government because of the owner’s loan default would not be eligible for relocation assistance when the acquiring agency later adopts a program necessitating their displacement.
The tenants, on the other hand, read “for a program or project” as referring solely to the written order. The phrase therefore identifies the agency’s reason for ordering persons to vacate, but does not make eligibility depend on the agency’s original purpose in acquiring the property. According to this analysis, the written order clause covers any individual who receives a written order to vacate property that an agency has previously acquired, provided the displacement is “for” a federal program or project. Moreover, the tenants broadly construe “program or project” to include any governmental program designed to fulfill a public need.
The statutory language is susceptible of either construction. However, an examination of Congress’ purpose in adopting the Relocation Act, the legislative history of § 101 (6), and the structure of the Act as a whole persuades us that HUD’s interpretation more nearly reflects the intended scope of this assistance program.
A
Passage of the Relocation Act in 1970 concluded nearly a decade of congressional effort to standardize federal legislation regarding relocation assistance. Prior to the 1960’s, Congress had enacted special provisions to assist persons displaced when particular federal agencies acquired property for designated public projects. As a result, relocation benefits varied substantially from program to program. The House Public Works Committee responded to these variations in 1961 by creating the Select Subcommittee on Real Property Acquisition. In 1964, this Subcommittee submitted a lengthy Report concerning the deficiencies of existing law, and its proposed “Fair Compensation Act” became the basis for most of the provisions ultimately codified in the Relocation Act.
The proposed Fair Compensation Act unambiguously reflects Congress’ limited purpose in revising the special relocation legislation. The Act’s declared purpose was to afford “persons affected by the acquisition of real property in Federal and federally assisted programs . . . fair and equitable treatment on a basis as nearly uniform as practicable.” Select Subcommittee Study 147 (emphasis added); see id., at 1-2, 122. This statement of policy embodied Congress’ recognition that existing law provided relocation benefits only to those persons dislocated by governmental acquisitions of property for use in public projects. And in accord with its mandate, the Select Subcommittee drafted the replacement legislation to standardize and improve the assistance provided within that particular context. Thus, both the language and origins of the Relocation Act demonstrate that Congress initially intended to provide better relocation assistance when property is acquired for federal programs, not to extend assistance beyond that limited context to all persons somehow displaced by governmental programs.
Congress’ basic objective remained unchanged through succeeding legislative sessions as it considered a number of bills derived from the proposed Fair Compensation Act. During this period, the individual sponsors and the Senate Committee on Government Operations altered slightly the language used to declare Congress’ purpose, but the meaning was unaffected. Thus, the original “Declaration of Policy” in S. 1, 91st Cong., 1st Sess., § 201 (1969), the bill finally enacted as the Relocation Act, stated that the legislation was designed
“to establish a uniform policy for the fair and equitable treatment of owners, tenants, and other persons displaced by the acquisition of real property in Federal and federally assisted programs to the end that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole.” (Emphasis added.)
This language leaves little doubt that Congress’ concern was still with displacements caused by the acquisition of property for a Government program or project.
In arguing that Congress had a broader purpose, to provide relocation assistance outside the acquisition context, the tenants rely on language adopted by the House of Representatives after the Senate passed S. 1. When the House Committee on Public Works reorganized and shortened the bill's provisions into their final form, it also streamlined the “Declaration of Policy” by deleting the references to acquisitions of property. Consequently, § 201 of the Relocation Act simply refers to “persons displaced as a result of Federal and federally assisted programs,” and the tenants suggest that all such persons are the intended beneficiaries of the statute. However, the tenants' interpretation of this language is plainly inconsistent with prior versions of the section, all of which expressly related to displacements caused by the acquisition of property for the programs specified in § 201. Nothing in the legislative materials suggests that this late revision in the Act’s statement of purpose reflected any substantive departure from Congress’ previous statutory design. Indeed, the House Committee that shortened the Declaration of Policy stated in its Report that the bill “provides for relief of the economic dislocation which occurs in the acquisition of real property for Federal and federally assisted programs.” H. R. Rep. No. 91-1656, p. 3 (1970). Accordingly, the consistent purpose underlying this legislation persuades us that Congress intended the written order clause to apply only when an agency proposes acquiring property to further a federal program or project.
B
The legislative history specifically concerning the definition of a displaced person reinforces our conclusion. Prior versions of § 101 (6) encompassed only persons dislocated by actual or proposed property acquisitions, and in particular, those acquisitions intended to further federal programs and projects. The legislative materials demonstrate that when Congress added the written order clause to this definition, its purpose was to delineate more precisely a subcategory of the originally intended beneficiaries, consisting of those who move in anticipation that a property acquisition for a federal program will necessitate their displacement. Viewed in context, the written order clause addresses a special situation related to unconsummated property acquisitions, not all displacements loosely connected with Government programs.
The definition of a displaced person originated in the proposed Fair Compensation Act. Section 115 defined the term to include persons and businesses that move from real property “as a result of the acquisition or imminence of acquisition of such real property, in whole or in part, by a Federal or State agency.” Select Subcommittee Study 157-158. That this choice of language was deliberate can be seen from other provisions of the Act, which authorized relocation assistance only when the “head of any Federal agency acquires real property for public use.”
The version of the Fair Compensation Act introduced in the next Congress adopted the same definition of a displaced person. However, witnesses during the Senate hearings criticized the phrase “or imminence of acquisition” as too ambiguous to provide guidance for agencies and potential displacees. In response, the Senate Committee on Government Operations amended the phrase to read “or reasonable expectation of acquisition,” thereby incorporating an objective standard of eligibility. The limited scope of this amendment, as well as the definition, is apparent from the Committee’s explanation that the change was designed
"to remove some of the ambiguities surrounding the meaning of ‘imminence’ and to make it amply clear that this legislation applies to persons who move from property to be acquired in connection with a Federal or federally assisted program when or shortly after the proposed project is announced, and when the announcement is made substantially prior to the time the project is to be put into effect.” S. Rep. No. 1378, 89th Cong., 2d Sess., 9 (1966).
This passage and others in the Senate Committee Report clearly indicate that Congress framed the definition to reach only persons displaced by actual or planned acquisitions of property. These materials also demonstrate that Congress restricted the definition even further by focusing exclusively on property acquisitions for use in federal programs and projects.
The Senate’s amended definition of a displaced person was retained in the relocation bills proposed in succeeding legislative sessions, including the original version of the bill finally enacted as the Relocation Act, S. 1, 91st Cong., 1st Sess., § 105 (1969). The Senate passed this bill with only minor amendments and without significant debate. But the House Committee on Public Works amended the definition of a displaced person when reorganizing the bill’s provisions into their final form. This late amendment added the clause on which the tenants base their argument that relocation assistance was intended for all persons displaced by Government programs.
The contemporaneous legislative materials, however, refute the tenants’ interpretation of the written order clause. During the House hearings on the relocation bills, a number of witnesses criticized even the “reasonable expectation of acquisition” language as overly vague. To remedy this problem, representatives of the United States Department of Transportation and HUD recommended relating the expectation of acquisition to a readily discernible official act, so that persons who justifiably relied on agency representations could still obtain reimbursement even if the agency later failed to complete the acquisition. The House Committee accepted this suggestion and replaced “or reasonable expectation of acquisition” with “or as the result of the written order of the acquiring agency to vacate real property.” Thus, the sole objective underlying the present written order clause was to delineate more precisely the persons eligible for assistance as a result of planned, but unconsummated, acquisitions of property for federal programs.
The House Committee Report and floor debate also reflect this limited purpose. Based on the previously understood scope of this legislation and on testimony given during the House hearings, the House Committee was well aware that the unamended definition of a displaced person excluded those displaced by means other than property acquisitions for public projects. The Committee presumably would have articulated any intent to extend coverage beyond the acquisition context or to eliminate the requirement that an acquisition be for a federal program. Instead, the House Report simply explained that under the new written order clause, “[i]f a person moves as the result of such a notice to vacate, it makes no difference whether or not the real property actually is acquired.” H. R. Rep. No. 91-1656, p. 4 (1970) (emphasis added). Similarly, the Report observed in reference to the entire definition of a displaced person, “[t]he controlling point is that the real property must be acquired for a Federal or Federal financially assisted program or project.” Ibid.
Nor is there any evidence that the Senate perceived the written order clause as an expansion of the bill when it accepted the House Committee’s changes without a conference and almost without debate. 116 Cong. Rec. 40163-40172 (1970). The sole reference during the Senate deliberations to the amended definition of a “displaced person” appeared in a memorandum submitted on behalf of the administration, which stated:
“The House bill would limit the status of displaced person to those who move as the result of the acquisition of, or written notice to vacate, real property. The Senate version would provide a broader definition which includes those who move as the result of acquisition or reasonable expectation of acquisition.” Id., at 42139.
This description of the amendment as a slight limitation, rather than a significant expansion of the statutory design, was accepted without dispute when the Senate approved the House version of this section as the final language for the Relocation Act. Ibid.
In sum, the legislative history of the written order clause reveals no congressional intent to extend relocation benefits beyond the acquisition context. Rather, this clause merely ensures that assistance is available for a distinct group of persons directed to move because of a contemplated acquisition, whether the agency ultimately acquires the property or not. The written order clause therefore preserves the original meaning of a displaced person, since it does not apply unless a proposed acquisition directly causes issuance of the notice to vacate and the property acquisition is intended to further a federal program or project.
c
The structure of the Relocation Act confirms our conclusion that Congress did not expect to provide assistance for all persons somehow displaced by Government programs. The benefit provisions involved here are but one part of a comprehensive statute that also establishes the procedures agencies must follow when acquiring land for federal programs. See 42 U. S. C. §§4651-4655. This placement in itself suggests that Congress was concerned with burdens related to Government acquisitions of property, as opposed to a broader range of dislocation problems. But more importantly, the Act’s other relocation sections, which specify the benefits available for displaced persons, manifest the limited scope of § 101 (6) and the written order clause.
Sections 202 and 205 of the Act require respectively that moving and related expenses be paid and relocation assistance advisory services be provided for displaced persons only when an agency proposes acquiring property for a federal program. See n. 1, supra. Thus, § 202 begins:
“Whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person . . . the head of such agency shall make a payment to any displaced person, upon proper application . . . .” 84 Stat. 1895, 42 U. S. C. § 4622.
Identical language triggers application of § 205. 84 Stat. 1897, 42 U. S. C. § 4625. If the tenants’ broad construction of the written order clause were correct, certain individuals would qualify as displaced persons within the meaning of § 101 (6), but the lack of an acquisition would preclude them from receiving benefits under §§202 and 205. Absent any indication that Congress intended such an anomalous result, we believe all three provisions must be given similar scope.
Sections 203 and 204 of the Act, which authorize replacement housing payments for dislocated homeowners and tenants, see n. 1, supra, also bear upon interpretation of the written order clause. These sections provide benefits only to displaced persons who occupied their dwelling for a prescribed length of time “prior to the initiation of negotiations for the acquisition of the property.” 42 U. S. C. § 4623 (a) (1). Congress drafted these occupancy requirements to exclude from coverage persons who otherwise might attempt to obtain substantial relocation benefits by moving onto property after the acquisition process has begun. Yet according to the tenants’ analysis of §101 (6), which requires only that an agency have procured the property at some point in the distant past, these occupancy strictures would exclude a much larger class of displaced persons than necessary to fulfill their objective. For example, tenants dislocated by the closing of a housing project that an agency had obtained 20 years earlier might satisfy the written order clause, but the failure of most to have lived in the project prior to the acquisition would prevent them from obtaining replacement housing payments under § 204. Again, we doubt Congress intended the statute to operate in this manner. Rather, §§ 203 and 204 demonstrate that the written order clause cannot be divorced from the acquisition context without distorting the statutory design.
Finally, the special benefits provision in § 217 of the Act highlights the limited reach of § 101 (6). Congress drafted § 217 to preserve the one pre-existing relocation assistance program extending beyond the acquisition context. This section provides:
"A person who moves ... as a direct result of any project or program which receives Federal financial assistance under title I of the Housing Act of 1949’, as amended, or as a result of carrying out a comprehensive city demonstration program under title I of the Demonstration Cities and Metropolitan Development Act of 1966 shall ... be deemed to have been displaced as the result of the acquisition of real property.” 84 Stat. 1902, 42 U. S. C. § 4637 (emphasis added).
Inclusion of this special provision, to ensure that certain persons displaced by action other than an acquisition of property could still qualify for relocation benefits, reflects Congress’ understanding that such persons would not be covered by the general definition of a “displaced person” set forth in § 101 (6).
D
Accordingly, we hold that the written order clause encompasses only those persons ordered to vacate in connection with the actual or proposed acquisition of property for a federal program. In essence, the clause embodies two causal requirements. First, the written order to vacate must result directly from an actual or contemplated property acquisition. Second, and more fundamentally, that acquisition must be “for,” or intended to further, a federal program or project. In combination, these two causal requirements substantially limit applicability of the written order clause, so that persons directed to vacate property for a federal program cannot obtain relocation assistance unless the agency also intended at the time of acquisition to use the property for such a program or project. Thus, a program developed after the agency procures property will not suffice, even though it necessitates displacements, since that program could not have motivated the property acquisition. It remains to be considered, however, whether the relationship between ITUD’s acquisitions and orders to vacate brings the tenants here within the purview of § 101 (6).
Ill
The tenants in both cases contend that the acquisitions of Sky Tower and Riverhouse Apartments met these statutory requirements because HUD obtained the property in connection with its mortgage insurance programs. In support of this contention, they point to Congress’ explicit provision for occasional default acquisitions resulting from the mortgage insurance programs of the National Housing Act. Section 207 (k) of that Act expressly authorizes HUD to purchase insured properties at foreclosure sales, and § 207 (l) grants HUD wide latitude to rehabilitate and operate property acquired upon default or to transfer the property and recoup the agency’s investment. 12 U. S. C. §§ 1713 (k), (l). Pursuant to that mandate, HUD has prepared a Property Disposition Handbook — Multi-family Properties, RHM 4315.1 (1971), revised and set forth at 24 CFR Pt. 290 (1978), which requires responsible officials to formulate a disposition program for newly acquired properties.
However, the legislative history of the Relocation Act discussed in Part II, supra, demonstrates that the mere anticipation and authorization of default acquisitions in the mortgage insurance programs cannot render these tenants eligible under § 101 (6). By requiring that an acquisition be “for” a federal program or project, Congress intended that the acquisition must further or accomplish a program designed to benefit the public as a whole. Even assuming that the National Housing Act mortgage insurance programs constitute federal “programs or projects,” default acquisitions arising out of those programs do not satisfy § 101 (6)’s causality requirements. These acquisitions occur as a result of the mortgage insurance programs’ predictable, though unfortunate failures, but the default acquisitions do not further the purpose of these particular programs. If the written order clause were satisfied by acquisitions so tangentially related to a federal program or project, then, for example, persons who default on federally insured housing loans presumably could obtain relocation assistance whenever a Government agency acquires their homes at a foreclosure sale and thereby causes displacements. Absent any evidence that Congress intended to provide relocation benefits under such circumstances, we believe typical default acquisitions are not “for” a federal program within the meaning of § 101 (6). For the same reasons, HUD’s preparation of a Handbook governing the disposition of property acquired in this manner fails to qualify these tenants for relocation benefits. Like any purchaser, HIJD must manage the property it acquires. But the mere adoption of a management plan cannot retroactively establish the requisite purpose for acquiring property in the first instance.
Alternatively, the tenants in No. 77-1463 contend that the particular disposition HUD planned for Sky Tower, pursuant to the Property Disposition Handbook, qualified them under the written order clause. After studying several options, HUD decided to demolish Sky Tower and sell the land to private developers who would build single-family homes, all in accordance with the District of Columbia government’s master plan for improving the neighborhood. By its own admission in proceedings before the District Court, HUD proposed the demolition to “eliminate blight” in conformity with a plan to revitalize the area. 396 F. Supp. 1235, 1236 (DC 1975). These events convinced the Court of Appeals that the Sky Tower tenants had been ordered to vacate for a “program or project” within the meaning of § 101 (6). 187 U. S. App. D. C., at 161, 571 F. 2d, at 595.
The difficulty with this analysis is that even though HUD’s demolition plan is the type of program or project to which § 101 (6) refers, HUD did not acquire Sky Tower for that purpose. The statute requires more than a causal connection between the order to vacate and the demolition program, which was all the Court of Appeals considered necessary. As explained in Part II, supra, the program or project must also be the reason for acquiring the property. Yet the tenants have never contended that HUD initially acquired Sky Tower in order to eliminate blight or to further the District of Columbia government’s master plan, nor did the Court of Appeals or the District Court reach such a conclusion. Without the requisite relationship between the demolition program and the acquisition, HUD’s proposal for disposing of Sky Tower is no different than any other property management plan, insufficient by itself to confer eligibility under § 101 (6) of the Relocation Act.
We recognize, of course, that an agency’s intent in acquiring property appears irrelevant to those displaced by federal order. From a tenant’s perspective, the costs of dislocation are the same regardless of whether an agency anticipated causing displacements when it acquired property. Nonetheless, Congress chose to condition eligibility for relocation benefits on the agency’s purpose in acquiring property, and our function is not to rewrite the statute. The increasing number of default acquisitions by Government agencies may well prompt Congress to expand the Relocation Act’s coverage. But until Congress does so, the tenants in these cases are ineligible for relocation assistance under that Act.
Accordingly, the judgment of the Court of Appeals in No. 77-1463 is reversed and the judgment in No. 77-874 is affirmed.
It is so ordered.
Section 101 (6) provides in its entirety:
“The term 'displaced person’ means any person who, on or after the effective date of this Act, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; and solely for the purposes of sections 202 (a) and (b) and 205 of this title, as a result of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property, on which such person conducts a business or farm operation, for such program or project.” 84 Stat. 1894, 42 U. S. C. § 4601 (6).
Section 101 (5) of the Act defines a “person” to mean “any individual, partnership, corporation, or association.” 84 Stat. 1894, 42 U. S. C. §4601 (5).
The definition of a “displaced person” governs basic eligibility for the several types of assistance available under the Relocation Act. Section 202 of the Act provides reimbursement for reasonable moving expenses, direct losses that result from moving or discontinuing a business or farm operation, and expenses incurred in searching for a replacement business or farm. In lieu of reimbursement for actual expenses, § 202 authorizes payment of a fixed sum to eligible persons, here a $300 moving expense allowance and á $200 dislocation allowance. 84 Stat. 1895, 42 U. S. C. §4622; see 24 CFR §§42.65-42.80 (1978); infra, at 60. Sections 203 and 204 permit replacement housing payments of up to $15,000 for homeowners and $4,000 for tenants, provided certain need and occupancy requirements are satisfied. 84 Stat. 1896, 1897, 42 U. S. C. §§ 4623, 4624; see 24 CFR §§42.90, 42.95 (1978); infra, at 61. Finally, §205 requires agencies to establish a program of relocation assistance advisory services for displaced persons. 84 Stat. 1897, 42 U. S. C. §4625; see 24 CFR §§ 42.100-42.125 (1978); infra, at 60.
555 F. 2d 166 (CA7 1977); 187 U. S. App. D. C. 156, 571 F. 2d 590 (1977). See also Blount v. Harris, 593 F. 2d 336 (CA8 1979); Burns v. United States, Civ. No. 4-76-237 (DC Minn., July 11, 1978). See generally Harris v. Lynn, 555 F. 2d 1357, 1359-1360 (CA8) (aff’g 411 F. Supp. 692 (ED Mo. 1976)), cert. denied, 434 U. S. 927 (1977); Caramico v. Secretary, Dept. of HUD, 509 F. 2d 694, 697-699 (CA2 1974).
It now appears that a private party contracted in July 1977 to purchase Riverhouse Towers Apartments from HUD and that the sale has since been consummated. Brief for Petitioners in No. 77-874, pp. 37-38 (letter from Department of HUD, Office of General Counsel, to Mr. Richard L. Zweig).
The tenants sought judicial review under the Administrative Procedure Act, 5 U. S. C. § 701 et seq., of HUD’s refusal to provide relocation assistance. Jurisdiction was predicated on 28 U. S. C. §§ 1337, 1346.
In addition to their Relocation Act claims, several tenants alleged in the complaint that HUD should not have applied their security deposits to offset rent deficiencies. The tenants contended that HUD had breached an implied warranty of habitability for the relevant period, thereby relieving them of any obligation to pay rent. Deciding the issue under federal law, the District Court held that no such warranty could be implied in the tenants’ leases. The Court of Appeals affirmed. 555 F. 2d, at 170-171. The tenants have not challenged this aspect of the Court of Appeals’ decision, and we therefore do not consider the issue.
Although HUD did provide minimal reimbursement for moving expenses, it made these $300 payments on an emergency basis “under the general authority of the Housing Act,” and not pursuant to any provision of the Relocation Act. Tr. of Oral Arg. 30.
The preliminary injunction barred HUD from completing the demolition or the evictions, required the agency to rehabilitate certain buildings, and allowed the evicted tenants to return at the Department's expense. Cole v. Lynn, 389 F. Supp. 99 (DC 1975); Cole v. Hills, 396 F. Supp. 1235 (DC 1975). While the benefits issue was pending on appeal pursuant to Fed. Rule Civ. Proc. 54 (b), the parties agreed that the District Court should remand the remaining issues to HUD, so the agency could reconsider the proper disposition of Sky Tower. On remand, the agency abandoned the demolition plan and arranged to transfer ownership of the housing complex to the District of Columbia government, with HUD continuing to provide substantial rent subsidies. 187 U. S. App. D. C., at 160 n. 17, 571 F. 2d, at 594 n. 17.
After we granted certiorari in these cases, Congress enacted the Housing and Community Development Amendments of 1978, Pub. L. 95-557, 92 Stat. 2080. That legislation directs HUD to re-examine its property management and disposition program, see § 203, 92 Stat. 2088, 12 U. S. C. § 1701z-11 (1976 ed., Supp. II); §902, 92 Stat. 2125, and to ensure that tenants displaced from property owned by HUD will receive any relocation assistance available under other statutory provisions, § 203 (d). However, these provisions do not affect the Relocation Act’s definition of a “displaced person.” See H. R. Conf. Rep. No. 95-1792, pp. 67-71, 99-100 (1978).
In its entirety, this phrase encompasses any “program or project undertaken by a Federal agenc}*-, or with Federal financial assistance.” § 101 (6), 42 U. S. C. § 4601 (6). Lower federal courts have interpreted the latter part of this phrase to include only federally assisted “programs or projects” undertaken by agencies of state and local governments, as opposed to private parties. See Moorer v. Dept. of HUD, 561 F. 2d 175 (CA8 1977), cert. denied, 436 U. S. 919 (1978); Dawson v. U. S. Dept. of HUD, 428 F. Supp. 328 (ND Ga. 1976); Parlane Sportswear Co. v. Weinberger, 381 F. Supp. 410 (Mass. 1974), aff’d, 513 F. 2d 835, 837 (CA1), cert. denied, 423 U. S. 925 (1975). Although the present cases do require us to consider what types of “programs or projects” Congress intended to cover, infra, at 63-67, we need not determine whether § 101 (6) applies when private parties undertake such a program and acquire property, since the tenants here have claimed that the program of a federal agency caused their displacement. Similarly, these cases do not require us to construe the provisions applicable when a state or local agency acquires property for use in a covered program or project. See 42 U. S. C. §§ 4627-4633, 4635.
See, e. g., Tennessee Valley Authority Act of 1933, ch. 32, 48 Stat. 58, as amended, 49 Stat. 1080; Act to Authorize Certain Construction of Military and Naval Installations, Pub. L. 82-155, § 501 (b), 65 Stat. 364; Act of May 29, 1958, Pub. L. 85-433, 72 Stat. 152, 43 U. S. C. § 1231 (1964 ed.), repealed by uncodified §220 (a)(1) of the Relocation Act, 84 Stat. 1903.
Select Subcommittee on Real Property Acquisition of the House Committee on Public Works, Study of Compensation and Assistance for Persons Affected by Real Property Acquisition in Federal and Federally Assisted Programs, 88th Cong., 2d Sess., 145-167 (Comm. Print 1965) (hereinafter Select Subcommittee Study).
See id., at 93-104, 194-207. The sole exception to this pattern was contained in § 310 of the Housing Act of 1964, 78 Stat. 788, 42 U. S. C. § 1465 (1970 ed.), repealed by uncodified § 220 (a) (5) of the Relocation Act, 84 Stat. 1903. Section 310 extended benefits to persons displaced from urban renewal areas by code enforcement activities and by programs of voluntary rehabilitation in accordance with an urban renewal plan. Congress treated this provision as an exception to the general rule when it drafted the Fair Compensation Act and the successor bills. See infra, at 61-62, and nn. 20, 40.
See infra, at 53, and n. 20.
The tenants contend that Congress legislated against a broader background and therefore must have intended the Fair Compensation Act and the Relocation Act to apply outside the acquisition context. For support, they rely on § 123 of the Housing Act of 1954, 68 Stat. 596, 599-600, as amended, 12 U. S. C. §§ 1715k, 1715l, which facilitated the relocation of displaced individuals yet did not depend on the acquisition of property for a federal project. However, § 123 was not in any sense a relocation benefits statute, but rather an aspect of the mortgage insurance program designed to encourage the development of housing for families displaced by governmental action. See 68 Stat. 599. Section 123 therefore was merely tangential to Congress’ immediate goal of revising legislation that directly assisted dislocated persons. Accordingly, the proposed Fair Compensation Act did not include § 123 among the provisions to be repealed upon adoption of the replacement legislation. See Select Subcommittee Study 159.
See S. 1201, 89th Cong., 1st Sess., § 2 (1965); S. 1681, 89th Cong., 1st Sess., § 2 (1965); S. Rep. No. 1378, 89th Cong., 2d Sess., 1 (1966); S. 698, 90th Cong., 1st Sess., § 801 (1967) (as introduced); S. 698, 90th Cong., 2d Sess., § 701 (1968) (as reported by Committee); S. Rep. No. 1456, 90th Cong., 2d Sess., 11, 24 (1968). Congress’ failure to enact comprehensive relocation legislation until 1970 was due not to any dispute over the purpose of the bills, but rather to the inability of both Houses to complete action before the end of the earlier legislative sessions. See S. Rep. No. 91-488, pp. 4 — 7 (1969); 116 Cong. Rec. 40168 (1970) (Rep. Fallon).
See also the Senate Committee’s description of the purpose for this legislation, S. Rep. No. 91-488, pp. 10, 13 (1969), and the discussion of this bill on the Senate floor. 115 Cong. Rec. 31370-31376, 31533-31535 (1969).
Section 201 declares:
"The purpose of this title is to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole.” 84 Stat. 1895, 42 U. S. C. § 4621.
See n. 15, supra.
See H. R. Rep. No. 91-1656 (1970); 116 Cong. Rec. 40163-40172 (1970) (House debate); id., at 42139 (Senate acceptance of House modifications) ; id., at 42506-42507 (final House approval).
Sections 107 and 108 of the Fair Compensation Act, Select Subcommittee Study 151-152. In addition to these operative sections of the proposed Act, the special benefits provision contained in § 113 of the Act reflected the limited scope of the term “displaced person.” Section 310 of the Housing Act of 1964 provided relocation assistance in a few situations not involving governmental property acquisitions. See n. 12, supra. In recognition that beneficiaries of this program would not be “displaced persons” under the Fair Compensation Act, the Select Subcommittee included a special provision to preserve this program when the existing relocation legislation was repealed. The special benefits provision, § 113 of the proposed Act, directed that persons who move “as the direct result of code enforcement activities undertaken in connection with an urban renewal project, or a program of voluntary rehabilitation of buildings or other improvements in accordance with an urban renewal plan” shall be deemed “displaced person [s].” Select Subcommittee Study 157.
That similar provisions were included in subsequent Senate bills demonstrates that Congress intentionally restricted the definition of a “displaced person” to application in the property acquisition context. See S. 1201, 89th Cong., 1st Sess., § 113 (1965); S. 1681, 89th Cong., 1st Sess., § 10 (1965); S. Rep. No. 1378, 89th Cong., 2d Sess., 8, 32-33 (1966); S. 698, 90th Cong., 1st Sess., § 808 (1967); S. Rep. No. 1456, 90th Cong., 2d Sess., 32 (1968); S. 1, 91st Cong., 1st Sess., § 232 (1969); n. 40, infra. This provision was ultimately enacted as § 217 of the Relocation Act, 84 Stat. 1902, 42 U. S. C. § 4637. See infra, at 61-62.
S. 1681, 89th Cong., 1st Sess., § 12 (2) (1965); see also S. 1201, 89th Cong., 1st Sess., § 115 (2) (1965).
Hearings on S. 1201 and S. 1681 before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 89th Cong., 1st Sess., 55, 90 (1965).
S. 1681, 89th Cong., 1st Sess., §11 (b) (July 20, 1966). The Senate Committee substituted this language as well in the bill's definition of “displaced,” since the Senate bill and its successors also employed this term to impose the same eligibility requirements as the definition of a “displaced person.” See id., § 11 (m); n. 31, infra.
See, e. g., S. Rep. No. 1378, 89th Cong., 2d Sess., 1 (1966) (“The purpose of S. 1681, as amended, is to establish a uniform policy for the fair and equitable treatment of owners, tenants, and other persons displaced by the acquisition of real property for Federal and federally assisted programs”).
Id., at 1, 9, 10-11, 17, 26, 30; 112 Cong. Rec. 16733, 16735, 16737-16740 (1966).
S. 698, 90th Cong., 1st Sess., § 113 (1967) (as introduced); id., § 112 (as reported by Committee). See also n. 29, infra.
S. Rep. No. 91-488 (1969); 115 Cong. Rec. 31370-31376, 31533-31535 (1969).
H. R. Rep. No. 91-1656, pp. 4-5 (1970); S. 1, 91st Cong., 2d Sess., §101 (6) (Dec. 2, 1970).
Uniform Relocation Assistance and Land Acquisitions Policies — 1970: Hearings on H. R. 14898, H. R. 14899, S. 1 and Related Bills before the House Committee on Public Works, 91st Cong., 1st and 2d Sess., 137, 281, 416, 595-596, 1028 (1969-1970) (hereinafter 1970 House Hearings). Some witnesses suggested that S. 1 be amended by adding a “subsequent acquisition” requirement to the definition of a displaced person. 1970 House Hearings 137, 281-282, 416. The subsequent acquisition language would have precluded awarding any relocation assistance when an agency failed to consummate an acquisition, no matter how reasonable the expectation of acquisition had been. This suggestion was based on the definition used in H. R. 14898, 91st Cong., 1st Sess. (1969), a companion relocation proposal, which in turn was derived from the Highway Relocation Assistance provisions of the Federal-Aid Highway Act of 1968, § 30, 82 Stat 830, repealed by uncodified §220 (a) (10) of the Relocation Act, 84 Stat. 1903.
The Department of Transportation’s representative testified:
“We think some limitation [on the expectation of acquisition] is desirable. Relocation payments should be limited to persons actually displaced or who move due to some official act of the public authorities such as a notice of condemnation.” 1970 House Hearings 596.
The representative from HUD agreed, recommending that:
“Relocation payments should not be made to those who move on the basis of speculation regarding the intent to take their property. We favor a provision limiting reimbursement to persons [who move] after some official act which clearly threatens displacement even though the property is never subsequently acquired.” Id., at 1027-1028.
Both representatives referred the House Committee to their own agencies’ relocation regulations, which based eligibility for benefits on the occurrence of an “official act” before the actual acquisition. Id., at 1007, 1069.
S. 1, 91st Cong., 2d Sess., §101 (6) (Dec. 2, 1970), enacted as 42 U. S. C. §4601 (6). The House Committee also consolidated all of S. l’s subcategories of “displaced persons” into one provision, § 101 (6), along with the definition of “displaced.” This consolidation did not affect language pertinent to the issues raised here.
Several witnesses remarked that the unamended definition of a displaced person would exclude those dislocated by activities other than property acquisitions. 1970 House Hearings 234, 241, 252-253, 270, 350-351, 360. Many of these comments were directed in particular toward H. R. 14898, which did not contain a provision continuing the availability of benefits for persons displaced by code enforcement activities and rehabilitation in urban renewal projects. See n. 12, supra. A few witnesses recommended that the House Committee rectify the omission by adding a provision similar to that contained in the Fair Compensation Act, see n. 20, supra, or the S. 1 provision that later became § 217 of the Relocation Act. 1970 House Hearings 234, 241, 252-253, 270. Other witnesses proposed a more general expansion to cover persons displaced in the absence of an acquisition. Id., at 350-351, 360. All of these witnesses, however, agreed that given the language used to define a displaced person, an additional provision was needed to accomplish these extensions.
This principle is especially applicable here, since witnesses had advocated such a wide range of adjustments in coverage. One group urged that coverage not be available unless property was actually acquired, see n. 29, supra, while another group requested the Committee to authorize relocation benefits generally outside the acquisition context. See n. 32, supra. The lack of any evidence that the Committee intended to accept either suggestion strongly indicates that the written order clause was designed solely to eliminate the vagueness inherent in the prior definition.
The tenants contend that the written order clause cannot in fact serve the purpose urged by HUD, because only an agency that already has acquired property is empowered to “order” persons to move from the property. This argument attributes too much significance to the word “order.” As shown by the passage quoted in text, the Committee generally referred to a “notice to vacate.” The Committee’s description of the clause, as well as its origin, demonstrates that a “written order” indicates any official notice to vacate, whether issued before or after the acquisition is completed. See also S. Rep. No. 1378, 89th Cong., 2d Sess., 9 (1966).
That Members of the House did not consider the new written order clause a significant departure from previous proposals is evident from their specific characterizations of the bill during the brief House debate as legislation designed to provide benefits when persons are displaced by the acquisition of property for public programs. See 116 Cong. Rec. 40167 (1970) (Rep. Edmondson); id., at 40169 (Rep. Cleveland); id., at 40170 (Rep. Johnson); id., at 40171 (Rep. Brotzman); id., at 40171-40172 (Rep. Annunzio). See also id., at 42506 (Rep. Edmondson); id., at 42507 (Rep. Hall).
In contrast, §§ 202 and 205 do function properly if the written order clause is given the construction compelled by its legislative history. When tenants vacate upon notice that an agency will acquire real property, “the acquisition of real property . . . will result in [their] displacement/’ for purposes of §§ 202 and 205, regardless of whether the agency completes its plans.
Section 204 refers to “such dwelling” instead of “the property.” 42 U. S. C. § 4624. The length-of-prior-occupancy requirement is 180 days for displaced homeowners and 90 days for displaced tenants. §§ 4623 (a)(1), 4624.
See S. Rep. No. 91-488, pp. 10-12 (1969); H. R. Rep. No. 91-1656, pp. 8-12 (1970).
See nn. 12 and 20, swpra.
See H. R. Rep. No. 91-1656, p. 20 (1970) (This section “makes such a person eligible for the full range of relocation benefits provided for displaced persons”); S. Rep. No. 91-488, p. 15 (1969).
Section 101 (6) does not, however, require that an agency anticipate obtaining title to the property. The legislative history demonstrates that Congress focused on the eventual right to use property, not on an agency's mode of procurement. For example, in explaining that benefits would be available for persons displaced by the Post Office Department’s frequent practice of using options and leasebacks in lieu of directly purchasing property for its facilities, the House Committee stated:
“It makes no difference to a person required to move because of the development of a postal facility which method the postal authorities use to obtain the facility, or who acquires the site or holds the fee title to the property. Since the end product is the same, a facility which serves the public and is regarded by the public as a public building, any person so required to move is a displaced person entitled to the benefits of this legislation.” H. R. Rep. No. 91-1656, p. 5 (1970).
This, of course, is not to suggest that § 101 (6) would be inapplicable if an agency acquired property for one program, expecting to displace persons, and then ultimately issued orders to vacate for a different program or project. But Congress’ intent to provide relocation benefits for persons displaced in that manner does not assist the tenants here, because their eligibility depends primarily on whether HUD acquired Sky Tower and Riverhouse Apartments “for” a federal program or project in the first instance.
The parties have disputed whether HUD voluntarily acquired the properties here, and whether an involuntary acquisition can ever satisfy §101(6). But to focus on voluntariness oversimplifies application of the statute.. Section 101 (6) applies whenever an agency intends to obtain property for use in a federal program, and voluntariness is relevant only to the extent it is probative of the agency's overall purpose in procuring property.
Committee Reports and earlier versions of this bill elaborated on this language, by referring to an acquisition “for a public improvement constructed or developed by or with funds provided in whole or in part by the Federal Government.” S. Rep. No. 91-488, p. 9 (1969); accord, S. 1, 91st Cong., 1st Sess., § 110 (1969) (as introduced and reported by Committee).
The mortgage insurance programs were 'intended to facilitate “realization as soon as feasible of the goal of a decent home and a suitable living environment for every American family.” 42 U. S. C. §§ 1441, 1441a; accord, 12 U. S. C. § 1701t.
See Hearings on Distressed HUD-Subsidized Multifamily Housing Projects before the Senate Committee on Banking, Housing, and Urban Affairs, 95th Cong., 1st Sess., 134-135, 250-253 (1977) (statement of Lawrence B. Simons, Assistant Secretary of HUD). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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63
] |
BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK et al. v. TOMANIO
No. 79-424.
Argued February 26, 1980
Decided May 19, 1980
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined. Stevens, J., filed an opinion concurring in the result, post, p. 492. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 494.
Donald 0. Meserve argued the cause for petitionefs. With him on the brief was Jean M. Coon.
Vincent J. Mutari argued the cause and filed a brief for respondent.
Mr. Justice Rehnquist
delivered the opinion of the Court.
We granted certiorari in this case, 444 U. S. 939, to review a judgment of the Court of Appeals for the Second Circuit holding that petitioners, the Board of Regents of the University of the State of New York and the Commissioner of Education, were required by the Fourteenth Amendment to the United States Constitution, to afford a hearing to respondent, Mary Tomanio, before denying her request for a waiver of professional licensing examination requirements. In so doing, the Court of Appeals rejected petitioners’ claims that both the statute of limitations and the doctrine of estoppel by judgment barred respondent’s maintenance of an action under 42 U. S. C. § 1983 in the federal courts. We find it necessary to consider only the defense based on the statute of limitations, since the resolution of that issue is virtually foreordained in favor of petitioners by our prior cases when the indisputably lengthy series of events which ultimately brought this case here is described.
I
Respondent has practiced chiropractic medicine in the State of New York since 1958. Prior to 1963, the State did not require chiropractic practitioners to be licensed. But in that year the State enacted a statute which required state licensing, and established three separate methods by which applicants could obtain a license to practice chiropractic in the State of New York. 1963 N. Y. Laws, ch. 780, codified as amended, N. Y. Educ. Law §§ 6506 (5), 6554, 6556 (McKinney 1972 and Supp. 1979-1980). First, the statute established education and examination requirements for applicants who had not previously engaged in chiropractic practice. An alternative qualifying examination was made available to individuals already engaged in practice in New York on the date that the licensing statute became effective. Finally, the Act established a third means for current practitioners to qualify without taking any state-administered examination. Under § 6506 (5), they could obtain a waiver of “education, experience and examination requirements for a professional license . . . provided the board of regents shall be satisfied that the requirements of such article have been substantially met.”
Respondent has been unsuccessful in her efforts to obtain a license to practice in New York. On seven separate occasions between 1964 and 1971, she attempted to qualify by taking the special examinations designed for current practitioners. Respondent failed, by a narrow margin, to ever receive a passing score on the examinations. After this series of failures, she applied to the Board of Regents for waiver of the examination requirements pursuant to § 6506 (5). This application was based upon her claim that she had failed the examinations by only a very narrow margin, that she was licensed in the States of Maine and New Hampshire, and that she had passed an examination given by the National Board of Chiropractic Examiners. On November 22, 1971, the Board notified respondent that they had voted to deny her application for a waiver at a meeting held on November 19. Respondent was not afforded an evidentiary hearing on the denial of the waiver or given a statement of reasons for it.
In January 1972, respondent commenced a proceeding in the New York state courts attacking the decision of the Board of Regents not to grant a waiver as arbitrary and capricious, and seeking an order directing the Board to license her. She did not raise any constitutional challenge to the Board’s decision in this judicial proceeding. The trial court granted the requested relief, but its order was reversed by the Appellate Division. In November 1975, the New York State Court of Appeals affirmed the order of the Appellate Division holding that the Board of Regents had not abused their discretion in denying respondent’s application for a waiver. Tomanio v. Board of Regents, 38 N. Y. 2d 724, 343 N. E. 2d 755 (1975), aff’g 43 App, Div. 2d 643, 349 N. Y. S. 2d 806 (3d Dept. 1973).
Seven months later, on June 25, 1976, respondent instituted this action in Federal District Court under 42 U, S. C. § 1983. Respondent alleged that the refusal of petitioners to grant her a license to practice violated due process as guaranteed by the Fourteenth Amendment. Petitioners invoked res judicata and the statute of limitations as affirmative defenses to respondent’s action.
The District Court rejected these defenses. First, the court found that res judicata would not bar consideration of a § 1983 claim in federal court if the constitutional claim was not actually litigated and determined in the prior state-court proceeding. Since respondent had not raised any constitutional challenge to the Board’s action in state court, the trial court ruled that res judicata did not preclude the federal action.
The District Court also found that the § 1983 action was not barred by the statute of limitations. Respondent’s claim arose in November 1971 when her application for waiver was denied, more than three years prior to the date on which the suit in federal court was commenced. Although the District Court found that a 3-year New York statute of limitations was applicable to respondent’s action, the court held that it was appropriate to toll the running of that statute during the pendency of her state-court litigation. Relying on Mizell v. North Broward Hospital District, 427 F. 2d 468 (CA5 1970), the judge concluded that a federal tolling rule was appropriate, reasoning that
“[i]n my judgment, the present overburdening of the federal courts and the increased filings of civil rights complaints are factors that mitigate in favor of encouraging the utilization of effective and feasible administrative and judicial remedies, which exist under state law, in certain situations.”
Since respondent had diligently pursued her state-court remedy after the denial of waiver, and then diligently pursued her federal action after a final dismissal of her state-law claims in the New York State Court of Appeals, the judge found that “it cannot be said that plaintiff has slept on her rights.” On the merits of the federal constitutional claim, the District Court found that respondent was entitled to a hearing before the Board, relief which was more limited than she had sought. The Court of Appeals for the Second Circuit affirmed the District Court in its rejection of estoppel by judgment and the statute of limitations defense, finding that the tolling of the statute was justified “in the interests of advancing the goals of federalism.” 603 F. 2d 255. The court also agreed with the ruling of the District Court that respondent was entitled, as a matter of federal constitutional law, to a hearing before the Board on her eligibility for waiver of the examination requirements.
In unraveling this tangle of federal and state claims, and federal- and state-court judgments, we have decided that the case is best disposed of by resolving the statute of limitations question, which we believe has been all but expressly resolved against the respondent by our decisions in Robertson v. Wegmann, 436 U. S. 584 (1978); Johnson v. Railway Express Agency, Inc., 421 U. S. 454 (1975); and Monroe v. Pape, 365 U. S. 167 (1961). Under the reasoning of these decisions, the federal courts were obligated not only to apply the analogous New York statute of limitations to respondent’s federal constitutional claims, but also to apply the New York rule for tolling that statute of limitations.
II
Congress did not establish a statute of limitations or a body of tolling rules applicable to actions brought in federal court under § 1983 — a void which is commonplace in federal statutory law. When such a void occurs, this Court has repeatedly “borrowed” the state law of limitations governing an analogous cause of action. Limitation borrowing was adopted for civil rights actions filed in federal court as early as 1914, in O’Sullivan v. Felix, 233 U. S. 318. Although the Court of Appeals found that respondent’s action was governed by a 3-year New York statute of limitations, the court did not apply the New York rules governing the circumstances under which that statute of limitations could be tolled.
In § 1983 actions, however, a state statute of limitations and the coordinate tolling rules are more than a technical obstacle to be circumvented if possible. In most cases, they are binding rules of law. In 42 U. S. C. § 1988, Congress “quite clearly instructs [federal courts] to refer to state statutes” when federal law provides no rule of decision for actions brought under § 1983. Robertson v. Wegmann, supra. See also Carlson v. Green, ante, at 22, n. 10. As we held in Robertson, by its terms, § 1988 authorizes federal courts to disregard an otherwise applicable state rule of law only if the state law is “inconsistent with the Constitution and laws of the United States.”
In another action subject to § 1988, we held that the state statute of limitations and the state tolling rules governed federal actions brought under 42 U. S. C. § 1981 except when “inconsistent with the federal policy underlying the cause of action under consideration.” Johnson v. Railway Express Agency, Inc., supra, at 465. We there restated the general principle that since there was no specifically stated or otherwise relevant federal statute of limitations for the federal substantive claim created by Congress in that case, “the controlling period would ordinarily be the most appropriate one provided by state law.” 421 U. S., at 462, and eases cited therein. We went on to observe that this “borrowing” logically included rules of tolling:
“Any period of limitation ... is understood fully only in the context of the various circumstances that suspend it from running against a particular cause of action. Although any statute of limitations is necessarily arbitrary, the length of the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones. In virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling, revival, and questions of application. In borrowing a state period of limitation for application to a federal cause of action, a federal court is relying on the State’s wisdom in setting a limit, and exceptions thereto, on the prosecution of a closely analogous claim.” Id., at 463-464.
As Robertson and Johnson make clear, therefore, resolution of this case requires us to identify the New York rule of tolling and determine whether that rule is “inconsistent” with federal law.
Ill
New York has codified the limitations of actions and the circumstances under which those limitations can be tolled together. N. Y. Civ. Prac. Law §§ 201-218 (McKinney 1972 and Supp. 1979-1980). The general rule is set forth unambiguously in § 201 (McKinney 1972): “An action . . . must be commenced within the time specified in this article. . . . No court shall extend the time limited by law for the commencement of an action.” The statute codifies a number of the tolling rules developed at common law. No section of the law provides, however, that the time for filing a cause of action is tolled during the period in which a litigant pursues a related, but independent cause of action. If a plaintiff wishes to pursue his claims in succession, rather than concurrently, the legislature has required the plaintiff either to obtain a judicial stay of the time for commencing an action, or to litigate at risk. See § 204. The New York Legislature has apparently determined that the policies of repose underlying the statute of limitations should not be displaced by whatever advantages inure, whether to the plaintiff or the system, in a scheme which encourages the litigation of one cause of action prior to another.
Respondent's failure to comply with the New York statute of limitations, therefore, precluded maintenance of this action unless New York’s tolling rule is “inconsistent” with the policies underlying § 1983. In order to gauge consistency, of course, the state and federal policies which the respective legislatures sought to foster must be identified and compared. On many prior occasions, we have emphasized the importance of the policies underlying state statutes of limitations. Statutes of limitations are not simply technicalities. On the contrary, they have long been respected as fundamental to a well-ordered judicial system. Making out the substantive elements of a claim for relief involves a process of pleading, discovery, and trial. The process of discovery and trial which results in the finding of ultimate facts for or against the plaintiff by the judge or jury is obviously more reliable if the witness or testimony in question is relatively fresh. Thus in the judgment of most legislatures and courts, there comes a point at which the delay of a plaintiff in asserting a claim is sufficiently likely either to impair the accuracy of the fact-finding process or to upset settled expectations that a substantive claim will be barred without respect to whether it is meritorious. By the same token, most courts and legislatures have recognized that there are factual circumstances which justify an exception to these strong policies of repose. For example, defendants may not, by tactics of evasion, prevent the plaintiff from litigating the merits of a claim, even though on its face the claim is time-barred. These exceptions to the statute of limitations are generally referred to as “tolling” and, as more fully discussed in Johnson v. Railway Express Agency, Inc., 421 U. S. 454 (1975), are an integral part of a complete limitations policy.
The importance of policies of repose in the federal, as well as in the state, system is attested to by the fact that when Congress has provided no statute' of limitations for a substantive claim which is created, this Court has nonetheless “borrowed” what it considered to be the most analogous state statute of limitations to bar tardily commenced proceedings. Supra, at 483-484. This is obviously a judicial recognition of the fact that Congress, unless it has spoken to the contrary, did not intend by the mere creation of a “cause of action” or “claim for relief” that any plaintiff filing a complaint would automatically prevail if only the necessary elements of the federal substantive claim for relief could be established. Thus, in general, state policies of repose cannot be said to be disfavored in federal law. Nonetheless, it is appropriate to determine whether Congress has departed from the general rule in § 1983.
In Robertson v. Wegmann, 436 U. S. 584 (1978), the Court first emphasized that “a state statute cannot be considered 'inconsistent’ with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the § 1983 action were the only benchmark, there would be no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant.” Id., at 593. The Court went on to identify two of the principal policies embodied in § 1983 as deterrence and compensation. Neither of these policies is significantly affected by this rule of limitations since plaintiffs can still readily enforce their claims, thereby recovering compensation and fostering deterrence, simply by commencing their actions within three years.
Uniformity has also been cited as a federal policy which sometimes necessitates the displacement of an otherwise applicable state rule of law. Carlson v. Green, ante, p. 14; Occidental Life Ins. Co. of California v. EEOC, 432 U. S. 355, 362 (1977). The need for uniformity, while paramount under some federal statutory schemes, has not been held to warrant the displacement of state statutes of limitations for civil rights actions. Johnson v. Railway Express Agency, Inc., supra. In Robertson v. Wegmann, supra, we held:
“[W]hatever the value of nationwide uniformity in areas of civil rights enforcement where Congress has not spoken, in the areas to which § 1988 is applicable Congress has provided direction, indicating that state law will often provide the content - of the federal remedial rule. This statutory reliance on state law obviously means that there will not be nationwide uniformity on these issues.” 436 U. S., at 594, n. 11.
The Court of Appeals and the District Court in this case apparently believed that policies of federalism would be undermined by the adoption of the New York tolling rule since litigants would not be encouraged to resort to state remedies prior to the maintenance of a federal civil rights action under § 1983. The conclusion of the lower courts that this result would be “inconsistent” with federal law is at odds with the reasoning in our prior opinions in this field as well as at odds with federalism itself.
On several prior occasions, we have reasoned that when Congress intended to establish a remedy separate and independent from other remedies that might also be available, a state rule which does not allow a plaintiff to litigate such alternative claims in succession, without risk of a time bar, is not “inconsistent.” In Johnson v. Railway Express, supra, the Court found that a state rule which did not toll the statute of limitations applicable to a claim under 42 U. S. C. § 1981 during the pendency of a charge under Title VII of the Civil Rights Act of 1964 filed with the Equal Employment Opportunity Commission, was not inconsistent with § 1981 because Congress had “retained § 1981 as a remedy . . . separate from and independent of the . . . procedures of Title VII.” 421 U. S., at 466. The Court premised its conclusion that Title VII and § 1981 were separate and independent on the fact that Congress had not required resort to Title VII as a prerequisite to an action under § 1981 and did not “expect that a § 1981 court action usually would be resorted to only upon a completion of Title VII procedures. . . .” 421 U. S., at 461. Adopting the same reasoning, we held in Electrical Workers v. Robbins & Myers, Inc., 429 U. S. 229 (1976), that it would not be inconsistent with Title VII to decline to toll the statute of limitations during labor grievance or arbitration procedures because “contractual rights under a collective-bargaining agreement and the statutory right provided by Congress under Title VII ‘have legally independent origins and are equally available to the aggrieved employee.’ ” Id,., at 236, quoting Alexander v. Gardner-Denver Co., 415 U. S. 36, 52 (1974). Applying the converse of this reasoning, this Court found in Occidental Life Ins. Co. of California v. EEOC, supra, that it would be inconsistent with federal law to apply a state statute of limitations to actions instituted by the EEOC under Title VII since the EEOC was “required by law to refrain from commencing a civil action until it ha[d] discharged its administrative duties.” 432 U. S., at 368.
The District Court’s conclusion that state remedies should be utilized before resort to the federal courts may be an entirely sound and sensible observation, but in our opinion it does not square with what must be presumed to be congressional intent in creating an independent federal remedy. Unless that remedy is structured to require previous resort to state proceedings, so that the claim may not even be maintained in federal court unless such resort be had, see Love v. Pullman Co., 404 U. S. 522 (1972), it cannot be assumed that Congress wishes to hold open the independent federal remedy during any period of time necessary to pursue alternative state-court remedies. It is difficult to conclude that a state policy of repose which likewise does not encourage litigants to resort to other available remedies is inconsistent with such congressional intent. We find the congressional intent here to be virtually indistinguishable from that found in Johnson v. Railway Express, supra, and Electrical Workers v. Robbins & Myers, Inc., supra, to be consistent with a rule prohibiting tolling.
As in those cases, there is no question that respondent’s i 1983 action was “separate and independent” from the state judicial remedy pursued in state court. This Court has not interpreted § 1983 to require a litigant to pursue state judicial remedies prior to commencing an action under this section. In Monroe v. Pape, 365 U. S., at 183, we held: “It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Thus the very independence of § 1983 reveals that the New York rule precluding tolling in the circumstances of this case is not “inconsistent” with the provisions of § 1983.
Finally, we do not believe that this construction of congressional intent is overridden, as the Court of Appeals found, “in the interests of advancing the goals of federalism.” We believe that the application of the New York law of tolling is in fact more consistent with the policies of “federalism” invoked by the Court of Appeals than a rule which displaces the state rule in favor of an ad hoc federal rule. The result reached by the District Court and Court of Appeals might encourage more plaintiffs with both state and federal constitutional claims to initially bring an action in the state courts. But it would just as surely frustrate the often complex combination of limitations and tolling provisions enacted by the State in question. While New York might have chosen a tolling rule designed to encourage prior resort to state-law remedies, it has not. Here New York has expressed by statute its disfavor of tolling its statute of limitations for one action while an independent action is being pursued. Considerations of federalism are quite appropriate in adjudicating federal suits based on 42 U. S. C. § 1983. See, e. g., Younger v. Harris, 401 U. S. 37 (1971). But the Court of Appeals’ rule allowing tolling can scarcely be deemed a triumph of federalism when it necessitates a rejection of the rule actually chosen by the New York Legislature.
Since we therefore hold that respondent’s action was barred by the New York statute of limitations, we find it unnecessary to reach petitioners’ other contentions. The judgment of the Court of Appeals is accordingly Reversed
This waiver section is available to all applicants for professional licenses and not just those seeking admission to the practice of chiropractic.
In 1972, respondent also took, and failed, the examinations administered to applicants without prior experience in practice.
See, e. g., the authorities cited in Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 462 (1975).
The Court of Appeals for the Second Circuit established a number of years ago that New York’s 3-year time limitation for actions “to recover upon a liability, penalty or forfeiture created or imposed by statute,” N. Y. Civ. Prac. Law §214(2) (McKinney Supp. 1979-1980), governs §1983 actions brought in Federal District Court in New York. Romer v. Leary, 425 F. 2d 186 (1970); Meyer v. Frank, 550 F. 2d 726, cert. denied, 434 U. S. 830 (1977). While petitioners suggest that §217 (McKinney 1972) of the New York statutes of limitations, requiring the commencement of proceedings to review administrative action within four months, more appropriately governs this action, we need only hold that the Court of Appeals erred by tolling the 3-year limitation. The respondent does not maintain that a limitation period longer than three years governs this action. Thus we may assume for the purposes of this opinion that the 3-year period was applicable since respondent is in any event barred.
Section 1988 provides:
“The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this [Chapter and Title 18], for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.”
See, e. g., § 207 (McKinney 1972) (tolling during defendant’s absence fr.om State or residence under false name); § 208 (McKinney Supp. 1979— 1980) (tolling during period in which plaintiff is under a disability such as infancy, insanity, or imprisonment).
Section 204 (b) does provide that if a plaintiff attempts to submit a claim for arbitration, but it is ultimately held that there is no obligation to arbitrate, the limitations period will not run during the time between the date of demand and the date of the judgment providing that arbitration is unavailable. This section does not provide for general tolling during arbitration, but only in situations where the plaintiff is unable to obtain an adjudication on the merits because the remedy is legally unavailable.
We note that respondent does not maintain that any provision of New York law operated to toll the statute of limitations.
The remedy pursued by plaintiff in state court was a state judicial remedy authorizing actions against administrative bodies to review “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion. . . N. Y. Civ. Prac. Law §7803 (McKinney 1963). While the parties and the courts below were in agreement that a constitutional challenge to the agency action could have been brought under Art. 78, only the state-law claims were pursued by respondent in that proceeding. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
FEDERAL TRADE COMMISSION et al. v. GROLIER INC.
No. 82-372.
Argued March 29, 1983
Decided June 6, 1983
White, J., delivered the opinion of the Court, in which Burger, C. J., and Marshall, Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. Brennan, J., filed an opinion concurring in part and concurring in the judgment, in which Blackmun, J., joined, post, p. 28.
Deputy Solicitor General Getter argued the cause for petitioners. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Samuel A. Alito, Jr., and Leonard Schaitman.
Daniel S. Mason argued the cause for respondent. With him on the brief were Frederick P. Furth, Michael P. Lehmann, and Richard M. Clark.
Justice White
delivered the opinion of the Court.
The Freedom of Information Act (FOIA), 5 U. S. C. § 552, mandates that the Government make its records available to the public. Section 552(b)(5) exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency.” It is well established that this exemption was intended to encompass the attorney work-product rule. The question presented in this case is the extent, if any, to which the work-product component of Exemption 5 applies when the litigation for which the requested documents were generated has been terminated.
In 1972, the Federal Trade Commission undertook an investigation of Americana Corp., a subsidiary of respondent Grolier Inc. The investigation was conducted in connection with a civil penalty action filed by the Department of Justice. In 1976, the suit against Americana was dismissed with prejudice when the Government declined to comply with a District Court discovery order. In 1978, respondent filed a request with the Commission for disclosure of documents concerning the investigation of Americana. The Commission initially denied the entire request, stating that it did not have any information responsive to some of the items and that the remaining portion of the request was not specific enough to permit the Commission to locate the information without searching millions of documents contained in investigatory files. The Commission refused to release the few items that were responsive to the request on the basis that they were exempt from mandatory disclosure under § 552(b)(5).
Pursuant to the Commission’s Rules, respondent appealed to the agency’s General Counsel. Following review of respondent’s request, and after a considerable process of give and take, the dispute finally centered on seven documents. Following in camera inspection, the District Court determined that all the requested documents were exempt from disclosure under § 552(b)(5), either as attorney work product, as confidential attorney-client communications, or as internal predecisional agency material. On appeal, the Court of Appeals held that four documents generated during the Americana litigation could not be withheld on the basis of the work-product rule unless the Commission could show that “litigation related to the terminated action exists or potentially exists.” 217 U. S. App. D. C. 47, 50, 671 F. 2d 553, 556 (1982).
The Court of Appeals reasoned that the work-product rule encompassed by § 552(b)(5) was coextensive with the work-product privilege under the Federal Rules of Civil Procedure. A requirement that documents must be disclosed in the absence of the existence or potential existence of related litigation, in the Court of Appeals’ view, best comported with the fact that the work-product privilege is a qualified one. We granted the Commission’s petition for certiorari, 459 U. S. 986 (1982). Because we find that the Court of Appeals erred in its construction of Exemption 5, we reverse.
Section 552(b) lists nine exemptions from the mandatory disclosure requirements that “represen[t] the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses.” EPA v. Mink, 410 U. S. 73, 80 (1973). The primary purpose of one of these, Exemption 5, was to enable the Government to benefit from “frank discussion of legal or policy matters.” S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965). See H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). In keeping with the Act’s policy of “the fullest responsible disclosure,” S. Rep. No. 813, at 3, Congress intended Exemption 5 to be “as narro[w] as [is] consistent with efficient Government operation.” Id., at 9. See H. R. Rep. No. 1497, at 10.
Both the District Court and the Court of Appeals found that the documents at issue were properly classified as “work product” materials, and there is no serious argument about the correctness of this classification. “It is equally clear that Congress had the attorney’s work-product privilege specifically in mind when it adopted Exemption 5,” the privilege being that enjoyed in the context of discovery in civil litigation. NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 154-155 (1975); H. R. Rep. No. 1497, at 10; S. Rep. No. 813, at 2.
In Hickman v. Taylor, 329 U. S. 495, 510 (1947), the Court recognized a qualified immunity from discovery for the “work product of the lawyer”; such material could only be discovered upon a substantial showing of “necessity or justification.” An exemption from discovery was necessary because, as the Hickman Court stated:
“Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness'and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” Id., at 511.
The attorney’s work-product immunity is a basic rule in the litigation context, but like many other rules, it is not self-defining and has been the subject of extensive litigation.
Prior to 1970, few District Courts had addressed the question whether the work-product immunity extended beyond the litigation for which the documents at issue were prepared. Those courts considering the issue reached varying results. By 1970, only one Court of Appeals had addressed the issue. In Republic Gear Co. v. Borg-Warner Corp., 381 F. 2d 551, 557 (CA2 1967), the Court of Appeals held that documents prepared in connection with litigation that was on appeal were not subject to discovery in a related case. The court also noted that there was potential for further related litigation. Thus, at the time FOIA was enacted in 1966, other than the general understanding that work-product materials were subject to discovery only upon a showing of need, no consensus one way or the other had developed with respect to the temporal scope of the work-product privilege.
In 1970, the Federal Rules of Civil Procedure were amended to clarify the extent to which trial preparation materials are discoverable in federal courts. Rule 26(b)(3) provides, in pertinent part:
“[A] party may obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”
Rule 26(b)(3) does not in so many words address the temporal scope of the work-product immunity, and a review of the Advisory Committee’s comments reveals no express concern for that issue. Notes of Advisory Committee on 1970 Amendments, 28 U. S. C. App., pp. 441-442. But the literal language of the Rule protects materials prepared for any litigation or trial as long as they were prepared by or for a party to the subsequent litigation. See 8 C. Wright & A. Miller, Federal Practice and Procedure § 2024, p. 201 (1970). Whatever problems such a construction of Rule 26(b)(3) may engender in the civil discovery area, see id., at 201-202, it provides a satisfactory resolution to the question whether work-product documents are exempt under the FOIA. By its own terms, Exemption 5 requires reference to whether discovery would normally be required during litigation with the agency. Under a literal reading of Rule 26(b)(8), the work product of agency attorneys would not be subject to discovery in subsequent litigation unless there was a showing of need and would thus fall within the scope of Exemption 5.
We need not rely exclusively on any particular construction of Rule 26(b)(3), however, because we find independently that the Court of Appeals erred in construing Exemption 5 to protect work-product materials only if related litigation exists or potentially exists. The test under Exemption 5 is whether the documents would be “routinely” or “normally” disclosed upon a showing of relevance. NLRB v. Sears, Roebuck & Co. 421 U. S., at 148-149. At the time this case came to the Court of Appeals, all of the Courts of Appeals that had decided the issue under Rule 26(b)(3) had determined that work-product materials retained their immunity from discovery after termination of the litigation for which the documents were prepared, without regard to whether other related litigation is pending or is contemplated. In addition, an overwhelming majority of the Federal District Courts reporting decisions on the issue under Rule 26(b)(3) were in accord with that view. “Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context.” Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U. S. 168, 184 (1975) (emphasis added). Under this state of the work-product rule it cannot fairly be said that work-product materials are “routinely” available in subsequent litigation.
The Court of Appeals’ determination that a related-litigation test best comported with the qualified nature of the work-product rule in civil discovery — a proposition with which we do not necessarily agree — is irrelevant in the FOIA context. It makes little difference whether a privilege is absolute or qualified in determining how it translates into a discrete category of documents that Congress intended to exempt from disclosure under Exemption 5. Whether its immunity from discovery is absolute or qualified, a protected document cannot be said to be subject to “routine” disclosure.
Under the current state of the law relating to the privilege, work-product materials are immune from discovery unless the one seeking discovery can show substantial need in connection with subsequent litigation. Such materials are thus not “routinely” or “normally” available to parties in litigation and hence are exempt under Exemption 5. . This result, by establishing a discrete category of exempt information, implements the congressional intent to provide “workable” rules. See S. Rep. No. 813, at 5; H. R. Rep. No. 1497, at 2.
Respondent urges that the meaning of the statutory language is “plain” and that, at least in this case, the requested documents must be disclosed because the same documents were ordered disclosed during discovery in previous litigation. It does not follow, however, from an ordered disclosure based on a showing of need that such documents are routinely available to litigants. The logical result of respondent’s position is that whenever work-product documents would be discoverable in any particular litigation, they must be disclosed to anyone under the FOIA. We have previously rejected that line of analysis. In NLRB v. Sears, Roebuck & Co., supra, we construed Exemption 5 to “exempt those documents, and only those documents, normally privileged in the civil discovery context.” 421 U. S., at 149. (Emphasis added.) It is not difficult to imagine litigation in which one party’s need for otherwise privileged documents would be sufficient to override the privilege but that does not remove the documents from the category of the normally privileged. See id,., at 149, n. 16.
Accordingly, we hold that under Exemption 5, attorney work product is exempt from mandatory disclosure without regard to the status of the litigation for which it was prepared. Only by construing the Exemption to provide a categorical rule can the Act’s purpose of expediting disclosure by means of workable rules be furthered. The judgment of the Court of Appeals is reversed.
It is so ordered.
United States v. Americana Corp., Civ. No. 388-72 (NJ). Americana was charged with violation of a 1948 cease-and-desist order in making misrepresentations regarding its encyclopedia advertisements and door-to-door sales.
By letter to the Commission, respondent requested the following:
“1) All records and documents which refer or relate to a covert investigation of Americana Corporation and/or Grolier Incorporated, which was made in or about April 1978, by a Federal Trade Commission consumer protection specialist named Wendell A. Reid; and
“2) All records and documents which refer or relate to any covert investigation, made by any employee of the Federal Trade Commission, of any of the following companies: [listing 14 companies, including respondent and Americana Corporation].
“3) All records and documents which refer or relate to any covert investigation, made by any employee of the Federal Trade Commission, of any person, company or other entity.” App. 15-16.
“Covert investigation” was defined by respondent to be “any investigation of which the subject entity was not notified in advance and prior to acts taken pursuant to such investigation.” Id., at 16. Respondent later abandoned its requests for any documents other than those related to the Americana investigation, defined in the first category of its request.
The requested documents are subject to mandatory disclosure as “identifiable records” under § 552(a)(3), unless covered by a specific exemption. In this case, the Commission claims exemption only under §552 (b)(5), which provides:
“This section does not apply to matters that are—
“(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . .”
The Commission released a number of documents after respondent filed this suit. Respondent abandoned its claim for many others. See n. 2, supra.
Respondent withdrew its claim for disclosure of one of the seven documents. The Court of Appeals affirmed the District Court’s judgment that another was exempt as an attorney-client communication, 217 U. S. App. D. C., at 48, n. 3, 671 F. 2d, at 554, n. 3, and held that still another was clearly a predecisional document not subject to disclosure under Exemption 5, id., at 51, 671 F. 2d, at 557. These rulings are not at issue here.
Respondent makes some assertions concerning the ethical conduct of the Commission in continuing its investigations after the Americana suit had been instituted and claims that the work-product rule would not apply to documents containing evidence of unethical conduct. Respondent did not raise this issue before the District Court or the Court of Appeals and we decline to address it.
See Honeywell, Inc. v. Piper Aircraft Corp., 50 F. R. D. 117 (MD Pa. 1970); Bourget v. Government Employees Ins. Co., 48 F. R. D. 29 (Conn. 1969); Stix Products, Inc. v. United Merchants & Mfrs., Inc., 47 F. R. D. 334 (SDNY 1969); LaRocca v. State Farm Mutual Automobile Ins. Co., 47 F. R. D. 278 (WD Pa. 1969); Kirkland v. Morton Salt Co., 46 F. R. D. 28 (ND Ga. 1968); Chitty v. State Farm Mutual Automobile Ins. Co., 36 F. R. D. 37 (EDSC 1964); Insurance Co. of North America v. Union Carbide Corp., 35 F. R. D. 520 (Colo. 1964); Hanover Shoe, Inc. v. United Shoe Machinery Corp., 207 F. Supp. 407 (MD Pa. 1962); Thompson v. Hoitsma, 19 F. R. D. 112 (NJ 1956); Tobacco and Allied Stocks, Inc. v. Transamerica Corp., 16 F. R. D. 534 (Del. 1954).
See In re Murphy, 560 F. 2d 326, 334 (CA8 1977); United States v. Leggett & Platt, Inc., 542 F. 2d 655 (CA6 1976), cert. denied, 430 U. S. 945 (1977); Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F. 2d 480, 483-384 (CA4 1973). See also In re Grand Jury Proceedings, 604 F. 2d 798, 803 (CA3 1979) (work-product privilege continues at least when subsequent litigation is related). Cf. Kent Corp. v. NLRB, 530 F. 2d 612 (CA5) (work-product privilege does not turn on whether litigation actually ensued), cert. denied, 429 U. S. 920 (1976).
See In re Federal Copper of Tennessee, Inc., 19 B. R. 177 (Bkrtcy. MD Tenn. 1982); In re International Systems & Controls Corp. Securities Litigation, 91 F. R. D. 552 (SD Tex. 1981); United States v. Capitol Service, Inc., 89 F. R. D. 578 (ED Wis. 1981); In re LTV Securities Litigation, 89 F. R. D. 595 (ND Tex. 1981); First Wisconsin Mortgage Trust v. First Wisconsin Corp., 86 F. R. D. 160 (ED Wis. 1980); Panter v. Marshall Field & Co., 80 F. R. D. 718 (ND Ill. 1978); United States v. O. K. Tire & Rubber Co., 71 F. R. D. 465 (Idaho 1976); SCM Corp. v. Xerox Corp., 70 F. R. D. 508 (Conn.), appeal disxn’d, 534 F. 2d 1031 (1976); Burlington Industries v. Exxon Corp., 65 F. R. D. 26 (Md. 1974). See also Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136 (Del. 1977) (protected when cases are closely related in parties or subject matter); Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 90 F. R. D. 45 (ND Ill. 1981) (protected in later related litigation). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
56
] |
PONTE, SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION v. REAL
No. 83-1329.
Argued January 9, 1985
Decided May 20, 1985
Rehnquist, J., delivered the opinion of the Court, in which BURGER, C. J., and White and O’Connor, JJ., joined, and in all but the second paragraph of footnote 2 of which Blackmun and Stevens, JJ., joined. Stevens, J., filed an opinion concurring in part, in Part II of which Blackmun, J., joined, post, p. 501. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 504. Powell, J., took no part in the consideration or decision of the case.
Martin E. Levin, Assistant Attorney General of Massachusetts, argued the cause pro hac vice for petitioner. With him on the briefs were Francis X. Bellotti, Attorney General, and Barbara A. H. Smith, Assistant Attorney General.
Jonathan Shapiro argued the cause and filed a brief for respondent.
Justice Rehnquist
delivered the opinion of the Court.
The Supreme Judicial Court of Massachusetts held that a prison disciplinary hearing which forfeited “good time” credits of respondent John Real was conducted in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution because there did not appear in the administrative record of that hearing a statement of reasons as to why the disciplinary board refused to allow respondent to call witnesses whom he had requested. Real v. Superintendent, Massachusetts Correctional Institution, Walpole, 390 Mass. 399, 456 N. E. 2d 1111 (1983). We granted certiorari, 469 U. S. 814 (1984), to review this judgment because it seemed to us to go further than our pronouncement on this subject in Wolff v. McDonnell, 418 U. S. 539 (1974). While we agree with the Supreme Judicial Court of Massachusetts that the Due Process Clause of the Fourteenth Amendment requires that prison officials at some point state their reason for refusing to call witnesses requested by an inmate at a disciplinary hearing, we disagree with that court that such reasons or support for reasons must be placed in writing or otherwise exist as a part of the administrative record at the disciplinary hearing. We vacate the judgment of the Supreme Judicial Court, and remand the case to that court.
In 1981 respondent John Real was an inmate at the Massachusetts Correctional Institution at Walpole. In December of that year he was working in the prison metal shop and heard a commotion in an adjacent office. He entered the office and observed another prisoner fighting with a corrections officer. A second corrections officer attempted to break up the fight, and ordered respondent and other inmates who were watching to disperse immediately. Respondent did not depart, and another corrections officer escorted him to his cell.
One week later respondent was charged with three violations of prison regulations as a result of this imbroglio. He notified prison officials, on a form provided for that purpose, that he wished to call four witnesses at the hearing which would be held upon these charges: two fellow inmates, the charging officer, and the officer who was involved in the fight. A hearing was held on the charges in February 1982. At this hearing the charging officer appeared and testified against respondent, but the board declined to call the other witnesses requested by respondent. Respondent was advised of no reason for the denial of his request to call the other witnesses, and apparently whatever record there may be of this disciplinary proceeding does not indicate the board’s reason for declining to call the witnesses. The board found respondent guilty as charged, and after an administrative appeal in which penalties were reduced, respondent received the sanction of 25 days in isolation and the loss of 150 days of good-time credits.
Respondent challenged these sanctions by seeking a writ of habeas corpus in the Massachusetts trial court. That court sustained respondent’s claim that petitioner Joseph Ponte, a Superintendent of the M. C. I. at Walpole, had deprived him of that due process guaranteed by the Fourteenth Amendment to the United States Constitution because no reasons whatsoever were advanced by petitioner in court as to why respondent was not allowed to call the requested witnesses at the hearing.
On appeal to the Supreme Judicial Court of Massachusetts, this judgment was affirmed but for different reasons. That court discussed our decision in Wolff v. McDonnell, supra, and noted that it “[l]eft unresolved . . . the question whether the Federal due process requirements impose a duty on the board to explain, in any fashion, at the hearing or later, why witnesses were not allowed to testify.” 390 Mass., at 405, 456 N. E. 2d, at 1115. The court concluded that there must be some support in the “administrative record” to justify a decision not to call witnesses, and that the administrative record in this case was barren of any such support. Because of its conclusion, the court declared that the Massachusetts regulations governing the presentation of proof in disciplinary hearings, Mass. Admin. Code, Tit. 103, §430.14 (1978) were unconstitutional as to this point, because those regulations did not require that the administrative record contain facts or reasons supporting the board’s denial of an inmate’s witness request. 390 Mass., at 405-407, 456 N. E. 2d, at 1116, citing Hayes v. Thompson, 637 F. 2d 483, 487-489 (CA7 1980).
Petitioner does not dispute that respondent possessed a “liberty” interest, by reason of the provisions of Massachusetts state law, affording him “good time” credits, an interest which could not be taken from him in a prison disciplinary hearing without the minimal safeguards afforded by the Due Process Clause of the Fourteenth Amendment. The touchstone of due process is freedom from arbitrary governmental action, Wolff, 418 U. S., at 558, but “[pjrison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Id., at 556. Chief among the due process minima outlined in Wolff was the right of an inmate to call and present witnesses and documentary evidence in his defense before the disciplinary board. We noted in Wolff and repeated in Baxter v. Palmigiano, 425 U. S. 308 (1976), that ordinarily the right to present evidence is basic to a fair hearing, but the inmate’s right to present witnesses is necessarily circumscribed by the penological need to provide swift discipline in individual cases. This right is additionally circumscribed by the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff. We described the right to call witnesses as subject to the “mutual accommodation between institutional needs and objectives and the provisions of the Constitution . . . .” Baxter, supra, at 321, citing Wolff, supra, at 556.
Thus the prisoner’s right to call witnesses and present evidence in disciplinary hearings could be denied if granting the request would be “unduly hazardous to institutional safety or correctional goals.” Wolff, supra, at 566; Baxter, supra, at 321. See also Hughes v. Rowe, 449 U. S. 5, 9, and n. 6 (1980). As we stated in Wolff:
“Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the [disciplinary board] to state its reasons for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases.” 418 U. S., at 566.
See Baxter, supra, at 321. Notwithstanding our suggestion that the board give reasons for denying an inmate’s witness request, nowhere in Wolff or Baxter did we require the disciplinary board to explain why it denied the prisoner’s request, nor did we require that those reasons otherwise appear in the administrative record.
Eleven years of experience since our decision in Wolff does not indicate to us any need to now “prescribe” as constitutional doctrine that the disciplinary board must state in writing at the time of the hearing its reasons for refusing to call a witness. Nor can we conclude that the Due Process Clause of the Fourteenth Amendment may only be satisfied if the administrative record contains support or reasons for the board’s refusal. We therefore disagree with the reasoning of the Supreme Judicial Court of Massachusetts in this case. But we also disagree with petitioner’s intimation, Brief for Petitioner 53, that courts may only inquire into the reasons for denying witnesses when an inmate points to “substantial evidence” in the record that shows prison officials had ignored our requirements set forth in Wolff. We further disagree with petitioner’s contention that an inmate may not successfully challenge the board unless he can show a pattern or practice of refusing all witness requests. Nor do we agree with petitioner that “across-the-board” policies denying witness requests are invariably proper. Brief for Petitioner 53-55, n. 9.
The question is exactly that posed by the Supreme Judicial Court in its opinion: “whether the Federal due process requirements impose a duty on the board to explain, in any fashion, at the hearing or later, why witnesses were not allowed to testify.” 390 Mass., at 405, 456 N. E. 2d, at 1115. We think the answer to that question is that prison officials may be required to explain, in a limited manner, the reason why witnesses were not allowed to testify, but that they may do so either by making the explanation a part of the “administrative record” in the disciplinary proceeding, or by presenting testimony in court if the deprivation of a “liberty” interest is challenged because of that claimed defect in the hearing. In other words, the prison officials may choose to explain their decision at the hearing, or they may choose to explain it “later.” Explaining the decision at the hearing will of course not immunize prison officials from a subsequent court challenge to their decision, but so long as the reasons are logically related to preventing undue hazards to “institutional safety or correctional goals,” the explanation should meet the due process requirements as outlined in Wolff.
We have noted in Wolff, supra, and in Baxter, supra, that prison disciplinary hearings take place in tightly controlled environments peopled by those who have been unable to conduct themselves properly in a free society. Many of these persons have scant regard for property, life, or rules of order, Wolff, 418 U. S., at 561-562, and some might attempt to exploit the disciplinary process for their own ends. Id., at 563. The requirement that contemporaneous reasons for denying witnesses and evidence be given admittedly has some appeal, and it may commend itself to prison officials as a matter of choice: recollections of the event will be fresher at the moment, and it seems a more lawyerlike way to do things. But the primary business of prisons is the supervision of inmates, and it may well be that those charged with this responsibility feel that the additional administrative burdens which would be occasioned by such a requirement detract from the ability to perform the principal mission of the institution. While some might see an advantage in building up a sort of “common law of the prison” on this subject, others might prefer to deal with later court challenges on a case-by-case basis. We hold that the Constitution permits either approach.
But to hold that the Due Process Clause confers a circumscribed right on the inmate to call witnesses at a disciplinary hearing, and then conclude that no explanation need ever be vouched for the denial of that right, either in the disciplinary proceeding itself or if that proceeding be later challenged in court, would change an admittedly circumscribed right into a privilege conferred in the unreviewable discretion of the disciplinary board. We think our holding in Wolff meant something more than that. We recognized there that the right to call witnesses was a limited one, available to the inmate “when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” Id., at 566. We further observed that “[p]rison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit, access to other inmates to collect statements or to compile other documentary evidence.” Ibid.
Given these significant limitations on an inmate’s right to call witnesses, and given our further observation in Wolff that “[w]e should not be too ready to exercise oversight and put aside the judgment of prison administrators,” ibid., it may be that a constitutional challenge to a disciplinary hearing such as respondent’s in this case will rarely, if ever, be successful. But the fact that success may be rare in such actions does not warrant adoption of petitioner’s position, which would in effect place the burden of proof on the inmate to show why the action of the prison officials in refusing to call witnesses was arbitrary or capricious. These reasons are almost by definition not available to the inmate; given the sort of prison conditions that may exist, there may be a sound basis for refusing to tell the inmate what the reasons for denying his witness request are.
Indeed, if prison security or similar paramount interests appear to require it, a court should allow at least in the first instance a prison official’s justification for refusal to call witnesses to be presented to the court in camera. But there is no reason for going further, and adding another weight to an already heavily weighted scale by requiring an inmate to produce evidence of which he will rarely be in possession, and of which the superintendent will almost always be in possession. See United States v. New York, N. H. & H. R. Co., 355 U. S. 253, 256, n. 5 (1957); Campbell v. United States, 365 U. S. 85, 96 (1961); South Carolina v. Katzenbach, 383 U. S. 301, 332 (1966).
Respondent contends that he is entitled to an affirmance even though we reject the Massachusetts Supreme Judicial Court’s holding that §340.14(6) is unconstitutional. Respondent argues that the Supreme Judicial Court affirmed the trial court on two independent grounds: (1) the trial court’s simple finding that petitioner’s failure to rebut the allegations in respondent’s complaint entitled respondent to relief; and (2) the unconstitutionality of §340.14(6) because due process requires administrative record support for denial of witnesses. We think that the Supreme Judicial Court affirmed only on the second ground, and that is the issue for which we granted certiorari. This Court’s Rule 21.1(a); see also Rule 15.1(a). Respondent is of course entitled to urge affirmance of the judgment of the Supreme Judicial Court on a ground not adopted by that court, but whether the Supreme Judicial Court would have affirmed the judgment of the trial court on the reasoning we set forth today is, we think, too problematical for us to decide. It is a question best left to that court.
The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Powell took no part in the decision of this case.
Massachusetts Admin. Code, Tit. 103, § 430.14 (1978), provides in part:
“(4) If the inmate requests the presence of the reporting officer . . . the reporting officer shall attend the hearing except when the chairman determines in writing that the reporting officer is unavailable for prolonged period of time [sic] as a result of illness or other good cause. . . .
“(5) The inmate shall be allowed but shall not be compelled to make an oral statement or to present a written statement in his own defense or in mitigation of punishment.
“(6) The inmate shall be allowed to question the reporting officer, to question other witnesses, to call witnesses in his defense, or to present other evidence, when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. The factors that the chairman may consider when ruling on an inmate’s questioning of witnesses, offer of other evidence, or request to call witnesses shall include, but shall not be limited to, the following:
“(a) Relevance
“(b) Cumulative testimony
“(c) Necessity
“(d) Hazards presented by an individual case.
“(7) the inmate shall be allowed to present relevant, non-cumulative documentary evidence in his defense.”
Justice MARSHALL’S dissent maintains that a rule requiring contemporaneous reasons which are not made available to the prisoner is the only-one permitted by the United States Constitution. If indeed this rule is as beneficial to all concerned as the dissent claims, we may eventually see it universally adopted without the necessity of constitutionally commanding it. But we think that, as we indicate in this opinion, there are significant arguments in favor of allowing a State to follow either the approach advocated by the dissent or the approach described in this opinion. While the dissent seems to criticize our alternative as one which forces inmates to go to court to learn the basis for witness denials, it is difficult if not impossible to see how inmates under the dissent’s approach which requires contemporaneous reasons kept under seal would be able to get these reasons without the same sort of court proceeding.
We think the dissent’s approach would very likely lead to an increasing need for lawyers attached to each prison in order to advise the correctional officials; words such as “irrelevant” or “cumulative,” offered by the dissent as possible bases for contemporary denials, post, at 517, are essentially lawyer’s words. We think that the process of preparing contemporary written reasons for exclusion of testimony is very likely to require more formality and structure than a practice which requires bringing in an attorney only when a lawsuit is filed. The former may be ideally suited to a heavily populated State of relatively small area such as Massachusetts, but the latter may be more desirable in a sparsely populated State of large area such as Nevada. We think the Constitution permits either alternative.
The record in this case is exceedingly thin, and shows that some confusion existed at trial concerning respondent’s habeas petition seeking review of the February 1982 disciplinary hearing and another unrelated petition arising out of a 1980 disciplinary hearing. The trial court also apparently granted incomplete relief, which was only corrected 10 months later by another judge who then stayed the relief. Moreover, the Supreme Judicial Court did not just affirm the trial court, but remanded to permit petitioner, at his option, to conduct another disciplinary hearing. Given the state of this record, we think it wise to remand for further proceedings. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
116
] |
IN RE STOLAR
No. 18.
Argued December 9, 1969 Reargued October 14-15, 1970
Decided February 23, 1971
Blacic, J., announced the Court’s judgment and delivered an opinion in which Douglas, BreNNAN, and Marshall, JJ., joined. Stewart, J., filed an opinion concurring in the judgment, post, p. 31. HarlaN, J., filed a dissenting opinion, post, p. 34. White, J., filed a dissenting opinion, ante, p. 10. BlackmuN, J., filed a dissenting opinion in which Burger, C. J., and HarlaN and White, JJ., joined, post, p. 31.
Leonard B. Boudin reargued the cause for petitioner. With him on the briefs was David Rosenberg.
Robert D. Macklin, Assistant Attorney General, re-argued the cause for the State of Ohio and the Columbus Bar Association. With him on the brief were Paul W. Brown, Attorney General, Shelby V. Hutchins, and William H. Schneider.
Mr. Justice Black
announced the judgment of the Court and delivered an opinion in which Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join.
This is the second of two cases involving the refusal of States to admit applicants to practice law because they declined to answer questions relating to their beliefs about government and their affiliations with organizations suspected of advocating the overthrow of government by force. These cases, which concern inquisitions about loyalty and government overthrow, are relics of a turbulent period known as the “McCarthy era,” which drew its name from Senator Joseph McCarthy from Wisconsin. We have just referred in our opinion in Baird v. State Bar of Arizona, ante, p. 1, to the confusion and uncertainty created by past cases in this constitutional field. The central question in all of them has been the same, whether involving lawyers, doctors, marine workers, or State or Federal Government employees, namely: to what extent does the First or Fifth Amendment or other constitutional provision protect persons against governmental intrusion and invasion into private beliefs and views that have not ripened into any punishable conduct? Without attempting in that case to bring about a complete reconciliation of all that this Court has previously said about this particular phase of First Amendment protection, we held that under the circumstances present there, Mrs. Baird could not, consistently with the First Amendment, be denied a state license to practice law because she refused to state whether she had belonged to the Communist Party or any organization that advocated overthrow of the United States Government by force. Here we hold that Stolar’s refusals to answer certain questions asked him by the Ohio Bar Committee were also protected by the First Amendment.
The facts are these: Stolar, whose home is in Rochester, New York, has an A. B. degree from the University of Rochester and received an LL. B. degree from New York University Law School in 1968. The dean of that school has certified that Stolar has received instructions in legal ethics, has a good moral character, and has sufficient knowledge and ability to discharge the duties of an attorney at law. He has a license to practice law in New York State. To become a member of the New York Bar, Stolar was asked and answered the following questions, along with many others:
“18. State whether you have participated in activities of a public or patriotic nature or in philanthropic, religious, or social services? If so, state the facts fully.
“I was a Cub Scout and Boy Scout and Explorer Scout during elementary and high school.
“I also participated fully in my Temple’s religious education programs until I went to college.
“In addition, my time spent as a VISTA is a service of the above described nature.
“19. Do you believe in the principles underlying the form of government of the United States? Yes.
“20. State whether you have been or are a member of any party or organisation engaged in propagating or pledged to effect changes in the form of government provided for by the United States Constitution, or in advancing the interests of a foreign country? If so, state the facts fully. No. (Emphasis supplied in part.)
“21. Can you conscientiously, and do you, affirm, without any mental reservation, that you have been and are loyal to the Government of the United States? Yes.
“24. (a) Have you studied the Canons of Ethics adopted by the American Bar Association? Yes.
“(b) Do you unconditionally subscribe to the same? Yes.
“(c) Will you conscientiously endeavor to conform your professional conduct to them? Yes.”
In 1969 Mr. Stolar applied to the Ohio Bar for admission to practice. He made available to Ohio all the information he had previously given the New York Bar Committee, including his answers to the New York questions stated above. Stolar then answered a long series of questions posed by the Ohio committee. In response to oral interrogation he stated:
“that he is not now and has never been a member of the Communist Party, of any socialist party, or of the Students for a Democratic Society, and . . . that he has signed the standard U. S. Army pre-induction security oath, which has reference to the ‘Attorney General’s List.’ ”
However, Stolar declined to answer certain questions on the Ohio application on the grounds they infringed his rights under the First and Fifth Amendments. These questions were:
“12. State whether you have been, or presently are ... (g) a member of any organization which advocates the overthrow of the government of the United States by force ....
“13. List the names and addresses of all clubs, societies or organizations of which you are or have been a member.”
“7. List the names and addresses of all clubs, societies or organizations of which you are or have been a member since registering as a law student.”
Because of his refusal to answer these questions, one member of the committee who investigated Stolar recommended that he be denied admission. The other stated:
“I found Mr. Stolar to be honest and forthright. His statements evidenced also a certain commitment to principle for its own sake, an unusually great amount of social awareness, and a degree of self-interest not reprehensible. On the basis of the interview and the background actually revealed in Mr. Stolar’s applications I have no reluctance to recommend Mr. Stolar for admission to the practice of law.”
The full committee then recommended that petitioner’s application to take the Ohio Bar examination be denied. The Ohio Supreme Court approved the committee’s recommendation without opinion. We granted certiorari. 396 U. S. 816.
We deal first with Ohio’s demands that petitioner Martin Stolar list all the organizations to which he has belonged since registering as a law student and those of which he has ever been a member. In our view requiring a Bar applicant to answer these questions is impermissible in light of the First Amendment, as was made clear in Shelton v. Tucker, 364 U. S. 479 (1960). At issue in Shelton was an Arkansas statute that required every state teacher, as a condition of employment, to file an affidavit listing every organization to which he had belonged within the preceding five years. The Court noted that this requirement impinged upon the teacher’s right to freedom of association because it placed “pressure upon a teacher to avoid any ties which might displease those who control his professional destiny . . . .” Id., at 486. Similarly here, the listing of an organization considered by committee members to be controversial or “subversive” is likely to cause delay and extensive interrogation or simply denial of admission to the Bar. Respondent committee frankly suggests that the listing of an organization which it felt “espoused illegal aims” would cause it to “investigate further.” Law students who know they must survive this screening process before practicing their profession are encouraged to protect their future by shunning unpopular or controversial organizations. Cf. Speiser v. Randall, 357 U. S. 513 (1958).
The committee suggests its “listing” question serves a legitimate interest because it needs to know whether an applicant has belonged to an organization which has “espoused illegal aims” and whether the applicant himself has espoused such aims. But the First Amendment prohibits Ohio from penalizing an applicant by denying him admission to the Bar solely because of his membership in an organization. Baird v. State Bar of Arizona, supra; cf. United States v. Robel, 389 U. S. 258, 266 (1967); Keyishian v. Board of Regents, 385 U. S. 589, 607 (1967). Nor may the State penalize petitioner solely because he personally, as the committee suggests, “espouses illegal aims.” See Cantwell v. Connecticut, 310 U. S. 296, 303-304 (1940); Baird v. State Bar of Arizona, supra.
The committee also argues it needs answers to Questions 7 and 13 because responses might direct its attention to persons who have known an applicant and who could supply information relevant to his qualifications. Undoubtedly Ohio has a legitimate interest in determining whether an applicant has “the qualities of character and the professional competence requisite to the practice of law.” Baird v. State Bar of Arizona, supra. But petitioner Stolar, already a member in good standing of the New York Bar, supplied the Ohio committee with extensive personal and professional information as well as numerous character references to enable it to make the necessary investigation and determination. Moreover, even though irrelevant to his fitness to practice law, Stolar’s answers to questions on the New York application provided Ohio with substantially the information it was seeking by Questions 7, 12 (g), and 13. The information contained in the two applications included petitioner’s law school; every address at which he had ever lived; the names, addresses, and occupations of his parents; the names and addresses of his elementary school, his high school and high school principal; the names of nine former employers (which included three different law firms for which he had done summer work); his “criminal record” (which consisted of two speeding convictions); nine different people as character references (two of whom had known Stolar for more than 20 years); and extensive information about his previous activities (e. g., law school moot court, graduate advisor at N. Y. U., Cub Scout, Boy Scout, Explorer Scout, and his temple’s religious education programs).
We conclude also that Ohio may not require an applicant for admission to the Bar to state whether he has been or is a “member of any organization which advocates the overthrow of the government of the United States by force.” As we noted above, the First Amendment prohibits Ohio from penalizing a man solely because he is a member of a particular organization. See also Baird v. State Bar of Arizona, supra. Since this is true, we can see no legitimate state interest which is served by a question which sweeps so broadly into areas of belief and association protected against government invasion. Cantwell v. Connecticut, 310 U. S. 296, 303-304 (1940); United States v. Robel, 389 U. S. 258, 266 (1967); Keyishian v. Board of Regents, 385 U. S. 589, 607 (1967); Baird v. State Bar of Arizona, supra; Baggett v. Bullitt, 377 U. S. 360 (1964).
There is not one word in this entire record that reflects adversely on Mr. Stolar’s moral character or his professional competence. Although there were three questions that he did not answer with a simple “yes” or “no,” he did answer all of the Committee’s questions relevant to his fitness and competence to practice law. It is difficult if not impossible to see how the State of Ohio could have been obstructed or frustrated to any extent in determining Mr. Stolar’s fitness to practice law by his failure to answer the questions more fully. The record shows a young man who, from his boyhood up, had no adverse marks except for two speeding convictions. He answered numerous prying questions about personal affairs that could hardly have been necessary for a State interested only in whether he would make an honest lawyer faithful to his clients. The questions he did not answer related only to his beliefs and associations, both protected by the First Amendment. The State points to not one overt act on Stolar’s part that even suggests a possible reason for denying his application. Here, as in Baird v. State Bar of Arizona, it was a denial of a Bar applicant’s First Amendment rights to refuse him admission simply because he declined to answer questions about his beliefs and associations.
The judgment of the Ohio Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
[For dissenting opinion of Mr. Justice White, see ante, p. 10.]
The other is No. 15, Baird v. State Bar of Arizona, ante, p. 1. Cf. No. 49, Law Students Civil Rights Research Council v. Wadmond, post, p. 154. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
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"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
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"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
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] | [
116
] |
GOOD SAMARITAN HOSPITAL et al. v. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES
No. 91-2079.
Argued March 22, 1993
Decided June 7, 1993
Carel T Hedlund argued the cause for petitioners. With her on the briefs was Leonard C. Homer.
Edward C. DuMont argued the cause for respondent. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Edwin S. Kneedler, Anthony J. Steinmeyer, John P. Schnitker, Susan K. Zagame, Darrel J. Grinstead, and Henry B. Goldberg.
Joel M. Hamme filed a brief for the American Health Care Association as amicus curiae urging reversal.
Justice White
delivered the opinion of the Court.
As a means of providing health care to the aged and disabled, Congress enacted the Medicare program in 1965. See Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U. S. C. § 1395 et seq. Under the program, providers of health care services can enter into agreements with the Secretary of Health and Human Services pursuant to which they are reimbursed for certain costs associated with the treatment of Medicare beneficiaries. To operate the program, the Secretary issued regulations imposing limits on the amount of repayment based on a range of factors designed to approximate the cost of providing general routine patient service. The question before us is whether the Secretary must afford the six petitioning hospitals an opportunity to establish that they are entitled to reimbursement for costs in excess of such limits.
I
A
A complex statutory and regulatory regime governs reimbursement, rough description of which is necessary background to this case. To begin, Congress has required the Secretary to repay the lesser of the “reasonable cost” or “customary charg[e].” See 42 U. S. C. § 1395f(b)(l). Rather than attempt to define “reasonable cost” with precision, Congress empowered the Secretary to issue appropriate regulations setting forth the methods to be used in computing such costs. See § ISDSxCvXlXA).
Prior to 1972, the Secretary’s regulations contemplated reimbursement of the entirety of a provider’s services to Medicare patients unless its costs were found to be “substantially out of line” with those of similar institutions. See, e. g., 20 CFR § 405.451(c) (1967). In 1972, apparently fueled by concern that providers were passing on inefficient and excessive expenses, see H. R. Rep. No. 92-231, pp. 82-85 (1971); S. Rep. No. 92-1230, pp. 188-189 (1972), Congress amended the statute to specify that “reasonable costs” meant only those “actually incurred, excluding therefrom any part of incurred cost[s] found to be unnecessary in the efficient delivery of needed health services,” 42 U. S. C. § 1395x(v)(l)(A), and to authorize the Secretary — as part of the “methods” of determining costs — to establish appropriate cost limits, see ibid.
Accordingly, the Secretary promulgated regulations, updated yearly and establishing routine cost limits based on factors such as the type of health care provider (hospital, skilled nursing facility, etc.), type of services it rendered, its geographical location, size, and mix of patients treated. See 20 CFR §405.460 (1975). Hospitals are divided in terms of bed size, and of whether they are urban — i. e., located in a Standard Metropolitan Statistical Area (SMSA) — or rural. As of 1979, the labor-related component of provider costs was to be determined by a wage index keyed to the hospital’s location. See, e. g,, 46 Fed. Reg. 33637 (1981).
The regulations generally provide that reimbursable costs must be within the cost limits. The regulations also allow for adjustments to the limits as applied to a provider’s particular claim. A provider classified as a rural hospital can apply for reclassification as an urban one. 42 CFR § 413.30(d) (1992). An exemption from the applicable cost limits can be obtained under certain specified situations— e. g., when excess expenses are due to “extraordinary circumstances,” or when the provider is the sole hospital in a community, a new provider, or a rural hospital with fewer than 50 beds. § 413.30(e). In addition, exceptions are available for, inter alia, “atypical services,” extraordinary circumstances beyond the provider’s control, unusual labor costs, or essential community services. § 413.30(f).
Two statutory provisions are of central importance to this litigation. First, apparently to protect providers’ liquidity, the statute contemplates a system of interim, advance payments during the year. Specifically, the Secretary “shall periodically determine the amount which should be paid . . . and the provider of services shall be paid, at such time or times as the Secretary believes appropriate (but not less often than monthly) . . . the amounts so determined, with necessary adjustments on account of previously made overpayments or underpayments.” 42 U. S. C. §1395g(a). These interim payments by definition are only approximate ones, based on the provider’s preaudit, estimated costs of anticipated services. See 42 CFR §§ 413.64(e), (f) (1992). Second, the regulations were required to “provide for the making of suitable retroactive corrective adjustments where, for a provider of services for any fiscal period, the aggregate reimbursement produced by the methods of determining costs proves to be either inadequate or excessive.” 42 U. S. C. § 1395x(v)(l)(A)(ii) (clause (ii)).
B
Petitioners are six Nebraska hospitals certified as “providers” of health care services and classified as “rural” for Medicare purposes. Between 1980 and 1984, their costs exceeded the corresponding cost limits. Pursuant to 42 U. S. C. § 1395oo, they filed an appeal to the Provider Reimbursement Review Board (PRRB) in which they challenged the validity of the applicable cost limits on two grounds. First, they claimed that the wage index that was used to calculate reasonable cost of labor did not account for the use of part-time employees. Because petitioners used a greater proportion of part-time employees than the national average, this had the effect of artificially lowering their index values. In support of their claim, they pointed to Congress’ decision in 1983 ordering the Secretary to conduct a wage index study to consider the distortion due to part-time employment, Medicare and Medicaid Budget Reconciliation Amendments of 1984, Pub. L. 98-369, § 2316(a), 98 Stat. 1081, followed by the Secretary’s own revision of the wage index in 1986 which accounted for part-time employees, 51 Fed. Reg. 16772 (1986), and to Congress’ directive that the revised index be applied to discharges occurring after May 1,1986, Medicare and Medicaid Budget Reconciliation Amendments of 1985, Pub. L. 99-272, § 9103(a), 100 Stat. 156. Second, they asserted that under the cost limits a rural hospital could not show that it incurred the same wage costs as its urban counterparts when in fact its location next to urban hospitals forced it to compete for employees by offering equivalent compensation. Petitioners also complained that the cost limits were applied conclusively rather than presumptively. Invoking clause (ii), which provides for “suitable retroactive corrective adjustments,” they argued that they were entitled to reimbursement of all costs they eould show to be reasonable, even if they were in excess of the applicable cost limit.
Because the PRRB believed that it lacked the authority to award the desired relief, it granted petitioners’ request for expeditedjudicialreview. See42U. S. C. § 1395oo(f )(1). Adhering to the Eighth Circuit’s decision in St. Paul-Ramsey Medical Center v. Bowen, 816 F. 2d 417 (1987), the District Court ruled for petitioners, holding that clause (ii) compelled the Secretary to reimburse all costs shown to be reasonable, regardless of whether they surpassed the amount calculated under the cost limit schedule.
The United States Court of Appeals for the Eighth Circuit reversed. Good Samaritan Hospital v. Sullivan, 952 F. 2d 1017 (1991). The court relied on our decision in Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 (1988), in which we held that clause (ii) does not permit retroactive rule-making. 952 F. 2d, at 1023. It reasoned that petitioners’ request for adjustments to correct “inequalities in the system ... would amount to a retroactive change in the methods used to compute costs that, after Georgetown, is invalid.” Id., at 1024. Instead, the Court of Appeals adopted the Secretary’s more modest view of clause (ii) as permitting only a “year-end book balancing of the monthly installments” with the amount determined to be “reasonable” under the applicable regulations. Ibid. Under this approach, clause (ii) establishes the mechanism through which the total of the interim payments extended pursuant to § 1395g (which merely purport to be estimates of actual costs) are reconciled with the postaudit amounts determined at year’s end to be owed under the methods determining allowable costs. We granted certiorari to resolve a conflict among the Courts of Appeals. 506 U. S. 914 (1992).
II
A
The starting point in interpreting a statute is its language, for “[i]f the intent of Congress is clear, that is the end of the matter.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984). See also NLRB v. Food & Commercial Workers, 484 U. S. 112, 123 (1987). Clause (ii) instructs the Secretary to “provide for the making of suitable retroactive corrective adjustments where, for a provider of services for any fiscal period, the aggregate reimbursement produced by the methods of determining costs proves to be either inadequate or excessive.” Petitioners argue that the mandate is clear: The methods for determining reasonable costs having been determined pursuant to § 1395x(v)(l)(A), clause (ii) must be read to mean that such methods nonetheless might yield “inadequate or excessive” amounts in any particular instance. Where such is the case, it is submitted, the clause mandates a correction that will provide full reimbursement for reasonable costs.
In contrast, the Secretary asserts that the “aggregate reimbursement” refers to the sum total of the interim payments made pursuant to §1395g. These payments are, of course, based on the methods chosen by the Secretary to determine reasonable costs, but they are only anticipatory estimates of what the providers’ reimbursable costs will be, made before all relevant data are available. At year’s end, when the provider’s reimbursable costs for services actually provided during that year are on hand, the preaudit “aggregate” of the interim payments can be compared to the post-audit amounts due under the methods. Because the interim payments might have been erroneously calculated, their total might not match amounts owed, and adjustments must be performed to reconcile the two. See 42 CFR §§ 413.64(e), (f) (1992).
In our view, the language of clause (ii) does not itself clearly settle the issue before us. The clause is ambiguous in two respects. First, the “aggregate reimbursement produced by the methods of determining costs” could mean either (in petitioners’ view) the amount due given proper application of the Secretary’s regulations, or (in the Secretary’s view) the total of the interim payments, themselves derived from application of the methods to rough, incomplete data. Second, the clause refers to “inadequate” and “excessive” reimbursements, but without at any point stating the standard against which inadequacy or excessiveness is to be measured. Petitioners contend that the implicit referent must be the reasonable costs as established by the providers, without regard to the methods; the Secretary concludes that it must be the reasonable costs as determined by the agency applying the methods.
Each of the conflicting constructions is plausible but each has its difficulty. Petitioners contend that although the interim reimbursements might lead to inaccurate repayments, they are not part of the methods of determining costs to which § 1395x(v)(l)(A) refers, but rather are payment methods governed by § 1395g. Moreover, the book-balancing role the Secretary would have us assign to clause (ii) arguably is already performed by §1395g, which mandates periodic reimbursement “prior to audit or settlement by the General Accounting Office... with necessary adjustments on account of previously made overpayments or underpayments.” The Secretary counters that, while clause (ii) is directed at year-end adjustments and designed to ensure that providers are reimbursed their reasonable costs, § 1395g addresses periodic adjustments to be made during the course of the fiscal year; § 1395g thus has its own role to play and is not surplusage.
The Secretary also argues that words such as “corrective” and “adjustments” more readily evoke the simple mathematical rectifications that she contemplates than the complex process of revisiting applicable methods and comparing the amounts paid with an ill-defined standard of “reasonable” costs that is called for by petitioners’ approach. It is true that § 1395x(v)(l)(A) defines reasonable cost as “the cost actually incurred, excluding therefrom any part of incurred cost found to be unnecessary in the efficient delivery of needed health services,” and petitioners contend that this is the yardstick against which reimbursements must be measured. But the statute proceeds to explain that reasonable cost “shall be determined in accordance with regulations establishing the method or methods to be used.” In similar fashion, the 1972 amendments allow for the provision of “limits on the direct or indirect overall incurred costs or incurred costs of specific items or services or groups of items or services to be recognized as reasonable.” Ibid, (emphasis added). In short, aside from the implementing agency’s determination pursuant to its regulations, as to which Congress granted broad discretion, there is no available standard of reasonableness that could form a ready basis for “correct[ion]” or “adjustment].”
B
Because both the parties and the Court of Appeals are of the view that Georgetown is controlling, we turn our attention for a moment to our decision in that case. In 1983, a District Court struck down the Secretary’s 1981 new cost rule for failure .to comply with notice and comment requirements. After following proper procedures, the Secretary promulgated the same rule in 1984 and sought to apply the method retroactively for the time it had been held invalid. 488 U. S., at 206-207. Drawing on the authority of clause (ii), the Secretary thus began to recoup “overpayments” claimed to have been made to hospitals as a result of the District Court’s decision. The precise question we faced was whether clause (ii) permitted such retroactive rule-making. We held that it did not. As we explained, although clause (ii) “permits some form of retroactive action [it does not] provid[e] authority for the retroactive promulgation of cost-limit rules.” Id., at 209. Rather,
“clause (ii) directs the Secretary to establish a procedure for making case-by-case adjustment to reimbursement payments where the regulations prescribing computation methods do not reach the correct result in individual cases. The structure and language of the statute require the conclusion that the retroactivity provision applies only to case-by-ease adjudication, not to rule-making.” Ibid, (footnote omitted).
As we further stated: “[N]othing in clause (ii) suggests that it permits changes in the methods used to compute costs; rather, it expressly contemplates corrective adjustments to the aggregate amounts or reimbursement produced pursuant to those methods.” Id., at 211 (emphasis in original).
But while Georgetown eliminated across-the-board, retroactive rulemaking from the scope of clause (ii), it did not foreclose either of the two interpretations urged in this case: case-by-case adjustments based on a comparison of interim payments with “reasonable” costs as determined by the Secretary; and case-by-ease adjustments based on a comparison of amounts due under the regulations with “reasonable” costs as demonstrated by the provider. Cf. id., at 209, n. 1.
Ill
A
Confronted with an ambiguous statutory provision, we generally will defer to a permissible interpretation espoused by the agency entrusted with its implementation. See National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407, 417 (1992); Department of Treasury, IRS v. FLRA, 494 U. S. 922, 933 (1990); K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291-292 (1988). Of particular relevance is the agency’s contemporaneous construction which “we have allowed ... to carry the day against doubts that might exist from a reading of the bare words of a statute.” FHA v. The Darlington, Inc., 358 U. S. 84, 90 (1958). See also Aluminum Co. of America v. Central Lincoln Peoples’ Utility Dist., 467 U. S. 380, 390 (1984).
In this case, the regulatory framework put in place by the agency in furtherance of the Medicare program supports the book-balancing approach to clause (ii). Nowhere in the regulations was there mention of a mechanism for implementing the kind of substantive recalculation and deviation from approved methods suggested by petitioners. On the other hand, the regulations provided on more than one occasion for the year-end book-balancing adjustment that, in the Secretary’s opinion, is mandated by clause (ii). For instance, 20 CFR § 405.451(b)(1) (1967) stated:
“These regulations also provide for the making of suitable retroactive adjustments after the provider has submitted fiscal and statistical reports. The retroactive adjustment will represent the difference between the amount received by the provider during the year . . . and the amount determined in accordance with an accepted method of cost apportionment to be the actual cost of services rendered to beneficiaries during the year.”
Use of the words “suitable retroactive adjustment,” borrowed from clause (ii), demonstrates the agency’s understanding. As we wrote in Georgetown: “It is clear from the language of these provisions that they are intended to implement the Secretary’s authority under clause (ii).” 488 U. S., at 211, n. 2 (emphasis added). What is more, “[tjhese are the only regulations that expressly contemplate the making of retroactive corrective adjustments.” Id., at 212 (emphasis added). From the outset, then, the agency viewed clause (ii) as a directive for retroactive adjustment of payments for allowable costs, as determined by the methods.
In the aftermath of the 1972 amendments adding the cost limit provision, the agency appears to have ascribed the same role to clause (ii), namely to retroactively correct the difference between interim payments and reasonable costs— only, as a result of the amendments, the adjustment would now be based on the new definition of reasonable costs, which includes the cost limits that as a general rule were not to be exceeded. As previously described, however, the regulations promulgated by the Secretary permitted various exceptions, exemptions, and adjustments to the limits. See 20 CFR § 405.460(f) (1975); supra, at 406. A provider could obtain a reclassification “on the basis of evidence that [its] classification is at variance with the criteria specified in promulgating limits.” 20 CFR § 405.460(f)(1) (1975). Exemptions for sole community hospitals have expanded to include new providers, rural hospitals with less than 50 beds; exceptions now extend to atypical services, circumstances such as strikes or floods, educational services, essential community services, unusual labor costs. See 42 CFR §413.80 (1992). The agency’s development — and continued augmentation — of a list of situations in which the cost limits would be waived is difficult to harmonize with an interpretation of clause (ii) that would give a provider the right to contest the application of any particular and statutorily authorized method to its own circumstances. Rather, it is consistent with a view that the cost limits by definition entailed generalizations that would benefit some providers while harming others, and with a desire to refine these approximations through the Secretary’s creation of exceptions and exemptions.
B
Petitioners argue that any deference to the agency’s current position is unwarranted in light of its shifting views on the matter. It is true that over the years the agency has embraced a variety of approaches. Compare, e. g., Regents of Univ. of California v. Heckler, 771 F. 2d 1182 (CA9 1985) (agency contends that clause (ii) permits only book balancing); Whitecliff v. United States, 210 Ct. Cl. 53, 536 F. 2d 347 (1976) (same), with Georgetown, supra (agency argues that clause (ii) allows retroactive rulemaking). In response, the Secretary attributes such inconsistency to the lower courts’ erroneous interpretations of clause (ii). If providers could obtain substantive retroactive adjustments in the event of alleged underpayment, the argument goes, then so, in the face of alleged underpayment, would the agency. However, in the aftermath of Georgetown, she notes that the agency returned to its earlier position.
The Secretary is not estopped from changing a view she believes to have been grounded upon a mistaken legal interpretation. See Automobile Club of Mich. v. Commissioner, 353 U. S. 180, 180-183 (1957). Indeed, “[a]n administrative agency is not disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo and without regard to the administrative understanding of the statutes.” NLRB v. Iron Workers, 434 U. S. 335, 351 (1978). See also NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 787 (1990); NLRB v. J. Weingarten, Inc., 420 U. S. 251, 265-266 (1975). On the other hand, the consistency of an agency’s position is a factor in assessing the weight that position is due. As we have stated: “An agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca, 480 U. S. 421, 446, n. 30 (1987) (quoting Watt v. Alaska, 451 U. S. 259, 273 (1981)). How much weight should be given to the agency’s views in such a situation, and in particular where its shifts might have resulted from intervening and possibly erroneous judicial decisions and its current position from one of our own rulings, will depend on the facts of individual eases. Cf. Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U. S. 27, 37 (1981).
C
In the circumstances of this ease, where the agency’s interpretation of a statute is at least as plausible as competing ones, there is little, if any, reason not to defer to its construction. We should be especially reluctant to reject the agency’s current view which, as we see it, so closely fits “the design of the statute as a whole and... its object and policy.” Crandon v. United States, 494 U. S. 152, 158 (1990).
Section 1395 explicitly delegates to the Secretary the authority to develop regulatory methods for the estimation of reasonable costs. See 42 U. S. C. § 1395x(v)(l)(A). To be sure, by virtue of their being generalizations, they necessarily will fail to yield exact numbers — to the detriment of health care providers at times, to their benefit at other times. Presumably, the methods could use a more exact mode of calculating depreciation, cf. Daughters of Miriam Center for the Aged v. Mathews, 590 F. 2d 1250 (CA3 1978), or to account for proximity to a college or university because it can distort the wage index, cf. Austin, Texas, Brackenridge Hospital v. Heckler, 753 F. 2d 1307, 1316 (CA5 1985), or to a high-crime zone in which heightened, and expensive, security is called for. All of these variables, and many others, affect actual costs; factoring them in the methods undoubtedly would improve their accuracy. But “[w]here, as here, the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation, our review is limited to determining whether the regulations promulgated exceeded the Secretary’s statutory authority and whether they are arbitrary and capricious.” Heckler v. Campbell, 461 U. S. 458, 466 (1983) (footnote and citations omitted).
Besides being textually defensible, the Secretary’s restrictive reading of clause (ii) comports with this broad delegation of authority. Congress saw fit to empower the agency to devise methods to estimate actual costs, and the agency has opted for the use of certain generalizations, with additional fine-tuning by way of exceptions, exemptions, reclassifications, and by making allowances for possible variations in costs consistent with efficiency. See supra, at 406, n. 3. What the agency forbids is the kind of wide-range, ad hoc reassessments of the accuracy of the chosen methods implicit in petitioners’ interpretation. Indeed, and for all practical purposes, petitioners’ contention is that the methods chosen by the agency did not take into account sufficient variables, namely, the proportion of part-time workers and proximity to urban centers. It is, in all but name, a challenge to the validity of the methods — albeit in an individual case — including the cost limits, the exceptions and the exemptions, and to their adequacy as gauges of reasonable costs. The Secretary has construed the statute to allow such attacks, not via clause (ii), but rather, in keeping with the broad authority with which she is possessed, by way of the arbitrary and capricious provision of the Administrative Procedure Act, 5 U. S. C. § 706.
IV
The issue is not without its difficulties whichever way we turn. Though not the sole permissible one, the agency’s interpretation of clause (ii), manifested in regulations promulgated soon after enactment and expressed today, “give[s] reasonable content to the statute’s textual ambiguities. ” Department of Treasury, IRS v. FLRA, 494 U. S., at 938. The judgment of the Court of Appeals is
Affirmed.
Section 1395x(v)(1)(A) provides in pertinent part that the Secretary “shall” determine reasonable costs “in accordance with regulations establishing the method or methods to be used, and the items to be included, in determining such costs for various types or classes of institutions, agencies, and services.”
Regulations regarding the determination of reimbursable costs were originally codified at 20 CFR §§405.401-405.454 (1967). They have twice been redesignated, first in 1977, at 42 CFR pt. 405, see 42 Fed. Reg. 52826 (1977), and then in 1986, at 42 CFR pt. 413, see 51 Fed. Reg. 34790 (1986). Unless reference to a particular date is appropriate, the 1986 designation will be used in this opinion.
Congress substantially modified the payment system by instituting the Prospective Payment System (PPS), effective October 1, 1983. Under this new system, providers are reimbursed a fixed amount for each discharge, based on the patient’s diagnosis, and regardless of actual cost. See 42 U. S. C. § 1395ww(d). Because the providers’ claims in this litigation involve costs incurred from 1980 to 1983, PPS is not at issue. Moreover, PPS does not apply to skilled nursing facilities or home health agencies, nor does it apply to all hospitals. See §§1395ww(d), (b); 42 CFR §§412.22-412.23 (1992).
Petitioners concede that they do not qualify for any of the exceptions or exemptions provided in the regulations. Brief for Petitioners 22, n. 19.
The court did not rule on the hospitals’ claim that the wage index and rural/urban classifications were arbitrary and capricious in violation of the Administrative Procedure Act, 5 U. S. C. §706.
In addition, the Court of Appeals held that failure to account for part-time employment and for proximity to urban hospitals in the cost limits was not arbitrary and capricious, since “[b]oth the wage index and the rural/urban distinction were based on objective data and regulations.” 952 F. 2d, at 1025.
Compare Good, Samaritan Hospital v. Sullivan, 952 F. 2d 1017 (CA8 1991) (ease below) (construing clause (ii) to provide merely for year-end book balancing); Sierra Medical Center v. Sullivan, 902 F. 2d 388 (CA5 1990) (same); Hennepin County v. Sullivan, 280 U. S. App. D. C. 13, 883 F. 2d 85 (1989) (same), cert. denied, 493 U. S. 1043 (1990); Daughters of Miriam Center for the Aged v. Mathews, 590 F. 2d 1250 (CA3 1978) (same), with Mt. Diablo Hospital v. Sullivan, 963 F. 2d 1175 (CA9 1992) (construing clause (ii) to require Secretary to reimburse all “reasonable costs,” including those in excess of the cost limits), cert. pending, No. 92-720; Medical Center Hospital v. Bowen, 839 F. 2d 1504 (CA11 1988) (same); Fairfax Nursing Center, Inc. v. Califano, 590 F. 2d 1297 (CA4 1979) (same); Springdale Convalescent Center v. Mathews, 545 F. 2d 943 (CA5 1977) (same); Whitecliff, Inc. v. United States, 210 Ct. Cl. 53, 536 F. 2d 347 (1976) (same); Kingsbrook Jewish Medical Center v. Richardson, 486 F. 2d 663 (CA2 1973) (same).
The Secretary observes, however, that had clause (ii) not been enacted, “the authority for some similar year-end mechanism might have been inferred under the Act as a whole, including 42 U. S. C. [§]1395g.” Brief for Respondent 27, n. 16.
Also of potential significance is Congress’ reference to “aggregate reimbursement” as opposed to mere “reimbursement.” “Aggregate” signifies “sum total,” see Webster’s Collegiate Dictionary 64 (9th ed. 1983), and its use therefore might suggest that Congress had in mind the outcome of adding up the interim payments.
While both parties invoke legislative history, in this case it is of little, if any, assistance. Petitioners point to a comment in the Committee Reports explaining that the cost limits were merely “presumptive” and that “[plroviders would, of course, have the right to obtain reconsideration of their classification for purposes of cost limits applied to them and to obtain relief from the effect of the cost limits on the basis of evidence of the need for such an exception.” S. Rep. No. 92-1230, pp. 188-189 (1972). As the Secretary notes, it is entirely possible that by providing for exceptions, exemptions, and reclassifications, the agency satisfied this demand. Indeed, the only specific exemption mentioned in the Committee Reports— sole community hospitals — was put into effect by the agency. See id., at 188; 42 CFR § 413.30(e)(1) (1992). The legislative history adduced by the Secretary is no more persuasive.
Other regulations, by comparison, appeared to be directed at the periodic preaudit adjustments to be made during the course of the year as expressly required by § 1395g. See, e. g., 20 CFR § 405.454(e) (1967).
The agency’s explanation of how it was computing cost limits in 1981 further illustrates this basic understanding: “The revised limits, like the current limits, are set at 112 percent of the mean labor-related costs and mean non-labor costs of each comparison group. The 12 percent allowance above the mean is intended to account for variations in costs that are consistent with efficiency but are not explicitly accounted for under our methodology for deriving and adjusting the limits, or by the exceptions or exemptions provided by our regulations.” 46 Fed. Reg. 33639 (1981) (emphasis added). Like the exceptions and exemptions themselves, such an allowance cannot easily be reconciled with the notion that clause (ii) permits adjustments whenever costs consistent with efficiency are unaccounted for.
Such a delegation of authority is not atypical in the context of the Social Security Act. Indeed, we noted that “Congress has ‘conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the Act.’” Heckler v. Campbell, 461 U. S. 458, 466 (1983) (quoting Schweiker v. Gray Panthers, 453 U. S. 34, 43 (1981)).
There is no doubt that under petitioners’ expansive reading of clause (ii) nothing would prevent the Secretary from demanding reimbursement where she could show that application of the methods resulted in overpayment. For instance, the modified wage index, whose generalized retroactive application we rejected in Georgetown, arguably could be imposed on a hospital-by-hospital basis. Such an outcome, by undermining providers’ ability to predict costs, runs counter to one of Congress’ apparent motivations in authorizing cost limits. See S. Rep. No. 92-1230, at 188 (because limits on costs recognized as reasonable would be set prospectively, “the provider would know in advance the limits to Government recognition of incurred costs and have the opportunity to act to avoid having costs that are not reimbursable”).
Moreover, we note that in its 1981 amendment to § 1395x(v), Congress explicitly endorsed the agency’s method of implementing the statute by providing that
“[t]he Secretary, in determining the amount of the payments that may be made . . . may not recognize as reasonable (in the efficient delivery of health services) routine operating costs for the provision of general inpatient hospital services by a hospital to the extent these costs exceed 108 percent of the mean of such routine operating costs per diem for hospitals, or, in the judgment of the Secretary, such lower percentage or such comparable or lower limit as the Secretary may determine. The Secretary may provide for such exemptions and exceptions to such limitation as he deems appropriate.” 42 U. S. C. § 1395x(v)(l)(L)(i) (1976 ed., Supp. V), repealed, Pub. L. 97-248, § 101(a)(2), 96 Stat. 335.
See also H. R. Rep. No. 97-158, pp. 326-327 (1981).
As remarked earlier, see n. 12, swpm, the thrust of this scheme (imposing a firm ceiling set above the mean, purportedly to account for possible inaccuracies in the methods, and allowing the Secretary to provide for appropriate waivers) is at least at some variance with the notion that a dissatisfied provider can exceed the imposed limits and invoke its own waivers for any reason the Secretary has failed to take into account.
In fact, petitioners invoked this provision below, see App. 13-14, but the Court of Appeals rejected their APA claims, and they were not renewed in this Court. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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62
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WISCONSIN DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS et al. v. GOULD INC.
No. 84-1484.
Argued December 9, 1985
Decided February 26, 1986
Blackmun, J., delivered the opinion for a unanimous Court.
Charles D. Hoornstra, Assistant Attorney General of Wisconsin, argued the cause for appellants. With him on the briefs was Bronson C. La Follette, Attorney General.
Columbus R. Gangemi, Jr., argued the cause for appellee. With him on the brief were George B. Christensen, Gerald C. Peterson, Paul B. Biebel, Jr., and John N. Bilanko.
Briefs of amici curiae urging reversal were filed for the State of Connecticut by Joseph I. Lieberman, Attorney General, Elliot F. Gerson, Deputy Attorney General, and Arnold B. Feigin, Richard T. Sponzo, and Robert E. Walsh, Assistant Attorneys General; for the National Governors’ Association et al. by Benna Ruth Solomon and Peter J. Kalis; and for the American Federation of Labor and Congress of Industrial Organizations by Marsha Berzon, David M. Silberman, and Laurence Gold.
Briefs of amici curiae urging affirmance were filed for the National Labor Relations Board by Norton J. Come, Linda Sher, and Elinor Had-ley Stillman; for the Chamber of Commerce of the United States by Peter G. Nash, Dixie L. Atwater, and Stephen A. Bokat.
Justice Blackmun
delivered the opinion of the Court.
The question in this case is whether the National Labor Relations Act (NLRA), 29 U. S. C. §151 et seq., pre-empts a Wisconsin statute debarring certain repeat violators of the Act from doing business with the State. We hold that it does.
I
Wisconsin has directed its Department of Industry, Labor and Human Relations to maintain a list of every person or firm found by judicially enforced orders of the National Labor Relations Board to have violated the NLRA in three separate cases within a 5-year period. See Wis. Stat. § 101.245 (1983-1984). State procurement agents are statutorily forbidden to purchase “any product known to be manufactured or sold by any person or firm included on the list of labor law violators.” §16.75(8). A name remains on the violators’ list for three years. § 101.245(4).
Appellee Gould Inc. is a Delaware corporation with its principal place of business in Illinois. In 1982, Wisconsin placed Gould on its list of labor law violators following the judicial enforcement of four Board orders against various divisions of the company, none of which was located in Wisconsin and none of which Gould still owned at the time of its debarment. The State informed Gould that it would enter into no new contract with the company until 1985. The State also announced that it would continue its current contracts with Gould only as long as necessary to avoid contractual penalties, and that while Gould was on the list the State would not purchase products containing components produced by the company. At the time, Gould held state contracts worth over $10,000, and had outstanding bids for additional contracts in excess of $10,000.
Gould filed this action for injunctive and declaratory relief, arguing that the Wisconsin debarment scheme was preempted by the NLRA and violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The United States District Court for the Western District of Wisconsin granted Gould summary judgment on the preemption claim, and did not reach the arguments pertaining to the Fourteenth Amendment. 576 F. Supp. 1290 (1983). The court enjoined the defendant state officials from refusing to do business with Gould, from refusing to purchase products with Gould components, and from including Gould on the fist of labor law violators. Id., at 1299; App. to Juris. Statement 86, 87. The Court of Appeals for the Seventh Circuit affirmed in relevant part. 750 F. 2d 608 (1984). We noted probable jurisdiction, 471 U. S. 1115 (1985). As did the District Court and the Court of Appeals, we find it necessary to reach only the pre-emption issue.
II
It is by now a commonplace that in passing the NLRA Congress largely displaced state regulation of industrial relations. Although some controversy continues over the Act’s pre-emptive scope, certain principles are reasonably settled. Central among them is the general rule set forth in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), that States may not regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits. Because “conflict is imminent” whenever “two separate remedies are brought to bear on the same activity,” Garner v. Teamsters, 346 U. S. 485, 498-499 (1953), the Garmon rule prevents States not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act. See 359 U. S., at 247. The rule is designed to prevent “conflict in its broadest sense” with the “complex and interrelated federal scheme of law, remedy, and administration,” id., at 243, and this Court has recognized that “[c]onflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.” Motor Coach Employees v. Lockridge, 403 U. S. 274, 287 (1971).
Consequently, there can be little doubt that the NLRA would prevent Wisconsin from forbidding private parties within the State to do business with repeat labor law violators. Like civil damages for picketing, which the Court refused to allow in Garmon, a prohibition against in-state private contracts would interfere with Congress’ “integrated scheme of regulation” by adding a remedy to those prescribed by the NLRA. 359 U. S., at 247. Nor does it matter that a supplemental remedy is different in kind from those that may be ordered by the Board, for “judicial concern has necessarily focused on the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted.” Id., at 243; Lockridge, 403 U. S., at 292. Indeed, “to allow the State to grant a remedy . . . which has been withheld from the National Labor Relations Board only accentuates the danger of conflict,” Garmon, 359 U. S., at 247, because “the range and nature of those remedies that are and are not available is a fundamental part” of the comprehensive system established by Congress. Lockridge, 403 U. S., at 287.
Wisconsin does not assert that it could bar its residents from doing business with repeat violators of the NLRA. It contends, however, that the statutory scheme invoked against Gould escapes pre-emption because it is an exercise of the State’s spending power rather than its regulatory power. But that seems to us a distinction without a difference, at least in this case, because on its face the debarment statute serves plainly as a means of enforcing the NLRA. The State concedes, as we think it must, that the point of the statute is to deter labor law violations and to reward “fidelity to the law.” Tr. of Oral Arg. 4, 6; Brief for Defendants in Support of Motion for Summary Judgment in No. 83-C-1045, (WD Wis.), p. 18. No other purpose could credibly be ascribed, given the rigid and undiscriminating manner in which the statute operates: firms adjudged to have violated the NLRA three times are automatically deprived of the opportunity to compete for the State’s business.
Because Wisconsin’s debarment law functions unambiguously as a supplemental sanction for violations of the NLRA, it conflicts with the Board’s comprehensive regulation of industrial relations in precisely the same way as would a state statute preventing repeat labor law violators from doing any business with private parties within the State. Moreover, if Wisconsin’s debarment law is valid, nothing prevents other States from taking similar action against labor law violators. Indeed, at least four other States already have passed legislation disqualifying repeat or continuing offenders of the NLRA from competing for state contracts. Each additional statute incrementally diminishes the Board’s control over enforcement of the NLRA and thus further detracts from the “integrated scheme of regulation” created by Congress.
That Wisconsin has chosen to use its spending power rather than its police power does not significantly lessen the inherent potential for conflict when “two separate remedies are brought to bear on the same activity,” Garner, 346 U. S., at 498-499. To uphold the Wisconsin penalty simply because it operates through state purchasing decisions therefore would make little sense. “It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern.” Lockridge, 403 U. S., at 292.
Ill
Wisconsin notes correctly that state action in the nature of “market participation” is not subject to the restrictions placed on state regulatory power by the Commerce Clause. See White v. Massachusetts Council of Constr. Employers, Inc., 460 U. S. 204 (1983); Reeves, Inc. v. Stake, 447 U. S. 429 (1980); Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976). We agree with the Court of Appeals, however, that by flatly prohibiting state purchases from repeat labor law violators Wisconsin “simply is not functioning as a private purchaser of services,” 750 F. 2d, at 614; for all practical purposes, Wisconsin’s debarment scheme is tantamount to regulation.
In any event, the “market participant” doctrine reflects the particular concerns underlying the Commerce Clause, not any general notion regarding the necessary extent of state power in areas where Congress has acted. In addition to authorizing congressional action, the Commerce Clause limits state action in the absence of federal approval. The Clause restricts “state taxes and regulatory measures impeding free private trade in the national marketplace,” but “[t]here is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market.” Reeves, 447 U. S., at 437. The NLRA, in contrast, was designed in large part to' “entrus[t] administration of the labor policy for the Nation to a centralized administrative agency.” Garmon, 359 U. S., at 242; see also, e. g., NLRB v. Nash-Finch Co., 404 U. S. 138, 145 (1971) (“The Board is the sole protector of the ‘national interest’ defined with particularity in the Act”) (footnote omitted). What the Commerce Clause would permit States to do in the absence of the NLRA is thus an entirely different question from what States may do with the Act in place. Congressional purpose is of course “ ‘the ultimate touchstone’” of pre-emption analysis, see, e. g., Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 208 (1985), quoting Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963), and we cannot believe that Congress intended to allow States to interfere with the “interrelated federal scheme of law, remedy, and administration,” Garmon, 359 U. S., at 243, under the NLRA as long as they did so through exercises of the spending power.
Nothing in the NLRA, of course, prevents private purchasers from boycotting labor law violators. But government occupies a unique position of power in our society, and its conduct, regardless of form, is rightly subject to special restraints. Outside the area of Commerce Clause jurisprudence, it is far from unusual for federal law to prohibit States from making spending decisions in ways that are permissible for private parties. See, e. g., Elrod v. Burns, 427 U. S. 347 (1976); Perry v. Sindermann, 408 U. S. 593 (1972). The NLRA, moreover, has long been understood to protect a range of conduct against state but not private interference. See, e. g., Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 148-151 (1976); Teamsters v. Morton, 377 U. S. 252, 259-260 (1964); Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337, 1346, 1351-1359 (1972). The Act treats state action differently from private action not merely because they frequently take different forms, but also because in our system States simply are different from private parties and have a different role to play.
We do not say that state purchasing decisions may never be influenced by labor considerations, any more than the NLRA prevents state regulatory power from ever touching on matters of industrial relations. Doubtless some state spending policies, like some exercises of the police power, address conduct that is of such “peripheral concern” to the NLRA, or that implicates “interests so deeply rooted in local feeling and responsibility,” that pre-emption should not be inferred. Garmon, 359 U. S., at 243-244; see also, e. g., Belknap, Inc. v. Hale, 463 U. S. 491, 498 (1983). And some spending determinations that bear on labor relations were intentionally left to the States by Congress. See New York Tel. Co. v. New York State Labor Dept., 440 U. S. 519 (1979). But Wisconsin’s debarment rule clearly falls into none of these categories. We are not faced here with a statute that can even plausibly be defended as a legitimate response to state procurement constraints or to local economic needs, or with a law that pursues a task Congress intended to leave to the States. The manifest purpose and inevitable effect of the debarment rule is to enforce the requirements of the NLRA. That goal may be laudable, but it assumes for the State of Wisconsin a role Congress reserved exclusively for the Board.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Section 101.245 provides in relevant part:
“(1) The department [of industry, labor and human relations] shall maintain a list of persons or firms that have been found by the national labor relations board, and by 3 different final decisions of a federal court within a 5-year period as determined under sub. (lm), if the 3 final decisions involved a cumulative finding of at least three separate violations, to have violated the national labor relations act, 29 U. S. C. 151 et seq., and of persons or firms that have been found to be in contempt of court for failure to correct a violation of the national labor relations act on 3 or more occasions by a court within a 5-year period as determined under sub. (lm) if the 3 contempt findings involved a cumulative total of at least 3 different violations.
“(lm) On or before July 1 of each year the department shall compile the list required under sub. (1) based upon the 5-year period which ended on September 30 of the year preceding.
“(2) This list may be compiled from the records of the national labor relations board.
“(3) Whenever a new name is added to this list the department shall send the name to the department of administration for actions as provided in s. 16.75(8).
“(4) A name shall remain on the list for 3 years.”
The statute was enacted as 1979 Wis. Laws, ch. 340, § 3. It became effective May 21, 1980.
Section 16.75(8) provides in relevant part:
“The department [of administration] shall not purchase any product known to be manufactured or sold by any person or firm included on the list of labor law violators compiled by the department of industry, labor and human relations under s. 101.245. The secretary may waive this subsection if maintenance, repair or operating supplies are required to maintain systems or equipment which were purchased by the state from a person or firm included on the list prior to the date of inclusion on the list, or if the secretary finds that there exists an emergency which threatens the public health, safety or welfare and a waiver is necessary to meet the emergency.”
We are advised that the statutory ban applies only to purchases by the State and not to purchasing decisions of counties, municipalities, or other political subdivisions of the State. Tr. of Oral Arg. 4.
In addition to disqualifying repeat violators of the NLRA, Wisconsin provides statutory preferences to bids from Wisconsin companies, minority businesses, employers of disabled workers, and prison industries. See Wis. Stat. §§ 16.75(1)(a), (3m)(b), (3s)(a), and (3t)(c) (1983-1984).
The original complaint also sought monetary damages, but Gould apparently abandoned this request in its motion and briefs for summary judgment. See 576 F. Supp. 1290, 1293, n. 3 (WD Wis. 1983).
Although Gould’s debarment was scheduled to end in 1985, Wisconsin does not contend that the case is moot. At a minimum, the problem presented is “capable of repetition, yet evading review.” E. g., Dunn v. Blumstein, 405 U. S. 330, 333, n. 2 (1972); Moore v. Ogilvie, 394 U. S. 814, 816 (1969); Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911).
The complaint named as defendants three state agencies, including the Department of Industry, Labor and Human Relations, and four state officials. The District Court dismissed the agency defendants under the Eleventh Amendment but, pursuant to Ex parte Young, 209 U. S. 123 (1908), allowed the suit to proceed against the state officials. 576 F. Supp., at 1293. Gould did not appeal the dismissal of the agency defendants, and they appear in this Court only as nominal parties under the Court’s Rule 10.4.
The conflict between the challenged debarment statute and the NLRA is made all the more obvious by the essentially punitive rather than corrective nature of Wisconsin’s supplemental remedy. The regulatory scheme established for labor relations by Congress is “essentially remedial,” and the Board is not generally authorized to impose penalties solely for the purpose of deterrence or retribution. Republic Steel Corp. v. NLRB, 311 U. S. 7, 10-12 (1940). Wisconsin’s debarment sanction, in contrast, functions as punishment and serves no corrective purpose. Punitive sanctions are inconsistent not only with the remedial philosophy of the NLRA, but also in certain situations with the Act’s procedural logic. For example, the Board’s certification of a bargaining representative is not subject to direct judicial appeal. An employer who believes that the Board erred in approving an election or defining a bargaining unit thus may obtain administrative and judicial review only by refusing to bargain and awaiting an enforcement action by the Board for violation of the Act. See Magnesium Casting Co. v. NLRB, 401 U. S. 137, 139 (1971); AFL v. NLRB, 308 U. S. 401 (1940). One of Gould’s violations in fact occurred in precisely this manner. See Gould, Inc., Elec. Components Div. v. NLRB, 610 F. 2d 316 (CA5 1980). An unsuccessful challenge of this sort, if pursued in good faith, will generally present an especially inappropriate occasion for punitive sanctions.
See Conn. Gen. Stat. §31-57a (1985); Md. State Finance & Procurement Code Ann. § 13-404 (1985); Mich. Comp. Laws §§ 423.322, .323, and .324 (Supp. 1985); Ohio Rev. Code Ann. § 121.23 (1984). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
GOLDMAN v. WEINBERGER, SECRETARY OF DEFENSE, et al.
No. 84-1097.
Argued January 14, 1986
Decided March 25, 1986
Rehnquist, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Powell, and Stevens, JJ., joined. Stevens, J., filed a concurring opinion, in which White and Powell, JJ., joined, post, p. 510. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 513. Blackmun, J., filed a dissenting opinion, post, p. 524. O’Connor, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 528.
Nathan Lewin argued the cause for petitioner. With him on the brief were David J. Butler and Dennis Rapps.
Kathryn A. Oberly argued the cause for respondents. With her on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Getter, and Anthony J. Steinmeyer.
Briefs of amici curiae urging reversal were filed for the American Jewish Committee et al. by Samuel Eric Hans Ericsson, Kimberlee Wood Colby, Samuel Rabinove, and Richard T. Foltin; for the American Jewish Congress et al. by Ronald A. Krauss and Marc D. Stem; for the Anti-Defamation League of B’nai B’rith by Daniel P. Levitt, Justin J. Finger, and Jeffrey P. Sinensky; and for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell.
W. Charles Bundren, Guy 0. Farley, Jr., John W. Whitehead, Thomas 0. Kotouc, Wendell R. Bird, and William B. Hollberg filed a brief for the Rutherford Institute et al. as amici curiae.
Justice Rehnquist
delivered the opinion of the Court.
Petitioner S. Simcha Goldman contends that the Free Exercise Clause of the First Amendment to the United States Constitution permits him to wear a yarmulke while in uniform, notwithstanding an Air Force regulation mandating uniform dress for Air Force personnel. The District Court for the District of Columbia permanently enjoined the Air Force from enforcing its regulation against petitioner and from penalizing him for wearing his yarmulke. The Court of Appeals for the District of Columbia Circuit reversed on the ground that the Air Force’s strong interest in discipline justified the strict enforcement of its uniform dress requirements. We granted certiorari because of the importance of the question, 472 U. S. 1016 (1985), and now affirm.
Petitioner Goldman is an Orthodox Jew and ordained rabbi. In 1973, he was accepted into the Armed Forces Health Professions Scholarship Program and placed on inactive reserve status in the Air Force while he studied clinical psychology at Loyola University of Chicago. During his three years in the scholarship program, he received a monthly stipend and an allowance for tuition, books, and fees. After completing his Ph.D. in psychology, petitioner entered active service in the United States Air Force as a commissioned officer, in accordance with a requirement that participants in the scholarship program serve one year of active duty for each year of subsidized education. Petitioner was stationed at March Air Force Base in Riverside, California, and served as a clinical psychologist at the mental health clinic on the base.
Until 1981, petitioner was not prevented from wearing his yarmulke on the base. He avoided controversy by remaining close to his duty station in the health clinic and by wearing his service cap over the yarmulke when out of doors. But in April 1981, after he testified as a defense witness at a court-martial wearing his yarmulke but not his service cap, opposing counsel lodged a complaint with Colonel Joseph Gregory, the Hospital Commander, arguing that petitioner’s practice of wearing his yarmulke was a violation of Air Force Regulation (AFR) 35-10. This regulation states in pertinent part that “[h]eadgear will not be worn . . . [w]hile indoors except by armed security police in the performance of their duties.” AFR 35-10, ¶ l-6.h(2)(f) (1980).
Colonel Gregory informed petitioner that wearing a yarmulke while on duty does indeed violate AFR 35-10, and ordered him not to violate this regulation outside the hospital. Although virtually all of petitioner’s time on the base was spent in the hospital, he refused. Later, after petitioner’s attorney protested to the Air Force General Counsel, Colonel Gregory revised his order to prohibit petitioner from wearing the yarmulke even in the hospital. Petitioner’s request to report for duty in civilian clothing pending legal resolution of the issue was denied. The next day he received a formal letter of reprimand, and was warned that failure to obey AFR 35-10 could subject him to a court-martial. Colonel Gregory also withdrew a recommendation that petitioner’s application to extend the term of his active service be approved, and substituted a negative recommendation.
Petitioner then sued respondent Secretary of Defense and others, claiming that the application of AFR 35-10 to prevent him from wearing his yarmulke infringed upon his First Amendment freedom to exercise his religious beliefs. The United States District Court for the District of Columbia preliminarily enjoined the enforcement of the regulation, Goldman v. Secretary of Defense, 530 F. Supp. 12 (1981), and then after a full hearing permanently enjoined the Air Force from prohibiting petitioner from wearing a yarmulke while in uniform. Goldman v. Secretary of Defense, 29 EPD ¶ 32, 753 (1982). Respondents appealed to the Court of Appeals for the District of Columbia Circuit, which reversed. Goldman v. Secretary of Defense, 236 U. S. App. D. C. 248, 734 F. 2d 1531 (1984). As an initial matter, the Court of Appeals determined that the appropriate level of scrutiny of a military regulation that clashes with a constitutional right is neither strict scrutiny nor rational basis. Id., at 252, 734 F. 2d, at 1535-1536. Instead, it held that a military regulation must be examined to determine whether “legitimate military ends are sought to be achieved,” id., at 253, 734 F. 2d, at 1536, and whether it is “designed to accommodate the individual right to an appropriate degree. ” Ibid. Applying this test, the court concluded that “the Air Force’s interest in uniformity renders the strict enforcement of its regulation permissible.” Id., at 257, 734 F. 2d, at 1540. The full Court of Appeals denied a petition for rehearing en banc, with three judges dissenting. 238 U. S. App. D. C. 267, 739 F. 2d 657 (1984).
Petitioner argues that AFR 35-10, as applied to him, prohibits religiously motivated conduct and should therefore be analyzed under the standard enunciated in Sherbert v. Vemer, 374 U. S. 398, 406 (1963). See also Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U. S. 205 (1972). But we have repeatedly held that “the military is, by necessity, a specialized society separate from civilian society.” Parker v. Levy, 417 U. S. 733, 743 (1974). See also Chappell v. Wallace, 462 U. S. 296, 300 (1983); Schlesinger v. Councilman, 420 U. S. 738, 757 (1975); Orloff v. Willoughby, 345 U. S. 83, 94 (1953). “[T]he military must insist upon a respect for duty and a discipline without counterpart in civilian life,” Schlesinger v. Councilman, supra, at 757, in order to prepare for and perform its vital role. See also Brown v. Glines, 444 U. S. 348, 354 (1980).
Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society. The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps. See, e. g., Chappell v. Wallace, supra, at 300; Greer v. Spock, 424 U. S. 828, 843-844 (1976) (Powell, J., concurring); Parker v. Levy, supra, at 744. The essence of military service “is the subordination of the desires and interests of the individual to the needs of the service.” Orloff v. Willoughby, supra, at 92.
These aspects of military life do not, of course, render entirely nugatory in the military context the guarantees of the First Amendment. See, e. g., Chappell v. Wallace, supra, at 304. But “within the military community there is simply not the same [individual] autonomy as there is in the larger civilian community.” Parker v. Levy, supra, at 751. In the context of the present case, when evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest. See Chappell v. Wallace, supra, at 305; Orloff v. Willoughby, supra, 93-94. Not only are courts “‘ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have,’” Chappell v. Wallace, supra, at 305, quoting Warren, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 187 (1962), but the military authorities have been charged by the Executive and Legislative Branches with carrying out our Nation’s military policy. “[J]udicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Rostker v. Goldberg, 453 U. S. 57, 70 (1981).
The considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission. Uniforms encourage a sense of hierarchical unity by tending to eliminate outward individual distinctions except for those of rank. The Air Force considers them as vital during peacetime as during war because its personnel must be ready to provide an effective defense on a moment’s notice; the necessary habits of discipline and unity must be developed in advance of trouble. We have acknowledged that “[t]he inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex wdth no time for debate or reflection.” Chappell v. Wallace, supra, at 300.
To this end, the Air Force promulgated AFR 35-10, a 190-page document, which states that “Air Force members will wear the Air Force uniform while performing their military duties, except when authorized to wear civilian clothes on duty.” AFR 35-10, ¶ 1-6 (1980). The rest of the document describes in minute detail all of the various items of apparel that must be worn as part of the Air Force uniform. It authorizes a few individualized options with respect to certain pieces of jewelry and hairstyle, but even these are subject to severe limitations. See AFR 35-10, Table 1-1, and ¶ l-12.b(l)(b) (1980). In general, authorized headgear may be worn only out of doors. See AFR 35-10, ¶ 1-6.h (1980). Indoors, “[hjeadgear [may] not be worn . . . except by armed security police in the performance of their duties.” AFR 35-10, ¶ 1-6.h(2)(f) (1980). A narrow exception to this rule exists for headgear worn during indoor religious ceremonies. See AFR 35-10, ¶ 1-6.h(2)(d) (1980). In addition, military commanders may in their discretion permit visible religious headgear and other such apparel in designated living quarters and nonvisible items generally. See Department, of Defense Directive 1300.17 (June 18, 1985).
Petitioner Goldman contends that the Free Exercise Clause of the First Amendment requires the Air Force to make an exception to its uniform dress requirements for religious apparel unless the accouterments create a “clear danger” of undermining discipline and esprit de corps. He asserts that in general, visible but “unobtrusive” apparel will not create such a danger and must therefore be accommodated. He argues that the Air Force failed to prove that a specific exception for his practice of wearing an unobtrusive yarmulke would threaten discipline. He contends that the Air Force’s assertion to the contrary is mere ipse dixit, with no support from actual experience or a scientific study in the record, and is contradicted by expert testimony that religious exceptions to AFR 35-10 are in fact desirable and will increase morale by making the Air Force a more humane place.
But whether or not expert witnesses may feel that religious exceptions to AFR 35-10 are desirable is quite beside the point. The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment. Quite obviously, to the extent the regulations do not permit the wearing of religious apparel such as a yarmulke, a practice described by petitioner as silent devotion akin to prayer, military life may be more objectionable for petitioner and probably others. But the First Amendment does not require the military to accommodate such practices in the face of its view that they would detract from the uniformity sought by the dress regulations. The Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and we hold that those portions of the regulations challenged here reasonably and evenhandedly regulate dress in the interest of the military’s perceived need for uniformity. The First Amendment therefore does not prohibit them from being applied to petitioner even though their effect is to restrict the wearing of the headgear required by his religious beliefs.
The judgment of the Court of Appeals is
Affirmed. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
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"Department or Secretary of Commerce",
"Comptroller of Currency",
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"Civil Service Commission, U.S.",
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"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
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"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
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"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
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"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
2
] |
BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. v. MASSACHUSETTS
No. 87-712.
Argued April 20, 1988
Decided June 29, 1988
Stevens, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and O’Connor, JJ., joined. White, J., filed an opinion concurring in the judgment, post, p. 912. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy, J., joined, post, p. 913.
Roy T. Englert, Jr., argued the cause for petitioners in No. 87-712 and respondents in No. 87-929. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Spears, Deputy Solicitor General Merrill, William Ranter, and Howard S. Scher.
Thomas A. Barnico, Assistant Attorney General of Massachusetts, argued the cause for respondent in No. 87-712 and petitioner in No. 87-929. With him on the brief were James M. Shannon, Attorney General, and William L. Pardee, Assistant Attorney General.
Together with No. 87-929, Massachusetts v. Bowen, Secretary of Health and Human Services, et al., also on certiorari to the same court.
Briefs of amici curiae were filed for the State of Alabama et al. by Charles A. Miller and Bruce N. Kuhlik, and by the Attorneys General for their respective States as follows: Grace Berg Schaible of Alaska, Joseph I. Lieberman of Connecticut, Warren Price III of Hawaii, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, David L. Wilkinson of Utah, and Charles G. Brown of West Virginia; for the State of California by John K. Van de Kamp, Attorney General, and John J. Klee, Jr., Deputy Attorney General; for the State of New York by Robert Abrams, Attorney General, 0. Peter Sherwood, Solicitor General, Lawrence S. Kahn, Deputy Solicitor General, and Lillian Z. Cohen and Mary Fisher Bemet, Assistant Attorneys General; for the Council of State Governments et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and Barry Sullivan; and for Victoria Grimesy et al. by Richard Rothschild.
Justice Stevens
delivered the opinion of the Court.
The principal question presented by these cases is whether a federal district court has jurisdiction to review a final order of the Secretary of Health and Human Services refusing to reimburse a State for a category of expenditures under its Medicaid program. All of the Courts of Appeals that have confronted this precise question have agreed that district courts do have jurisdiction in such cases. We implicitly answered the question in the same way when we accepted jurisdiction and decided the merits in Connecticut Dept. of Income Maintenance v. Heckler, 471 U. S. 524 (1985). Moreover, although the Medicaid program was established in 1965, the novel proposition that the Claims Court is the exclusive forum for judicial review of this type of agency action does not appear to have been advocated by the Secretary until this case reached the Court of Appeals. As we shall explain, the conclusion that the District Court had jurisdiction in these cases is supported by the plain language of the relevant statutes, their legislative history, and a practical understanding of their efficient administration. Before turning to the legal arguments, however, it is appropriate to say a few words about the mechanics of the federal financial participation (FFP) in the States’ Medicaid programs and the character of the issue decided by the District Court.
I
In 1965 Congress authorized the Medicaid program by adding Title XIX to the Social Security Act, 79 Stat. 343. The program is “a cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons.” Harris v. McRae, 448 U. S. 297, 308 (1980). Subject to the federal standards incorporated in the statute and the Secretary’s regulations, each participating State must develop its own program describing conditions of eligibility and covered services. At present, 18 different categories of medical assistance are authorized. See Connecticut Dept. of Income Maintenance v. Heckler, 471 U. S., at 528-529.
Although the federal contribution to a State’s Medicaid program is referred to as a “reimbursement,” the stream of revenue is actually a series of huge quarterly advance payments that are based on the State’s estimate of its anticipated future expenditures. The estimates are periodically adjusted to reflect actual experience. Overpayments may be withheld from future advances or, in the event of a dispute over a disallowance, may be retained by the State at its option pending resolution of the dispute.
Two procedures are available to the Secretary if he believes that a State’s expenditures do not comply with either the Act or his regulations. First: If he concludes that the State’s administration of its plan is in “substantial noncompliance” with federal requirements, he may initiate a compliance proceeding pursuant to 42 U. S. C. § 1316(a); in such a proceeding he may order termination of FFP for entire categories of state assistance, or even (theoretically) the entire state program. Should the Secretary subsequently conclude that his initial determination was incorrect, the statute provides that “he shall certify restitution forthwith in a lump sum of any funds incorrectly withheld or otherwise denied.” § 1316(c). A final order in a compliance proceeding is reviewable in the “United States court of appeals for the circuit in which such State is located.” § 1316(a)(3). Second: The Secretary may “disallow” reimbursement for “any item or class of items.” § 1316(d). “In general, ... a disallowance represents an isolated and highly focused inquiry into a State’s operation of the assistance program.” The statute does not expressly provide for judicial review of a disallowance order. In several cases a State has sought direct review of a dis-allowance order in a Court of Appeals, but in each such case the court has concluded that the State should proceed in the district court. See Illinois Dept. of Public Aid v. Schweiker, 707 F. 2d 273 (CA7 1983),- and cases cited therein.
Massachusetts has participated in the . Medicaid program continuously since 1966. One of the categories of assistance covered by the Massachusetts program is the provision of medical and rehabilitative services to patients in intermediate care facilities for the mentally retarded (ICF/MR services). These services include such matters as “‘training in “the activities of daily living” (such as dressing and feeding oneself),”’ Massachusetts v. Heckler, 616 F. Supp. 687, 691 (Mass. 1985) (citation omitted) (case below), and are performed jointly by personnel from the State Departments of Mental Health and Education, working pursuant to state mental health and “special education” laws. See Massachusetts v. Secretary of Health and Human Services, 816 F. 2d 796, 798 (CA1 1987) (case below). Although the Secretary apparently would have regarded these services as covered had they been performed solely by the Massachusetts Department of Mental Health, his auditors classified them as uncovered educational services because they were performed in part by employees of the State Department of Education. On August 23, 1982, the Regional Administrator of the Department’s Health Care Financing Administration (HCFA) notified the State that he had disallowed $6,414,964 in FFP for the period July 1, 1978, to December 31, 1980. See App. to Pet. for Cert. 97a. The Departmental Grant Appeals Board affirmed this decision on May 31, 1983. Id., at 53a.
On August 26, 1983, the State filed a complaint in the Federal District Court for the District of Massachusetts. The State’s complaint invoked federal jurisdiction pursuant to 28 U. S. C. § 1331 and alleged that the United States had waived its sovereign immunity through 5 U. S. C. §702. The complaint requested declaratory and injunctive relief and specifically asked the District Court to “set aside” the Board’s order. While the case was pending, on August 20, 1984, the HCFA notified the State of a $4,908,994 FFP dis-allowance for the same category of ICF/MR services based on its audit of the period January 1, 1981, through June 30, 1982. See App. to Pet. for Cert. 92a. On March 29, 1985, this second disallowance period was upheld by the Board. On June 5, 1985, the State filed a second complaint in District Court, seeking to overturn the second disallowance. Id., at 89a.
On August 27, 1985, the District Court issued an opinion in the first disallowance case. It did not discuss the jurisdictional issue. On the merits, it held that the services in question were in fact rehabilitative, and that this classification was not barred by the fact that the Department of Education had played a role in their provision. Massachusetts v. Heckler, 616 F. Supp. 687 (Mass. 1985) (case below). Its judgment, dated October 7, 1985, simply “reversed” the Board’s decision disallowing reimbursement of the sum of $6,414,964 in FFP under the Medicaid program. App. to Pet. for Cert. 32a. On November 25, 1985, in a second opinion relying on the analysis of the first, the court reversed the Board’s second disallowance determination. Massachusetts v. Heckler, 622 F. Supp. 266 (Mass. 1985) (case below). It entered an appropriate judgment on December 2, 1985. App. to Pet. for Cert. 36a. That judgment did not purport to state what amount of money, if any, was owed by the United States to Massachusetts, nor did it order that any payment be made.
The Secretary at first had challenged the District Court’s subject-matter jurisdiction, but later filed a memorandum stating that as “a matter of policy, HHS has decided not to press the defense of lack of jurisdiction in this action.” App. 20. In his consolidated appeal to the First Circuit, the Secretary reexamined this policy decision and decided to argue that the District Court did not have jurisdiction. The Court of Appeals accepted the Secretary’s argument that the District Court could not order him to pay money to the State, but held that the District Court had jurisdiction to review the Board’s disallowance decision and to grant declaratory and injunctive relief. The court explained its understanding of the difference between relief that was wholly retrospective in nature and relief that affected the future relationship between the parties as follows:
“The disallowance decision at issue in this case, unlike that at issue in [Massachusetts v. Departmental Grant Appeals Bd. of Health and Human Services, 815 F. 2d 778 (CA1 1987)], represents an ongoing policy that has significant prospective effect. The structure of the Medicaid program (in which the Secretary ‘reimburses’ the states in advance) makes it inevitable that disallowance decisions concern money past due. Yet the Secretary uses these decisions to implement important policies governing ongoing programs. Grant Appeals Board concerned the unusual situation in which the disallowance decision had no significant prospective effect; the challenge only concerned the money allegedly past due.
“Here, in contrast, the interpretation of the Medicaid Act announced in the disallowance decision affects far more than any money past due. The special education exclusion defines the respective roles of the Commonwealth and HHS in a continuing program.
“Prospective relief is important to the Commonwealth both because the ICF/MR program is still active and because the legal issues involved have ramifications that affect other aspects of the Medicaid program. What is at stake here is the scope of the Medicaid program, not just how many dollars Massachusetts should have received in any particular year.” 816 F. 2d, at 799 (emphasis in original).
On the merits, the Court of Appeals agreed with the District Court that the Secretary could not lawfully exclude the rehabilitative services provided to the mentally retarded just because the State had labeled them (in part) “educational” services and had used Department of Education personnel to help provide them. It therefore affirmed the District Court’s holding that the decisions of the Grant Appeals Board must be reversed because the Secretary’s “special education exclusion” violated the statute. It held, however, that it could not rule that the services in dispute were reimbursable because it had “no evidentiary basis for doing so.” Id., at 804. In sum, the Court of Appeals affirmed the District Court’s declaratory judgment, vacated the “money judgment” against the Secretary, and remanded to the Secretary for further determinations regarding whether the services are reimbursable.
In his petition for certiorari, the Secretary asked us to decide that the United States Claims Court had exclusive jurisdiction over the State’s claim. In its cross-petition, the State asked us to decide that the District Court had jurisdiction to grant complete relief. We granted both petitions. 484 U. S. 1003 (1988). The basic jurisdictional dispute is over the meaning of the Administrative Procedure Act (APA), 5 U. S. C. §§702, 704. The Secretary argues that § 702, as amended in 1976, does not authorize review because this is not an action “seeking relief other than money damages” within the meaning of the 1976 amendment to that section; he also argues that even if §702 is satisfied, §704 bars relief because the State has an adequate remedy in the Claims Court. The State must overcome both arguments in order to prevail; we shall discuss them separately.
II
Since it is undisputed that the 1976 amendment to §702 was intended to broaden the avenues for judicial review of agency action by eliminating the defense of sovereign immunity in cases covered by the amendment, it is appropriate to begin by quoting the original text of § 702. Prior to 1976, it simply provided:
“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”
In 1975, in a case seeking review of a disallowance decision by the Secretary of the Department of Health, Education, and Welfare, the Court of Appeals for the Ninth Circuit concluded that the decision was reviewable in the District Court. County of Alameda v. Weinberger, 520 F. 2d 344. It would be difficult to question the fact that the disallowance decision was “agency action” that “adversely affected” the State, and that, accordingly, the State was “entitled to judicial review thereof.”
The 1976 amendment contains no language suggesting that Congress disagreed with the Ninth Circuit decision. The amendment added the following sentence to the already broad coverage of §702:
“An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States dr that the United States is an indispensable party.”
There are two reasons why the plain language of this amendment does not foreclose judicial review of the actions brought by the State challenging the Secretary’s disallowance decisions. First, insofar as the complaints sought declaratory and injunctive relief, they were certainly not actions for money damages. Second, and more importantly, even the monetary aspects of the relief that the State sought are not “money damages” as that term is used in the law.
Neither a disallowance decision, nor the reversal of a dis-allowance decision, is properly characterized as an award of “damages.” Either decision is an adjustment — and, indeed, usually a relatively minor one — in the size of the federal grant to the State that is payable in huge quarterly installments. Congress has used the terms “overpayment” and “underpayment” to describe such adjustments in the open account between the parties, and the specific agency action that reverses a disallowance decision'is described as “restitution” in the statute.
Our cases have long recognized the distinction between an action at law for damages — which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation — and an equitable action for specific relief — which may include an order providing for the reinstatement of an employee with backpay, or for “the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer’s actions.” Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 688 (1949) (emphasis added). The fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as “money damages.” Thus, we have recognized that relief that orders a town to reimburse parents for educational costs that Congress intended the town to pay is not “damages”:
“Because Congress undoubtedly did not intend this result, we are confident that by empowering the court to grant ‘appropriate’ relief Congress meant to include retroactive reimbursement to parents as an available remedy in a proper case.
“In this Court, the Town repeatedly characterizes reimbursement as ‘damages,’ but that simply is not the case. Reimbursement merely requires the Town to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.” School Committee of Burlington v. Department of Education of Massachusetts, 471 U. S. 359, 370-371 (1985).
Judge Bork’s explanation of the plain meaning of the critical language in this statute merits quotation in full. In his opinion for the Court of Appeals for the District of Columbia Circuit in Maryland Dept. of Human Resources v. Department of Health and Human Services, 246 U. S. App. D. C. 180, 763 F. 2d 1441 (1985), he wrote:
“We turn first to the question whether the relief Maryland seeks is equivalent to money damages. Maryland asked the district court for a declaratory judgment and for injunctive relief ‘enjoin[ing] defendants from reducing funds otherwise due to plaintiffs, or imposing any sanctions on such funds for alleged Title XX violations.’ ... We are satisfied that the relief Maryland seeks here is not a claim for money damages, although it is a claim that would require the payment of money by the federal government.
“We begin with the ordinary meaning of the words Congress employed. The term ‘money damages,’ 5 U. S. C. §702, we think, normally refers to a sum of money used as compensatory relief. Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies ‘are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.’ D. Dobbs, Handbook on the Law of Remedies 135 (1973). Thus, while in many instances an award of money is an award of damages, ‘[ojccasionally a money award is also a specie remedy.’ Id. Courts frequently describe equitable actions for monetary relief under a contract in exactly those terms. See, e..g., First National State Bank v. Commonwealth Federal Savings & Loan Association, 610 F. 2d 164, 171 (3d Cir. 1979) (specific performance of contract to borrow money); Crouch v. Crouch, 566 F. 2d 486, 488 (5th Cir. 1978) (contrasting lump-sum damages for breach of promise to pay monthly support payments with an order decreeing specific performance as to future installments); Joyce v. Davis, 539 F. 2d 1262, 1265 (10th Cir. 1976) (specific performance of a promise to pay money bonus under a royalty contract).
“In the present case, Maryland is seeking funds to which a statute allegedly entitles it, rather than money in compensation for the losses, whatever they may be, that Maryland will suffer or has suffered by virtue of the withholding of those funds. If the program in this case involved in-kind benefits this would be altogether evident. The fact that in the present case it is money rather than in-kind benefits that pass from the federal government to the states (and then, in the form of services, to program beneficiaries) cannot transform the nature of the relief sought — specific relief, not relief in the form of damages. Cf. Clark v. Library of Congress, 750 F. 2d 89, 104 n. 33 (D.C. Cir. 1984) (dictum) (describing an action to compel an official to repay money improperly recouped as ‘in essence, specific relief’).” Id., at 185, 763 F. 2d, at 1446 (emphasis in original) (citation omitted).
In arguing for a narrow construction of the 1976 amendment — which was unquestionably intended to broaden the coverage of §702 — the Secretary asks us to substitute the words “monetary relief” for the words “money damages” actually selected by Congress. Given the obvious difference in meaning between the two terms and the well-settled presumption that Congress understands the state of existing law when it legislates, see, e. g., Cannon v. University of Chicago, 441 U. S. 677, 696-697 (1979), only the most compelling reasons could justify a revision of a statutory text that is this unambiguous. Nevertheless, we have considered the Secretary’s argument that the legislative history of § 702 supports his reading of the amendment.
The 1976 amendment to § 702 was an important part of a major piece of legislation designed to remove “technical” obstacles to access to the federal courts. The statute was the culmination of an effort generated by scholarly writing and bar association work in the early 1960’s. Although the Department of Justice initially opposed the proposal, it eventually reversed course and offered its support. We shall comment first on the legislative materials that relate directly to the bill that passed in 1976, and then refer to the 1970 Hearing on which the Government places its principal reliance.
Two propositions are perfectly clear. The first concerns the text of the amendment. There is no evidence that any legislator in 1976 understood the words “money damages” to have any meaning other than the ordinary understanding of the term as used in the common law for centuries. No one suggested that the term was the functional equivalent of a broader concept such as “monetary relief” and no one proposed that the broader term be substituted for the familiar one. Each of the Committee Reports repeatedly used the term “money damages”; the phrase “monetary relief” was used in each Report once, and only in intentional juxtaposition and distinction to “specific relief,” indicating that the drafters had in mind the time-honored distinction between damages and specific relief. There is no support in that history for a departure from the plain meaning of the text that Congress enacted.
Second, both the House and Senate Committee Reports indicate that Congress understood that §702, as amended, would authorize judicial review of the “administration of Federal grant-in-aid programs.” The fact that grant-in-aid programs were expressly included in the list of proceedings in which the Committees wanted to be sure the sovereign-immunity defense was waived is surely strong affirmative evidence that the members did not regard judicial review of an agency’s disallowance decision as an action for damages.
If we turn to the 1970 Hearing and the earlier scholarly writings, we find that the terms “monetary relief” and “money damages” were sometimes used interchangeably. That fact is of only minimal significance, however, for several reasons. First, given the high caliber of the scholars who testified, it seems obvious that if they had intended the exclusion for proceedings seeking “money, damages” to encompass all proceedings seeking any form' of monetary relief, they would have drafted their proposal differently. Second, they cited cases involving challenges to federal grant-in-aid programs as examples of the Government’s reliance on a sovereign-immunity defense that should be covered by the proposed legislation. Third, the case that they discussed at the greatest length in the 1970 Hearing was Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682 (1949). Although they criticized the reliance on sovereign immunity in that opinion, they made no objection to its recognition of the classic distinction between the recovery of money damages and “the recovery of specific property or monies.” Id., at 688.
Judge Bork’s summary of the legislative history is especially convincing:
“Neither the House nor Senate Reports (there was no Conference Report) intimates, that Congress intended the term ‘money damages’ as a shorthand for ‘whatever forms of monetary relief would- -be available under the Tucker Act.’ To the contrary, the federal sovereign immunity case law, which the Reports discuss at length, see H. R. Rep. No. 1656, supra, at 5-8; S. Rep. No. 996, 94th Cong., 2d Sess. 4-8 (1976), suggests that Congress would have understood the recovery of specific monies to be specific relief in this context. See, e. g., Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 688 (1949) (contrasting ‘damages’ and ‘specific relief’ and including in the latter category ‘the recovery of specific property or monies’).
“Moreover, while reiterating that Congress intended ‘suits for damages’ to be barred, both Reports go on to say that ‘the time [has] now come to eliminate the sovereign immunity defense in all equitable actions for specific relief against a Federal agency or officer acting in an official capacity.’ H. R. Rep. No. 1656, supra, at 9; S. Rep. No. 996, supra, at 8, U. S. Code Cong. & Admin. News 1976, p. 6129 (emphasis added). That sweeping declaration strongly suggests that Congress intended to authorize equitable suits for specific monetary relief as we have defined that category. This inference is made virtually conclusive by the fact that both Reports then enumerate several kinds of cases in which the sovereign immunity defense had continued to pose an undesirable bar to consideration of the merits: that listing includes cases involving ‘administration of Federal grant-in-aid programs.’ H. R. Rep. No. 1656, supra, at 9; S. Rep. No. 996, supra, at 8, U. S. Code Cong. & Admin. News 1976, p. 6129. Specific relief in cases involving such programs will, of course, often result in the payment of money from the federal treasury. It seems to us, then, that the legislative history supports the proposition that Congress used the term ‘money damages’ in its ordinary signification of compensatory relief. We therefore hold that Maryland’s claims for specific relief, albeit monetary, are for ‘relief other than money damages’ and therefore within the waiver of sovereign immunity in section 702.” 246 U. S. App. D. C., at 186-187, 763 F. 2d, at 1447-1448.
Thus, the combined effect of the 1970 Hearing and the 1976 legislative materials is to demonstrate conclúsively that the exception for an action seeking “money damages” should not be broadened beyond the meaning of its plain language. The State’s suit to enforce § 1396b(a) of the Medicaid Act, which provides that the Secretary “shall pay” certain amounts for appropriate Medicaid services, is not a suit seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather, it is a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money. The fact that the mandate is one for the payment of money must not be confused with the question whether such payment, in these circumstances, is a payment of money as damages or as specific relief. Judge Bork’s explanation bears repeating:
“[The State] is seeking funds to which a statute allegedly .entitles it, rather than money in compensation for the losses, whatever they may be, that [the State] will suffer or has suffered by virtue of the withholding of those funds. If the program in this case involved in-kind benefits this wmuld be altogether evident. The fact that in the present case it is money rather than in-kind benefits that pass from the federal government to the states (and then, in the form of services, to program beneficiaries) cannot transform the nature of the relief sought — specific relief, not relief in the form of damages.” 246 U. S. App. D. C., at 185, 763 F. 2d, at 1446.
III
The Secretary’s novel submission that the entire action is barred by § 704 must be rejected because the doubtful and limited relief available in the Claims Court is not an adequate substitute for review in the District Court. A brief review of the principal purpose of § 704 buttresses this conclusion.
Section 704 was enacted in 1946 as § 10(c) of the APA. In pertinent part, it provided:
“Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review.” 60 Stat. 243.
Earlier drafts of what became §704 provided that “only final actions, rules, or orders, or those for which there is no other adequate judicial remedy . . . shall be subject to such review,” or that “[e]very final agency action, or agency action for which there is no other adequate remedy in any court, shall be subject to judicial review.” Professor Davis, a widely respected administrative law scholar, has written that § 704 “has been almost completely ignored in judicial opinions,” and has discussed §704’s bar to judicial review of agency action when there is an “adequate remedy” elsewhere as merely a restatement of the proposition that “[o]ne need not exhaust administrative remedies that are inadequate.”
However, although the primary thrust of §704 was to codify the exhaustion requirement, the provision as enacted also makes it clear that Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action. As Attorney General Clark put it the following year, §704 “does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures. ” At the time the APA was enacted, a number of statutes creating administrative agencies defined the specific procedures to be followed in reviewing a particular agency’s action; for example, Federal Trade Commission and National Labor Relations Board orders were directly reviewable in the regional courts of appeals, and Interstate Commerce Commission orders were subject to review in specially constituted three-judge district courts. When Congress enacted the APA to provide a general authorization for review of agency action in the district courts, it did not intend that general grant of jurisdiction to duplicate the previously established special statutory procedures relating to specific agencies.
The exception that was intended to avoid such duplication should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action.
In our leading opinion explaining the significance of this provision, Justice Harlan wrote:
“The Administrative Procedure Act provides specifically not only for review of ‘[a]gency action made reviewable by statute’ but also for review of ‘final agency action for which there is no other adequate remedy in a court,’ 5 U. S. C. § 704. The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act’s ‘generous review provisions’ must be given a ‘hospitable’ interpretation.” Abbott Laboratories v. Gardner, 387 U. S. 136, 140-141 (1967) (footnote omitted).
A restrictive interpretation of § 704 would unquestionably, in the words of Justice Black, “run counter to § 10 and § 12 of the Administrative Procedure Act. Their purpose was to remove obstacles to judicial review of agency action under subsequently enacted statutes . . . .” Shaughnessy v. Pedreiro, 349 U. S. 48, 51 (1955).
The Secretary argues that § 704 should be construed to bar review of the agency action in the District Court because monetary relief against the United States is available in the Claims Court under the Tucker Act. This restrictive — and unprecedented — interpretation of §704 should be rejected because the remedy available to the State in the Claims Court is plainly not the kind of “special and adequate review procedure” that will oust a district court of its normal jurisdiction under the APA. Moreover, the availability of any review of a disallowance decision in the Claims Court is doubtful.
The Claims Court does not have the general equitable powers of a district court to grant prospective relief. Indeed, we have stated categorically that “the Court of Claims has no power to grant equitable relief.” As the facts of these cases illustrate, the interaction between the State’s administration of its responsibilities under an approved Medicaid plan and the Secretary’s interpretation of his regulations may make it appropriate for judicial review to culminate in the entry of declaratory or injunctive relief that requires the Secretary to modify future practices.. We are not willing to assume, categorically, that a naked money judgment against the United States will always be an adequate substitute for prospective relief fashioned in the light of the rather complex ongoing relationship between the parties.
Moreover, in some cases the jurisdiction of the Claims Court to'entertain the action,'or perhaps even to enter a specific money judgment against the United States, would be at least doubtful. Regarding the former dilemma: If a State elects to retain the amount covered by a disallowance until completion of review by the Grant Appeals Board, see 42 U. S. C, § 1396b(d)(5); n. 3, supra, it will not be able to file suit in the Claims Court until after the disallowance is recouped from a future quarterly payment. It is no answer to suggest that a State will not be harmed as long as it retains the money, because its interest in planning future programs for groups such as the mentally retarded who must be trained in ICF’s may be more pressing than the monetary amount in dispute. Such planning may make it important to seek judicial review — perhaps in the form of a motion for a preliminary-injunction — as promptly as possible after the agency action becomes final. A district court has jurisdiction both to grant such relief and to do so while the funds are still on the State’s side of the ledger (assuming administrative remedies have been exhausted); the Claims Court can neither grant equitable relief, supra, at 905, nor act in any fashion so long as the Federal Government has not yet offset the disallowed amount from a future payment. See § 1396b(d)(5); n. 3, supra. Regarding the latter problem: Given the fact that the quarterly payments of federal money are actually advances against expenses that have not yet been incurred by the State, it is arguable that a dispute concerning the status of the open account is not one in which the State can claim an entitlement to a specific sum of money that the Federal Government owes to it.
Further, the nature of the controversies that give rise to disallowance decisions typically involve state governmental activities that a district court would be in a better position to understand and evaluate than a single tribunal headquartered in Washington. We have a settled and firm policy of deferring to regional courts of appeals in matters that involve the construction of state law. That policy applies with special force in this context because neither the Claims Court nor the Court of Appeals for the Federal Circuit has any special expertise in considering the state-law aspects of the controversies that give rise to disallowances under grant-in-aid programs. It would be nothing less than remarkable to conclude that Congress intended judicial review of these complex questions of federal-state interaction to be reviewed in a specialized forum such as the Court of Claims. More specifically, it is anomalous to assume that Congress would channel the review of compliance decisions to the regional courts of appeals, see 42 U. S. C. § 1316(a)(3); supra, at 885, and yet intend that the same type of questions arising in the disallowance context should be resolved by the Claims Court or the Federal Circuit.
IV
We agree with the position advanced by the State in its cross-petition — that the judgments of the District Court should have been affirmed in their entirety — for two independent reasons. First, neither of the District Court’s orders in these cases was a “money judgment,” as the Court of Appeals held. The first order (followed in the second, see Part I, supra) simply “reversed” the “decision of the Department Grant Appeals Board of the United States Department of Health and Human Services in Decision No. 438 (May 31, 1983).” It is true that it describes Decision No. 438 as one that had disallowed reimbursement of $6,414,964 to the State, but it did not order that amount to be paid, and it did not purport to be based on a finding that the Federal Government owed Massachusetts that amount, or indeed, any amount of money. Granted, the judgment tells the United States that it may not disallow the reimbursement on the grounds given, and thus it is likely that the Government will abide by this declaration and reimburse Massachusetts the requested sum. But to the extent that the District Court’s judgment engenders this result, this outcome is a mere byproduct of that court’s primary function of reviewing the Secretary’s interpretation of federal law.
Second, even if the District Court’s orders are construed in part as orders for the payment of money by the Federal Government to the State, such payments are not “money damages,” see Part II, supra, and the orders are not excepted from §702’s grant of power by §704, see Part III, supra. That is, since the orders are for specific relief (they undo the Secretary’s refusal to reimburse the State) rather than for money damages (they do not provide relief that substitutes for that which ought to have been done) they are within the District Court’s jurisdiction under § 702’s waiver of sovereign immunity. See Part II, supra. The District Court’s jurisdiction to award complete relief in these cases is not barred by the possibility that a purely monetary judgment may be entered in the Claims Court. See Part III, supra.
The question whether the District Court had the power to enter the orders it did is governed by the plain language of 5 U. S. C. § 706. It seems perfectly clear that, as “the reviewing court,” the District Court had the authority to “hold unlawful and set aside agency action” that it found to be “not in accordance with law.” As long as it had jurisdiction under § 702 to review the disallowance orders of the Secretary, it also had the authority to grant the complete relief authorized by § 706. Neither the APA nor any of our decisions required the Court of Appeals to split either of these cases into two parts.
In his explanation to Congress of the basic purpose of what became the 1976 amendment to the APA, Dean Cramton endorsed the view that “ ‘today the doctrine [of sovereign immunity] may be satisfactory to technicians but not at all to persons whose main concern is with justice. . . . The trouble with the sovereign immunity doctrine is that it interferes with consideration of practical matters, and transforms everything into a play on words.’” In our judgment a fair consideration of “practical matters” supports the conclusion that the district courts and the regional courts of appeals have jurisdiction to review agency action of the kind involved in these cases and to grant the complete relief authorized by §706. Accordingly, the Court of Appeals should have affirmed the judgments of the District Court in their entirety.
Thus, we affirm in part, reverse in part, and remand to the Court of Appeals for further proceedings consistent with this opinion.
It is so ordered.
Five Circuits have held that district courts have jurisdiction over a State’s appeal from a federal administrative disallowance in a grant-in-aid program. Massachusetts v. Secretary of Health and Human Services, 816 F. 2d 796 (CA1 1987) (case below); Maryland Dept. of Human Resources v. Department of Health and Human Services, 246 U. S. App. D. C. 180, 763 F. 2d 1441 (1985) (action for wrongful disallowance of Title XX moneys is one for specific relief, and therefore not barred by 5 U. S. C. §702’s “money damages” exception; such an action is not cognizable in Claims Court because Title XX, 95 Stat. 867, 42 U. S. C. § 1397, although mandating payment by the United States for certain programs and services, does not create a cause of action for compensation for damages sustained by a State); Minnesota ex rel. Noot v. Heckler, 718 F. 2d 852 (CA8 1983) (District Court’s prospective order upheld, money judgment vacated); Illinois Dept. of Public Aid v. Schweiker, 707 F. 2d 273 (CA7 1983) (district court, not court of appeals, is proper forum for review of disallowance under 42 U. S. C. § 1316(d); 5 U. S. C. §§ 702 and 704 issues not addressed); County of Alameda v. Weinberger, 520 F. 2d 344 (CA9 1975) (disallowances by Department of Health, Education, and Welfare of asserted overpayments to California pursuant to Titles I, X, and XIV of the Social Security Act'are reviewable in district court even though 42 U. S. C. § 1316(d) does not specifically authorize judicial review; §§ 702 and 704 issues not addressed). In a case involving a federal grant program but not concerning a situation such as the one at bar, the Federal Circuit has held the Claims Court to be the proper tribunal to resolve administrative appeals. Chula Vista City School Dist. v. Bennett, 824 F. 2d 1573 (1987) (claim that Federal Government had misconstrued federal law providing funding to local school districts, where result would be increased payments to plaintiff district, held properly in Claims Court), cert, denied, 484 U. S. 1042 (1988).
Title 42 U. S. C. § 1396b(d) (1982 ed., Supp. V) provides, in part:
“(d) Estimates of State entitlement; installments; adjustments to reflect overpayments or underpayments; time for recovery or adjustment; uncol-lectable or discharged debts; obligated appropriations; disputed claims
“(1) Prior to the beginning of each quarter, the Secretary shall estimate the amount to which a State will be entitled under subsections (a) and (b) of this section for such quarter, such estimates to be based on (A) a report filed by the State containing its estimate of the total sum to be expended in such quarter in accordance with the provisions of such subsections, and stating the amount appropriated or made available by the State and its political subdivisions for such expenditures in such quarter, and if such amount is less than the State’s proportionate share of the total sum of such estimated expenditures, the source or sources from which the difference is expected to be derived, and (B) such other investigation as the Secretary may find necessary.
“(2)(A) The Secretary shall then pay to the State, in such installments as he may determine, the amount so estimated, reduced or increased to the extent of any overpayment or underpayment which the Secretary determines was made under this section to such State for any prior quarter and with respect to which adjustment has not already been made under this subsection.”
Title 42 U. S. C. § 1396b(d)(5) provides:
“(5) In any case in which the Secretary estimates that there has been an overpayment under this section to a State on the basis of a claim by such State that has been disallowed by the Secretary under section 1316(d) of this title, and such State disputes such disallowance, the amount of the Federal payment in controversy shall, at the option of the State, be retained by such State or recovered by the Secretary pending a final determination with respect to such payment amount. If such final determination is to the effect that any amount was properly disallowed, and the State chose to retain payment of the amount in controversy, the Secretary shall offset, from any subsequent payments made to such State under this sub-chapter, an amount equal to the proper amount of the disallowance plus interest on such amount disallowed for the period beginning on the date such amount was disallowed and ending on the date of such final determination at a rate (determined by the Secretary) based on the average of the bond equivalent of the weekly 90-day treasury bill auction rates during such period.”
See Massachusetts Dept. of Public Welfare, No. 82-169, Decision No. 438, Health and Human Services Grant Appeals Board (May 31,1983), App. to Pet. for Cert. 78a.
7 bid.
An “intermediate care facility” is “an institution which ... is licensed under State law to provide, on a regular basis, health-related care and services to individuals who do not require the degree of care and treatment which a hospital or skilled nursing facility is designed to provide, but who because of their mental or physical condition require care and services (above the level of room and board) which can be made available to them only through institutional facilities.” 42 U. S. C. § 1396d(c)(l). “‘Intermediate care facility services’ may include services in a public institution . .. for the mentally retarded or persons with related conditions if — (1) the primary purpose of such institution ... is to provide health or rehabilitative services for mentally retarded individuals . . . .” § 1396d(d)(l).
The Federal Government contributed $546 million to Massachusetts for ICF/MR services during the years 1978-1982. Letter from Anthony Parker, Statistician, Division of Medicaid Statistics, Department of Health and Human Services, dated June 14, 1988 (available in Clerk of Court’s case file). Since this amount is only a fraction of the Federal Government’s total Medicaid contribution to the State for those years— which amounted to nearly $5 billion, see ibid.— it is apparent that, as the Secretary’s Grant Appeals Board noted, the disallowances at issue in this case affected only “a proportionally small amount” of the federal subsidy. App to Pet. for Cert. 80a.
See 816 F. 2d, at 802; Massachusetts v. Heckler, 616 F. Supp. 687, 693-695 (Mass. 1985) (case below).
The record does not tell us whether the State then elected to retain the amount in dispute pending a final review of the agency’s preliminary decision, as authorized by § 1396b(d)(5), see n. 3, supra. The HCFA notification of disallowance informed the State that it had one month to decide whether to retain the funds. See 3 Record 363. The State’s appeal to the Board, filed one month later, is silent on the issue of funds retention. See id., at 356-359.
Thereafter, the Secretary was entitled to withhold the disputed amounts from its next quarterly payment to Massachusetts. Whether it in fact did so, or indeed, whether the next quarterly payment was made before the State commenced these actions in the United States District Court for the District of Massachusetts to obtain review of the Board’s order, is not clear from the record.
The complaint requested the following relief:
“Wherefore, the plaintiff requests that this Court grant the following relief:
“1. Enjoin the Secretary and the Administrator from failing or refusing to reimburse the Commonwealth or from recovering from the Commonwealth the federal share of expenditures for medical assistance to eligible residents of intermediate care facilities for the mentally retarded.
“2. Set aside the Board’s Decision No. 438.
“3. Grant such declaratory and other relief as the Court deems just.” App. to Pet. for Cert. 98a-99a.
The Government’s memorandum concerning subject-matter jurisdiction dated December 29, 1983, App. 19, see n. 12, infra, indicates that it had challenged the District Court’s subject-matter jurisdiction in its answer filed October 28, 1983. That answer is not included in any of the papers filed with us, including the certified record.
The memorandum had concluded, though, that two significant jurisdictional questions aie presented by these cases: (1) Whether 42 U. S. C. § 1316 gives a district court jurisdiction to review a disallowance decision; and (2) whether a district court or the Claims Court has “jurisdiction over plaintiff’s claims, which can be construed as monetary claims over $10,000.” App. 22.
The Court of Appeals explained:
“On remand the district court should send the case back to the Secretary for action consistent with the Medicaid Act as interpreted in this decision. Should the Secretary persist in withholding reimbursement for reasons inconsistent with our decision, the Commonwealth’s remedy would be a suit for money past due under the Tucker Act in the Claims Court. In that subsequent suit we assume that the Secretary would be collaterally es-topped from raising issues decided here.” 816 F. 2d, at 800.
The question presented in the Government’s certiorari petition reads as follows:
“Whether the United States Claims Court has exclusive jurisdiction over a civil action against the United States that includes both a Tucker Act claim for more than $10,000 in money damages and a claim for declaratory or injunctive relief involving the same issues as the Tucker Act claim, or whether such an action can be split into two lawsuits, with the district court and the regional court of appeals having jurisdiction over the claim for prospective relief, and the Claims Court having jurisdiction over the claim for retrospective relief.” Pet; for Cert. (I).
The question presented by the cross-petition reads as follows:
“Whether the United States District Court has jurisdiction under 28 U. S. C. § 1331, and 5 U. S. C. § 701 et seq., to grant complete relief in an action which seeks judicial review of a final decision of the Secretary of Health and Human Services to deny coverage under the Medicaid Act of certain services rendered by a State to retarded citizens.” Pet. for Cert, in No. 87-929, p. i.
Certain jurisdictional arguments that have been advanced and rejected in similar cases are no longer pressed by either party. Thus, the State does not argue that a disallowance decision is the functional equivalent of a noncompliance decision that is specifically reviewable in the Court of Appeals pursuant to § 1316(a)(3). See supra, at 885, and n. 1. It acknowledges that there is no special statutory procedure covering disallowance decisions and relies entirely on the general provision for judicial review of agency action contained in the APA, 5 U. S. C. § 701 et seq. On the other hand, the Government no longer contends that § 701 forecloses judicial review of disallowance decisions because they are committed to the discretion of the Secretary. Further, it is common ground that if review is proper under the APA, the District Court had jurisdiction under 28 U. S. C. § 1331.
See, e. g., S. Rep. No. 94-996. pp. 19-20 (1976) (S. Rep.).
The balance of § 702 provides:
“The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their' successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.”
See 42 U. S. C. § 1396b(d); n. 2, supra.
See § 1316(c); supra, at 885.
The District of Columbia Circuit has recently reaffirmed Maryland Dept. of Human Resources in National Assn. of Counties v. Baker, 268 U. S. App. D. C. 373, 842 F. 2d 369 (1988).
See H. R. Rep. No. 94-1656, pp. 3, 23 (1976) (H. R. Rep.); S. Rep., at 2, 22 (same).
See, e. g., Byse, Proposed Reforms in Federal “Nonstatutory” Judicial Review: Sovereign Immunity, Indispensable Parties, Mandamus, 75 Harv. L. Rev. 1479 (1962); Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich. L. Rev. 387 (1970).
See, e. g., Sovereign Immunity: Hearing on S. 3568 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 91st Cong., 2d Sess., 255-257 (1970) (hereafter 1970 Hearing) (letter of William D. Ruckleshaus, Assistant Attorney General, to Sen. Kennedy, dated July 8, 1970) (“The record is not established that the defense of sovereign immunity is all bad”); H. R. Rep., at 2, 4, 6, 25-30 (letter of Assistant Attorney General Scalia stating that although the Department had opposed the amendment, it had reconsidered its position and decided to endorse the amendment); S. Rep., at 3, 5, 24-29 (same).
Th.e Department of Justice proposed other technical changes but did not object to the use of the term “money damages.” See H. R. Rep., at 27-28; S. Rep., at 26-27 (same).
See H. R. Rep., at 4, 7, 11, 20, 25; S. Rep., at 4, 6, 10, 19, 25 (same).
See H. R. Rep., at 11 (“The first of the additional sentences provides that claims challenging official aetion or nonaction, and seeking relief other than money damages, should not be barred by sovereign immunity. The explicit exclusion of monetary relief makes it clear that sovereign immunity is abolished only in actions for specific relief (injunction, declaratory judgment, mandatory relief, etc.))”; S. Rep., at 10 (same). The First Circuit has construed this passage as using “the terms ‘money damages’ and ‘monetary relief’ interchangeably and opposing] money in general to ‘specific relief.’ ” Massachusetts v. Departmental Grant Appeals Bd. of Health and Human Services, 815 F. 2d 778, 782 (1987). That the passage uses “money damages” and “monetary relief” interchangeably, however, does not answer the question whether Congress intended the former or the latter to be the excluded category of relief under the APA. Reading the passage as “opposing] money in general to ‘specific relief’” assumes that specific relief may not include an order for the payment of money, a proposition that has never been the law. See supra, at 893-896. Thus, the better reading of the above passage is that “monetary relief” was meant as a synonym for “money damages.” See also H. R. Rep., at 4-5, 7, 19-20 (contrasting money damages with- specific, or equitable, relief); S. Rep., at 4, 6, 19 (same).
H. R. Rep., at 9; S. Rep., at 8 (same).
See, e. g., 1970 Hearing, at 121 (Cramton, Committee on Judicial Review: Memorandum in support of the recommendation relating to statutory reform of the sovereign immunity doctrine) (citing Lee County School Dist. No. 1 v. Gardner, 263 F. Supp. 26 (SC 1967) and Dermott Special School Dist. v. Gardner, 278 F. Supp. 687 (ED Ark. 1968), and specifically describing the former case as “challenge of HEW deferral of payment of federal funds to school district”).
See, e. g., 1970 Hearing, at 102-109, 111-115, 120, 125-126, 132-133.
There are, of course, many statutory actions over which the Claims Court has jurisdiction that enforce a statutory mandate for the payment of money rather than obtain compensation for the Government’s failure to so pay. See n. 42, infra. The jurisdiction of the Claims Court, however, is not expressly limited to actions for “money damages,” see n. 48, infra, whereas that term does define the limits of the exception to § 702. Moreover, such statutes, unlike a complex scheme such as the Medicaid Act that governs a set of intricate, ongoing relationships between the States and the Federal Government, are all statutes that provide compensation for specific instances of past injuries or labors; suits brought under these statutes do not require the type of injunctive and declaratory powers that the district courts can bring to bear in suits under the Medicaid Act. Thus, to the extent that suits to enforce these statutes can be considered suits for specific relief, but see n. 42, infra, suits under the Tucker Act in the Claims Court offer precisely the sort of “special and adequate review procedures” that §704 requires to direct litigation away from the district courts. See infra, at 903-905, and n. 39.
The provision now reads “[a]gency action made reviewable by. statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U. S. C. § 704.
See Administrative Procedure Act: Legislative History, S. Doc. No. 248, pp. 145, 154, 160, 176, 179, 335 (Comm. Print 1946) (hereafter APA Leg. Hist.) (emphases added). The Senate Judiciary Committee Print of June 1945 contained the language that eventually was adopted along with an explanatory column that read “Subsection (c), defining reviewable acts, is designed also to negative any intention to make reviewable merely preliminary or procedural orders where there is a subsequent and adequate remedy at law available, as is presently the rule.” APA Leg. Hist. 37. At least one Court of Appeals has construed §704 as addressing only finality concerns. Massachusetts v. Departmental Grant Appeals Bd. of Health and Human Services, 815 F. 2d, at 784 (“The legislative history of § 704 shows that Congress intended thereby to codify the existing law concerning ripeness and exhaustion of remedies”).
K. Davis, Administrative Law §26:12, p. 468 (2d ed. 1983).
Id., at §26:11, p. 464. Further, §704 is titled “Actions reviewable” and it discusses, in the two sentences that follow the one at issue today, matters regarding finality. Thus, it is certainly arguable that by enacting § 704 Congress merely meant to ensure that judicial review would be limited to final agency actions and to those nonfinal agency actions for which there would be no adequate remedy later.
Attorney General’s Manual on the Administrative Procedure Act 101 (1947). It should be noted that Attorney General Clark’s statement would also fit the interpretation that § 704 was intended only to codify traditional rules of finality, for the “special and adequate review procedures” to which he referred could well have been the various administrative-level procedures that litigants have traditionally been required to exhaust before coming into court.
See 15 U. S. C. §45(c) (1940 ed.); 29 U. S. C. § 160(f) (1946 ed.). These provisions remain in today’s Code. See 15 U. S. C. 545(c); 29 U. S. C. § 160(f).
See 38 Stat. 219 (1913). This provision has since been repealed. See 49 U. S. C. App. §17 (1988 ed.). Cases decided by this Court reviewing decisions of such three-judge panels include Pennsylvania R. Co. v. United States, 323 U. S. 588 (1945), and Chesapeake & Ohio R. Co. v. United States, 283 U. S. 35 (1931).
As noted above, see n. 31, supra, litigation in the Claims Court can offer precisely the kind of “special and adequate review procedures” that are needed to remedy particular categories of past injuries or labors for which various federal statutes provide compensation. See n. 42, infra. Managing the relationships between States and the Federal Government that occur over time and that involve constantly shifting balance sheets requires a different sort of review and relief process. The APA is tailored to fit the latter situation; the Tucker Act, the former.
Richardson v. Morris, 409 U. S. 464, 465 (1973) (per curiam); see also, e. g., Glidden Co. v. Zdanok, 370 U. S. 530, 557 (1962) (opinion of Harlan, J.) (“From the beginning [the Court of Claims] has been given jurisdiction only to award damages, not specific relief”). Although Congress has subsequently given the Claims Court certain equitable powers in specific kinds of litigation, see 28 U. S. C. §§ 1491(a)(2) — (3), the statements from Richardson and Glidden are still applicable to actions involving review of an agency’s administration of a grant-in-aid program.
See, e. g., Massachusetts v. Departmental Grant Appeals Bd. of Health and Human Services, 815 F. 2d, at 789 (suit for unique reimbursement of court-ordered abortions outside the APA’s waiver of sovereign immunity only because the requested relief “is unlikely to have any significant prospective effect upon the ongoing grant-in-aid relationship between the Commonwealth and the United States”) (Coffin, J., concurring).
As a threshold matter, it is not altogether clear that the Claims Court would have jurisdiction under the Tucker Act, 28 U. S. C. § 1491(a)(1), to review a disallowance claim. To determine whether one may bring, pursuant -to Tucker Act jurisdiction, a “claim against the United States founded . . . upon . . . any Act of Congress,” ibid., “one must always ask . . . whether the. . . legislation which -the claimant cites can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” Eastport S. S. Corp. v. United States, 372 F. 2d 1002, 1009 (1967) (cited with approval in United States v. Testan, 424 U. S. 392, 398, 400 (1976)). Statutes that have been “interpreted as mandating compensation by the Federal Government for the damage sustained,” 372 F. 2d, at 1009, generally are provisions such as the Back Pay Act, 5 U. S. C. § 5596(b), see United States v. Testan, 424 U. S., at 405, and 37 U. S. C. §242 (1958 ed.) (repealed, see 76 Stat. 498 (1962)), which provided compensation to prisoners of war, see Bell v. United States, 366 U. S. 393, 398 (1961). These laws attempt to. compensate a particular class of persons for- past injuries or labors. In contrast, the statutory mandate of a federal grant-in-aid program directs the Secretary to pay money to the State, not as compensation for a past wrong, but to subsidize future state expenditures. See supra, at 900-901; see also United States v. Mottaz, 476 U. S. 834, 850-851 (1986) (suit to force Government to buy property interests not viewed as “representing damages for the Government’s past acts, the essence of a Tucker Act claim for monetary relief”).
Moreover, Congress has not created an express cause of action providing for the review of disallowance decisions in the Claims Court. To construe statutes such as the Back Pay Act and the old 37 U. S. C. §242, supra this page, as “mandating compensation by the Federal Government for the damage sustained,” 372 F. 2d, at 1009, one must imply from the language of such statutes a cause of action. The touchstone here, of course, is whether Congress intended a cause of action that it did not expressly provide. See, e. g., Thompson v. Thompson, 484 U. S. 174 (1988); Cort v. Ash, 422 U. S. 66 (1975). It seems likely that while Congress intended “shall pay” language in statutes such as the Back Pay Act to be self-enforcing — !. e., to create both a right and a remedy — it intended similar language in § 1396b(a) of the Medicaid Act to provide merely a right, knowing that the APA provided for review of this sort of agency action.
It is important to remember that whether injunctive or declaratory relief is appropriate in a given case will not always be apparent at the outset. Since, as a category of case, alleged “improper Medicaid disallowances” cannot always be adequately remedied in the Claims Court, as a jurisdictional, or threshold matter, these actions should proceed in the district court. Then, the district court judge can award proper relief.
“The statute requires that the Secretary of HHS recover disallowed Medicaid payments by offsetting such payments against future quarterly advances. 42 U. S. C. § 1396b(d)(2). It cannot be determined from the record whether this procedure has been followed in the instant case. Judge Blumenfeld assumed that once his decision was filed, HHS would ‘promptly restore any setoff already taken. Connecticut v. Schweiker, 557 F. Supp. [1077,] 1091 [(Conn. 1983)]. Again, the record is silent on whether HHS had done so. However, the parties have not requested judicial resolution of the matter.” Connecticut Dept. of Income Maintenance v. Heckler, 731 F. 2d 1052, 1055, n. 3 (CA2 1984), aff’d, 471 U. S. 524 (1985).
See, e. g., Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 499-500 (1985); Bishop v. Wood, 426 U. S. 341, 345-346 (1976); Cort v. Ash, 422 U. S. 66, 73, n. 6 (1975).
See Delaware Div. of Health and Social Services v. Department of Health and Human Services, 665 F. Supp. 1104, 1117, n. 15 (Del. 1987) (pointing out this anomaly). It should be remembered that in the Federal Courts Improvement Act of 1982, Congress established the United States Claims Court to replace the old Court of Claims, pursuant to its Article I powers. See 28 U. S. C. § 171(a). Claims Court judges, unlike the life-tenured Article III judges who sit in district courts, serve for limited terms of 15 years. See 28 U. S. -C. § 172(a). Although it is true that the Federal Circuit is an Article III court, it seems highly unlikely that Congress intended to designate an Article I court as the primary forum for judicial review of agency action that may involve questions of policy that can arise in cases such as these.
In rejecting the Government's y>lea for Claims Court jurisdiction in a similar case, Judge Wright of the Delaware District Court explained “the importance of District Court review of agency action”:
“{T]he policies of the APA take precedence over the purposes of the Tucker Act. In the conflict between two statutes, established principles of statutory construction mandate a broad construction of the APA and a narrow interpretation of the Tucker Act. The Court of Claims is a court of limited jurisdiction, because its jurisdiction is statutorily granted and it is to be strictly construed.
“Much recent academic writing emphasizes the importance of District Court review of agency action. The theoretical justification for judicial review of agency action is grounded-in concerns about constraining the exercise of discretionary power by administrative agencies. That power is legitimized by the technical expertise of agencies. But judicial review promotes fidelity to statutory requirements, and, when congresional intent is ambiguous, it increases the likelihood that the regulatory process will be a responsible exercise of discretion.
“The policies of the APA take precedence over the Tucker Act and plaintiff’s action should properly be treated as a final agency action reviewable in District Court.” 665 F. Supp., at 1117-1118 (citations omitted).
The full text of the District Court’s judgment reads as follows:
“For the reasons set forth in this Court’s August 27, 1985 Memorandum and Order, it is hereby ordered and adjudged that the decision of the Department Grant Appeals Board of the United States Department of Health and Human Services in Decision No. 438 (May 31, 1983) which disallowed reimbursement to the Commonwealth of Massachusetts the sum of $6,414,964 in federal financial participation under the Medicaid program, 42 U. S. C. §§ 1396 et seq., is reversed.
“Dated this 7th day of October, 1985.” App. to Pet. for Cert. 32a.
It is often assumed that the Claims Court has exclusive jurisdiction of Tucker Act claims for more than $10,000. (Title 28 U. S. C. § 1346(a)(2) expressly authorizes concurrent jurisdiction in the district courts and the Claims Court for claims under $10,000.) That assumption is not based on any language in the Tucker Act granting such exclusive jurisdiction to the Claims Court. Rather, that court’s jurisdiction is “exclusive” only to the extent that Congress has not granted any other court authority to hear the claims that may be decided by the Claims Court. If, however, § 702 of the APA is construed to authorize a district court to grant monetary relief-other than traditional “money damages” — as an incident to the complete relief that is appropriate in the review of agency action, the fact that the purely monetary aspects of the case could have been decided in the Claims Court is not a sufficient reason to bar that aspect of the relief available in a district court.
Section 706 provides:
“To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
“(1) compel agency action unlawfully withheld or unreasonably delayed; and
“(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
“(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
“(B) contrary to constitutional right, power, privilege, or immunity;
“(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
“(D) without observance of procedure required by law;
“(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
“(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
“In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.”
See, e. g., Delaware Div. of Health and Social Services v. Department of Health and Human Services, 665 F. Supp., at 1117 (“[Bifurcated proceedings . . . would add another layer of complexity to an arena already straining under excess jurisdictional baggage and procedural weightiness”).
1970 Hearing, at 115 (quoting Carrow, Sovereign Immunity, in Administrative Law — A New Diagnosis, 9 J. Pub. L. 1, 22 (1960) (in turn quoting letter written by Professor Walter Gellhorn)). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
62
] |
COMMISSIONER OF INTERNAL REVENUE v. ESTATE OF STERNBERGER, CHASE NATIONAL BANK OF NEW YORK, EXECUTOR.
No. 24.
Argued October 19-20, 1954.
Decided January 10, 1955.
Melva M. Graney argued the cause for petitioner. With her on the brief were Solicitor General SobelojJ, Assistant Attorney General Holland, Ellis N. Slack and Robert N. Anderson.
Edward S. Greenbaum argued the cause for respondent. With him on the brief were Maurice C. Greenbaum and Charles E. Homing.
Mr. Justice Burton
delivered the opinion of the Court.
The issue here is whether, in determining a net estate for federal estate tax purposes, a deduction may be made on account of a charitable bequest that is to take effect only if decedent’s childless 27-year-old daughter dies without descendants surviving her and her mother. For the reasons hereafter stated, we hold that it may not.
Louis Sternberger died testate June 25, 1947. His federal estate tax return discloses a gross estate of $2,406,541.71 and, for the additional estate tax, a net estate of $2,064,346.55. It includes assets owned by him at his death and others held by the Chase National Bank, respondent herein, under a revocable trust created by him. As the revocable trust makes provisions for charity that are, for our purposes, identical with those in the will, this opinion applies to both dispositions.
The will places the residuary estate in trust during the joint lives of decedent’s wife and daughter and for the life of the survivor of them. Upon the death of such survivor, the principal of the trust fund is payable to the then living descendants of the daughter. However, if there are no such descendants, one-half of the residue goes to certain collateral relatives of decedent and the other half to certain charitable corporations. If none of the designated relatives are living, the entire residue goes to the charitable corporations.
At decedent’s death, his wife and daughter survived him. His wife was then 62 and his daughter 27. The latter married in 1942, was divorced in 1944, had not remarried and had not had a child.
In the estate tax return, decedent’s executor, respondent herein, deducted $179,154.19 from the gross estate as the present value of the conditional bequest to charity of one-half of the residue. Respondent claimed no deduction for the more remote charitable bequest of the other half of the residue. The Commissioner of Internal Revenue disallowed the deduction and determined a tax deficiency on that ground. The Tax Court reversed the Commissioner. 18 T. C. 836. The Court of Appeals for the Second Circuit affirmed the Tax Court, 207 F. 2d 600, on the authority of Meierhof v. Higgins, 129 F. 2d 1002. To resolve the resulting conflict with the Court of Appeals for the First Circuit in Newton Trust Co. v. Commissioner, 160 F. 2d 176, we granted certiorari, 347 U. S. 932.
The controlling provisions of the Revenue Code are in substantially the same terms as when they were first enacted in 1919 and are as follows:
“SEC. 812. NET ESTATE.
“For the purpose of the tax the value of the net estate shall be determined ... by deducting from the value of the gross estate—
“(d) Transfers for Public, Charitable, and Religious Uses. — The amount of all bequests, legacies, devises, or transfers ... to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes . . . .” I. R. C.
The Commissioner concedes that the corporations named in the will qualify as charitable corporations under the statute. There is no doubt, therefore, that if the bequest to them had been immediate and unconditional, its value would be deductible. The question before us is what, if any, charitable deduction may be made despite (1) the deferment of the effective date of the charitable bequest until the deaths of both decedent’s wife and daughter and (2) the conditioning of the bequest upon a lack of descendants of decedent’s daughter surviving at that time. We find the answer in the Treasury Regulations, which are of long standing and strengthened by reenactments of I. R. C., § 812 (d), since their promulgation.
1. Section 81.Jf.Jf. of Treasury Regulations 105 would permit the deduction of the present value of the bequest if it were an outright bequest, merely deferred until the deaths of decedent’s wife and daughter.
In their earliest form, the predecessors of these regulations, in 1919, recognized, in plain language, the propriety of the deduction of the present value of a deferred, but assured, bequest to charity. Section 81.44 (d) of Treasury Regulations 105 does so with inescapable specificity:
Ҥ 81.44 Transfers for public, charitable, religious, etc., uses. . . .
“(d) If a trust is created for both a charitable and a private purpose, deduction may be taken of the value of the beneficial interest in favor of the former only insofar as such interest is presently ascertainable, and hence severable from the interest in favor of the private use. § 81.10 indicates the principles to be applied in the computation of the present worth of deferred uses, but such computation will not be made by the Commissioner on behalf of the executor. Thus, if money or property is placed in trust to pay the income to an individual during his life, or for a term of years, and then to pay or deliver the principal to the charitable corporation, or to apply it to a charitable purpose, the present value of the remainder is deductible. To determine the present value of such remainder, use the appropriate factor in column 3 of Table A or B of § 81.10. If the present worth of a remainder bequeathed for a charitable use is dependent upon the termination of more than one life, or in any other manner rendering inapplicable Table A or B of § 81.10, the claim for the deduction must be supported by a full statement, in duplicate, of the computation of the present worth made, in accordance with the principle set forth in 181.10, by one skilled in actuarial computations.” (Emphasis supplied.) 26 CFR.
The very explicitness of the above provisions emphasizes their restriction to “the computation of the present worth” of assured bequests such as are the subject of each of the illustrations and cross references in the section. The statute restricts charitable deductions to bequests to corporations “organized and operated exclusively for . . . charitable . . . purposes.” (Emphasis supplied.) Likewise, the above section of the regulations requires that the deductible value of “the beneficial interest in favor of” the designated charitable purpose be “severable from the interest in favor of the private use.” There is no suggestion in the statute or in § 81.44 of a deduction of funds other than those later to be used exclusively for charitable purposes.
2. Section 81.46 of Treasury Regulations 105 permits no deduction for a conditional bequest to charity “unless the possibility that charity will not take is so remote as to be negligible.”
Here, also, the regulations in their earliest form, in 1919, were unequivocally restrictive. It was only after court decisions had demonstrated the need for doing so that the restrictions were restated so as expressly to permit deductions of bequests assured in fact but conditional in form.
Section 81.46 now provides expressly that no deduction is allowable for a conditional bequest to charity “unless the possibility that charity will not take is so remote as to be negligible.” The whole section is significant:
“§ 81.46 Conditional bequests, (a) If as of the date of decedent’s death the transfer to charity is dependent upon the performance of some act or the happening of a precedent event in order that it might become effective, no deduction is allowable unless the possibility that charity will not take is so remote as to be negligible. If an estate or interest has passed to or is vested in charity at the time of decedent’s death and such right or interest would be defeated by the performance of some act or the happening of some event which appeared to have been highly improbable at the time of decedent’s death, the deduction is allowable.
“(b) If the legatee, devisee, donee, or trustee is empowered to divert the property or fund, in whole or in part, to a use or purpose which would have rendered it, to the extent that it is subject to such power, not deductible had it been directly so bequeathed, devised, or given by the decedent, deduction will be limited to that portion, if any, of the property or fund which is exempt from an exercise of such power.” (Emphasis supplied.) 26 CFR.
Sections 81.44 and 81.46 fully implement § 812 (d) of the code. In their early forms they were obviously mutually exclusive and easily reconcilable. The predecessor of § 81.46 confined charitable deductions to outright, unconditional bequests to charity. It expressly excluded deductions for charitable bequests that were subject to conditions, either precedent or subsequent. While it encouraged assured bequests to charity, it offered no deductions for bequests that might never reach charity. Subsequent amendments have clarified and not changed that principle. Section 81.46 (a) today yields to no condition unless the possibility that charity will not take is “negligible” or “highly improbable.” Section 81.46 (b) is equally strict. It relates to provisions whereby funds may be diverted in whole or in part to non-charitable uses, and it limits the tax deduction to that portion of each fund that cannot be so diverted. Where the principal of a bequest to charity thus may be invaded for private purposes, it is only the ascertainable and assured balance of the bequest to charity that is recognized for a tax deduction.
Respondent concedes that the chance that charity will not take is much more than negligible. Therefore, if § 81.46 (a) applies to the instant case, no charitable deduction is permissible.
Respondent claims, however, that § 81.44 covers this case. In doing so, it reads §§ 81.44 and 81.46 together and, instead of confining them to their mutually exclusive subjects, makes them overlap. It applies § 81.44 to some deferred conditional bequests. It does so in any case where it can compute, on approved actuarial standards, the degree of possibility that charity will receive the conditional bequest. Respondent then computes the present value of a corresponding percentage of the entire deferred bequest. In short, respondent claims an immediate tax deduction equal to the present value of whatever fraction of the bequest corresponds, actuarially, to the chance that charity may benefit from it.
This Court considered a somewhat comparable proposal in 1928. In Humes v. United States, 276 U. S. 487, a taxpayer sought a charitable deduction based on a bequest to charity that was conditional upon the death of decedent’s 15-year-old niece, without issue, before reaching the age of 40. To sustain the proposal, the taxpayer sought to establish actuarially a measure of the chance that charity would receive the bequest and to find authority in the Revenue Code for the deduction of the present value of a corresponding percentage of the bequest. Speaking through Mr. Justice Brandéis, this Court found the actuarial computation inadequate. It, however, did not drop the matter there. It made the following statement:
“One may guess, or gamble on, or even insure against, any future event. The Solicitor General tells us that Lloyds of London will insure against having twins. But the fundamental question in the case at bar, is not whether this contingent interest can be insured against or its value guessed at, but what construction shall be given to a statute. Did Congress in providing for the determination of the net estate taxable, intend that a deduction should be made for a contingency, the actual value of which cannot be determined from any known data? Neither taxpayer, nor revenue officer — even if equipped with all the aid which the actuarial art can supply — could do more than guess at the value of this contingency. It is clear that Congress did not intend that a deduction should he made for a contingent gift of that character.” (Emphasis supplied.) Id., at 494.
Since the above was written, there have been advances in the actuarial art. Today, actuarial estimates are employed more widely than they were then. The computations now before us illustrate that advance. They do not, however, lessen the necessity for statutory authorization for such a tax deduction. The scope of the authority required by respondent can best be appreciated if examined in the revealing light of the specific circumstances of the present case.
The Tax Court and the Court of Appeals have approved respondent’s actuarial computations as fairly reflecting the present value of one-half of a two-million-dollar residue, reduced in proportion to the chance that charity will receive it. In making this estimate, respondent has computed the present value of the deferred bequest on the basis of 4% interest compounded annually and has used the following actuarial tables:
1. To determine the joint life expectancy of decedent’s wife and daughter, the Combined Experience Mortality Table prescribed in § 81.10 of the estate tax regulations.
2. To estimate the probability of remarriage of the daughter, the American Remarriage Table, published by the Casualty Actuarial Society.
3. To estimate the chance of a first child being born to decedent’s daughter, a specially devised table which has been found by the Tax Court to have been prepared in accordance with accepted actuarial principles upon data derived from statistics published by the Bureau of the Census.
On the basis of these tables, the Tax Court finds that the present value of the charitable remainder at the death of decedent is .18384 on the dollar if computed solely on the chances of his daughter’s remarriage; .24094 on the dollar if computed on the chance that a legitimate descendant of his daughter will survive her; and .24058 on the dollar if computed on the chance that any legitimate or illegitimate descendant of his daughter will survive her. It is this last estimate that respondent seeks to apply here.
If respondent is successful, it means the allowance of an immediate and irrevocable deduction of over $175,000 from the gross estate of decedent, although respondent admits there is a real possibility that charity will receive nothing. The bequest, in fact, offers to the daughter an inducement of about $2,000,000 to remarry and leave a descendant. To the extent that this inducement reduces the actuarially computed average probability that charity will receive this bequest, it further demonstrates the inappropriateness of authorizing charitable tax deductions based upon highly conditional bequests to charity.
An even clearer illustration of the effect of respondent’s interpretation of the code readily suggests itself. If decedent had here conditioned his bequest to charity solely on the death of his daughter before remarriage, the Remarriage Table would then fix the present value of the charitable remainder at .18384 on the dollar. The taxpayer would at once receive a substantial charitable deduction on that basis. The daughter, however, would have a $2,000,000 inducement to remarry. If she did so, her action would cancel the possibility that charity would receive anything from the bequest, but it would not cancel the tax deduction already allowed to the estate. To whatever extent any person can defeat the fulfillment of any condition upon which a benefit to charity depends, to that extent the actuarial estimate that such benefit will reach charity is less dependable. The allowance of such a tax reduction as is here sought would open a door to easy abuse. The result might well be not so much to encourage gifts inuring to the benefit of charity as to encourage the writing of conditions into bequests which would assure charitable tax deductions without assuring benefits to charity.
We find no suggestion of authority for such a deduction in § 812(d). That section remains substantially the same as it was when Humes v. United States, supra, 276 U. S. 487, was decided. We also find no authorization for the deduction either in § 81.46 or § 81.44 of the regulations, as thus far discussed. This relegates respondent to the following words now in § 81.44 (d):
“If the present worth of a remainder bequeathed for a charitable use is dependent upon the termination of more than one life, or in any other manner rendering inapplicable Table A or B of § 81.10, the claim for the deduction must be supported by a full statement, in duplicate, of the computation of the present worth made, in accordance with the principle set forth in § 81.10, by one skilled in actuarial computations.” (Emphasis supplied.)
In view of the statutory emphasis upon outright bequests and the long-standing exclusion of conditional bequests by § 81.46 of the regulations (and its predecessors), we do not regard the above sentence as now invading the domain of § 81.46 by extending the deduction to conditional bequests in a manner readily open to abuse. We regard the sentence as restricted to computations of deferred, but assured, bequests. Section 81.10 (i) now deals at length with the valuation of remainders and reversionary interests and gives many examples of such computations. Every example, however, is one of the valuation of an assured bequest. The additional language in § 81.44 (d), quoted above, does not authorize the deduction, and § 81.46 prohibits it. Such specific and established administrative interpretation of the statute is valid and “should not be overruled except for weighty reasons.” Commissioner v. South Texas Co., 333 U. S. 496, 501.
This Court has not specifically faced the issue now before us since Humes v. United States, supra, but we see no reason to retreat from the views there stated. This Court finds no statutory authority for the deduction from a gross estate of any percentage of a conditional bequest to charity where there is no assurance that charity will receive the bequest or some determinable part of it. Where the amount of a bequest to charity has not been determinable, the deduction properly has been denied. Henslee v. Union Planters Bank, 335 U. S. 595, 598-600; Merchants Bank v. Commissioner, 320 U. S. 256, 259-263; and see Robinette v. Helvering, 318 U. S. 184, 189. Where the amount has been determinable, the deduction has, with equal propriety, been allowed where the designated charity has been sure to benefit from it. United States v. Provident Trust Co., 291 U. S. 272; Ithaca Trust Co. v. United States, 279 U. S. 151.
Some of the lower courts have squarely met the instant problem and denied the deduction. For example, the deduction was denied in the First Circuit where the court found that “it is not certain that the charity will take 50% of the corpus; only that it has a 50-50 chance of getting all or nothing." Newton Trust Co. v. Commissioner, 160 F. 2d 175, 181. See also, Graff v. Smith, 100 F. Supp. 42; Hoagland v. Kavanagh, 36 F. Supp. 875; Wood v. United States, 20 F. Supp. 197. The administrative practice, as evidenced here by the action of the Commissioner, has been to deny the deduction. See further, Paul, Federal Estate and Gift Taxation (1946 Supp.), 426-427.
The judgment of the Court of Appeals, accordingly, is reversed and the cause remanded for action in conformity with this opinion.
Reversed.
These provisions appear more fully in Estate of Sternberger v. Commissioner, 18 T. C. 836, 837-838.
Originally § 403 (a) (3) of the Revenue Act of 1918, 40 Stat. 1098. See also, Griswold, Cases and Materials on Federal Taxation (3d ed.), 679 et seq.; 1 Paul, Federal Estate and Gift Taxation, 638 et seq.
Its latest reenactment is in § 2055 (a) of the Internal Revenue Code of 1954, 68A Stat. 390. The purpose of the deduction is to encourage gifts to the named uses. Edwards v. Slocum, 264 U. S. 61, 63; 13 Geo. Wash. L. Rev. 198, 201; 28 Va. L. Rev. 387-388. Like other tax deductions, however, it must rest on more than a doubt or ambiguity. See United States v. Stewart, 311 U. S. 60, 71, and also Commissioner v. Jacobson, 336 U. S. 28, 49.
Section 408 (a) of the Revenue Act of 1942, 56 Stat. 949, added to I. R. C., § 812(d), the so-called “disclaimer provision,” whereby, under certain conditions, the renunciation of a private bequest which effectuates a gift to charity earns a charitable deduction from the decedent's gross estate.
"Art. 53. Public, charitable, and similar bequests. — . . . It does not prevent deduction . . . that the property placed in trust is also subject to another trust for a private purpose. Thus, where money or property is placed in trust to pay the income to an individual during life, and then to pay or deliver the same to a charitable corporation, or apply the principal to a charitable purpose, the charitable bequest or devise forms the basis for a deduction. The amount of the deduction, in such case, is the value, at the date of the decedent’s death, of the remainder interest in the money or property which is devised or bequeathed to charity. For the manner of determining the value of such remainder interest, see Article 20.” 21 T. D. 783-784.
Article 20 prescribed methods of determining the present worth of a remainder subject to a single life interest.
Congressional insistence upon the actual use of the funds exclusively for charitable purposes appears in the following provisions describing the bequests that are deductible:
“The amount of all bequests ... to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes ... no part of the net earnings of which inures to the benefit of any private stockholder or individual ... or to a trustee or trustees, or a fraternal society, order, or association operating under the lodge system, but only if such contributions or gifts are to be used . . . exclusively for religious, charitable, scientific, literary, or educational purposes . . . .” (Emphasis supplied.) I. R. C., §812 (d).
“Art. 56. Conditional bequests. — Where the bequest, legacy, devise, or gift is dependent upon the performance of some act, or the happening of some event, in order to become effective it is necessary that the performance of the act or the occurrence of the event shall have taken place before the deduction can be allowed. Where, by the terms of the bequest, devise or gift, it is subject to be defeated by a subsequent act or event, no deduction will be allowed.” 21 T. D. 785.
United States v. Provident Trust Co., 291 U. S. 272. See also, Hoagland v. Kavanagh, 36 F. Supp. 875; Ninth Bank & Trust Co. v. United States, 15 F. Supp. 951.
Despite the conclusions of the Tax Court and the Court of Appeals to the contrary, the Government contends here that the proposed actuarial value of the conditional remainder to charity does not support the deduction. We do not reach that issue, but the facts material to it are as follows: The Remarriage Table is based on a study of American experience conducted by a Committee of the Casualty Actuarial Society, 19 Proceedings of the Casualty Actuarial Society (1933), 279-349. The table is based solely upon the remarriage experience of widows who, through the deaths of their husbands, become beneficiaries under workmen's compensation laws in states where they lose compensation benefits upon remarriage. The reports relied upon cover experience for policy years 1921 to 1929, inclusive. See id., at 286-288, 298. See also, Myers, Further Remarriage Experience, 36 Proceedings of the Casualty Actuarial Society (1949), 73 et seq. The specially devised table as to the probability of issue is based upon statistics, for white women in 47 states and the District of Columbia, indicating the degree of probability that such women, after they are 27 years old, will marry and have first-born children. See the following Bureau of the Census publications for 1940; Vital Statistics of the United States, Pt. II, 89; Nativity and Parentage of the White Population — General Characteristics 110; Types of Families 9. The instant computation assumes that such a child will survive its mother. 18 T. C. 836, 837-838. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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68
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FEDERAL POWER COMMISSION v. COLORADO INTERSTATE GAS CO.
No. 45.
Argued January 31, 1955.
Decided March 28, 1955.
Assistant Attorney General Burger argued the cause for petitioner. With him on the brief were Solicitor General Sobelojf, Melvin Richter, Willard W. Gatchell, Lambert McAllister and Jacob Goldberg.
James Lawrence White argued the cause for respondent. With him on the brief were William A. Dougherty, John P. Akolt, Sr., John R. Turnquist, Charles E. McGee and Lewis M. Poe.
Mr. Justice Burton
delivered the opinion of the Court.
The principal question before us is whether, on a petition to review a natural gas rate reduction order of the Federal Power Commission, a Court of Appeals may consider, sua sponte, an objection which has not been urged before the Commission in the application for rehearing prescribed by § 19 of the Natural Gas Act. Alternatively, a question also is raised whether, in such a rate proceeding, a Court of Appeals may invalidate, sua sponte, an existing order of the Commission, which prohibits the inclusion of certain operating expenses of the natural gas company in its cost of service, where such order not only has been proposed and acquiesced in by the company, but has been imposed on it by the Commission as a condition of a merger under which the company is operating. For the reasons hereafter stated, we answer each of these questions in the negative.
In 1948, the Federal Power Commission, petitioner herein, instituted a rate investigation against respondent, the Colorado Interstate Gas Company, under § 5 (a) of the Natural Gas Act, 52 Stat. 823-824, 15 U. S. C. § 717d (a). While this was pending, respondent and the Canadian River Gas Company filed a joint application under § 7 of the same Act, 52 Stat. 824-825, as amended, 15 U. S. C. § 717f. That application sought a certificate of public convenience and necessity permitting respondent to merge with the latter company, acquire and operate its properties, and construct additional facilities. Objection was made that consumers, receiving natural gas from respondent, might be forced by this merger to share respondent’s loss if the costs of certain gasoline operations to be undertaken by it exceeded its revenues from them. To meet this objection, respondent proposed that the Commission, in any natural gas rate proceeding, exclude such loss from the company’s cost of service.
March 1, 1951, the Commission wrote in the above proposal as a condition of its certification of the merger. 10 F. P. C. 105, 778. No review was sought. The merger was consummated and respondent has enjoyed its benefits since December 31,1951.
The rate investigation was resumed in 1951 and the year 1952 became the test year. The usual intermediate decision was omitted and, on August 8, 1952, the Commission issued its findings and rate order. 95 P. U. R. (N. S.) 97. In that proceeding, respondent had argued for a “volumetric”- allocation of gasoline costs which, in 1952, would result in a showing of no loss suffered by it from the gasoline operations in question. The Commission, however, had declined to adopt that method and had applied, a “relative market value method” of allocating costs. This showed a loss of $421,537 from such operations and, pursuant to its merger order, the Commission held that such loss “shall not be considered as a part of the cost of service which we have heretofore determined.” On that basis, the Commission found respondent’s total cost of service, in 1952, to be $14,952,567, including federal taxes of $185,599 and the proceeds of a 5.75% rate of return ($3,280,317 on a rate base of $57,048,988). Deducting that cost from its gas service revenues of $17,-962,532 left respondent with excess revenues of over $3,000,000. The Commission accordingly ordered a rate reduction eliminating that excess. Id., at 127.
Respondent applied for a rehearing pursuant to § 19 (a) of the Natural Gas Act. The application stated respondent’s objections to the Commission’s allocation of the expense of the gasoline operations and a claim that, if the costs were properly allocated, there would be no resulting loss. Respondent complained further that the Commission’s computation, in effect, reduced the company’s rate of return from 5.75% to 5.01%. At no point did respondent contend that the Commission’s order excluding respondent’s loss from gasoline operations from its cost of service was invalid. Upon consideration of the application, the Commission denied the rehearing and modified the new rates only to a slight degree not material here.
On respondent’s petition for review by the Court of Appeals for the Tenth Circuit, that court generally upheld the Commission’s findings and order. It accepted the Commission’s method of allocating respondent’s gasoline costs and the computation which fixed the resulting loss at $421,537. However, the court held, sua sponte, that, despite the action taken in the merger proceeding, this loss must be added to respondent’s cost of service. The court therefore reversed the Commission’s order and remanded the cause for further proceedings. 209 F. 2d 717. After reargument, the court reaffirmed its position. 209 F. 2d 732. Recognizing the importance of such a result in relation to the judicial review of administrative orders, we granted the Commission’s petition for certiorari but denied respondent’s cross-petition. 347 U. S. 1009; 348 U. S. 818, 884. 28 U. S. C. § 1254 (1); 52 Stat. 831-832, 15 U. S. C. § 717r (b).
The Natural Gas Act prescribes explicitly the procedure to be followed by any person seeking judicial review of an order of the Federal Power Commission, and limits the scope of that review as follows:
“Sec. 19. (a) Any person . . . aggrieved by an order issued by the [Federal Power] Commission in a proceeding under this Act to which such person ... is a party may apply for a rehearing within thirty days after the issuance of such order. The application for rehearing shall set forth specifically the ground or grounds upon which such application is based. . . . No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon.
“(b) . . . No objection to the order of the Commission shall be considered by the court [o/ Appeals] unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure so to do. . . .” (Emphasis supplied.) 52 Stat. 831-832, 15 U. S. C. § 717r (a) and (b).
Respondent first contends that its application for a rehearing by the Commission did, in substance, object to the validity of the merger condition and thus did meet the requirements of § 19 (b). We find, however, that in such application, respondent objected to the exclusion of the loss of $421,537 from gasoline operations merely on the ground that the Commission’s certificate approving the merger required a “proper allocation” of the costs, and that the method of allocation chosen by the Commission was not “proper.” Respondent also unsuccessfully proposed an alternative method of allocation, which would eliminate the loss. In passing upon these contentions, the Commission assumed, as did respondent, that any properly computed loss resulting from the gasoline operations was to be excluded from the cost of service. Respondent's objection thus gave no notice that respondent was attacking the validity of the merger condition. The same is true of respondent’s objection to the Commission’s treatment of its income taxes, and of respondent’s claim that the ultimate effect of the Commission’s order was to reduce its net share of the proceeds of the rate of return from one of 5.75% to one of 5.01%. These were bids for a higher rate of return or for a recomputation of the loss from the gasoline operations, not claims that the merger condition was invalid.
Respondent’s second and principal contention is that, although its application did not meet the requirements of § 19 (b) and it therefore is barred from attacking the validity of the merger condition in the Court of Appeals, nothing precludes that court itself from raising, considering and sustaining the same objection, sua sponte. Respondent’s error appears on the face of the statute. Section 19 (a) first precludes the bringing of any proceeding in a Court of Appeals to review an order of the Commission, unless the person bringing it previously has applied to the Commission for a rehearing on that order. Section 19 (b) then expressly precludes the consideration by the court of any objection to an order of the Commission, unless the objection shall have been urged before the Commission in the application for rehearing. As the court is thus expressly precluded from considering an objection when, without prior application to the Commission, that objection is presented to the court by the party directly aggrieved, it cannot be assumed that Congress intended to permit the same court to consider the same objection, under the same circumstances, sua sponte, merely because the objection was not presented to the court by the party aggrieved. Section 19 (b) reflects the policy that a party must exhaust its administrative remedies before seeking judicial review. To allow a Court of Appeals to intervene here on its own motion would seriously undermine the purpose of the explicit requirements of § 19 (b) that objections must first come before the Commission.
Section 10 (e) of the Administrative Procedure Act does not require a different result. That Act purports to strengthen, rather than to weaken, the principle requiring the exhaustion of administrative remedies before permitting court review. The Senate Committee, recommending the bill for that Act, said:
“A party cannot wilfully fail to exhaust his administrative remedies and then, after the agency action has become operative, either secure a suspension of the agency action by a belated appeal to the agency, or resort to court without having given the agency an opportunity to determine the questions raised. If he so fails he is precluded from judicial review by the application of the time-honored doctrine of exhaustion of administrative remedies. . . .” (Emphasis supplied.) S. Doc. No. 248, 79th Cong., 2d Sess. 289, n. 21.
Furthermore, § 10, by its own terms, is made inapplicable in “so far as (1) statutes [as here] preclude judicial review,” and § 10 (e) applies only to situations where the question at issue has been properly “presented,” as has not been done here. It is not a reasonable interpretation of the general terms of that Act to hold that they repeal the administrative procedures specifically set forth in the Natural Gas Act.
“We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts.” United States v. Tucker Truck Lines, 344 U. S. 33, 36-37. See also, Riss & Co. v. United States, 341 U. S. 907; Wong Yang Sung v. McGrath, 339 U. S. 33; United States v. Capital Transit Co., 338 U. S. 286, 291; Unemployment Compensation Commission v. Aragon, 329 U. S. 143, 155.
The necessity for prior administrative consideration of an issue is apparent where, as here, its decision calls for the application of technical knowledge and experience not usually possessed by judges. The Federal Power Commission is an administrative agency the decisions of which involve those difficult problems of policy, accounting, economics and special knowledge that go into public utility rate making. For reviewing a rate made by the Federal Power Commission, the Court of Appeals has no inherent suitability comparable to that which it has for reviewing the judicial decisions made by a United States District Court.
Respondent further suggests that to limit the judicial review of the Court of Appeals to those objections which have been urged specifically before the Commission prevents that court from reviewing effectively the “end result” of the rate order. See Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591. To accept that argument would wipe out at a single stroke the expressly prescribed policy of § 19 (b). Not only would such acceptance be contrary to the terms of the statute, but it would fail to recognize the fundamental consideration that it is not the function of a court itself to engage in rate making.
Returning to the language of § 19, we hold that the Court of Appeals does not here have authority, either under § 19 or sua sponte, to reverse the Commission by overruling its exclusion of $421,537 of gasoline production expense from respondent’s cost of service for rate purposes.
As an alternative ground for reversal, the Commission also contends that the Court of Appeals is here precluded from redetermining the validity of the merger condition because of respondent’s and the Commission’s previous conduct in approving it. Cf. United States v. Hancock Truck Lines, 324 U. S. 774, 778-780. In 1950, respondent proposed this condition in its merger proceeding. That merger had many facets and a difference of opinion existed within the Commission on its merits. 10 F. P. C. 105, 119. In 1951, the condition before us became an important factor in securing the Commission’s finding that the merger would be in the public interest. Id., at 780. After the merger was approved on that condition, respondent sought no review of it. On the other hand, respondent consummated the merger and has enjoyed its benefits ever since. It cannot now be allowed to attack an officially approved condition of the merger while retaining at the same time all of its benefits. The impropriety of the attack is rendered twofold because it is not made in the merger proceeding but is attempted in a separate rate proceeding. While respondent also charges that, under the Commission’s allocation of gasoline costs and the condition requiring the company to absorb them, the rate of return is reduced from 5.75% to 5.01% and is therefore unreasonable and confiscatory, we do not sustain that charge.
The judgment of the Court of Appeals accordingly is
Reversed.
Mr. Justice Harlan took no part in the consideration or decision of this case.
52 Stat. 831-832, as amended, 15 U. S. C. § 717r. The material provisions of § 19 (a) and (b) are set forth in the body of this opinion at p. 497, infra. For related litigation not material to the issues now presented, see Colorado Interstate Gas Co. v. Federal Power Commission, and Canadian River Gas Co. v. Federal Power Commission, 324 U. S. 581, and Colorado-Wyoming Gas Co. v. Federal Power Commission, 324 U. S. 626.
The proposal in respondent’s letter of June 8, 1950, to the Commission, was that “in order to keep a rate payer from meeting this deficiency the- Commission could condition the certificate of public convenience and necessity so as in effect to provide that such deficit would not be considered in determining reasonable rates. In other words, the stockholders of Colorado Interstate Gas Company would take the risk as to whether or not gasoline prices will go down.”
“(i) The authorization herein granted for effectuating the acquisition and operation of Canadian’s properties and facilities is upon the express understanding and condition that if, as a result of carrying out the terms and conditions in the transaction proposed as a part of the acquisition and merger of Canadian into Colorado whereby rights to liquid hydrocarbons in place are granted to Southwestern Development Co. and whereby Colorado is to receive 50 percent of the gross proceeds from the sale of certain liquid hydrocarbons and 15 percent of the net revenue to be received by Colorado from the hydrocarbons resulting from the operation of Fritsch Natural Gasoline Plant of Texoma Natural Gas Co., the costs properly allocable to such hydrocarbons exceed the amounts payable to Colorado pursuant to such transaction, then and in that case in any proceeding in which the effective or proposed rates of Colorado are under inquiry such excess shall not be considered as a cost of service to Colorado’s natural gas customers and consumers." (Emphasis supplied.) 10 F. P. C., at 780.
“. . . Petitioner, moreover, failed to object in its application for rehearing before the Commission to the inclusion of its producing properties and gathering facilities in the rate base. It is accordingly precluded by § 19 (b) of the Act from attacking the order of the Commission on the ground that they are included.” Panhandle Co. v. Federal Power Commission, 324 U. S. 635, 649, and see 650-651. See also, Labor Board v. Cheney Lumber Co., 327 U. S. 385, 388-389, and Labor Board v. Seven-Up Co., 344 U. S. 344, where failure to preserve the issue by objection before the agency was treated as a bar to the judicial consideration of it.
“Sec. 10. Except so jar as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion—
“(e) Scope op review. — So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required bylaw; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error.” (Emphasis supplied.) 60 Stat. 243-244, 5 U. S. C. § 1009 (e). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
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"Central Intelligence Agency",
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"Department of Justice or Attorney General",
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"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
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"Federal Trade Commission",
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"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
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"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
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"Securities and Exchange Commission",
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"NO Admin Action",
"Processing Tax Board of Review"
] | [
51
] |
UNITED STATES v. MICHIGAN NATIONAL CORP. et al.
No. 73-1737.
Decided October 21, 1974
Per Curiam.
This is an appeal from an order of the District Court dismissing without prejudice the Government’s suit under § 7 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 18, to enjoin a bank holding company’s acquisition. Appellee Michigan National Corporation (MNC), a bank holding company that owns five Michigan banks, seeks control of four additional Michigan banks. The planned acquisition will take the following form. MNC will charter four “phantom” banks, initially having no assets or deposits, whose stock it will acquire. The four target banks will be merged with the phantom banks, thereby becoming subsidiary banks of the holding company.
The form of the transaction brings it within the purview of .two regulatory statutes. Section 3 of the Bank Holding Company Act of 1956, 70 Stat. 134, as amended, 80 Stat. 237, 12 U. S. C. § 1842, requires that an acquisition of a subsidiary bank by a holding company be approved by the Board of Governors of the Federal Reserve System. Section 18 (c) (2) (A) of the Federal Deposit Insurance Act, as amended by the Bank Merger Act, 80 Stat. 7, 12 U. S. C. § 1828 (c)(2)(A), requires approval of bank mergers by a designated agency, which in the case of an acquisition by a national bank is the Comptroller of the Currency. Each regulatory statute provides time limitations for antitrust suits challenging transactions that have gained administrative approval. The Bank Holding Company Act, § 11, as amended, 80 Stat. 240, 12 U. S. C. § 1849, provides that an antitrust suit arising from a holding company acquisition must be brought within 30 days of approval by the Federal Reserve Board. The Bank Merger Act, 12 U. S. C. §§ 1828 (c) (6) and (7), establishes a similar 30-day period following approval of a merger by the designated administrative body. Under both statutes, transactions having administrative approval cannot go forward during the period within which an antitrust suit may be brought, or during the pendency of a timely antitrust suit unless the court otherwise orders. The expiration of the period without the filing of an antitrust suit, however, allows the transacting parties to consummate arrangements without fear of challenge.
MNC made applications to both the Federal Reserve Board and the Comptroller for approval of its proposed transactions. Disapproval by either body would prevent MNC from completing the entire acquisition as planned. In October 1973 the Federal Reserve Board approved the acquisitions by the holding company. Without awaiting action by the Comptroller, the Government filed complaints, under the Clayton Act to enjoin the acquisition; the suit was brought within the 30-day period prescribed by § 11 of the Bank Holding Company Act. The District Court dismissed the complaints without prejudice, ruling that the Government should bring a new lawsuit if and when the Comptroller approved the merger of the target banks with the “phantoms.” The Government took a direct appeal to this Court, 32 Stat. 823, 15 U. S. C. § 29.
The District Court reasoned that the Government’s suit was “premature,” since a disapproval by the Comptroller would moot the Clayton Act claim. Whether viewed as a dismissal for lack of a “case or controversy” or as an exercise of equitable discretion, we believe the District Court’s action was error.
The view that the possibility of disapproval by the Comptroller deprived the District Court of an actual controversy to adjudicate, a position taken by appel-lees below, cannot be squared with the many decisions permitting a federal court to stay proceedings in a case properly before it while awaiting the decision of another tribunal. This is the holding of Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941), which launched the abstention doctrine. Pullman held that where an order of the Texas Railroad Commission was challenged in a District Court as violative of the Fourteenth Amendment and as outside the Commission’s authority under state law, the federal court should stay proceedings pending a resolution by the Texas courts of the state law question of the Commission’s authority. In succeeding cases that have applied the Pullman doctrine, the common practice has been for the district court to retain jurisdiction but to stay proceedings while awaiting a decision in the state courts. See, e. g., Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168 (1942); Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101 (1944); Government & Civic Employees Organizing Committee v. Windsor, 353 U. S. 364 (1957); Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25 (1959); England v. Louisiana State Board of Medical Examiners, 375 U. S. 411 (1964) ; Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498 (1972). That a favorable decision in the state court might moot the plaintiff’s constitutional claim brought to the federal court was never thought to create any jurisdictional impediment. For jurisdictional purposes, it suffices that there is a “real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 241 (1937).
The same procedure has generally been followed when the resolution of a claim cognizable in a federal court must await a determination by an administrative agency having primary jurisdiction. See Carnation Co. v. Pacific Westbound Conference, 383 U. S. 213, 222-224 (1966); General American Tank Car Corp. v. El Dorado Terminal Co., 308 U. S. 422, 432-433 (1940); Mitchell Coal Co. v. Pennsylvania R. Co., 230 U. S. 247 (1913). Dismissal rather than a stay has been approved where there is assurance that no party is prejudiced thereby. See Far East Conference v. United States, 342 U. S. 570 (1952).
In the present case we cannot say with assurance that the Government will not be prejudiced by a dismissal. Section 11 of the Bank Holding Company Act provides that “[a]ny action brought under the antitrust laws arising out of an acquisition, merger, or consolidation transaction” shall be commenced within the 30-day period following approval by the Board. 12 U. S. C. § 1849 (b) (emphasis added). By the time the Comptroller approves the mergers, the 30-day period following Board approval may have long since expired. By waiting for approval of the Comptroller before filing its lawsuit, the Government runs the risk that complete relief will be barred by the provisions of § 11. MNC disputes this, arguing that so long as the Government brings suit following the Comptroller’s approval within the time prescribed by the Bank Merger Act, it will be able to challenge the merger of the target banks with the “phantoms,” the only event which gives the transaction competitive significance.
Congress does not appear to have considered expressly the application of the time limitations to transactions falling within both regulatory statutes. While the question is not free from doubt, there is a procedure that preserves beyond doubt the Government’s ability fully to pursue its Clayton Act suit and at the same time produces no hardship to the other party. Where suit is brought after the first administrative decision and stayed until remaining administrative proceedings have concluded, judicial resources are conserved and both parties fully protected.
The judgment of the District Court is vacated and the case remanded for the entry of further orders consistent with this opinion.
So ordered.
Shorter periods are prescribed by the Bank Merger Act when the designated agency finds that expedition of the transaction is necessary “to prevent the probable failure of one of the banks involved.” 12 U. S. C. §§1828 (c)(4) and (6).
We may put to one side cases where the administrative agency has exclusive jurisdiction to consider the complaint initially brought in court, e. g., Pan American World Airways v. United States, 371 U. S. 296 (1963), or those in which Congress, by depriving the agency of a remedy, is deemed to have withheld it from the courts as well, e. g., Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U. S. 246 (1951). In such cases, the court must of course dismiss the action.
On May 16, 1974, nearly three months after the District Court dismissed the case, the Comptroller approved the merger of two target banks with their corresponding “phantoms.” The Government filed a new Clayton Act complaint against the approved mergers within the period prescribed by the Bank Merger Act.. The District Court has not yet ruled on a motion by MNC to dismiss that complaint because of the pendency of this appeal. The Comptroller has made no decision on MNC’s proposed mergers involving the two remaining target banks.
Though the two statutes of limitations were enacted in the same year, there is no indication in the legislative history that Congress considered their relationship in the case of a transaction within the purview of both regulatory acts. See S. Rep. No. 299, 89th Cong., 1st Sess. (1965), and H. R. Rep. No. 1221,89th Cong., 2d Sess. (1966) (Bank Merger Act); S. Rep, No. 1179, 89th Cong., 2d Sess. (1966), and H. R. Rep. No. 534, 89th Cong., 1st Sess. (1965) (Bank Holding Company Act).
Because proceedings in the District Court would be stayed, MNC’s assertion that the lawsuit “placed the defendants in the position of having to prepare to defend, in an antitrust action, transactions which they did not have regulatory approval to consummate,” is simply a makeweight. (Motion to Affirm 6.) | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
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"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
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"Unidentifiable",
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"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
53
] |
UNITED STATES v. PHILLIPSBURG NATIONAL BANK & TRUST CO. et al.
No. 1093.
Argued April 28, 1970
Decided June 29, 1970
Deputy Solicitor General Friedman argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General McLaren, Lawrence G. Wallace, and Howard E. Shapiro.
Robert B. Meyner argued the cause for appellees Phillipsburg National Bank & Trust Co. et al. With him on the brief were Thomas D. Hogan and Michael S. Waters. Philip L. Roache, Jr., argued the cause for appellee Camp, Comptroller of the Currency. With him on the brief were Robert Bloom and Charles H. Mc-Enerney, Jr.
Me. Justice Brennan
delivered the opinion of the Court.
This direct appeal under the Expediting Act, 15 U. S. C. § 29, is taken by the United States from a judgment of the District Court for the District of New Jersey dismissing, after full hearing, the Government’s complaint seeking to enjoin as a violation of § 7 of the Clayton Act, 15 U. S. C. § 18, the proposed merger of appellees, Phillipsburg National Bank and Trust Co. (PNB) and the Second National Bank of Phillipsburg (SNB), both located in Phillipsburg, New Jersey. The Comptroller of the Currency, also an appellee here, approved the merger in December 1967 and intervened in this action to defend it, as he was authorized to do by the Bank Merger Act of 1966, 12 U. S. C. § 1828 (c) (7) (D) (1964 ed., Supp. V). The Bank Merger Act required that the District Court engage in a two-step process, United States v. First City National Bank of Houston, 386 U. S. 361 (1967); United States v. Third National Bank in Nashville, 390 U. S. 171 (1968), the first of which was to decide whether the merger would violate the antitrust prohibitions of § 7 of the Clayton Act. If the court found that § 7 would be violated, then the Bank Merger Act required that the District Court decide whether “the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” 12 U. S. C. § 1828 (c) (5) (B). The District Court found that the United States “failed to establish by a preponderance of the evidence that the proposed merger would have any anticompetitive effect and, further, that even if there were de minimis anticompetitive effect in the narrowly drawn market proposed by the government, such effect is clearly outweighed by the convenience and needs of the community to be served by the merged bank.” 306 F. Supp. 645, 667 (1969). We noted probable jurisdiction. 397 U. S. 933 (1970). We reverse. We have concluded from our examination of the record that the District Court erred in its definitions of the relevant product and geographic markets and that these errors invalidate the court’s determination that the merger would have no significant anticompetitive effects.
I
The Factual Setting
Phillipsburg is a small industrial city on the Delaware River in the southwestern corner of Warren County, New Jersey. Its population was 18,500 in 1960, 28,500 counting the population of its bordering suburbs. Although the population of the suburbs is and has been increasing, Phillipsburg itself has not grown. Easton, Pennsylvania, lies directly across the river. It had a population of 32,000 in 1960, 60,000 counting its bordering suburbs. Its population growth pattern has paralleled that of Phillipsburg. The cities are linked by two bridges and the testimony was that they are “in effect... one town.”
This “one town” has seven commercial banks, four in Easton and three in Phillipsburg. PNB and SNB are respectively the third and fifth largest in overall banking business. All seven fall within the category of small banks, their assets in 1967 ranging from $13,200,000 to $75,600,000. PNB, with assets then of approximately $23,900,000, and SNB with assets of approximately $17,300,000, are the first and second largest of the three Phillipsburg banks. The merger would produce a bank with assets of over $41,100,000, second in size of the six remaining commercial banks in “one town.”
PNB and SNB are direct competitors. Their main offices are opposite one another on the same downtown street. SNB’s only branch is across a suburban highway from one of PNB’s two branches. Both banks offer the wide range of services and products available at commercial banks, including, for instance, demand deposits,
savings and time deposits, consumer loans, commercial and industrial loans, real estate mortgages, trust services, safe deposit boxes, and escrow services. As is characteristic of banks of their size operating in small communities, PNB and SNB have less of their assets in commercial and industrial loans than do larger banks. They emphasize real estate loans and mortgages, and they have relatively more time and savings deposits than demand deposits. Similarly, their trust assets are quite small. In short, both banks are oriented toward the needs of small depositors and small borrowers. Thus, in 1967 75% of PNB’s number of deposits and 73% of SNB’s were $1,000 or less; 98% of PNB’s number of deposits and 97% of SNB’s were $10,000 or less. Similarly, 75% of PNB’s number of loan accounts and 59% of SNB’s were $2,500 or less, and 93% and 87% respectively were $10,000 or less.
Both banks serve predominantly Phillipsburg residents. In 1967, although 91.6% of PNB’s and 92% of SNB’s depositors were residents of “one town,” only 5,3% of PNB’s and 9% of SNB’s depositors lived in Easton. And, although 78.6% of PNB’s and 87.2% of SNB’s number of loans were made to residents of “one town,” only 14.8% and 11.6% respectively went to persons living in Easton. A witness testified that all of the approximately 8,500 Phillipsburg families deal with one or another of the three commercial banks in that city. The town’s businessmen prefer to do the same. The preference for local banks was strikingly evidenced by the fact that PNB and SNB substantially increased their savings deposit accounts during 1962-1967, even though their passbook savings rates were lower than those being paid by other readily accessible banks. At a time when Phil-lipsburg banks were paying 3.5% interest and Easton banks only 3%, other banks within a 13-mile radius were offering 4%.
Phillipsburg-Easton is in the northeastern part of the Lehigh Valley, a region of approximately 1,000 square miles, with a population of 492,000 in 1960 and 38 commercial banks in June 1968. There is considerable mobility among residents of the area for social, shopping, and employment purposes. Customer preference and conservative banking practices, however, have tended to limit the bulk of each commercial bank’s business to its immediate geographic area. Neither PNB nor SNB has aggressively sought business outside “one town.” Similarly, most other banks in the Lehigh Valley have shown little interest in seeking customers in Phillipsburg-Easton. The District Court found that “[t]here is an attitude of complacency on the part of many banks [in the Valley]. They are content to continue outmoded banking practice and reluctant to risk changes which would improve service and extend services over a greater area to a larger segment of the population.” 306 F. Supp., at 661.
The merger would reduce the number of commercial banks in “one town” from seven to six, and from three to two in Phillipsburg. The merged bank would have five of the seven banking offices in Phillipsburg and its environs and would be three times as large as the other Phillipsburg bank; it would have 75.8% of the city’s banking assets, 76.1% of its deposits, and 84.1% of its loans. Within Phillipsburg-Easton PNB-SNB would become the second largest commercial bank, having 19.3% of the total assets, 23.4% of total deposits, 19.2% of demand deposits, and 27.3% of total loans. This increased concentration would give the two largest banks 54.8% of the “one town” banking assets, 64.8% of its total deposits, 63.3% of demand deposits, 63% of total loans, and 10 of the 16 banking offices.
We entertain no doubt that this factual pattern requires a determination whether the merger passes muster under the antitrust standards of United States v. Philadelphia National Bank, 374 U. S. 321 (1963), which were preserved in the Bank Merger Act of 1966. United States v. First National Bank of Houston, supra; United States v. Third National Bank in Nashville, supra. Mergers of directly competing small commercial banks in small communities, no less than those of large banks in large communities, are subject to scrutiny under these standards. Indeed, competitive commercial banks, with their cluster of products and services, play a particularly significant role in a small community unable to support a large variety of alternative financial institutions. Thus, if anything, it is even more true in the small town than in the large city that “if the businessman is denied credit because his banking alternatives have been eliminated by mergers, the whole edifice of an entrepreneurial system is threatened; if the costs of banking services and credit are allowed to become excessive by the absence of competitive pressures, virtually all costs, in our credit economy, will be affected . . . .” Philadelphia Bank, 374 U. S., at 372.
When PNB and SNB sought the Comptroller’s approval of their merger, as required by the Bank Merger Act, 12 U. S. C. § 1828 (c), independent reports on the competitive factors involved were obtained, as required by § 1828 (c)(4), from the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Attorney General. All three viewed the problem as involving commercial banking in Phillipsburg-Easton and reported that the merger would have a significantly harmful effect upon competition in that area. The Comptroller nevertheless approved the merger, finding that the agencies had defined the product and geographic markets too narrowly. He treated not Phillipsburg-Easton but most of the Lehigh Valley as the relevant geographic area, and evaluated competition from 34 finance companies and 13 savings and loan institutions, as well as from the more than 30 commercial banks in the area. The Comptroller concluded that the merger would have no significant anticompetitive effect and, further, that it would enable the resultant bank to serve more effectively the convenience and needs of the community.
II
The Product Market
In Philadelphia Bank we said that the “cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term 'commercial banking’ . . . composes a distinct line of commerce.” 374 U. S., at 356. As indicated, PNB and SNB offer the wide range of products and services customarily provided by commercial banks. The District Court made no contrary finding, and, in its actual evaluation of the effect of the merger upon competition, the court looked only to commercial banking as the relevant product market. See 306 F. Supp., at 655-661.
Earlier in its opinion, however, the District Court appeared to reject commercial banking as the appropriate line of commerce. Rather than focusing its attention upon the effect of the merger in diminishing competition among commercial banks, the court emphasized the competition between PNB-SNB and other types of financial institutions — for example, savings and loan associations, pension funds, mutual funds, insurance, and finance companies. The court expressed its view that “[i]n terms of function the defendant banks are more comparable to savings institutions than to large commercial banks,” 306 F. Supp., at 648, and continued: “So, while the term 'commercial banking’ may be used to designate the general line of commerce embracing all bank services, attention must be given in analysis of competition to different groupings within the line of commerce separating those products and services where absence of competition may be significant from those in which competition from many sources is so widespread that no question of significant diminution of competition by the merger could be raised.” 306 F. Supp., at 650-651.
The District Court erred. It is true, of course, that the relevant product market is determined by the nature of the commercial entities involved and by the nature of the competition that they face. See, e. g., United States v. Continental Can Co., 378 U. S. 441, 456-457 (1964). Submarkets such as the District Court defined would be clearly relevant, for example, in analyzing the effect on competition of a merger between a commercial bank and another type of financial institution. But submarkets are not a basis for the disregard of a broader line of commerce that has economic significance. See, e. g., Brown Shoe Co. v. United States, 370 U. S. 294, 326 (1962).
Philadelphia Bank emphasized that it is the duster of products and services that full-service banks offer that as a matter of trade reality makes commercial banking a distinct line of commerce. Commercial banks are the only financial institutions in which a wide variety of financial products and services — some unique to commercial banking and others not — are gathered together in one place. The clustering of financial products and services in banks facilitates convenient access to them for all banking customers. For some customers, full-service banking makes possible access to certain products or services that would otherwise be unavailable to them; the customer without significant collateral, for example, who has patronized a particular bank for a variety of financial products and services is more likely to be able to obtain a loan from that bank than from a specialty financial institution to which he turns simply to borrow money. In short, the cluster of products and services termed commercial banking has economic significance well beyond the various products and services involved.
Customers of small banks need and use this cluster of services and products no less than customers of large banks. A customer who uses one service usually looks to his bank for others as well, and is encouraged by the bank to do so. Thus, as was the case here, customers are likely to maintain checking and savings accounts in the same local bank even when higher savings interest is available elsewhere. See also Philadelphia Bank, supra, at 357 n. 34. This is perhaps particularly true of banks patronized principally by small depositors and borrowers for whom the convenience of one-stop banking and the advantages of a good relationship with the local banker — and thus of favorable consideration for loans — are especially important. See id., at 358 n. 35, 369.
Moreover, if commercial banking were rejected as the line of commerce for banks with the same or similar ratios of business as those of the appellee banks, the effect would likely be to deny customers of small banks — and thus residents of many small towns — the antitrust protection to which they are no less entitled than customers of large city banks. Indeed, the need for that protection may be greater in the small town since, as we have already stated, commercial banks offering full-service banking in one institution may be peculiarly significant to the economy of communities whose population is too small to support a large array of differentiated savings and credit businesses.
Ill
The Relevant Geographic Market
In determining the relevant geographic market, we held in Philadelphia Bank, supra, at 357, that “[t]he proper question to be asked ... is not where the parties to the merger do business or even where they compete, but where, within the area of competitive overlap, the effect of the merger on competition will be direct and immediate. . . . This depends upon ‘the geographic structure of supplier-customer relations.’ ” More specifically we stated that “the ‘area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies ....’” Id., at 359.
The District Court selected as the relevant geographic market an area approximately four times as large as Phillipsburg-Easton, with a 1960 population of 216,000 and 18 banks. The area included the city of Bethlehem, Pennsylvania. 306 F. Supp., at 652-653, 656-658. The court explicitly rejected the claim of the United States that Phillipsburg-Easton constitutes the relevant market. We hold that the District Court erred.
Commercial realities in the banking industry make clear that banks generally have a very localized business. We observed in Philadelphia Bank, supra, at 358, that “[i]n banking, as in most service industries, convenience of location is essential to effective competition. Individuals and corporations typically confer the bulk of their patronage on banks in their local community; they find it impractical to conduct their banking business at a distance. . . . The factor of inconvenience localizes banking competition as effectively as high transportation costs in other industries.” In locating “the market area in which the seller operates,” it is important to consider the places from which it draws its business, the location of its offices, and where it seeks business. As indicated, the appellee banks' deposit and loan statistics show that in 1967 they drew over 85% of their business from the Phillipsburg-Easton area and, of that, only about 10% from Easton. It has been noted that nearly every family in Phillipsburg deals with one of the city’s three banks, and the town’s businessmen prefer to do the same. All of PNB and SNB’s banking offices are located within Phillipsburg or its immediate suburbs; although the city is sufficiently small that there is easy access to its downtown area where the banks have their main offices, the banks found it necessary to open branches in the suburbs because, as a witness testified, that is “where the customers are.” See also Philadelphia Bank, supra, at 358 n. 35. The “one town” banks generally compete for deposits within a radius of only a few miles.
The localization of business typical of the banking industry is particularly pronounced when small customers are involved. We stated in Philadelphia Bank, supra, at 361, that “in banking the relevant geographical market is a function of each separate customer’s economic scale” — that “the smaller the customer, the smaller is his banking market geographically,” id., at 359 n. 36. Small depositors have little reason to deal with a bank other than the one most geographically convenient to them. For such persons, geographic convenience can be a more powerful influence than the availability of a higher rate of interest at a more distant, though still nearby, bank. The small borrower, if he is to have his needs met, must often depend upon his community reputation and upon his relationship with the local banker. PNB, for instance, has made numerous unsecured loans on the basis of character, which are difficult for local borrowers to get elsewhere. And, as we said in Philadelphia Bank, supra, at 369, “[s]mall businessmen especially are, as a practical matter, confined to their locality for the satisfaction of their credit needs. ... If the number of banks in the locality is reduced, the vigor of competition for filling the marginal small business borrower's needs is likely to diminish.” Thus, the small borrower frequently cannot “practicably turn for supplies” outside his immediate community; and the small depositor — because of habit, custom, personal relationships, and, above all, convenience — is usually unwilling to do so. See id., at 357 n. 34. The patrons of PNB and SNB, of course, are small customers: almost 75°/o of the banks’ deposits are for amounts less than $1,000, and virtually all of their loans are for less than $10,000, most falling below $2,500.
We observed in Philadelphia Bank, supra, at 361, that we were helped to our conclusion regarding geographic market “by the fact that the three federal banking agencies regard the area in which banks have their offices as an ‘area of effective competition.’ ” Here the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Attorney General found that a relevant banking market exists in the Phillipsburg-Easton area and that the proposed merger’s competitive effect should be judged within it. We agree. We find that the evidence shows that Phillipsburg-Easton constitutes a geographic market in which the proposed merger’s effect would be “direct and immediate.” It is the market area in which PNB and SNB operate, and, as a practical matter, it is the area in which most of the merging banks’ customers must, or will, do their banking. Thus, we hold that the District Court mistakenly rejected the Government’s contention that Phillipsburg-Easton is an appropriate “section of the country” under § 7.
Appellee banks argue that Phillipsburg-Easton “cannot conceivably be considered a 'market’ for antitrust purposes,” on the ground that it is not an “economically significant section of the country.” They cite our language in Brown Shoe, supra, at 320, that “[t]he deletion of the word ‘community’ in the original [Clayton] Act’s description of the relevant geographic market is another illustration of Congress’ desire to indicate that its concern was with the adverse effects of a given merger on competition only in an economically significant ‘section’ of the country.” In Brown Shoe, however, we found “relevant geographic markets” in cities “with a population exceeding 10,000 and their environs.” Id., at 339. Phillipsburg-Easton and their immediate environs had a population of almost 90,000 in 1960. Seven banks compete for their business. This market is clearly an economically significant section of the country for the purposes of §7.
IV
The Anticompetitive Effects of the Merger
We turn now to the ultimate question under § 7: whether the effect of the proposed merger “may be substantially to lessen competition.” We pointed out in Philadelphia Bank, supra, at 362, that a prediction of anticompetitive effects “is sound only if it is based upon a firm understanding of the structure of the relevant market; yet the relevant economic data are both complex and elusive. . . . And unless businessmen can assess the legal consequences of a merger with some confidence, sound business planning is retarded. ... So also, we must be alert to the danger of subverting congressional intent by permitting a too-broad economic investigation. . . . And so in any case in which it is possible, without doing violence to the congressional objective embodied in § 7, to simplify the test of illegality, the courts ought to do so in the interest of sound and practical judicial administration.” We stated in Brown Shoe, supra, at 315, that “[t]he dominant theme pervading congressional consideration of the 1950 amendments [to § 7] was a fear of what was considered to be a rising tide of economic concentration in the American economy.” In Philadelphia Bank, supra, at 363, we held that “[t]his intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anti-competitive effects.” That principle is applicable to this case.
The commercial banking market in Phillipsburg-Easton is already concentrated. Of its seven banks, the two largest in 1967 — Easton National Bank and Lafayette Trust Co. — had 49% of its total banking assets, 56% of its total deposits, 49% of its total loans and seven of its 16 banking offices. Easton National is itself the product of the merger of two smaller banks in 1959. The union of PNB-SNB would, in turn, significantly increase commercial banking concentration in “one town.” The combined bank would become the second largest in the area, with assets of over $41,100,000 (19.3% of the area’s assets), total deposits of $38,400,000 (23.4%), and total loans of $24,900,000 (27.3%). The assets held by the two largest banks would then increase from 49% to 55%, the deposits from 56% to 65%, the loans from 49% to 63%, and the banking offices from seven to 10. The assets held by the three largest banks would increase from 60% to 6,8%', the deposits from 70% to 80%, the loans from 64% to 76%, and the banking offices from 10 to 12. In Phillipsburg alone, of course, the impact would be much greater: banking alternatives would be reduced from three to two; the resultant bank would be three times larger than the only other remaining bank, and all but two of the banking offices in the city would be controlled by one firm. Thus, we find on this record that the proposed merger, if consummated, “is . . . inherently likely to lessen competition substantially.” Cf. Philadelphia Bank, supra; Nashville Bank, supra; United States v. Von's Grocery Co., 384 U. S. 270 (1966); United States v. Pabst Brewing Co., 384 U. S. 546 (1966).
Appellee banks argue that they are presently so small that they lack the personnel and resources to serve their community effectively and to compete vigorously. Thus, they contend that the proposed merger could have pro-competitive effects: by enhancing their competitive position, it would stimulate other small banks in the area to become more aggressive in meeting the needs of the area and it would enable PNB-SNB to meet an alleged competitive challenge from large, outside banks., Although such considerations are certainly relevant in determining the “convenience and needs of the community” under the Bank Merger Act, they are not persuasive in the context of the Clayton Act. As we said in Philadelphia Bank, supra, at 371, for the purposes of § 7, “a merger the effect of which 'may be substantially to lessen competition’ is not saved because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial.”
The District Court stated: “Ease of access to the market is also a factor that deserves consideration in evaluating the anticompetitive effects of a merger. It is not difficult for a small group of business men to raise sufficient capital to establish a new small bank when the banking needs of the community are sufficient to warrant approval of the charter.” 306 F. Supp., at 659. Appellees, however, made no attempt to show that a group of businessmen would move to start a new bank in Phillipsburg-Easton, should the proposed merger be approved. The banking laws of New Jersey and Pennsylvania severely restrict the capacity of existing banks to establish operations in “one town.” Relying on a recent New Jersey banking statute, N. J. Stat. Ann. §17:9A-19 (Supp. 1969), appellees contend that “[t]here is no doubt that the three banks in Phillips-burg . . . are fair game for attractive merger proposals by the large banks from Bergen, Passaic, Essex, Hudson and Morris Counties.” But, as the District Court pointed out, “Large city banks in Newark and in other well populated cities in the counties mentioned can now establish branch banks in Warren County [only] in any municipality in which no banking institution has its principal office or a branch office and in any municipality which has a population of 7,500 or more where no banking institution has its principal office . . . .” 306 F. Supp., at 660. Thus, mergers under § 17:9A-19 are possible in Phillips-burg only with the three banks now in existence there. Accordingly, mergers under this statute would not bear upon the anticompetitive effects in question, because they could not increase the number of banking alternatives in “one town.”
Since the decision below, the Court of Appeals for the Third Circuit has held that a national bank may avoid the New Jersey bar against branching, N. J. Stat. Ann. § 17:9A-19 (B)(3) (Supp. 1969), by moving its headquarters into a protected community, such as Phil-lipsburg, while simultaneously reopening its former main office as a branch. Ramapo Bank v. Camp, 425 F. 2d 333 (1970). We intimate no view upon the correctness of that decision. We do observe, however, that the District Court decision in Ramapo Bank, affirmed in the recent Court of Appeals ruling, was handed down almost five months before the present District Court decision. Both opinions were written by the same District Judge. Accordingly, had an outside national bank been interested in moving its main office to Phillipsburg, no doubt this fact would have been made known to the District Court or to this Court. Nothing in the present record suggests that any national bank now located outside Phillipsburg will apply to move its main office to that city; therefore, on the record before us, that possibility does not bear on the anticompetitive effects of the merger.
Y
Meeting the Convenience and Needs of the Community
The District Court’s errors necessarily require reexamination of its conclusion that any anticompetitive effects caused by the proposed merger would be outweighed by the merger’s contribution to the community’s convenience and needs. The District Court’s conclusion, moreover, is undermined by the court’s erroneous application of the convenience-and-needs standard. In the balancing of competitive effect against benefit to community convenience and needs, “[t]o weigh adequately one of these factors against the other requires a proper conclusion as to each.” Nashville Bank, supra, at 183.
The District Court misapplied the convenience-and-needs standard by assessing the competitive effect of the proposed merger in the broad, multi-community area that it adopted as the relevant geographic market, while assessing the merger’s contribution to community convenience and needs in Phillipsburg alone. Appellees argue that “[njowhere does the district court equate ‘community’ with Phillipsburg.” We disagree. In determining convenience and needs, the court stated that “[t]here are two banking services which must be improved in the area to satisfy present and rapidly increasing need. Lending limits of the small banks are not sufficient to satisfy loan requirements for substantial industrial and commercial enterprise. . . . There is a definite lack of competent trust service and . . . servicing of substantial trust accounts must be obtained outside the community .... If the merger is approved, the merged bank can establish [loan and trust] departments and staff them with personnel capable of the kind of loan and trust service that patrons must, in large part, now seek outside the community.” 306 F. Supp., at 661. The court then cited examples of persons in Phillipsburg who found the existing loan and trust services in that city inadequate. Id., at 662-666. Since several Easton banks already provide appreciable trust services and have legal lending limits greater than those of PNB-SNB combined, it is obvious that the court was primarily concerned with loan and trust possibilities in Phillipsburg. We hold, however, that evaluation must be in terms of the convenience and needs of Phillipsburg-Easton as a whole.
Section 1828 (c)(5)(B) provides that “any . . . proposed merger transaction whose effect in any section of the country may be substantially to lessen competition . . . [shall not be approved by the responsible banking agency] unless it finds that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” Representative Reuss explained during debate on the Bank Merger Act that “[w]hat is meant by [§ (c) (5) (B)] and what counts is the effect of the transaction in meeting the needs and conveniences of the community which that particular sought-to-be merged bank serves.” 112 Cong. Rec. 2457. He indicated that “in a community having say, 10 banks of relatively equal size, and where one of the banks was in difficulty — say with regard to a problem of management succession — the ‘convenience and needs of the community’ would be best served if that bank were permitted to merge with one of the other 9 banks despite some resulting anticompetitive effects.” Id., at 2445.
These comments support our conclusion that the geographic market — the “community which that particular sought-to-be merged bank serves” — is the area in which convenience and needs must be evaluated. Commercial realities, moreover, make clear that the “community to be served” is virtually always as large, or larger, than the geographic market. Although the area in which merging banks compete while they are still separate entities is often smaller than the area in which the resultant bank will compete, it is rare that the community served by a merged bank is smaller than that served by its constituent firms prior to their merger. Further, evaluation of convenience and needs in an area smaller than the geographic market could result in the approval of a merger that, though it has anticompetitive effects throughout the market, has countervailing beneficial impact in only part of the market. Under the approach taken by the District Court, anticompetitive effects in some parts of a relevant geographic market could be justified by community benefits in other parts of it. Such a result would subvert the clear congressional purpose in the Bank Merger Act that convenience and needs not be assessed in only a part of the community to be served, and such a result would unfairly deny the benefits of the merger to some of those who sustain its direct and immediate anticompetitive effects. Cf. Philadelphia Bank, supra, at 370. Accordingly, we hold that the District Court erred in failing to assess the proposed merger’s effect in terms of the convenience and needs of the relevant geographic market.
We held in Nashville Bank, supra, at 190, that “before a merger injurious to the public interest is approved, a showing [must] be made that the gain expected from the merger cannot reasonably be expected through other means.” Thus, before approving such a merger, a district court must “reliably establish the unavailability of alternative solutions to the woes” faced by the merging banks. Ibid. Accordingly, on remand, the District Court should consider in concrete detail the adequacy of attempts by PNB and SNB to overcome their loan, trust, and personnel difficulties by methods short of their own merger. Beyond careful consideration of alternative methods of serving the convenience and needs of Phillips-burg-Easton, the court should deal specifically with whether the proposed merger is likely to benefit all seekers of banking services in the community, rather than simply those interested in large loan and trust services.
The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion. No costs shall be assessed against appellee banks. T, . , ,
T, It is so ordered.
Mr. Justice Stewart took no part in the decision of this case, and Mr. Justice Blackmun took no part in its consideration or decision.
Section 7, as amended by the 1950 Celler-Kefauver Antimerger Act, provides in pertinent part: “No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section, of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”
The merger was automatically stayed by the filing of this action. 12 U. S. C. § 1828 (c) (7) (A) (1964 ed., Supp. V). The District Court continued the statutory stay pending disposition of the appeal.
See table at 355. The table, in millions of dollars, as of December 30, 1967, shows the relationship of the seven banks to one another in terms of assets, total deposits, demand deposits, and loans. The Nazareth National Bank has one branch in Easton. While the deposit figures are segregated for this branch, the asset and loan figures are not. Thus, the total asset and loan figures for the Nazareth National Bank are used in this table, rather than those attributable to its Easton branch. The table, accordingly, understates the percentages attributable to the other banks, including the appellees.
See also our statement in Philadelphia Bank, supra, at 356-357, that “[s]ome commercial banking products or services are so distinctive that they are entirely free of effective competition from products or services of other financial institutions; the checking account is in this category. Others enjoy such cost advantages as to be insulated within a broad range from substitutes furnished by other institutions. For example, commercial banks compete with small-loan companies in the personal-loan market; but the small-loan companies’ rates are invariably much higher than the banks’.... Finally, there are banking facilities which, although in terms of cost and price they are freely competitive with the facilities provided by other financial institutions, nevertheless enjoy a settled consumer preference, insulating them, to a marked degree, from competition; this seems to be the case with savings deposits.”
The Government initially sought, to show that Phillipsburg alone constituted the relevant geographic market. After the District Court rejected that proposal, the Government supported Phillipsburg-Easton and environs as the appropriate market and continues to do so in this Court.
We do not suggest that it would be inappropriate to focus on the convenience and needs of a segment of the geographic market so long as benefits to that segment would accrue to the entire market. We intimate no view of the weight to be attached to benefits that may accrue to areas beyond the relevant market. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
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"Federal Reserve System",
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] | [
16
] |
LEGAL SERVICES CORPORATION v. VELAZQUEZ et al.
No. 99-603.
Argued October 4, 2000
Decided February 28, 2001
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion in which Rehnquist, C. J., and O’Connor and Thomas, JJ., joined, post, p. 549.
Alan Levine argued the cause for petitioner in No. 99-603. With him on the briefs was Stephen L. Ascher.
Deputy Solicitor General Kneedler argued the cause for the United States in No. 99-960. With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Beth S. Brinkmann, Barbara L. Herwig, and Matthew M. Collette.
Burt Neuborne argued the cause for respondents in both cases. With him on the brief were Laura K. Abel, Kimani Paul-Emile, Paul K. Sonn, David S. Udell, Peter M. Fish-bein, and Alan E. Rothman.
Together with No. 99-960, United States v. Velazquez et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the Pacific Legal Foundation by John H. Findley; and for the Washington Legal Foundation et al. by Daniel J. Popeo and R. Shawn Gunnarson.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Arthur N. Eisenberg and Steven R. Shapiro; and for the New York State Bar Association et al. by Bruce A. Green and Lawrence S. Lustberg.
Frederick A. O. Schwarz, Jr., filed a brief for the American Judicature Society as amicus curiae.
Justice Kennedy
delivered the opinion of the Court.
In 1974, Congress enacted the Legal Services Corporation Act, 88 Stat. 378, 42 U. S. C. §2996 et seq. The Act establishes the Legal Services Corporation (LSC) as a District of Columbia nonprofit corporation. LSC’s mission is to distribute funds appropriated by Congress to eligible local grantee organizations “for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.” § 2996b(a).
LSC grantees consist of hundreds of local organizations governed, in the typical case, by local boards of directors. In many instances the grantees are funded by a combination of LSC funds and other public or private sources. The grantee organizations hire and supervise lawyers to provide free legal assistance to indigent clients. Each year LSC appropriates funds to grantees or recipients that hire and supervise lawyers for various professional activities, including representation of indigent clients seeking welfare benefits.
This suit requires us to decide whether one of the conditions imposed by Congress on the use of LSC funds violates the First Amendment rights of LSC grantees and their clients. For purposes of our decision, the restriction, to be quoted in further detail, prohibits legal representation funded by recipients of LSC moneys if the representation involves an effort to amend or otherwise challenge existing welfare law. As interpreted by the LSC and by the Government, the restriction prevents an attorney from arguing to a court that a state statute conflicts with a federal statute or that either a state or federal statute by its terms or in its application is violative of the United States Constitution.
Lawyers employed by New York City LSC grantees, together with private LSC contributors, LSC indigent clients, and various state and local public officials whose governments contribute to LSC grantees, brought suit in the United States District Court for the Eastern District of New York to declare the restriction, among other provisions of the Act, invalid. The United States Court of Appeals for the Second Circuit approved an injunction against enforcement of the provision as an impermissible viewpoint-based discrimination in violation of the First Amendment, 164 F. 3d 757 (1999). We granted certiorari, and the parties who commenced the suit in the District Court are here as respondents. The LSC as petitioner is joined by the Government of the United States, which had intervened in the District Court. We agree that the restriction violates the First Amendment, and we affirm the judgment of the Court of Appeals.
I
From the inception of the LSC, Congress has placed restrictions on its use of funds. For instance, the LSC Act prohibits recipients from making available LSC funds, program personnel, or equipment to any political party, to any political campaign, or for use in “advocating or opposing any ballot measures.” 42 U. S. C. § 2996e(d)(4). See § 2996e(d)(3). The Act further proscribes use of funds in most criminal proceedings and in litigation involving non-therapeutic abortions, secondary school desegregation, military desertion, or violations of the Selective Service statute. §§2996f(b)(8)-(10) (1994 ed. and Supp. IV). Fund recipients are barred from bringing class-action suits unless express approval is obtained from LSC. § 2996e(d)(5).
The restrictions at issue were part of a compromise set of restrictions enacted in the Omnibus Consolidated Rescis-sions and Appropriations Act of 1996 (1996 Act), §604, 110 Stat. 1321-53, and continued in each subsequent annual appropriations Act. The relevant portion of §504(a)(16) prohibits funding of any organization
“that initiates legal representation or participates in any other way, in litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system, except that this paragraph shall not be construed to preclude a recipient from representing an individual eligible client who is seeking specific relief from a welfare agency if such relief does not involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation.”
The prohibitions apply to all of the activities of an LSC grantee, including those paid for by non-LSC funds. §§ 504(d)(1) and (2). We are concerned with the statutory provision which excludes LSC representation in cases which “involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation.”
In 1997, LSC adopted final regulations clarifying § 504(a)(16). 45 CFR pt. 1639 (1999). LSC interpreted the statutory provision to allow indigent clients to challenge welfare agency determinations of benefit ineligibility under interpretations of existing law. For example, an LSC grantee could represent a welfare claimant who argued that an agency made an erroneous factual determination or that an agency misread or misapplied a term contained in an existing welfare statute. According to LSC, a grantee in that position could argue as well that an agency policy violated existing law. §1639.4. Under LSC’s interpretation, however, grantees could not accept representations designed to change welfare laws, much less argue against the constitutionality or statutory validity of those laws. Brief for Petitioner in No. 99-603, p. 7. Even in cases where constitutional or statutory challenges .became apparent after representation was well under way, LSC advised that its attorneys must withdraw. Ibid.
After the instant suit was filed in the District Court alleging the restrictions on the use of LSC funds violated the First Amendment, see 985 F. Supp. 323 (1997), the court denied a preliminary injunction, finding no probability of success on the merits. Id., at 344.
On appeal, the Court of Appeals for the Second Circuit affirmed in part and reversed in part. 164 F. 3d 757 (1999). As relevant for our purposes, the court addressed respondents’ challenges to the restrictions in §504(a)(16). It concluded the section specified four categories of prohibited activities, of which “three appeared] to prohibit the type of activity named regardless of viewpoint, while one might be read to prohibit the activity only when it seeks reform.” Id., at 768. The court upheld the restrictions on litigation, lobbying, and rulemaking “involving an effort to reform a Federal or State welfare system,” since all three prohibited grantees’ involvement in these activities regardless of the side of the issue. Id., at 768-769.
The court next considered the exception to §504(a)(16) that allows representation of “ ‘an individual eligible client who is seeking specific relief from a welfare agency.’” The court invalidated, as impermissible viewpoint discrimination, the qualification that representation could “not involve an effort to amend or otherwise challenge existing law,” because it “clearly seeks to discourage challenges to the status quo.” Id., at 769-770.
Left to decide what part of the 1996 Act to strike as invalid, the court concluded that congressional intent regarding severability was unclear. It decided to “invalidate the smallest possible portion of the statute, excising only the viewpoint-based proviso rather than the entire exception of which it is a part.” Id., at 773.
Dissenting in part, Judge Jacobs agreed with the majority except for its holding that the proviso banning challenges to existing welfare laws effected impermissible viewpoint-based discrimination. The provision, in his view, was permissible because it merely defined the scope of services to be funded. Id., at 773-778 (opinion concurring in part and dissenting in part).
LSC filed a petition for certiorari challenging the Court of Appeals’ conclusion that the § 504(a)(16) suits-for-benefits proviso was unconstitutional. We granted certiorari, 529 U. S. 1052 (2000).
II
The United States and LSC rely on Rust v. Sullivan, 500 U. S. 173 (1991), as support for the LSC program restrictions. In Rust, Congress established program clinics to provide subsidies for doctors to advise patients on a variety of family planning topics. Congress did not consider abortion to be within its family planning objectives, however, and it forbade doctors employed by the program from discussing abortion with their patients. Id., at 179-180. Recipients of funds under Title X of the Public Health Service Act, §§ 1002, 1008, as added, 84 Stat. 1506, 1508, 42 U.S.C. §§300a, 300a-6, challenged the Act’s restriction that provided that none of the Title X funds appropriated for family planning services could “be used in programs where abortion is a method of family planning.” §3Q0a-6. The recipients argued that the regulations constituted impermissible viewpoint discrimination favoring an antiabortion position over a proabortion approach in the sphere of family planning. 500 U. S., at 192. They asserted as well that Congress had imposed an unconstitutional condition on recipients of federal funds by requiring them to relinquish their right to engage in abortion advocacy and counseling in exchange for the subsidy. Id., at 196.
We upheld the law, reasoning that Congress had not discriminated against viewpoints on abortion, but had “merely chosen to fund one activity to the exclusion of the other.” Id., at 193. The restrictions were considered necessary “to ensure that the limits of the federal program [were] observed.” Ibid. Title X did not single out a particular idea for suppression because it was dangerous or disfavored; rather, Congress prohibited Title X doctors from counseling that was outside the scope of the project. Id., at 194-195.
The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding. We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, see Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229, 235 (2000), or instances, like Rust, in which the government “used private speakers to transmit specific information pertaining to its own program.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995). As we said in Rosenberger, “[w]hen the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” Ibid. The latitude which may exist for restrictions on speech where the government’s own message is being delivered flows in part from our observation that, “[w]hen the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.” Board of Regents of Univ. of Wis. System v. Southworth, supra, at 235.
Neither the latitude for government speech nor its rationale applies to subsidies for private speech in every instance, however. As we have pointed out, “[i]t does not follow . . . that viewpoint-based restrictions are proper when the [government] does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.” Rosenberger, supra, at 834.
Although the LSC program differs from the program at issue in Rosenberger in that its purpose is not to “encourage a diversity of views,” the salient point is that, like the program in Rosenberger, the LSC program was designed to facilitate private speech, not to promote a governmental message. Congress funded LSC grantees to provide attorneys to represent thé interests of indigent clients. In the specific context of § 504(a)(16) suits for benefits, an LSC-funded attorney speaks on the behalf of the client in a claim against the government for welfare benefits. The lawyer is not the government’s speaker. The attorney defending the decision to deny benefits will deliver the government’s message in the litigation. The LSC lawyer, however, speaks on the behalf of his or her private, indigent client. Cf. Polk County v. Dodson, 454 U. S. 312, 321-322 (1981) (holding that a public defender does not act “under color of state law” because he “works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client” and because there is an “assumption that counsel will be free of state control”).
The Government has designed this program to use the legal profession and the established Judiciary of the States and the Federal Government to accomplish its end of assisting welfare claimants in determination or receipt of their benefits. The advice from the attorney to the client and the advocacy by the attorney to the courts cannot be classified as governmental speech even under a generous understanding of the concept. In this vital respect this suit is distinguishable from Rust.
The private nature of the speech involved here, and the extent of LSC’s regulation of private expression, are indicated further by the circumstance that the Government seeks to use an existing medium of expression and to control it, in a class of eases, in ways which distort its usual functioning. Where the government uses or attempts to regulate a particular medium, we have been informed by its accepted usage in determining whether a particular restriction on speech is necessary for the program’s purposes and limitations. In FCC v. League of Women Voters of Cal., 468 U. S. 364 (1984), the Court was instructed by its understanding of the dynamics of the broadcast industry in holding that prohibitions against editorializing by public radio networks were an impermissible restriction, even though the Government enacted the restriction to control the use of public funds. The First Amendment forbade the Government from using the forum in an unconventional way to suppress speech inherent in the nature of the medium. See id., at 396-397. In Arkansas Ed. Television Common v. Forbes, 523 U. S. 666, 676 (1998), the dynamics of the broadcasting system gave station programmers the right to use editorial judgment to exclude certain speech so that the broadcast message could be more effective. And in Rosenberger, the fact that student newspapers expressed many different points of view was an important foundation for the Court’s decision to invalidate viewpoint-based restrictions. 515 U. S., at 836.
When the government creates a limited forum for speech, certain restrictions may be necessary to define the limits and purposes of the program. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37 (1983); see also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993). The same is true when the government establishes a subsidy for specified ends. Rust v. Sullivan, 500 U. S. 173 (1991). As this suit involves a subsidy, limited forum cases such as Perry, Lamb’s Chapel, and Rosenberger may not be controlling in a strict sense, yet they do provide some instruction. Here the program presumes that private, nongovernmental speech is necessary, and a substantial restriction is placed upon that speech. At oral argument and in its briefs the LSC advised us that lawyers funded in the Government program may not undertake representation in suits for benefits if they must advise clients respecting the questionable validity of a statute which defines benefit eligibility and the payment structure. The limitation forecloses advice or legal assistance to question the validity of statutes under the Constitution of the United States. It extends further, it must be noted, so that state statutes inconsistent with federal law under the Supremacy Clause may be neither challenged nor questioned.
By providing subsidies to LSC, the Government seeks to facilitate suits for benefits by using the state and federal courts and the independent bar on which those courts depend for the proper performance of their duties and responsibilities. Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys in much the same way broadcast systems or student publication networks were changed in the limited forum cases we have cited. Just as government in those cases could not elect to use a broadcasting network or a college publication structure in a regime which prohibits speech necessary to the proper functioning of those systems, see Arkansas Ed. Television Comm’n, supra, and Rosenberger, supra, it may not design a subsidy to effect this serious and fundamental restriction on advocacy of attorneys and the functioning of the judiciary.
LSC has advised us, furthermore, that upon determining a question of statutory validity is present in any anticipated or pending ease or controversy, the LSC-funded attorney must cease the representation at once. This is true whether the validity issue becomes apparent during initial attorney-client consultations or in the midst of litigation proceedings. A disturbing example of the restriction was discussed during oral argument before the Court. It is well understood that when there are two reasonable constructions for a statute, yet one raises a constitutional question, the Court should prefer the interpretation which avoids the constitutional issue. Gomez v. United States, 490 U. S. 858, 864 (1989); Ashwander v. TVA, 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring). Yet, as the LSC advised the Court, if, during litigation, a judge were to ask an LSC attorney whether there was a constitutional concern, the LSC attorney simply could not answer. Tr. of Oral Arg. 8-9.
Interpretation of the law and the Constitution is the primary mission of the judiciary when it acts within the sphere of its authority to resolve a case or controversy. Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is emphatically the province and the duty of the judicial department to say what the law is”). An informed, independent judiciary presumes an informed, independent bar. Under §504(a)(16), however, eases would be presented by LSC attorneys who could not advise the courts of serious questions of statutory validity. The disability is inconsistent with the proposition that attorneys should present all the reasonable and well-grounded arguments necessary for proper resolution of the case. By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power. Congress cannot wrest the law from the Constitution which is its source. “Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.” Id., at 178.
The restriction imposed by the statute here threatens severe impairment of the judicial function. Section 504(a)(16) sifts out cases presenting constitutional challenges in order to insulate the Government’s laws from judicial inquiry. If the restriction on speech and legal advice were to stand, the result would be two tiers of cases. In cases where LSC counsel were attorneys of record, there would be lingering doubt whether the truncated representation had resulted in complete analysis of the case, full advice to the client, and proper presentation to the court. The courts and the public would come to question the adequacy and fairness of professional representations when the attorney, either consciously to comply with this statute or unconsciously to continue the representation despite the statute, avoided all reference to questions of statutory validity and constitutional authority. A scheme so inconsistent with accepted separation-of-powers principles is an insufficient basis to sustain or uphold the restriction on speech.
It is no answer to say the restriction on speech is harmless because, under LSC’s interpretation of the Act, its attorneys can withdraw. This misses the point. The statute is an attempt to draw lines around the LSC program to exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider.
The restriction on speech is even more problematic because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel. The explicit premise for providing LSC attorneys is the necessity to make available representation “to persons financially unable to afford legal assistance.” 42 U. S. C. § 2996(a)(3). There often will be no alternative source for the client to receive vital information respecting constitutional and statutory rights bearing upon claimed benefits. Thus, with respect to the litigation services Congress has funded, there is no alternative channel for expression of the advocacy Congress seeks to restrict. This is in stark contrast to Rust. There, a patient could receive the approved Title X family planning counseling funded by the Government and later could consult an affiliate or independent organization to receive abortion counseling. Unlike indigent clients who seek LSC representation, the patient in Rust was not required to forfeit the Government-funded advice when she also received abortion counseling through alternative channels. Because LSC attorneys must withdraw whenever a question of a welfare statute’s validity arises, an individual could not obtain joint representation so that the constitutional challenge would be presented by a non-LSC attorney, and other, permitted, arguments advanced by LSC counsel.
Finally, LSC and the Government maintain that § 504(a)(16) is necessary to define the scope and contours of the federal program, a condition that ensures funds can be spent for those cases most immediate to congressional concern. In support of this contention, they suggest the challenged limitation takes into account the nature of the grantees’ activities and provides limited congressional funds for the provision of simple suits for benefits. In petitioners’ view, the restriction operates neither to maintain the current welfare system nor insulate it from attack; rather, it helps the current welfare system function in a more efficient and fair manner by removing from the program complex challenges to existing welfare laws.
The effect of the restriction, however, is to prohibit advice or argumentation that existing welfare laws are unconstitutional or unlawful. Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise. Here, notwithstanding Congress’ purpose to confine and limit its program, the restriction operates to insulate current welfare laws from constitutional scrutiny and certain other legal challenges, a condition implicating central First Amendment concerns. In no lawsuit funded by the Government can the LSC attorney, speaking on behalf of a private client, challenge existing welfare laws. As a result, arguments by indigent clients that a welfare statute is unlawful or unconstitutional cannot be expressed in this Government-funded program for petitioning the courts, even though the program was created for litigation involving welfare benefits, and even though the ordinary course of litigation involves the expression of theories and postulates on both, or multiple, sides of an issue. “
It is fundamental that the First Amendment “ Vas fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”’ New York Times Co. v. Sullivan, 376 U. S. 254, 269 (1964) (quoting Roth v. United States, 354 U. S. 476, 484 (1957)). There can be little doubt that the LSC Act funds constitutionally protected expression; and in the context of this statute there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives. This serves to distinguish §504(a)(16) from any of the Title X program restrictions upheld in Rust, and to place it beyond any congressional funding condition approved in the past by this Court.
Congress was not required to fund an LSC attorney to represent indigent clients; and when it did so, it was not required to fund the whole range of legal representations or relationships. The LSC and the United States, however, in effect ask us to permit Congress to define the scope of the litigation it funds to exclude certain vital theories and ideas. The attempted restriction is designed to insulate the Government’s interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge. Where private speech is involved, even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the Government’s own interest. Regan v. Taxation With Representation of Wash., 461 U. S. 540, 548 (1988); Speiser v. Randall, 357 U. S. 513, 519 (1958).
For the reasons we have set forth, the funding condition is invalid. The Court of Appeals considered whether the language restricting LSC attorneys could be severed from the statute so that the remaining portions would remain operative. It reached the reasoned conclusion to invalidate the fragment of §504(a)(16) found contrary to the First Amendment, leaving the balance of the statute operative and in place. That determination was not discussed in the briefs of either party or otherwise contested here, and in the exercise of our discretion and prudential judgment we decline to address it.
The judgment of the Court of Appeals is
Affirmed. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
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] | [
72
] |
IRVING INDEPENDENT SCHOOL DISTRICT v. TATRO et ux., individually and as next friends of TATRO, a minor
No. 83-558.
Argued April 16, 1984
Decided July 5, 1984
Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined, and in all but Part III of which Brennan, Marshall, and Stevens, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 896. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 896.
James W. Deatherage argued the cause for petitioner. With him on the briefs was O. Glenn Weaver.
James C. Todd argued the cause and filed a brief for respondents.
Susan F. Heiligenthal filed a brief for the Texas Association of School Boards Legal Assistance Fund as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Association for Persons with Severe Handicaps et al. by Marilyn Hollé; for the New Jersey Department of the Public Advocate by Joseph H. Rodriguez, Herbert D. Hinkle, and Michael L. Perlin; for the New York State Commission on the Quality of Care for the Mentally Disabled, Protection and Advocacy System, by Herbert Semmel and Minna J. Kotkin; and for the Spina Bifida Association of America et al. by Janet F. Stotland.
Briefs of amici curiae were filed for the American Association of School Administrators by Allen D. Schwartz; and for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon.
CHIEF Justice Burger
delivered the opinion of the Court.
We granted certiorari to determine whether the Education of the Handicapped Act or the Rehabilitation Act of 1973 requires a school district to provide a handicapped child with clean intermittent catheterization during school hours.
I
Amber Tatro is an 8-year-old girl born with a defect known as spina bifida. As a result, she suffers from orthopedic and speech impairments and a neurogenic bladder, which prevents her from emptying her bladder voluntarily. Consequently, she must be catheterized every three or four hours to avoid injury to her kidneys. In accordance with accepted medical practice, clean intermittent catheterization (CIC), a procedure involving the insertion of a catheter into the urethra to drain the bladder, has been prescribed. The procedure is a simple one that may be performed in a few minutes by a layperson with less than an hour’s training. Amber’s parents, babysitter, and teenage brother are all qualified to administer CIC, and Amber soon will be able to perform this procedure herself.
In 1979 petitioner Irving Independent School District agreed to provide special education for Amber, who was then three and one-half years old. In consultation with her parents, who are respondents here, petitioner developed an individualized education program for Amber under the requirements of the Education of the Handicapped Act, 84 Stat. 175, as amended significantly by the Education for All Handicapped Children Act of 1975, 89 Stat. 773, 20 U. S. C. §§ 1401(19), 1414(a)(5). The individualized education program provided that Amber would attend early childhood development classes and receive special services such as physical and occupational therapy. That program, however, made no provision for school personnel to administer CIC.
Respondents unsuccessfully pursued administrative remedies to secure CIC services for Amber during school hours. In October 1979 respondents brought the present action in District Court against petitioner, the State Board of Education, and others. See § 1415(e)(2). They sought an injunction ordering petitioner to provide Amber with CIC and sought damages and attorney’s fees. First, respondents invoked the Education of the Handicapped Act. Because Texas received funding under that statute, petitioner was required to provide Amber with a “free appropriate public education,” §§ 1412(1), 1414(a)(l)(C)(ii), which is defined to include “related services,” §1401(18). Respondents argued that CIC is one such “related service.” Second, respondents invoked §504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U. S. C. §794, which forbids an individual, by reason of a handicap, to be “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under” any program receiving federal aid.
The District Court denied respondents’ request for a preliminary injunction. Tatro v. Texas, 481 F. Supp. 1224 (ND Tex. 1979). That court concluded that CIC was not a “related service” under the Education of the Handicapped Act because it did not serve a need arising from the effort to educate. It also held that § 504 of the Rehabilitation Act did not require “the setting up of governmental health care for people seeking to participate” in federally funded programs. Id., at 1229.
The Court of Appeals reversed. Tatro v. Texas, 625 F. 2d 557 (CA5 1980) (Tatro I). First, it held that CIC was a “related service” under the Education of the Handicapped Act, 20 U. S. C. § 1401(17), because without the procedure Amber could not attend classes and benefit from special education. Second, it held that petitioner’s refusal to provide CIC effectively excluded her from a federally funded educational program in violation of § 504 of the Rehabilitation Act. The Court of Appeals remanded for the District Court to develop a factual record and apply these legal principles.
On remand petitioner stressed the Education of the Handicapped Act’s explicit provision that “medical services” could qualify as “related services” only when they served the purpose of diagnosis or evaluation. See n. 2, supra. The District Court held that under Texas law a nurse or other qualified person may administer CIC without engaging in the unauthorized practice of medicine, provided that a doctor prescribes and supervises the procedure. The District Court then held that, because a doctor was not needed to administer CIC, provision of the procedure was not a “medical service” for purposes of the Education of the Handicapped Act. Finding CIC to be a “related service” under that Act, the District Court ordered petitioner and the State Board of Education to modify Amber’s individualized education program to include provision of CIC during school hours. It also awarded compensatory damages against petitioner. Tatro v. Texas, 516 F. Supp. 968 (ND Tex. 1981).
On the authority of Tatro I, the District Court then held that respondents had proved a violation of §504 of the Rehabilitation Act. Although the District Court did not rely on this holding to authorize any greater injunctive or compensatory relief, it did invoke the holding to award attorney’s fees against petitioner and the State Board of Education. 516 F. Supp., at 968; App. to Pet. for Cert. 55a-63a. The Rehabilitation Act, unlike the Education of the Handicapped Act, authorizes prevailing parties to recover attorney’s fees. See 29 U. S. C. §794a.
The Court of Appeals affirmed. Tatro v. Texas, 703 F. 2d 823 (CA5 1983) (Tatro II). That court accepted the District Court’s conclusion that state law permitted qualified persons to administer CIC without the physical presence of a doctor, and it affirmed the award of relief under the Education of the Handicapped Act. In affirming the award of attorney’s fees based on a finding of liability under the Rehabilitation Act, the Court of Appeals held that no change of circumstances since Tatro I justified a different result.
We granted certiorari, 464 U. S. 1007 (1983), and we affirm in part and reverse in part.
II
This case poses two separate issues. The first is whether the Education of the Handicapped Act requires petitioner to provide CIC services to Amber. The second is whether §504 of the Rehabilitation Act creates such an obligation. We first turn to the claim presented under the Education of the Handicapped Act.
States receiving funds under the Act are obliged to satisfy certain conditions. A primary condition is that the state implement a policy “that assures all handicapped children the right to a free appropriate public education.” 20 U. S. C. § 1412(1). Each educational agency applying to a state for funding must provide assurances in turn that its program aims to provide “a free appropriate public education to all handicapped children.” § 1414(a)(l)(C)(ii).
A “free appropriate public education” is explicitly defined as “special education and related services.” § 1401(18). The term “special education” means
“specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” § 1401(16).
“Related services” are defined as
“transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children.” § 1401(17) (emphasis added).
The issue in this case is whether CIC is a “related service” that petitioner is obliged to provide to Amber. We must answer two questions: first, whether CIC is a “supportive servic[e] . . . required to assist a handicapped child to benefit from special education”; and second, whether CIC is excluded from this definition as a “medical servic[e]” serving purposes other than diagnosis or evaluation.
A
The Court of Appeals was clearly correct in holding that CIC is a “supportive servic[e]. . . required to assist a handicapped child to benefit from special education.” It is clear on this record that, without having CIC services available during the school day, Amber cannot attend school and thereby “benefit from special education.” CIC services therefore fall squarely within the definition of a “supportive service.”
As we have stated before, “Congress sought primarily to make public education available to handicapped children” and “to make such access meaningful.” Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U. S. 176, 192 (1982). A service that enables a handicapped child to remain at school during the day is an important means of providing the child with the meaningful access to education that Congress envisioned. The Act makes specific provision for services, like transportation, for example, that do no more than enable a child to be physically present in class, see 20 U. S. C. §1401(17); and the Act specifically authorizes grants for schools to alter buildings and equipment to make them accessible to the handicapped, § 1406; see S. Rep. No. 94-168, p. 38 (1975); 121 Cong. Rec. 19483-19484 (1975) (remarks of Sen. Stafford). Services like CIC that permit a child to remain at school during the day are no less related to the effort to educate than are services that enable the child to reach, enter, or exit the school.
We hold that CIC services in this case qualify as a “supportive servic[e] . . . required to assist a handicapped child to benefit from special education.”
B
We also agree with the Court of Appeals that provision of CIC is not a “medical servic[ej,” which a school is required to provide only for purposes of diagnosis or evaluation. See 20 U. S. C. § 1401(17). We begin with the regulations of the Department of Education, which are entitled to deference. See, e. g., Blum v. Bacon, 457 U. S. 132, 141 (1982). The regulations define “related services” for handicapped children to include “school health services,” 34 CFR §300.13(a) (1983), which are defined in turn as “services provided by a qualified school nurse or other qualified person,” §300.13(b) (10). “Medical services” are defined as “services provided by a licensed physician.” §300.13(b)(4). Thus, the Secretary has determined that the services of a school nurse otherwise qualifying as a “related service” are not subject to exclusion as a “medical service,” but that the services of a physician are excludable as such.
This definition of “medical services” is a reasonable interpretation of congressional intent. Although Congress devoted little discussion to the “medical services” exclusion, the Secretary could reasonably have concluded that it was designed to spare schools from an obligation to provide a service that might well prove unduly expensive and beyond the range of their competence. From this understanding of congressional purpose, the Secretary could reasonably have concluded that Congress intended to impose the obligation to provide school nursing services.
Congress plainly required schools to hire various specially trained personnel to help handicapped children, such as “trained occupational therapists, speech therapists, psychologists, social workers and other appropriately trained personnel.” S. Rep. No. 94-168, supra, at 33. School nurses have long been a part of the educational system, and the Secretary could therefore reasonably conclude that school nursing services are not the sort of burden that Congress intended to exclude as a “medical service.” By limiting the “medical services” exclusion to the services of a physician or hospital, both far more expensive, the Secretary has given a permissible construction to the provision.
Petitioner’s contrary interpretation of the “medical services” exclusion is unconvincing. In petitioner’s view, CIC is a “medical service,” even though it may be provided by a nurse or trained layperson; that conclusion rests on its reading of Texas law that confines CIC to uses in accordance with a physician’s prescription and under a physician’s ultimate supervision. Aside from conflicting with the Secretary’s reasonable interpretation of congressional intent, however, such a rule would be anomalous. Nurses in petitioner School District are authorized to dispense oral medications and administer emergency injections in accordance with a physician’s prescription. This kind of service for nonhandicapped children is difficult to distinguish from the provision of CIC to the handicapped. It would be strange indeed if Congress, in attempting to extend special services to handicapped children, were unwilling to guarantee them services of a kind that are routinely provided to the nonhandicapped.
To keep in perspective the obligation to provide services that relate to both the health and educational needs of handicapped students, we note several limitations that should minimize the burden petitioner fears. First, to be entitled to related services, a child must be handicapped so as to require special education. See 20 U. S. C. § 1401(1); 34 CFR §300.5 (1983). In the absence of a handicap that requires special education, the need for what otherwise might qualify as a related service does not create an obligation under the Act. See 34 CFR §300.14, Comment (1) (1983).
Second, only those services necessary to aid a handicapped child to benefit from special education must be provided, regardless how easily a school nurse or layperson could furnish them. For example, if a particular medication or treatment may appropriately be administered to a handicapped child other than during the school day, a school is not required to provide nursing services to administer it.
Third, the regulations state that school nursing services must be provided only if they can be performed by a nurse or other qualified person, not if they must be performed by a physician. See 34 CFR §§ 300.13(a), (b)(4), (b)(10) (1983). It bears mentioning that here not even the services of a nurse are required; as is conceded, a layperson with minimal training is qualified to provide CIC. See also, e. g., Department of Education of Hawaii v. Katherine D., 727 F. 2d 809 (CA9 1983).
Finally, we note that respondents are not asking petitioner to provide equipment that Amber needs for CIC. Tr. of Oral Arg. 18-19. They seek only the services of a qualified person at the school.
We conclude that provision of CIC to Amber is not subject to exclusion as a “medical service,” and we affirm the Court of Appeals’ holding that CIC is a “related service” under the Education of the Handicapped Act.
) — I » — I HH
Respondents sought relief not only under the Education of the Handicapped Act but under §504 of the Rehabilitation Act as well. After finding petitioner liable to provide CIC under the former, the District Court proceeded to hold that petitioner was similarly liable under § 504 and that respondents were therefore entitled to attorney’s fees under § 505 of the Rehabilitation Act, 29 U. S. C. §794a. We hold today, in Smith v. Robinson, post, p. 992, that §504 is inapplicable when relief is available under the Education of the Handicapped Act to remedy a denial of educational services. Respondents are therefore not entitled to relief under § 504, and we reverse the Court of Appeals’ holding that respondents are entitled to recover attorney’s fees. In all other respects, the judgment of the Court of Appeals is affirmed.
It is so ordered.
The Education of the Handicapped Act’s procedures for administrative hearings are set out in 20 U. S. C. § 1415. In this case a hearing officer ruled that the Education of the Handicapped Act did require the school to provide CIC, and the Texas Commissioner of Education adopted the hearing officer’s decision. The State Board of Education reversed, holding that the Act did not require petitioner to provide CIC.
As discussed more fully later, the Education of the Handicapped Act defines “related services” to include “supportive services (including . . . medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education.” 20 U. S. C. § 1401(17).
The District Court dismissed the claims against all defendants other than petitioner and the State Board, though it retained the members of the State Board “in their official capacities for the purpose of injunctive relief.” 516 F. Supp., at 972-974.
The District Court held that § 505 of the Rehabilitation Act, 29 U. S. C. § 794a, which authorizes attorney’s fees as a part of a prevailing party’s costs, abrogated the State Board’s immunity under the Eleventh Amendment. See App. to Pet. for Cert. 56a-60a. The State Board did not petition for certiorari, and the Eleventh Amendment issue is not before us.
Specifically, the “special education and related services” must
“(A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) [be] provided in conformity with the individualized education program required under section 1414(a)(5) of this title.” § 1401(18).
Petitioner claims that courts deciding cases arising under the Education of the Handicapped Act are limited to inquiring whether a school district has followed the requirements of the state plan and has followed the Act’s procedural requirements. However, we held in Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U. S. 176, 206, n. 27 (1982), that a court is required “not only to satisfy itself that the State has adopted the state plan, policies, and assurances required by the Act, but also to determine that the State has created an [individualized education plan] for the child in question which conforms with the requirements of § 1401(19) [defining such plans].” Judicial review is equally appropriate in this case, which presents the legal question of a school’s substantive obligation under the “related services” requirement of § 1401(17).
The Department of Education has agreed with this reasoning in an interpretive ruling that specifically found CIC to be a “related service.” 46 Fed. Reg. 4912 (1981). Accord, Tokarcik v. Forest Hills School District, 665 F. 2d 443 (CA3 1981), cert. denied sub nom. Scanlon v. Tokarcik, 458 U. S. 1121 (1982). The Secretary twice postponed temporarily the effective date of this interpretive ruling, see 46 Fed. Reg. 12495 (1981); id., at 18975, and later postponed it indefinitely, id., at 25614. But the Department presently does view CIC services as an allowable cost under Part B of the Act. Ibid.
The obligation to provide special education and related services is expressly phrased as a “conditiofn]” for a state to receive funds under the Act. See 20 U. S. C. § 1412; see also S. Rep. No. 94-168, p. 16 (1975). This refutes petitioner’s contention that the Act did not “impos[e] an obligation on the States to spend state money to fund certain rights as a condition of receiving federal moneys” but “spoke merely in precatory terms,” Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 18 (1981).
The Secretary of Education is empowered to issue such regulations as may be necessary to carry out the provisions of the Act. 20 U. S. C. § 1417(b). This function was initially vested in the Commissioner of Education of the Department of Health, Education, and Welfare, who promulgated the regulations in question. This function was transferred to the Secretary of Education when Congress created that position, see Department of Education Organization Act, §§ 301(a)(1), (2)(H), 93 Stat. 677, 20 U. S. C. §§ 3441(a)(1), (2)(H).
The regulations actually define only those “medical services” that are owed to handicapped children: “services provided by a licensed physician to determine a child’s medically related handicapping condition which results in the child’s need for special education and related services.” 34 CFR § 300.13(b)(4) (1983). Presumably this means that “medical services” not owed- under the statute are those “services by a licensed physician” that serve other purposes.
Children with serious medical needs are still entitled to an education. For example, the Act specifically includes instruction in hospitals and at home within the definition of “special education.” See 20 U. S. C. § 1401(16).
Petitioner attempts to distinguish the administration of prescription drugs from the administration of CIC on the ground that Texas law expressly limits the liability of school personnel performing the former, see Tex. Educ. Code Ann. § 21.914(c) (Supp. 1984), but not the latter. This distinction, however, bears no relation to whether CIC is a “related service.” The introduction of handicapped children into a school creates numerous new possibilities for injury and liability. Many of these risks are more serious than that posed by CIC, which the courts below found is a safe procedure even when performed by a 9-year-old girl. Congress assumed that states receiving the generous grants under the Act were up to the job of managing these new risks. Whether petitioner decides to purchase more liability insurance or to persuade the State to extend the limitation on liability, the risks posed by CIC should not prove to be a large burden.
We need not address respondents’ claim that CIC, in addition to being a “related service,” is a “supplementary ai[d] and servic[e]” that petitioner must provide to enable Amber to attend classes with nonhandicapped students under the Act’s “mainstreaming” directive. See 20 U. S. C. § 1412(5)(B). Respondents have not sought an order prohibiting petitioner from educating Amber with handicapped children alone. Indeed, any request for such an order might not present a live controversy. Amber’s present individualized education program provides for regular public school classes with nonhandicapped children. And petitioner has admitted that it would be far more costly to pay for Amber’s instruction and CIC services at a private school, or to arrange for home tutoring, than to provide CIC at the regular public school placement provided in her current individualized education program. Tr. of Oral Arg. 12. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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CAPPAERT et al. v. UNITED STATES et al.
No. 74-1107.
Argued January 12, 1976
Decided June 7, 1976
Burger, C. J., delivered the opinion for a unanimous Court.
Samuel S. Lionel argued the cause and filed briefs for petitioners in No. 74-1107. George Allison, Special Deputy Attorney General of Nevada, argued the cause for petitioner in No. 74G1304. With him on the briefs was Peter D. Laxalt, Special Deputy Attorney General.
Deputy Solicitor General Randolph argued the cause for the United States in both cases. With him on the brief were Solicitor General Bork, Acting Assistant Attorney General Kiechel, Harry R. Sachse, Jacques B. Gelin, John H. Germeraad, and Robert L. Klarquist.
Together with No. 74-1304, Nevada ex rel. Westergard v. United States et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal in both cases were filed (1) for the States of Colorado, North Dakota, and Washington by J. D. MacFarlane, Attorney General of Colorado, Jean IS. Dubofsky, Deputy Attorney General, Edward G. Donovan, Solicitor General, David W. Robbins, First Assistant Attorney General, Charles M. Elliott, Special Assistant Attorney General, Allen I. Olson, Attorney General of North Dakota, Gerald W. Vandewalle, Chief Deputy Attorney General, Slade Gorton, Attorney General of Washington, and Charles B. Roe, Senior Assistant Attorney General; and (2) for the States of Arizona, Hawaii, Idaho, Kansas, Montana, Nebraska, New Mexico, Oklahoma, South Dakota, Utah, and Wyoming by Bruce Babbitt, Attorney General of Arizona, Ronald Y. Amemiya, Attorney General of Hawaii, Wayne L. Kidwell, Attorney General of Idaho, Curt T. Schneider, Attorney General of Kansas, Robert L. Woodahl, Attorney General of Montana, Paul L. Douglas, Attorney General of Nebraska, Antonio Anaya, Attorney General of New Mexico, Larry Derryberry, Attorney General of Oklahoma, William J. Janklow, Attorney General of South Dakota, Vernon B. Romney, Attorney General of Utah, and V. Frank Mendicino, Attorney General of Wyoming.
Bruce R. Green and Robert S. Pelcyger filed a brief for the Salt River Pima-Maricopa Indian Community et al. as amici curias urging affirmance in No. 74G1304.
Evelle J. Younger, Attorney General, Carl Boronkay, Assistant Attorney General, and Roderick Walston, Richard C. Jacobs, and. Douglas B. Noble, Deputy Attorneys General, filed a brief for the State of California as amicus curiae in No. 74^1304.
Me. Chief Justice Burger
delivered the opinion of the Court.
The question presented in this litigation is whether the reservation of Devil's Hole as a national monument reserved federal water rights in unappropriated water.
Devil’s Hole is a deep limestone cavern in Nevada. Approximately 50 feet below the opening of the cavern is a pool 65 feet long, 10 feet wide, and at least 200 feet deep, although its actual depth is unknown. The pool is a remnant of the prehistoric Death Valley Lake System and is situated on land owned by the United States since the Treaty of Guadalupe Hidalgo in 1848, 9 Stat. 922. By the Proclamation of January 17, 1952, President Truman withdrew from the public domain a 40-acre tract of land surrounding Devil’s Hole, making it a detached component of the Death Valley National Monument. Proclamation No. 2961, 3 CFR 147 (1949-1953 Comp.) , The Proclamation was issued under the American Antiquities Preservation Act, 34 Stat. 225, 16 U. S. C. § 431, which authorizes the President to declare as national monuments “objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States . . .
The 1952 Proclamation notes that Death Valley was set aside as a national monument “for the preservation of the unusual features of scenic, scientific, and educational interest therein contained.” The Proclamation also notes that Devil’s Hole is near Death Valley and contains a “remarkable underground pool.” Additional preambulary statements in the Proclamation explain why Devil’s Hole was being added to the Death Valley National Monument:
“Whereas the said pool is a unique subsurface remnant of the prehistoric chain of lakes which in Pleistocene times formed the Death Valley Lake System, and is unusual among caverns in that it is a solution area in distinctly striated limestone, while also owing its formation in part to fault action; and
“Whereas the geologic evidence that this subterranean pool is an integral part of the hydrographic history of the Death Valley region is further confirmed by the presence in this pool of a peculiar race of desert fish, and zoologists have demonstrated that this race of fish, which is found nowhere else in the world, evolved only after the gradual drying up of the Death Valley Lake System isolated this fish population from the original ancestral stock that in Pleistocene times was common to the entire region; and
“Whereas the said pool is of such outstanding scientific importance that it should be given special protection, and such protection can be best afforded by making the said forty-acre tract containing the pool a part of the said monument . . . .”
The Proclamation provides that Devil’s Hole should be supervised, managed, and directed by the National Park Service, Department of the Interior. Devil's Hole is fenced off, and only limited access is allowed by the Park Service.
The Cappaert petitioners own a 12,000-acre ranch near Devil's Hole, 4,000 acres of which are used for growing Bermuda grass, alfalfa, wheat, and barley; 1,700 to 1,800 head of cattle are grazed. The ranch represents an investment of more than $7 million; it employs more than 80 people with an annual payroll of more than $340,000.
In 1968 the Cappaerts began pumping groundwater on their ranch on land 2y2 miles from Devil's Hole; they were the first to appropriate groundwater. The groundwater comes from an underground basin or aquifer which is also the source of the water in Devil's Hole. After the Cappaerts began pumping from the wells near Devil’s Hole, which they do from March to October, the summer water level of the pool in Devil’s Hole began to decrease. Since 1962 the level of water in Devil's Hole has been measured with reference to a copper washer installed on one of the walls of the hole by the United States Geological Survey. Until 1968, the water level, with seasonable variations, had been stable at 1.2 feet below the copper marker. In 1969 the water level in Devil’s Hole was 2.3 feet below the copper washer; in 1970, 3.17 feet; in 1971, 3.48 feet; and, in 1972, 3.93 feet.
When the water is at the lowest levels, a large portion of a rock shelf in Devil’s Hole is above water. However, when the water level is at 3.0 feet below the marker or higher, most of the rock shelf is below water, enabling algae to grow on it. This in turn enables the desert fish (cyprinodon diabolis, commonly known as Devil’s Hole pupfish), referred to in President Truman’s Proclamation, to spawn in the spring. As the rock shelf becomes exposed, the spawning area is decreased, reducing the ability of the fish to spawn in sufficient quantities to prevent extinction.
In April 1970 the Cappaerts, pursuant to Nevada law, Nev. Rev. Stat. §533.325 (1973), applied to the State Engineer, Roland D. Westergard, for permits to change the use of water from several of their wells. Although the United States was not a party to that proceeding and was never served, employees of the National Park Service learned of the Cappaerts’ application through a public notice published pursuant to Nevada law. § 533.360. An official of the National Park Service filed a protest as did a private firm. Nevada law permits interested persons to protest an application for a permit; the protest may be considered by the State Engineer at a hearing. § 533.365. A hearing was conducted on December 16, 1970, and a field solicitor of the Department of the Interior appeared on behalf of the National Park Service. He presented documentary and testimonial evidence, informing the State Engineer that because of the declining water level of Devil’s Hole the United States had commissioned a study to determine whether the wells on the Cappaerts’ land were hydrologically connected to Devil’s Hole and, if so, which of those wells could be pumped safely and which should be limited to prevent lowering of the water level in Devil’s Hole. The Park Service field solicitor requested either that the Cappaerts’ application be denied or that decision on the application be postponed until the studies were completed.
The State Engineer declined to postpone decision. At the conclusion of the hearing he stated that there was no recorded federal water right with respect to Devil’s Hole, that the testimony indicated that the Cappaerts’ pumping would not unreasonably lower the water table or adversely affect existing water rights, and that the permit would be granted since further economic development of the Cappaerts’ land would be in the public interest. In his oral ruling the State Engineer stated in part that “the protest to the applications that are the subject of this hearing are overruled and the applications will be issued subject to existing rights.” The National Park Service did not appeal. See Nev. Rev. Stat. § 533.450 (1973).
In August 1971 the United States, invoking 28 U. S. C. § 1345, sought an injunction in the United States District Court for the District of Nevada to limit, except for domestic purposes, the Cappaerts’ pumping from six specific wells and from specific locations near Devil’s Hole. The complaint alleged that the United States, in establishing Devil’s Hole as part of Death Valley National Monument, reserved the unappropriated waters appurtenant to the land to the extent necessary for the requirements and purposes of the reservation. The complaint further alleged that the Cappaerts had no perfected water rights as of the date of the reservation. The United States asserted that pumping from certain of the Cappaerts’ wells had lowered the water level in Devil’s Hole, that the lower water level was threatening the survival of a unique species of fish, and that irreparable harm would follow if the pumping were not enjoined. On June 2, 1972, the United States filed an amended complaint, adding two other specified wells to the list of those to be enjoined.
The Cappaerts answered, admitting that their wells draw water from the same underlying sources supplying Devil’s Hole, but denying that the reservation of Devil’s Hole reserved any water rights for the United States. The Cappaerts alleged that the United States was estopped from enjoining use of water under land which it had exchanged with the Cappaerts. The State of Nevada intervened on behalf of the State Engineer as a party defendant but raised no affirmative defenses.
On June 5, 1973, the District Court, by Chief Judge Roger D. Foley, entered a preliminary injunction limiting pumping from designated wells so as to return the level of Devil’s Hole to not more than 3.0 feet below the marker. Detailed findings of fact were made and the District Judge then appointed a Special Master to establish specific pumping limits for the wells and to monitor the level of the water at Devil’s Hole. The District Court found that the water from certain of the wells was hydrologically connected to Devil’s Hole, that the Cappaerts were pumping heavily from those wells, and that that pumping had lowered the water level in Devil’s Hole. The court also found that the pumping could be regulated to stabilize the water level at Devil’s Hole and that neither establishing an artificial shelf nor transplanting the fish was a feasible alternative that would preserve the species. The District Court further found that if the injunction did not issue “there is grave danger that the Devil’s Hole pupfish may be destroyed, resulting in irreparable injury to the United States.” 375 F. Supp. 456, 460 (1974).
The District Court then held that in establishing Devil’s Hole as a national monument, the President reserved appurtenant, unappropriated waters necessary to the purpose of the reservation; the purpose included preservation of the pool and the pupfish in it. The District Court also held that the federal water rights antedated those of the Cappaerts, that the United States was not estopped, and that the public interest required granting the injunction. On April 9, 1974, the District Court entered its findings of fact and conclusions of law substantially unchanged in a final decree permanently enjoining pumping that lowers the level of the water below the 3.0-foot level. 375 F. Supp. 456 (1974).
The Court of Appeals for the Ninth Circuit affirmed, 508 F. 2d 313 (1974), in a thorough opinion by Senior District Judge Gus J. Solomon, sitting by designation, holding that the implied-reservation-of-water doctrine applied to groundwater as well as to surface water. The Court of Appeals held that “[t]he fundamental purpose of the reservation of the Devil’s Hole pool was to assure that the pool would not suffer changes from its condition at the time the Proclamation was issued in 1952 . . . .” Id., at 318. The Court of Appeals further held that neither the Cappaerts nor their successors in interest had any water rights in 1952, nor was the United States estopped from asserting its water rights by exchanging land with the Cappaerts. In answer to contentions raised by the intervenor Nevada, the Court of Appeals held that “the United States is not bound by state water laws when it reserves land from the public domain,” id., at 320, and does not need to take steps to perfect its rights with the State; that the District Court had concurrent jurisdiction with the state courts to resolve this claim; and, that the state administrative procedures granting the Cappaerts’ permit did not bar resolution of the United States’ suit in Federal District Court.
We granted certiorari to consider the scope of the implied-reservation-of-water-rights doctrine. 422 U. S. 1041 (1975). We affirm.
I
Reserved-Water-Rights Doctrine
This Court has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators. Reservation of water rights is empowered by the Commerce Clause, Art. I, § 8, which permits federal regulation of navigable streams, and the Property Clause, Art. IV, § 3, which permits federal regulation of federal lands. The doctrine applies to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams. Colorado River Water Cons. Dist. v. United States, 424 U. S. 800, 805 (1976); United States v. District Court for Eagle County, 401 U. S. 520, 522-523 (1971); Arizona v. California, 373 U. S. 546, 601 (1963); FPC v. Oregon, 349 U. S. 435 (1955); United States v. Powers, 305 U. S. 527 (1939); Winters v. United States, 207 U. S. 564 (1908).
Nevada argues that the cases establishing the doctrine of federally reserved water rights articulate an equitable doctrine calling for a balancing of competing interests. However, an examination of those cases shows they do not analyze the doctrine in terms of a balancing test. For example, in Winters v. United States, supra, the Court did not mention the use made of the water by the upstream landowners in sustaining an injunction barring their diversions of the water. The “Statement of the Case” in Winters notes that the upstream users were homesteaders who had invested heavily in dams to divert the water to irrigate their land, not an unimportant interest. The Court held that when the Federal Government reserves land, by implication it reserves water rights sufficient to accomplish the purposes of the reservation.
In determining whether there is a federally reserved water right implicit in a federal reservation of public land, the issue is whether the Government intended to reserve unappropriated and thus available water. Intent is inferred if the previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created. See, e. g., Arizona v. California, supra, at 599-601; Winters v. United States, supra, at 576. Both the District Court and the Court of Appeals held that the 1952 Proclamation expressed an intention to reserve unappropriated water, and we agree. The Proclamation discussed the pool in Devil’s Hole in four of the five preambles and recited that the “pool . . . should be given special protection.” Since a pool is a body of water, the protection contemplated is meaningful only if the water remains; the water right reserved by the 1952 Proclamation was thus explicit, not implied.
Also explicit in the 1952 Proclamation is the authority of the Director of the Park Service to manage the lands of Devil’s Hole Monument “as provided in the act of Congress entitled 'An Act to establish a National Park Service, and for other purposes,’ approved August 25,1916 (39 Stat. 535; 16 U. S. C. 1-3) . . . .” The National Park Service Act provides that the “fundamental purpose of the said parks, monuments, and reservations” is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 39 Stat. 535, 16 U. S. C. § 1.
The implied-reservation-of-water-rights doctrine, however, reserves only that amount of water necessary to fulfill the purpose of the reservation, no more. Arizona v. California, supra, at 600-601. Here the purpose of reserving Devil’s Hole Monument is preservation of the pool. Devil’s Hole was reserved “for the preservation of the unusual features of scenic, scientific, and educational interest.” The Proclamation notes that the pool contains “a peculiar race of desert fish . . . which is found nowhere else in the world” and that the “pool is of . . . outstanding scientific importance . . . .” The pool need only be preserved, consistent with the intention expressed in the Proclamation, to the extent necessary to preserve its scientific interest. The fish are one of the features of scientific interest. The preamble noting the scientific interest of the pool follows the preamble describing the fish as unique; the Proclamation must be read in its entirety. Thus, as the District Court has correctly determined, the level of the pool may be permitted to drop to the extent that the drop does not impair the scientific value of the pool as the natural habitat of the species sought to be preserved. The District Court thus tailored its injunction, very appropriately, to minimal need, curtailing pumping only to the extent necessary to preserve an adequate water level at Devil’s Hole, thus implementing the stated objectives of the Proclamation.
Petitioners in both cases argue that even if the intent of the 1952 Proclamation were to maintain the pool, the American Antiquities Preservation Act did not give the President authority to reserve a pool. Under that Act, according to the Cappaert petitioners, the President may reserve federal lands only to protect archeologic sites. However, the language of the Act which authorizes the President to proclaim as national monuments “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government” Is not so limited. The pool in Devil’s Hole and its rare inhabitants are “objects of historic or scientific interest.” See generally Cameron v. United States, 252 U. S. 450, 451-456 (1920).
II
Groundwater
No cases of this Court have applied the doctrine of implied reservation of water rights to groundwater. Nevada argues that the implied-reservation doctrine is limited to surface water. Here, however, the water in the pool is surface water. The federal water rights were being depleted because, as the evidence showed, the “[gjroundwater and surface water are physically interrelated as integral parts of the hydrologic cycle.” C. Corker, Groundwater Law, Management and Administration, National Water Commission Legal Study No. 6, p. xxiv (1971). Here the Cappaerts are causing the water level in Devil’s Hole to drop by their heavy pumping. See Corker, supra; see also Water Policies for the Future- — -Final Report to the President and to the Congress of the United States by the National Water Commission 233 (1973). It appears that Nevada itself may recognize the potential interrelationship between surface and ground water since Nevada applies the law of prior appropriation to both. Nev. Rev. Stat. §§ 533.010 et seq., 534.020, 534.080, 534.090 (1973). See generally F. Tre-lease, Water Law — Resource Use and Environmental Protection 457-552 (2d ed. 1974); C. Meyers & A. Tar-lock, Water Resource Management 553-634 (1971). Thus, since the implied-reservation-of-water-rights doctrine is based on the necessity of water for the purpose of the federal reservation, we hold that the United States can protect its water from subsequent diversion, whether the diversion is of surface or ground water.
Ill
State Law
Petitioners in both cases argue that the Federal Government must perfect its implied water rights according to state law. They contend that the Desert Land Act of 1877, 19 Stat. 377, 43 U. S. C. § 321, and its predecessors severed nonnavigable water from public land, subjecting it to state law. That Act, however, provides that patentees of public land acquire only title to land through the patent and must acquire water rights in nonnavigable water in accordance with state law. Cali fornia Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 162 (1935); see Morreale, Federal-State Conflicts Over Western Waters — A Decade of Attempted “Clarifying Legislation,” 20 Rutgers L. Rev. 423, 432 (1966). This Court held in FPC v. Oregon, 349 U. S. 435, 448 (1955), that the Desert Land Act does not apply to water rights on federally reserved land.
The Cappaert petitioners argue that FPC v. Oregon, supra, must be overruled since, inter alia, the Court was unaware at the time that case was decided that there was no longer any public land available for homesteading. However, whether or not there was public land available for homesteading in 1955 is irrelevant to the meaning of the 1877 Act. The Desert Land Act still provides that the water rights of those who received their land from federal patents are to be governed by state law. That there may be no more federal land available for homesteading does not mean the Desert Land Act now applies to all federal land. Since the Act is inapplicable, determination of reserved water rights is not governed by state law but derives from the federal purpose of the reservation; the fact that the water rights here reserved apply to nonnavigable rather than navigable waters is thus irrelevant.
Since FPC v. Oregon, supra, was decided, several bills have been introduced in Congress to subject at least some federal water uses to state appropriation doctrines, but none has been enacted into law. The most recent bill, S. 28, 92d Cong., 1st Sess., was introduced on January 25, 1971, and reintroduced under the same number in the 93d Cong., 1st Sess., on January 4, 1973. See Morreale, supra.
Federal water rights are not dependent upon state law or state procedures and they need not be adjudicated only in state courts; federal courts have jurisdiction under 28 U. S. C. § 1345 to adjudicate the water rights claims of the United States. Colorado River Water Cons. Dist. v. United States, 424 U. S., at 807-809. The McCarran Amendment, 66 Stat. 560, 43 U. S. C. § 666, did not repeal § 1345 jurisdiction as applied to water rights. 424 U. S., at 808-809. Nor, as Nevada suggests, is the McCarran Amendment a substantive statute, requiring the United States to “perfect its water rights in the state forum like all other land owners.” Brief for Nevada 37. The McCarran Amendment waives United States sovereign immunity should the United States be joined as a party in a state-court general water rights’ adjudication, Colorado River Water Cons. Dist. v. United States, supra, at 808, and the policy evinced by the Amendment may, in the appropriate case, require the United States to adjudicate its water rights in state forums. Id., at 817-820.
IY
Res Judicata
Finally, Nevada, as intervenor in the Cappaerts’ suit, argued in the Court of Appeals that the United States was barred by res judicata or collateral estoppel from litigating its water-rights claim in federal court. Nevada bases this conclusion on the fact that the National Park Service filed a protest to the Cappaerts’ pumping permit application in the state administrative proceeding. Since we reject that contention, we need not consider whether the issue was timely and properly raised. We note only that the United States was not made a party to the state administrative proceeding; nor was the United States in privity with the Cappaerts. See Blonder-Tongue Labs., Inc. v. University of Illinois Foundation, 402 U. S. 313, 320-326 (1971). When the United States appeared to protest in the state proceeding it did not assert any federal water-rights claims, nor did it seek to adjudicate any claims until the hydrological studies as to the effects of the Cappaerts’ pumping had been completed. The fact that the United States did not attempt to adjudicate its water rights in the state proceeding is not significant since the United States was not a party. The State Water Engineer’s decree explicitly stated that it was “subject to existing rights”; thus, the issue raised in the District Court was not decided in the proceedings before the State Engineer. See Blonder-Tongue Labs., Inc. v. University of Illinois Foundation, supra, at 323. Cf. United States v. Utah Constr. & Min. Co., 384 U. S. 394, 422 (1966).
We hold, therefore, that as of 1952 when the United States reserved Devil’s Hole, it acquired by reservation water rights in unappropriated appurtenant water sufficient to maintain the level of the pool to preserve its scientific value and thereby implement Proclamation No. 2961. Accordingly, the judgment of the Court of Appeals is
Affirmed.
The final paragraphs of the Proclamation withdrawing Devil’s Hole from the public domain recite:
“Now, Therefore, I, Harry S. Truman, President of the United States of America, under and by virtue of the authority vested in me by section 2 of the act of June 8, 1906, 34 Stat. 225 (16 U. S. C. 431), do proclaim that, subject to the provisions of the act of Congress approved June 13, 1933, 48 Stat. 139 (16 U. S. C. 447), and to all valid existing rights, the following-described tract of land in Nevada is hereby added to and reserved as a part of the Death Valley National Monument, as a detached unit thereof:
“Mount Diablo Meridian, Nevada T. 17 S., R. 50 E., sec. 36, SW %SE%.
“Warning is hereby expressly given to all unauthorized persons not to appropriate, injure, destroy, or remove any feature of this addition to the said monument and not to locate or settle on any of the lands thereof.”
Title 28 U. S. C. § 1345 provides as follows:
“Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.”
On appeal from the preliminary injunction, the Court of Appeals, in response to a motion from the Cappaerts to modify the injunction to permit them to pump to 3.7 feet below the copper marker, had permitted the Cappaerts to pump so long as the water level did not drop more than 3.3 feet below the marker. 483 F. 2d 432 (1973).
Nevada is asking, in effect, that the Court overrule Arizona v. California, 373 U. S. 546 (1963), and United States v. District Court for Eagle County, 401 U. S. 520 (1971), to the extent that they hold that the implied-reservation doctrine applies to all federal enclaves since in so holding those cases did not balance the “competing equities.” Brief for Nevada 15. However, since balancing the equities is not the test, those cases need not be disturbed.
The District Court and the Court of Appeals correctly held that neither the Cappaerts nor their predecessors in interest had acquired any water rights as of 1952 when the United States’ water rights vested. Part of the land now comprising the Cappaerts’ ranch was patented by the United States to the Cappaerts’ predecessors as early as 1890. None of the patents conveyed water rights because the Desert Land Act of 1877, 19 Stat. 377, 43 U. S. C. § 321, provided that such patents pass title only to land, not water. Pat-entees acquire water rights by “bona fide prior appropriation,” as determined by state law. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142 (1935). Under Nevada law water rights can be created only by appropriation for beneficial use. Nev. Rev. Stat. §§ 533.030, 534.020, 533.325 (1973). Jones v. Adams, 19 Nev. 78, 6 P. 442 (1885). Under the doctrine of prior appropriation, the first to divert and use water beneficially establishes a right to its continued use as Jong as the water is beneficially diverted. See Colorado River Water Cons. Dist. v. United States, 424 U. S. 800, 805 (1976). See also J. Sax, Water Law, Planning & Policy — Cases and Materials, 218-224 (1968). Neither the Cappaerts nor their predecessors in interest appropriated any water until after 1952.
Some Cappaert wells are on land acquired from the United States in 1969 through a land exchange under § 8 of the Taylor Grazing Act of 1934, 48 Stat. 1272, as amended, 43 U. S. C. § 315g (b). In this exchange the Cappaerts received land within one mile of Devil’s Hole under a patent granting them "all rights, privileges, immunities and appurtenances . . . subject to any vested and accrued water rights for mining, agriculture, manufacturing or other ;purposes. . . .” (Emphasis supplied.) The federal water rights in Devil’s Hole had vested 17 years before that exchange.
The 1952 Proclamation forbids unauthorized persons to “appropriate, injure, destroy, or remove any feature” from the reservation. Since water is a “feature” of the reservation, the Cappaerts, by their pumping, are “appropriating” or “removing” this feature in violation of the Proclamation.
Petitioners in both cases argue that the effect of applying the implied-reservation doctrine to diversions of groundwater is to prohibit pumping from the entire 4,500 square miles above the aquifer that supplies water to Devil's Hole. First, it must be emphasized that the injunction limits but does not prohibit pumping. Second, the findings of fact in this case relate only to wells within 2% miles of Devil’s Hole. No proof was introduced in the District Court that pumping from the same aquifer that supplies Devil’s Hole, but at a greater distance from Devil’s Hole, would significantly lower the level in Devil’s Hole. Nevada notes that such pumping “will in time affect the water level in Devil’s Hole.” Brief for Nevada 25. There was testimony from a research hydrologist that substantial pumping 40 miles away “[ojver a period of perhaps decades [would have] a small effect.” App. 79.
The predecessors of the Desert Land Act of 1877 are the Act of July 26, 1866, c. 262, 14 Stat. 251, and the Act of July 9, 1870, 16 Stat. 217. Those Acts provided that water rights vested under state law or custom are protected. However, the Cappaerts did not have any vested water rights in 1952. See n. 5, supra.
The cases relied upon by the Cappaerts are not to the contrary. E. g., United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950); Ickes v. Fox, 300 U. S. 82 (1937); Dority v. New Mexico ex rel. Bliss, 341 U. S. 924 (1951). None involve a federal reservation and all involve a determination whether water rights had vested under state law. Here a federal reservation is involved and neither the Cappaerts nor their predecessors in interest had any vested water rights in 1952 when the United States’ water rights vested.
Nebraska v. Wyoming, 325 U. S. 589 (1945), also relied upon by the Cappaerts, involved a federal reservation pursuant to the Reclamation Act of June 17, 1902, 32 Stat. 388, which directs the Secretary of the Interior to “proceed in conformity with [state] laws” and which provides that “the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” In Nebraska v. Wyoming, the Court noted that the United States had acted in conformity with state law. The Court said: “We intimate no opinion whether a different procedure might have been followed so as to appropriate and reserve to the United States all of these water rights. No such attempt was made.” 325 U. S., at 615. Here the United States acquired reserved water rights through a reservation authorized, not by the Reclamation Act, but by the Antiquities Act.
Nevada argues that the discussion of the implied-reservation doctrine in FPC v. Oregon was dictum as that case involved the supremacy of the Federal Power Act, 49 Stat. 863, 16 U. S. C. §§ 791a-825r (1952 ed., Supp. II) over state law. To the extent that the Federal Power Act authorized reservation of unappropriated water for the electrical needs of the federal project, so too did the Antiquities Act authorize implicit reservation of unappropriated water for the purposes of the Devil’s Hole reservation.
See n. 2, supra.
The eases petitioners in both cases rely upon involve parties who collaterally attacked an administrative determination. Here the United States was never a party.
The United States requested either that the permits be denied or decision postponed until the studies were completed. While the State Engineer did not postpone decision on the permit application, the Cappaerts’ attorney said that the studies “will go forward whether or not the applications are granted; so let’s not make the mistake of thinking that if these applications are granted the studies are moot, they are not.” App. 307. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
COMMISSIONER OF INTERNAL REVENUE v. SOUTHWEST EXPLORATION CO.
NO. 286.
Argued January 23-24, 1956.
Decided February 27, 1956.
Hilbert P. Zarky argued the causes for petitioners. With him on the briefs were Solicitor General Sobeloff, Assistant Attorney General Holland and Ellis N. Slack.
Melvin D. Wilson argued the cause and filed a brief for respondent in No. 286. Joseph D. Peeler entered an appearance for respondent.
Harry R. Horrow argued the cause for respondent in No. 287. With him on the brief was Francis R. Kirkham.
Mr. Justice Clark
delivered the opinion of the Court.
The Southwest Exploration Co., respondent in No. 286, contracted to develop certain oil deposits lying off the coast of California by whipstock drilling from sites located on the property of adjacent upland owners. Southwest agreed to pay to such owners 24%% of the net profits for the use of their land. Both Southwest and the upland owners sought to take the statutory depletion allowance of 27%% on this share of the profits. The Tax Court decided that Southwest was entitled to the depletion allowance, 18 T. C. 961, and the Ninth Circuit affirmed, 220 F. 2d 58. In the other case, the Court of Claims held that one of the upland owners, Huntington Beach Co., respondent in No. 287, was entitled to the depletion allowance on its share of the net income, 132 Ct. Cl. 427, 132 F. Supp. 718. We granted certiorari in both cases, 350 U. S. 818, because both-the drilling company and the upland owners cannot be entitled to depletion on the same income. We agree with the Court of Claims.
The California State Lands Act of 1938 provided that the State’s offshore oil might be extracted only from wells drilled on filled lands or slant drilled from upland drill sites to the submerged oil deposits. Other provisions of the same statute required that “derricks, machinery, and any and all other surface structures, equipment, and appliances” be located only on filled lands or uplands. It was further provided that the state commission might require each prospective bidder for such a state lease to furnish, as a condition precedent to consideration of his bid, satisfactory evidence of “present ability to furnish all necessary sites and rights of way for all operations contemplated under the provisions of the proposed lease.”
In 1938 California published notice of its intention to receive bids for the lease of certain oil lands pursuant to this statute. At the time Southwest — a corporation organized in 1933 but completely inactive until the transaction at issue here — did not own, lease, operate or control any of the uplands adjacent to the area of oil deposits. It is agreed that there were no filled lands available. Southwest entered into three agreements with the upland owners, and was granted the right of ingress to and egress from the designated uplands and the right to construct, use and maintain all equipment necessary for drilling on the same lands. The upland owners reserved to themselves the right to give easements or subsurface well crossings in the uplands, except that they would not allow such easements for the purpose of drilling into the offshore oil deposits while Southwest retained an interest granted to it by state easement. Southwest’s rights were expressly subject to all rights previously granted by the upland owners. The agreements defined “net profits” and provided that Southwest would pay a total of 24%% of its net profits from extraction and sale of oil to the upland owners. It was also provided that the upland owners did not acquire a share in the lease or oil deposit by virtue of the last agreement and that it was not the intention of the parties to create a partnership relationship.
As a result of these agreements, the upland owners endorsed Southwest’s bid for a lease submitted to the State of California. Southwest, as the only bidder, was granted “Easement No. 392” by the State in consideration of the “royalty to be paid, the covenants to be performed, and the conditions to be observed by the Grantee.” One such condition was that set out in paragraph (1):
“That each well drilled pursuant to the terms of this agreement shall be slant drilled from the uplands to and into the subsurface of the State lands. Derricks, machinery, and any and all other surface structures, equipment and appliances shall be located only upon the uplands and all surface operations shall. be conducted therefrom.”
The agreement further provided that, if Southwest should “default in the performance or observance of any of the terms,' covenants and stipulations hereof,” the State might re-enter, cancel the agreement or close down wells not being operated according to the agreement.
The wells drilled pursuant to this lease have produced oil continuously since 1939. In No. 286, Southwest Exploration Co., the tax years 1939 through 1945 are involved. If Southwest may claim the depletion allow-anee on the upland owner’s share of the profits during this period, its tax liability is reduced by approximately $175,000. In No. 287, Huntington Beach Co., the upland owner is claiming a tax refund of $135,000 for the year 1948 alone.
An allowance for depletion has been recognized in our revenue laws since 1913. It is based on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit. Presently, the depletion allowance is a fixed percentage of gross income which Congress allows to be excluded; this exclusion is designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired. The present allowance, however, bears little relationship to the capital investment, and the taxpayer is not limited to a recoupment of his original investment. The allowance continues so long as minerals are extracted, and even though no money was actually invested in the deposit. The depletion allowance in the Internal Revenue Code of 1939 is solely a matter of congressional grace; it is limited to 27%% of gross income from the property after excluding from gross income “any rents or royalties” paid by the taxpayer with respect to the property.
The complexities of oil operations and risks incident to prospecting have led to intricate, multiparty transactions, so that it is often difficult to determine which parties are entitled to a part of the allowance. The statute merely provides in § 23 (m) that in the case of leases the depletion allowance should be "equitably apportioned between the lessor and lessee.”
In determining which parties are entitled to depletion on oil and gas income, this Court has relied on two interrelated concepts which were first formulated in Palmer v. Bender, 287 U. S. 551. There, the taxpayer, a lessee of certain oil and gas properties, had transferred his interest in these properties to two oil companies in return for a cash bonus, a future payment to be made “out of one-half of the first oil produced and saved,” and an additional royalty of one-eighth of the oil produced and saved. In upholding the taxpayer’s right to depletion on all such income, the Court based its decision on the grounds that a taxpayer is entitled to depletion where he has: (1) “acquired, by investment, any interest in the oil in place,” and (2) secured by legal relationship “income derived from the extraction of the oil, to which he must look for a return of his capital.” 287 U. S., at 557.
These two factors, usually considered together, constitute the requirement of “an economic interest.” This Court has found the requisite interest in the oil in place to have been retained by the assignor of an oil lease, Thomas v. Perkins, 301 U. S. 655, the lessor of oil properties for a share of net profits, Kirby Petroleum Co. v. Commissioner, 326 U. S. 599, and the grantor of oil lands considered as an assignor of drilling rights, Burton-Sutton Oil Co. v. Commissioner, 328 U. S. 25. The Court found no such interest in the case of a processor of natural gas who had only contracted to buy gas after extraction, Helvering v. Bankline Oil Co., 303 U. S. 362, and in the case of a former stockholder who had traded his shares in a corporation which owned oil leases for a share of net income from production of the leased wells, Helvering v. O’Donnell, 303 U. S. 370.
The second factor has been interpreted to mean that the taxpayer must look solely to the extraction of oil or gas for a return of his capital, and depletion has been denied where the payments were not dependent on production, Helvering v. Elbe Oil Land Co., 303 U. S. 372, or where payments might have been made from a sale of any part of the fee interest as well as from production. Anderson v. Helvering, 310 U. S. 404. It is not seriously disputed here that this requirement has been met. The problem revolves around the requirement of an interest in the oil in place.
It is to be noted that in each of the prior cases where the taxpayer has had a sufficient economic interest to entitle him to depletion, he has once had at least a fee or leasehold in the oil-producing properties themselves. No prior depletion case decided by this Court has presented a situation analogous to that here, where a fee owner of adjoining lands necessary to the extraction of oil is claiming a depletion allowance.
Southwest contends that there can be no economic interest separate from the right to enter and drill for oil on the land itself. Since the upland owners did not themselves have the right to drill for offshore oil, it is argued that respondent — who has the sole right to drill — has the sole economic interest. It is true that the exclusive right to drill was granted to Southwest, and it is also true that the agreements expressly create no interest in the oil in the upland owners. But the tax law deals in economic realities, not legal abstractions, and upon closer analysis it becomes clear that these factors do not preclude an economic interest in the upland owners.
Southwest’s right to drill was clearly a conditional rather than an absolute grant. Without the prior agreements with the upland owners, Southwest could not even have qualified as a bidder for a state lease. Permission to use the upland sites was the express condition precedent to the State’s consideration of Southwest’s bid, and it was one of the express conditions on which “Easement No. 392” was granted to Southwest. For a default in that condition the State retained the right to re-enter or to cancel the lease. Thus it is seen that the upland owners have played a vital role at each successive stage of the proceedings. Without their participation there could have been no bid, no lease, no wells and no production.
But Southwest contends that the upland owners here contributed merely property which was useful but not necessary to the drilling operation. The facts are to the contrary. State law required that the wells be drilled either on the uplands or on filled lands, and there were no filled lands available. By hindsight Southwest now suggests that it might have constructed a drilling island which might have been considered as filled land under the statute. Then, too, perhaps the State itself might have changed the law or condemned the uplands under existing law. But none of these possibilities occurred. The fact is that the drilling arrangement was achieved and oil produced in the only way that it could have been, consistent with state law and the express requirements of the State’s lease.
Recognizing that the law of depletion requires an economic rather than a legal interest in the oil in place, we may proceed to the question of whether the upland owners had such an economic interest here. We find that they did. Proximity to the offshore oil deposits and effect of the state law combined to make the upland owners essential parties to any drilling operations. This controlling position greatly enhanced the value of their land when extraction of oil from the State’s offshore fields became a possibility. The owners might have realized this value by selling their interest for a stated sum and no problem of depletion would have been presented. But instead they chose to contribute the use of their land in return for rental based on a share of net profits. This contribution was an investment in the oil in place sufficient to establish their economic interest. Their income was dependent entirely on production, and the value of their interest decreased with each barrel of oil produced. No more is required by any of the earlier cases.
Southwest contends, finally, that if depletion is allowed to the upland owners in this case, it would be difficult to limit the principle in instances of strangers “disassociated from the lease” who may have contributed an essential facility to the drilling operation in return for a share of the net profits. But those problems are not before us in this case where the upland owners could hardly be said to be “disassociated from the lease.” We decide only that where, in the circumstances of this case, a party essential to the drilling for and extraction of oil has made an indispensable contribution of the use of real property adjacent to the oil deposits in return for a share in the net profits from the production of oil, that party has an economic interest which entitles him to depletion on the income thus received.
For the foregoing reasons the judgment in No. 286, as to Southwest Exploration Company, is reversed and that in No. 287, as to Huntington Beach Company, is affirmed.
No. 286, Reversed.
No. 287, Affirmed.
Mr. Justice Douglas dissents.
Mr. Justice Harlan took no part in the consideration or decision of these cases.
In the courts below, the Commissioner took technically inconsistent positions, opposing the depletion allowance in both cases and losing in both. Before this Court the Commissioner urged that depletion be denied the drilling company and allowed to the upland owners on the latter’s 24%% of net profits.
Cal. Stat. (Extra Session 1938), c. 5, § 87,
Id., § 89.
This share was the total of the following percentages of net profits to be paid to the three upland owners:
17.75% to Huntington Beach Company.
1.576% to Pacific Electric Railway Company.
5.174% to Pacific Electric Land Company.
For the tax years 1942 through 1946, Huntington Beach Company claimed and was allowed to deduct depletion on its share of the net profits. The United States is seeking recovery of this money in a suit now pending in the United States District Court for the Northern District of California, Southern Division. The amount at issue there is something over $500,000.
Pertinent sections of the Internal Revenue Code of 1939 provide :
“Sec. 23. DEDUCTIONS FROM GROSS INCOME.
“In computing net income there shall be allowed as deductions:
“(m) Depletion. — In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. ... In the ease of leases the deductions shall be equitably apportioned between the lessor and lessee. . . .
“For percentage depletion allowable under this subsection, see section 114 (b), (3) and (4).” 53 Stat. 12, 14, 26 U. S. C. §23.
“Sec. 114. BASIS FOR DEPRECIATION AND DEPLETION.
“(b) Basis for DepletioN.
“(3) Percentage DEPLETION for oil and gas wells. In the case of oil and gas wells the allowance for depletion under section 23 (m) shall be 27% per centum of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property, except that in no case shall the depletion allowance under section 23 (m) be less than it would be if computed without reference to this paragraph.” 53 Stat. 45, 26 U. S. C. § 114. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
68
] |
UNITED STATES DEPARTMENT OF LABOR v. TRIPLETT et al.
No. 88-1671.
Argued January 16, 1990
Decided March 27, 1990
Scalia, J., delivered the opinion of the Court, in Parts I, II-A, III, and IV of which Rehnquist, C. J., and White, Blackmun, Stevens, O’Con-nor, and Kennedy, JJ., joined, and in Part II-B of which Rehnquist, C. J., and Stevens, O’Connor, and Kennedy, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 727. Marshall, J., filed an opinion concurring in the judgment, in Part II of which Brennan, J., joined, post, p. 728. Brennan, J., filed a separate statement, post, p. 736.
Michael R. Dreeben argued the cause for petitioners in both cases. With him on the briefs for petitioner in No. 88-1671 and respondent in No. 88-1688, under this Court’s Rule 12.4, were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, William Ranter, John S. Roppel, Allen H. Feldman, and Edward D. Sieger. Jack Marden filed a brief for petitioner in No. 88-1688 and respondent in No. 88-1671, under this Court’s Rule 12.4.
Jane Moran argued the cause for respondent Triplett in both cases. On the brief was James A. McRowen.
Together with No. 88-1688, Committee on Legal Ethics of the West Virginia State Bar v. Triplett et al., also on certiorari to the same court.
Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America et al. by Jeffrey Robert White, John P. Ellis, Joseph E. Wolfe, Russ M. Herman, and Michael J. Blachman; and for the United Mine Workers of America by Robert H. Stropp, Jr.
Justice Scalia
delivered the opinion of the Court.
These cases call into question the constitutionality of the Department of Labor’s administration of that provision of the Black Lung Benefits Act of 1972 which prohibits the acceptance of attorney’s fees for the representation of claimants, except such fees as are approved by the Department. Respondent Triplett contends that the Secretary of Labor’s manner of implementing this restriction violates the Due Process Clause of the Fifth Amendment because it renders qualified attorneys unavailable and thereby deprives claimants of legal assistance in the prosecution of their claims.
I
The Black Lung Benefits Act of 1972, 83 Stat. 792, as amended, 30 U. S. C. §901 et seq. (1982 ed. and Supp. V), provides federal funds to those who have been totally disabled by pneumoconiosis, a respiratory disease commonly caused by coal mine employment, and to their eligible survivors. See Pittston Coal Group v. Sebben, 488 U. S. 105, 108 (1988). The Department of Labor (Department) awards benefits after adjudication by a deputy commissioner, and after review (if requested) by an administrative law judge (ALJ), the Benefits Review Board, and a federal court of appeals. 20 CFR §§725.410, 725.419(a), 725.481 (1989); 30 U. S. C. §932(a) (1982 ed., Supp. V) (incorporating 33 U. S. C. § 921(c) (1982 ed.)).
A claimant may be represented throughout these proceedings by an attorney, 20 CFR §§725.362, 725.363(a) (1989), and the Act provides that when the claimant wins a contested case the employer, his insurer, or (in some cases, see 30 U. S. C. §934 (1982 ed.)) the Black Lung Disability Trust Fund shall pay a “reasonable attorney’s fee” to the claimant’s lawyer. 30 U. S. C. § 932(a) (incorporating 33 U. S. C. § 928(a) (1982 ed.)). The Act also incorporates, however, that provision of the Longshore and Harbor Workers’ Compensation Act (LHWCA), 44 Stat. 1438, as amended, 33 U. S. C. § 928(d) (1982 ed.), which prohibits an attorney from receiving a fee — whether from the employer, insurer, or Trust Fund, or from the claimant himself — unless approved by the appropriate agency or court. 30 U. S. C. § 932(a) (1982 ed., Supp. V). The Department’s regulations invalidate all contractual agreements for fees, see 20 CFR §§725.365, 802.203(f) (1989), and the Department will not approve a fee if the claimant is unsuccessful, see Director, OWCP v. Hemingway Transport Inc., 1 BRBS 73, 75 (1974). Once the claimant’s compensation order becomes final, 33 U. S. C. § 928(a), the attorney may apply to each tribunal before whom the services were performed, 20 CFR § 725.366(a) (1989), and shall be awarded a fee “reasonably commensurate with the necessary work done,” § 725.366(b), taking into account “the quality of the representation, the qualifications of the representative, the complexity of the legal issues involved, the level of proceedings to which the claim was raised, the level at which the representative entered the proceedings, and any other information which may be relevant to the amount of fee requested.” Ibid.
Respondent George R. Triplett (hereinafter respondent) violated these restrictions by receiving unapproved fees. He agreed to represent claimants in exchange for 25% of any award obtained, and collected those fees without the required approval. The Committee on Legal Ethics of the West Virginia State Bar initiated a disciplinary action against respondent for these infractions. The committee, after a hearing, recommended a 6-month suspension, and filed a complaint in the West Virginia Supreme Court of Appeals to enforce that sanction.
That court denied enforcement. Although respondent had not raised such a contention, it occurred to the court that the Act’s restriction on payment of fees, as implemented by the Department, might violate the Due Process Clause of the Fifth Amendment and thus be impermissible as the premise for the disciplinary action. After asking for and receiving supplemental briefing on the issue, it held the Department’s implementation of the Act unconstitutional because it “effectively den[ied] claimants necessary access to counsel,” and, alternatively, because it “den[ied] qualified claimants the procedural safeguards provided by Congress that are essential to vindicate the right to benefits also granted by Congress.” 180 W. Va. 533, 536, 544, 378 S. E. 2d 82, 85, 93 (1988). Two justices dissented, finding the factual record upon which the majority relied “woefully inadequate.” Id., at 549, 378 S. E. 2d, at 98.
After issuing this opinion, the court invited the Department to intervene. The Department did so, supplemented the record, and petitioned for rehearing. The court denied the petition in a brief opinion that found the Department’s proffered justifications for the fee limitation system, and its new evidence, unpersuasive. Id., at 547, 378 S. E. 2d, at 96.
Both the Department (in No. 88-1671) and the committee (in No. 88-1688) petitioned for certiorari. We granted the petitions. 493 U. S. 807 (1989).
II
A
We deal first with the parties’ standing. On petitioners’ side, the Committee on Legal Ethics has the classic interest of a government prosecuting agency arguing for the validity of a law upon which its prosecution is based. It has preferred charges against respondent that rest upon his disregard of the fee restrictions administered by the Department; those charges cannot be sustained if the restrictions themselves are unlawful. Since the committee has standing, we need not inquire whether the Department does as well. Bowsher v. Synar, 478 U. S. 714, 721 (1986).
B
On respondent’s side, Triplett invokes not his own legal rights and interests, but those of the black lung claimants who hired him. Respondent’s defense to the disciplinary-proceeding is that the fee scheme he is accused of violating contravenes those claimants’ due process rights because, by prohibiting collection pursuant to voluntary fee agreements and failing to provide adequate alternative means of attorney compensation, it renders claimants unable to obtain legal representation for their black lung claims. Ordinarily, of course, a litigant “ ‘must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 474 (1982) (quoting Warth v. Seldin, 422 U. S. 490, 499 (1975)). This is generally so even when the very same allegedly illegal act that affects the litigant also affects a third party. See United States v. Payner, 447 U. S. 727, 731-732 (1980) (criminal defendant “lacks [third-party] standing under the Fourth Amendment to suppress . . . documents illegally seized from” his banker). When, however, enforcement of a restriction against the litigant prevents a third party from entering into a relationship with the litigant (typically a contractual relationship), to which relationship the third party has a legal entitlement (typically a constitutional entitlement), third-party standing has been held to exist. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 954-958 (1984) (professional fundraiser given third-party standing to challenge statute limiting its commission to 25% as violation of clients’ First Amendment right to hire him for a higher fee). A restriction upon the fees a lawyer may charge that deprives the lawyer’s prospective client of a due process right to obtain legal representation falls squarely within this principle. See Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 623-624, n. 3 (1989). There is no question that a due process right to representation is placed at issue here, since at least one of the claimants who retained respondent received benefits that the Government was seeking to recover as erroneously paid. See 180 W. Va., at 543, n. 31, 378 S. E. 2d, at 92, n. 31; Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 320, n. 8 (1985).
Accordingly, we find standing on both sides of this action.
Ill
In Walters v. National Assn. of Radiation Survivors, supra, we upheld against due process attack a statutory $10 limitation on attorney’s fees payable by veterans seeking disability or death benefits in proceedings before the Veterans’ Administration. We began there, as we begin here, by noting the heavy presumption of constitutionality to which a “carefully considered decision of a coequal and representative branch of our Government” is entitled. Id., at 319. We determined in Walters that the Government had an interest in administering benefits in an informal and nonadversarial fashion so that claimants would receive the entirety of an award without having to divide it with a lawyer. Id., at 321-323. We accorded that interest “great weight,” id., at 326, and required those challenging the law to make “an extraordinarily strong showing of probability of error under the present system — and the probability that the presence of attorneys would sharply diminish that possibility — to warrant a holding that the fee limitation denies claimants due process of law.” Ibid. Applying a similar analysis here, we conclude that the fee limitation scheme must be upheld.
The Government pursues an obvious and legitimate interest through the current regime. The regulation of attorney’s fees payable by claimants themselves is designed to protect claimants from their “improvident contracts, in the interest not only of themselves and their families but of the public.” Yeiser v. Dysart, 267 U. S. 540, 541 (1925) (upholding similar state limitation). When fees are payable by persons other than the claimants, as Congress has provided, regulation is designed to assure fairness to the employer, carrier, or Trust Fund, and to protect those sources from a depletion that would leave other claimants without a source of compensation. The Government has good reason, moreover, to defer payment until the compensation award is final. A regime of payment immediately upon success at every level, subject to recovery in the event the judgment in favor of the claimant is reversed at a higher level, would impose upon the payor the onerous task of seeking to obtain a refund.
In Walters v. National Assn. of Radiation Survivors, supra, we assumed that the fee limitation would make attorneys unavailable to claimants, but nevertheless upheld the statute because attorneys were not essential to vindicate the claims. Here, we need not reach the latter issue unless respondent has proved what was assumed in that case, viz., that the regime made attorneys unavailable to his prospective clients at the time respondent violated the Act. That showing contains two component parts: (1) that claimants could not obtain representation, and (2) that this unavailability of attorneys was attributable to the Government’s fee regime. That is no small burden, and respondent has failed to bear it.
Since the due process issue in this case first arose during the original enforcement proceeding in the West Virginia Supreme Court of Appeals, no lower court had heard evidence or made factual findings. Although the committee had heard evidence concerning respondent’s misconduct, it made no findings regarding the effect .of the fee regime on the availability of lawyers. The “factual record” upon which the court relied to invalidate this federal program consisted of testimony by two lawyers in the disciplinary proceeding, five affidavits attached to an amicus brief to the court, and statements by attorneys in hearings before a House of Representatives Subcommittee in 1985. Since it is critical to our disposition of the case, we shall describe the evidence the court relied upon in some detail.
As to the first issue — unavailability of attorneys — the court relied upon three lawyers’ assessments. One stated that “fewer qualified attorneys are accepting black lung claims,” and that more claimants are proceeding pro se. 180 W. Va., at 541, 378 S. E. 2d, at 90. According to a second attorney, “few attorneys are willing to represent black lung claimants.” Ibid. A third lawyer’s evaluation was not contained in the record, but consisted of his 1985 testimony to the House subcommittee that “many of his colleagues had ‘ . . . stated unequivocally that they would not take black lung cases ....’” Id., at 542, 378 S. E. 2d, at 91 (quoting Hearings on Investigation of Backlog in Black Lung Cases before the Subcommittee on Labor Relations of the House Committee on Education and Labor, 99th Cong., 1st Sess., 188 (1985)). (The court did not mention the testimony of other witnesses before the Subcommittee to the opposite effect. See, e. g., id., at 45.)
This will not do. We made clear in Walters that this sort of anecdotal evidence will not overcome the presumption of regularity and constitutionality to which a program established by Congress is entitled. 473 U. S., at 324, n. 11. The impressions of three lawyers that the current system has produced “few” lawyers, or “fewer qualified attorneys” (whatever that means), and that “many” have left the field, are blatantly insufficient to meet respondent’s burden of proof, even if entirely unrebutted.
In unneeded addition, there was rebuttal here — affirmative indication that attorneys willing to take black lung cases were in adequate supply. Data submitted by the Department in support of its petition for rehearing showed that in 1987 claimants were represented by counsel at the AL J stage in 92% of cases resulting in grant or denial of benefits. Although these statistics are not conclusive of adequate attorney availability (they do not show, for example, the proportion of unrepresented claimants who never reached the ALJ stage), they are the only nonanecdotal evidence in the record, and they powerfully suggest that claimants whose chances of success are high enough to attract contingent-fee lawyers have no difficulty finding them.
Even if respondent had demonstrated an unavailability of attorneys, he would have been obliged further to show that its cause was the regulation of fees. He did not do so. In finding to the contrary, the West Virginia Supreme Court of Appeals relied mainly on statements by attorneys concerning the delay in receiving payment. Of the three lawyers who claimed that there was a shortage of attorneys (see supra, at 723), two attributed the shortage, in part, to the delay in payment of fees. 180 W. Va., at 541, 542, 378 S. E. 2d, at 90, 91. See also id., at 536, n. 6, 378 S. E. 2d, at 85, n. 6 (lawyer testified that he had not yet been paid in “three or four” cases in which he had prevailed); id., at 541-542, 378 S. E. 2d, at 90-91 (testimony at congressional hearings that payment was delayed 2-3 years); id., at 541, 378 S. E. 2d, at 90 (lawyer stated that he is owed more than $30,000 in fees that have been awarded but not paid). The court thought this proved that the delay built into the fee-approval system produced the unavailability of attorneys: “In a small, depressed West Virginia town $30,000 is a substantial amount of money for an individual practitioner. In the long run, as John Maynard Keynes once observed, we are all dead. In the short run, lawyers have offices to run, mortgages to pay and children to educate.” Ibid.
The court did not explain why the Keynesian imperative of cash-on-the-barrelhead has not eliminated the contingent fee, the very institution respondent seeks to shield from regulation — which itself yields no office funds, mortgage payments, or tuition fees until often lengthy litigation is completed. The answer, of course, is that the contingent fees contracted for are high enough to compensate not only for the contingency but also for the delay until the contingency is resolved. There is no apparent reason why compensation cannot render palatable the additional delay inherent in the Department’s approval procedure as well. At one point the West Virginia Supreme Court of Appeals seemed to acknowledge this, asserting that its whole case against the Department’s scheme boils down to the fact that the fees are too low: “It is clear from the evidence before us that most lawyers are unwilling to represent black lung claimants because of the inadequate fees awarded by the DOL.” Id., at 545, 378 S. E. 2d, at 94. The evidence to support this economic assessment is similar to that for the unavailability of attorneys: small in volume, anecdotal in character, and self-interested in motivation — to wit, a portion of the affidavit of one claimants’ attorney who has not abandoned the practice. Id., at 541, 378 S. E. 2d, at 90 (citing Muth affidavit). On the face of the matter, it is difficult to understand how the Department could maintain a system of inadequate fees if it wanted to. The statute itself requires that the fees awarded be “reasonable,” see 33 U. S. C. §928(a) (1982 ed.); 30 U. S. C. §932(a) (1982 ed., Supp. V), which the agency has interpreted to include a requirement that they compensate for delay, cf. Hobbs v. Director, OWCP, 820 F. 2d 1528, 1529 (CA9 1987) (applying LHWCA); and where the statutory requirement is not observed, the dissatisfied attorney has a remedy in the appropriate court of appeals, see 33 U. S. C. §§ 921(c), 928(a) (1982 ed.); 30 U. S. C. §932(a) (1982 ed., Supp. V); Hobbs v. Director, OWCP, supra.
To establish the requisite causality between the Department’s scheme and the (alleged) unavailability of attorneys, the court also relied upon the impressions of the three lawyers (see supra, at 723) who attributed the departure of many black lung attorneys to the risk of nonrecovery if the claimant loses. 180 W. Va., at 541-542, 378 S. E. 2d, at 90-91. But as noted above, the existence in this country of a thriving contingent-fee practice demonstrates that this risk can be compensated for — so it comes down once again to the level of compensation. And we note that the Benefits Review Board has construed the regulations of the Secretary of Labor governing the award of attorney’s fees to permit consideration of the attorney’s risk of going unpaid. See Risden v. Director, OWCP, 11 BRBS 819, 824 (1980).
Finally, to establish the necessary causality the court relied on the conclusory impressions of interested lawyers as tó the effect of the Department’s fee regime on the availability of attorneys. One lawyer, for example, whose experience consisted of representing two claimants prior to 1981, said that he did not take black lung cases because of the difficulty in obtaining fees. 180 W. Va., at 536, n. 6, 378 S. E. 2d, at 85, n. 6; Tr. 206. Cf. 180 W. Va., at 542, 378 S. E. 2d, at 91. Perhaps so; but that does not come close to proving that the fee regime dried up the supply of attorneys.
In sum, the evidence relied upon by the West Virginia Supreme Court of Appeals did not remotely establish either that black lung claimants are unable to retain qualified counsel or that the cause of such inability is the attorney’s fee system administered by the Department. The court therefore had no basis for concluding that that system deprives claimants of property without due process of law.
IV
It is not clear to us what the West Virginia Supreme Court of Appeals meant by what it described as its “independent basis” for finding a due process violation, which was set forth as follows:
“Congress has conferred upon qualified claimants the right to receive black lung benefits. Congress has also prescribed the remedy (the claims process) to guarantee this right, an essential part of which is the right to counsel. It is, therefore, unconstitutional for the Department of Labor by its regulations to deny qualified claimants the procedural safeguards provided by Congress that are essential to vindicate the right to benefits also granted by Congress.” Id., at 544, 378 S. E. 2d, at 93.
It seems to us this adds nothing to the prior analysis except the assertion that the right to counsel, besides being constitutionally required (as we have earlier assumed), was part of the statutory “remedy” prescribed by Congress. If that were so, of course, it would not be necessary to invoke the Due Process Clause, since in denying the right the Department of Labor would be violating the statute. In any case, the asserted basis is not “independent” — or at least not independent of the central proposition that black lung claimants have been deprived of their ability to obtain counsel. Our conclusion that that proposition has not remotely been established disposes of the West Virginia Supreme Court of Appeals’ alternative ground of decision as well.
* * *
The judgment of the West Virginia Supreme Court of Appeals is reversed, and the cases are remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice White and Justice Blackmun join all but Part II-B of this opinion.
We disagree with Justice Marshall’s view that ASARCO Inc. v. Kadish, 490 U. S. 605 (1989), renders our inquiry into third-party standing inappropriate. See post, at 729-732. Whether a litigant can assert the rights of a third party under a particular statute is “closely related to the question whether a person in the litigant’s position would have a right of action on the claim,” Warth v. Seldin, 422 U. S. 490, 500, n. 12 (1975). Thus, while state courts are fully entitled to entertain disputes that would not qualify as cases or controversies under Article III, it is questionable whether they have the power, by granting or denying third-party standing, to create or destroy federal causes of action. See Haitian Refugee Center v. Gracey, 257 U. S. App. D. C. 367, 381-382, and n. 12, 809 F. 2d 794, 808-809, and n. 12 (1987). We follow longstanding precedent in ascertaining the third-party standing of a respondent in a case arising from state court. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 954 (1984); Barrows v. Jackson, 346 U. S. 249 (1953). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
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"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
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"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
70
] |
BOB JONES UNIVERSITY v. SIMON, SECRETARY OF THE TREASURY, et al.
No. 72-1470.
Argued January 7, 1974
Decided May 15, 1974
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, and Rehnquist, JJ., joined. Blackmun, J., filed an opinion concurring in the result, post, p. 750. Douglas, J., took no part in the decision of the case.
J. D. Todd, Jr., argued the cause for petitioner. With him on the briefs were Wesley M. Walker and Oscar Jackson Taylor, Jr.
Assistant Attorney General Crampton argued the cause ' for respondents; With him on the brief were Solicitor General Bork, Stuart A. Smith, Grant W. Wiprud, and Leonard J. Henzke, Jr.
Mr. Justice Powell
delivered the opinion of the Court.
This case and Commissioner v. “Americans United” Inc., post, p. 752, involve the application of the Anti-Injunction Act, § 7421 (a) of the Internal Revenue Code of 1954 (the Code), 26 U. S. C. § 7421 (a),.to the ruling-letter* program of the Internal Revenue Service (the Service) for organizations claiming tax-exempt status under Code § 501 (c) (3), 26 U. S. C. § 501 (c) (3). The question presented' is whether, prior to the assessment and collection of any tax, a court may enjoin the Service from revoking a ruling letter declaring that petitioner qualifies for tax-exempt status and from_ withdrawing advance assurance to donors that contributions to petitioner will constitute charitable deductions under Code § 170 (c)(2), 26 U. S. C. § 170 (c)(2). We hold that it may not.
Section 501 (a) of the.Code exempts from federal income taxes organizations .described in § 501 (c)(3). The latter provision encompasses:
“Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or .animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual; no substantial part of the activities of which is carrying ..on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.”
Section 501 (c) (3.) organizations are also exempt from federal social security (FICA) taxes by virtue of Code §3121 (b)(8)(B), 26 U. S. C. § 3121 (b)(8)(B), and from federal unemployment (FUTA) taxes by virtue of §3306 (c)(8), 26 U. S. C. §3306 (c)(8). Donations to § 501 (c) (3) organizations are tax deductible Under 1170(c)(2).
As a practical matter, an organization hoping to solicit tax-deductible contributions may not rely solely on technical compliance with the language of §§ 501 (c)(3) and. 170 (c)(2). The organization must also obtain a ruling letter from the Service, pursuant to Rev. Procs. 72-3 and 72-4, 1972-1 Cum. Bull. 698, 706, declaring that it qualifies under § 501 (c)(3). Receipt of such a ruling letter leads, in the ordinary case, to inclusion in the Service’s periodically updated Publication No. 78, “Cumulative List of Organizations described in Section 170 (c) - of the Internal Revenue Code of 1954” (the Cumulative List). In essence, the Cumulative List is the Service’s official roster of tax-exempt organizations: “The listing of an organization in [the Cumulative List] signifies it has received a ruling or determination letter .. . stating that contributions by donors to the organization are deductible as provided in section 170 of the-Code.” Rev. Proc. 72-39, 1972-2 Cum. Bull. 818. An. organization’s inclusion in the Cumulative List assures potential donors in advance that contributions to the organization will qualify as charitable deductions under §170 (c)(2). The Service has announced that, with ■ narrowly limited exceptions, a donor may rely on the Cumulative List for so long as the beneficiaries .of his largesse maintain their listing, regardless of their actual tax status. For this reason, appearance on the Cumu-. lative List is a prerequisite to successful fund raising for most charitable organizations. Many contributors simply will not make donations to an organization that does not appear on the Cumulative List.
Because of the importance of inclusion in the Cumulative List, revocation of a §501 (c)(3) ruling letter and consequent removal from the Cumulative List is likely to result in serious damage to a charitable organization. Revocation not only threatens the flow of contributions, it also subjects the affected organization to FICA and FUTA- taxes and, assuming that the organization has taxable income and does not qualify as tax exempt under another subsection of § 501, to federal income taxes. Upon -the assessment and attempted collection of income taxes, the organization may litigate the legality of the Service’s action by petitioning the Tax Court to review a notice of deficiency. See Code §§ 6212 and 6213, 26 U. S. C. §§ 6212 and 6213. Or, following the collection of apy federal tax and the denial of a refund by the Service,. the organization may bring a refund suit in a federal district court or in the Court of Claims. See Code § 7422, 26 U. S. C. § 7422; 28 U. S. C. §§ 1346 (a)(1) and 1491. Finally, a donor to the organization may bring a refund suit to challenge the denial of a charitable deduction under §170 (c)(2). Presumably such a “friendly donor” would be able to attack the legality of the Service’s revocation of an organization’s § 501 (c) (3) status. But these post-revocation avenues of review take substantial time, during which the organization is certain to lose contributions from those donors whose gifts are contingent on entitlement to charitable deductions under § 170 (c)(2). Accordingly,' any organization threatened with revocation of a § 501 (c) (3) ruling letter has a powerful incentive to bring a pre-enforcement suit to prevent the Service from taking action in the first instance.
The pressures operating on organizations facing revocation of §501 (c)(3) status to seek injunctive relief against the Service pending judicial review of the proposed action conflict directly with a congressional prohibition of such pre-enforcement tax suits. In force continuously' since its enactment in 1867, the Anti-Injunction Act, now Code § 7421 (a), provides in pertinent part that “no suit, for the purpose of restraining the assessment or collection of any tax shall be maintained in any court . .' . .” Because an injunction preventing the Service, from withdrawing a. § 501 (c) (3) ruling letter would necessarily preclude the collection of FICA, FUTA., and possibly incomé taxes from the affected organization, as well as the denial of § 170 (c)(2) charitable deductions to donors to the organization, a suit seeking such relief falls squarely within the literal scope of the Act.
The clash between the language of the Anti-Injunction Act and the desire of § 501 (c) (3) organizations to block the Service from withdrawing a ruling letter has been resolved against the organizations in most cases. E. g., Crenshaw County Private School Foundation v. Connally, 474 F. 2d 1185 (CA5 1973), pet. for cert. pending in No. 73-170; National Council on the Facts of Overpopulation v. Caplin, 224 F. Supp. 313 (DC 1963); Israelite House of David v. Holden, 14 F. 2d 701 (WD Mich. 1926). But see McGlotten v. Connally, 338 F. Supp. 448 (DC 1972) (three-judge court). Cf. Green v. Connally, 330 F. Supp. 1150 (DC), aff’d per curiam sub nom. Coit v. Green, 404 U. S. 997 (1971).
In the present case, the Court of Appeals for the Fourth Circuit followed the majority view. Bob Jones University v. Connally, 472 F. 2d 903, petition for rehearing denied, 476 F. 2d 259 (1973). In light of the contrary result reached by the Court, of Appeals for the District of Columbia Circuit in “Americans United” Inc. v. Walters, 155 U. S. App. D. C. 284, 477 F. 2d 1169 (1973), rev’d sub nom. Commissioner_ v. “Americans. United” Inc., post, p. 752, we granted Bob Jones University’s petition for certiorari. 414 U. S. 817 (1973).
II
Petitioner refers to itself as “the world’s most unusual university.’’ Founded in. 1927 and now located in Green-ville, South Carolina, the University , is devoted, to the teaching and propagation of its fundamentalist religious beliefs. All classes commence, and close with grayer, and courses in religion are compulsory! Students and faculty are screened for adherence to certain religious precepts and may be expelled or dismissed for lack of allegiance to them. One of these beliefs is that God intended segregation of the races and that the Scriptures forbid interracial marriage. Accordingly, petitioner refuses to admit Negroes as students. On pain of expulsion students are prohibited from interracial dating, and petitioner believes that it would be impossible to enforce this prohibition absent the exclusion of Negroes.
In 1942, the Service issued petitioner a ruling letter under § 101 (6) of the Internal Revenue Code of 1939, the predecessor of § 501 (c)(3). In 1970, however, the Service announced that it would no longer allow §;501 (c)(3) status for private schools maintaining racially, discriminatory admissions policies and that it would no longer treat contributions to such schools as tax deductible. See Rev. Rui. 71-447, 1971-2 Cum. Bull. 230. The Service requested proof of a nondiscriminatory admissions policy from all such schools and warned that tax-exempt ruling letters would be reviewed in light of the information provided. At the end of 1970, petitioner advised the Service that it did not admit Negroes, and in September 1971, further stated that it had no intention of altering this policy. The Commissioner’ of Internal Revenue theréfore instructed the District Director to commence administrative procedures leading to the revocation of petitioner’s § 501 (e)(3) ruling letter.
Petitioner brought these administrative proceedings to .a halt by filing suit in the United States District Court for the District of South Carolina for. preliminary and permanent injunctive relief preventing the Service from revoking or threatening to revoke petitioner’s tax-exempt status. Petitioner alleged irreparable injury in the form of substantial federal income tax liability and the loss of contributions. Petitioner asserted that. the Service’s threatened action was outside its lawful authority and would violate petitioner’s rights to the free exercise of religion, to free association, and to due process and equal protection of the laws.
The District Court rejected a motion to dismiss for lack of jurisdiction, and it preliminarily enjoined the Service from revoking or threatening to revoke petitioner’s tax-exempt status and from withdrawing advance assurance of the deductibility of contributions made to, petitioner. Bob Jones University v. Connolly, 341 F. Supp. 277 (1971). The Court of Appeals for the Fourth Circuit reversed, with one judge dissenting. 472 F. 2d 903, reh. den., 476 F. 2d 259 (1973). That court held that petitioher’s suit, was báífed by the Anti-Injunction Act as interpreted by this Court in Enochs v. Williams Packing & Navigation Co., 370 U. S. 1. (1962).
in
The Anti-Injunction Act apparently has no recorded legislative history, but its language could scarcely be more explicit — “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court ....’’ The Court has interpreted the principal purpose of this- language to be the protection of the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, “and to. require that the legal right to the disputed sums be determined in a suit for refund.” Enochs v. Williams Packing & Navi gation Co., supra, at 7. See also, e. g., State Railroad Tax Cases, 92 U. S. 575, 613-614 (1876). Cf. Cheatham v. United States, 92 U. S. 85, 88-89 (1876). The Court has also identified “a collateral objective of the Act — protection of the collector from litigation pending a suit for refund.” Williams Packing, supra, at 7-8.
In furtherance of these goals, the Court in its most recent reading gave the Act almost ■ literal effect. In Williams Packing, an employer sought to enjoin the collection of FICA and FUTA taxes that the employer alleged were not owed and would destroy its business. The Court held unanimously that the suit was barred by the Act. Only upon proof of the presence of two factors could the literati terms of § 7421 (a) be avoided: first, irreparable injury, the essential ‘prerequisite for injunctive relief in any case; and second, certainty of success on the merits. Id., at 6-7. An injunction could issue only “if it is clear that under no circumstances could the Government ultimately prevail . . . .” Id., at 7. And this determination would be made on the basis of the information available to the Governmentat the time of the suit. “Only if it is-then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained.” Ibid.
■Perhaps in recognition of the stringent nature of the Williams Packing standard and its implications for this case, petitioner makes little effort to argue that it can meet that test. Rather, it asserts that the Anti-Injunction Act, properly construed, is not applicable, that Williams Packing is not the controlling reading of the Act, and that rejection- of both these contentions would work a denial of due process of law. We find these arguments unpersuasive.
A ■
First, petitioner contends that the Act is inapplicable because this is not a suit “for the purpose of restraining the assessment or collection of any tax.....” Under petitioner’s theory, its suit is intended solely to compel the Servic^ to refrain from withdrawing petitioner’s § 501 (c) (3) ruling letter and from depriving petitioner’s donors of advance assurance of deductibility. Petitioner describes its goal as the maintenance of the flow of contributions, not the 'obstruction of revenue.
Petitioner’s complaint and supporting documents filed in the District Court belie any notion that this is not a suit to enjoin the assessment or collection of federal taxes from petitioner. In support of its claim of irreparable injury, petitioner alleged in part that it would be subject to “substantial” federal income tax liability if the Service were allowed to carry out its threatened action. App. 6. Petitioner buttressed this contention with sworn affidavits alleging federal income tax liability of three-quarters of a million dollars for one year and in excess of half a million dollars for another and stressing the1 detrimental effect such tax liability would have on petitioner’s capacity to -operate its institution, to support its personnel, and to continue with its expansion plans. Id., at 10-11, 43-^44. These allegations leave little doubt that a primary purpose of this lawsuit.is ¿o prevent the Service from assessing and collecting incolne taxes from petitioner.
We recognize that petitioner’s assertions that |t will' owe federal income-taxes should its § 501 (c)(3).status be revoked are open to debate, because they are based in part on a failure to take into account possible deductions for depreciation of plant and equipment. Even if it could bé shown, however, that petitioner would owe .no federal income taxes if its . §501 (c)(3) status were revoked, this would still be a suit to restrain .the assessment or collection of taxes because petitioner would also be liable for FICA'and FUTA taxes. Section 7421 (a) speaks of “any tax”; it .does not differentiate between federal income taxes or FICA or FUTA taxes. See, e. g., Williams Packing, supra. Moreover, petitioner seeks to. restrain the collection of taxes from its donors — to force the Service to continue to provide advance assurance to those donors that contributions to petitioner will- be recognized as tax deductible, thereby reducing their tax liability. Although in this regard petitioner seeks to lower the taxes of those other than itself, the Act is nonetheless controlling. Thus in. any of its implications, this case falls- within the. literal' scope and the purposes of the Act.
Petitioner further contends that the Service’s actions do not represent an effort to protect the revenues but an attempt to regulate the admissions policies of private universities. Under- this line of argument, the Anti-Injunction Act is said to be inapplicable because the case does not truly involve taxes. We disagree.
The Service bases its present position with regard to the tax status of segregative private schools on its interpretatibn of the Code. There is no evidence that that position does not represent a good-faith effort to enforce the technical requirements of the tax laws, and, without indicating a view as to whether the Service’s interpretation is correct, we cannot say that its position has no legal basis or is unrelated to the protection of the revenues. The Act is therefore applicable. Petitioner’s attribution of non-tax-related motives to the Service ignores the fact that petitioned has not shown that the. Service’s action, is without an independent basis in the requirements of the Code. Moreover, petitioner’s argument fails to give appropriate weight to Bailey v. George, 259 U. S. 16 (1922). In that case, the Court held that the Act blocked a pre-enforcement suit to enjoin collection of the federal Child Labor Tax, although •the tax was challenged as a regulatory measure beyondthet taxing power of Congress. . Significantly, the Court announced Bailey v. George on the same day that it issued Bailey v. Drexel Furniture Co., 259 U. S. 20 (1922), a tax-refund case in which the Court struck down the Child Labor Tax Law as unconstitutional on the grounds that the taxpayer attempted to raise prematurely in Bailey v. George.
. Petitioner also argues that § 7421 (a) is not controlling because when the Act was passed in 1867 Congress could not possibly have foreseen something as sophisticated as the comparatively recent ruling-letter program and the special importance of that program for § 501 (c) (3) organizations. This argument proves too much, however, since the same Congress also could not have foreseen, for example, FICA or FUTA taxes, to which the prohibitory command of § 7421 (a) indisputably applies. See, e. g., Williams Packing, supra. Moreover, through the years Congress has repeatedly re-enacted the Anti-Injunction Act at times when it was obviously aware of the continuously increasing complexity of the federal tax system.
B
Petitioner next argues that Enochs v. Williams Packing & Navigation Co., supra, does not constitute an all-encompássing reading of the Act. Petitioner contends, on - the ' basis of prior precedents, that § 7421 (a) is subject to judicially created exceptions other than the “under no circumstances” ' test an-' nounced in Williams Packing. But the Court’s unanimous opinion in Williams Packing indicates that the case was meant to be the capstone to judicial construction of the Act. It spells an end to a cyclical pattern' of allegiance to the plain meaning of the Act, followed by periods of uncertainty causéd by a judicial departure from that meaning, and followed in turn by the Court’s rediscovery of the ActV purpose.
During the first half century of the Act’s existence, the Court gave, it literal .force, without regard to the character of the tax, the nature of the pre-enforcement challenge to it, or the status of the plaintiff. See State Railroad Tax Cases, 92 U. S., at 613-614; Snyder v. Marks, 109 U. S. 189 (1883); Pacific Steam Whaling. Co. v. United States, 187 U. S. 447 (1903); Dodge v. Osborn, 240 U. S. 118 (1916); Bailey v. George, 259 U. S. 16 (1922). Occasionally, however, the Court noted in dictum that unspecified extraordinary and exceptional circumstances might justify an injunction despite the Act. E. g., Dodge v. Osborn, supra, at 122; Bailey v. George, supra, at 20. In 1922, the Court seized upon these dicta and, permitted, pre-enforcement injunctive suits against tax statutes that were viewed as penalties or as adjuncts to the criminal law. Hill v. Wallace, 259 U. S. 44 (1922); Lipke v. Lederer, 259 U. S. 557 (1922); Regal Drug Corp. v. Wardell, 260 U. S. 386 (1922). Shortly thereafter, however, the- Court made clear that Hill, Lipke, and Regal Drug were of narrow scope and had no application to pre-enforcement challenges to truly revenue-raising tax statutes. Graham v. Du Pont, 262 U. S. 234 (1923). Thus, the Court’s first departure from a literal reading of the Act produced a prompt correction in course.
In the 1930’s the Court decided Miller v. Standard Nut Margarine Co., 284 U. S. 498 (1932), and Allen v. Regents of the University System, of Georgia, 304 U. S. 439 (1938), the cases relied on most heavily by petitioner. Standard Nut set forth a new definition of the extraordinary and exceptional circumstances test, which was followed in Regents. In Standard Nut the Court stated that the Act is merely “declaratory of the principle” of cases prior to its passage- that equity usually, but not 'always, disavows interference with tax collection; thus, the Act was to be construed “as near as may be in harmony with [equity doctrine] and the reasons upon which it rests.” 284 U. S., at 509. Through this interpretation, the concept of extraordinary and exceptional circumstances was reduced to the traditional equitable requirements for issuance of an injunction.
Standard Nut was such a significant deviation from, precedent that it was referred to by a commentator at the time as “a tribute to the tenacity of the American taxpayer” and “little short of phenomenal.” Read literally, the Court’s opinion effectively repealed the Act, since the Act wa§ viewed as requiring nothing more than equity doctrine had demanded before the Act’s passage. The incongruity of this positional as not escaped notice. . It undoubtedly led directly to the Court’s reexamination of the requirements of the Act in Williams Packing, the second time the Court has undertaken to rehabilitate the Act following debilitating départures from its explicit language. See Graham v. Du Pont, supra.
Williams Packing switched the focus of the extraordinary and exceptional circumstances test from a showing of the degree of harm to the plaintiff absent an injunction to the requirement that it be established that the Service’s action is plainly without a legal basis. The Court in essence read Standard Nut- not'as án instance of irreparable injury but as a case where the Service had no chance of success on the merits. 370 U. S., at 7. And the Court explicitly held that the Act may not be evaded “merely because collection would cause an irreparable injury, such as the ruination of the taxpayer’s enterprise.” Id., at 6. Yet petitioner’s argument that we should find Williams Packing inapplicable turns, in the last analysis, on its claim that' to do otherwise would subject it to great harm. The Court rejected that consideration in Williams Packing itself, and we reject it as a reason for' finding that case not controlling. Under the language of the Act, the degree of harm is not a factQr, and as a matter of judicial Construction-, it does not provide a meaningful stopping point, between Standard Ny,t and Williams Packing. Acceptance of petitioner’s irreparable injury argument would simply revive the evisceration of the Act inherent in Standard Nut.
C
. Assuming, arguendo, the applicability of § 7421 (a) and Williams Packing, petitioner, contends that forcing it to meet the standards of those authorities will deny it due process of law in light .of the irreparable injury it will suffer pending resort to alternative procedures for review and of the alleged inadequacies of those remedies at law. The Court. dismissed out of hand similar contentions nearly 60 years ago, and we find such arguments no more compelling.now than then.
This is not a case in which an aggrieved, party has no access at all to judicial review. Were that true, our conclusion might well be different. If, as alleged in its complaint, petitioner will have taxable income upon the withdrawal of its § 501 (c) (3) status, it may in accordance with prescribed procedures petition the .Tax Court to review the assessment of income taxes! Alternatively, petitioner may pay income taxes, or, in their absence, an installment of FICA' or FUTA taxes, exhaust the Service’s internal refund procedures, and then bring suit for a refund. These review procedures offer petitioner a full, albeit delayed, Opportunity to litigate the legality of the Service’s revocation of tax-exempt status and withdrawal of advance assurance of deductibility. See, e. g., Christian Echoes National Ministry, Inc. v. United States, 470 F. 2d 849 (CA10 1972), cert. denied, 414 U. S. 864 (1973); Center on Corporate Responsibility, Inc. v. Shultz, 368 F. Supp. 863 (DC 1973).
We do not say that these avenues of review áre the best that can be. devised. They present serious problems of delay, during which the flow of donations to an organization will be impaired and in some cases perhaps even terminated. But, as the Sfervice notes, some delay may be an inevitable consequence of the fact that disputes between the Service and a party challenging the Service’s actions are not susceptible of instant resolution through litigation. And although the congressional restriction to postenforcement review may place an organization claiming tax-exempt-status in a. precarious financial position, the problems presented do not rise to the level of constitutional infirmities, in light of the powerful governmental interests in protecting the administration of the tax system from premature judicial interferencé, e. g., Cheatham v. United States, 92 U. S., at 88-89; State Railroad Tax Cases, 92 U. S., at 613-614, and of the opportunities for review that are available.
IV
Since we hold that Williams Packing, supra, governs this case, the remaining issue is whether petitioner has met the standards of that case. Without deciding the merits, we think that petitioner’s First Amendment, due process, and equal protection contentions are sufficiently debatable to foreclose any notion that “under no circumstances could the Government ultimately prevail ...370 U. S., at 7. See, e. g., Green v. Connally, 330 F. Supp. 1150 (DC), aff’d per curiam sub nom. Coit v. Green, 404 U. S. 997 (1971). Accordingly, the Court, of Appeals did not err in holding that § 7421 (a) deprived the District Court of jurisdiction to issue the injunctive relief petitioner sought.
In holding that § 7421 (a) blocks the present suit, we are not unaware that Congress has imposed an especially harsh regime on §501 (c)(3) organizations threatened with loss of tax-exempt status and with withdrawal of advance assurance of deductibility of contributions. Á former Commissioner of the Internal Revenue Service has sharply critipized the system applicable to such organizations. The degree of bureaucratic control that, practically speaking, has been placed in the Service over those in petitioner’s position is susceptible of abuse, regardless of how conscientiously the Service may attempt to carry out its responsibilities. Specific treatment of not-for-profit organizations to allow them to seek pre-enforcement review may well merit consideration. • But this matter is for Congress, which is the appropriate body to weigh the relevant, policy-laden considerations, ', such as the harshness of the present law, the consequences of an unjustified revocation of § 501 (c) (3) status, the number of organizations in any year threatened with such'revocation, the comparability of those organizations to others which rely on the Service’s ruling-letter program, and the litigation burden on the Service and the effect on the assessment and collection of federal taxes if the law were to be changed.
The judgment is affirmed.
It is so ordered.
Mr. Justice Douglas took no part in the decision of this case.
Section 170(a) of the Code provides that “[t]here shall be allowed -as a deduction any charitable contribution (as defined in subsection (c)) payment of which is made within the taxable year. . . .” Section 170(c)(2) declares:
“Charitable contribution defined. — For purposes of this section, the term ‘Charitable contribution’ means a contribution or gift- to or for the use' of—
“(2) A corporation, trust, or community chest, fund, or foundation—
'“(A) created or organized in the United States or in any possession thereof, or under the law "of the United States, any State, the District of Columbia, or any possession of the United States;
“(B) organized and operated • exclusively for religious, -charitable, scientific, literary, or educational purposes or for the prevention of cruelty to children or animals;
“(C) no part of the net earnings of which inures to the benefit •of any private shareholder or individual; and
“(D) no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, arid which does not participate in, or intervene in (including the publishing or distributing of statements), any. .political campaign on behalf of any candidate -for public office.”
The organizations set forth in § 170 (c) (2) are, but for a few unimportant exceptions, the same as those described in § 501 (c) (3). Analogous-deductions for contributions to § 501 (c)(3) organizations are provided for federal estate and gift tax' purposes. See Code §§2055 (a) (2) and 2522 (a) (2), 26 U. S. C. §§2055 (a) (2) and 2522 (a)(2).
Section 3.01 of Rev. Proc. 72-39, 1972-2 Cum. Bull. .'818, provides:
“Where an organization listed in [the Cumulative List] ceases to qualify as an organizátion contributions to which'are deductible under section 170 of the Code and the Service subsequently revokes a ruling or a determination letter previously issued to it, contributions made to the organization by persons unaware of the changes in the status of the organization generally will be considered allowable if made on or before the date of publication of the Internal Revenue Bulletin announcing that contributions are no longer deductible. However, the Service is not precluded from disallowing a deduction for any contribution made after an organization ceases to qualify under section 170, where the contributor (1) had knowledge of the revocation of the ruling or determination letter, (2) was aware that such revocation was imminent, or (3) was in part responsible for, or was aware of, the activities or deficiencies' on the part of the organization that .gave rise to the loss of qualification.”
This is particularly so with respect to tax-exempt private foundations, because they are subject to tax liability if they contribute funds to an organization that does not qualify under § 170 (c) (2). See Code §4945 (d)(5), 26 U. S. C. §4945 (d)(5).
In recognition of. the significance of such a change in status, the Service provides several stages of internal -administrative review. If the Service indicates, pursuant to prescribed procedures, that cause for revocation ’ exists, the affected organization is entitled to submit written protests and to have conferences at both the District Director and National Office level. § 11, Rev. Proc. 72-4, 1972-1 Cum. Bull., at 708; §4, Rev. Proc. 72-39, 1972-2 Cum. Bull., at 818-819.
An organization may lose its § 501 (c) (3) status but still be exempt from federal income taxes if it qualifies, for example, as a § 501 (c) (4), social welfare organization. But the loss of § 501 (c) (3) status inevitably means that the exemptions from FICA and FUTA taxes no longer apply, since those exemptions are keyed to §501 (c)(3). See Code §§ 3121 (b) (8) (B) and 3306-(c)(8).
See Act of Mar. 2, 1867, § 10, 14 Stat. 475; Rev. Stat. § 3224 (1874); Int. Rev. Code of 1939, §3653. Section 7421 (a) of the Code states:
“Except as provided in sections 6212 (a) and (c), 6213 (a), and 7426 (a) and (b)(1), no suit for the purpose of restraining the assessment or collection of any tax shall he maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” (Emphasis added.)
The italicized portion of § 7421 (a) is identical to language in § 10 of the Act of Mar. 2, 1867, but for the first “any,” which the revisers added to the Revised Statutes version. See Snyder v. Marks, 109 U. S. 189, 192 (1883). None of the exceptions in § 7421 (a) is relevant to this case. The phrase commencing with “by any person . . .” was added by § 110 (c) of the Federal Tax Lien Act of 1966, Pub. L. 89-719, 80 Stat. 1144. -The main purpose of the addition of this language was to deal with cases where third ■ parties who are not themselves subject to tax liability hold property liens that compete with federal tax liens. Due to the literal meaning of the Anti-Injunction Act, such persons were, prior 'to 1966, often unable to protect their legitimate property interests when the Service foreclosed oh property on which.it held a tax lien. See H. R. Rep. No.. 1884, 89th Cong., 2d Sess., 27-28 (1966). Such persons are now given a-right of action under Code § 7426, 26 U. S. C. § 7426, and the language of § 7421 (a), as amended, renders that action exclusive. The “by any person” phrase is, however, also a reaffirmation of the plain meaning of the emphasized portion of § 7421 (a). In this respect, it'is declaratory, not innovative. Cf. Bittker & Kaufman, Taxes and Civil Rights: “Constitutionalizing” the Internal Revenue Code, 82 Yale L. J. 51, 57, n. 22 (1972). We.are aware of the contrary reading of the' “by any person” phrase in McGlotten v. Connolly, 338 F. Supp. 448, 453 n. 25 (DC 1972) (three-judge, court), but we are of a different view. '
The congressional antipathy for premature interference with the assessment or collection of any federal tax also extends to declaratory judgments. In 1935, ,one year after the enactment of the Declaratory Judgment Act, 48 Stat. 955, now 28 U. S. C. §§ 2201-2202, Congress amended that Ac.t to exclude suits “with respect to Federal taxes . . . ,” § 405 of the Revenue Act of 1935, c. 829, 49 Stat. 1027, thus reaffirming the restrictions set out in the Anti-Injunction Act. The Declaratory Judgment Act now reads: .
Ҥ2201. Creation of Remedy.
“In á case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States,.upon the filing of an appropriate pleading, may declare the rights - and other legal relations of any interested party seeking such declaration, whether or not further' relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall bé reviewable as such.” (Emphasis added.)
Ҥ 2202. Further relief. -
“Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse .party whose rights have been determined by such judgment.”
Some have noted that the federal tax exception to the Declarator} Judgment Act may be more sweeping than the Anti-Injunction Act. E. g., E. Borchard, Declaratory Judgments 855 (2d ed. 1941); Bittker & Kaufman, supra, n. 6, at 58. See S. Rep. No. 1240, 74th Cong., 1st Sess., 11 (1935). The Service takes that position in this case, arguing that any suit for an injunction is also an action for a declaratory judgment and thus is barred by the literal terms of the Declaratory Judgment Act, without regard to the independent force of §7421 (a). A number of courts, on the other hand, have held that the federal tax exception to the Declaratory Judgment Act and the Anti-Injunction Act have coterminous application. ' E. g., “Americans United” Inc. v. Walters, 155 U. S. App. D. C. 284, 291, 477 F. 2d 1169, 1176 (1973), rev’d sub nom. Commissioner v. “Americans United” Inc., post, p. 752; Tomlinson v. Smith, 128 F. 2d 808 (CA7 1942); McGlotten v. Connolly, supra; Jules Hairstylists of Maryland, Inc. v. United States, 268 F. Supp. 511 (Md. 1967), aff’d, 389 F. 2d 389 (CA4), cert. denied, 391 U. S. 934 (1968). Petitioner cites these cases in response to the Service’s reliance on the Declaratory Judgment Act. There is no dispute, however, that the federal tax exception to the Declaratory' Judgment Act is at least as broad as the‘‘Anti-Injunction Act.' Be-' cause we hold that the instant case is barred by the latter provision, there is no occasion'to resolve whether the former is even more preclusive. Nor need we decide whether any action for an injunction is of necessity a request for a declaration of. rights that triggers the-terms of the Declaratory Judgment Act.
Several courts have reached the same result under the federal tax exception to the Declaratory Judgment Act, set forth in n. 7, supra. E. g., Liberty Amendment Committee of the U. S.. A. v. United States, Civil Action No. 70-721 (CD Cal. June 19, 1970) (unpublished), aff’d per curiam, No. 26507 (CA9 July 7, 1972) (unpublished), cert. denied, 409 U. S. 1076 (1972)Mitchell v. Riddell, 402 F. 2d 842 (CA9 1968), appeal dismissed and, cert. denied, 394 U. S. 456 (1969); Jolles Foundation, Inc. v. Moysey, 250 F. 2d 166 (CA2 1957); Kyron Foundation v. Dunlap, 110 F. Supp. 428 (DC 1952).
See Note, Enjoining, the Assessment and Collection of Federal Taxés Despite Statutory Prohibition, 49 Harv. L. Rev. 109 n. 9 (1935); Gorovitz, Federal Tax Injunctions and the Standard Nut Cases, 10 Taxes 446 n. 6 (1932).
See n. 6, supra. Petitioner argues that the revenues will be. -unaffected by the loss of its §501 (c)(3) status, since if petitioner loses its ruling letter, donors will simply redirect their gifts to organizations whose tax-exempt status is secure, thus obtaining the same § 170 (c) (2) charitable deductions they presently enjoy when they make contributions to petitioner. It-follows, according to petitioner, that the Act’s principal purpose of protecting the revenues is not threatened by an injunction preserving petitioner’s § 501 (c) (3) status. Thus, the Act should be found inapplicable.
The argument is too speculative to be persuasive. It presumes that all dohors whq take.§ 170 (c)(2) deductions will desert petitioner if the .ruling letter is withdrawn and that all such donors will make -gifts in equivalent amounts to other tax-exempt organizations. We deefn it unlikely that either premise is wholly true. To the extent that either premise is inaccurate, an injunction preserving petitioner’s § 501 (c) (3) ruling letter will interrunt the assessment and collection of taxes. •
See Rev. Rul. 71-447, 1971-2 Cum. Bull. 230. The question of whether a segregative private school qualifies under §£01 (c)(3) has not received .plenary review in this Court, and we do not reach that question today. Such schools have been held not to qualify under §501 (c)(3) in Green v. Connolly, 330 F. Supp. 1150 (DC) (three-judge court), aff’d per curiam sub. nom. Coit v. Green, 404 U. S. 997 (1971). As a defendant in Green, the Service initially took the position that segregative private schools were entitled to tax-exempt status under §501 (c)(3), but it reversed its position while the case was on appeal to this .Court. Thus, the Court’s affirmance in Green lacks the precedential weight of a case' involving a. truly adversary controversy.
In support of its argument that this case does not involve a “tax” within the meaning of § 7421 (a), petitioner cites such cases as Hill v. Wallace, 259 U. S. 44 (1922) (tax on unregulated sales of commodities futures), and Lipke V. Lederer, 259 U. S. 557 (1922) (tax on unlawful sales of liquor). It is true that the Court in those cases drew what it saw at the time as distinctions between regulatory and revenue-raising taxes. But the Court has subsequently abandoned such distinctions. E. g., Sonzinsky v. United States, 300 U. S. 506, 513 (1937). Even if such distinctions have merit, it would not assist petitioner, since its challenge is aimed at the imposition of federal income, FICA, and FUTA taxes which clearly are intended to raise revenue.
The currently prevailing ruling-letter program of the Service commenced in 1940, see Caplin, Taxpayer Rulings Policy of the Internal Revenue Service: A Statement of Principles, NYU 20th Inst. on Fed. Tax 1, 2, 4-5 (1962), although its formal announcement did not take place until 1953. Rev. Rul. 10, 1953-1 Cum. Bull. 488.
The most recent re-enáctment, in the Internal Revenue Code of 1954, postdates both the actual and the formal commencement of the Service's ruling-letter program for § 501 (c) (3) organizations. See n. 13, supra.
In addition to-, repeatedly re-enacting- the- Anti-Jnjunction Act, Congress reaffirmed the Act’s purpose by adding the federal tax exception to the Declaratory Judgment Act. See n. 7,supra.
The Anti-Injunction Act was written against the background of general equitable principles disfavoring the issuance of federal injunctions against 'taxes, absent clear proof that available remedies at law were inadequate. E. g., Dows v. City of Chicago, 11 Wall. 108, 109-110 (1871); Shelton v. Platt, 139 U. S. 591 (1891); Pittsburgh & C. R. Co. v. Board of Pub. Works, 172 U. S. 32 (1898). See California v. Latimer, 305 U. S. 255, 261-262 (1938) (Brardeis, J., for a unanimous Court):
“[The delay inherent in pursuing remedies at law], it is urged, is a special circumstance which justifies resort to a suit for an injunction in order that the question of liability may be promptly deter-mined. If the delay incident to such proceedings justified refusal to pay a tax, the federal rule that a suit iiu'equity will not lie to restrain collection on the sole ground that the .tax is illegal,'could have little application. For possible delay of that character is the common incident of practically .every contest over the validity of a federal tax.” (Footnote omitted.)
Since equitable principles militating against the issuance of federal injunctions in tax cases existed independently of the Anti-Injunction Act, it is most unlikely that Congress would' have chosen the stringént language of the Act if its purpose was mere’y to/restate existing law and not to compel litigants to make use solely of the avenues of review opened by Congress. For this reason, it is not surprising that the early cases interpreting the Act read it at face value.
As noted earlier, the Court has also abandoned the view that bright-line distinctions exist between regulatory and- revenue-raising taxes. See n. 12, supra.
Gorovitz, Federal Tax Injunctions and the Standard Nut Cases, 10 Taxes 446 (1932). Mr. Justice Stone; joined in dissent by Mr. Justice Brandéis, underlined the tension between Standard Nut and prior precedent: “Enacted in 1867, [the Anti-Injunction Act], for more than sixty years, has been consistently applied as precluding, relief, whatever the equities alleged.” 284 U. S., at 511.
E. g., Lenoir, Congressional Control Over Suits to Restrain the Assessment or Collection of Federal Taxes, 3 Ariz. L. Rev. 177, 195 (1961).
“In effect [Standard Nut] ■ says that if special circumstances exist which bring the case within some acknowledged head of equity jurisdiction, [the Anti-Injunction Act] does not apply, and the Court may issue an injunction. But in the absence-of such circumstances the Court will lack equity jurisdiction because there will be no basis for such jurisdiction. To say that [the Act] applies only in such cases seems a little absurd. It is tantamount to saying that [the Act] forbids, the courts to issue injunctions only- when they would not have the authority to issue them anyway! It denies any force whatever to [the Act] except as declaratory of an equitable rule previously followed by the courts.”
See Dodge v. Osborn, 240 U. S. 118, 122 (1916):
“There is a contention' that the provisions requiring an appeal to the Commissioner of Internal Revenue after payment of the taxes and giving--a right to sue in case of his refusal to refund are wanting in due process and therefore there is jurisdiction [to issue injunctive relief, prior to the assessment or collection of any tax]. But we think it suffices to state that contention to demonstrate its entire, want of merit.”
Because of the availability of FlCA and FUTA refund actions, we need not address the adequacy of .another possible means of seeking postenforcement judicial review — the “friendly .donor” refund suit. Under this approach, there must be a .donor willing to file a refund action claiming a § 170 (c) (2) charitable deduction for a contribution to. an organization after the Service has revoked! the organization’s ruling letter and withdrawn advance assurance of deductibility. To utilize this approach, the .organization must first be able to find a donor willing to subject himself to the rigors of litigation against the Service and then must rely on the donor to present the relevant arguments on the organization’s behalf. These and other possible differences between a donor refund suit and an action brought directly by an organization leave open the question whether a donor’s refund suit constitutes an adequate legal remedy for correcting illegal actions on the part of the Service. We reserve this question for a case that turns upon its resolution.
Petitioner did not bring this case as a refund action. Accordingly,- we have no, occasion to decide whether the Service is correct in asserting that a district court may not issue an injunction in such a suit, but is restricted in any tax case to the issuance of money judgments against the United States. Brief for Respondents .37 n. 35. We note, however, that the Service’s position. with regard to the range of relief available in a refund suit raises several considerations not presented by a pre-enforcement suit for an injunction. For example, it may be possible to conclude that a suit for a refund is not “for the purpose of restraining the assessment or collection of any tax . . . ,” and thus that neither the literal terms nor the principal purpose of § 7421 (a) is applicable. Moreover, such a suit obviously does not clash with what the Court referred to'in Williams Packing, supra, as a “collateral objective of the Act — protection of the collector from litigation pending a suit for refund.” 370 U. S., at 7-8. And there would be serious question about the reasonableness of a system that forced a §501 (c) (3) organization to bring a- series of backward-looking refund suits in order to establish' repeatedly the legality of its claim .to ' tax-exempt status and that precluded such an organization from obtaining prospective relief even though it utilized an avenue of review mandated' by Congress.
The Service indicates that “its normal practice is to issue a favorable ruling lipón the application of an organization which has prevailed in a couit suit.” Brief for Respondents 35 n. 31, When the Service adheres to that position following a refund suit-decided in favor of the plaintiff, there is of course little likelihood that injunctive relief would be necessary or appropriate. ’ But our decision today that § 7421 (a) bars pre-enforcement injunctive suits by organizations claiming § 501 (c) (3) status unless the standards of Williams Packing are jnet should not be-"'interpreted as deciding whether injunctive -relief is possible in a refund suit in a district court.
See Thrower,’ IRS Is Considering Far Reaching -Changes in Ruling on Exempt Organizations,' 34 J. Taxation 168 (1971):
“There is no practical possibility of quick judicial appeal at the present. If we deny tax exemption or the benefit to the organization of its donors having the assurance of deductibility of contributions, the organization must either create net taxable income or other tax liability for itself as a litigable issue, or find a donor who as a guinea pig is willing to make a contribution, have it disallowed, and litigate the disallowance. Assuming the readiness of the organization or donor to litigate, the issue under the best of circumstances could hardly come before a court’ until at least a year after the tax year in which the issue arises. Ordinarily, it would take much longer for the case of the organization’s status to be tried. . . . While all of this time is passing, the organization is dormant for lack of contributions and those otherwise interested in its program lose their interest and move on to other organizations blessed with the Internal Revenue Service imprimatur; and the right to ■ judicial review is not pursued.
“This is an extremely unfortunate situation for several reasons. First, it offends my sense of justice for undue delay to be imposed on one who needs a prompt decision. Second, in practical effect it gives a greater finality to IRS decisions than we would want or Congress intended. Third, it inhibits the growth of a body of case law interpretative of the exempt organization provisions that could guide the IRS in its further deliberations.” | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
68
] |
STEELE v. GENERAL MILLS, INC.
No. 79.
Argued December 18, 1946.
Decided January 6, 1947.
Cecil A. Morgan argued the cause for petitioner. With him on the brief was T. S. Christopher.
Alfred McKnight argued the cause for respondent. With him on the brief were Charles E. France and Ira Butler.
By special leave of Court, Elton M. Hyder argued the cause for the State of Texas as amicus curiae.
Me. Justice Black
delivered the opinion of the Court.
Petitioner and respondent entered, in to a written contract under which the petitioner was to transport goods for respondent by truck entirely within the State of Texas at “such rates, charges or tariffs as may be fixed by the Railroad Commission of the State of Texas.” Based on that contract petitioner applied to the Commission for a permit to operate as a contract carrier pursuant to rules of the Railroad Commission promulgated under Texas law which grants regulatory power over transportation to that Commission. Article 911b, §§ 1 to 22 (b), Rev. Stat. of Tex. Petitioner’s application stated that “the tariff to be charged for the service proposed to be rendered will be that as promulgated by the Railroad Commission of Texas.” After notice and hearing, at which petitioner and a representative of respondent testified, the Commission made an order which stated that “after carefully considering the evidence, the laws and its own rules and regulations,” the Commission was of the opinion that “the character of business proposed to be done by the applicant strictly conforms with the definition of a contract carrier.” The order directed that petitioner be granted a permit, which was later issued, to transport goods for respondent in Texas, but directed attention to the fact that the Commission’s “tariffs and orders prescribed as a minimum rate to be charged by contract carriers the rates prescribed for common carrier motor carriers.” Later, pursuant to a prearrangement, the parties entered into a supplemental agreement concerning which the Railroad Commission was kept uninformed, in accordance with which respondent actually paid petitioner for carriage of its goods less than the rates prescribed for common motor carriers. About three and a half years later the petitioner filed this suit, of which the District Court had jurisdiction by reason of diversity of citizenship, to recover the difference between the rate paid and the full rate fixed by prior general orders of the Commission prescribing common carrier rates as provided in the contract.
The respondent’s answer admitted that it had paid less than the tariff rate fixed in prior general orders, but denied legal liability to pay that rate on several grounds. It denied that respondent’s rates were governed by the Commission’s prior general rate orders or by the special order granting petitioner a permit as a contract carrier. It also claimed that a state two-year statute of limitations barred recovery for part of the amount claimed. It further alleged that petitioner had led respondent to believe that his type of transportation was not subject to regulation by the Railroad Commission, and that no prior general or special orders had fixed petitioner’s transportation rates. In reliance upon the petitioner’s representations, respondent alleged, it had entered into the supplemental agreement to pay less than the tariff rate here claimed. Respondent pleaded that by this conduct petitioner was estopped from claiming that the Commission had power to or had fixed a rate for petitioner’s transportation, or from predicating his cause of action upon the Commission’s tariffs.
The District Court rejected all of respondent’s contentions. Citing Texas statutes, court decisions, and the Commission’s practices, the District Court held that the cause of action was not barred by the statute of limitations; that the Commission’s prior general rate orders governed the charges to be fixed by contract carriers such as petitioner; that Texas law barred respondent from any collateral attack on the validity of the orders; that had the rate-fixing orders been directly attacked, as authorized by law, they would have been held valid; that shippers and carriers could not by private agreements defeat the State’s statutory purpose to require payments of uniform transportation rates; that the original agreement to pay the Commission-fixed rate was valid, and the supplemental agreement to pay less than that rate was void; and that, under Texas law, petitioner was not estopped to rely on the Commission’s tariff in order to recover the full tariff rate. Accordingly, the District Court directed the jury to return a verdict for petitioner for the balance due it under the Commission rate, and a judgment for the petitioner was entered on that verdict.
The Circuit Court of Appeals, one judge dissenting, reversed. 154 F. 2d 367. The majority concluded that petitioner should not recover because the agreement to pay less than the full rates was a subterfuge, that neither party had any intention of living up to the agreement, and that their conduct amounted to a fraud upon the Railroad Commission, “contrary to good morals and that [it] tended ... to interfere with the purity of the administration of the law such as puts both parties in pari delicto with no right to seek advantage or recovery . . .” on the “spurious” contract. The dissenting judge did not agree that the records showed a deliberate purpose to evade the statutes. He further thought that under controlling Texas law and policy the doctrine of pari delicto could not be applied so as to have the goods of a Texas shipper hauled in Texas at a less rate than the others were compelled to pay by law. All the judges agreed, however, that the agreement to pay less than the Commission-fixed rates was void.
On petitioner’s motion for rehearing, the State Attorney General intervened. He contended that the court’s decision ran counter to the State’s long-established policy against discriminatory transportation rate-cutting, and that if the judgment stood, it would impair the integrity of the State’s regulatory system, a primary purpose of which was, he argued, to assure uniform rates to all shippers for substantially the same transportation service. In its opinion denying rehearing, the court reaffirmed its former holding and stated that this was “a suit by one party, in particeps criminis, against another in like situation, under a fully completed contract, wherein it was sought to penalize one party to the extent of $37,000.00 and to reward the prime offender in like amount.” Whether the Circuit Court of Appeals’ judgment does undermine the transportation policy of Texas is a question of such importance that we granted certiorari to review the case. 328 U. S. 830.
The District Court specifically held that no part of the claim sued on was barred by the Texas statute of limitations and the Circuit Court of Appeals did not discuss the question. Article 5526 of the Revised Statutes of Texas, on which respondent relies, by its language applies only to actions for debts not “evidenced by a contract in writing.” The contract here sued on was “in writing.” Respondent has cited no Texas decisions which have considered this statute to be a bar to suits on contracts such as the one here involved. We cannot say that the District Court sitting in Texas erred in holding that no part of the claim was barred by Article 5526. See Texarkana & Ft. S. R. Co. v. Houston Gas & Fuel Co., 121 Tex. 594, 51 S. W. 2d 284.
Nor can we say that the District Court and the Circuit Court of Appeals erred in interpreting Texas law to render the supplemental agreement between petitioner and respondent, designed to circumvent payment of Commission-fixed rates, void and unenforceable. The District Court’s holdings that the Commission’s rate-fixing orders applied to petitioner’s business, that they were not subject under Texas law to the collateral attack here made, and that petitioner could not carry respondent’s goods at less than the rates fixed were well buttressed by state statutes and court decisions. No arguments here made by respondent, or state decisions on which it relies, refute the District Court’s reasoning or conclusion. The Circuit Court of Appeals has not disagreed with this holding-of the District Court sitting in Texas. Under these circumstances we shall leave undisturbed the interpretation placed upon purely local law by a Texas federal judge. MacGregor v. State Mutual Life Assurance Co., 315 U. S. 280; Henderson Co. v. Thompson, 300 U. S. 258, 266; Thompson v. Consolidated Gas Co., 300 U. S. 55, 74-75. Therefore we can proceed to consider whether the Circuit Court erred in holding that respondent could escape payment of the Commission-fixed rates by application of the doctrine of pari delicto.
Respondent does not refute what the Texas courts have frequently decided, that agreements by railroads to cut charges to below tariff rates are unlawful and that no doctrine of estoppel or pari delicto can be invoked to defeat payment of the full tariff rate. In Texas & N. O. R. Co. v. Yates, 139 Tex. 89, 93, 161 S. W. 2d 1050, 1052, the Texas court said, “In a word the purpose of our statutes, as they relate to intrastate freight rates, is in every essential respect the same as that of the Federal statutes which we had under consideration in Houston & T. C. R. Co. v. Johnson, Tex. Com. App., 41 S. W. 2d 14, 83 A. L. R. 241.” Just as 49 U. S. C. § 41 (3) prohibits rebate and similar devices which might undermine interstate transportation rate systems, so Art. 1690 (b), § (i) of the Penal Code of Texas makes it unlawful for motor carriers to charge less than Commission-fixed rates, and Art. 1687 makes it unlawful for railroads to engage in the same practice. No Texas decisions referred to by the Circuit Court of Appeals or by the respondent here indicate that the State’s public policy is any different or less effective in protecting the integrity of motor carrier rates than railroad rates. The Texas motor carrier legislation was designed to be a part of a state transportation regulatory system applicable alike to all lines of transportation which represents a “studied effort ... to prevent, through regulation, unfair, discriminatory, or destructive competition between such authorized carriers as would ultimately impair their usefulness.” Texas & Pacific R. Co. v. Railroad Comm’n (Tex. Civ. App.) 138 S. W. 2d 927, 931, reversed on other grounds, 138 Tex. 148, 157 S. W. 2d 622. Cf. Stephenson v. Binford, 287 U. S. 251, 272-273.
Under Texas law the payment of Commission-fixed carrier rates is not merely a private obligation between shippers and carriers. The duty to pay is a public one, Houston & T. C. R. Co. v. Johnson (Tex. Com. App.) 41 S. W. 2d 14. And, as said in the Yates case, supra, with reference to a railroad, no carrier can “by means of estoppel ‘or by any other device’ escape the performance of this public duty.” While the doctrine of pari delicto might be applied in Texas to some types of contracts so as to defeat recovery, see Wright v. Wight & Wight (Tex. Civ. App.) 229 S. W. 881, we are satisfied that the Circuit Court of Appeals erred in holding that Texas courts would apply it in this case. Application of the doctrine of pari delicto in this proceeding, therefore, where the federal court has jurisdiction by reason of diversity, would result in applying a rule of law in the federal courts different from the rule we believe has been applicable in the state courts. Such a result cannot be approved. Holmberg v. Armbrecht, 327 U. S. 392.
The judgment of the Circuit Court of Appeals is reversed and that of the District Court is affirmed. It is so ordered.
Reversed.
The court permitted respondent to offer evidence intended to show that the petitioner’s contract carriage was neither in competition with common carriers nor substantially the same type of services as common carriers performed. This evidence was offered to support respondent’s contention that the Commission was without jurisdiction to fix petitioner’s rates because, as respondent urged, § 6 aa of the State motor carrier law limited its power to fix contract carrier rates to motor carriers that did compete with or perform substantially the same services as common carriers. These two questions were submitted to the jury, and they made special findings on the issues in respondent’s favor. The district court later directed the jury to find for petitioner despite these findings, holding, as set out in the opinion, that the Commission’s orders were valid and beyond collateral attack in this case.
The District Court cited the following authorities to support its position: Art. 911b Rev. Stat. of Tex.; General Order No. 25, R. R. Comin’n of Tex., Aug. 22,1931; Texas Steel Co. v. Ft. Worth & Denver C. R. Co., 120 Tex. 597, 40 S. W. 2d 78; Greer v. Railroad Comm’n (Tex. Civ. App.) 117 S. W. 2d 142; St. Louis, I. M. & S. R. Co. v. Landa & Storey (Tex. Civ. App.) 187 S. W. 358; Railroad Comm'n v. Uvalde Construction Co. (Tex. Civ. App.) 49 S. W. 2d 1113; Alpha Petroleutn Co. v. Terrell, 122 Tex. 257, 59 S. W. 2d 364; Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084. It also cited the following federal cases: Burford v. Sun Oil Co., 319 U. S. 315; United Fuel Gas Co. v. Railroad Comm’n, 278 U. S. 300. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
NATIONAL LABOR RELATIONS BOARD v. DUVAL JEWELRY COMPANY OF MIAMI, INC., et al.
No. 234.
Argued May 20, 1958.
Decided June 9, 1958.
Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Jerome D. Fenton, Stephen Leonard, Dominick L. Manoli and Duane Beeson.
Theo Hamilton argued the cause and filed a brief for respondents.
Mr. Justice Douglas
delivered the opinion of the Court.
This controversy grows out of an effort of a union to obtain a representation election among the employees of respondent, Duval Jewelry Co., a retail store. The latter moved to dismiss on the ground that its interstate operations were inadequate to meet the jurisdictional tests of the Act. Five subpoenas duces tecum and one subpoena ad testificandum were issued. The persons to whom the subpoenas were directed moved before both the Board and the hearing officer to revoke the subpoenas. The Board refused to entertain the motions to revoke on the grounds that those motions, under its Rules and Regulations, require an initial ruling by the hearing officer. That officer after granting an opportunity for a hearing denied the motions to revoke. That ruling was not appealed; and respondents refused to comply with the subpoenas. Thereupon the Board instituted this proceeding in the District Court for enforcement of them.
The District Court quashed the subpoenas holding them unreasonable and oppressive. It also held they had been invalidly issued. 141 F. Supp. 860. The Court of Appeals reversed the District Court on the subpoena ad testificandum; and no question concerning it is before us. But it upheld the District Court as respects the subpoenas duces tecum, on the ground that the Board alone could rule on motions to revoke subpoenas duces tecum in representation proceedings. 243 F. 2d 427. The case is here on a writ of certiorari, 355 U. S. 809, which we granted because of a conflict among the Circuits. See, e. g., Labor Board v. Lewis, 249 F. 2d 832, 836-837; Labor Board v. Gunaca, 135 F. Supp. 790, aff’d 230 F. 2d 542.
There is a degree of delegation of authority in connection with a motion to revoke a subpoena duces tecum. The Board’s Rules and Regulations provide that a motion to revoke is first heard by the regional director or by the hearing officer. But the ruling of that subordinate official is not final. Machinery is provided in the Rules for an appeal from that ruling to the Board. We are advised that in practice the aggrieved party asks the Board for leave to appeal, stating the grounds relied upon. The Board in deciding whether to grant the appeal considers the merits. If no substantial question has been raised, leave to appeal is denied. If a substantial question is presented, leave to appeal is granted. Sometimes when leave to appeal is granted, action is forthwith taken on the merits, the ruling of the hearing officer being reversed or modified. Or where an immediate ruling by the Board on a motion to revoke is not required, the Board defers its ruling until the entire case is transferred to it in normal course.
Section 11 (1) of the Act, as noted, gives a person served with a subpoena duces tecum the right to “petition the Board to revoke”; and that section provides that "the Board shall revoke . . . such subpena if in its opinion” the statutory requirements are not satisfied. The limited nature of the delegated authority distinguishes the case from Cudahy Packing Co. v. Holland, 315 U. S. 357, and Fleming v. Mohawk Wrecking Co., 331 U. S. 111, where the person endowed with the power to issue subpoenas delegated the function to another. While there is delegation here, the ultimate decision on a motion to revoke is reserved to the Board, not to a subordinate. All that the Board has delegated is the preliminary ruling on the motion to revoke. It retains the final decision on the merits. One who is aggrieved by the ruling of the regional director or hearing officer can get the Board’s ruling. The fact that special permission of the Board is required for the appeal is not important. Motion for leave to appeal is the method of showing that a substantial question is raised concerning the validity of the subordinate’s ruling. If the Board denies leave, it has decided that no substantial question is presented. We think that no more is required of it under the statutory system embodied in § 11. No matter how strict or stubborn the statutory requirement may be, the law does not “preclude practicable administrative procedure in obtaining the aid of assistants in the department.” See Morgan v. United States, 298 U. S. 468, 481; Eagles v. Samuels, 329 U. S. 304, 315, 316. It is not of help to say that on some matters the Board has original jurisdiction, on others appellate jurisdiction. We are dealing with a matter on which the Board has the final say. As in the case of many other matters coming before hearing examiners, it merely delegates the right to make a preliminary ruling. Much of the work of the Board necessarily has to be done through agents. Section 5 of the Act provides that “The Board may, by one or more of its members or by such agents or agencies as it may designate, prosecute any inquiry necessary to its functions in any part of the United States.” As we have seen, hearings on these representation cases “may be conducted by an officer or employee of the regional office.” Certainly preliminary rulings on subpoena questions are as much in the purview of a hearing officer as his rulings on evidence and the myriad of questions daily presented to him. He does not, of course, have the final word. Ultimate decision on the merits of all the issues coming before him is left to the Board. That is true of motions to revoke subpoenas duces tecum, as well as other issues of law and fact. That degree of delegation seems to us wholly permissible under this statutory system. We need not go further and consider the legality of the more complete type of delegation to which most of the argument in the case has been directed.
The judgment is reversed and the cause is remanded to the Court of Appeals for proceedings in conformity with this opinion.
Reversed.
Section 9 (c) (1) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U. S. C. § 159, provides in part:
“Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—
“the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.”
Section 11 (1) of the Act provides in part:
“For the purpose of all hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of the powers vested in it by section 9 and section 10—
“(1) The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application.”
Section 102.58 (c) of the Board’s Rules and Regulations, 29 CFR, 1958 Cum. Pocket Supp., § 102.58 (c), provides:
“Applications for subpenas may be filed in writing by any party, with the regional director if made prior to hearing, or with the hearing officer if made at the hearing. Applications for subpenas may be made ex parte. The regional director or the hearing officer, as the case may be, shall forthwith grant the subpenas requested. Any person subpenaed, if he does not intend to comply with the subpena, shall, within 5 days after the date of service of the subpena, petition in writing to revoke the subpena. Such petition shall be filed with the regional director who may either rule upon it or refer it for ruling to the hearing officer: Provided, however, That if the evidence called for is to be produced at a hearing and the hearing has opened, the petition to revoke shall be filed with the hearing officer. Notice of the filing of petitions to revoke shall be promptly given by the regional director or hearing officer, as the case may be, to the party at whose request the subpena was issued. The regional director or the hearing officer, as the case may be, shall revoke the subpena if, in his opinion, the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpena does not describe with sufficient particularity the evidence whose production is required. The regional director or the hearing officer, as the case may be, shall make a simple statement of procedural or other grounds for his ruling. The petition to revoke, any answer filed thereto, and any ruling thereon, shall not become part of the record except upon the request of the party aggrieved by the ruling. Persons compelled to submit data or evidence are entitled to retain or, on payment of lawfully prescribed costs, to procure, copies or transcripts of the data or evidence submitted by them.”
For the counterpart of this regulation in unfair labor practice cases see § 102.31.
The subpoenas in the instant case were issued by the regional director upon application of the Board’s attorney assigned to the case. These subpoenas contained the seal of the Board and the facsimile signature of a Board member. See § 102.31 (a) of the Board’s Rules and Regulations.
Section 11 (1) of the Act contains the following provision respecting the revocation of subpoenas:
“Within five days after the service of a subpena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpena does not describe with sufficient particularity the evidence whose production is required.”
See § 102.58 (c), supra, note 2.
Section 11 (2) of the Act provides:
“In case of contumacy or refusal to obey a subpena issued to any person, any district court of the United States or the United States courts of any Territory or possession, or the District Court of the United States for the District of Columbia, within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the Board shall have jurisdiction to issue to such person an order requiring such person to appear before the Board, its member, agent, or agency, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by said court as a contempt thereof.”
See § 102.58 (c), supra, note 2.
Section 102.57 (c) provides:
“All motions, rulings, and orders shall become a part of the record, except that rulings on motions to revoke subpenas shall become a part of the record only upon the request of the party aggrieved, as provided in § 102.58 (e). Unless expressly authorized by the rules and regulations in this part, rulings by the regional director and by the hearing officer shall not be appealed directly to the Board except by special permission of the Board, but shall be considered by the Board when it reviews the entire record. Requests to the Board for special permission to appeal from such rulings of the regional director or the hearing officer shall be filed promptly, in writing, and shall briefly state the grounds relied on. The moving party shall immediately serve a copy thereof on each other party.” (Italics added.)
The foregoing regulation applies in representation proceedings. For its counterpart in unfair labor practice' cases see § 102.26.
The Board has submitted the following statistics:
“An analysis of the Board’s records for the three-year period May 1, 1955, through April 30, 1958, reveals that there were thirteen requests for permission to appeal specially from rulings by hearing officers and trial examiners on petitions to revoke subpenas; that five of these requests were granted by the Board; and that on four of these appeals the hearing officer or trial examiner was reversed and the subpenas revoked, and that on one appeal the hearing officer or trial examiner was sustained.”
See note 2, supra. In Hertner Electric Co., 115 N. L. R. B. 820, 821-822; Jamestown Sterling Corp., 106 N. L. R. B. 466, 469; International Furniture Co., 106 N. L. R. B. 127, 128, n. 2; Bell Aircraft Corp., 98 N. L. R. B. 1277, 1282, n. 4; Burnup & Sims, Inc., 95 N. L. R. B. 1130, n. 1; Morrison Turning Co., 83 N. L. R. B. 687, 688, the Board decided the cases on the merits and also reviewed the decisions of the hearing officer or trial examiner to either revoke or refuse to revoke a subpoena.
See note 3, supra.
See note 7, supra.
See §9 (c)(1), sufra, note 1. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
81
] |
AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO, v. NATIONAL LABOR RELATIONS BOARD et al.
No. 40.
Argued November 14, 1956.
Decided December 10, 1956.
Harold I. Cammer argued the cause and filed a brief for petitioner.
Theophil C. Kammholz argued the cause for the National Labor Relations Board, respondent. With him on the brief were Solicitor General Rankin, Dominick L. Manoli and Norton J. Come.
Judson Harwood argued the cause for the Lannom Manufacturing Co., respondent. With him on the brief was Cecil Sims.
Mr. Justice Douglas
delivered the opinion of the Court.
This is a companion case to Leedom v. International Union, ante, p. 145, decided this day. International Fur and Leather Workers Union filed a charge with the National Labor Relations Board alleging that respondent Lannom Mfg. Co. had interfered with the rights of its employees guaranteed by the Act. This charge was filed in April 1951. A complaint was issued based on the charges in February 1952. At the hearing, Lannom sought to prove that certain § 9 (h) affidavits filed by officers of the union were false. The trial examiner ruled, in accordance with the Board’s practice, that that issue could not be litigated in the proceeding. The trial examiner recommended that an appropriate remedial order issue to correct the unfair labor practice which he found to exist. The Board in general sustained the trial examiner and issued a remedial order against Lannom, 103 N. L. R. B. 847. Prior to this order, the Board had been enjoined from taking administrative action requiring the union’s officers to reaffirm their § 9 (h) affidavits. Farmer v. United Electrical Workers, 93 U. S. App. D. C. 178, 211 F. 2d 36. Accordingly the Board ruled, “We are administratively satisfied that the Union was in compliance with Section 9 (h) at all times relevant hereto.” 103 N. L. R. B., at 847, n. 2.
In August 1953 an indictment was returned against Ben Gold, an officer of the union, charging that the § 9 (h) affidavit which he filed with the Board on August 30, 1950, was false. In 1954 Gold was convicted for that offense. Thereafter, the Board ordered the union to show cause why its compliance status under the Act should not be altered, unless. Gold were removed from office. The union re-elected Gold as its president. Shortly thereafter the Board declared the union out of compliance with §9 (h). 108 N. L. R. B. 1190, 1191. The union then obtained from the District Court for the District of Columbia a preliminary injunction enjoining the Board from altering or restricting the union’s compliance status by reason of Gold’s conviction. The Court of Appeals affirmed. Farmer v. International Fur & Leather Workers Union, 95 U. S. App. D. C. 308, 221 F. 2d 862.
The Board sought a stay of the preliminary injunction pending decision by the Court of Appeals in the Farmer case. When the stay was denied, the Board petitioned the court below, pursuant to § 10 (e) of the Act, for enforcement of the unfair labor practice order. Respondent Lannom Mfg. Co. moved for dismissal of the enforcement petition on the grounds of Gold’s conviction for false filing under §9(h). The union intervened and opposed the motion to dismiss.
The court below granted the motion to dismiss, holding that, since the falsity of the affidavit had been proved, the requirements of § 9 (h) had not been met and no benefits should be accorded the union. We granted certiorari. 351 U. S. 905.
As noted, the complaint in the unfair labor practice proceeding was issued in February 1952, more than twelve months after the affidavit of August 30, 1950. Section 9 (h) provides that no investigation shall be made or complaint issued on behalf of a union unless there is on file with the Board a non-Communist affidavit of each officer “executed contemporaneously or within the preceding twelve-month period.” There was no charge against Gold for filing a false affidavit in 1951. The Court of Appeals met that difficulty by presuming that a person who was a Communist in 1950 continued as such through 1951 and through the critical date of February 1952, in absence of evidence showing a change in the factual situation. 226 F. 2d 194, 198-199.
The petitioner has also urged that Gold’s conviction for filing a false affidavit could form no basis for holding the union in decompliance prior to the affirmance of Gold’s conviction on appeal. At the time of the decision below, Gold’s appeal was pending in the Court of Appeals for the District of Columbia. As noted, we have granted certiorari to review the affirmance of his conviction.
For the reasons stated in Leedom v. International Union, ante, p. 145, we conclude that the sole sanction for the filing of a false affidavit under § 9 (h) is the criminal penalty imposed on the officer who files a false affidavit, not decompliance of the union nor the withholding of the benefits of the Act that are granted once the specified officers file their § 9 (h) affidavits. Having so concluded, we find it unnecessary to reach the collateral phases of this controversy.
Reversed.
In February 1955 this union merged with Amalgamated Meat Cutters & Butcher Workers of North America, petitioner in this case.
The judgment of conviction was affirmed by an equally divided Court of Appeals, sitting en banc. Gold v. United States, 99 U. S. App. D. C. 136, 237 F. 2d 764. We granted certiorari on October 8, 1956. 352 U. S. 819.
It was on this phase of the case that Judge Stewart dissented:
“A jury has found that in 1950 Gold was both a Communist and a liar, to put it bluntly. Yet to indulge in the presumption that he was therefore guilty of committing a criminal offense a year later in filing the 1951 affidavit is further than I can go on the record before us.” 226 F. 2d, at 200.
Note 2, supra. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
81
] |
LARKIN et al. v. GRENDEL’S DEN, INC.
No. 81-878.
Argued October 4, 1982
Decided December 13, 1982
BURGER, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Powell, Stevens, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting opinion, post, p. 127.
Gerald J. Caruso, Assistant Attorney General of Massachusetts, argued the cause pro hac vice for appellants. With him on the briefs for appellants Larkin et al. were Francis X. Bellotti, Attorney General, and Paul W. Johnson, Special Assistant Attorney General. David B. O’Connor and Birge Albright filed a brief for appellant Cambridge License Commission.
Laurence H. Tribe argued the cause and filed briefs for appellee.
Charles S. Sims and John Reinstein filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Chief Justice Burger
delivered the opinion of the Court.
The question presented by this appeal is whether a Massachusetts statute, which vests in the governing bodies of churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius of the church or school, violates the Establishment Clause of the First Amendment or the Due Process Clause of the Fourteenth Amendment.
I
A
Appellee operates a restaurant located in the Harvard Square area of Cambridge, Mass. The Holy Cross Armenian Catholic Parish is located adjacent to the restaurant; the back walls of the two buildings are 10 feet apart. In 1977, appellee applied to the Cambridge License Commission for approval of an alcoholic beverages license for the restaurant.
Section 16C of Chapter 138 of the Massachusetts General Laws provides: “Premises . . . located within a radius of five hundred feet of a church or school shall not be licensed for the sale of alcoholic beverages if the governing body of such church or school files written objection thereto.”
Holy Cross Church objected to appellee’s application, expressing concern over “having so many licenses so near” (emphasis in original). The License Commission voted to deny the application, citing only the objection of Holy Cross Church and noting that the church “is within 10 feet of the proposed location.”
On appeal, the Massachusetts Alcoholic Beverages Control Commission upheld the License Commission’s action. The Beverages Control Commission found that “the church’s objection under Section 16C was the only basis on which the [license] was denied.”
Appellee then sued the License Commission and the Beverages Control Commission in United States District Court. Relief was sought on the grounds that § 16C, on its face and as applied, violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Establishment Clause of the First Amendment, and the Sherman Act.
The suit was voluntarily continued pending the decision of the Massachusetts Supreme Judicial Court in a similar challenge to §16C, Arno v. Alcoholic Beverages Control Comm’n, 377 Mass. 83, 384 N. E. 2d 1223 (1979). In Amo, the Massachusetts court characterized § 16C as delegating a “veto power” to the specified institutions, id., at 89, 384 N. E. 2d, at 1227, but upheld the statute against Due Process and Establishment Clause challenges. Thereafter, the District Court denied appellants’ motion to dismiss.
On the parties’ cross-motions for summary judgment, the District Court declined to follow the Massachusetts Supreme Judicial Court’s decision in Arno, supra. The District Court held that §16C violated the Due Process Clause and the Establishment Clause and held § 16C void on its face, Grendel’s Den, Inc. v. Goodwin, 495 F. Supp. 761 (Mass. 1980). The District Court rejected appellee’s equal protection arguments, but held that the State’s actions were not immune from antitrust review under the doctrine of Parker v. Brown, 317 U. S. 341 (1943). It certified the judgment to the Court of Appeals for the First Circuit pursuant to 28 U. S. C. § 1292, and the Court of Appeals accepted certification.
A panel of the First Circuit, in a divided opinion, reversed the District Court on the Due Process and Establishment Clause arguments, but affirmed its antitrust analysis, Grendel’s Den, Inc. v. Goodwin, 662 F. 2d 88 (1981).
Appellee’s motion for rehearing en banc was granted and the en banc court, in a divided opinion, affirmed the District Court’s judgment on Establishment Clause grounds without reaching the due process or antitrust claims, Grendel's Den, Inc. v. Goodwin, 662 F. 2d 102 (1981).
B
The Court of Appeals noted that appellee does not contend that § 16C lacks a secular purpose, and turned to the question of “whether the law ‘has the direct and immediate effect of advancing religion’ as contrasted with ‘only a remote and incidental effect advantageous to religious institutions,”’ id., at 104 (emphasis in original), quoting Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 783, n. 39 (1973). The court concluded that § 16C confers a direct and substantial benefit upon religions by “the grant of a veto power over liquor sales in roughly one million square feet... of what may be a city’s most commercially valuable sites,” 662 F. 2d, at 105.
The court acknowledged that § 16C “extends its benefits beyond churches to schools,” but concluded that the inclusion of schools “does not dilute [the statute’s] forbidden religious classification,” since § 16C does not “encompass all who are otherwise similarly situated to churches in all respects except dedication to ‘divine worship.’” Id., at 106-107 (footnote omitted). In the view of the Court of Appeals, this “explicit religious discrimination,” id., at 105, provided an additional basis for its holding that § 16C violates the Establishment Clause.
The court found nothing in the Twenty-first Amendment to alter its conclusion, and affirmed the District Court’s holding that § 16C is facially unconstitutional under the Establishment Clause of the First Amendment.
We noted probable jurisdiction, 454 U. S. 1140 (1982), and we affirm.
II
A
Appellants contend that the State may, without impinging on the Establishment Clause of the First Amendment, enforce what it describes as a “zoning” law in order to shield schools and places of divine worship from the presence nearby of liquor-dispensing establishments. It is also contended that a zone of protection around churches and schools is essential to protect diverse centers of spiritual, educational, and cultural enrichment. It is to that end that the State has vested in the governing bodies of all schools, public or private, and all churches, the power to prevent the issu-anee of liquor licenses for any premises within 500 feet of their institutions.
Plainly schools and churches have a valid interest in being insulated from certain kinds of commercial establishments, including those dispensing liquor. Zoning laws have long been employed to this end, and there can be little doubt about the power of a state to regulate the environment in the vicinity of schools, churches, hospitals, and the like by exercise of reasonable zoning laws.
We have upheld reasonable zoning ordinances regulating the location of so-called “adult” theaters, see Young v. American Mini Theatres, Inc., 427 U. S. 50, 62-63 (1976); and in Grayned v. City of Rockford, 408 U. S. 104 (1972), we recognized the legitimate governmental interest in protecting the environment around certain institutions when we sustained an ordinance prohibiting willfully making, on grounds adjacent to a school, noises which are disturbing to the good order of the school sessions.
The zoning function is traditionally a governmental task requiring the “balancing [of] numerous competing considerations,” and courts should properly “refrain from reviewing the merits of [such] decisions, absent a showing of arbitrariness or irrationality.” Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 265 (1977). See also, e. g., Village of Belle Terre v. Boraas, 416 U. S. 1, 7-9 (1974). Given the broad powers of states under the Twenty-first Amendment, judicial deference to the legislative exercise of zoning powers by a city council or other legislative zoning body is especially appropriate in the area of liquor regulation. See, e. g., California v. LaRue, 409 U. S. 109 (1972); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 106-110 (1980).
However, § 16C is not simply a legislative exercise of zoning power. As the Massachusetts Supreme Judicial Court concluded, § 16C delegates to private, nongovernmental entities power to veto certain liquor license applications, Arno v. Alcoholic Beverages Control Comm’n, 377 Mass., at 89, 384 N. E. 2d, at 1227. This is a power ordinarily vested in agencies of government. See, e. g., California v. LaRue, supra, at 116, commenting that a “state agency ... is itself the repository of the State’s power under the Twenty-first Amendment.” We need not decide whether, or upon what conditions, such power may ever be delegated to nongovernmental entities; here, of two classes of institutions to which the legislature has delegated this important decisionmaking power, one is secular, but one is religious. Under these circumstances, the deference normally due a legislative zoning judgment is not merited.
B
The purposes of the First Amendment guarantees relating to religion were twofold: to foreclose state interference with the practice of religious faiths, and to foreclose the establishment of a state religion familiar in other 18th-century systems. Religion and government, each insulated from the other, could then coexist. Jefferson’s idea of a “wall,” see Reynolds v. United States, 98 U. S. 145, 164 (1879), quoting reply from Thomas Jefferson to an address by a committee of the Danbury Baptist Association (January 1,1802), reprinted in 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861), was a useful figurative illustration to emphasize the poncept of separateness. Some limited and incidental entanglement between church and state authority is inevitable in a complex modem society, see, e. g., Lemon v. Kurtzman, 403 U. S. 602, 614 (1971); Walz v. Tax Comm’n, 397 U. S. 664, 670 (1970), but the concept of a “wall” of separation is a useful signpost. Here that “wall” is substantially breached by vesting discretionary governmental powers in religious bodies.
This Court has consistently held that a statute must satisfy three criteria to pass muster under the Establishment Clause:
“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Lemon v. Kurtzman, supra, at 612-613, quoting Walz v. Tax Comm’n, supra, at 674.
See also Widmar v. Vincent, 454 U. S. 263, 271 (1981); Wolman v. Walter, 433 U. S. 229, 236 (1977). Independent of the first of those criteria, the statute, by delegating a governmental power to religious institutions, inescapably implicates the Establishment Clause.
The purpose of § 16C, as described by the District Court, is to “protec[t] spiritual, cultural, and educational centers from the ‘hurly-burly’ associated with liquor outlets.” 495 F. Supp., at 766. There can be little doubt that this embraces valid secular legislative purposes. However, these valid secular objectives can be readily accomplished by other means — either through an absolute legislative ban on liquor outlets within reasonable prescribed distances from churches, schools, hospitals, and like institutions, or by ensuring a hearing for the views of affected institutions at licensing proceedings where, without question, such views would be entitled to substantial weight.
Appellants argue that § 16C has only a remote and incidental effect on the advancement of religion. The highest court in Massachusetts, however, has construed the statute as conferring upon churches a veto power over governmental licensing authority. Section 16C gives churches the right to determine whether a particular applicant will be granted a liquor license, or even which one of several competing applicants will receive a license.
The churches’ power under the statute is standardless, calling for no reasons, findings, or reasoned conclusions. That power may therefore be used by churches to promote goals beyond insulating the church from undesirable neighbors; it could be employed for explicitly religious goals, for example, favoring liquor licenses for members of that congregation or adherents of that faith. We can assume that churches would act in good faith in their exercise of the statutory power, see Lemon v. Kurtzman, supra, at 618-619, yet § 16C does not by its terms require that churches’ power be used in a religiously neutral way. “[T]he potential for conflict inheres in the situation,” Levitt v. Committee for Public Education, 413 U. S. 472, 480 (1973); and appellants have not suggested any “effective means of guaranteeing” that the delegated power “will be used exclusively for secular, neutral, and nonideological purposes.” Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S., at 780. In addition, the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred. It does not strain our prior holdings to say that the statute can be seen as having a “primary” and “principal” effect of advancing religion.
Turning to the third phase of the inquiry called for by Lemon v. Kurtzman, we see that we have not previously had occasion to consider the entanglement implications of a statute vesting significant governmental authority in churches. This statute enmeshes churches in the exercise of substantial governmental powers contrary to our consistent interpretation of the Establishment Clause; “[t]he objective is to prevent, as far as possible, the intrusion of either [Church or State] into the precincts of the other.” Lemon v. Kurtzman, 403 U. S., at 614. We went on in that case to state:
“Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.” Id., at 625 (emphasis added).
Our contemporary views do no more than reflect views approved by the Court more than a century ago:
“ ‘The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.’” Watson v. Jones, 13 Wall. 679, 730 (1872), quoting Harmon v. Dreher, 1 Speers Eq. 87, 120 (S. C. App. 1843).
As these and other cases make clear, the core rationale underlying the Establishment Clause is preventing “a fusion of governmental and religious functions,” Abington School Dis trict v. Schempp, 374 U. S. 203, 222 (1963). See, e. g., Walz v. Tax Comm’n, 397 U. S., at 674-675; Everson v. Board of Education, 330 U. S. 1, 8-13 (1947). The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.
Section 16C substitutes the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications. The challenged statute thus enmeshes churches in the processes of government and creates the danger of “[pjolitical fragmentation and divisiveness on religious lines,” Lemon v. Kurtzman, supra, at 623. Ordinary human experience and a long line of cases teach that few entanglements could be more offensive to the spirit of the Constitution.
The judgment of the Court of Appeals is affirmed.
So ordered.
Section 16C defines “church” as “a church or synagogue building dedicated to divine worship and in regular use for that purpose, but not a chapel occupying a minor portion of a building primarily devoted to other uses.” “School” is defined as “an elementary or secondary school, public or private, giving not less than the minimum instruction and training required by [state law] to children of compulsory school age.” Mass. Gen. Laws. Ann., ch. 138, §16C (1974).
Section 16C originally was enacted in 1954 as an absolute ban on liquor licenses within 500 feet of a church or school, 1954 Mass. Acts, ch. 569, § 1. A 1968 amendment modified the absolute prohibition, permitting licenses within the 500-foot radius “if the governing body of such church assents in writing,” 1968 Mass. Acts, ch. 435. In 1970, the statute was amended to its present form, 1970 Mass. Acts, ch. 192.
In 1979, there were 26 liquor licensees in Harvard Square and within a 500-foot radius of Holy Cross Church; 25 of these were in existence at the time Holy Cross Church objected to appellee’s application. See App. 69-72.
Section 16C defines “church” as: “a church or synagogue building dedicated to divine worship”^ (emphasis added). Appellee argues that the statute unconstitutionally differentiates between theistic and nontheistic religions. We need not reach that issue. For purposes of this appeal, we assume, as did the original panel of the Court of Appeals, that the Massachusetts courts would apply the protections of § 16C to “any building primarily used as a place of assembly by a bona fide religious group,” 662 F. 2d, at 97, and thereby avoid serious constitutional questions that would arise concerning a statute that distinguishes between religions on the basis of commitment to belief in a divinity. See Torcaso v. Watkins, 367 U. S. 488, 495 (1961); Everson v. Board of Education, 330 U. S. 1, 15 (1947).
This recent construction of the statute by the highest court in Massachusetts is controlling on the meaning of § 16C. See O’Brien v. Skinner, 414 U. S. 524, 531 (1974).
For similar reasons, the Twenty-first Amendment does not justify § 16C. The Twenty-first Amendment reserves power to states, yet here the State has delegated to churches a power relating to liquor sales. The State may not exercise its power under the Twenty-first Amendment in a way which impinges upon the Establishment Clause of the First Amendment.
In this facial attack, the Court assumes that § 16C actually effectuates the secular goal of protecting churches and schools from the disruption associated with liquor-serving establishments. The fact that Holy Cross Church is already surrounded by 26 liquor outlets casts some doubt on the effectiveness of the protection granted, however.
See California v. LaRue, 409 U. S. 109, 120 (1972) (Stewart, J., concurring).
Section 16C, as originally enacted, consisted of an absolute ban on liquor licenses within 500 feet of a church or school, see n. 1, supra; and 27 States continue to prohibit liquor outlets within a prescribed distance of various categories of protected institutions, with certain exceptions and variations: Ala. Code § 28-3-17 (1977); Alaska Stat. Ann. § 04.11.410 (1980); Ark. Stat. Ann. §48-345 (1977); Colo. Rev. Stat. §12-17-138 (1978); Ga. Code Ann. §3-3-21 (1982); Idaho Code §§23-303, 23-913 (1977); Ill. Rev. Stat., ch. 43, ¶ 127 (Supp. 1980); Ind. Code §7.1-3-21-11 (1982); Kan. Stat. Ann. § 41-710 (1981); La. Rev. Stat. Ann. § 26-280 (West 1975); Md. Ann. Code, Art. 2B, §§46B, 47, 52A, 52C (1981 and Supp. 1982); Mich. Comp. Laws Ann. §§ 436.17a, 436.17c (1978 and Supp. 1982); Minn. Stat. Ann. §340.14 (1972 and Supp. 1982); Miss. Code Ann. §67-1-51 (Supp. 1982); Mont. Code Ann. § 16-3-306 (1981); Neb. Rev. Stat. §53-177 (1978); N. H. Rev. Stat. Ann. § 177:1 (1978); N. M. Stat. Ann. § 60-6B-10 (1981); N. C. Gen. Stat. § 18A-40 (1978) (schools); Okla. Stat., Tit. 37, § 534 (1981); R. I. Gen. Laws §3-7-19 (Supp. 1982); S. C. Code §61-3-440 (1976); S. D. Codified Laws §35-2-6.1 (Supp. 1982); Tex. Aleo. Bev. Code Ann., § 109.33 (1978); Utah Code Ann. § 16-6-13.5 (Supp. 1981); W. Va. Code § 11-16-12 (1974); Wis. Stat. Ann. § 125.68 (West Supp. 1982-1983). The Court does not express an opinion as to the constitutionality of any statute other than that of Massachusetts.
Eleven States have statutes or regulations directing the licensing authority to consider the proximity of the proposed liquor outlet to schools or other institutions in deciding whether to grant a liquor license: Cal. Bus. & Prof. Code Ann. § 23789 (West 1964); Conn. Gen. Stat. § 30-46 (1981); Del. Code Ann., Tit. 4, §543 (1974 and Supp. 1980); Haw. Rev. Stat. §281-56 (1976); Mich. Comp. Laws Ann. §§ 436.17a, 436.17c (1978 and Supp. 1982-1983) (certain classes of licenses); N. C. Gen. Stat. § 18A-40 (1978) (churches); Ohio Rev. Code Ann. §4303.26 (Supp. 1981); Pa. Stat. Ann., Tit. 47, §§ 4-404, 4-432(d) (Purdon 1969 and Supp. 1982); Tenn. Code Ann. § 57-5-105 (Supp. 1982); Va. Code § 4-31 (Supp. 1982); Vt. Liquor Control Bd. Regs. ¶39 (1976).
Appellants argue that the Beverages Control Commission may reject or ignore any objection made for discriminatory or illegal reasons. This contention appears flatly contradicted by the Massachusetts Supreme Judicial Court’s own interpretation of the statute, see Amo v. Alcoholic Beverages Control Comm’n, 377 Mass. 83, 90, 92, and n. 23, 384 N. E. 2d 1223, 1228, 1229, and n. 23 (1979). In any event, an assumption that the Beverages Control Commission might review the decisionmaking of the churches would present serious entanglement problems. See Lemon v. Kurtzman, 403 U. S. 602, 619 (1971); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (1979).
At the time of the Revolution, Americans feared not only a denial of religious freedom, but also the danger of political oppression through a union of civil and ecclesiastical control. B. Bailyn, Ideological Origins of the American Revolution 98-99, n. 3 (1967). See McDaniel v. Paty, 435 U. S. 618, 622-623 (1978). In 18th-century England, such a union of civil and ecclesiastical power was reflected in legal arrangements granting church officials substantial control over various occupations, including the liquor trade. See, e. g., 26 Geo. 2, ch. 31, § 2 (1753) (church officials given authority to grant certificate of character, a prerequisite for an alehouse license); S. Webb & B. Webb, The History of Liquor Licensing in England, Principally from 1700 to 1830, pp. 8, n. 1, 62-67, 102-103 (1903).
Appellee also challenges the statute as a violation of due process. In light of our analysis we need not and do not reach that claim. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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116
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UNITED STATES et al. v. HEMME et al.
No. 84-1944.
Argued March 5, 1986
Decided June 3, 1986
Marshall, J., delivered the opinion for a unanimous Court.
Albert G. Lauber, Jr., argued the cause for appellants. With him on the briefs for the United States were Solicitor General Fried, Assistant Attorney General Archer, Michael L. Paup, and Ernest J. Brown.
Edward F. Sutkowski argued the cause for appellees. With him on the brief were Dean B. Rhoads and Donald C. Rikli
David W. Carpenter, James J. Carroll, and Edward C. Rustigan filed a brief for Margaret A. Paluch as amicus curiae urging affirmance.
Justice Marshall
delivered the opinion of the Court.
Appellees, identified as the trustee of the “revocable living trust” of Charles W. Hirschi and transferees of Hirschi’s property, seek a refund of $6,000 in estate taxes, on the ground that the Government’s interpretation of a statutory transitional rule, enacted to bridge the old and new regimes for the federal taxation of gifts and estates, violates both the statute and the Constitution.
I
Prior to 1977, the gift tax and the estate tax were imposed, calculated, and collected separately. The gift tax, imposed on donors of certain gifts, permitted each taxpayer a lifetime exemption of $30,000 to be deducted from amounts otherwise taxable. 26 U. S. C. §2521 (1970 ed.). This so-called “specific exemption” could be claimed, in whole or in part, at any time during the taxpayer’s lifetime. Ibid. The estate tax, too, provided certain relief for modest estates. In determining the amount subject to estate tax, the estate was entitled to deduct a “specific exemption” of $60,000. §2052 (1970 ed.).
In considering tax reform in 1976, Congress determined that several changes were necessary to ease the burden of estate and gift taxes on taxpayers of modest means. See H. R. Rep. No. 94-1380, p. 11 (1976). One such change was to transform what had been tax deductions into tax credits so that taxpayers in the lower brackets would benefit as much as those in higher brackets. Id., at 15. In addition, Congress decided to merge the two separate specific exemptions for gifts and estates into a single credit, believing that the prior system had favored those who could afford to make substantial lifetime transfers, while disadvantaging those who needed to maintain access to their assets until death. Id., at 16. Accordingly, the Tax Reform Act of 1976 (Act) erased many of the distinctions in treatment between transfers during life and those after death, in effect treating inheritance as the final taxable gift. It created the so-called “unified credit,” which a taxpayer could apply either toward gift tax during life or toward estate tax after death. 26 U. S. C. §§ 2010(a), 2505(a). The $30,000 specific exemption for gifts and $60,000 specific exemption for estates were eliminated, beginning with estates of taxpayers dying after December 31, 1976, and gifts given after that date. A phase-in schedule was established for the amount of the new unified credit, providing a credit of $30,000 for taxpayers dying in 1977, $34,000 for those dying in 1978, and culminating in $47,000 for decedents dying in 1981 and thereafter. 26 U. S. C. §§2010(b), 2505(b) (1976 ed.).
The transformation from exemptions to credit left unresolved the treatment of taxpayers who, before 1977, had used up some or all of their $30,000 specific exemption to escape taxation of gifts. Without further action by Congress, those taxpayers would have gained that benefit of the old regime and theoretically would still be entitled to the entire unified credit provided by the new scheme, even though the latter credit was intended to be a substitute for the entire $90,000 worth of specific exemptions. Moreover, taxpayers with notice of the new scheme would have a great incentive to make gifts quickly and claim their specific exemptions before the unified credit was to go into effect, deliberately seeking the windfall of double exemption. See Estate of Gawne v. Commissioner, 80 T. C. 478, 483 (1983). Recognizing these possibilities, the House Ways and Means Committee reported out a bill which provided that if any portion of the $30,000 specific exemption for gifts had been claimed by a taxpayer since 1932, the unified credit otherwise available to the taxpayer would be reduced by 20% of the amount of the specific exemption already claimed. H. R. 14844, 94th Cong., 2d Sess., §§ 2010(c), 2505(c) (1976), reprinted in H. R. Rep. No. 94-1380, pp. 94, 131 (1976). While the legislative history does not explain the derivation of the 20% figure, the Committee apparently believed it to represent roughly the proportion of equivalence between the values of the specific exemption and the credit, taking into account average effective tax rates.
This proposed transitional rule was amended by the Conference Committee. The conferees limited the class of covered taxpayers to those who had made gifts after September 8, 1976, the date the Conference Committee approved the measure, but before January 1,1977, the effective date of the Act. See H. R. Conf. Rep. No. 94-1515, pp. 607-608 (1976). The Conference Committee evidently was less concerned with the possibility of double tax benefits in general than it was with preventing the intentional accretion of such benefits. See R. Stephens, G. Maxfield, & S. Lind, Federal Estate and Gift Taxation ¶3.02, pp. 3-4, n. 9 (4th ed. 1978); J. McCord, 1976 Estate and Gift Tax Reform: Analysis, Explanation and Commentary §2.13, p. 26 (1977). The Act containing this transitional rule passed both Houses of Congress on September 16, 1976, and the President signed it on October 4, 1976. It is the application of the transitional rule that is at issue in the case before us.
II
The parties have stipulated to the facts. On September 28, 1976, during the period designated as the transitional period, Charles Hirschi made gifts totaling $45,000 to five persons. Two days later, Hirschi filed a federal gift tax return declaring that no tax was due. The first $15,000 consisted of five gifts of $3,000 each, and was exempt from taxation by virtue of a statutory annual exclusion from gift tax of $3,000 per donee. See 26 U. S. C. § 2503(b) (1970 ed.). To render the remaining $30,000 also exempt from tax, Hirschi elected to claim his entire, lifetime specific exemption. By thus claiming the maximum exemptions to which the old law entitled him, Hirschi evidently hoped to reap the benefits of that law before its repeal. Had he lived three years longer, he might have come closer to realizing his hopes.
But, in poignant confirmation of Benjamin Franklin’s adage, Hirschi escaped neither death nor taxes. Just over two years later, Hirschi died, and his estate was required by law to include in the gross estate all gifts made “in contemplation of death,” which presumptively included all gifts made within three years of the decedent’s demise. See 26 U. S. C. §2035 (1970 ed.). After including in the estate the full $45,000 worth of gifts given on September 28, 1976, the estate then claimed its entire unified credit provided by the new Act for decedents dying in 1978, in the amount of $34,000. The Internal Revenue Service (IRS), however, concluded that, under the transitional rule, the $34,000 unified credit must be reduced by 20% of the amount of the specific exemption claimed during the decedent’s lifetime, or $6,000. The IRS made an assessment of $6,000, and the estate paid the deficiency. The estate then filed an unsuccessful administrative claim for a refund, and this lawsuit followed.
The District Court for the Southern District of Illinois held that § 2010(c), as applied to Hirschi’s gift, violates the Due Process Clause of the Fifth Amendment. Because the transitional rule has an effect on gifts made before its enactment, the court reasoned that the case is controlled by Untermyer v. Anderson, 276 U. S. 440 (1928), in which this Court held that the Nation’s first gift tax could not be applied to gifts made before its enactment without violating due process. Id., at 445. The District Court found that the application of § 2010(c) to this transaction was “so arbitrary and capricious as to render it unconstitutional.” App. to Juris. Statement 6a. This Court noted probable jurisdiction of the Government’s appeal, 474 U. S. 814 (1985), and we now reverse the judgment of the District Court.
Ill
Appellees proffer two principal arguments in support of the judgment below. First, they maintain that Congress did not intend the transitional rule to be applied as the IRS applied it in their case. Second, they contend that the employment of the transitional rule in their case offends due process. Although the District Court embarked immediately upon the constitutional claim, we shall undertake the statutory analysis first.
The transitional rule provides as follows:
“The amount of the credit allowable under subsection (a) [the unified credit] shall be reduced by an amount equal to 20 percent of the aggregate amount allowed as a specific exemption under section 2521 (as in effect before its repeal by the Tax Reform Act of 1976) with respect to gifts made by the decedent after September 8, 1976.” 26 U. S. C. § 2010(c).
Appellees focus on the word “allowed.” They contend that, when the $30,000 gift was included in the Hirschi estate by reason of his death within three years of making the gift, the $30,000 specific exemption he had claimed became “disallowed”; it was improper, they argue, for the unified credit to have been diminished as if Hirschi had been “allowed” his specific exemption. Under appellees’ view, a claim to a specific exemption is not “allowed” unless the taxpayer ultimately benefits from that exemption by paying less tax than he otherwise would have paid.
Longstanding interpretation of the tax laws provides appellees little in the way of support. This Court had occasion, in 1943, to consider an argument very similar to that propounded by appellees in this case. In Virginian Hotel Corp. v. Helvering, 319 U. S. 523 (1943), the taxpayer claimed “that ‘allowed,’ unlike ‘allowable,’ connotes the receipt of a tax benefit.” Id., at 526. The provision at issue there required the reduction of the basis of property by the amount of prior depreciation deductions “to the extent allowed.” The taxpayer had claimed depreciation deductions in prior years, but, because other deductions for the years in question had been sufficient to produce overall losses, the deductions for depreciation had not reduced the amount of tax owed in those years. Consequently, the taxpayer argued that those deductions, although claimed, had not been “allowed,” because they had not resulted in a tax benefit. The Court disagreed:
“[W]e find no suggestion that ‘allowed,’ as distinguished from ‘allowable,’ depreciation is confined to those deductions which result in tax benefits. ‘Allowed’ connotes a grant. Under our federal tax system there is no machinery for formal allowances of deductions from gross income. Deductions stand if the Commissioner takes no steps to challenge them.” Id., at 526-527.
In this case, too, we find no suggestion that only those uses of the specific exemption that afford an ultimate tax advantage to the taxpayer are to be considered “allowed” within the meaning of § 2010(c). For the gift-tax scheme has no more machinery for formal allowance of deductions than does the income-tax scheme discussed in Virginian Hotel. While it is true that “the record does not reflect that the specific exemption was allowed,” Brief for Appellees 17, inaction by the IRS under these circumstances suggests allowance, rather than disallowance, of the claim. See Kilgroe v. United States, 664 F. 2d 1168, 1170 (CA10 1981); Blackhawk-Perry Corp. v. Commissioner, 182 F. 2d 319, 321 (CA8 1950); P. Dougherty Co. v. Commissioner, 159 F. 2d 269, 271 (CA4 1946); Repplier Coal Co. v. Commissioner, 140 F. 2d 554, 558 (CA3 1944).
Nor is the mere inclusion of the gift in the gross estate tantamount to disallowance of the $30,000 exemption. Under §2035, the $30,000 would have been included in the estate even if Hirschi had paid gift tax on the gift instead of claiming his specific exemption. The operation of §2035 makes no comment upon the propriety of the claim of exemption. Thus, we cannot conclude that Congress intended inclusion of a gift made in contemplation of death in the gross estate of the donor to render the specific exemption not “allowed” within the meaning of § 2010(c).
The term “allowed” is a familiar denizen of the Tax Code. See, e. g., §§ 1016(a)(20), (25). In some sections it appears unqualified, while in others, Congress has clearly embellished the term with the “tax benefit” qualification that appellees urge here. For example, in certain situations a taxpayer’s “basis” in property is to be reduced “for amounts allowed as deductions . . . and resulting in a reduction of the taxpayer’s taxes.” §§ 1016(a)(9), (14), (16). Congress failed to so qualify the term “allowed” in § 2010(c), and we will not presume to impart to Congress an unstated intention to do so.
More importantly, Hirschi did receive a benefit for his specific exemption. He was permitted the option of deciding, in 1976, whether he would prefer to pay gift tax at that time or to claim his lifetime specific exemption and avoid paying taxes on the gift. He was granted the opportunity, knowing of the disadvantageous laws relating to gifts made in contemplation of death, to calculate the probability that he would live for three more years and escape tax on the $30,000 altogether. During his lifetime he paid no tax on the $30,000 gift, consistent with his election to use the specific exemption. The eventual effect of his decisions upon his estate cannot be said to have deprived him of the benefit Congress intended to bestow upon those in Hirschi’s position. The application of § 2010(c) to reduce the unified credit of Hirschi’s estate by 20% of the amount claimed as a specific exemption, therefore, is consistent with the language and purpose of the statute.
IV
We must now address the argument that led the District Court to find unconstitutional the Government’s application of the transitional rule to appellees. Appellees contend that the rule “effectively imposes a retroactive penalty tax upon Mr. Hirschi’s claim to the specific exemption,” Brief for Appellees 33, and that it is “unreasonably harsh and oppressive,” in violation of the Due Process Clause. Id., at 31. In addition, appellees suggest that they have been subjected to double taxation, also without due process, see id., at 32.
The District Court found that § 2010(c) transgresses the Due Process Clause because its application to appellees is arbitrary and capricious. Relying heavily on Untermyer v. Anderson, 276 U. S. 440 (1928), the court concluded that the “retroactive” operation of the legislation, insofar as it affects the final disposition of a gift made before the enactment of the statute, is unreasonable. In Untermyer, this Court construed the Revenue Act of 1924, which was signed on June 2 of that year and imposed a gift tax on gifts made during the entire calendar year 1924. The Court concluded that, “so far as applicable to bona fide gifts not made in anticipation of death and fully consummated prior to June 2,1924, those provisions are arbitrary and invalid under the due process clause of the Fifth Amendment.” Id., at 445. The principal objection to the statute was the absence of notice; the Court endorsed the conclusion, ibid., reached in Blodgett v. Holden, 275 U. S. 142, 147 (1927), where a plurality had found it “wholly unreasonable that one who, in entire good faith and without the slightest premonition of such consequence, made absolute disposition of his property by gifts should thereafter be required to pay a charge for so doing.”
In Untermyer, supra, at 445, the Court explicitly recognized a distinction between retroactive taxation of genuine gifts and that of gifts made in contemplation of death; the case, therefore, is not controlling here. Moreover, Untermyer involved the levy of the first gift tax; its authority is of limited value in assessing the constitutionality of subsequent amendments that bring about certain changes in operation of the tax laws, rather than the creation of a wholly new tax. See United States v. Darusmont, 449 U. S. 292, 299 (1981) (per curiam). Indeed, this Court has since made clear that some retrospective effect is not necessarily fatal to a revenue law. In Milliken v. United States, 283 U. S. 15 (1931), for example, the Court upheld the application of an early “gift in contemplation of death” statute, enacted in 1918, to draw into the estate of a decedent who died in 1920 a gift given in 1916, before enactment of the statute. In that case the equities were especially favorable to the taxpayer, because the gift in question was stock that had appreciated substantially following the gift, and inclusion in the estate occasioned taxation of the higher amount. Nevertheless, this Court reasoned that the validity of the tax depended, not upon its retroactive feature, but upon its nature and that of the gift. The Court upheld the levy of estate tax upon the gift on the ground that the notion of taxing gifts made in contemplation of death as part of the estate was not new, and that the donor should have known that there was a chance of increased tax burden if he chose to make what amounted to a testamentary gift during his lifetime. Id., at 24.
Following the approach taken in our prior cases, we must “consider the nature of the tax and the circumstances in which it is laid before it can be said that its retroactive application is so harsh and oppressive as to transgress the constitutional limitation.” Welch v. Henry, 305 U. S. 134, 147 (1938). One of the relevant circumstances is whether, without notice, a statute gives a different and more oppressive legal effect to conduct undertaken before enactment of the statute. Our first task, accordingly, is to determine whether Hirschi’s conduct was granted a different and more oppressive legal effect as a result of the Act. The key to resolution of this question is § 2035, which has reached back for years to affect the taxation of gifts made in contemplation of death.
Section 2035, as it applied to gifts made before 1977, provided that gifts made within three years of the donor’s death would be deemed to have been made in contemplation of death, unless the estate could establish otherwise. 26 U. S. C. § 2035(b) (1970 ed.). Congress required that gifts made in contemplation of death be included in the amount of the gross estate in order to forestall any temptation on the part of taxpayers to make deathbed transfers for the purpose of evading estate taxes. See Milliken v. United States, supra. Even if the Act had never been passed, Hirschi’s gift would have been subject to the requirements of § 2035. Our inquiry, therefore, must focus upon the operation of that provision both with and without the intervening passage of § 2010(c).
Had Congress not enacted § 2010(c), Hirschi would have claimed his $30,000 specific exemption; he would have paid no tax on that gift. When he died within three years, his estate would have been required, under § 2035, to include the gift in the estate and pay estate taxes on that $30,000. His estate would have been permitted to claim its specific exemption of $60,000 against the estate tax owed. With the enactment of § 2010(c), Hirschi claimed his $30,000 specific exemption; he paid no tax on that gift. When he died within three years, his estate was required, under §2035, to include the gift in the estate and pay estate taxes on that $30,000. His estate was permitted to claim its entire unified credit of $34,000, minus $6,000, against the estate tax owed.
The operative comparison, then, is between a specific exemption of $60,000, available to the estate under the old law, and a unified credit from which $6,000 has been subtracted, available to appellees under the new Act. As discussed above, Congress reasonably determined that the entire unified credit would provide a substitute for both the $30,000 specific exemption for lifetime gifts and the $60,000 specific exemption for estates. Mindful that, under the old law, the estate would have been entitled to claim $60,000 — only two-thirds of the taxpayer’s entire $90,000 exemption — we cannot be surprised to discover that, under the new Act, too, the estate is entitled to something less than the full unified credit otherwise available. Here, Congress quite fairly decided that the credit should be reduced by 20% of the specific exemption previously taken, a favorable exchange for the taxpayer. Taking into account Congress’ equation, then, we cannot but deduce that appellees are no worse off than they would have been without the enactment of the Act. Appellees reach a different conclusion only by comparing Hirschi’s position, not to that of another taxpayer subject to §2035, but to that of a person who did not die within three years of making the gift, a person not similarly situated with respect to the relevant legal criteria.
Other circumstances of Hirschi’s transaction confirm our conclusion that appellees have not suffered different and oppressive treatment as a result of the Act. First, § 2035 had long been in effect at the time Hirschi made his gift, and it is § 2035 that contains the principal retroactive feature involved in this case, requiring the estate to reach back and embrace a gift made over two years previously. Moreover, Hirschi had no expectation at the time of the gift that he would be entitled to any particular amount of a unified credit, that credit not yet having been created. Especially if the amount of the credit that his estate was ultimately allotted resulted in no greater a tax than the estate would have owed under the old law, the retroactive aspect of the law could not be said to be oppressive or inequitable. Appellees concede that, even taking into account the operation of § 2010(c), they still have paid estate taxes of $655.16 less than they would have paid had the 1976 Act never been passed. While the amount of tax is not dispositive, it is one circumstance of the transaction to be considered under Milliken. Under these circumstances, we have no difficulty concluding that, even if § 2010(c) can be considered to be retroactive taxation, a question that we do not answer, the provision represents a fair judgment by Congress that does not deprive appellees of anything to which they can assert a constitutional right.
Appellees also protest that the confluence of §§ 2010(c) and 2035 has required them to pay tax on the same transaction twice. By reducing the unified credit by $6,000, they argue, the IRS has effectively made the estate liable for gift tax on the $30,000, while also assessing estate tax on the same $30,000. Yet we have concluded above that appellees have not been taxed more oppressively than have any taxpayers unfortunate enough to be subject to §2035. “There is no doubt of the power of Congress to provide for including in the gross estate of a decedent, for purposes of the death tax, the value of gifts made in contemplation of death.” Heiner v. Donnan, 285 U. S. 312, 324 (1932). We need not decide here whether that inclusion results in double taxation, for even if it did, the Constitution would not be offended as long as Congress had clearly expressed its intention to occasion the result. Patton v. Brady, 184 U. S. 608, 621 (1902). Congress clearly intended, in §2035, to gather Hirschi’s $30,000 gift into the estate; equally clear is the legislative purpose to reduce the unified credit whenever the specific exemption for lifetime gifts was used during the transitional period. There being no ambiguity in the statute, even if one could construe the treatment of Hirschi as double taxation, the Constitution would not stand in its way. Hellmich v. Hellman, 276 U. S. 233, 238 (1928).
V
The application of § 2010(c) to reduce the credit available to the Hirschi estate by $6,000 is not inconsistent with the statute or the Due Process Clause of the Constitution. Accordingly, the judgment of the District Court is
Reversed.
A credit has greater value to the taxpayer than a deduction or exemption. A credit directly reduces the amount of tax that must be paid, dollar for dollar, whereas a deduction reduces tax liability only indirectly by reducing the taxable estate. See R. Stephens, G. Maxfield, & S. Lind, Federal Estate and Gift Taxation ¶3.01 (4th ed. 1978).
This determination was entirely reasonable from the standpoint of the taxpayer, as the unified credit resulted in an overall increase in tax savings over that provided by the specific exemptions. For example, Hirschi’s estate was subject to a 34% marginal rate of tax, and consequently the estate’s $60,000 specific exemption would have yielded a tax reduction of $20,400. Using the unified credit of the new Act, however, the estate enjoyed a tax reduction of $28,000.
Of course, a numerical comparison between the exemptions and the credit is not entirely fruitful because Congress intended in the Act to increase the overall amount of gifts and estates exempted from tax. See H. R. Rep. No. 94-1380, p. 11 (1976). Nevertheless, simple mathematics suggests that, if a unified credit of $47,000 were to be deemed comparable in some sense to $90,000 in exemptions, then one would expect the credit to be reduced by as much as 52% of the exemption claimed, instead of 20%. Taking account of varying tax rates, Congress clearly acted fairly when it settled on the 20% figure. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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68
] |
MASTERPIECE CAKESHOP, LTD., et al., Petitioners
v.
COLORADO CIVIL RIGHTS COMMISSION, et al.
No. 16-111.
Supreme Court of the United States
Argued Dec. 5, 2017.
Decided June 4, 2018.
Kristen K. Waggoner, Scottsdale, AZ, for Petitioners.
Noel J. Francisco, Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners.
Frederick R. Yarger, Denver, CO, for the State Respondent.
David D. Cole, Washington, DC, for the Private Respondents.
David A. Cortman, Rory T. Gray, Alliance Defending Freedom, Lawrenceville, GA, Nicolle H. Martin, Lakewood, CO, Kristen K. Waggoner, Jeremy D. Tedesco, James A. Campbell, Jonathan A. Scruggs, Alliance Defending Freedom, Scottsdale, AZ, for Petitioners.
Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General, Office of the Colorado Attorney General, Denver, CO, Vincent E. Morscher, Deputy Attorney General, Glenn E. Roper, Deputy Solicitor General, Stacy L. Worthington, Senior Assistant Attorney General, Grant T. Sullivan, Assistant Solicitor General, for Respondent Colorado Civil Rights Commission.
Mark Silverstein, Sara R. Neel, American Civil Liberties Union Foundation of Colorado, Paula Greisen, King & Greisen, LLC, Denver, CO, Ria Tabacco Mar, James D. Esseks, Leslie Cooper, Rachel Wainer Apter, Louise Melling, Rose A. Saxe, Lee Rowland, American Civil Liberties Union Foundation, New York, NY, David D. Cole, Amanda W. Shanor, Daniel Mach, American Civil Liberties Union Foundation, Washington, DC, for Respondents Charlie Craig and David Mullins.
Justice KENNEDY delivered the opinion of the Court.
In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop's owner told the couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriages-marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act.
The Commission determined that the shop's actions violated the Act and ruled in the couple's favor. The Colorado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Commission's order violated the Constitution.
The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.
The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.
One of the difficulties in this case is that the parties disagree as to the extent of the baker's refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage-for instance, a cake showing words with religious meaning-that might be different from a refusal to sell any cake at all. In defining whether a baker's creation can be protected, these details might make a difference.
The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker's refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.
Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission's consideration of this case was inconsistent with the State's obligation of religious neutrality. The reason and motive for the baker's refusal were based on his sincere religious beliefs and convictions. The Court's precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.
Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission's actions here violated the Free Exercise Clause; and its order must be set aside.
I
A
Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events.
Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Christian. He has explained that his "main goal in life is to be obedient to" Jesus Christ and Christ's "teachings in all aspects of his life." App. 148. And he seeks to "honor God through his work at Masterpiece Cakeshop." Ibid. One of Phillips' religious beliefs is that "God's intention for marriage from the beginning of history is that it is and should be the union of one man and one woman." Id., at 149. To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.
Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mullins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To prepare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in ordering a cake for "our wedding." Id., at 152 (emphasis deleted). They did not mention the design of the cake they envisioned.
Phillips informed the couple that he does not "create" wedding cakes for same-sex weddings. Ibid. He explained, "I'll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same sex weddings." Ibid . The couple left the shop without further discussion.
The following day, Craig's mother, who had accompanied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. Id., at 153. He later explained his belief that "to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into." Ibid . (emphasis deleted).
B
For most of its history, Colorado has prohibited discrimination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed "An Act to Protect All Citizens in Their Civil Rights," which guaranteed "full and equal enjoyment" of certain public facilities to "all citizens," "regardless of race, color or previous condition of servitude." 1885 Colo. Sess. Laws pp. 132-133. A decade later, the General Assembly expanded the requirement to apply to "all other places of public accommodation." 1895 Colo. Sess. Laws ch. 61, p. 139.
Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state's tradition of prohibiting discrimination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteristics, CADA in relevant part provides as follows:
"It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation." Colo. Rev. Stat. § 24-34-601(2)(a) (2017).
The Act defines "public accommodation" broadly to include any "place of business engaged in any sales to the public and any place offering services ... to the public," but excludes "a church, synagogue, mosque, or other place that is principally used for religious purposes." § 24-34-601(1).
CADA establishes an administrative system for the resolution of discrimination claims. Complaints of discrimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Division investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, in turn, decides whether to initiate a formal hearing before a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See §§ 24-34-306, 24-4-105(14). The decision of the ALJ may be appealed to the full Commission, a seven-member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See § 24-34-306(9). Available remedies include, among other things, orders to cease-and-desist a discriminatory policy, to file regular compliance reports with the Commission, and "to take affirmative action, including the posting of notices setting forth the substantive rights of the public." § 24-34-605. Colorado law does not permit the Commission to assess money damages or fines. §§ 24-34-306(9), 24-34-605.
C
Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple's visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied "full and equal service" at the bakery because of their sexual orientation, id., at 35, 48, and that it was Phillips' "standard business practice" not to provide cakes for same-sex weddings, id., at 43.
The Civil Rights Division opened an investigation. The investigator found that "on multiple occasions," Phillips "turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception" because his religious beliefs prohibited it and because the potential customers "were doing something illegal" at that time. Id., at 76. The investigation found that Phillips had declined to sell custom wedding cakes to about six other same-sex couples on this basis. Id., at 72. The investigator also recounted that, according to affidavits submitted by Craig and Mullins, Phillips' shop had refused to sell cupcakes to a lesbian couple for their commitment celebration because the shop "had a policy of not selling baked goods to same-sex couples for this type of event." Id., at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. Id., at 69.
The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross-motions for summary judgment and ruled in the couple's favor. The ALJ first rejected Phillips' argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips' actions constituted prohibited discrimination on the basis of sexual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a-72a.
Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins' cake would force Phillips to adhere to "an ideological point of view." Id., at 75a. Applying CADA to the facts at hand, in the ALJ's view, did not interfere with Phillips' freedom of speech.
Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First Amendment. Citing this Court's precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the ALJ determined that CADA is a "valid and neutral law of general applicability" and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause. Id ., at 879, 110 S.Ct. 1595 ; App. to Pet. for Cert. 82a-83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both constitutional claims.
The Commission affirmed the ALJ's decision in full. Id., at 57a. The Commission ordered Phillips to "cease and desist from discriminating against ... same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples." Ibid. It also ordered additional remedial measures, including "comprehensive staff training on the Public Accommodations section" of CADA "and changes to any and all company policies to comply with ... this Order." Id., at 58a. The Commission additionally required Phillips to prepare "quarterly compliance reports" for a period of two years documenting "the number of patrons denied service" and why, along with "a statement describing the remedial actions taken." Ibid.
Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission's legal determinations and remedial order. The court rejected the argument that the "Commission's order unconstitutionally compels" Phillips and the shop "to convey a celebratory message about same sex marriage." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015). The court also rejected the argument that the Commission's order violated the Free Exercise Clause. Relying on this Court's precedent in Smith, supra, at 879, 110 S.Ct. 1595, the court stated that the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability" on the ground that following the law would interfere with religious practice or belief. 370 P.3d, at 289. The court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colorado Supreme Court declined to hear the case.
Phillips sought review here, and this Court granted certiorari. 582 U.S. ----, 137 S.Ct. 2290, 198 L.Ed.2d 723 (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment.
II
A
Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U.S. ----, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), "[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." Id., at ----, 135 S.Ct., at 2607. Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam ); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ("Provisions like these are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments").
When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.
It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court's precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4-7, 10.
Phillips claims, however, that a narrower issue is presented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers' rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.
Phillips' dilemma was particularly understandable given the background of legal principles and administration of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, § 31 (2012); 370 P.3d, at 277. At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor, 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), or Obergefell . Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State.
At the time, state law also afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers' creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015).
There were, to be sure, responses to these arguments that the State could make when it contended for a different result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying "no goods or services will be sold if they will be used for gay marriages," something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case.
B
The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission's treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.
That hostility surfaced at the Commission's formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips' case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado's business community. One commissioner suggested that Phillips can believe "what he wants to believe," but cannot act on his religious beliefs "if he decides to do business in the state." Tr. 23. A few moments later, the commissioner restated the same position: "[I]f a businessman wants to do business in the state and he's got an issue with the-the law's impacting his personal belief system, he needs to look at being able to compromise." Id ., at 30. Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor's personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips' free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.
On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting's discussion but said far more to disparage Phillips' beliefs. The commissioner stated:
"I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be-I mean, we-we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to-to use their religion to hurt others." Tr. 11-12.
To describe a man's faith as "one of the most despicable pieces of rhetoric that people can use" is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical-something insubstantial and even insincere. The commissioner even went so far as to compare Phillips' invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law-a law that protects against discrimination on the basis of religion as well as sexual orientation.
The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission's decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-542, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) ; id., at 558, 113 S.Ct. 2217 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context-by an adjudicatory body deciding a particular case.
Another indication of hostility is the difference in treatment between Phillips' case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.
As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included "wording and images [the baker] deemed derogatory," Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured "language and images [the baker] deemed hateful," Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker "deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4.
The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission's treatment of Phillips' objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips' willingness to sell "birthday cakes, shower cakes, [and] cookies and brownies," App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips' case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission's consideration of Phillips' religious objection did not accord with its treatment of these other objections.
Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers' conscience-based objections as legitimate, but treated his as illegitimate-thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that "[t]his case is distinguishable from the Colorado Civil Rights Division's recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed" when they refused to create the requested cakes. 370 P.3d, at 282, n. 8. In those cases, the court continued, there was no impermissible discrimination because "the Division found that the bakeries ... refuse[d] the patron's request ... because of the offensive nature of the requested message." Ibid.
A principled rationale for the difference in treatment of these two instances cannot be based on the government's own assessment of offensiveness. Just as "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U.S. ----, ---- - ----, 137 S.Ct. 1744, 1762-1764, 198 L.Ed.2d 366 (2017) (opinion of ALITO, J.). The Colorado court's attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips' religious beliefs. The court's footnote does not, therefore, answer the baker's concern that the State's practice was to disfavor the religious basis of his objection.
C
For the reasons just described, the Commission's treatment of Phillips' case violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.
In Church of Lukumi Babalu Aye, supra, the Court made clear that the government, if it is to respect the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even "subtle departures from neutrality" on matters of religion. Id., at 534, 113 S.Ct. 2217. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips' religious beliefs. The Constitution "commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures." Id ., at 547, 113 S.Ct. 2217.
Factors relevant to the assessment of governmental neutrality include "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body." Id ., at 540, 113 S.Ct. 2217. In view of these factors the record here demonstrates that the Commission's consideration of Phillips' case was neither tolerant nor respectful of Phillips' religious beliefs. The Commission gave "every appearance," id ., at 545, 113 S.Ct. 2217, of adjudicating Phillips' religious objection based on a negative normative "evaluation of the particular justification" for his objection and the religious grounds for it. Id ., at 537, 113 S.Ct. 2217. It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips' conscience-based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips' religious objection was not considered with the neutrality that the Free Exercise Clause requires.
While the issues here are difficult to resolve, it must be concluded that the State's interest could have been weighed against Phillips' sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners' comments-comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order-were inconsistent with what the Free Exercise Clause requires. The Commission's disparate consideration of Phillips' case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside.
III
The Commission's hostility was inconsistent with the First Amendment's guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission's order must be invalidated.
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.
The judgment of the Colorado Court of Appeals is reversed.
It is so ordered.
"[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law." Ante, at 1727. But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views "neutral and respectful consideration." Ante, at 1729. I join the Court's opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one of the bases for the Court's holding.
The Court partly relies on the "disparate consideration of Phillips' case compared to the cases of [three] other bakers" who "objected to a requested cake on the basis of conscience." Ante, at 1730, 1732. In the latter cases, a customer named William Jack sought "cakes with images that conveyed disapproval of same-sex marriage, along with religious text"; the bakers whom he approached refused to make them. Ante, at 1730; see post, at 1749 (GINSBURG, J., dissenting) (further describing the requested cakes). Those bakers prevailed before the Colorado Civil Rights Division and Commission, while Phillips-who objected for religious reasons to baking a wedding cake for a same-sex couple-did not. The Court finds that the legal reasoning of the state agencies differed in significant ways as between the Jack cases and the Phillips case. See ante, at 1730. And the Court takes especial note of the suggestion made by the Colorado Court of Appeals, in comparing those cases, that the state agencies found the message Jack requested "offensive [in] nature." Ante, at 1731 (internal quotation marks omitted). As the Court states, a "principled rationale for the difference in treatment" cannot be "based on the government's own assessment of offensiveness." Ibid.
What makes the state agencies' consideration yet more disquieting is that a proper basis for distinguishing the cases was available-in fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny "the full and equal enjoyment" of goods and services to individuals based on certain characteristics, including sexual orientation and creed. Colo. Rev. Stat. § 24-34-601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else-just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA's demand that customers receive "the full and equal enjoyment" of public accommodations irrespective of their sexual orientation. Ibid. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law-untainted by any bias against a religious belief.
I read the Court's opinion as fully consistent with that view. The Court limits its analysis to the reasoning of the state agencies (and Court of Appeals)-"quite apart from whether the [Phillips and Jack] cases should ultimately be distinguished." Ante, at 1727. And the Court itself recognizes the principle that would properly account for a difference in result between those cases. Colorado law, the Court says, "can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public." Ante, at 1728. For that reason, Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State's decisions are not infected by religious hostility or bias. I accordingly concur.
In Employment Div., Dept. of Human Resources of Ore. v. Smith, this Court held that a neutral and generally applicable law will usually survive a constitutional free exercise challenge. 494 U.S. 872, 878-879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith remains controversial in many quarters. Compare McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990), with Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992). But we know this with certainty: when the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble. Then the government can prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a compelling interest and are narrowly tailored. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).
Today's decision respects these principles. As the Court explains, the Colorado Civil Rights Commission failed to act neutrally toward Jack Phillips's religious faith. Maybe most notably, the Commission allowed three other bakers to refuse a customer's request that would have required them to violate their secular commitments. Yet it denied the same accommodation to Mr. Phillips when he refused a customer's request that would have required him to violate his religious beliefs. Ante, at 1729 - 1731. As the Court also explains, the only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillips's religious beliefs "offensive." Ibid. That kind of judgmental dismissal of a sincerely held religious belief is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny. The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all. Because the Court documents each of these points carefully and thoroughly, I am pleased to join its opinion in full.
The only wrinkle is this. In the face of so much evidence suggesting hostility toward Mr. Phillips's sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers-or that it could have easily done so consistent with the First Amendment. See post, at 1749 - 1750, and n. 4 (GINSBURG, J., dissenting); ante, at 1732 - 1734, and n. (KAGAN, J., concurring). But, respectfully, I do not see how we might rescue the Commission from its error.
A full view of the facts helps point the way to the problem. Start with William Jack's case. He approached three bakers and asked them to prepare cakes with messages disapproving same-sex marriage on religious grounds. App. 233, 243, 252. All three bakers refused Mr. Jack's request, stating that they found his request offensive to their secular convictions. Id., at 231, 241, 250. Mr. Jack responded by filing complaints with the Colorado Civil Rights Division. Id., at 230, 240, 249. He pointed to Colorado's Anti-Discrimination Act, which prohibits discrimination against customers in public accommodations because of religious creed, sexual orientation, or certain other traits. See ibid. ; Colo. Rev. Stat. § 24-34-601(2)(a) (2017). Mr. Jack argued that the cakes he sought reflected his religious beliefs and that the bakers could not refuse to make them just because they happened to disagree with his beliefs. App. 231, 241, 250. But the Division declined to find a violation, reasoning that the bakers didn't deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions. Id., at 237, 247, 255-256. As proof, the Division pointed to the fact that the bakers said they treated Mr. Jack as they would have anyone who requested a cake with similar messages, regardless of their religion. Id., at 230-231, 240, 249. The Division pointed, as well, to the fact that the bakers said they were happy to provide religious persons with other cakes expressing other ideas. Id., at 237, 247, 257. Mr. Jack appealed to the Colorado Civil Rights Commission, but the Commission summarily denied relief. App. to Pet. for Cert. 326a-331a.
Next, take the undisputed facts of Mr. Phillips's case. Charlie Craig and Dave Mullins approached Mr. Phillips about creating a cake to celebrate their wedding. App. 168. Mr. Phillips explained that he could not prepare a cake celebrating a same-sex wedding consistent with his religious faith. Id., at 168-169. But Mr. Phillips offered to make other baked goods for the couple, including cakes celebrating other occasions. Ibid. Later, Mr. Phillips testified without contradiction that he would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation. Id., at 166-167 ("I will not design and create wedding cakes for a same-sex wedding regardless of the sexual orientation of the customer"). And the record reveals that Mr. Phillips apparently refused just such a request from Mr. Craig's mother. Id., at 38-40, 169. (Any suggestion that Mr. Phillips was willing to make a cake celebrating a same-sex marriage for a heterosexual customer or was not willing to sell other products to a homosexual customer, then, would simply mistake the undisputed factual record. See post, at 1749, n. 2 (GINSBURG, J., dissenting); ante, at 1732 - 1734, and n. (KAGAN, J., concurring)). Nonetheless, the Commission held that Mr. Phillips's conduct violated the Colorado public accommodations law. App. to Pet. for Cert. 56a-58a.
The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there's no indication the bakers actually intended to refuse service because of a customer's protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).
So, for example, the bakers in the first case would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.
The distinction between intended and knowingly accepted effects is familiar in life and law. Often the purposeful pursuit of worthy commitments requires us to accept unwanted but entirely foreseeable side effects: so, for example, choosing to spend time with family means the foreseeable loss of time for charitable work, just as opting for more time in the office means knowingly forgoing time at home with loved ones. The law, too, sometimes distinguishes between intended and foreseeable effects. See, e.g., ALI, Model Penal Code §§ 1.13, 2.02(2)(a)(i) (1985); 1 W. LaFave, Substantive Criminal Law § 5.2(b), pp. 460-463 (3d ed. 2018). Other times, of course, the law proceeds differently, either conflating intent and knowledge or presuming intent as a matter of law from a showing of knowledge. See, e.g., Restatement (Second) of Torts § 8A (1965) ; Radio Officers v. NLRB, 347 U.S. 17, 45, 74 S.Ct. 323, 98 L.Ed. 455 (1954).
The problem here is that the Commission failed to act neutrally by applying a consistent legal rule. In Mr. Jack's case, the Commission chose to distinguish carefully between intended and knowingly accepted effects. Even though the bakers knowingly denied service to someone in a protected class, the Commission found no violation because the bakers only intended to distance themselves from "the offensive nature of the requested message." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 282, n. 8 (Colo.App.2015) ; App. 237, 247, 256; App. to Pet. for Cert. 326a-331a; see also Brief for Respondent Colorado Civil Rights Commission 52 ("Businesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be 'offensive' "). Yet, in Mr. Phillips's case, the Commission dismissed this very same argument as resting on a "distinction without a difference." App. to Pet. for Cert. 69a. It concluded instead that an "intent to disfavor" a protected class of persons should be "readily ... presumed" from the knowing failure to serve someone who belongs to that class. Id., at 70a. In its judgment, Mr. Phillips's intentions were "inextricably tied to the sexual orientation of the parties involved" and essentially "irrational." Ibid.
Nothing in the Commission's opinions suggests any neutral principle to reconcile these holdings. If Mr. Phillips's objection is "inextricably tied" to a protected class, then the bakers' objection in Mr. Jack's case must be "inextricably tied" to one as well. For just as cakes celebrating same-sex weddings are (usually) requested by persons of a particular sexual orientation, so too are cakes expressing religious opposition to same-sex weddings (usually) requested by persons of particular religious faiths. In both cases the bakers' objection would (usually) result in turning down customers who bear a protected characteristic. In the end, the Commission's decisions simply reduce to this: it presumed that Mr. Phillip harbored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it declined to presume the same intent in Mr. Jack's case even though the effects of the bakers' conduct were just as foreseeable. Underscoring the double standard, a state appellate court said that "no such showing" of actual "animus"-or intent to discriminate against persons in a protected class-was even required in Mr. Phillips's case. 370 P.3d, at 282.
The Commission cannot have it both ways. The Commission cannot slide up and down the mens rea scale, picking a mental state standard to suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required (as the Commission held in Mr. Jack's case), or it is sufficient to "presume" such intent from the knowing failure to serve someone in a protected class (as the Commission held in Mr. Phillips's case). Perhaps the Commission could have chosen either course as an initial matter. But the one thing it can't do is apply a more generous legal test to secular objections than religious ones. See Church of Lukumi Babalu Aye, 508 U.S., at 543-544, 113 S.Ct. 2217. That is anything but the neutral treatment of religion.
The real explanation for the Commission's discrimination soon comes clear, too-and it does anything but help its cause. This isn't a case where the Commission self-consciously announced a change in its legal rule in all public accommodation cases. Nor is this a case where the Commission offered some persuasive reason for its discrimination that might survive strict scrutiny. Instead, as the Court explains, it appears the Commission wished to condemn Mr. Phillips for expressing just the kind of "irrational" or "offensive ... message" that the bakers in the first case refused to endorse. Ante, at 1730 - 1731. Many may agree with the Commission and consider Mr. Phillips's religious beliefs irrational or offensive. Some may believe he misinterprets the teachings of his faith. And, to be sure, this Court has held same-sex marriage a matter of constitutional right and various States have enacted laws that preclude discrimination on the basis of sexual orientation. But it is also true that no bureaucratic judgment condemning a sincerely held religious belief as "irrational" or "offensive" will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn't to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the "proudest boast of our free speech jurisprudence" that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. See Matal v. Tam, 582 U.S. ----, ----, 137 S.Ct. 1744, 1764, 198 L.Ed.2d 366 (2017) (plurality opinion) (citing United States v. Schwimmer, 279 U.S. 644, 655, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting)). Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country's commitment to serving as a refuge for religious freedom. See Church of Lukumi Babalu Aye, supra, at 547, 113 S.Ct. 2217 ; Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715-716, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) ; Wisconsin v. Yoder, 406 U.S. 205, 223-224, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ; Cantwell v. Connecticut, 310 U.S. 296, 308-310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
Nor can any amount of after-the-fact maneuvering by our colleagues save the Commission. It is no answer, for example, to observe that Mr. Jack requested a cake with text on it while Mr. Craig and Mr. Mullins sought a cake celebrating their wedding without discussing its decoration, and then suggest this distinction makes all the difference. See post, at 1749 - 1750, and n. 4 (GINSBURG, J., dissenting). It is no answer either simply to slide up a level of generality to redescribe Mr. Phillips's case as involving only a wedding cake like any other, so the fact that Mr. Phillips would make one for some means he must make them for all. See ante, at 1732 - 1734, and n. (KAGAN, J., concurring). These arguments, too, fail to afford Mr. Phillips's faith neutral respect.
Take the first suggestion first. To suggest that cakes with words convey a message but cakes without words do not-all in order to excuse the bakers in Mr. Jack's case while penalizing Mr. Phillips-is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers' intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding. See 370 P.3d, at 276 (stating that Mr. Craig and Mr. Mullins "requested that Phillips design and create a cake to celebrate their same-sex wedding ") (emphasis added). Like "an emblem or flag," a cake for a same-sex wedding is a symbol that serves as "a short cut from mind to mind," signifying approval of a specific "system, idea, [or] institution." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). It is precisely that approval that Mr. Phillips intended to withhold in keeping with his religious faith. The Commission denied Mr. Phillips that choice, even as it afforded the bakers in Mr. Jack's case the choice to refuse to advance a message they deemed offensive to their secular commitments. That is not neutral.
Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated. Civil authorities, whether "high or petty," bear no license to declare what is or should be "orthodox" when it comes to religious beliefs, id., at 642, 63 S.Ct. 1178, or whether an adherent has "correctly perceived" the commands of his religion, Thomas, supra, at 716, 101 S.Ct. 1425. Instead, it is our job to look beyond the formality of written words and afford legal protection to any sincere act of faith. See generally Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ("[T]he Constitution looks beyond written or spoken words as mediums of expression," which are "not a condition of constitutional protection").
The second suggestion fares no better. Suggesting that this case is only about "wedding cakes"-and not a wedding cake celebrating a same-sex wedding-actually points up the problem. At its most general level, the cake at issue in Mr. Phillips's case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general ; understanding it as celebrating a same-sex wedding is too specific ; but regarding it as a generic wedding cake is just right . The problem is, the Commission didn't play with the level of generality in Mr. Jack's case in this way. It didn't declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers' view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here.
Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips's case at "wedding cakes" exactly-and not at, say, "cakes" more generally or "cakes that convey a message regarding same-sex marriage" more specifically? If "cakes" were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack's requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if "cakes that convey a message regarding same-sex marriage" were the relevant level of generality, the Commission would have to respect Mr. Phillips's refusal to make the requested cake just as it respected the bakers' refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right -fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views-can you engineer the Commission's outcome, handing a win to Mr. Jack's bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper. Neither the Commission nor this Court may apply a more specific level of generality in Mr. Jack's case (a cake that conveys a message regarding same-sex marriage) while applying a higher level of generality in Mr. Phillips's case (a cake that conveys no message regarding same-sex marriage). Of course, under Smith a vendor cannot escape a public accommodations law just because his religion frowns on it. But for any law to comply with the First Amendment and Smith, it must be applied in a manner that treats religion with neutral respect. That means the government must apply the same level of generality across cases-and that did not happen here.
There is another problem with sliding up the generality scale: it risks denying constitutional protection to religious beliefs that draw distinctions more specific than the government's preferred level of description. To some, all wedding cakes may appear indistinguishable. But to Mr. Phillips that is not the case-his faith teaches him otherwise. And his religious beliefs are entitled to no less respectful treatment than the bakers' secular beliefs in Mr. Jack's case. This Court has explained these same points "[r]epeatedly and in many different contexts" over many years. Smith, 494 U.S. at 887, 110 S.Ct. 1595. For example, in Thomas a faithful Jehovah's Witness and steel mill worker agreed to help manufacture sheet steel he knew might find its way into armaments, but he was unwilling to work on a fabrication line producing tank turrets. 450 U.S., at 711, 101 S.Ct. 1425. Of course, the line Mr. Thomas drew wasn't the same many others would draw and it wasn't even the same line many other members of the same faith would draw. Even so, the Court didn't try to suggest that making steel is just making steel. Or that to offend his religion the steel needed to be of a particular kind or shape. Instead, it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments-and that those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment. Id., at 714-716, 101 S.Ct. 1425 ; see also United States v. Lee, 455 U.S. 252, 254-255, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) ; Smith, supra, at 887, 110 S.Ct. 1595 (collecting authorities). It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other-without regard to the religious significance his faith may attach to it-than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.
Only one way forward now remains. Having failed to afford Mr. Phillips's religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack's case. The Court recognizes this by reversing the judgment below and holding that the Commission's order "must be set aside." Ante, at 1732. Maybe in some future rulemaking or case the Commission could adopt a new "knowing" standard for all refusals of service and offer neutral reasons for doing so. But, as the Court observes, "[h]owever later cases raising these or similar concerns are resolved in the future, ... the rulings of the Commission and of the state court that enforced the Commission's order" in this case "must be invalidated." Ibid . Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.
I agree that the Colorado Civil Rights Commission (Commission) violated Jack Phillips' right to freely exercise his religion. As Justice GORSUCH explains, the Commission treated Phillips' case differently from a similar case involving three other bakers, for reasons that can only be explained by hostility toward Phillips' religion. See ante, at 1734 - 1737 (concurring opinion). The Court agrees that the Commission treated Phillips differently, and it points out that some of the Commissioners made comments disparaging Phillips' religion. See ante, at 1728 - 1731. Although the Commissioners' comments are certainly disturbing, the discriminatory application of Colorado's public-accommodations law is enough on its own to violate Phillips' rights. To the extent the Court agrees, I join its opinion.
While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim. The Court does not address this claim because it has some uncertainties about the record. See ante, at 1723 - 1724. Specifically, the parties dispute whether Phillips refused to create a custom wedding cake for the individual respondents, or whether he refused to sell them any wedding cake (including a premade one). But the Colorado Court of Appeals resolved this factual dispute in Phillips' favor. The court described his conduct as a refusal to "design and create a cake to celebrate [a] same-sex wedding." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 276 (2015) ; see also id., at 286 ("designing and selling a wedding cake"); id., at 283 ("refusing to create a wedding cake"). And it noted that the Commission's order required Phillips to sell " 'any product [he] would sell to heterosexual couples,' " including custom wedding cakes. Id., at 286 (emphasis added).
Even after describing his conduct this way, the Court of Appeals concluded that Phillips' conduct was not expressive and was not protected speech. It reasoned that an outside observer would think that Phillips was merely complying with Colorado's public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect. This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.
I
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits state laws that abridge the "freedom of speech." When interpreting this command, this Court has distinguished between regulations of speech and regulations of conduct. The latter generally do not abridge the freedom of speech, even if they impose "incidental burdens" on expression. Sorrell v. IMS Health Inc., 564 U.S. 552, 567, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). As the Court explains today, public-accommodations laws usually regulate conduct. Ante, at 1727 - 1728 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ). "[A]s a general matter," public-accommodations laws do not "target speech" but instead prohibit "the act of discriminating against individuals in the provision of publicly available goods, privileges, and services." Id., at 572, 115 S.Ct. 2338 (emphasis added).
Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech. When a public-accommodations law "ha[s] the effect of declaring ... speech itself to be the public accommodation," the First Amendment applies with full force. Id., at 573, 115 S.Ct. 2338 ; accord, Boy Scouts of America v. Dale, 530 U.S. 640, 657-659, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). In Hurley, for example, a Massachusetts public-accommodations law prohibited " 'any distinction, discrimination or restriction on account of ... sexual orientation ... relative to the admission of any person to, or treatment in any place of public accommodation.' " 515 U.S., at 561, 115 S.Ct. 2338 (quoting Mass. Gen. Laws § 272:98 (1992); ellipsis in original). When this law required the sponsor of a St. Patrick's Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans, the Court unanimously held that the law violated the sponsor's right to free speech. Parades are "a form of expression," this Court explained, and the application of the public-accommodations law "alter [ed] the expressive content" of the parade by forcing the sponsor to add a new unit. 515 U.S., at 568, 572-573, 115 S.Ct. 2338. The addition of that unit compelled the organizer to "bear witness to the fact that some Irish are gay, lesbian, or bisexual"; "suggest ... that people of their sexual orientation have as much claim to unqualified social acceptance as heterosexuals"; and imply that their participation "merits celebration." Id., at 574, 115 S.Ct. 2338. While this Court acknowledged that the unit's exclusion might have been "misguided, or even hurtful," ibid., it rejected the notion that governments can mandate "thoughts and statements acceptable to some groups or, indeed, all people" as the "antithesis" of free speech, id., at 579, 115 S.Ct. 2338 ; accord, Dale, supra, at 660-661, 120 S.Ct. 2446.
The parade in Hurley was an example of what this Court has termed "expressive conduct." See 515 U.S., at 568-569, 115 S.Ct. 2338. This Court has long held that "the Constitution looks beyond written or spoken words as mediums of expression," id., at 569, 115 S.Ct. 2338, and that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Thus, a person's "conduct may be 'sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.' " Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.
Of course, conduct does not qualify as protected speech simply because "the person engaging in [it] intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). To determine whether conduct is sufficiently expressive, the Court asks whether it was "intended to be communicative" and, "in context, would reasonably be understood by the viewer to be communicative." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). But a " 'particularized message' " is not required, or else the freedom of speech "would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll." Hurley, 515 U.S., at 569, 115 S.Ct. 2338.
Once a court concludes that conduct is expressive, the Constitution limits the government's authority to restrict or compel it. "[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say' " and "tailor" the content of his message as he sees fit. Id., at 573, 115 S.Ct. 2338 (quoting Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion)). This rule "applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid." Hurley, supra, at 573, 115 S.Ct. 2338. And it "makes no difference" whether the government is regulating the "creati[on], distributi [on], or consum[ption]" of the speech. Brown v. Entertainment Merchants Assn., 564 U.S. 786, 792, n. 1, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011).
II
A
The conduct that the Colorado Court of Appeals ascribed to Phillips-creating and designing custom wedding cakes-is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist's paint palette with a paintbrush and baker's whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates-sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his creations can be seen on Masterpiece's website. See http://masterpiececakes.com/wedding-cakes (as last visited June 1, 2018).
Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake-a focal point of the wedding celebration-Phillips sometimes stays and interacts with the guests at the wedding. And the guests often recognize his creations and seek his bakery out afterward. Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that "a wedding has occurred, a marriage has begun, and the couple should be celebrated." App. 162.
Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, "[w]edding cakes are so packed with symbolism that it is hard to know where to begin." M. Krondl, Sweet Invention: A History of Dessert 321 (2011) (Krondl); see also ibid. (explaining the symbolism behind the color, texture, flavor, and cutting of the cake). If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is "so standardised and inevitable a part of getting married that few ever think to question it." Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 95 (1987). Almost no wedding, no matter how spartan, is missing the cake. See id., at 98. "A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wedding and afterwards." Ibid. Although the cake is eventually eaten, that is not its primary purpose. See id., at 95 ("It is not unusual to hear people declaring that they do not like wedding cake, meaning that they do not like to eat it. This includes people who are, without question, having such cakes for their weddings"); id., at 97 ("Nothing is made of the eating itself"); Krondl 320-321 (explaining that wedding cakes have long been described as "inedible"). The cake's purpose is to mark the beginning of a new marriage and to celebrate the couple.
Accordingly, Phillips' creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message-certainly more so than nude dancing, Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), or flying a plain red flag, Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). By forcing Phillips to create custom wedding cakes for same-sex weddings, Colorado's public-accommodations law "alter[s] the expressive content" of his message. Hurley, 515 U.S., at 572, 115 S.Ct. 2338. The meaning of expressive conduct, this Court has explained, depends on "the context in which it occur[s]." Johnson, 491 U.S., at 405, 109 S.Ct. 2533. Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are "weddings" and suggest that they should be celebrated-the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to "bear witness to [these] fact[s]," Hurley, 515 U.S., at 574, 115 S.Ct. 2338, or to "affir [m] ... a belief with which [he] disagrees," id., at 573, 115 S.Ct. 2338.
B
The Colorado Court of Appeals nevertheless concluded that Phillips' conduct was "not sufficiently expressive" to be protected from state compulsion. 370 P.3d, at 283. It noted that a reasonable observer would not view Phillips' conduct as "an endorsement of same-sex marriage," but rather as mere "compliance" with Colorado's public-accommodations law. Id., at 286-287 (citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 64-65, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (FAIR ); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 841-842, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) ; PruneYard Shopping Center v. Robins, 447 U.S. 74, 76-78, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) ). It also emphasized that Masterpiece could "disassociat[e]" itself from same-sex marriage by posting a "disclaimer" stating that Colorado law "requires it not to discriminate" or that "the provision of its services does not constitute an endorsement." 370 P.3d, at 288. This reasoning is badly misguided.
1
The Colorado Court of Appeals was wrong to conclude that Phillips' conduct was not expressive because a reasonable observer would think he is merely complying with Colorado's public-accommodations law. This argument would justify any law that compelled protected speech. And, this Court has never accepted it. From the beginning, this Court's compelled-speech precedents have rejected arguments that "would resolve every issue of power in favor of those in authority." Barnette, 319 U.S., at 636, 63 S.Ct. 1178. Hurley, for example, held that the application of Massachusetts' public-accommodations law "requir[ed] [the organizers] to alter the expressive content of their parade." 515 U.S., at 572-573, 115 S.Ct. 2338. It did not hold that reasonable observers would view the organizers as merely complying with Massachusetts' public-accommodations law.
The decisions that the Colorado Court of Appeals cited for this proposition are far afield. It cited three decisions where groups objected to being forced to provide a forum for a third party's speech. See FAIR, supra, at 51, 126 S.Ct. 1297 (law school refused to allow military recruiters on campus); Rosenberger, supra, at 822-823, 115 S.Ct. 2510 (public university refused to provide funds to a religious student paper); PruneYard, supra, at 77, 100 S.Ct. 2035 (shopping center refused to allow individuals to collect signatures on its property). In those decisions, this Court rejected the argument that requiring the groups to provide a forum for third-party speech also required them to endorse that speech. See FAIR, supra, at 63-65, 126 S.Ct. 1297 ; Rosenberger, supra, at 841-842, 115 S.Ct. 2510 ; PruneYard, supra, at 85-88, 100 S.Ct. 2035. But these decisions do not suggest that the government can force speakers to alter their own message. See Pacific Gas & Elec., 475 U.S., at 12, 106 S.Ct. 903 ("Notably absent from PruneYard was any concern that access ... might affect the shopping center owner's exercise of his own right to speak"); Hurley, supra, at 580, 115 S.Ct. 2338 (similar).
The Colorado Court of Appeals also noted that Masterpiece is a "for-profit bakery" that "charges its customers." 370 P.3d, at 287. But this Court has repeatedly rejected the notion that a speaker's profit motive gives the government a freer hand in compelling speech. See Pacific Gas & Elec., supra, at 8, 16, 106 S.Ct. 903 (collecting cases); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (deeming it "beyond serious dispute" that "[s]peech ... is protected even though it is carried in a form that is 'sold' for profit"). Further, even assuming that most for-profit companies prioritize maximizing profits over communicating a message, that is not true for Masterpiece Cakeshop. Phillips routinely sacrifices profits to ensure that Masterpiece operates in a way that represents his Christian faith. He is not open on Sundays, he pays his employees a higher-than-average wage, and he loans them money in times of need. Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween-even though Halloween is one of the most lucrative seasons for bakeries. These efforts to exercise control over the messages that Masterpiece sends are still more evidence that Phillips' conduct is expressive. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) ; Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ----, ----, 135 S.Ct. 2239, 2251, 192 L.Ed.2d 274 (2015).
2
The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a disclaimer, disassociating Masterpiece from any support for same-sex marriage. Again, this argument would justify any law compelling speech. And again, this Court has rejected it. We have described similar arguments as "beg[ging] the core question." Tornillo, supra, at 256, 94 S.Ct. 2831. Because the government cannot compel speech, it also cannot "require speakers to affirm in one breath that which they deny in the next." Pacific Gas & Elec., 475 U.S., at 16, 106 S.Ct. 903 ; see also id., at 15, n. 11, 106 S.Ct. 903 (citing PruneYard, 447 U.S., at 99, 100 S.Ct. 2035 (Powell, J., concurring in part and concurring in judgment)). States cannot put individuals to the choice of "be[ing] compelled to affirm someone else's belief" or "be[ing] forced to speak when [they] would prefer to remain silent." Id., at 99, 100 S.Ct. 2035.
III
Because Phillips' conduct (as described by the Colorado Court of Appeals) was expressive, Colorado's public-accommodations law cannot penalize it unless the law withstands strict scrutiny. Although this Court sometimes reviews regulations of expressive conduct under the more lenient test articulated in O'Brien, that test does not apply unless the government would have punished the conduct regardless of its expressive component. See, e.g., Barnes, 501 U.S., at 566-572, 111 S.Ct. 2456 (applying O'Brien to evaluate the application of a general nudity ban to nude dancing); Clark, 468 U.S., at 293, 104 S.Ct. 3065 (applying O'Brien to evaluate the application of a general camping ban to a demonstration in the park). Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases like this one, our precedents demand " 'the most exacting scrutiny.' " Johnson, 491 U.S., at 412, 109 S.Ct. 2533 ; accord, Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010).
The Court of Appeals did not address whether Colorado's law survives strict scrutiny, and I will not do so in the first instance. There is an obvious flaw, however, with one of the asserted justifications for Colorado's law. According to the individual respondents, Colorado can compel Phillips' speech to prevent him from " 'denigrat[ing] the dignity' " of same-sex couples, " 'assert[ing] [their] inferiority,' " and subjecting them to " 'humiliation, frustration, and embarrassment.' " Brief for Respondents Craig et al. 39 (quoting J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 142, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 292, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free-speech jurisprudence.
States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Johnson, supra, at 414, 109 S.Ct. 2533. A contrary rule would allow the government to stamp out virtually any speech at will. See Morse v. Frederick, 551 U.S. 393, 409, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) ("After all, much political and religious speech might be perceived as offensive to some"). As the Court reiterates today, "it is not ... the role of the State or its officials to prescribe what shall be offensive." Ante, at 1731. " 'Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection.' " Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) ; accord, Johnson, supra, at 408-409, 109 S.Ct. 2533. If the only reason a public-accommodations law regulates speech is "to produce a society free of ... biases" against the protected groups, that purpose is "decidedly fatal" to the law's constitutionality, "for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression." Hurley, 515 U.S., at 578-579, 115 S.Ct. 2338 ; see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ("Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails"). "[A] speech burden based on audience reactions is simply government hostility ... in a different guise." Matal v. Tam, 582 U.S. ----, ----, 137 S.Ct. 1744, 1767, 198 L.Ed.2d 366 (2017) (KENNEDY, J., concurring in part and concurring in judgment).
Consider what Phillips actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, " 'I'll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same sex weddings.' " App. 168. It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say "God Hates Fags"-all of which this Court has deemed protected by the First Amendment. See Hurley, supra, at 574-575, 115 S.Ct. 2338 ; Dale, 530 U.S., at 644, 120 S.Ct. 2446 ; Snyder v. Phelps, 562 U.S. 443, 448, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011). Moreover, it is also hard to see how Phillips' statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions. Concerns about "dignity" and "stigma" did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) ; conduct a rally on Martin Luther King Jr.'s birthday, Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ; or circulate a film featuring hooded Klan members who were brandishing weapons and threatening to " 'Bury the niggers,' " Brandenburg v. Ohio, 395 U.S. 444, 446, n. 1, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam ).
Nor does the fact that this Court has now decided Obergefell v. Hodges, 576 U.S. ----, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), somehow diminish Phillips' right to free speech. "It is one thing ... to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted" and unentitled to express a different view. Id., at ----, 135 S.Ct., at 2626 (ROBERTS, C.J., dissenting). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage "long has been held-and continues to be held-in good faith by reasonable and sincere people here and throughout the world." Id ., at ----, 135 S.Ct., at 2594 (majority opinion). If Phillips' continued adherence to that understanding makes him a minority after Obergefell , that is all the more reason to insist that his speech be protected. See Dale, supra, at 660, 120 S.Ct. 2446 ("[T]he fact that [the social acceptance of homosexuality] may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view").
* * *
In Obergefell , I warned that the Court's decision would "inevitabl [y] ... come into conflict" with religious liberty, "as individuals ... are confronted with demands to participate in and endorse civil marriages between same-sex couples." 576 U.S., at ----, 135 S.Ct., at 2638 (dissenting opinion). This case proves that the conflict has already emerged. Because the Court's decision vindicates Phillips' right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to "stamp out every vestige of dissent" and "vilify Americans who are unwilling to assent to the new orthodoxy." Id., at ----, 135 S.Ct., at 2642 (ALITO, J., dissenting). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals' must be rejected.
There is much in the Court's opinion with which I agree. "[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law." Ante, at 1727. "Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public." Ante, at 1727 - 1728. "[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying 'no goods or services will be sold if they will be used for gay marriages.' " Ante, at 1728 - 1729. Gay persons may be spared from "indignities when they seek goods and services in an open market." Ante, at 1732. I strongly disagree, however, with the Court's conclusion that Craig and Mullins should lose this case. All of the above-quoted statements point in the opposite direction.
The Court concludes that "Phillips' religious objection was not considered with the neutrality that the Free Exercise Clause requires." Ante, at 1731. This conclusion rests on evidence said to show the Colorado Civil Rights Commission's (Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted "disparate consideration of Phillips' case compared to the cases of" three other bakers who refused to make cakes requested by William Jack, an amicus here. Ante, at 1732. The Court also finds hostility in statements made at two public hearings on Phillips' appeal to the Commission. Ante, at 1728 - 1730. The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below.
I
On March 13, 2014-approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mullins, and two months before the Commission heard Phillips' appeal from that decision-William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes
"made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red 'X' over the image. On one cake, he requested [on] one side[,] ... 'God hates sin. Psalm 45:7' and on the opposite side of the cake 'Homosexuality is a detestable sin. Leviticus 18:2.' On the second cake, [the one] with the image of the two groomsmen covered by a red 'X' [Jack] requested [these words]: 'God loves sinners' and on the other side 'While we were yet sinners Christ died for us. Romans 5:8.' " App. to Pet. for Cert. 319a; see id., at 300a, 310a.
In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold.
One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate them with the requested messages; the owner told Jack her bakery "does not discriminate" and "accept[s] all humans." Id., at 301a (internal quotation marks omitted). The second bakery owner told Jack he "had done open Bibles and books many times and that they look amazing," but declined to make the specific cakes Jack described because the baker regarded the messages as "hateful." Id., at 310a (internal quotation marks omitted). The third bakery, according to Jack, said it would bake the cakes, but would not include the requested message. Id., at 319a.
Jack filed charges against each bakery with the Colorado Civil Rights Division (Division). The Division found no probable cause to support Jack's claims of unequal treatment and denial of goods or services based on his Christian religious beliefs. Id., at 297a, 307a, 316a. In this regard, the Division observed that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customer requests for designs demeaning people whose dignity the Colorado Antidiscrimination Act (CADA) protects. See id., at 305a, 314a, 324a. The Commission summarily affirmed the Division's no-probable-cause finding. See id., at 326a-331a.
The Court concludes that "the Commission's consideration of Phillips' religious objection did not accord with its treatment of [the other bakers'] objections." Ante, at 1730. See also ante, at 1736 - 1737 (GORSUCH, J., concurring). But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack's requested message for any customer, regardless of his or her religion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries' refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips' refusal to serve Craig and Mullins: Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding-not a cake celebrating heterosexual weddings or same-sex weddings-and that is the service Craig and Mullins were denied. Cf. ante, at 1735 - 1736, 1738 - 1739 (GORSUCH, J., concurring). Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered. See supra, at 1748. Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated-no better, no worse.
The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins' case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries' sale of other goods to Christian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer. Cf. ante, at 1730.
Nor was the Colorado Court of Appeals' "difference in treatment of these two instances ... based on the government's own assessment of offensiveness." Ante, at 1731. Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display. As the Court recognizes, a refusal "to design a special cake with words or images ... might be different from a refusal to sell any cake at all." Ante, at 1723. The Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division's finding that messages in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination. See App. to Pet. for Cert. 20a, n. 8 ("The Division found that the bakeries did not refuse [Jack's] request because of his creed, but rather because of the offensive nature of the requested message.... [T]here was no evidence that the bakeries based their decisions on [Jack's] religion ... [whereas Phillips] discriminat [ed] on the basis of sexual orientation."). I do not read the Court to suggest that the Colorado Legislature's decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive. Cf. ante, at 1727 - 1728. To repeat, the Court affirms that "Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public." Ante, at 1728.
II
Statements made at the Commission's public hearings on Phillips' case provide no firmer support for the Court's holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips' refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one. See App. to Pet. for Cert. 5a-6a. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties' cross-motions for summary judgment. Third, the Commission heard Phillips' appeal. Fourth, after the Commission's ruling, the Colorado Court of Appeals considered the case de novo . What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips' case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council, see id., at 526-528, 113 S.Ct. 2217.
* * *
For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals' judgment. I would so rule.
Justice GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases "would not sell the requested cakes to anyone." Post, at 1735. That description perfectly fits the Jack cases-and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. Justice GORSUCH can make the claim only because he does not think a "wedding cake" is the relevant product. As Justice GORSUCH sees it, the product that Phillips refused to sell here-and would refuse to sell to anyone-was a "cake celebrating same-sex marriage." Ibid. ; see post, at 1735, 1736 - 1737, 1737 - 1738. But that is wrong. The cake requested was not a special "cake celebrating same-sex marriage." It was simply a wedding cake-one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 1724 - 1725 (majority opinion) (recounting that Phillips did not so much as discuss the cake's design before he refused to make it). And contrary to Justice GORSUCH's view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with "religious significance." Post, at 1728. As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam ) (holding that a barbeque vendor must serve black customers even if he perceives such service as vindicating racial equality, in violation of his religious beliefs); ante, at 1727. A vendor can choose the products he sells, but not the customers he serves-no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis-which has nothing to do with Phillips' religious beliefs-Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination.
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) ; Texas v. Johnson, 491 U.S. 397, 405-406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) ; Spence v. Washington, 418 U.S. 405, 406, 409-411, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam ); Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970) ; Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505-506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ; Brown v. Louisiana, 383 U.S. 131, 141-142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (opinion of Fortas, J.); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 633-634, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) ; Stromberg v. California, 283 U.S. 359, 361, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).
The Colorado Court of Appeals acknowledged that "a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage," depending on its "design" and whether it has "written inscriptions." Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 288 (2015). But a wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated. Wedding cakes have long varied in color, decorations, and style, but those differences do not prevent people from recognizing wedding cakes as wedding cakes. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 96 (1987). And regardless, the Commission's order does not distinguish between plain wedding cakes and wedding cakes with particular designs or inscriptions; it requires Phillips to make any wedding cake for a same-sex wedding that he would make for an opposite-sex wedding.
The dissent faults Phillips for not "submitting ... evidence" that wedding cakes communicate a message. Post, at 1748, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our precedents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 568-570, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ; Spence, 418 U.S., at 410-411, 94 S.Ct. 2727 ; Barnes, 501 U.S., at 565-566, 111 S.Ct. 2456. And we do not need extensive evidence here to conclude that Phillips' artistry is expressive, see Hurley, 515 U.S., at 569, 115 S.Ct. 2338, or that wedding cakes at least communicate the basic fact that "this is a wedding," see id., at 573-575, 115 S.Ct. 2338. Nor does it matter that the couple also communicates a message through the cake. More than one person can be engaged in protected speech at the same time. See id., at 569-570, 115 S.Ct. 2338. And by forcing him to provide the cake, Colorado is requiring Phillips to be "intimately connected" with the couple's speech, which is enough to implicate his First Amendment rights. See id., at 576, 115 S.Ct. 2338.
"[A] government regulation [of expressive conduct] is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
As Justice THOMAS observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, at 1740 (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. Justice THOMAS acknowledges that for conduct to constitute protected expression, the conduct must be reasonably understood by an observer to be communicative. Ante, at 1724 - 1725 (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) ). The record in this case is replete with Jack Phillips' own views on the messages he believes his cakes convey. See ante, at 1742 - 1743 (THOMAS, J., concurring in part and concurring in judgment) (describing how Phillips "considers" and "sees" his work). But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker's, rather than the marrying couple's. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100-101 (1987) (no explanation of wedding cakes' symbolism was forthcoming "even amongst those who might be expected to be the experts"); id., at 104-105 (the cake cutting tradition might signify "the bride and groom ... as appropriating the cake" from the bride's parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct. Cf. ante, at 1743, n. 2 (THOMAS, J., concurring in part and concurring in judgment); Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557, 568-579, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (citing previous cases recognizing parades to be expressive); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (noting precedents suggesting nude dancing is expressive conduct); Spence v. Washington, 418 U.S. 405, 410, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (observing the Court's decades-long recognition of the symbolism of flags).
The record provides no ideological explanation for the bakeries' refusals. Cf. ante, at 1734 - 1735, 1738, 1739 - 1740 (GORSUCH, J., concurring) (describing Jack's requests as offensive to the bakers' "secular" convictions).
Justice GORSUCH argues that the situations "share all legally salient features." Ante, at 1735 (concurring opinion). But what critically differentiates them is the role the customer's "statutorily protected trait," ibid., played in the denial of service. Change Craig and Mullins' sexual orientation (or sex), and Phillips would have provided the cake. Change Jack's religion, and the bakers would have been no more willing to comply with his request. The bakers' objections to Jack's cakes had nothing to do with "religious opposition to same-sex weddings." Ante, at 1736 (GORSUCH, J., concurring). Instead, the bakers simply refused to make cakes bearing statements demeaning to people protected by CADA. With respect to Jack's second cake, in particular, where he requested an image of two groomsmen covered by a red "X" and the lines "God loves sinners" and "While we were yet sinners Christ died for us," the bakers gave not the slightest indication that religious words, rather than the demeaning image, prompted the objection. See supra, at 1749. Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other. Cf. ante, at 1735 - 1737 (GORSUCH, J., concurring).
But see ante, at 1726 (majority opinion) (acknowledging that Phillips refused to sell to a lesbian couple cupcakes for a celebration of their union).
The Court undermines this observation when later asserting that the treatment of Phillips, as compared with the treatment of the other three bakeries, "could reasonably be interpreted as being inconsistent as to the question of whether speech is involved." Ante, at 1730. But recall that, while Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be discussed. (It appears that Phillips rarely, if ever, produces wedding cakes with words on them-or at least does not advertise such cakes. See Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/wedding-cakes (as last visited June 1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text and one without, see ante, at 1737 - 1738 (GORSUCH, J., concurring); it is between a cake with a particular design and one whose form was never even discussed. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
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"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
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"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
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"National Security Agency",
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"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
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"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
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"Railroad Retirement Board",
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"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
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"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
18
] |
COLLINS et al. v. AMERICAN BUSLINES, INC. et al.
No. 523.
Argued March 29, 1956.
Decided April 9, 1956.
John P. Frank argued the cause and filed a brief for petitioners.
John F. Franks argued the cause and filed a brief for the Industrial Commission of Arizona, respondent.
Mr. Justice Frankfurter
delivered the opinion of the Court.
Adolphus Henry Collins was killed in an accident near Ehrenburg, Arizona, on September 30, 1953. The accident resulted from the blowout of a tire on an American Buslines’ vehicle which Collins was driving on a regular run from Phoenix to Los Angeles. Collins had been employed as a bus driver for American since 1944. He had done his driving on various routes in the Southwest, and from 1952 until the time of his death he was regularly employed on the Los Angeles to Phoenix and return route. He and his wife and minor child — the petitioners in this proceeding — made their home in Los Angeles, California, in which State Collins was covered by workmen’s compensation.
Petitioners applied on October 14, 1953, to the Industrial Commission of Arizona for compensation in accordance with the terms of the Arizona Workmen’s Compensation Act. In an award dated November 30, 1953, that agency made, inter alia, the following findings:
“That the defendant employer maintained workmen’s compensation coverage in the State of California and that payroll premium on the said Adolphus Henry Collins was reported to the State of California. That no reporting of such was made at any time to the Industrial Commission of Arizona.
“That the said Adolphus Henry Collins, at the time of his death, was not regularly employed in the State of Arizona as said term has been defined by the Supreme Court of Arizona in the case of Industrial Commission vs. Watson Brothers Transportation Company, [75 Ariz. 357, 256 P. 2d 730].”
“That the Industrial Commission of Arizona does not have jurisdiction in the premises, and that said . . . claim on file herein should be denied for lack of jurisdiction.”
On certiorari to the Supreme Court of Arizona, the construction of the Arizona statute on which the Commission based its award was rejected, but its disposition of petitioners’ claim was affirmed. After concluding that American Buslines “operated exclusively in interstate commerce,” the court held that the Commerce Clause of the United States Constitution precluded recovery under the Arizona Workmen’s Compensation Act because Collins was covered by the California statute, and to require his interstate employer to insure also in Arizona would place an undue burden on interstate commerce. 79 Ariz. 220, 286 P. 2d 214. We granted certiorari because of the important federal question thus presented. 350 U. S. 931.
The only respondent here is the Arizona Industrial Commission. It is not at all clear from the record before us what the interest of the state agency is in this litigation. If the employer were actively before the Court, it could claim, we assume, that an award in the circumstances of the present case burdens the interstate commerce in that the consequences of such an award would be' to require it in the future to obtain insurance sufficiently comprehensive to cover potential awards in the various States through which it passes. The apparent interest of the Commission is different, namely, that as a result of an award in this case, interstate carriers will seek insurance from a single private insurance carrier capable of giving coverage in all States through which they run. The desire by interstate carriers for such insurance will cause a defection from the state compensation fund, and it is this potential defection which leads to the Commission’s claim that the Arizona Act cannot be applicable in an interstate situation. But this asserted burden upon interstate commerce — the disadvantageous effect upon the state compensation fund — is too intangible and elusive to be deemed a constitutionally disallowable burden.
We have been advised, however, that American Bus-lines has been a non-participating defendant throughout this litigation; that it is in receivership in Nebraska; that an order has been issued by the Nebraska court barring claims against it except in that court; and that petitioners’ claim is against the state compensation fund, administered by the Industrial Commission, which will in a separate proceeding be put to such recourse as it may have against American Buslines. This is not controverted. The Commission, therefore, appears to have an immediate interest of the same character and extent that American Buslines would have were it here. Thus, the Commission can invoke the employer’s claim under the Commerce Clause. But that claim — of an increased insurance burden imposed as a practical matter upon an interstate carrier — while perhaps less tenuous than the defection argument directly pertinent to the Commission’s case, is hardly more substantial. Whatever dollars-and-cents burden an eventual judgment for claimants in the position of petitioners may cast either upon a carrier or the State’s fund is insufficient, compared with the interest of the State in affording remedies for injuries committed within its boundaries, see Carroll v. Lanza, 349 U. S. 408, to dislodge state power. The State’s power is not dislodged so long as the Federal Government has not taken over the field of remedies for injuries of employees on interstate buses as it has done in the case of employees of interstate railroad carriers. New York Central R. Co. v. Winfield, 244 U. S. 147.
The court below and the Commission here rely on Southern Pacific Co. v. Arizona, 325 U. S. 761. It is too slender a reed. Two less similar situations, in which shelter from an exercise of state power is sought under the Commerce Clause, would be difficult to find than that presented by the circumstances of this case, compared with the circumstances of the Southern Pacific case.
The judgment of the Supreme Court of Arizona is reversed, and the case is remanded to that court for further proceedings.
Reversed and remanded.
Section 56-928 of the Arizona Code Annotated, 1939 (Cum. Supp. 1952), provides:
“Employers subject to the provisions of this article are: . . . 3. every person who has in his employ three [3] or more workmen or operatives regularly employed .... For the purposes of this section ‘regularly employed’ includes all employments, whether continuous throughout the year, or for only a portion of the year, in the usual trade, business, profession, or occupation of an employer.” | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
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"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
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"Department of Justice or Attorney General",
"Department or Secretary of State",
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"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
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"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
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"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
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"Federal Reserve System",
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"National Credit Union Administration",
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"National Enforcement Commission",
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"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
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"Unidentifiable",
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"Department of Homeland Security",
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"General Land Office or Commissioners",
"NO Admin Action",
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] | [
116
] |
WISCONSIN ELECTRIC POWER CO. v. UNITED STATES.
No. 237.
Argued January 7, 1949.
Decided February 14, 1949.
Van B. Wake argued the cause and filed a brief for petitioner.
By special leave of Court, William L. Ransom argued the cause for the Consolidated Edison Company of New York, as amicus curiae, in support of petitioner. With him on the brief were James K. Polk and Laurence W. Fairfax.
Lee A. Jackson argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle and Ellis N. Slack.
Mr. Justice Reed
delivered the opinion of the Court.
Petitioner, engaged in the business of supplying electric energy to the public, seeks the refund of taxes paid by it pursuant to § 3411 of the Internal Revenue Code. That section, in pertinent part, provides for a tax
“. . . upon electrical energy sold for domestic or commercial consumption . . . equivalent to 3 per centum of the price for which so sold, to be paid by the vendor under such rules and regulations as the Commissioner, with the approval of the Secretary, shall prescribe.”
Note that the statute taxes energy for domestic or commercial consumption. There is no provision for taxation of electrical energy used for industrial purposes.
The purchasers of the electric power here involved are 27 dairy plants which are engaged primarily in the collection, pasteurization, and distribution of fresh milk. The sole question presented by the case is whether the use of electricity by these dairies is commercial consumption within the meaning of the statute or industrial consumption, a use not covered by the statute.
The functions of the dairy plants are sufficiently similar so that they can be treated as one for the purpose of describing their methods of operation. The plants are buildings equipped with milk-handling machinery and facilities located either off the dairy farms, or on the dairy farm itself as an activity apart from milk production. Contracts for the purchase of raw milk are negotiated with nearby farms. This milk is delivered in trucks of the producers or of the dairy plant, as the case may be, to the plant where it is received, weighed, tested for butterfat content, cooled, and mixed and standardized so as to achieve the proper butterfat content. Next it is pasteurized. Pasteurization consists of heating the milk to 143°-145° F., maintaining it at that level for about thirty minutes, and then subjecting it to sudden cooling to a point between 38° and 40° F. The process is designed to kill pathogenic bacteria without destroying the natural creaming properties or the taste of the milk. Then the milk is drawn into bottles or cans which have been washed, sterilized, and cooled. Finally it is stored in refrigerated rooms to permit the cream line to form and to await delivery. Most of it is delivered to customers in the dairy plant’s trucks or wagons. In some instances a small proportion is sold at the plant itself.
Electric power is employed by the purchasing dairy plants in a number of ways. It is used to light the plants, including the garage space for the collecting and distributing trucks. It drives electric motors which pump refrigerants, deliver milk to and from the pasteurizer and to the bottling machines, operate the homogenizer, the bottling machine, the cream separator, and the machinery used in washing, sterilizing and conveying bottles. The electricity used by some of the plants is measured through a single meter, that of others through two or more meters, but in no case are the meters so connected to the incoming power line as to enable the energy supplied for one purpose to be differentiated from that supplied for another. We do not have before us a situation where pasteurization utilizes electrical energy that is measured by a meter exclusively used for pasteurization.
Pasteurization is accomplished by the use of special equipment designed for that purpose. Most of the electricity attributable to the process is devoted to the ice machines which perform the rapid cooling of the milk after the initial heating. Since the same cooling units perform the cooling which is necessary before and after pasteurization, however, the electricity which they consume for pasteurization alone cannot be ascertained. Pasteurization equipment, including the increased cooling equipment necessary 'therefor, accounts for about 15 or 20 percent of the total cost of plant equipment, excluding trucks and other vehicles. About one-tenth of the cost of plant operation, excluding the cost of the raw milk and costs attributable to distribution, is attributable to pasteurization.
Petitioner paid the tax on electrical energy sold to the dairy plants during the period from April, 1940, to July, 1943, and then brought suit to recover it on the ground that such energy was sold not for commercial but for industrial consumption. The United States District Court for the Eastern District of Wisconsin held that the sales were for commercial consumption within the meaning of the statute, and therefore that the tax was valid. 69 F. Supp. 743. The United States Court of Appeals for the Seventh Circuit affirmed. 168 F. 2d 285. It summarized its views as follows:
“We agree with [District] Judge Duffy that the wording and legislative history of the Act make it clear that the predominant character of the business carried on by a consumer of electrical energy is what determines whether the electricity sold has been sold for 'commercial consumption’; hence we are content to adopt his opinion as that of this court.” Id. at 286.
The United States Court of Appeals for the Tenth Circuit had held in United States v. Public Service Co. of Colorado, 143 F. 2d 79, that electrical energy sold to dairy plants operating substantially as these was sold for industrial rather than commercial consumption, and consequently was not taxable under § 3411. We granted certiorari in this case in order to resolve the apparent conflict between circuits and to settle the meaning of the statute as it applies to the business of this general type of dairy plant. 335 U. S. 842.
The tax now embodied in § 3411 was originally imposed upon the consumer of electricity by the Revenue Act of 1932, 47 Stat. 169, 266. This Act was amended in 1933 to make the burden of the tax fall directly upon the vendor. 48 Stat. 254, 256. No change of any significance for our purposes has occurred since the original enactment of this provision.
Although the language of the section does not include the word “industrial,” it is clear from the legislative history that “commercial” was used in contradistinction to “industrial.” While electricity sold for commercial consumption is taxed, that sold for industrial consumption is not. Thus our task resolves itself to a determination of the category in which the consumption of electricity by these dairy plants should be classified. We shall not undertake the difficult and here needless task of general definition which differentiates for this statutory clause between industrial and commercial in other lines of business activity. That is a problem primarily for the administrators of the section, with knowledge of the specific and varying facts.
The legislative history indicates that the term “commercial” was meant to apply to the nature of the business in which the energy is consumed, and not to the specific purpose to which each measurable unit of electricity is devoted. Where it is delivered through a single meter at one location, energy utilized to operate sewing machines for a minor manufacturing unit, e. g., shirts, in a department store, would be deemed power sold for commercial consumption, although it might fall within the industrial category if sold to a consumer who did nothing but manufacture shirts. Since any other interpretation of the section would entail the almost insurmountable administrative difficulty of classifying all the electricity sold to a plant according to the specific operations to which such power was devoted by the consumer, the conclusion that the controlling factor is the general nature of a business at a location accords with the natural meaning to be given the words employed by Congress to express its purpose.
The regulations interpret the section in line with the legislative history. U. S. Treas. Reg. 46 (1940 ed.) § 316.190 [as amended by T. D. 5099], presently applicable, provides in pertinent part:
“Scope of tax. — The tax imposed by section 3411 (a) of the Internal Revenue Code, as amended, applies, except as provided hereinafter, to all electrical energy sold for domestic or commercial consumption and not for resale.
“The term 'electrical energy sold for domestic or commercial consumption’ does not include (1) electrical energy sold for industrial consumption, e. g., for use in manufacturing, mining, refining, shipbuilding, building construction, irrigation, etc., or (2) that sold for other uses which likewise can not be classed as domestic or commercial, such as the electrical energy used by electric and gas companies, waterworks, telegraph, telephone, and radio communication companies, railroads, other similar common carriers, educational institutions not operated for private profit, churches, and charitable institutions in their operations as such. However, electrical energy is subject to tax if sold for consumption in commercial phases of industrial or other businesses, such as in office buildings, sales and display rooms, retail stores, etc., or in domestic phases, such as in dormitories or living quarters maintained by educational institutions, churches, charitable institutions, or others.
“Where electrical energy is sold to a consumer for two or more purposes, through separate meters, the specific use for which the energy is sold through each meter, i. e., whether for domestic or commercial consumption, or for other use, shall determine its taxable status. Where the consumer has all the electrical energy consumed at a given location furnished through one meter, the predominant character of the business carried on at such location shall determine the classification of consumption for the purposes of this tax.”
The last sentence of this regulation makes it clear that all electrical energy furnished to a predominantly commercial establishment through a single meter is subject to the tax although portions of such energy are devoted to purposes which, considered separately, might be classified as industrial. While the regulation does not deal with the point, we think it obvious from the last quoted paragraph that where the energy is furnished at a single location through various meters, although none of them are shown to carry current for predominantly industrial uses, the same rule would be applied. The last sentence of the regulation adds a qualification, however, which directs our attention, not necessarily to the nature of a business as a whole, but to the nature as a whole of the activities carried on “at a given location.”
We accept the last sentence of the quoted regulation as proper under the statute. As applied to these plants we think that the electricity furnished by the petitioner was “sold for commercial consumption” and consequently was properly taxed. Admittedly the activities of these consumers would be considered commercial if they did not pasteurize the milk prior to its sale. Such business would accurately be called the distribution of fresh milk. The butter and cream extraction appears incidental. We are not dealing with a “creamery” in the sense of a butter or cheese factory. We agree with the courts below that the addition of pasteurization to the other activities described above does not change the nature of the dairy plants’ business from commercial to industrial any more than would the cooking of food for sale in a restaurant, or the cleaning of raw food products prior to distribution or sale. The District Court found that “pasteurization plays a minor part in the total business of the dairies,” and that “the predominant business of the dairies here involved ... is, and was, that of fluid milk dealers and distributors.”
Petitioner argues that the test applied by the Court of Appeals, “whether the predominant character of the enterprise carried on by such consumer is commercial,” is erroneous and contrary to the regulation in that it directs attention to the business as a whole rather than to the activities at a given location. While the language quoted is susceptible to this criticism, the variation is harmless because the plant itself is the location or the focal point of all the relevant activities of each of these consumers of electricity. Pasteurization does not occur at a separate location, but at the same plant where the milk is received, weighed, tested, cooled, homogenized, separated and bottled. The milk is brought to this plant when purchased, and from the plant it is distributed to customers. The fact that most of the sales or deliveries occur off the premises does not alter the essential fact that all activities occur in or pivot around the plant.
Thus, though pasteurizing, we assume, is processing and though processing separately viewed may be conceded to be industrial, we conclude that the business conducted by these dairy plants is essentially commercial. The contrary conclusion reached in United States v. Public Service Co. of Colorado, 143 F. 2d 79, may be ascribed to the fact that there the court apparently looked to the use to which the electrical energy was devoted rather than to the nature of the business at a given location.
Rulings of the Bureau of Internal Revenue support our conclusion. In 1932, S. T. 518 stated that,
“Electrical energy furnished for consumption by bottling works, milk companies, or creameries engaged in the pasteurization and bottling of milk, and in the manufacture of butter, buttermilk, chocolate milk, and cottage cheese, is not furnished for domestic or commercial consumption . . . .”
Apparently, however, the Bureau intended this ruling to apply only to those plants whose business was predominantly pasteurization and the manufacture of milk by-products, because S. T. 637, issued the following year, contained the following statement:
“A dairy which obtains milk and converts it into use for retail purposes is held to be engaged in a business commercial in character. Electrical energy used in such operations will be subject to tax.”
In clarification of these two rulings the Bureau explained:
“Electrical energy furnished a commercial dairy or milk company which merely produces or purchases raw milk in bulk and pasteurizes it for sale either in bulk or bottled quantities, whose activities consist principally in the handling, distribution and sale of milk, is also subject to the tax.
“It is only electrical energy that is furnished for direct consumption by dairies which in addition to pasteurizing and bottling milk are also engaged in all the essential manufacturing processes necessary for the production of dairy products, such as the manufacturing of butter, cheese and other dairy-products, for sale on the open market as an article of commerce,- that is not subject to the tax."
Thus we hold that electrical energy supplied to these dairy plants through single meters, or through more than one but without differentiation as to use, is energy sold for commercial consumption.
Affirmed.
Amended by the Revenue Act of 1941, c. 412, 55 Stat. 687, 707, § 521 (a) (19), to change the three percent tax to three and one-third percent.
26 U. S. C. §3411.
See, infra, p. 180, et seq.
A few of the consumers of electricity here involved produce their own milk.
One of the plants pasteurizes by the so-called “flash method,” heating the milk to 161° F. for 16 seconds and rapidly cooling it to 32° F.
A minor proportion of the milk purchased by these plants is manufactured into butter, cheese, or other by-products. An undisclosed amount of this milk is separated from the cream it contains; some is also homogenized.
H. R. Conference Rep. No. 1492, 72d Cong., 1st Sess., p. 22; Senator Harrison, 77 Cong. Rec. 3212-14, 3215.
The legislative explanations treat of business consumers as units and do not differentiate as to use within the units.
Senator Harrison, Chairman of the Senate Finance Committee, which reported the bill, said:
“I am telling Senators nothing new when I remind them that we had a fight here in 1932 over the imposition of this tax. The Senate imposed a 3-percent electric-energy tax, and it was finally adopted, to be collected from the consumer of electric energy. We applied that only on domestic and commercial energy; that is, electric energy used in stores and dwellings that are classified as commercial and domestic. There was no tax in the 1932 act imposed upon energy employed in industry.” 77 Cong. Rec. 3212-13.
Senator Couzens, a member of a subcommittee of the Senate Finance Committee, which was constituted to consider the electrical energy tax, said: “I mean they eliminated that feature of the tax; they eliminated the tax on electrical energy sold to manufacturing plants and left the tax on electricity used commercially, that is by stores and on electricity used for domestic purposes . . . .” 77 Cong. Rec. 3218.
This regulation was substantially the same in its earlier versions. U. S. Treas. Reg. 42, Art. 40 (1932); T. D. 4342, XI-2 Cum. Bull. 495 (1932); T. D. 4393, XII-2 Cum. Bull. 322 (1933). The quoted version, however, omitted the word “processing,” which was formerly included in the list of activities exemplifying industrial consumption. We do not consider this deletion significant for purposes of this case.
Cf. St. Louis Refrigerating & Cold Storage Co. v. United States, 95 Ct. Cl. 694, 43 F. Supp. 476; Fulton Market Cold Storage Co. v. United States, 95 Ct. Cl. 710, 43 F. Supp. 485.
We do not intend by these words of limitation to approve or disapprove other provisions. There are ambiguities in this section of the regulation. In the second paragraph, without reference to separate meters, it holds that energy used in the commercial phases of an industrial business is taxable. The reverse would seem to follow as to industrial phases of a commercial business. Yet the third paragraph allows the avoidance of such a tax on industrial use only by the employment of separate meters.
For state cases to the effect that this business is primarily commerical, see e. g. City of Louisville v. Ewing Von-Allmen D. Co., 268 Ky. 652, 105 S. W. 2d 801; People ex rel. E. S. Dairy Co. v. Sohmer, 218 N. Y. 199, 112 N. E. 755; Richmond v. Dairy Co., 156 Va. 63, 157 S. E. 728. But see Dairy Assn. v. Bd. of Tax Admin., 302 Mich. 643,5 N. W. 2d 516.
See note-9, supra.
“The electrical energy was not used in the commercial phase of the dairying enterprise, but in the processing or industrial phase of the enterprise.” 143 F. 2d 79, 82.
XI-2 Cum. Bull. 498 (1932).
XII-1 Cum. Bull. 409, 410 (1933).
Bureau Letter, dated May 13, 1933 (symbols MT: ST: BHF) (333 C. C. H. ¶ 6266), 4 C. C. H. Standard Federal Tax Reporter ¶ 2633G .175 (1949). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
68
] |
DOE et al. v. DELAWARE
No. 79-5932.
Argued January 12, 1981
Decided March 9, 1981
Gary A. Myers argued the cause for appellants. With him on the briefs was Michael Boudin. .
Regina Mullen Small, State Solicitor of Delaware, argued the cause for appellee. With her on the brief were John A. Parkins, Jr., Assistant State Solicitor, and Roger A. Akin, Thomas M. LaPenta, and Timothy A. Casey, Deputy Attorneys General.
Carol R. Golubock, Daniel Yohalem, and Marian Wright Edelman filed a brief for the American Orthopsychiatric Association et al. as amici curiae urging reversal.
Briefs of amici curiae were filed by Marcia Robinson Lowry and Bruce J. Ennis for the American Civil Liberties Union; by Janet Fink, Carol Sherman, Jane M. Sufian, and Henry S. Weintraub for the Legal Aid Society of the City of New York, Juvenile Rights Division; and by Douglas J. Besharov and Robert M. Horowitz for the National Association of Counsel for Children et al.
Per Curiam.
The appeal is dismissed for want of a properly presented federal question. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
MASSACHUSETTS BOARD OF RETIREMENT et al. v. MURGIA
No. 74-1044.
Argued December 10, 1975
Decided June 25, 1976
Terence P. O’Malley, Assistant Attorney General of Massachusetts, argued the cause for appellants. With him on the brief were Francis X. Bellotti, Attorney General, and S. Stephen Rosenfeld and Margot Botsford, Assistant Attorneys General.
Robert D. City argued the cause and filed a brief for appellee.
Henry Friedman filed a brief for the State Police Association of Massachusetts as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by James A. Lanigan, Alfred Miller, and Stephen L. Solomon for the American Association of Retired Persons et al.; by Howard Eglit, Jonathan A. Weiss, and Melvin Wvlf for Legal Services for the Elderly Poor et al.; by Thomas K. Gilhool and Edwin D. Wolf for the Older and Middle Age Worker Ombudsman Pilot Project of United Communities of Southeastern Philadelphia et al.; by James J. McNamara for the American Medical Association; and by Melvin S. Louison for Lieutenant Lawrence Carter et al.
Per Curiam.
This case presents the question whether the provision of Mass. Gen. Laws Ann. c. 32, § 26 (3) (a) (1966), that a uniformed state police officer “shall be retired . . . upon his attaining age fifty,” denies appellee police officer equal protection of the laws in violation of the Fourteenth Amendment.
Appellee Robert Murgia was an officer in the Uniformed Branch of the Massachusetts State Police. The Massachusetts Board of Retirement retired him upon his 50th birthday. Appellee brought this civil action in the United States District Court for the District of Massachusetts, alleging that the operation of § 26 (3) (a) denied him equal protection of the laws and requesting the convening of a three-judge court under 28 U. S. C. §§ 2281, 2284. The District Judge dismissed appellee’s complaint on the ground that the complaint did not allege a substantial constitutional question. 345 F. Supp. 1140 (1972), On appeal, the United States Court of Appeals for the First Circuit, in an unreported memorandum, set aside the District Court judgment and remanded the case with direction to convene a three-judge court. Upon a record consisting of depositions, affidavits, and other documentary material submitted by the parties, the three-judge court filed an opinion that declared § 26 (3) (a) unconstitutional on the ground that “a classification based on age 50 alone lacks a rational basis in furthering any substantial state interest,” and enjoined enforcement of the statute. 376 F. Supp. 753, 754 (1974). We noted probable jurisdiction, 421 U. S. 974 (1975), and now reverse.
The primary function of the Uniformed Branch of the Massachusetts State Police is to protect persons and property and maintain law and order. Specifically, uniformed officers participate in controlling prison and civil disorders, respond to emergencies and natural disasters, patrol highways in marked cruisers, investigate crime, apprehend criminal suspects, and provide backup support for local law enforcement personnel. As the District Court observed, “service in this branch is, or can be, arduous.” 376 F. Supp., at 754. “[H]igh versatility is required, with few, if any, backwaters available for the partially superannuated.” Ibid. Thus, “even [appellee’s] experts concede that there is a general relationship between advancing age and decreasing physical ability to respond to the demands of the job.” Id., at 755.
These considerations prompt the requirement that uniformed state officers pass a comprehensive physical examination biennially until age 40. After that, until mandatory retirement at age 50, uniformed officers must pass annually a more rigorous examination, including an electrocardiogram and tests for gastro-intestinal bleeding. Appellee Murgia had passed such an examination four months before he was retired, and there is no dispute that, when he retired, his excellent physical and mental health still rendered him capable of performing the duties of a uniformed officer.
The record includes the testimony of three physicians: that of the State Police Surgeon, who testified to the physiological and psychological demands involved in the performance of uniformed police functions; that of an associate professor of medicine, who testified generally to the relationship between aging and the ability to perform under stress; and that of a surgeon, who also testified to aging and the ability safely to perform police functions. The testimony clearly established that the risk of physical failure, particularly in the cardiovascular system, increases with age, and that the number of individuals in a given age group incapable of performing stress functions increases with the age of the group. App. 77-78, 174-176. The testimony also recognized that particular individuals over 50 could be capable of safely performing the functions of uniformed officers. The associate professor of medicine, who was a witness for the appellee, further testified that evaluating the risk of cardiovascular failure in a given individual would require a number of detailed studies. Id., at 77-78.
In assessing appellee’s equal protection claim, the District Court found it unnecessary to apply a strict-scrutiny test, see Shapiro v. Thompson, 394 U. S. 618 (1969), for it determined that the age classification established by the Massachusetts statutory scheme could not in any event withstand a test of rationality, see Dandridge v. Williams, 397 U. S. 471 (1970). Since there had been no showing that reaching age 50 forecasts even “imminent change” in an officer’s physical condition, the District Court held that compulsory retirement at age 50 was irrational under a scheme that assessed the capabilities of officers individually by means of comprehensive annual physical examinations. We agree that rationality is the proper standard by which to test whether compulsory retirement at age 50 violates equal protection. We disagree, however, with the District Court’s determination that the age 50 classification is not rationally related to furthering a legitimate state interest.
I
We need state only briefly our reasons for agreeing that strict scrutiny is not the proper test for determining whether the mandatory retirement provision denies, appellee equal protection. San Antonio School District v. Rodriguez, 411 U. S. 1, 16 (1973), reaffirmed that equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Mandatory retirement at age 50 under the Massachusetts statute involves neither situation.
This Court’s decisions give no support to the proposition that a right of governmental employment per se is fundamental. See San Antonio School District v. Rodriguez, supra; Lindsey v. Normet, 405 U. S. 56, 73 (1972); Dandridge v. Williams, supra, at 485. Accordingly, we have expressly stated that a standard less than strict scrutiny “has consistently been applied to state legislation restricting the availability of employment opportunities.” Ibid.
Nor does the class of uniformed state police officers over 50 constitute a suspect class for purposes of equal protection analysis. Rodriguez, supra, at 28, observed that a suspect class is one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a “history of purposeful unequal treatment” or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. The class subject to the compulsory retirement feature of the Massachusetts statute consists of uniformed state police officers over the age of 50. It cannot be said to discriminate only against the elderly. Rather, it draws the line at a certain age in middle life. But even old age does not define a “discrete and insular” group, United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938), in need of “extraordinary protection from the majoritarian political process.” Instead, it marks a stage that each of us will reach if we live out our normal span. Even if the statute could be said to impose a penalty upon a class defined as the aged, it would not impose a distinction sufficiently akin to those classifications that we have found suspect to call for strict judicial scrutiny.
Under the circumstances, it is unnecessary to subject the State’s resolution of competing interests in this case to the degree of critical examination that our cases under the Equal Protection Clause recently have characterized as “strict judicial scrutiny.”
II
We turn then to examine this state classification under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v. Williams, supra, at 485. Such action by a legislature is presumed to be valid.
In this case, the Massachusetts statute clearly meets the requirements of the Equal Protection Clause, for the State’s classification rationally furthers the purpose identified by the State: Through mandatory retirement at age 50, the legislature seeks to protect the public by assuring physical preparedness of its uniformed police. Since physical ability generally declines with age, mandatory retirement at 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age. This clearly is rationally related to the State’s objective. There is no indication that § 26 (3) (a) has the effect of excluding from service so few officers who are in fact unqualified as to render age 50 a criterion wholly unrelated to the objective of the statute.
That the State chooses not to determine fitness more precisely through individualized testing after age 50 is not to say that the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation. It is only to say that with regard to the interest of all concerned, the State perhaps has not chosen the best means to accomplish this purpose. But where rationality is the test, a State “does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” Dandridge v. Williams, 397 U. S., at 485.
We do not make light of the substantial economic and psychological effects premature and compulsory retirement can have on an individual; nor do we denigrate the ability of elderly citizens to continue to contribute to society. The problems of retirement have been well documented and are beyond serious dispute. But “[w]e do not decide today that the [Massachusetts statute] is wise, that it best fulfills the relevant social and economic objectives that [Massachusetts] might ideally espouse, or that a more just and humane system could not be devised.” Id., at 487. We decide only that the system enacted by the Massachusetts Legislature does not deny appellee equal protection of the laws.
The judgment is reversed.
Mb. Justice Stevens took no part in the consideration or decision of this case.
Uniformed state police officers are appointed under Mass. Gen. Laws Ann. c. 22, § 9A (Supp. 1976-1977), which provides:
“Whenever the governor shall deem it necessary to provide more effectively for the protection of persons and property and for the maintenance of law and order in the commonwealth, he may authorize the commissioner to make additional appointments to the division of state police, together with such other employees as the governor may deem necessary for the proper administration thereof. . . . Said additional officers shall have and exercise within the commonwealth all the powers of constables, except the service of civil process, and of police officers and watchmen. ... No person who has not reached his nineteenth birthday nor any person who has passed his thirtieth birthday shall be enlisted for the first time as an officer of the division of state police, except that said maximum age qualification shall not apply in the ease of the enlistment of any woman as such an officer.”
In pertinent part e. 32, § 26 (3), provides:
“(a) ... Any . . . officer appointed under section nine A of chapter twenty-two . . . who has performed service in the division of state police in the department of public safety for not less than twenty years, shall be retired by the state board of retirement upon his attaining age fifty or upon the expiration of such twenty years, whichever last occurs.”
“(b) Any . . . officer . . . who has performed service . . . for not less than twenty years and who has not attained . . . age fifty in the case of an officer appointed under the said section nine A, shall be retired by the state board of retirement in case the rating board, after an examination of such officer or inspector by a registered physician appointed by it, shall report in writing to the state board of retirement that he is physically or mentally incapacitated for the performance of duty and that such incapacity is likely to be permanent.”
Since § 9A requires that new enlistees in the Uniformed Branch be no more than 30 years of age, few retirements are delayed past 50 until the expiration of 20 years’ service.
The question presented in this case was summarily treated in Cannon v. Guste, 423 U. S. 918 (1975), aff’g No. 74^3211 (May 6, 1975, ED La.); Weisbrod v. Lynn, 420 U. S. 940 (1975), aff’g 383 F. Supp. 933 (DC 1974); Mcllvaine v. Pennsylvania, 415 U. S. 986 (1974), dismissing appeal from 454 Pa. 129, 309 A. 2d 801 (1973). Our cursory consideration in those cases does not, of course, foreclose this opportunity to consider more fully that question. See, e. g., Edelman v. Jordan, 415 U. S. 651, 670-671 (1974).
Jurisdiction was invoked pursuant to 28 U. S. C. § 1343, and declaratory and injunctive relief was sought under 28 U. S. C. §§ 2201, 2202. The equal protection denial was alleged to constitute a violation of 42 U. S. C. § 1983. Appellee made no claim under the Federal Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U. S. C. § 621 et seq.
E. g., Roe v. Wade, 410 U. S. 113 (1973) (right of a uniquely private nature); Bullock v. Carter, 405 U. S. 134 (1972) (right to vote); Shapiro v. Thompson, 394 U. S. 618 (1969) (right of interstate travel); Williams v. Rhodes, 393 U. S. 23 (1968) (rights guaranteed by the First Amendment); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942) (right to procreate).
E. g., Graham v. Richardson, 403 U. S. 365 (1971) (alienage); McLaughlin v. Florida, 379 U. S. 184 (1964) (race); Oyama v. California, 332 U. S. 633 (1948) (ancestry).
See, e. g., San Antonio School District v. Rodriguez, 411 U. S. 1, 40-41 (1973); Madden v. Kentucky, 309 U. S. 83, 88 (1940) ; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78-79 (1911).
See San Antonio School District v. Rodriguez, supra, at 17.
A special legislative commission’s report preceding the enactment of the age-50 maximum for uniformed police stated: “The Division of State Police, by virtue of the nature of the work demanded of its members, undoubtedly requires comparatively young men of vigorous physique. The nature of the duties to be performed in all weathers is arduous in the extreme .... No argument is needed to demonstrate that men above middle life are not usually physically able to perform such duties.” Mass. H. Doc. No. 1582, p. 8 (1938). With these considerations in mind, the State’s Commissioner of Public Safety argued before the commission for provisions permitting retirement of state police at 45. The commission observed in response that it was “not prepared to say that the contention of the Commissioner of Public Safety, that [state police] over age forty-five should be eligible [for] retirement, is unsound as a matter of public policy.” Ibid. The commission, however, deferred the problem of setting retirement ages for the state police to special study, their sole reason for not recommending age 45 being the anticipated pension costs to the State, not the reasonableness of the age with respect to job qualification. Id., at 7-9. Though the age-50 limitation was not specifically proposed by the commission, but was ultimately enacted by the legislature after further study, Act of Aug. 12, 1939, c. 503, § 3 (1939), Mass. Acts & Resolves 737-738 (1939), it is apparent that the purpose of the limitation was to protect the public by assuring the ability of state police to respond to the demands of their jobs. See also Mass. H. Doc. No. 5316, pp. 16-17 (1967); Mass. H. Doc. No. 2500, pp. 21, 23-25 (1955). This purpose is also clearly implied by the State’s maximum-age scheme, which sets higher mandatory retirement ages for less demanding jobs. See Mass. Gen. Laws Ann. c. 32, §§ 1, 3 (2) (g), 26 (3) (a) (1966 and Supp. 1975).
Appellee seems to have suggested in oral argument that Mass. Gen. Laws Ann. c. 32, §§ 1, 3 (2) (g), 26 (3) (a), also deny equal protection through the job classification established by them. Tr. of Oral Arg. 14, 17-18. Any such argument, however, is unpersuasive. The sections do set a maximum retirement age for uniformed state officers which is less than that set for other law enforcement personnel. It has never been seriously disputed, if at all, however, that the work of uniformed state officers is more demanding than that of other state, or even municipal, law enforcement personnel. It is this difference in work demands that underlies the job classification. Mass. H, Doc. No. 2500, pp. 21-22 (1955).
Review of Massachusetts' maximum-age limitations by state legislative commissions has proceeded on the principle that “maximum retirement age for any group of employees should be that age at which the efficiency of a large majority of the employees in the group is such that it is in the public interest that they retire.” Id., at 7.
Indeed, were it not for the existing annual individual examinations through age 50, appellee would concede the rationality of mandatory retirement at 50. Tr. of Oral Arg. 22-23. The introduction of individual examinations, however, hardly defeats the rationality of the State’s scheme. In fact, it augments rationality since the legislative judgment to avoid the risk posed by even the healthiest 50-year-old officers would be implemented by annual individual examinations between ages 40 and 50 which serve to eliminate those younger officers who are not at least as healthy as the best 50-year-old officers.
E. g., M. Barron, The Aging American (1961); Cameron, Neuroses of Later Maturity, in Mental Disorders in Later Life 201 (0. Kaplan, 2d ed. 1956); Senate Special Committee on Aging, Developments in Aging: 1971 and January-March 1972, S. Rep. No. 92-784, pp. 48-53 (1972); Hearings before the Subcommittee on Retirement and the Individual of the Senate Special Committee on Aging, 90th Cong., 1st Sess., pts. 1 and 2, pp. 36-46, 87-100, 121-127, 212-217, 464-471 (1967). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
116
] |
CIBA CORP. v. WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, et al.
No. 72-528.
Argued April 17, 1973
Decided June 18, 1973
Douglas, J., delivered the opinion of the Court, in which all Members joined, except Brennan, J., who took no part in the consideration or decision of the case, and Stewart, J., who took no part in the decision of the case.
Clyde A. Szuch argued the cause and filed a brief for petitioner.
Deputy Solicitor General Friedman argued the cause for respondents. On the briefs were Solicitor General Griswold, Assistant Attorney General Kauper, Andrew L. Frey, Howard E. Shapiro, George Edelstein, and Peter Barton Hutt.
Briefs of amici curiae urging reversal were filed by Lloyd N. Cutler, Daniel Marcus, and William T. Lake for Pharmaceutical Manufacturers Assn., and by Thomas D. Finney, Jr., Thomas Richard Spradlin, and Daniel F. O’Keefe, Jr., for the Proprietary Assn.
Bruce J. Terris, Joseph Onek, and Peter H. Schuck filed a brief for American Public Health Assn, et al. as amici curiae urging affirmance.
Mr. Justice Douglas
delivered the opinion of the Court.
Petitioner manufactures a drug called Ritonic Capsules for which it filed a new drug application (NDA) that became effective in 1959. Under the Act then in force, an NDA for a “new drug” required the manufacturer to submit to the Food and Drug Administration (FDA) adequate proof of the drug's safety. This particular NDA became effective on the basis of the drug’s safety. As we have noted in the companion cases, the 1962 amendments to the Federal Food, Drug, and Cosmetic Act of 1938, 52 Stat. 1040, as amended, 76 Stat. 780, directed FDA to withdraw approval for NDA’s which became effective prior to that time if, after notice and opportunity for hearing, it found a lack of “substantial evidence” that the drug involved was effective as claimed in its labeling. And, as we have noted, “substantial evidence” as used in the Act, §§ 505 (d) and 505 (e)(3), 21 U. S. C. §§ 355 (d) and 355 (e)(3), means “adequate and well-controlled investigations” from which experts may conclude that the drug will have the claimed effect.
A panel of the National Academy of Sciences-National Research Council (NAS-NRC) reviewed the claims made for Ritonic Capsules and found it “ineffective” for each of the claims. FDA concluded there was a lack of substantial evidence of its efficacy and gave notice of its intent to withdraw the NDA, offering petitioner an opportunity to submit the required kind of data bearing on the efficacy of the drug and stating that withdrawal of approval of the NDA would cause the Ritonic Capsules to be a “new drug” for which no NDA was in effect, thereby making future sales unlawful.
Petitioner responded, submitting data on the issue of efficacy and maintained that Ritonic Capsules was not a “new drug” for purposes of the Act as amended. FDA concluded that petitioner’s evidence was insufficient to establish effectiveness and gave notice of a hearing on the withdrawal of the NDA. Petitioner responded, contested FDA’s authority to proceed further, and claimed that the product was not a “new drug” under the 1962 Act. It reserved the right to establish its position in the administrative proceedings, in judicial proceedings, or in both. Petitioner filed no more data to support its position; and accordingly FDA withdrew approval of the NDA on the ground that there was no substantial evidence that the drug was effective as claimed. Petitioner sought review of the withdrawal order in the Court of Appeals for the Second Circuit, as provided in § 505 (h), 21 U. S. C. § 355 (h). The Court of Appeals affirmed the withdrawal order. CIBA-Geigy Corp. v. Richardson, 446 F. 2d 466.
Meanwhile, and prior to the issuance of the withdrawal order, petitioner brought suit in the District Court for the District of New Jersey seeking declaratory and injunctive relief. After hearing, the District Court granted the Government’s motion .to dismiss the complaint for lack of jurisdiction. On appeal, the Court of Appeals for the Third Circuit affirmed, 463 F. 2d 225, holding that FDA was authorized to decide the jurisdictional question as an incident of its power to approve or withdraw approval for NDA’s, that its decision on that issue was reviewable on direct appeal by a court of appeals, and since the Court of Appeals for the Second Circuit had ruled against petitioner on that appeal, the jurisdictional question could not be relitigated in a separate suit for a declaratory judgment. We affirm the Court of Appeals.
We have stated in Weinberger v. Bentex Pharmaceuticals, Inc., post, p. 645, our reasons for concluding that FDA has jurisdiction in an administrative proceeding to determine whether a drug product is a “new drug” within the meaning of § 201 (p) of the Act, 21 U. S. C. §321(p). A decision that FDA lacks authority to determine in its own proceedings the coverage of the Act it administers, subject of course to judicial review, would seriously impair FDA’s ability to discharge the responsibilities placed on it by Congress. As we said in Weinberger v. Hynson, Westcott & Dunning, Inc., ante, p. 609, and the Bentex case, supra, the definition of “new drug” as used in §201(p)(1) involves a determination of technical and scientific questions by experts. The agency is therefore appropriately the arm of Government to make the threshold determination of the issue of coverage. Cf. Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 210-211, n 47.
It is, of course, true that the Act gives FDA a second line of defense — civil injunction proceedings, criminal penalties, and in rem seizure and condemnation. See §§ 302 (a), 303, 304, 21 U. S. C. §§ 332 (a), 333, 334. Those are sanctions to enforce the prohibition of the Act against the sale in commerce of any article in violation of § 505. But the Act does not create a dual system of control — one administrative, and the other judicial. Cases may arise where there has been no formal administrative determination of the “new drug” issue, it being first tendered to a district court. Even then, however, the district court might well stay its hand, awaiting an appropriate administrative determination of the threshold question. See the Bentex case, supra. Where there is, however, an administrative determination, whether it be explicit or implicit in the withdrawal of an NDA, the tactic of “reserving” the threshold question (the jurisdictional issue) for later judicial determination is not tolerable. There is judicial review of FDA's ruling. But petitioner, having an opportunity to litigate the “new drug” issue before FDA and to raise the issue on appeal to a court of appeals, may not relitigate the issue in another proceeding. Yakus v. United States, 321 U. S. 414, 444-446.
Affirmed.
Mr. Justice Brennan took no part in the consideration or decision of this case. Mr. Justice Stewart took no part in the decision of this case.
it is a prescription drug recommended “for patients who are losing their drive, alertness, vitality and zest for living because of the natural degenerative changes of advancing years”; and for patients who are “debilitated or depressed by chronic illness, overwork, etc., as well as those recuperating from illness or surgery.” | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
"Benefits Review Board",
"Civil Aeronautics Board",
"Bureau of the Census",
"Central Intelligence Agency",
"Commodity Futures Trading Commission",
"Department or Secretary of Commerce",
"Comptroller of Currency",
"Consumer Product Safety Commission",
"Civil Rights Commission",
"Civil Service Commission, U.S.",
"Customs Service or Commissioner or Collector of Customs",
"Defense Base Closure and REalignment Commission",
"Drug Enforcement Agency",
"Department or Secretary of Defense (and Department or Secretary of War)",
"Department or Secretary of Energy",
"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
"Department or Secretary of State",
"Department or Secretary of Transportation",
"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
"Equal Employment Opportunity Commission",
"Environmental Protection Agency or Administrator",
"Federal Aviation Agency or Administration",
"Federal Bureau of Investigation or Director",
"Federal Bureau of Prisons",
"Farm Credit Administration",
"Federal Communications Commission (including a predecessor, Federal Radio Commission)",
"Federal Credit Union Administration",
"Food and Drug Administration",
"Federal Deposit Insurance Corporation",
"Federal Energy Administration",
"Federal Election Commission",
"Federal Energy Regulatory Commission",
"Federal Housing Administration",
"Federal Home Loan Bank Board",
"Federal Labor Relations Authority",
"Federal Maritime Board",
"Federal Maritime Commission",
"Farmers Home Administration",
"Federal Parole Board",
"Federal Power Commission",
"Federal Railroad Administration",
"Federal Reserve Board of Governors",
"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
"General Accounting Office",
"Comptroller General",
"General Services Administration",
"Department or Secretary of Health, Education and Welfare",
"Department or Secretary of Health and Human Services",
"Department or Secretary of Housing and Urban Development",
"Administrative agency established under an interstate compact (except for the MTC)",
"Interstate Commerce Commission",
"Indian Claims Commission",
"Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement",
"Internal Revenue Service, Collector, Commissioner, or District Director of",
"Information Security Oversight Office",
"Department or Secretary of Labor",
"Loyalty Review Board",
"Legal Services Corporation",
"Merit Systems Protection Board",
"Multistate Tax Commission",
"National Aeronautics and Space Administration",
"Secretary or administrative unit or personnel of the U.S. Navy",
"National Credit Union Administration",
"National Endowment for the Arts",
"National Enforcement Commission",
"National Highway Traffic Safety Administration",
"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
"National Railroad Adjustment Board",
"Nuclear Regulatory Commission",
"National Security Agency",
"Office of Economic Opportunity",
"Office of Management and Budget",
"Office of Price Administration, or Price Administrator",
"Office of Personnel Management",
"Occupational Safety and Health Administration",
"Occupational Safety and Health Review Commission",
"Office of Workers' Compensation Programs",
"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
"U.S. Public Health Service",
"Postal Rate Commission",
"Provider Reimbursement Review Board",
"Renegotiation Board",
"Railroad Adjustment Board",
"Railroad Retirement Board",
"Subversive Activities Control Board",
"Small Business Administration",
"Securities and Exchange Commission",
"Social Security Administration or Commissioner",
"Selective Service System",
"Department or Secretary of the Treasury",
"Tennessee Valley Authority",
"United States Forest Service",
"United States Parole Commission",
"Postal Service and Post Office, or Postmaster General, or Postmaster",
"United States Sentencing Commission",
"Veterans' Administration or Board of Veterans' Appeals",
"War Production Board",
"Wage Stabilization Board",
"State Agency",
"Unidentifiable",
"Office of Thrift Supervision",
"Department of Homeland Security",
"Board of General Appraisers",
"Board of Tax Appeals",
"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
39
] |
FEDERAL TRADE COMMISSION v. MANDEL BROTHERS, INC.
No. 234.
Argued March 23, 1959.
Decided May 4, 1959.
Daniel M. Friedman argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Assistant Attorney■ General Hansen, Earl W. Kintner* James E. Corkey and Alvin L. Berman.
■ Samuel H. Horne argued the cause for respondent. With him on the brief was Anderson A. Owen.
Mr. Justice Douglas,
^delivered the opinion of the Court.
Petitioner issued a complaint .charging respondent, a retail department store, with violations of the Fur Products Labeling Act, 6^*S$at. 175, 15 U. S. C. § 69. Violations, were found and a cease-and-desist order was issued. One of the principal violations found was that many of respondent’s retail sales were falsely “invoiced” in violation of § 3 of the Act. The term “invoice” is defined, in § 2 (f) as “a written account, memorandum, list, or catalog, which is issued in connection with any commercial dealing in fur products or furs, and describes the particulars of any fur products or furs, transported or delivered to a purchaser, consignee, factor, bailee, correspondent, or agent, or any other person who is engaged in dealing commercially in fur products or furs.” Section 5 (b) provides that a fur product or fur is falsely “invoiced” if it is not “invoiced” to show (a) the name of the animal that produced the fur; and, where applicable, that the product (b) contains used fur, (c) contains bleached, dyed, or otherwise artificially colored fur, (d) is composed in whole or substantial part of paws, tails, bellies, or waste fur; (e) the name and address of the person issuing the “invoice”; and (f) the country of origin of any imported furs.
The Commission found that respondent had violated the “invoice” provisions of the Act by failure to include in many of its retail sales slips of fur products, (a) its address, (b) whether the fur was bleached, dyed, or otherwise artificially colored, and (c) the correct name of the animal producing the fúr.
The Act in § 4 also provides that a fur product is mis-branded (1) if it is “falsely or deceptively labeled ... or identified,” (2) if there is not affixed a label setting forth substantially the same six items of information required for an “invoice,” or (3) if the label designates the animal that produced the fur by some name other than that prescribed in the Fur Products Name Guide. The Commission found that the labels on respondent’s fur products were false in numerous instances by reason of the failure to include information in three of the categories listed under the second part of § 4. It held, however, that there was no evidence that the labels were deficient in the other three categories of information. Nevertheless, it issued a cease-and-desist order against misbranding by failure to include in the labels the required six categories of information, all of which were listed.
On appeal, the Court of Appeals first eliminated the prohibitions relating to invoicing on the ground that a retail sales slip was not'an “invoice” within the meaning of the Act1; and second, it struck from the order the prohibition against misbranding through omission of the three categories as to which no violations were found. 254 F. 2d 18. The case is here on a petition for a writ of certiorari. 358 U. S. 812.
I.
First, as to invoicing. We start with an Act whose avowed purpose, inter alia, was to protect “consumers . . . against deception, . . . resulting from the misbranding, false or deceptive advertising, or false invoicing of fur products and furs.” S. Rep. No. 78, 82d Cong., 1st Sess., p. 1. The House Report also emphasizes that the bill was “designed to protect consumers and others from wide-spreád abuses” arising out of false and misleading matter in advertisements and otherwise'. H. R. Rep. No. 546, 82d Cong., 1st Sess., p. 1. The Title of the Act (which, though not limiting.the plain meaning of the text, is nonetheless a useful aid in resolving an ambiguity (see Maguire v. Commissioner, 313 U. S. 1, 9)), states that its purpose was to “protect consumers and others against . . . false invoicing of fur products and furs.” 65 Stat. 175. So we have an avowed purpose to protect retail purchasers against improper “invoicing.” We therefore should read § 2 (f) which contains the definition of “invoice” hospitably with that end in view. Section 2 (f) is not unambiguous. Yet we do not have here the problem of a penal statute that deserves strict construction. We deal with remedial legislation of a regulatory nature where our task is to fit, if possible, all parts into an harmonious whole. Black v. Magnolia Liquor Co., 355 U. S. 24, 26.
Section 2 (f) uses “invoice” to include a “written account” and “memorandum.” So far a retail sales slip is included. Section 2 (f) requires the “invoice” to be issued “in connection with any commercial dealing” in furs. A retail sale is plainly a “commercial dealing.” Section 2 (f) requires the invoice to be issued to .a “purchaser.” There again á customer of a retailer is a “purchaser.” The case for inclusion of a retail sales slip in “invoice,” as that term is used in the Act, would therefore seem to be complete. What turned the. Court of Appeals the other way was the last phrase in § 2 (f) — “or any other person who is engaged in dealing commercially in fur products or furs.” It held that “engaged in dealing commercially” modifies not only “any other person” but also all the other preceding terms in the subsection including “purchaser.” Cf. United States v. Standard Brewery, 251 U. S. 210, 218. That is a possible construction. We conclude, however, that this limiting clause is. to he applied only to the last antecedent. We think it would be a partial mutilation of this Act to construe it so that the “invoice” provisions were inapplicable to retail sales. In the first place, the language of § 2 (f) specifies in sweeping language the categories of persons for whose benefit the invoicing requirements were ■ imposed, viz., purchaser, consignee, factor, bailee, correspondent, or agent. Then as a general catch-all “any other person who. is engaged in dealing commercially in fur products or furs” was added. In the second place, only by construing “invoice” to include retail sales slips can the full protection of the Act be accorded consumers. We do not agree with the point stressed by respondent that the consumer’s protection is to be found solely in the label on the fur product and that invoices are required only at each antecedent step of delivery or transfer to a person dealing commercially in either furs or fur products. The advertising and mislabeling prohibitions in § 3 (b) of the Act are plainly applicable to retail sales. Yet the prohibition of false invoices is contained in the same clause. If we held that Congress, in spite of its desire to protect consumers, withheld from them the benefits of reliable invoices, we would have to read the clauses of § 3 distributively, making only some of them applicable to retail sales. That would be a refashioning of § 3, an undertaking more consonant with the task of a congressional committee than with judicial construction.
Moreover, fur product “labels,” we are advised, are not pieces of eloth sewn into garments but tags which the purchaser is likely to throw away after the purchase. The “invoice” is the only permanent record of the transaction that the retail purchaser has.' Its importance was emphasized by the Commission:
“Inasmuch as the invoice may serve as a documentary link connecting the sale of specific fur. products back through the retailer’s records with advertisements therefor, the application of the invoicing provisions of the Act to transactions between retailers and consumers represents a key implement for effective administration of the Act.”
The inclusion of retail sales slips in invoices has been the consistent administrative construction of the Act. This contemporaneous construction is entitled to great weight (United States v. American Trucking Assns., 310 U. S. 534, 549; Black v. Magnolia Liquor Co., supra; Federal Housing Adm’n v. Darlington, Inc., 358 U. S. 84, 90) even though it was applied in cases settled by consent rather than in litigation.
Finally respondent urges that a retailer’s sale is a local transaction not subject to the exercise by Congress of the commerce power. Misbranding a drug held for sale after shipment in interstate commerce was held to be' within the commerce power in United States v. Sullivan, 332 U. S. 689. That decision and its predecessors sanction what is done here.
■ We conclude that a retail sales slip is an “invoice” within the meaning of the Act and accordingly the'judgment of the Court of Appeals setting aside the part of the cease-and-desist order which requires this retailer to give a proper “invoice” to each purchaser is reversed.
II.
Second, as to false labeling. The Commission, as we have noted, found that respondent had committed numerous violations of three of the six disclosure requirements contained in § .4 (2) of the Act', noting that there was no evidence that it had not complied with the other three disclosure requirements of. § 4 (2). The cease-and-desist order of the Commission was however directed against “misbranding fur products by: 1. Failing to affix labels to fur products showing” each of the six categories of information required by § 4 (2). The Court of'Appeals struck from the order the prohibition with respect to the three categories as to which there was no. evidence of violation.
We do not believe the Commission abused the “wide discretion” that it has in a choice of a remedy “deemed adequate to cope with the unlawful practices” disclosed by the record. Jacob Siegel Co. v. Federal Trade Comm’n, 327 U. S. 608, 611. It is not limited to prohibiting “the illegal practice in the precise form” existing in the past. Federal Trade Comm’n v. Ruberoid Co., 343 U. S. 470, 473. This agency, lite others, may fashion its relief to restrain “other like or related unlawful acts.” Labor Board v. Express Pub. Co., 312 U. S. 426, 436. The practice outlawed by § 4 is “misbranding.” The disclosure required for.-a properly branded garment is specified. These disclosure requirements are so closely interrelated that the Commission might well conclude that a retailer who for example failed to disclose that the fur was ■bleached or dyed might well default when it came to disclosure of the fact that used fur was contained in the garment. One cannot generalize as to the proper scope .of the'sé orders. It depends on the facts of each case and a judgment as to the extent to which a particular violator should be fenced in. Here, as in Sherman Act decrees (Local 167 v. United States, 291 U. S. 293, 299; International Salt Co. v. United States, 332 U. S. 392, 400-401; International Boxing Club v. United States, 358 U. S. 242, 253), the question of the extent to which related-activity should be enjoined is one of kind and degree. We sit only to determine if the trier of facts has exercised an allowable discretion. Where the episodes of misbranding have been so extensive and so substantial in number as they were here, we think it permissible for the Commission to conclude that like and related acts of misbranding should also be enjoined as a prophylactic and preventive measure.
Respondent objects to the wording of the cease-and-desist order saying it suggests that the store has sold garments contrary to the disclosure requirements not found to have been violated here. The Commission bows to'the suggestion that Part A, par. 1 of the cease-and-desist order be rephrased to enjoin “misbranding fur products by failing to -affix labels to fur products showing each element of information required by the Act.” We so order.
On this phase of the case the‘judgment of the Court of Appeals is also reversed, the cease-and-desist order to be rephrased as we- have indicated.
It'is so' ordered.
Section 3 provides in part:
“(a) The introduction, or manufacture for introduction, into commerce, or the sale, advertising or offering for sale in commerce, or the transportation or distribution in commerce, of any fur product which is misbranded or falsely or deceptively advertised or invoiced, within the meaning of this Act or the rules and regulations prescribed under section 8 (b), is unlawful and shall be an unfair method of competition, and an unfair and deceptive act or practice, in commerce under the Federal Trade Commission Act.
“(b) The manufacture for sale, sale, advertising, offering for sale, transportation or distribution, of any fur product which is made in whole or in part of fur which has been shipped and received in commerce, and which is misbranded or falsely or deceptively advertised or invoiced, within the meaning of this Act or the rules and regulations prescribed under section 8 (b), is unlawful and shall be an unfair method of competition, and an unfair and deceptive ac^ or practice, in commerce under the Federal Trade Commission Act.”
Section 4 provides:
“For the purposes of this Act, a fur product shall be considered to be misbranded—
“(1) if it is falsely or deceptively labeled or otherwise falsely or deceptively identified, or if the label contains any .form of misrepresentation or deception, directly or by implication, with respect to such fur product;
“(2) if "there is not affixed to the fur product a label showing in words and figures plainly legible—
“(A) the name or names (as set forth in the Fur Products Name Guide) of the animal or animals that produced the fur, and such qualifying statement as may be required pursuant to section 7 (c) of this Act;
“(B) that the fur product contains or is composed of used fur, when such is the fact;
“(C) that the fur product contains.-or is composed of bleached, dyed, or otherwise.artificially colored fur, when such is the fact;
“ (D) that the fur product is composed in whole- or in substantial .part of paws, tails, bellies, or waste fur, when such is the fact;
“ (E) the name, or other identification issued and registered by the Commission, of one or more of the persons who manufacture such fur product, for introduction into commerce, introduce it into commerce, sell it in commerce, advertise or offer it for sale in commerce, or transport-or distribute it in commerce;
“(F) the name of the country of origin of any imported furs used in the fur product; •
“(3) if the label required by paragraph (2) (A) of this section sets forth the name or names of - any animal or animals other than the name or names provided for in such paragraph.”
This is a register of the names of hair, fleece, and fur-bearing animals which § 7 of the Act requires the Commission to maintain.
Cf. United States v. Hughes, 116 F. 2d 613, 616; Puget Sound Electric R. Co. v. Benson, 253 F. 710, 711; 2 Sutherland, Statutory Construction (3d ed. 1943), §4921.
Note 1, supra.
See Ed Hamilton Furs, Inc., 51 F. T. C. 186. We are advised that since that case, decided in 1954, the Commission has issued 137 complaints charging violations of the Act involving false and deceptive retail invoicing. There are presently outstanding 110 ceaee-ánd-desist orders relating to retail invoicing. In 92 other cases furriers have agreed to discontinue false and deceptive retail invoicing.
See-note 2, supra.
The Commission found' 12 instances of failure to label the product with the correct name of the animal producing the fur, 15 instances of failure to disclose that the product was bleached, dyed or otherwise artificially colored, and' 58 instances of failure .to show the country of origin of imported furs. There were in addition 187 other, violations of the rules of the Commission which .provide additional labeling requirements and standards. See 16 CFR, Pi. 301-. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"Federal Railroad Administration",
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"Federal Reserve System",
"Federal Savings and Loan Insurance Corporation",
"Federal Trade Commission",
"Federal Works Administration, or Administrator",
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"Comptroller General",
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"Department or Secretary of Health and Human Services",
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"National Labor Relations Board, or regional office or officer",
"National Mediation Board",
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"Patent Office, or Commissioner of, or Board of Appeals of",
"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
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"Unidentifiable",
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] | [
56
] |
CHASE BANK USA, N. A. v. McCOY, individually and on behalf of all others similarly situated
No. 09-329.
Argued December 8, 2010
Decided January 24, 2011
Seth P. Waxman argued the cause for petitioner. With him on the briefs were Daniel S.' Volchok, Christopher R. Lipsett, and Noah A. Levine.
Joseph R. Palmore argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting Solicitor General Katyal, Assistant Attorney General West, Deputy Solicitor General Stewart, Acting Deputy Solicitor General Kruger, Michael S. Raab, Matthew M. Collette, and Katherine H. Wheatley.
Gregory A. Beck argued the cause for respondent. With him on the brief were Deepak Gupta and Allison M. Zieve.
Gregory F Taylor filed a brief for the American Bankers Association as amicus curiae urging reversal.
Justice Sotomayor
delivered the opinion of the Court.
As applicable to this case, Regulation Z — promulgated by the Board of Governors of the Federal Reserve System (Board) pursuant to its authority under the Truth in Lending Act (TILA), 82 Stat. 146, 15 U. S. C. § 1601 et seq. — requires that issuers of credit cards provide cardholders with an “[i]nitial disclosure statement” specifying, inter alia, “each periodic rate” associated with the account. 12 CFR § 226.6(a)(2) (2008). The regulation also imposes “[sjubse-quent disclosure requirements,” including notice to cardholders “[w]henever any term required to be disclosed under §226.6 is changed.” § 226.9(c)(1). This case presents the question whether Regulation Z requires an issuer to notify a cardholder of an interest-rate increase instituted pursuant to a provision of the cardholder agreement giving the issuer discretion to increase the rate, up to a stated maximum, in the event of the cardholder’s delinquency or default. We conclude that the version of Regulation Z applicable in this case does not require such notice.
I
A
Congress passed TILA to promote consumers’ “informed use of credit” by requiring “meaningful disclosure of credit terms,” 15 U. S. C. § 1601(a), and granted the Board the authority to issue regulations to achieve TILA’s purposes, § 1604(a). Pursuant to this authority, the Board promulgated Regulation Z, which requires credit card issuers to disclose certain information to consumers. Two provisions of Regulation Z are at issue in this case. The first, 12 CFR §226.6, explains what information credit card issuers are obliged to provide to cardholders in the “[i]nitial disclosure statement,” including “each periodic rate that may be used to compute the finance charge.” §226.6(a)(2). The second, §226.9, imposes upon issuers certain “[sjubsequent disclosure requirements,” including a requirement to provide notice “[wjhenever any term required to be disclosed under §226.6 is changed.” § 226.9(c)(1). As a general matter, notice of a change in terms has to be provided 15 days in advance of the effective date of the change. Ibid. When “a periodic rate or other finance charge is increased because of the consumer’s delinquency or default,” however, notice only need be given “before the effective date of the change.” Ibid. Regulation Z also explains that no notice is required under § 226.9 when the change in terms “results from . . . the consumer’s default or delinquency (other than an increase in the periodic rate or other finance charge).” § 226.9(c)(2).
The official interpretation of Regulation Z (Official Staff Commentary or Commentary) promulgated by the Board explains these requirements further: Section 226.9(e)(l)’s notice-of-change requirement does not apply “if the specific change is set forth initially, such as ... an increase that occurs when the consumer has been under an agreement to maintain a certain balance in a savings account in order to keep a particular rate and the account balance falls below the specified minimum.” 12 CFR pt. 226, Supp. I, Comment 9(c)-1, p. 506 (2008) (hereinafter Comment 9(c)-1). On the other hand, the Commentary explains, “notice must be given if the contract allows the creditor to increase the rate at its discretion but does not include specific terms for an increase (for example, when an increase may occur under the creditor’s contract reservation right to increase the periodic rate).” Ibid. As to the timing requirements, the Commentary states: “[A] notice of change in terms is required, but it may be mailed or delivered as late as the effective date of the change ... [i]f there is an increased periodic rate or any other finance charge attributable to the consumer’s delinquency or default.” Id., Comment 9(c)(1)-3, at 507 (hereinafter Comment 9(c)(1)-3).
At least as early as 2004, the Board began considering revisions to Regulation Z. The new regulations the Board eventually issued do not apply to the present case, but the details of their promulgation provide useful background in considering the parties’ arguments with respect to the version of Regulation Z we address here. In 2004, the Board issued an advance notice of proposed rulemaking announcing its intent to consider revisions. 69 Fed. Reg. 70925 (2004). In so doing, the Board described how it understood the notice requirements to function at that time:
“[A]dvanee notice is not required in all cases. For example, if the interest rate or other finance charge increases due to a consumer’s default or delinquency, notice is required, but need not be given in advance. 12 CFR 226.9(c)(1); comment 9(e)(l)-3. And no change-in-terms notice is required if the creditor specifies in advance the circumstances under which an increase to the finance charge or an annual fee will occur. Comment 9(c)-l. For example, some credit card account agreements permit the card issuer to increase the interest rate if the consumer pays late .... Under Regulation Z, because the circumstances are specified in advance in the account agreement, the creditor need not provide a change-in-terms notice 15 days in advance of the increase; the new rate will appear on the periodic statement for the cycle in which the increase occurs.” Id., at 70931-70932.
The Board asked for public comment on whether these “existing disclosure rules” were “adequate to enable consumers to make timely decisions about how to manage their accounts.” Id., at 70932.
Subsequently, in 2007, the Board published proposed amendments to Regulation Z and the Commentary. 72 Fed. Reg. 32948. One amendment would have required 45 days’ advance written notice when “(i) [a] rate is increased due to the consumer’s delinquency or default; or (ii) [a] rate is increased as a penalty for one or more events specified in the account agreement, such as making a late payment or obtaining an extension of credit that exceeds the credit limit.” Id., at 33058 (proposed 12 CFR § 226.9(g)). The Board explained that, under the amendments, “creditors would no longer be permitted to provide for the immediate application of penalty pricing upon the occurrence of certain events specified in the contract.” 72 Fed. Reg. 33012.
In January 2009, the Board promulgated a final rule implementing many of the proposed changes, scheduled to be effective July 1,2010. 74 Fed. Reg. 5244. Most saliently, the Board included a new provision, § 226.9(g), which requires 45 days’ advance notice of increases in rates due to cardholder delinquency or default, or as a penalty, including penalties for “events specified in the account agreement, such as making a late payment . . . .” 12 CFR § 226.9(g) (2010). In May 2009, Congress enacted the Credit Card Accountability Responsibility and Disclosure Act (Credit CARD Act or Act), 123 Stat. 1734. The Act amended TILA, in relevant part, to require. 45 days’ advance notice of most increases in credit card annual percentage rates. 15 U. S. C. § 1637(i) (2006 ed., Supp. IV). Because the Credit CARD Act’s notice requirements with respect to interest-rate increases largely mirror the requirements in the new version of the regulation, the Board changed the effective date of those requirements to August 20, 2009, to coincide with the statutory schedule. See 74 Fed. Reg. 36077-36079. The transactions giving rise to the dispute at issue in this case, however, arose prior to enactment of the Act and the promulgation of the new regulatory provisions.
B
Respondent James A. McCoy brought this action in the Superior Court of Orange County, California, on behalf of himself and others similarly situated against petitioner Chase Bank USA, N. A.; Chase removed the action to the United States District Court for the Central District of California under 28 U. S. C. § 1441. At the time of the transactions at issue, McCoy was the holder of a credit card issued by Chase. The cardholder agreement between the parties (Agreement) provides, in relevant part, that McCoy is eligible for “Preferred rates,” but that to keep such rates he has to meet certain conditions, including making “at least the required minimum payments when due on [his] Account and on all other loans or accounts with [Chase] and [his] other creditors.” Brief for Respondent 8, n. 2; see also 559 F. 3d 963, 972, n. 1 (CA9 2009) (Cudahy, J., dissenting). If any of the conditions in the Agreement are not met, Chase reserves the right to “change [McCoy’s] interest rate and impose a Non-Preferred rate up to the maximum Non-Preferred rate described in the Pricing Schedule” and to apply any changes “to existing as well as new balances . . . effective with the billing cycle ending on the review date.” Brief for Respondent 8, n. 2.
McCoy’s complaint alleges that Chase increased his interest rate due to his delinquency or default, and applied that increase retroactively. McCoy asserts that the rate increase violates Regulation Z because, pursuant to the Agreement, Chase did not notify him of the increase until after it had taken effect. The District Court dismissed McCoy's complaint, holding that because the increase did not constitute a “change in terms” as contemplated by 12 CFR § 226.9(c), Chase was not required to notify him of the increase before implementing it. See App. to Pet. for Cert. 37a-47a.
A divided panel of the United States Court of Appeals for the Ninth Circuit reversed in relevant part, holding that Regulation Z requires issuers to provide notice of an interest-rate increase prior to its effective date. See 559 F. 3d, at 969. Concluding that the text of Regulation Z is ambiguous and that the agency commentary accompanying the 2004 request for comments and the 2007 proposed amendments favors neither party’s interpretation, the court relied primarily on the Official Staff Commentary; in particular, the court noted that Comment 9(c)-1 requires no notice of a change in terms if the “specific change” at issue is set forth in the initial agreement. See id., at 965-967. The court found, however, that because the Agreement vests Chase with discretion to impose any nonpreferred rate it chooses (up to the specified maximum) upon McCoy’s default, the Agreement “provides McCoy with no basis for predicting in advance what retroactive interest rate Chase will choose to charge him if he defaults.” Id., at 967. Accordingly, the court held that because the Agreement does not alert McCoy to the “specific change” that will occur if he defaults, Chase was obliged to give notice of that change prior to its effective date. Ibid. Relying primarily on the 2004 notice of proposed rulemaking and the 2007 proposed amendments, the dissenting judge concluded that Regulation Z does not require notice of an interest-rate increase in the circumstances of this case. See id., at 972-979 (opinion of Cudahy, J.).
After the Ninth Circuit’s ruling, the United States Court of Appeals for the First Circuit decided the same question in Chase’s favor. See Shaner v. Chase Bank USA, N. A., 587 F. 3d 488 (2009). The First Circuit relied in part on an amicus brief submitted by the Board at the court’s request, in which the agency advanced the same interpretation of Regulation Z that it now does before this Court. Id., at 493. We granted certiorari to resolve this division in authority. 561 U. S. 1005 (2010).
II
In order to decide this ease, we must determine whether an interest-rate increase constitutes a “change in terms” under Regulation Z, when the change is made pursuant to a provision in the cardholder agreement allowing the issuer to increase the rate, up to a stated maximum, in the event of the cardholder’s delinquency or default. Accordingly, this case calls upon us to determine the meaning of a regulation promulgated by the Board under its statutory authority. The parties dispute the proper interpretation of the regulation itself, as well as whether we should accord deference to the Board’s interpretation of its regulation. As explained below, we conclude that the text of the regulation is ambiguous, and that deference is warranted to the interpretation of that text advanced by the Board in its amicus brief.
A
Our analysis begins with the text of Regulation Z in effect at the time this dispute arose. First, § 226.6 (2008) requires an “[i]nitial disclosure statement”:
“The creditor shall disclose to the consumer, in terminology consistent with that to be used on the periodic statement, each of the following items, to the extent applicable:
“(a) Finance charge. The circumstances under which a finance charge will be imposed and an explanation of how it will be determined, as follows:
“(2) A disclosure of each periodic rate that may be used to compute the finance charge, the range of balances to which it is applicable, and the corresponding annual percentage rate. When different periodic rates apply to different types of transactions, the types of transactions to which the periodic rates apply shall also be disclosed.” (Footnotes omitted.)
Second, § 226.9(c) requires certain “[subsequent disclosure requirements”:
“Change in terms — (1) Written notice required. Whenever any term required to be disclosed under §226.6 is changed or the required minimum periodic payment is increased, the creditor shall mail or deliver written notice of the change to each consumer who may be affected. The notice shall be mailed or delivered at least 15 days prior to the effective date of the change.
The 15-day timing requirement does not apply if the change has been agreed to by the consumer, or if a periodic rate or other finance charge is increased because of the consumer’s delinquency or default; the notice shall be given, however, before the effective date of the change.
“(2) Notice not required. No notice under this section is required when the change . . . results from . . . the consumer’s default or delinquency (other than an increase in the periodic rate or other finance charge).”
The question is whether the increase in McCoy’s interest rate constitutes a change to a “term required to be disclosed under §226.6,” requiring a subsequent disclosure under § 226.9(c)(1). One of the initial terms that must be disclosed under § 226.6 is “each periodic rate that may be used to compute the finance charge . . . and the corresponding annual percentage rate.” § 226.6(a)(2). McCoy argues that, because an increase in the interest rate increases the “periodic rate” applicable to his account, such an increase constitutes a change in terms within the meaning of § 226.9(c)(1). As farther support, McCoy points to two provisions in § 226.9(c): first, that notice of an increase in the interest rate must be provided “before the effective date of the change” when the increase is due to “the consumer’s delinquency or default,” § 226.9(c)(1); and second, that no notice is required of a change resulting “from the consumer’s default or delinquency (other than an increase in the periodic rate or other finance charge),” § 226.9(c)(2). Accordingly, because § 226.9(e) includes interest-rate increases due to delinquency or default, McCoy argues that the plain text of the regulation indicates that a change in the periodic rate due to such default is a “change in terms” requiring notice under § 226.9(c)(1).
We recognize that McCoy’s argument has some force; read in isolation, the language quoted above certainly suggests that credit card issuers must provide notice of an interest-rate increase imposed pursuant to cardholder delinquency or default. But McCoy’s analysis begs the key question: whether the increase actually changed a “term” of the Agreement that was “required to be disclosed under § 226.6.” If not, §226.9(c)’s subsequent notice requirement with respect to a “change in terms” does not apply. Chase argues precisely this: The increase did not change a term in the Agreement, but merely implemented one that had been initially disclosed, as required. This interpretation, though not commanded by the text of the regulation, is reasonable. Section 226.6(a)(2) requires initial disclosure of “each periodic rate that may be used to compute the finance charge.” The Agreement itself discloses both the initial rate (preferred rate) and the maximum rate to be imposed in the event of default (nonpreferred rate). See Brief for Respondent 8, n. 2; Brief for Petitioner 13-14. Accordingly, it is plausible to understand the Agreement to initially disclose “each periodic rate” to be applied to the account, and Chase arguably did not “change” those rates as a result of McCoy’s default. Instead, Chase merely implemented the previously disclosed term specifying the nonpreferred rate.
This reading still leaves the question why § 226.9(c)(1) refers to interest-rate increases resulting from delinquency or default if such increases do not constitute a “change in terms.” One reasonable explanation Chase offers is that § 226.9(c)(1) refers to interest-rate increases that were not specifically outlined in the agreement’s initial terms (unlike those in the present Agreement). For example, credit card agreements routinely include a “reservation of rights” provision giving the issuer discretion to change the terms of the contract, often as a means of responding to events that raise doubts.about the cardholder’s creditworthiness. An issuer may exercise this general contract-modification authority and raise the interest rate applicable to the account to address any heightened risk. See Brief for Petitioner 6. In such a case, § 226.9(c)(1) is best read to require that notice must be given prior to the effective date of the increase, because the unilateral increase instituted by the issuer actually changed a term — the interest rate — in a manner not specifically contemplated by the agreement. See Comment 9(c)-l (providing that notice is required if the agreement “does not include specific terms for an increase (for example, when an increase may occur under the creditor’s contract reservation right to increase the periodic rate)”).
In short, Regulation Z is unclear with respect to the crucial interpretive question: whether the interest-rate increase at issue in this case constitutes a “change in terms” requiring notice. We need not decide which party’s interpretation is more persuasive, however; both are plausible, and the text alone does not permit a more definitive reading. Accordingly, we find Regulation Z to be ambiguous as to the question presented, and must therefore look to the Board’s own interpretation of the regulation for guidance in deciding this case. See Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U. S. 261, 278 (2009) (stating that when an agency’s regulations construing a statute “are ambiguous ... we next turn to the agencies’ subsequent interpretation of those regulations” for guidance); Ford Motor Credit Co. v. Milhollin, 444 U. S. 555, 560 (1980) (stating that when the question presented “is not governed by clear expression in the... regulation... it is appropriate to defer to the Federal Reserve Board and staff in determining what resolution of that issue” is appropriate).
B
The Board has made clear in the amicus brief it has submitted to this Court that, in the Board’s view, Chase was not required to give McCoy notice of the interest-rate increase under the version of Regulation Z applicable at the time. Under Auer v. Robbins, 519 U. S. 452 (1997), we defer to an agency’s interpretation of its own regulation, advanced in a legal brief, unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Id., at 461 (internal quotation marks omitted). Because the interpretation the Board presents in its brief is consistent with the regulatory text, we need look no further in deciding this case.
In its brief to this Court, the Board explains that the Ninth Circuit “erred in concluding that, at the time of the transactions at issue in this case, Regulation Z required credit card issuers to provide a change-in-terms notice before implementing a contractual default-rate provision.” See Brief for United States as Amicus Curiae 11; see also ibid. (stating that when a term of an agreement authorized the credit provider “to increase a consumer’s interest rate if the consumer failed to make timely payments . . . any resulting rate increase did not represent a ‘change in terms,’ but rather the implementation of terms already set forth in the initial disclosure statement”); id., at 15-16 (stating that “[w]hen a cardholder agreement identifies a contingency that triggers a rate increase, and the maximum possible rate that the issuer may charge if that contingency occurs,” then “no change-in-terms notice is required” under Regulation Z). Under the principles set forth in Auer, we give deference to this interpretation.
In Auer, we deferred to the Secretary of Labor’s interpretation of his own regulation, presented in an amicus brief submitted by the agency at our invitation. 519 U. S., at 461-462. Responding to the petitioners’ objection that the agency’s interpretation came in a legal brief, we held that this fact did not, “in the circumstances of this case, make it unworthy of deference.” Id., at 462. We observed that “[t]he Secretary’s position is in no sense a ‘post hoc rationalization]’ advanced by an agency seeking to defend past agency action against attack.” Ibid. (quoting Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212 (1988)). We added: “There is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Auer, 519 U. S., at 462.
The brief submitted by the Board in the present case, at our invitation, is no different. As in Auer, there is no reason to believe that the interpretation advanced by the Board is a “post hoc rationalization” taken as a litigation position. The Board is not a party to this case. And as is evident from our discussion of Regulation Z itself, see Part II-A, supra, the Board’s interpretation is neither “plainly erroneous” nor “inconsistent with” the indeterminate text of the regulation. In short, there is no reason to suspect that the position the Board takes in its amicus brief reflects anything other than the agency’s fair and considered judgment as to what the regulation required at the time this dispute arose.
McCoy may well be correct in asserting that it is better policy to oblige credit card issuers to give advance notice of a rate increase; after all, both Congress and the Board have recently indicated that such a requirement is warranted. See Credit CARD Act, § 101(a)(1), 123 Stat. 1735-1736; 12 CFR § 226.9(g) (2009). That Congress and the Board may currently hold such views does not mean, however, that deference is not warranted to the Board’s different understanding of what the pre-2009 version of Regulation Z required. To the contrary, the interpretation the Board advances in its amicus brief is entirely consistent with its past views. The 2004 notice of rulemaking and the 2007 proposed amendments to Regulation Z make clear that, prior to 2009, the Board’s fair and considered judgment was that “no change-in-terms notice is required if the creditor specifies in advance the circumstances under which an increase . . . will occur,” 69 Fed. Reg. 70931, and “immediate application of penalty pricing upon the occurrence of certain events specified in the contract” was permissible, 72 Fed. Reg. 33012.
Under Auer, therefore, it is clear that deference to the interpretation in the Board’s amicus brief is warranted. The cases McCoy cites in which we declined to apply Auer do not suggest that deference is unwarranted here. In Gonzales v. Oregon, 546 U. S. 243 (2006), we declined to defer because — in sharp contrast to the present ease — the regulation in question did “little more than restate the terms of the statute” pursuant to which the regulation was promulgated. Id., at 257. Accordingly, no deference was warranted to an agency interpretation of what were, in fact, Congress’ words. Ibid. In contrast, at the time of the transactions in this case, TILA itself included no requirements with respect to the disclosure of a change in credit terms. In Christensen v. Harris County, 529 U. S. 576 (2000), we declined to apply Auer deference because the regulation in question was unambiguous, and adopting the agency’s contrary interpretation would “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” 529 U. S., at 588. In light of Regulation Z’s ambiguity, there is no such danger here. And our statement in Christensen that “deference is warranted only when the language of the regulation is ambiguous,” ibid., is perfectly consonant with Auer itself; if the text of a regulation is unambiguous, a conflicting agency interpretation advanced in an amicus brief will necessarily be “plainly erroneous or inconsistent with the regulation” in question. Auer, 519 U. S., at 461 (internal quotation marks omitted). Accordingly, under our precedent deference to the Board’s interpretation of its own regulation, as presented in the agency’s amicus brief, is wholly appropriate.
C
McCoy further argues that deference to a legal brief is inappropriate because the interpretation of Regulation Z in the Official Staff Commentary commands a different result. To be sure, the Official Staff Commentary promulgated by the Board as an interpretation of Regulation Z may warrant deference as a general matter. See Anderson Bros. Ford v. Valencia, 452 U. S. 205, 219 (1981) (holding that “the Board’s interpretation of its own regulation” should generally “be accepted by the courts”); Milhollin, 444 U. S., at 565 (“Unless demonstrably irrational, Federal Reserve Board staff opinions construing [TILA] or Regulation [Z] should be disposi-tive”). We find, however, that the Commentary at issue here largely replicates the ambiguity present in the regulatory text, and therefore it offers us nothing to which we can defer with respect to the precise interpretive question before us. Cf. Smith v. City of Jackson, 544 U. S. 228, 248 (2005) (O’Connor, J., concurring in judgment) (noting that deference is not warranted when “there is no reasoned agency reading of the text to which we might defer”).
The Ninth Circuit relied primarily on Comment 9(c)(1)-3, which states in relevant part that “a notice of change in terms is required, but it may be mailed or delivered as late as the effective date of the change . . . [i]f there is an increased periodic rate or any other finance charge attributable to the consumer’s delinquency or default.” This exposition of the regulation does not add any clarity to the regulatory text, which expresses the same requirement. See § 226.9(c)(1) (2008) (“[I]f a periodic rate or other finance charge is increased because of the consumer’s delinquency or default. .. notice shall be given ... before the effective date of the change”). And like § 226.9(c), Comment 9(c) is entitled “Change in terms.” Accordingly, Chase’s plausible interpretation of § 226.9(c)(1) is equally applicable to Comment 9(c)(1) — 3: On Chase’s view, because the interest-rate increase at issue in this case did not constitute a “change in terms,” the disclosure requirements in the regulation and Commentary simply do not come into play. See supra, at 206-207.
Comment 9(c)-1 is also ambiguous, though the most plausible reading supports Chase’s position more than it does McCoy’s. The Comment begins: “No notice of a change in terms need be given if the specific change is set forth initially” in the agreement. We do not find that the Comment’s addition of the modifier “specific” to the word “change” enables us to determine, any more than we could in light of the text of the regulation, see supra, at 207, whether the interest-rate increase at issue in this case was a “change in terms” requiring notice. According to Chase, as long as the agreement explains that delinquency or default might trigger an increased interest rate and states the maximum level to which the rate could be increased, the “specific change” that ensues upon default has been set forth initially and no additional notice is required before implementation. McCoy argues to the contrary: Under Comment 9(c)-1, any new rate imposed after delinquency or default must be disclosed prior to the effective date, if the particular rate (rather than the maximum rate) was not specifically mentioned in the agreement. On the whole, then, the Official Staff Commentary’s explanation of Regulation Z does not resolve the uncertainty in the regulatory text, and offers us no reason to disregard the interpretation advanced in the Board’s amicus brief.
McCoy further contends that our reliance here on an agency interpretation presented outside the four corners of the Official Staff Commentary will require future litigants, as well as the Board, to expend time and resources “to comb through . . . correspondence, publications, and the agency’s website to determine the agency’s position.” Brief for Respondent 37-38. We are not convinced. McCoy may be correct that the Board established the Official Staff Commentary so as to centralize its opinionmaking process and avoid “overburdening the industry with excessive detail and multiple research sources.” 46 Fed. Reg. 50288. But his suggestion that, if we accord deference to an amicus brief, all other “unofficial” sources will be fair game is of no moment. Today we decide only that the amicus brief submitted by the Board is entitled to deference in light of “the circumstances of this case.” Auer, 519 U. S., at 462.
Accordingly, we conclude that, at the time of the transactions at issue in this case, Regulation Z did not require Chase to provide McCoy with a change-in-terms notice before it implemented the Agreement term allowing it to raise his interest rate following delinquency or default.
* * *
For the foregoing reasons, the judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
As discussed more fully below, see infra, at 200-201, in 2009 the Board amended Kegulation Z, such that the provisions discussed in this opinion are no longer in effect. However, because the pre-2009 provisions are the ones applicable to the case before us, we will refer to them in the present tense.
McCoy also asserted various state-law claims that are not before us. We note that McCoy’s complaint provides little detail regarding the transactions at issue in this case. The parties, however, are in agreement as to the essential facts alleged.
The United States Court of Appeals for the Seventh Circuit has also rejected the reasoning of the Ninth Circuit, though on a different question than the one presented in this case. See Swanson v. Bank of America, N. A., 559 F. 3d 653, reh’g denied, 563 F. 3d 634 (2009) (disagreeing with the Ninth Circuit’s interpretation of Regulation Z).
The pricing schedule referred to in the Agreement is not contained in the case record, nor are its contents apparent from the parties' briefs, but neither side disputes that it specified a maximum nonpreferred rate applicable to the Agreement.
We are not persuaded by McCoy’s argument that, although Chase did not change a “contract term” when it raised his interest rate pursuant to the terms of the Agreement, it changed a “credit term,” thereby triggering §226.9(e)’s notice requirement. The relevant text of Regulation Z does not refer to, let alone distinguish between, “contract terms” and “credit terms,” and McCoy’s repeated citations to TILA’s broad policy statement do not convince us that such a distinction is warranted. See 15 U. S. C. § 1601(a) (“It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit”).
The Government offers an alternative example. Assume that the agreement is similar to the one at issue here, with a specified maximum level to which the interest rate can be increased if the cardholder defaults. If default occurs but the issuer raises the rate above the contractual maximum, notice must be given prior to the effective date because the issuer actually changed the term of the contract initially specifying the maximum rate possible. See Brief for United States as Amicus Curiae 14-15.
We note that, in reaching its decision, the Ninth Circuit did not have the benefit of briefing from the Board. The Ninth Circuit apparently did not solicit the views of the Board in the proceedings below, see Brief for Petitioner 16, and the First Circuit did not solicit the Board’s views in Shaner v. Chase Bank USA, N. A., 587 F. 3d 488 (2009), until after the Ninth Circuit issued its opinion in this case, see Order in No. 09-1157 (CA1, Aug. 4, 2009).
This is consistent with the view the Board advanced in its amicus brief to the First Circuit, in which the Board noted that it “has interpreted the applicable provisions of Regulation Z not to require a pre-effective date ehange-in-terms notice for an increase in annual percentage rate when the contingency that will trigger a rate increase and the specific consequences for the consumer’s rate are set forth in the initial card member agreement.” App. to Brief for United States 2a.
We are not persuaded by McCoy’s argument that the Board’s own regulations make the Official Staff Commentary “the exclusive source of authorized staff opinion.” Brief for Respondent 36 (emphasis added). In the regulations McCoy cites the Board has indicated only that the central purpose of the Commentary is to present agency interpretations that, if relied upon, provide the basis for invoking the good-faith defense to liability under TILA. See 15 U. S. C. § 1640(f) (precluding liability for “any act done or omitted in good faith in conformity . . . with any interpretation ... by an official or employee . . . duly authorized by the Board to issue such interpretations . . . under such procedures as the Board may prescribe”); 12 CFR pt. 226, App. C (2008) (“[0]fficial staff interpretations of this regulation ... provide the protection afforded under [§ 1640(f)]”); id., Supp. I, Introduction ¶ 1, p. 451 (same); 46 Fed. Reg. 50288 (1981) (same). McCoy cites no authority indicating that, in promulgating the Commentary and establishing certain statutory safe harbors, the Board intended to limit its ability to issue authoritative interpretations for other purposes.
In concluding otherwise, the Ninth Circuit focused on the examples Comment 9(c)-l provides of changes that, if set forth initially, require no further disclosure when put into effeet:
“No notice of a change in terms need be given if the specific change is set forth initially, such as: Rate increases under a properly disclosed variable-rate plan, a rate increase that occurs when an employee has been under a preferential rate agreement and terminates employment, or an increase that occurs when the consumer has been under an agreement to maintain a certain balance in a savings account in order to keep a particular rate and the account balance falls below the specified minimum.”
The Ninth Circuit concluded that, in contrast to each of these three examples, “the increase here occurs at Chase’s discretion.” 559 F. 3d 963, 966 (2009). That is, once the triggering event — McCoy’s default — oc-eurred, Chase had the latitude to increase the interest rate as it saw fit (up to the limit specified in the Pricing Schedule).
We are not persuaded by the Ninth Circuit’s reasoning. Certainly, under a “variable-rate” plan the interest rate fluctuates according to an external variable easily discernable by the cardholder (like the federal prime rate), and the issuer has no discretion. See ibid. But the Comment’s second and third examples do not appear to be significantly different from this case: The agreement contains a preset rate, but it also provides that, on the occurrence of a predefined event (terminating employment or a low account balance), the rate will increase.
Moreover, Comment 9(c)-l further states that notice is needed “if the contract allows the creditor to increase the rate at its discretion but does not include specific terms for an increase” — for example, “when an increase may occur under the creditor’s contract reservation right to increase the periodic rate.” It would seem that the narrower latitude Chase had under the Agreement to set the precise new rate within a specified range after McCoy defaulted is not the kind of “discretion” the last example of Comment 9(e)-l contemplates. In short, analogizing to the Comment’s examples suggests that Chase’s action in setting a new rate was most likely a “specific change” that the Agreement itself contemplated, and subsequent disclosure was not clearly required. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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53
] |
UNITED STATES v. MORTON SALT CO.
NO. 273.
Argued December 14, 1949.
Decided February 6, 1950.
Philip Elman argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bergson, Curtis C. Shears, J. Roger Wollenberg, W. T. Kelley and Joseph S. Wright.
L. M. McBride argued the cause and filed a brief for respondent in No. 273.
Frederic R. Sanborn argued the cause and filed a brief for respondent in No. 274.
Mr. Justice Jackson
delivered the opinion of the Court.
This is a controversy as to the power of the Federal Trade Commission to require corporations to file reports showing how they have complied with a decree of the Court of Appeals enforcing the Commission’s cease and desist order, in addition to those reports required by the decree itself.
Proceedings under § 5 of the Federal Trade Commission Act culminated in a Commission order requiring respondents Morton Salt Company and International Salt Company, together with eighteen other salt producers and a trade association, to cease and desist from stated practices in connection with the pricing, producing and marketing of salt. The Court of Appeals for the Seventh Circuit affirmed the order with modifications and commanded compliance. 134 F. 2d 354. The decree directed that reports of the manner of compliance be filed with the Commission within ninety days, but it reserved jurisdiction “to enter such further orders herein from time to time as may become necessary effectively to enforce compliance in every respect with this decree and to prevent evasion thereof.” The decree expressly was “without prejudice to the right of the United States, as provided in Section 5 (1) of the Federal Trade Commission Act, to prosecute suits to recover civil penalties for violations of the said modified order to cease and desist hereby affirmed, and without prejudice to the right of the Federal Trade Commission to initiate contempt proceedings for violations of this decree.” The reports of compliance were subsequently filed and accepted, and there the matter appears to have rested for a little upwards of four years.
On September 2, 1947, the Commission ordered additional and highly particularized reports to show continuing compliance with the decree. This was done without application to the court, was not authorized by any provision of its decree, and is not provided for in § 5 of the statute under which the Commission’s original cease and desist order had issued. The new order recited that it was issued on the Commission’s own motion pursuant to its published Rule of Practice No. XXVI and the authority granted by subsections (a) and (b) of § 6 of the Trade Commission Act. It ordered these and other parties restrained by the earlier decree to file within thirty days “additional reports showing in detail the manner and form in which they have been, and are now, complying with said modified order to cease and desist and said decree.” It demanded of each producer a “complete statement” of the “prices, terms, and conditions of sale of salt, together with books or compilations of freight rates used in calculating delivered prices, price lists and price announcements distributed, published or employed in marketing salt from and after January 1, 1944.” From the Salt Producers Association it required information as to its activities and services. The Association and some of the producers reported satisfactorily. These two respondents did not. Instead, each informed the Commission in general terms that it had complied with the decree in the manner previously reported, but that it doubted the Commission’s jurisdiction to require further reports and declined to supply the particulars demanded. Neither asked any hearing or made objection to the scope of the order.
The Commission next gave respondents notices asserting their default and calling attention to penalties provided in § 10 of the Act. Neither respondent asked any hearing on the notice of default. These suits were then commenced in the name of the United States in District Court under §§ 9 and 10 of the Trade Commission Act, asking mandatory injunctions commanding respondents to report as directed, together with judgment against each for $100 per day while default continued. Respondents answered. Both sides moved for summary judgments. The court found no dispute as to material facts and dismissed the complaints for want of jurisdiction. 80 F. Supp. 419. The Court of Appeals, by divided vote, affirmed. 174 F. 2d 703. We granted certiorari, 338 U. S. 857, because the case involved issues of some importance to enforcement of the Act and of court decrees under it and under other Acts which provide similar methods to enforce orders of administrative bodies.
The Government’s suits and the Commission’s order are challenged upon a variety of grounds, not all of which were considered by the Court of Appeals. They include contentions that (1) the order constitutes an interference with the decree and an invasion of the powers of the Court of Appeals; (2) the Commission’s Rule XXVI is ultra vires and violates the Federal Administrative Procedure Act, 60 Stat. 237, 5 U. S. C. §§ 1001 et seq.; (3) the procedure is unauthorized by those sections of the Act on which it is based; (4) it is novel and arbitrary and violates the Fourth and Fifth Amendments to the Constitution. For reasons given, we reject each of these contentions.
I. Invasion of Court of Appeals Jurisdiction.
The respondents’ case and the decision below are rested heavily on this argument that the Commission is invading the province of the judiciary. The Court of Appeals held that the Commission’s order of September 2, 1947, represented an unauthorized attempt to enforce that court’s decree. It pointed out that the statute had made the court’s own jurisdiction of the proceeding “exclusive” and its own decree final. It considered that “every vestige of jurisdiction” over that subject was “firmly and exclusively lodged in [the] Court of Appeals.” It noted that it had required filing of only the original compliance reports, and that it had protected its jurisdiction by reserving power to enter further orders necessary to enforce compliance and prevent evasion. It thought that the effect of the Commission’s proceedings was to assert “such jurisdiction to reside elsewhere.”
It seems conceded, however, that some power or duty, independently of the decree, must still have resided in the Commission. Certainly entry of the court decree did not wholly relieve the Commission of responsibility for its enforcement. The decree recognized that. It left to the Commission the right and hence the responsibility “to initiate contempt proceedings for the violation of this decree.” This must have contemplated that the Commission could obtain accurate information from time to time on which to base a responsible conclusion that there was or was not cause for such a proceeding. The decree also required the original report showing the manner and form of each respondent’s compliance to be filed, not with the court but with the Commission. Presumably the Commission was expected to scrutinize it and, if insufficient on its face, to reject it and move the court to take notice of the default. And the duty likewise was left upon the Commission to move the court if any respondent made a false report. The duty would appear to be the same if a temporary compliance were truly reported but conduct resumed which would violate the decree. In addition, the Trade Commission has a continuing duty to prevent unfair methods of competition and unfair or deceptive acts or practices in commerce. That responsibility as to all within the coverage of the Act is not suspended or exhausted as to any violator whose guilt is once established.
If the Commission had petitioned the court itself to order additional reports of compliance, it could properly have been required to present some evidence of probable violation to overcome the “presumption of legality,” of innocence, and of obedience to the law which respondents here urge. Courts hesitate to alter or supplement their decrees except the need be proved as well as asserted. Evidence the Commission did not have; it had at most a suspicion, or let us say a curiosity as to whether respondents’ reported reformation in business methods was an abiding one.
Must the decree, after a single report of compliance, rest upon respondents’ honor unless evidence of a violation fortuitously comes to the Commission? May not the Commission, in view of its residual duty of enforcement, affirmatively satisfy itself that the decree is being observed? Whether this usurps the courts’ own function is, we think, answered by consideration of the fundamental relationship between the courts and administrative bodies.
The Trade Commission Act is one of several in which Congress, to make its policy effective, has relied upon the initiative of administrative officials and the flexibility of the administrative process. Its agencies are provided with staffs to institute proceedings and to follow up decrees and police their obedience. While that process at times is adversary, it also at times is inquisitorial. These agencies are expected to ascertain when and against whom proceedings should be set in motion and to take the lead in following through to effective results. It is expected that this combination of duty and power always will result in earnest and eager action but it is feared that it may sometimes result in harsh and overzealous action.
To protect against mistaken or arbitrary orders, judicial review is provided. Its function is dispassionate and disinterested adjudication, unmixed with any concern as to the success of either prosecution or defense. Courts are not expected to start wheels moving or to follow up judgments. Courts neither have, nor need, sleuths to dig up evidence, staffs to analyze reports, or personnel to prepare prosecutions for contempts. Indeed, while some situations force the judge to pass on contempt issues which he himself raises, it is to be regretted whenever a court in any sense must become prosecutor. Those occasions should not be needlessly multiplied by denying investigative and prosecutive powers to other lawful agencies.
The court in this case advisedly left it to the Commission to receive the report of compliance and to institute any contempt proceedings. This was in harmony with our system. When the process of adjudication is complete, all judgments are handed over to the litigant or executive officers, such as the sheriff or marshal, to execute. Steps which the litigant or executive department lawfully takes for their enforcement are a vindication rather than a usurpation of the court’s power. In the case before us, it is true that the Commission’s cease and desist order was merged in the court’s decree; but the court neither assumed to itself nor denied to the Commission that agency’s duty to inform itself and protect commerce against continued or renewed unlawful practice.
This case illustrates the difference between the judicial function and the function the Commission is attempting to perform. The respondents argue that since the Commission made no charge of violation either of the decree or the statute, it is engaged in a mere “fishing expedition” to see if it can turn up evidence of guilt. We will assume for the argument that this is so. Courts have often disapproved the employment of the judicial process in such an enterprise. Federal judicial power itself extends only to adjudication of cases and controversies and it is natural that its investigative powers should be jealously confined to these ends. The judicial subpoena power not only is subject to specific constitutional limitations, which also apply to administrative orders, such as those against self-incrimination, unreasonable search and seizure, and due process of law, but also is subject to those limitations inherent in the body that issues them because of the provisions of the Judiciary Article of the Constitution.
We must not disguise the fact that sometimes, especially early in the history of the federal administrative tribunal, the courts were persuaded to engraft judicial limitations upon the administrative process. The courts could not go fishing, and so it followed neither could anyone else. Administrative investigations fell before the colorful and nostalgic slogan “no fishing expeditions.” It must not be forgotten that the administrative process and its agencies are relative newcomers in the field of law and that it has taken and will continue to take experience and trial and error to fit this process into our system of judicature. More recent views have been more tolerant of it than those which underlay many older decisions. Compare Jones v. Securities & Exchange Comm’n, 298 U. S. 1, with United States v. Morgan, 307 U. S. 183, 191.
The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law.
Of course, the Commission cannot intrude upon or usurp the court’s function of adjudication. The decree is always what the court makes it; the court’s jurisdiction to review is and remains exclusive, its judgment final. What the Commission has done, however, is not to modify but to follow up this decree. It has not asked this report in the name of the court, or in reliance upon judicial powers, but in reliance upon its own law-enforcing powers.
That Congress did not regard it as a judicial function to investigate compliance with court decrees, at least initially, is shown by its action as to other antitrust decrees. Section 6 (c) of the Act under consideration specifically authorizes the Commission, on its own initiative and without leave of court, to investigate compliance with final decrees in cases prosecuted by the Attorney General and not involving the Commission as a party. Congress obviously deemed it a function of the Commission, rather than of the courts, to probe compliance with such decrees, even when it had no part in obtaining them. It surely was not because of fear it would involve collision with the judicial function that Congress omitted express authorization for the Commission to follow up decrees in its own cases. Express grant of power would only seem necessary as to decrees in which the Commission had no other interest.
Whether the Commission has invaded any private right of respondents, we consider under later rubrics. Our only concern under the present heading is whether the Commission’s order infringes prerogatives of the court. We hold it does not.
II. Violation op the Administrative Procedure Act.
The Administrative Procedure Act was framed against a background of rapid expansion of the administrative process as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices. It created safeguards even narrower than the constitutional ones, against arbitrary official encroachment on private rights.
Thus § 3 (a) of the Act requires every agency to which it applies, which includes the Federal Trade Commission, to publish in the Federal Register certain statements of its rules, organization and procedure, “including the nature and requirements of all formal or informal procedures available,” and adds that, “No person shall in any manner be required to resort to organization or procedure not so published.” In addition § 6 (b) proscribes any requirement of a report or other investigative demand “in any manner or for any purpose except as authorized by law.”
Principally on the basis of these two sections respondents contend that the current order cannot be enforced except in violation of the Administrative Procedure Act. Have the respondents been ordered to comply with procedure of which they were not put on notice by publication in the Federal Register? And to the extent that the procedure had been defined and published, was it authorized by law?
The pertinent provisions of the Administrative Procedure Act became effective September 11, 1946. On December 11, 1946, the Federal Trade Commission published in the Federal Register its Rules of Practice, 11 Fed. Reg. 14233-14239. The Commission’s Rule XXVI, id., 14237, republished without change in 12 Fed. Reg. 5444, 5448, sets the time limit for filing initial reports of compliance with Commission orders and asserts the Commission’s right to require, within its sound discretion, the filing of further compliance reports thereafter. In § 7.12 of its Statement of Organization, Procedures, and Functions, 12 Fed. Reg. 5450, 5452, the Commission restated its right to require by order “such supplemental reports of compliance as it considers warranted,” and defined the contents of such a report.
We conclude that the Commission’s published Rule XXVI announced the right it claims in this case to demand of a party against whom an enforcement decree has been entered that it “file with the Commission, from time to time thereafter, further reports in writing, setting forth in detail the manner and form in which they are complying with said order . . . .” Taken together with the Commission’s Statement of Organization, Procedures, and Functions, supra, if indeed not by itself, Rule XXVI amply met the requirements of § 3 (a) of the Administrative Procedure Act.
Respondents hardly challenge this conclusion. Theirs is the more subtle argument that requirement of supplemental reports following court enforcement of a Commission order is unauthorized by statute and ultra vires, so that no valid notice of Rule XXVI had been or could be given, as required by § 3 (a) of the Administrative Procedure Act. Also, it is said to be in direct violation of § 6 (b) of that Act. This leads to the question of statutory authority for the order to report, a question we must determine even apart from consideration of the Administrative Procedure Act. Accordingly we turn to the Federal Trade Commission Act itself to see whether it contains statutory authority for the Commission’s Rule XXVI, as well as for its order here sought to be enforced, issued, as it was, pursuant to the procedures proclaimed in that Rule. If we find such statutory authority, we must conclude that the objections under the Administrative Procedure Act are taken in vain.
III. Statutory Authority to Require Reports.
The Court of Appeals found the Commission to be without statutory authority to require additional reports as to compliance. Section 6 of the Federal Trade Commission Act, it thought, could not be invoked in connection with a decree sought and entered pursuant to § 5, which sections the court regarded as insulated from each other and directed to wholly different situations. Section 6, so it was held, authorized requirement only of “special reports” supplemental to “annual reports” and could not be authority for requiring special reports supplemental to a report of compliance required by court decree in a § 5 case.
At the root of this position lies the elaborate and plausible argument of respondents that §§ 5 and 6 of the Act set up self-sufficient, independent and exclusive procedures for dealing with different matters and that therefore neither section can be supported or aided by the other. Respondents also say that the present use of the asserted power is novel and unprecedented in Commission practice and introduces a new method of investigating compliance. Respondents are not without statements by the Commission or its officials, dicta from judicial opinions, views of text writers and facts of legislative history which give some support to this theory. But this Court never before has been called upon to deal consciously and squarely with the subject.
The fact that powers long have been unexercised well may call for close scrutiny as to whether they exist; but if granted, they are not lost by being allowed to lie dormant, any more than nonexistent powers can be prescripted by an unchallenged exercise. We know that unquestioned powers are sometimes unexercised from lack of funds, motives of expediency, or the competition of more immediately important concerns. We find no basis for holding that any power ever granted to the Trade Commission has been forfeited by nonuser.
The Commission’s organic Act, § 5, comprehensively provides substantive and procedural rules for checking unfair methods of competition. The procedure is complete from complaint and service of process through final order, court review, and enforcement proceedings to recover penalties which are not those here sued for. This entire subject of unfair competition, it is true, came into the bill late in its legislative history and dealt with a commercial evil quite different from the target of prior antitrust laws. It is to be noted, however, that although complete otherwise, this section confers no power to investigate this or any other matter. That power, without which all others would be vain, must be found in other sections of the Act. The Commission, for power to investigate compliance with a § 5 order, has turned to § 6, which authorizes it to require certain reports but is not expressly applicable to a § 5 case. Respondents say it might better have turned to § 9, which authorizes it to send investigators to examine their books, copy documents and issue subpoenas, and which is expressly applicable to § 5 proceedings.
Section 6, on which the Commission relies, adds, among other things and with exceptions not material, the power “to investigate from time to time the organization, business, conduct, practices, and management of any corporation engaged in commerce, . . . and its relation to other corporations and to individuals, associations, and partnerships.” It also authorizes the Commission “to require, by general or special orders, corporations engaged in commerce ... to file with the commission in such form as the commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective corporations filing such reports or answers in writing.”
To one informed of no fact apart from this text, it would appear to grant ample power to order the reports here in question. Respondents are in the class subject to inquiry, the call is for what appears to be a special report and the matter to be reported would seem to be as to business conduct and practices about which the Commission is authorized to inquire. But respondents advance several arguments to persuade us that this seemingly comprehensive power is subject to limitations not evident in the text.
Respondents derive from legislative history their contention that Congress divided the duties and powers of the Commission into two separate categories, one in § 6 merely re-enacting the old powers of investigation and publicity in antitrust matters — “essentially a mere continuance of the former powers of the old Bureau of Corporations.” The other was a new unfair-competition power, self-contained and sealed off in § 5. It is argued that the reports set forth in § 6 can be required only “in support of general economic surveys and not in aid of enforcement proceedings under . . . section 5.”
While we find a good deal which would warrant our concluding that § 6 was framed with the pre-existing antitrust laws in mind, and in the expectation that the information procured would be chiefly useful in reports to the President, the Congress, or the Attorney General, we find nothing that would deny its use for any purpose within the duties of the Commission, including a § 5 proceeding. A construction of such an Act that would allow information to be obtained for only a part of a Commission’s functions and would require the Commission to pursue the rest of its duties as if the information did not exist would be unusual, to say the least. The information was such as the Commission was authorized to obtain and we think it could be required for use in determining whether there had been proper compliance with the court’s decree in a § 5 case.
It is argued, however, and the court below has agreed, that the “special report” authorized by statute does not embrace the one here asked as to the method of compliance with the decree. We find nothing in the legislative history that would justify so limiting the meaning of special reports, or holding that the report here asked is not such a one. The very House Committee Report (H. R. Rep. No. 533, 63d Cong., 2d Sess.) which the court below thought sustained respondents’ contention, we read in its context to support the Commission. kSpeaking of what became this section, the Report said, “The commission, under this section, may also require such special reports as it may deem advisable. By this means, if the ordinary data furnished by a corporation in its annual reports does not adequately disclose its organization, financial condition, business practices, or relation to other corporations, there can be obtained by a special report such additional information as the commission may deem necessary.” Id., at p. 4. An annual report of a corporation is a recurrent and relatively standardized affair. The special report was used to enable the Commission to elicit any information beyond the ordinary data of a routine annual report. If the report asked here is not a special report, we would be hard put to define one.
Nor does the fact that § 5 applies to individuals, partnerships, and corporations, while §§ 6 (b) and 10 apply only to corporations, lead us to conclude that the Act must not be read as an integrated whole. The argument that, because the reporting and penalty provisions of the latter extend only to corporations they must not be invoked to implement, as against corporations, a § 5 proceeding which contemplates action against persons and partnerships as well, would have force were there not sound reason for more drastic powers to compel disclosure from corporations than from natural persons. What the former may be compelled to disclose without objection the latter may withhold, or reveal only after exacting the price of immunity from prosecution. Corporations not only have no constitutional immunity from self-incrimination, but the disparity between artificial and natural persons is so significant that differing treatment can rarely be urged as an objection to a particular construction of a statute. Moreover, Congress may have considered that the volume or proportion of unincorporated business or the relatively small size of individually owned enterprises, or even a lesser capacity and disposition to resist made it possible to omit persons from duties and penalties imposed on artificial combinations of capital.
We conclude that the authority of the Commission under § 6 to require special reports of corporations includes special reports of the manner in which they are complying with decrees enforcing § 5 cease and desist orders.
IV. Rights Under Fourth and Fifth Amendments.
The Commission’s order is criticized upon grounds that the order transgresses the Fourth Amendment’s proscription of unreasonable searches and seizures and the Fifth Amendment’s due process of law clause.
It is unnecessary here to examine the question of whether a corporation is entitled to the protection of the Fourth Amendment. Cf. Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186. Although the “right to be let alone—the most comprehensive of rights and the right most valued by civilized men,” Brandeis, J., dissenting in Olmstead v. United States, 277 U. S. 438, 471, at 478, is not confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process, Boyd v. United States, 116 U. S. 616, Hale v. Henkel, 201 U. S. 43, 70, neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret. Hale v. Henkel, supra; United States v. White, 322 U. S. 694.
While they may and should have protection from unlawful demands made in the name of public investigation, cf. Federal Trade Comm’n v. American Tobacco Co., 264 U. S. 298, corporations can claim no equality with individuals in the enjoyment of a right to privacy. Cf. United States v. White, supra. They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced measure of regulation. Cf. Graham v. Brotherhood of Locomotive Firemen, 338 U. S. 232; Steele v. Louisville & Nashville R. Co., 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210; Wickard v. Filburn, 317 U. S. 111, at 129. Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.
Of course a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power. Federal Trade Comm’n v. American Tobacco Co., supra. But it is sufficient if the inquiry is within the authority of the agency, the demand is not tqo indefinite and the information sought is reasonably relevant. “The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.” Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 208. Nothing on the face of the Commission’s order transgressed these bounds.
Nor do we consider whether, for reasons peculiar to these cases not apparent on the face of the orders, these limits are transgressed. Such questions are not presented by the procedure followed by respondents. Before the courts will hold an order seeking information reports to be arbitrarily excessive, they may expect the supplicant to have made reasonable efforts before the Commission itself to obtain reasonable conditions. Neither respondent raised objection to the order’s sweep, nor asked any modification, clarification or interpretation of it. Both challenged, instead, power to issue it. Their position was that the Commission had no more authority to issue a reasonable order than an unreasonable one. That, too, was the defense to this action in the court below.
Of course, there are limits to what, in the name of reports, the Commission may demand. Just what these limits are we do not attempt to define in the abstract. But it is safe to say that they would stop the Commission considerably short of the extravagant example used by one of the respondents of what it fears if we sustain this order — that the Commission may require reports from automobile companies which include filing automobiles. In this case we doubt that we should read the order as respondents ask to require shipment of extensive files or gifts of expensive books. This is not a necessary reading certainly, and other parties to the decree seem to have been able to satisfy its requirements.
If respondents had objected to the terms of the order, they would have presented or at least offered to present evidence concerning any records required and the cost of their books, matters which now rest on mere assertions in their briefs. The Commission would have had opportunity to disclaim any inadvertent excesses or to justify their demands in the record. We think these respondents could have obtained any reasonable modifications necessary, but, if not, at least could have made a record that would convince us of the measure of their grievance rather than ask us to assume it.
It is argued that if we sustain this use of § 6, the power will be unconfined and its arbitrary exercise subject to no judicial review or control, unless and until the Government brings suit, as here, for penalties. The Government, it is said, may delay such action while ruinous penalties accumulate and defendant runs the risk that his defenses will not be sustained. However, we are not prepared to say that courts would be powerless if after an effort to clarify or modify such an order it still is considered to be so arbitrary as to be unlawful and the Government pursues a policy of accumulating penalties while avoiding a judicial test by refusing to bring action to recover them. Since we do not think this record presents the question, we do not undertake to determine whether the Declaratory Judgment Act, the Administrative Procedure Act, or general equitable powers of the courts would afford a remedy if there were shown to be a wrong, or what the consequences would be if no chance is given for a test of reasonable objections to such an order. Cf. Oklahoma Operating Co. v. Love, 252 U. S. 331. It is enough to say that, in upholding this order upon this record, we are not to be understood as holding such orders exempt from judicial examination or as extending a license to exact as reports what would not reasonably be comprehended within that term as used by Congress in the context of this Act.
The judgment accordingly is
Reversed.
Mr. Justice Douglas and Mr. Justice Minton took no part in the consideration or decision of these cases.
The Federal Trade Commission was established, under the Federal Trade Commission Act, 38 Stat. 717, as amended 52 Stat. 111, 1028, 15 U. S. C. §§ 41 et seq., to prevent unfair methods of competition and unfair or deceptive acts or practices in interstate commerce by certain persons, partnerships or corporations. Under § 5 (b) of that Act the Commission is empowered and directed, following suitable hearing and determination, to order that those found guilty of such practices cease and desist therefrom; and under §§ 5 (c) and 5 (d) exclusive jurisdiction to affirm, enforce, modify, or set aside such orders is placed in the appropriate Court of Appeals, whose judgment and decree are final except insofar as they may be subject to review here. Civil penalties for violations of cease and desist orders are provided for, § 5 (l), to be recovered in civil actions brought by the United States. Under §§ 6 (a) and 6 (b) of the Act, the Commission is authorized to compile information concerning, and to investigate, the organization, business, conduct, practices, and management of any corporation within its jurisdiction, and to require any such corporation to file “annual or special, or both annual and special, reports or answers in writing to specific questions,” concerning such information. For the purposes of the Act, the Commission is empowered, in § 9, to examine and copy documentary evidence of any corporation being investigated or proceeded against, and to require attendance of witnesses and production of all such documentary evidence. The same section also gives District Courts jurisdiction to compel compliance with the subpoena as well as other provisions of the Act or any order of the Commission made in pursuance thereof. And, finally, in § 10, it is provided that, “If any corporation required by this Act to file any annual or special report shall fail so to do within the time fixed by the commission for filing the same, and such failure shall continue for thirty days after notice of such default, the corporation shall forfeit to the United States the sum of $100 for each and every day of the continuance of such failure, which forfeiture . . . shall be recoverable in a civil suit in the name of the United States . . . .” The present action was brought to compel the filing of reports ordered by the Commission and for money judgment under § 10 for respondents’ default to do so.
See note 4, infra.
For example, one of the respondents frankly states: “. . .At no time has this respondent attempted to argue that it was immune to investigation by the Federal Trade Commission simply by virtue of the original case having come within the jurisdiction of the Court of Appeals. This respondent assumes that in some manner or other the Commission can, if it chooses, continue to police the compliance of this respondent by appropriate investigatory procedures. Whether or not the appropriate procedure is (a) by petitioning the Court of Appeals for permission to investigate the respondent with a view to possible contempt or Section 5 (1) proceedings, (b) by an assertion of a right of investigation under Section 9, even though it be an investigation supplemental to a Court of Appeals decree, or (c) by an assertion of an alleged inherent right of investigation under Section 5, is a matter of law not at issue in this case, and it represents an issue as to which this respondent at the moment is completely indifferent. . . .”
Ҥ 2.26 Reports showing compliance with orders and with stipulations. (a) In every case where an order to cease and desist is issued by the Commission for the purpose of preventing violations of law and in every instance where the Commission approves and accepts a stipulation in which a party agrees to cease and desist from the unlawful methods, acts or practices involved, the respondents named in such orders and the parties so stipulating shall file with the Commission, within sixty days of the service of such order and within sixty days of the approval of such stipulation, a report, in writing, setting forth in detail the manner and form in which they have complied with said order or with said stipulation; Provided, however, That if within the said sixty (60) day period respondent shall file petition for review in a circuit court of appeals, the time for filing report of compliance will begin to run de novo from the final judicial determination ....
“(b) Within its sound discretion, the Commission may require any respondent upon whom such order has been served and any party entering into such stipulation, to file with the Commission, from time to time thereafter, further reports in writing, setting forth in detail the manner and form in which they are complying with said order or with said stipulation. . . .”
“§ 7.12 Compliance and enforcement, (a) Reports of compliance with orders to cease and desist are required in accordance with the provisions of § 2.26 of the rules of practice. The Commission may by order require such supplemental reports of compliance as it considers warranted. Reports of compliance must consist of a full statement showing the manner and form in which the order has been complied with. Mere statements that the respondent is not violating the order are not acceptable. A factual showing is required sufficient to enable the Commission to appraise the manner and form of compliance.
“(b) After an order to cease and desist issued by the Commission pursuant to the Federal Trade Commission- Act has become final as provided for under section 5 of that act, and the Commission has reason to believe that a respondent has violated such order, it shall certify the facts concerning the violation to the Attorney General, who may institute a suit in one of the District Courts of the United States for the recovery of civil penalties as provided in the act. In proceedings under the Federal Trade Commission Act, where a Circuit Court of Appeals of the United States has by decree commanded obedience to the Commission’s order, enforcement may be accomplished by way of contempt proceedings in the Circuit court. With respect to orders under the various provisions of the Clayton Act, enforcement must be accomplished by way of contempt proceedings. . . .” | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
56
] |
DAYTON BOARD OF EDUCATION et al. v. BRINKMAN et al.
No. 76-539.
Argued April 26, 1977
Decided June 27, 1977
RehNQUist, J., delivered the opinion of the Court, in which BurgeR, C. J., and Stewart, White, BlacemuN, Powell, and SteveNS, JJ., joined. SteveNS, J., filed a concurring opinion, post, p. 421. BrenNAN, J., filed an opinion concurring in the judgment, post, p. 421. Marshall, J., took no part in the consideration or decision of the case.
David C. Greer argued the cause for petitioners. With him on the brief was Leo F. Krebs.
Louis R. Lucas argued the cause for respondents. With him on the brief were Paul R. Dimond, Nathaniel R. Jones, Robert A. Murphy, Norman J. Chachkin, William E. Caldwell, and LRichard Austin.
Briefs of amici curiae urging affirmance were filed by Attorney General Bell, Acting Solicitor General Friedman, Assistant Attorney General Days, Deputy Solicitor General Wallace, Brian K. Landsberg, and Joel L. Selig for the United States, and by Robert Allen Sedler, Joel M. Gora, and E. Richard Larson for the American Civil Liberties Union.
Armistead W. Gilliam, Jr., filed a brief for the Ohio State Board of Education et al. as amici curiae.
Mr. Justice Rehnquist
delivered the opinion of the Court.
This school desegregation action comes to us after five years and two round trips through the lower federal courts. Those protracted proceedings have been devoted to the formulation of a remedy for actions of the Dayton Board of Education found to be in violation of the Equal Protection Clause of the Fourteenth Amendment. In the decision now under review, the Court of Appeals for the Sixth Circuit finally approved a plan involving districtwide racial-distribution requirements, after rejecting two previous, less sweeping orders by the District Court. The plan required, beginning with the 1976-1977 school year, that the racial distribution of each school in the district be brought within 15% of the 48%-52% black-white population ratio of Dayton. As finally formulated, the plan employed a variety of desegregation techniques, including the “pairing” of schools, the redefinition of attendance zones, and a variety of centralized special programs and “magnet schools.” We granted certiorari, 429 U. S. 1060 (1977), to consider the propriety of this court-ordered remedy in light of the constitutional violations which were found by the courts below.
Whatever public notice this case has received as it wended its way from the United States District Court for the Southern District of Ohio to this Court has been due to the fact that it represented an effort by minority plaintiffs to obtain relief from alleged unconstitutional segregation of the Dayton public schools said to have resulted from actions by the petitioner School Board. While we would by no means discount the importance of this aspect of the case, we think that the case is every bit as important for the issues it raises as to the proper allocation of functions between the district courts and the courts of appeals within the federal judicial system.
Indeed, the importance of the judicial administration aspects of the case are heightened by the presence of the substantive issues on which it turns. The proper observance of the division of functions between the federal trial courts and the federal appellate courts is important in every case. It is especially important in a case such as this where the District Court for the Southern District of Ohio was not simply asked to render judgment in accordance with the law of Ohio in favor of one private party against another; it was asked by the plaintiffs, parents of students in the public school system of a large city, to restructure the administration of that system.
There is no doubt that federal courts have authority to grant appropriate relief of this sort when constitutional violations on the part of school officials are proved. Keyes v. School District No. 1, Denver, Colo., 413 U. S. 189 (1973); Wright v. Council of City of Emporia, 407 U. S. 451 (1972); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971). But our cases have just as firmly recognized that local autonomy of school districts is a vital national tradition. Milliken v. Bradley, 418 U. S. 717, 741-742 (1974); San Antonio School District v. Rodriguez, 411 U. S. 1, 50 (1973); Wright v. Council of City of Emporia, supra, at 469. It is for this reason that the case for displacement of the local authorities by a federal court in a school desegregation case must be satisfactorily established by factual proof and justified by a reasoned statement of legal principles. Cf. Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976).
The lawsuit was begun in April 1972, and the District Court filed its original decision on February 7, 1973. The District Court first surveyed the past conduct of affairs by the Dayton School Board, and found “isolated but repeated instances of failure by the Dayton School Board to meet the standards of the Ohio law mandating an integrated school system.” It cited instances of physical segregation in the schools during the early decades of this century, but concluded that “[b]oth by reason of the substantial time that [had] elapsed and because these practices have ceased, . . . the foregoing will not necessarily be deemed to be evidence of a continuing segrega-tive policy.”
The District Court also found that as recently as the 1950’s, faculty hiring had not been on a racially neutral basis, but that “[b]y 1963, under a policy designated as one of 'dynamic gradualism,’ at least one black teacher had been assigned to all eleven high schools and to 35 of the 66 schools in the entire system.” It further found that by 1969 each school in the Dayton system had an integrated teaching staff consisting of at least one black faculty member. The court’s conclusion with respect to faculty hiring was that pursuant to a 1971 agreement with the Department of Health, Education, and Welfare, “the teaching staff of the Dayton public schools became and still remains substantially intégrated.”
The District Court noted that Dunbar High School had been established in 1933 as a black high school, taught by black teachers and attended by black pupils. At the time of its creation there were no attendance zones in Dayton and students were permitted liberal transfers, so that attendance at Dunbar was voluntary. The court found that Dunbar continued to exist as a citywide all-black high school until it closed in 1962.
Turning to more recent operations of the Dayton public schools, the District Court found that the “great majority” of the 66 schools were imbalanced and that, with one exception, the Dayton School Board had made no affirmative effort to achieve racial balance within those schools. But the court stated that there was no evidence of racial discrimination in the establishment or alteration of attendance boundaries or in the site selection and construction of new schools and school additions. It considered the use of optional attendance zones within the district, and concluded that in the majority of cases the “optional zones had no racial significance at the time of their creation.” It made a somewhat ambiguous finding as to the effect of some of the zones in the past, and concluded that although none of the optional elementary school attendance zones today “have any significant potential effects in terms of increased racial separation,” the same cannot be said of the optional high school zones. Two zones in particular, “those between Roosevelt and Colonel White and between Kiser and Colonel White, are by far the largest in the system and have had the most demonstrable racial effects in the past.”
The court found no evidence that the district’s “freedom of enrollment” policy had “been unfairly operated or that black students [had] been denied transfers because of their race.” Finally the court considered action by a newly elected Board on January 3, 1972, rescinding resolutions, passed by the previous Board, which had acknowledged a role played by the Board in the creation of segregative racial patterns and had called for various types of remedial measures. The District Court’s ultimate conclusion was that the “racially imbalanced schools, optional attendance zones, and recent Board action ... are cumulatively in violation of the Equal Protection Clause.”
The District Court’s use of the phrase “cumulative violation” is unfortunately not free from ambiguity. Treated most favorably to the respondents, it may be said to represent the District Court’s opinion that there were three separate although relatively isolated instances of unconstitutional action on the part of petitioners. Treated most favorably to the petitioners, however, they must be viewed in quite a different light. The finding that the pupil population in the various Dayton schools is not homogeneous, standing by itself, is not a violation of the Fourteenth Amendment in the absence of a showing that this condition resulted from intentionally segregative actions on the part of the Board. Washington v. Davis, 426 U. S. 229, 239 (1976). The District Court’s finding as to the effect of the optional attendance zones for the three Dayton high schools, assuming that it was a violation under the standards of Washington v. Davis, supra, appears to be so only with respect to high school districting. Swann, 402 U. S., at 15. The District Court’s conclusion that the Board’s rescission of previously adopted School Board resolutions was itself a constitutional violation is also of questionable validity.
The Board had not acted to undo operative regulations affecting the assignment of pupils or other aspects of the management of school affairs, cf. Reitman v. Mulkey, 387 U. S. 369 (1967), but simply repudiated a resolution of a predecessor Board stating that it recognized its own fault in not taking affirmative action at an earlier date. We agree with the Court of Appeals’ treatment of this action, wherein that court said:
“The question of whether a rescission of previous Board action is in and of itself a violation of appellants’ constitutional rights is inextricably bound up with the question of whether the Board was under a constitutional duty to take the action which it initially took. Cf. Hunter v. Erickson, 393 U. S. 385 . . . (1969); Gomillion v. Lightfoot, 364 U. S. 339 . . . (1960). If the Board was not under such a duty, then the rescission of the initial action in and of itself cannot be a constitutional violation. If the Board was under such a duty, then the rescission becomes a part of the cumulative violation, and it is not necessary to ascertain whether the rescission ipso facto is an independent violation of the Constitution.” Brinkman v. Gilligan, 503 F. 2d 684, 697 (1974).
Judged most favorably to the petitioners, then, the District Court’s findings of constitutional violations did not, under our cases, suffice to justify the remedy imposed. Nor is light cast upon the District Court’s finding by its repeated use of the phrase “cumulative violation.” We realize, of course, that the task of factfinding in a case such as this is a good deal more difficult than is typically the case in a more orthodox lawsuit. Findings as to the motivations of multimembered public bodies are of necessity difficult, cf. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977), and the question of whether demographic changes resulting in racial concentration occurred from purely neutral public actions or were instead the intended result of actions which appeared neutral on their face but were in fact invidiously discriminatory is not an easy one to resolve.
We think it accurate to say that the District Court’s formulation of a remedy on the basis of the three-part “cumulative violation” was certainly not based on an unduly cautious understanding of its authority in such a situation. The remedy which it originally propounded in light of these findings of fact included requirements that optional attendance zones be eliminated, and that faculty assignment practices and hiring policies with respect to classified personnel be tailored to achieve representative racial distribution in all schools. The one portion of the remedial plan submitted by the School Board which the District Court refused to accept without change was that which dealt with so-called “freedom of enrollment priorities.” The court ordered that, as applied to high schools, new students at each school be chosen at random from those wishing to attend. The Board was required to furnish transportation for all students who chose to attend a high school outside the attendance area of their residence.
Both the plaintiffs and the defendant School Board appealed the order of the District Court to the United States Court of Appeals for the Sixth Circuit. Brinkman v. Gilligan, supra. That court considered at somewhat greater length than had the District Court both the historical instances of alleged racial discrimination by the Dayton School Board and the circumstances surrounding the adoption of the Board’s resolutions and the subsequent rescission of those resolutions. This consideration was in a purely descriptive vein: no findings of fact made by the District Court were reversed as having been clearly erroneous, and the Court of Appeals engaged in no factfinding of its own based on evidence adduced before the District Court. The Court of Appeals then focused on the District Court’s finding of a three-part “cumulative” constitutional violation consisting of racially imbalanced schools, optional attendance zones, and the rescission of the Board resolutions. It found these to be “amply supported by the evidence.”
Plaintiffs in the District Court, respondents here, had cross-appealed from the order of the District Court, contending that the District Court had erred in failing to make further findings tending to show segregative actions on the part of the Dayton School Board, but the Court of Appeals found it unnecessary to pass on these contentions. The Court of Appeals also stated that it was unnecessary to “pass on the question of whether the rescission [of the Board resolutions] by itself was a violation of” constitutional rights. It did discuss at length what it described as “serious questions” as to whether Board conduct relating to staff assignment, school construction, grade structure and reorganization, and transfers and transportation, should have been included within the “cumulative violation” found by the District Court. But it did no more than discuss these questions; it neither upset the factual findings of the District Court nor reversed the District Court’s conclusions of law.
Thus, the Court of Appeals, over and above its historical discussion of the Dayton school situation, dealt with and upheld only the three-part “cumulative violation” found by the District Court. But it nonetheless reversed the District Court’s approval of the School Board plan as modified by the District Court, because the Court of Appeals concluded that “the remedy ordered ... is inadequate, considering the scope of the cumulative violations.” While it did not discuss the specifics of any plan to be adopted on remand, it repeated the admonition that the court’s duty is to eliminate “all vestiges of state-imposed school segregation.” Keyes, 413 U. S., at 202; Swann, 402 U. S., at 15.
Viewing the findings of the District Court as to the three-part “cumulative violation” in the strongest light for the respondents, the Court of Appeals simply had no warrant in our cases for imposing the systemwide remedy which it apparently did. There had been no showing that such a remedy was necessary to “eliminate all vestiges of the state-imposed school segregation.” It is clear from the findings of the District Court that Dayton is a racially mixed community, and that many of its schools are either predominantly white or predominantly black. This fact without more, of course, does not offend the Constitution. Spencer v. Kugler, 404 U. S. 1027 (1972); Swann, supra, at 24. The Court of Appeals seems to have viewed the present structure of the Dayton school system as a sort of “fruit of the poisonous tree,” since some of the racial imbalance that presently obtains may have resulted in some part from the three instances of seg-regative action found by the District Court. But instead of tailoring a remedy commensurate to the three specific violations, the Court of Appeals imposed a systemwide remedy going beyond their scope.
On appeal, the task of a court of appeals is defined with relative clarity; it is confined by law and precedent, just as are those of the district courts and of this Court. If it concludes that the findings of the district court are clearly erroneous, it may set them aside under Fed. Rule Civ. Proc. 52 (a). If it decides that the district court has misapprehended the law, it may accept that court’s findings of fact but reverse its judgment because of legal errors. Here, however, as we conceive the situation, the Court of Appeals did neither. It was vaguely dissatisfied with the limited character of the remedy which the District Court had afforded plaintiffs, and proceeded to institute a far more sweeping one of its own, without in any way upsetting the District Court’s findings of fact or reversing its conclusions of law.
The Court of Appeals did not actually specify a remedy, but did, in increasingly strong language in subsequent opinions, require that any plan eliminate systemwide patterns of one-race schools predominant in the district. Brinkman v. Gilligan, 518 F. 2d 853, 855 (1975). In the face of this commandment, the District Court, after twice being reversed, observed:
“This court now reaches the reluctant conclusion that there exists no feasible method of complying with the mandate of the United States Court of Appeals for the Sixth Circuit without the transportation of a substantial number of students in the Dayton school system. Based upon the plans of both the plaintiff and defendant the assumption must be that the transportation of approximately 15,000 students on a regular and permanent basis will be required.”
We think that the District Court would have been insensitive indeed to the nuances of the repeated reversals of its orders by the Court of Appeals had it not reached this conclusion. In effect, the Court of Appeals imposed a remedy which we think is entirely out of proportion to the constitutional violations found by the District Court, taking those findings of violations in the light most favorable to respondents.
This is not to say that the last word has been spoken as to the correctness of the District Court’s findings as to unconstitutionally segregative actions on the part of the petitioners. As we have noted, respondents appealed from the initial decision and order of the District Court, asserting that additional violations should have been found by that court. The Court of Appeals found it unnecessary to pass upon the respondents’ contentions in its first decision, and respondents have not cross-petitioned for certiorari in this Court from the decision of the Court of Appeals. Nonetheless, they are entitled under our precedents to urge any grounds which would lend support to the judgment below, and we think that their contentions of unconstitutionally segregative actions, in addition to those found as fact by the District Court, fall into this category. In view of the confusion at various stages in this case, evident from the opinions both of the Court of Appeals and the District Court, as to the applicable principles and appropriate relief, the case must be remanded to the District Court for the making of more specific findings and, if necessary, the taking of additional evidence.
If the only deficiency in the record before us were the failure of the Court of Appeals to pass on respondents’ assignments of error respecting the initial rulings of the District Court, it would be appropriate to remand the case. But we think it evident that supplementation of the record will be necessary. Apart from what has been said above with respect to the use of the ambiguous phrase “cumulative violation” by both courts, the disparity between the evidence of constitutional violations and the sweeping remedy finally decreed requires supplementation of the record and additional findings addressed specifically to the scope of the remedy. It is clear that the presently mandated remedy cannot stand upon the basis of the violations found by the District Court.
The District Court, in the first instance, subject to review by the Court of Appeals, must make new findings and conclusions as to violations in the light of this opinion, Washington v. Davis, 426 U. S. 229 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977). It must then fashion a remedy in the light of the rule laid down in Swann, and elaborated upon in Hills v. Gautreaux, 425 U. S. 284 (1976). The power of the federal courts to restructure the operation of local and state governmental entities “is not plenary. It ‘may be exercised “only on the basis of a constitutional violation.” ’ [Milliken v. Bradley], 418 U. S., at 738, quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 16. See Rizzo v. Goode, 423 U. S. 362, 377. Once a constitutional violation is found, a federal court is required to tailor ‘the scope of the remedy’ to fit ‘the nature and extent of the constitutional violation.’ 418 U. S., at 744; Swann, supra, at 16.” Id., at 293-294. See also Austin Independent School Dist. v. United States, 429 U. S. 990, 991 (1976) (Powell, J., concurring).
The duty of both the District Court and the Court of Appeals in a case such as this, where mandatory segregation by law of the races in the schools has long since' ceased, is to first determine whether there was any action in the conduct of the business of the School Board which are intended to, and did in fact, discriminate against minority pupils, teachers, or staff. Washington v. Davis, supra. All parties should be free to introduce such additional testimony and other evidence as the District Court may deem appropriate. If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy. Keyes, 413 U. S., at 213.
We realize that this is a difficult task, and that it is much easier for a reviewing court to fault ambiguous phrases such as “cumulative violation” than it is for the finder of fact to make the complex factual determinations in the first instance. Nonetheless, that is what the Constitution and our cases call for, and that is what must be done in this case.
While we have found that the plan implicitly, if not explicitly, imposed by the Court of Appeals was erroneous on the present state of the record, it is undisputed that it has been in effect in the Dayton school system during the present year without creating serious problems. While a school board and a school constituency which attempt to comply with a plan to the best of their ability should not be penalized, we think that the plan finally adopted by the District Court should remain in effect for the coming school year subject to such further orders of the District Court as it may find warranted following the hearings mandated by this opinion.
The judgment of the Court of Appeals is vacated, and the cause is remanded for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Marshall took no part in the consideration or decision of this case.
This action was filed on April 17, 1972, by parents of black children attending schools operated by the defendant Dayton Board of Education. After an expedited hearing between November 13 and December 1, 1972, the District Court for the Southern District of Ohio, on February 7, 1973, rendered findings of fact and conclusions of law directing the formulation of a desegregation plan. App. 1. On July 13, 1973, that court approved, with certain modifications, a plan proposed by the School Board. On appeal to the Court of Appeals for the Sixth Circuit, that court affirmed the findings of fact but reversed and remanded as to the proposed remedial plan. Brinkman v. Gilligan, 503 F. 2d 684 (CA6 1974).
The District Court then ordered the submission of new plans by the Board and by any other interested parties. App. 70. On March 10, 1975, it rejected a plan proposed by the plaintiffs, and, with some modifications, approved the Board's plan as modified and expanded in an effort to comply with the Court of Appeals mandate. Id., at 73. On appeal, the Court of Appeals again reversed as to remedy and directed that the District Court “adopt a system-wide plan for the 1976-1977 school year . . . .” Brinkman v. Gilligan, 518 F. 2d 853 (1975).
Upon this second remand, the District Court, on December 29, 1975, ordered formulation of the plan whose terms are developed below. App. 99. On March 25, 1976, the details of the plan were approved by the District Court. Id., at 114. In the decision now under review, the Court of Appeals affirmed. Brinkman v. Gilligan, 539 F. 2d 1084 (1976).
The District Court said that it would deal on a case-by-case basis with failures to bring individual schools into compliance with this requirement. It also ordered that students already enrolled in the 10th and 11th grades be allowed to finish in their present high schools, and announced the following “guidelines” to be followed “whenever possible” in the case of elementary school students:
“1. Students may attend neighborhood walk-in schools in those neighborhoods where the schools already have the approved ratio ;
“2. Students should be transported to the nearest available school;
“3. No student should be transported for a period of time exceeding twenty (20) minutes, or two (2) miles, whichever is shorter.” App. 104.
“Pairing” is the designation of two Or more schools with contrasting racial composition for an exchange program where a large proportion of the students in each school attend the paired school for some period. In the plan adopted, by the District Court, it was the primary remedy used in the ease of elementary schools.
The court pointed out that since 1888 Ohio law as construed by the Ohio Supreme Court has forbidden separate public schools for black and white children. See Ohio Rev. Code Ann. §3313.48 (1972); Board of Education v. State, 45 Ohio St. 555, 16 N. E. 373 (1888).
“Such instances include a physical segregation into separate buddings of pupils and teachers by race at the Garfield School in the early 1920’s, a denial to blacks of access to swimming pools in high schools in the 1930’s and 1940’s and the exclusion, between 1938 and 1948, of black high school teams from the city athletic conference.” App. 2-3 (footnote omitted).
The court also considered employment of nonteaching personnel, and observed that blacks made up a proportion of the nonteaching, nonadministrative personnel equal to the proportion of black students in the district, though in certain occupations they were represented at a substantially lower rate.
The court noted that a concerted effort had been made in the past few years to enroll more black students at the Patterson Co-op High School.
An optional zone is an area between two attendance zones, the student residents of which are free to choose which of the two schools they wish to attend.
The District Court found that three optional high school zones “may have” had racial significance at the time of their creation.
The following information about those zones is contained in an appendix to the District Court opinion:
% black population High Schools Date of creation At date of creation 1972-73
Roosevelt/ . 1951 31.5 100.0
Colonel White (extended 1958) 0.0 54.6
Kiser/ . 1962 2.7 9.8
Colonel White 1-1 54.6
The District Court’s first plan also contained the following provisions:
(V) Establishment of four citywide elementary science centers the enrollment of which would approximate the existing black-white ratio of students in the system;
(VI) Combination of two high schools into a unified cooperative school with districtwide attendance areas;
(VII) Formation of elementary and high, school all-city bands, orchestras, and choruses;
(VIII) Provisions for scheduling of integrated athletics;
(IX) Establishment of a minority language program for education of staff;
(X) Utilization of the Living Arts Center for inter-racial experiences in art, creative writing, dance, and drama;
(XI) Creation of centers for rumor control, school guidance, and area learning. See App. 35-36.
The court thus eliminated a provision within the Board plan which gave first priority to students residing within the school’s attendance zone. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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116
] |
MEESE, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. KEENE
No. 85-1180.
Argued December 2, 1986
Decided April 28, 1987
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Powell, and O’Connor, JJ., joined. Blackmun, J., filed an opinion dissenting in part, in which BRENNAN and Marshall, JJ., joined, post, p. 485. Scalia, J., took no part in the consideration or decision of the case.
Deputy Solicitor General Ayer argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Paul J. Larkin, Jr., and Leonard Schaitman.
John G. Donhoff, Jr., argued the cause for respondent. With him on the brief was Stephen R. Barnett
Daniel J. Popeo and George C. Smith filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Daniel Marcus, Susan W. Shaffer, Charles S. Sims, Robert Abrams, Attorney General of New York, 0. Peter Sherwood, Solicitor General, Lawrence S. Kahn, Deputy Solicitor General, and Sanford M. Cohen, Assistant Attorney General; for the Freedom to Read Foundation by Robert Steven Chapman; and for Playboy Enterprises, Inc., et al by Bruce J. Ennis, Jr., Burton Joseph, and Maxwell J. Lillienstein.
Justice Stevens
delivered the opinion of the Court.
The Foreign Agents Registration Act of 1938, 52 Stat. 631-633, as amended in 1942 and 1966, 22 U. S. C. §§ 611-621 (Act), uses the term “political propaganda,” as defined in the Act, to identify those expressive materials that must comply with the Act’s registration, filing, and disclosure requirements. The constitutionality of those underlying requirements and the validity of the characteristics used to define the regulated category of expressive materials are not at issue in this case. The District Court concluded, however, that Congress violated the First Amendment by using the term “political propaganda” as the statutory name for the regulated category of expression.
Appellee, an attorney and a member of the California State Senate, does not want the Department of Justice and the public to regard him as the disseminator of foreign political propaganda, but wishes to exhibit three Canadian motion picture films that have been so identified. The films, distributed by the NFBC, deal with the subjects of nuclear war and acid rain. Appellee brought suit in the Federal District Court for the Eastern District of California on March 24, 1983, to enjoin the application of the Act to these three films. On May 23, 1983, the District Court denied appellants’ motion to dismiss and granted appellee’s motion for a preliminary injunction. The injunction prohibited appellants from designating the films as “political propaganda” and from subjecting them to the labeling and reporting requirements of the Act. The court issued findings of fact and conclusions of law on September 7, 1983. Keene v. Smith, 569 F. Supp. 1513. The court held that the risk of damage to Keene’s reputation established his standing to challenge the constitutionality of the statute’s use of the term “propaganda,” and that appellee had established his entitlement to a preliminary injunction.
On September 12, 1985, the District Court granted summary judgment for appellee and a permanent injunction against enforcement of any portion of the Act which incorporates the term “political propaganda.” 619 F. Supp. 1111. The District Court opined that the term “propaganda” is a semantically slanted word of reprobation; that the use of such a denigrating term renders the regulated materials unavailable to American citizens who wish to use them as a means of personal expression; and that since there was no compelling state interest to justify the use of such a pejorative label, it was an unnecessary, and therefore invalid, abridgment of speech. The court amended its judgment on October 29,1985, limiting the permanent injunction against enforcement of the Act to the three films at issue in this case.
We noted probable jurisdiction of the Attorney General’s appeal under 28 U. S. C. § 1252, 475 U. S. 1117 (1986), and we now reverse.
Before we discuss the District Court’s holding on the First Amendment issue, we briefly describe the statutory scheme and determine that appellee has standing to challenge the Act.
I
The statute itself explains the basic purpose of the regulatory scheme. It was enacted:
“[T]o protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.” 56 Stat. 248-249.
See Viereck v. United States, 318 U. S. 236, 244 (1943).
The Act requires all agents of foreign principals to file detailed registration statements, describing the nature of their business and their political activities. The registration requirement is comprehensive, applying equally to agents of friendly, neutral, and unfriendly governments. Thus, the New York office of the NFBC has been registered as a foreign agent since 1947 because it is an agency of the Canadian government. The statute classifies the three films produced by the Film Board as “political propaganda” because they contain political material intended to influence the foreign policies of the United States, or may reasonably be adapted to be so used.
When the agent of a foreign principal disseminates any “political propaganda,” §611(j), in the United States mails or in the channels of interstate commerce, he or she must also provide the Attorney General with a copy of the material and with a report describing the extent of the dissemination. In addition, he or she must provide the recipient of the material with a disclosure statement on a form prescribed by the Attorney General. When an agent seeks to disseminate such political advocacy material, he or she must first label that material with certain information, the agent’s identity, and the identity of the principal for whom he or she acts. The standard form to be used with films reads as follows:
“This material is prepared, edited, issued or circulated by (name and address of registrant) which is registered with the Department of Justice, Washington, D. C. under the Foreign Agents Registration Act as an agent of (name and address of foreign principal). Dissemination reports on this film are filed with the Department of Justice where the required registration statement is available for public inspection. Registration does not indicate approval of the contents of this material by the United States Government.” App. 16, 59.
It should be noted that the term “political propaganda” does not appear on the form.
The statutory definition of that term reads as follows:
“(j) The term ‘political propaganda’ includes any oral, visual, graphic, written, pictorial, or other communication or expression by any person (1) which is reasonably adapted to, or which the person disseminating the same believes will, or which he intends to, prevail upon, indoctrinate, convert, induce, or in any other way influence a recipient or any section of the public within the United States with reference to the political or public interests, policies, or relations of a government or a foreign country or a foreign political party or with reference to the foreign policies of the United States or promote in the United States racial, religious, or social dissensions, or (2) which advocates, advises, instigates, or promotes any racial, social, political, or religious disorder, civil riot, or other conflict involving the use of force or violence in any other American republic or the overthrow of any government or political subdivision of any other American republic by any means involving the use of force or violence.” §611(j).
I — I I — I
In determining whether a litigant has standing to challenge governmental action as a violation of the First Amendment, we have required that the litigant demonstrate “a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U. S. 1, 14 (1972). In Laird, the plaintiffs alleged that the intelligence-gathering operations of the United States Army “chilled” the exercise of their First Amendment rights because they feared that the defendants might, in the future, make unlawful use of the data gathered. We found that plaintiffs lacked standing; the Army’s intelligence-gathering system did not threaten any cognizable interest of the plaintiffs. While the governmental action need not have a direct effect on the exercise of First Amendment rights, we held, it must have caused or must threaten to cause a direct injury to the plaintiffs. Id., at 12-13. The injury must be “‘distinct and palpable.’” Allen v. Wright, 468 U. S. 737, 751 (1984) (citations omitted).
Appellee’s allegations and affidavits establish that his situation fits squarely within these guidelines. To be sure, the identification as “political propaganda” of the three films Keene is interested in showing does not have a direct effect on the exercise of his First Amendment rights; it does not prevent him from obtaining or exhibiting the films. As the District Court recognized, however, “[w]hether the statute in fact constitutes an abridgement of the plaintiff’s freedom of speech is, of course, irrelevant to the standing analysis.” 619 F. Supp., at 1118. While Keene did not and could not allege that he was unable to receive or exhibit the films at all, he relies on the circumstance that he wished to exhibit the three films, but was “deterred from exhibiting the films by a statutory characterization of the films as ‘political propaganda.’” 569 F. Supp., at 1515. If Keene had merely alleged that the appellation deterred him by exercising a chilling effect on the exercise of his First Amendment rights, he would not have standing to seek its invalidation. See Laird, supra, at 13-14.
We find, however, that appellee has alleged and demonstrated more than a “subjective chill”; he establishes that the term “political propaganda” threatens to cause him cognizable injury. He stated that “if he were to exhibit the films while they bore such characterization, his personal, political, and professional reputation would suffer and his ability to obtain re-election and to practice his profession would be impaired.” 569 F. Supp., at 1515. In support of this claim, appellee submitted detailed affidavits, including one describing the results of an opinion poll and another containing the views of an experienced political analyst, supporting the conclusion that his exhibition of films that have been classified as “political propaganda” by the Department of Justice would substantially harm his chances for reelection and would adversely affect his reputation in the community. The affidavits were uncontradicted.
In ruling on the motion for summary judgment, the District Court correctly determined that the affidavits supported the conclusion that appellee could not exhibit the films without incurring a risk of injury to his reputation and of an impairment of his political career. The court found that the Act “puts the plaintiff to the Hobson’s choice of foregoing the use of the three Canadian films for the exposition of his own views or suffering an injury to his reputation.” 619 F. Supp., at 1120. While appellee does not allege that the Act reduces the number of people who will attend his film showings, see Brief for Appellee 15, n. 14, he cites “the risk that the much larger audience that is his constituency would be influenced against him because he disseminated what the government characterized as the political propaganda of a foreign power.” Ibid. See also Tr. of Oral Arg. 36 (the label “raises the hackles of suspicion on the part of the audience”). As the affidavits established, this suspicion would be a substantial detriment to Keene’s reputation and candidacy.
It is, of course, possible that appellee could have minimized these risks by providing the viewers of the films with an appropriate statement concerning the quality of the motion pictures — one of them won an “Oscar” award from the Academy of Motion Picture Arts and Sciences as the best foreign documentary in 1983 — and his reasons for agreeing with the positions advocated by their Canadian producer concerning nuclear war and acid rain. Even on that assumption, however, the need to take such affirmative steps to avoid the risk of harm to his reputation constitutes a cognizable injury in the course of his communication with the public. This case is similar to Lamont v. Postmaster General, 381 U. S. 301 (1965), in which we did not question that petitioner had standing to challenge a statute requiring the Postmaster General to hold all “communist political propaganda” originating abroad and not release it to the addressee unless that individual made a written request to the Post Office for delivery of the material. Although the statute was directed to the Postmaster General, it affected addressee Lamont just as the Act under consideration affected Keene. The necessity of going on the record as requesting this political literature constituted an injury to Lamont in his exercise of First Amendment rights. Likewise, appellee is not merely an undifferentiated bystander with claims indistinguishable from those of the general public, as the Government argues; he would have to take affirmative steps at each film showing to prevent public formation of an association between “political propaganda” and his reputation. Moreover, while these steps might prevent or mitigate damage to his reputation among those members of the public who do view the films, they would be ineffective among those citizens who shun the film as “political propaganda.”
Our cases recognize that a mere showing of personal injury is not sufficient to establish standing; we have also required that the injury be “fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S., at 751; see also Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982). Because the alleged injury stems from the Department of Justice’s enforcement of a statute that employs the term “political propaganda,” we conclude that the risk of injury to appellee’s reputation “fairly can be traced” to the defendant’s conduct. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 41 (1976).
Moreover, enjoining the application of the words “political propaganda” to the films would at least partially redress the reputational injury of which appellee complains. The Attorney General argues that an injunction would not provide the relief sought, because appellee’s constituents and others may continue to react negatively to his exhibition of films once they have been labeled as “political propaganda.” However, appellee’s alleged harm occurs because the Department of Justice has placed the legitimate force of its criminal enforcement powers behind the label of “political propaganda.” A judgment declaring the Act unconstitutional would eliminate the need to choose between exhibiting the films and incurring the risk that public perception of this criminal enforcement scheme will harm appellee’s reputation. Appellee declared his intent “to continue to exhibit the three films periodically in the future, but only if the defendants are permanently enjoined from classifying the films as ‘political propaganda.’” Declaration of Barry Keene As Regards Having Exhibited the Three Films, App. 110. Thus, the threatened injury alleged in the complaint is “likely to be redressed by a favorable decision.” See Valley Forge, 454 U. S., at 472, and cases cited ibid., at n. 9.
Ill
We begin our examination of the District Court’s ruling on the First Amendment issue by noting that the term “political propaganda” has two meanings. In popular parlance many people assume that propaganda is a form of slanted, misleading speech that does not merit serious attention and that proceeds from a concern for advancing the narrow interests of the speaker rather than from a devotion to the truth. See, e. g., Declaration of Edwin Newman, Correspondent for NBC News, App. 107-108. Casualty reports of enemy belligerents, for example, are often dismissed as nothing more than “propaganda.” As defined in the Act, the term political propaganda includes misleading advocacy of that kind. See 22 U. S. C. § 611(j). But it also includes advocacy materials that are completely accurate and merit the closest attention and the highest respect. Standard reference works include both broad, neutral definitions of the word “propaganda” that are consistent with the way the word is defined in this statute, and also the narrower, pejorative definition.
Appellee argues that the statute would be unconstitutional even if the broad neutral definition of propaganda were the only recognized meaning of the term because the Act is “a Classic Example of Content-Based Government Regulation of Core-Value Protected Speech.” As appellee notes, the Act’s reporting and disclosure requirements are expressly conditioned upon a finding that speech on behalf of a foreign principal has political or public-policy content.
The District Court did not accept this broad argument. It found that the basic purpose of the statute as a whole was “to inform recipients of advocacy materials produced by or under the aegis of a foreign government of the source of such materials” (emphasis deleted), and that it could not be gainsaid that this kind of disclosure serves rather than disserves the First Amendment. The statute itself neither prohibits nor censors the dissemination of advocacy materials by agents of foreign principals.
The argument that the District Court accepted rests not on what the statute actually says, requires, or prohibits, but rather upon a potential misunderstanding of its effect. Simply because the term “political propaganda” is used in the text of the statute to define the regulated materials, the court assumed that the public wall attach an “unsavory connotation,” 619 F. Supp., at 1125, to the term and thus believe that the materials have been “officially censured by the Government.” Ibid. The court further assumed that this denigration makes this material unavailable to people like appellee, who would otherwise distribute such material, because of the risk of being seen in an unfavorable light by the members of the public who misunderstand the statutory scheme. According to the District Court, the denigration of speech to which the label “political propaganda” has been attached constitutes “a conscious attempt to place a whole category of materials beyond the pale of legitimate discourse,” id., at 1126, and is therefore an unconstitutional abridgment of that speech. We find this argument unpersuasive, indeed, untenable, for three reasons.
First, the term “political propaganda” does nothing to place regulated expressive materials “beyond the pale of legitimate discourse.” Ibid. Unlike the scheme in Lamont v. Postmaster General, the Act places no burden on protected expression. We invalidated the statute in Lamont as interfering with the addressee’s First Amendment rights because it required “an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressee’s First Amendment rights.” 381 U. S., at 305. The physical detention of the materials, not their mere designation as “communist political propaganda,” was the offending element of the statutory scheme. The Act “se[t] administrative officials astride the flow of mail to inspect it, appraise it, write the addressee about it, and await a response before dispatching the mail.” Id., at 306. The Act in this case, on the other hand, does not pose any obstacle to appellee’s access to the materials he wishes to exhibit. Congress did not prohibit, edit, or restrain the distribution of advocacy materials in an ostensible effort to protect the public from conversion, confusion, or deceit.
To the contrary, Congress simply required the dissemina-tors of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda. The statute does not prohibit appellee from advising his audience that the films have not been officially censured in any way. Disseminators of propaganda may go beyond the disclosures required by statute and add any further information they think germane to the public’s viewing of the materials. By compelling some disclosure of information and permitting more, the Act’s approach recognizes that the best remedy for misleading or inaccurate speech contained within materials subject to the Act is fair, truthful, and accurate speech. See generally Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”). The prospective viewers of the three films at issue may harbor an unreasoning prejudice against arguments that have been identified as the “political propaganda” of foreign principals and their agents, but the Act allows appellee to combat any such bias simply by explaining — before, during, or after the film, or in a wholly separate context —that Canada’s interest in the consequences of nuclear war and acid rain does not necessarily undermine the integrity or the persuasiveness of its advocacy.
Ironically, it is the injunction entered by the District Court that withholds information from the public. The suppressed information is the fact that the films fall within the category of materials that Congress has judged to be “political propaganda.” A similar paternalistic strategy of protecting the public from information was followed by the Virginia Assembly, which enacted a ban on the advertising of prescription drug prices by pharmacists. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). The State sought to justify the ban as a means of preventing “the aggressive price competition that will result from unlimited advertising” and the “loss of stable pharmacist-customer relationships” that would result from comparison shopping on the basis of price. We wholly rejected these justifications, finding that the ban was predicated upon assumptions about the reactions the public would have if they obtained the “wrong” kind of information. Although the proscribed information in that case was price advertising of pharmacy items, our rationale applies equally to information that the Congress considers certain expressive materials to be “propaganda”:
“[0]n close inspection it is seen that the State’s protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance. The advertising ban does not directly affect professional standards one way or the other. It affects them only through the reactions it is assumed people will have to the free flow of drug price information.” Id., at 769.
Likewise, despite the absence of any direct abridgment of speech, the District Court in this case assumed that the reactions of the public to the label “political propaganda” would be such that the label would interfere with freedom of speech. In Virginia Pharmacy Bd., we squarely held that a zeal to protect the public from “too much information” could not withstand First Amendment scrutiny:
“There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. ... It is precisely this kind of choice, between the dangers of suppressing information, and the dangers from its misuse if it is freely available, that the First Amendment makes for us.” Id., at 770.
See also Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 96-97 (1977).
Second, the reasoning of the District Court is contradicted by history. The statutory definition of “political propaganda” has been on the books for over four decades. We should presume that the people who have a sufficient understanding of the law to know that the term “political propaganda” is used to describe the regulated category also know that the definition is a broad, neutral one rather than a pejorative one. Given this long history, it seems obvious that if the fear of misunderstanding had actually interfered with the exhibition of a significant number of foreign-made films, that effect would be disclosed in the record. Although the unrebutted predictions about the potentially adverse consequences of exhibiting these films are sufficient to support appellee’s standing, they fall far short of proving that the public’s perceptions about the word “propaganda” have actually had any adverse impact on the distribution of foreign advocacy materials subject to the statutory scheme. There is a risk that a partially informed audience might believe that a film that must be registered with the Department of Justice is suspect, but there is no evidence that this suspicion— to the degree it exists — has had the effect of Government censorship.
Third, Congress’ use of the term “political propaganda” does not lead us to suspend the respect we normally owe to the Legislature’s power to define the terms that it uses in legislation. We have no occasion here to decide the permissible scope of Congress’ “right to speak”; we simply view this particular choice of language, statutorily defined in a neutral and evenhanded manner, as one that no constitutional provision prohibits the Congress from making. Nor do we agree with the District Court’s assertion that Congress’ use of the term “political propaganda” was “a wholly gratuitous step designed to express the suspicion with which Congress regarded the materials.” 619 F. Supp., at 1125. It is axiomatic that the statutory definition of the term excludes unstated meanings of that term. Colautti v. Franklin, 439 U. S. 379, 392, and n. 10 (1979). Congress’ use of the term “propaganda” in this statute, as indeed in other legislation, has no pejorative connotation. As judges it is our duty to construe legislation as it is written, not as it might be read by a layman, or as it might be understood by someone who has not even read it. If the term “political propaganda” is construed consistently with the neutral definition contained in the text of the statute itself, the constitutional concerns voiced by the District Court completely disappear.
The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia took no part in the consideration or decision of this case.
In a letter dated January 13,1988, the Chief of the Registration Unit of the Internal Security Section of the Criminal Division of the Department of Justice notified the National Film Board of Canada (NFBC) that these three films were “political propaganda,” and requested that the NFBC comply with the labeling and reporting requirements imposed by § 4 of the Act, 22 U. S. C. §614. App. 18.
The NFBC (New York office) has been registered with the Attorney General as an agent of a foreign principal, the NFBC, since 1947, pursuant to 22 U. S. C. § 612. Second Declaration of Joseph E. Clarkson ¶4, App. 57.
The films are entitled If You Love This Planet, Acid Rain: Requiem or Recovery, and Acid From Heaven. The first film concerns “the environmental effects of nuclear war.” Complaint ¶1, App. 10. “Acid rain” is formed when nitrogen oxides and sulfur dioxide, products of fossil fuel combustion, are discharged into the atmosphere; converted to sulfates, nitrates, sulfuric acids, and nitric acids through various chemical reactions; and then deposited as precipitation. See 1 F. Grad, Treatise on Environmental Law §2.09, pp. 2-578 to 2-579 (1986).
Keene v. Smith, 569 F. Supp., at 1518, 1522. The District Court found that appellee lacked standing to challenge the labeling requirement that the Act imposes on the agent of the foreign principal. Id., at 1519. That ruling is not now before this Court.
Title 22 U. S. C. § 614(a) provides:
“Every person within the United States who is an agent of a foreign principal and required to register under the provisions of this subchapter and who transmits or causes to be transmitted in the United States mails or by any means or instrumentality of interstate or foreign commerce any political propaganda for or in the interests of such foreign principal (i) in the form of prints, or (ii) in any other form which is reasonably adapted to being, or which he believes will be, or which he intends to be, disseminated or circulated among two or more persons shall, not later than forty-eight hours after the beginning of the transmittal thereof, file with the Attorney General two copies thereof and a statement, duly signed by or on behalf of such agent, setting forth full information as to the places, times, and extent of such transmittal.”
Section 614(b) provides:
“It shall be unlawful for any person within the United States who is an agent of a foreign principal and required to register under the provisions of this subchapter to transmit or cause to be transmitted in the United States mails or by any means or instrumentality of interstate or foreign commerce any political propaganda for or in the interests of such foreign principal (i) in the form of prints, or (ii) in any other form which is reasonably adapted to being, or which he believes will be or which he intends to be, disseminated or circulated among two or more persons, unless such political propaganda is conspicuously marked at its beginning with, or prefaced or accompanied by, a true and accurate statement, in the language or languages used in such political propaganda, setting forth the relationship or connection between the person transmitting the political propaganda or causing it to be transmitted and such propaganda; that the person transmitting such political propaganda or causing it to be transmitted is registered under this subchapter with the Department of Justice, Washington, District of Columbia, as an agent of a foreign principal, together with the name and address of such agent of a foreign principal and of such foreign principal; that, as required by this subchapter, his registration statement is available for inspection at and copies of such political propaganda are being filed with the Department of Justice; and that registration of agents of foreign principals required by the subehapter does not indicate approval by the United States Government of the contents of their political propaganda. The Attorney General, having due regard for the national security and the public interest, may by regulation prescribe the language or languages and the manner and form in which such statement shall be made and require the inclusion of such other information contained in the registration statement identifying such agent of a foreign principal and such political propaganda and its sources as may be appropriate.”
The poll was entitled Gallup Study of The Effect of Campaign Disclosures on Adults’ Attitudes Toward Candidates (July, 1984). App. 78-98. The study was based on a telephone survey, in which five questions were posed to a representative national sample of adults. The questions tested the effect that publicizing various events associated with a candidate running for the state legislature would have on his candidacy. One of the surveyed events was that the political candidate.“arranged to show to [the] public three foreign films that the Justice Dept, had classified as ‘Political Propaganda.’” App. 86. The poll concluded that if this event occurred, 49.1% of the public would be less inclined to vote for the candidate. Ibid,.; see also id., at 93-94 (sampling tolerances; 95% confidence level that sampling error is less than four percentage points).
After examining the survey data, the survey research practitioner who had designed the survey concluded that the charge of showing political propaganda “would have a seriously adverse effect on a California State Legislature candidate’s chances [for election] if this charge were raised during a campaign.” Declaration of Mervin Field ¶5, App. 69. The District Court found that this declaration, “neither rebutted nor impeached by the defendants, establishes beyond peradventure of a doubt that whoever disseminates materials officially found to be ‘political propaganda’ runs the risk of being held in a negative light by members of the general public.” 619 F. Supp. 1111, 1124 (1985) (footnote omitted). In addition, a principal political fundraiser and adviser to appellee, Harry Bistrin, stated: “I have no doubt but that some members of the North Coast [of California] press, present political adversaries, and future opponents, would openly seize upon the opportunity to utilize the government’s reporting, dissemination and label requirements under [the Act] to their benefit by portraying the plaintiff as a disseminator of ‘foreign political propaganda.’ For these reasons the plaintiff has a compelling interest, perhaps more than most citizens, to ensure that the exercise of his first amendment rights does not ‘boomerang’ to be utilized as a deadly weapon against him in his political career.” Declaration in Support of Plaintiff’s Motion for a Preliminary Injunction, App. 30.
“Designating material as ‘political propaganda,’. . . denigrates the material and stigmatizes those conveying it, in a manner that mere designation of the material as ‘political advocacy’ would not. It is my professional judgment that knowledge of such a designation would be extremely likely to deter persons from viewing or reading such materials and, diminish and/or slant its communicative value, in a manner likely to make the reader or viewer suspicious of the material, far less likely to credit it or accept its conclusions.” Declaration of Leonard W. Doob ¶ 9, App. 103. The declar-ant is Senior Research Associate and Sterling Professor Emeritus of Psychology at Yale University.
See Block v. Meese, 253 U. S. App. D. C. 317, 322, 793 F. 2d 1303, 1308 (1986) (sole distributor of If You Love This Planet has standing to challenge classification of film as “political propaganda”; potential customers declined to take the film because of the classification).
See, e. g., Webster’s Third New International Dictionary 1817 (1981 ed.) (“doctrines, ideas, argument, facts, or allegations spread by deliberate effort through any medium of communication in order to further one’s cause or to damage an opposing cause”).
See, e. g., Webster’s New World Dictionary, College Edition 1167 (1968) (“now often used disparagingly to connote deception or distortion”); The New Columbia Encyclopedia 2226 (1976) (“[A]lmost any attempt to influence public opinion, including lobbying, commercial advertising, and missionary work, can be broadly construed as propaganda. Generally, however, the term is restricted to the manipulation of political beliefs”).
Brief for Appellee 20.
See 619 F. Supp., at 1125.
The risk of this reputational harm, as we have held earlier in this opinion, is sufficient to establish appellee’s standing to litigate the claim on the merits. Whether the risk created by the Act violates the First Amendment is, of course, a separate matter. The crux of the District Court’s analysis of this latter issue is set forth in this paragraph:
“With respect to the evidentiary question — does the phrase ‘political propaganda,’ when officially applied by officials of the United States Department of Justice, abridge speech — the Court has little difficulty. The declaration supplied by Mervin Field, neither rebutted nor impeached by the defendants, establishes beyond peradventure of a doubt that whoever disseminates materials officially found to be ‘political propaganda’ runs the risk of being held in a negative light by members of the general public. See Gallup Study of the Effect of Campaign Disclosures on Adults’ Attitudes Toward Candidates, July, 1984; Plaintiff’s Exhibit A, Declaration of Mervin D. Field, at 3. For this reason, the Court finds that Congress’ use of the phrase ‘political propaganda’ to describe the materials subject to the registration and reporting requirements constitutes a burden on speech by making such materials unavailable to all but the most courageous. Since the exercise of First Amendment rights often requires an act of courage, it is important to note that the courage required by the operation of FARA is not the courage of one’s convictions but the courage to use materials officially censured by the government.” 619 F. Supp., at 1124-1125.
An obvious flaw in this reasoning is that the materials that satisfy the definition of “political propaganda” are not “materials officially censured by the government.” The statutory term is a neutral one, and in any event, the Department of Justice makes no public announcement that the materials are “political propaganda.”
“What emerged from extended Congressional investigations, hearings and deliberations was this Act, intended to provide an appropriate method to obtain information essential for the proper evaluation of political propaganda emanating from hired agents of foreign countries. As the House and Senate Committees considering the Bill said, it ‘does not in any way impair the right of freedom of speech, or of a free press, or other constitutional rights.’ Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false, the bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes from a disinterested source. Such legislation implements rather than detracts from the prized freedoms guaranteed by the First Amendment. No strained interpretation should frustrate its essential purpose.” Viereck v. United States, 318 U. S. 236, 251 (1943) (Black, J., dissenting).
The Act as adopted in 1938 did not use the term “political propaganda.” In 1942 the Act was amended to add the term and to require that materials meeting the definition of “political propaganda” be labeled with an identification statement and a copy provided to the Attorney General. Act of Apr. 29, 1942, ch. 263, §§ 1, 4, 56 Stat. 248, 255, 22 U. S. C. §§611, 614. The statute states that the policy and purpose of the Act are to require “public disclosure, by persons engaging in propaganda activities and other activities for or on behalf of . . . foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.” 22 U. S. C. §611 note (Policy and Purpose). The House Report stated, “[T]hese amendments do not change the fundamental approach of the statute, which is one not of suppression or of censorship, but of publicity and disclosure.” H. R. Rep. No. 1547, 77th Cong., 1st Sess., 2, 4 (1941). When Congress again amended the Act in 1966, it retained the expression “political propaganda” to describe the materials subject to the requirements of the Act.
The Chief of the Registration Unit, Internal Security Section, Criminal Division of the Department of Justice, submitted a nonexhaustive list of films reported by agents under § 4 of the Act. The film titles support the conclusion that the Act’s definition of “propaganda” is indeed a neutrally applied one which includes allies as well as adversaries of the United States. The titles and their foreign principals include, Berlin Means Business and More (Berlin Economic Development Corporation); Hong Kong Style (Government of Hong Kong); A Conversation with Golda Meir (Consulate General of Israel); and Ballad of a Soldier (Sovexportfilm). A television videotape entitled What is Japan Doing About Energy? (the Government of Japan) is also included in the list. Second Declaration of Joseph E. Clarkson, Exhibit B, App. 60-63.
The implications of judicial parsing of statutory language to determine if Congress’ word choices violate the First Amendment are discussed in Block v. Meese, 253 U. S. App. D. C., at 327-328, 793 F. 2d, at 1313-1314.
See, e. g., 26 U. S. C. § 501(c)(3) (excluding from the charitable deduction those charitable organizations whose activities include in substantial part “carrying on propaganda, or otherwise attempting, to influence legislation”); 36 U. S. C. § 1304(a) (no substantial part of the activities of United Services Organizations “shall involve carrying on propaganda, or otherwise attempting to influence legislation”); 5 U. S. C. § 4107(b)(1) (agency may not train employee by, in, or through a non-Government facility a substantial part of the activities of which is “carrying on propaganda, or otherwise attempting, to influence legislation”).
Like “propaganda,” the word “lobbying” has negative connotations. See The New Columbia Encyclopedia 1598 (1975) (“The potential for corruption . . . has given lobbying an unsavory connotation”). Although the Federal Regulation of Lobbying Act, 2 U. S. C. §§261-270, uses this semantically slanted word, we are not aware of any suggestion that these negative connotations violate the First Amendment. See United States v. Harriss, 347 U. S. 612 (1954) (construing and upholding constitutionality of statute’s registration and reporting requirements). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
26
] |
FEDERAL POWER COMMISSION v. FLORIDA POWER & LIGHT CO.
No. 70-38.
Argued November 15, 1971
Decided January 12, 1972
Samuel Huntington argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Gordon Gooch, and Drexel D. Journey.
Jefferson D. Giller argued the cause for respondent. With him on the brief were Leon Jaworski, Jay W. Elston, Harry A. Poth, Jr., and Richard M. Merriman.
Briefs of amici curiae urging reversal were filed by George Spiegel and Melvin Richter for the Gainesville Utilities Department et ah, and by Northcutt Ely for the American Public Power Assn.
Mr. Justice White
delivered the opinion of the Court.
We are asked to determine whether the Federal Power Commission exceeded its statutory authorization when it asserted jurisdiction over the Florida Power & Light Co. Section 201 (b) of the Federal Power Act, as amended, 49 Stat. 847, 16 U. S. C. § 824 (b), grants the Federal Power Commission jurisdiction over “the transmission of electric energy in interstate commerce and . . . the sale of electric energy at wholesale in interstate commerce, but . . . not [over] any other sale of electric energy . . . .” Section 201 (c) defines energy transmitted in interstate commerce as energy “transmitted from a State and consumed at any point outside thereof.” In Connecticut Light & Power Co. v. FPC, 324 U. S. 515 (1945), we noted that by this definition the initial jurisdictional determination “was to follow the flow of electric energy, an engineering and scientific, rather than a legalistic or governmental, test.” Id., at 529; FPC v. Southern California Edison Co., 376 U. S. 205, 209 n. 5 (1964).
In the case now before us the FPC hearing examiner and the Commission itself, utilizing two scientific tests, determined that the Florida Power & Light Co. (FP&L) generates energy that is transmitted in interstate commerce. They therefore held the company subject to the Commission’s jurisdiction. Respondent FP&L argues that an alternative model better represents the flow of its electricity; by use of this model it purports to demonstrate that its power has not flowed in interstate commerce. The Court of Appeals for the Fifth Circuit rejected the FPC’s tests as “not sufficient to prove the actual transmission of energy interstate.” 430 F. 2d 1377, 1383 (1970). It did not approve FP&L’s test (“Both [the FPC and the FP&L tests] suffer from the same vice,” id., at 1385), but because the FPC must shoulder the burden of proof, its finding of jurisdiction was set aside.
We granted certiorari to determine if either of the FPC’s tests provides an acceptable basis at law and a sufficient basis in fact for the establishment of jurisdiction. 401 U. S. 907 (1971).
I
FP&L is Florida’s largest electric utility. At the time relevant to this litigation it served nearly one million customers, ranked ninth nationally among electric companies in revenues, 14th in investment in gross utility electric plant, and 16th in kilowatt-hour sales. Despite this significant size, the peninsular nature of Florida, the concentration of the company’s sales in the southern part of the State, and the recurrent threat of hurricanes which might sever power lines combine to make the operations of the company unusually insular and independent of the operations of like companies in other States. All of FP&L’s equipment, including transmission lines, is confined to Florida and none of its lines directly connect with those of out-of-state companies.
FP&L does, however, indirectly connect with out-of-state companies. As a member of the Florida Pool, it is interconnected with the Florida Power Corp. (Corp), the Tampa Electric Co., the Orlando Utilities Commission, and the City of Jacksonville. These interconnected utilities and authorities coordinate their activities and exchange power as circumstances require. In 1964 FP&L transferred over 107 million kwh to Corp and received over 61 million kwh from Corp. If power from FP&L flows in interstate commerce it is because Corp interconnects just short of Florida’s northern border with Georgia Power Co. and regularly exchanges power with it. Georgia’s lines transmit the power out of or into Florida. There are numerous instances in which transfers between Georgia and Corp are recorded as coinciding with transfers between Corp and FP&L.
The Georgia-Corp interconnection serves another function. Corp, FP&L, and the other Florida Pool participants are members of the Interconnected Systems Group (ISG), a national interlocking of utilities that automatically provides power in case of emergencies. In time of emergency this power also would flow through Corp’s links with Georgia. To date FP&L has had no occasion to call for ISG power. But when a midwestern utility sustained a 580-megawatt generating loss, a regularly scheduled 8-megawatt FP&L contribution to the Florida Pool coincided with an 8-megawatt contribution from the pool to the ISG system.
These relationships establish the focal issue in this case. The FPC may exercise jurisdiction only if there is substantial evidentiary support for the Commission’s conclusion that FP&L power has reached Georgia via Corp or that Georgia’s power has reached FP&L because of exchanges with Corp. What happens when FP&L gives power to Corp and Corp gives power to Georgia (or vice versa)? Is FP&L power commingled with Corp’s own supply, and thus passed on with that supply, as the Commission contends? Or is it diverted to handle Corp’s independent power needs, displacing a like amount of Corp power that is then passed on, as respondent argues? Or, as the Commission also contends, do changes in FP&L’s load or generation, or that of others in the interconnected system, stimulate a reaction up and down the line by a signal or a chain reaction that is, in essence, electricity moving in interstate commerce? Upon answer to these questions, jurisdiction rides.
If FP&L were directly involved in power exchanges with Georgia, there would be no serious question about the resolution of this case. Section 201 of the Federal Power Act owes its origin to the determination of this Court that a direct transfer of power from a utility in Rhode Island to a utility in Massachusetts is in interstate commerce. See Public Utilities Comm’n v. Attleboro Steam & Electric Co., 273 U. S. 83 (1927). "Part II [of the Act] is a direct result of Attleboro." United States v. Public Utilities Comm’n of California, 345 U. S. 295, 311 (1953). There can be no doubt that § 201 achieves its end and fills the "Attleboro gap" by giving the FPC jurisdiction over direct exchanges. Connecticut Light & Power Co. v. FPC, 324 U. S. 515 (1945).
Nor would there be any difficulty in resolving this case if the company or companies that stood between FP&L and the out-of-state power companies could be shown to be sometimes no more than a funnel. In Jersey Central Power & Light Co. v. FPC, 319 U. S. 61 (1943), the first of the major FPC jurisdictional cases to be considered by this Court, Jersey Central supplied power to the Public Service Electric & Gas Co. (also a New Jersey company), which in turn had exchange arrangements with Staten Island Edison Corp. (a New York company). The transfer from PSE&G to Staten Island was effected through a “bus”— a transmission line of three conductors into which a number of subsidiary lines connect. The FPC showed through extensive sampling of the logs of the relevant companies, that on at least a dozen occasions when Staten Island drew power from the bus only Jersey Central was supplying the bus. Thus, the intermediate presence of PSE&G was shown to be, in some circumstances, a null factor, and it was established that Jersey Central energy was moving in interstate commerce.
In the litigation before us the record does not disclose situations in which Corp operated as a null or insufficient factor. Thus, the FPC has not in this litigation demonstrated with the clarity and certainty obtaining in the Jersey Central case that the energy flows that are a prerequisite to jurisdiction occurred.
This is not, however, the equivalent of saying that the flows did not occur or that there was not substantial evidence for concluding that they did. The Court of Appeals was hardly less emphatic than the Federal Power Commission in its conclusion that FP&L’s “proof” that the flows did not occur was unconvincing. The court purported to have no opinion whether the flows had actually occurred. The question that must be resolved, therefore, is whether the evidence presented, though not so certain and convincing as that which the FPC offered in Jersey Central, was nonetheless adequate to establish jurisdiction.
We turn first to the conflicting contentions of the parties.
II
The Federal Power Commission followed alternate routes to its conclusion that FP&L energy moved in interstate commerce. The first course, based on what the Commission called the electromagnetic unity of response of interconnected electrical systems, is best represented in the words of the hearing examiner:
“[N]one of the connected electric systems including that of Florida, Corp, and Georgia has any control over the actual transfers of power at each point of interconnection because of the free flow characteristics of electric networks. . . .
“An electric utility system such as Florida [Power & Light] is essentially an electro-mechanical system to which all operating generators on the interconnected network are interlocked eleetromagneti-cally. This means that electric generators, under ordinary operating conditions run either at exactly the same speed or at speeds which will result in a frequency of 60 cycles. No operating generator can change its speed by itself as long as it operates connected to the network. All generators connected to the same network must follow each other as to speed and frequency whenever there is a change in frequency, and the frequency of all interlocked generators is always exactly the same.
“If a housewife in Atlanta on the Georgia system turns on a light, every generator on Florida’s system almost instantly is caused to produce some quantity of additional electric energy which serves to maintain the balance in the interconnected system between generation and load. If sensitive enough instruments were available and were to be placed throughout Florida’s system the increase in generation by every generator on Florida [Power & Light] could be precisely measured.”
The hearing examiner concluded:
“The cause and effect relationship in electric energy occurring throughout every generator and point on the Georgia, Corp and Florida systems constitutes interstate transmission of electric energy by, to, and from Florida. It is the electromagnetic unity of response of Florida, Corp, Georgia and other interconnecting systems that constitutes the interstate transmission of electric energy by Florida.”
By this analysis a change in FP&L’s load or generating pattern depletes or adds to the force available in out-of-state lines; therefore FP&L is transmitting energy in interstate commerce.
The alternative analysis by the Commission and its staff experts concentrates on power flow within the “Turner bus” — the point of connection between Corp’s and FP&L’s systems. Power supplied to the bus from a variety of sources is said to merge at a point and to be commingled just as molecules of water from different sources (rains, streams, etc.) would be commingled in a reservoir. On this basis the FPC need only show (1) FP&L power entering the bus and (2) power leaving the bus for out-of-state destinations at the same moment, in order to establish the fact that some FP&L power goes out of State. The FPC purported to make this demonstration by a series of tracing studies.
FP&L objects. The first approach is said to be technologically sound, but legally insufficient in that it does not demonstrate that any FP&L power flows in interstate commerce, but only that it affects interstate commerce. Congress, it is argued, could have chosen to grant the FPC jurisdiction over activities affecting commerce, but it clearly did not do so.
The second approach of the FPC purports to meet the standard at law, but according to FP&L it is technologically unsound. A bus is not a point, but rather a tangible, physical three-strand power line, in this case 225 feet in length. It is argued that it is not a general reservoir. Power, according to this argument, enters and is drawn off the line at discrete identifiable points. Power from any given source will not flow further along the line than loads of wattage cumulatively equal to the wattage of the power source. The distribution of entry lines and wattage loads on the Turner bus is said to demonstrate that all of the FP&L’s power will be exhausted by Corp’s load lines before the point, further down the line, where Georgia’s load intervenes. When power flows in the opposite direction (i e., north to south) again the effect is one of displacement: Georgia’s power goes to Corp’s loads and the output of Corp’s generators is thus displaced to FP&L.
III
We do not find it necessary to approve or disapprove the Federal Power Commission’s analysis based on unity of electromagnetic response. Its alternative assertion that energy commingles in a bus is, in our opinion, sufficient to sustain jurisdiction.
In evaluating this second approach, the courts are called upon to do no more than assess the Commission’s judgment of technical facts. If the Commission’s conclusion of commingling is not overturned, then the legal consequences are clear.
The conclusion of the FPC that FP&L energy commingled with that of Corp and was transmitted in commerce rested on the testimony of expert witnesses. The major points expounded by these witnesses were probed, and in our opinion not undercut, by the hearing examiner’s questions, FP&L’s cross-examination, and rebuttal testimony of FP&L witnesses. The hearing examiner found the testimony persuasive and held that his conclusions could be independently reached upon it. A majority of the Commission, reasoning similarly, endorsed these conclusions.
A court must be reluctant to reverse results supported by such a weight of considered and carefully articulated expert opinion. Particularly when we consider a purely factual question within the area of competence of an administrative agency created by Congress, and when resolution of that question depends on “engineering and scientific” considerations, we recognize the relevant agency’s technical expertise and experience, and defer to its analysis unless it is without substantial basis in fact. An appreciation of such different institutional capacities is reflected in the congressional directive defining the terms of judicial review of FPC action: “The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” Federal Power Act § 313 (b), 16 U. S. C. § 825l (b). See Gainesville Utilities Dept. v. Florida Power Corp., 402 U. S. 515, 526-529 (1971).
The Court of Appeals appears to have rejected the Commission's conclusions for two reasons. First, it apparently regarded these conclusions as supported by mere speculation rather than evidence. In its view, expert opinion about the nature of reality, however logically compelling, is not fact. Second, even if the Commission’s views might be said to be supported by substantial evidence, the Court of Appeals apparently thought it important that the Commission acknowledged that its conclusions rest upon representations of a reality imperfectly understood. From this the Court of Appeals concluded that it was dealing with a “simplified characterization” that, despite the frequent use of that same characterization by other courts of appeals, was too uncertain in its application to any particular situation to be used as the basis for establishing jurisdiction.
We reverse and reinstate the FPC’s order because we do not think these points are well taken. As to the Court of Appeals’ first reservation, we hold that well-reasoned expert testimony — based on what is known and uncontradicted by empirical evidence — may in and of itself be “substantial evidence” when first-hand evidence on the question (in this case how electricity moves within a bus) is unavailable. This proposition has been so long accepted, and indeed has been so often applied specifically to challenges to the FPC’s determination of technical matters, that we do not consider it fairly in dispute. See, e. g., FPC v. Southern California Edison Co., 376 U. S. 205, 209 n. 5 (1964); Travelers’ Indemnity Co. v. Parkersburg Iron & Steel Co., 70 F. 2d 63, 64 (1934); United States ex rel. Chapman v. FPC, 191 F. 2d 796, 808 (1951), aff’d, 345 U. S. 153 (1953). As Judge Parker said in the Court of Appeals’ opinion in the latter case:
“The [substantial-evidence] rule is no different because the questions involve matters of scientific knowledge and the evidence consists largely of the opinion of experts. The court may not, for that reason, ignore the conclusions of the experts and the Commission and put itself in the absurd position of substituting its judgment for theirs on controverted matters of hydraulic engineering. It is in just such matters that the findings of the Commission, because of its experience and the assistance of its technical staff, should be accorded the greatest weight and the courts should be most hesitant to substitute their judgment for that of the Commission.” 191 F. 2d, at 808.
On affirming, this Court noted,
“[W]e cannot say, within the limited scope of review open to us, that the Commission’s findings were not warranted. Judgment upon these conflicting engineering and economic issues is precisely that which the Commission exists to determine, so long as it cannot be said, as it cannot, that the judgment which it exercised had no basis in evidence and so was devoid of reason.” 345 U. S., at 171.
The elusive nature of electrons renders experimental evidence that might draw the fine distinctions required by this case practically unobtainable. That does not mean that expert testimony is insubstantial and that FP&L is beyond federal regulation.
We think the second, related, concern expressed by the Court of Appeals exaggerates the standard of proof required in civil cases such as this. The lower court would apparently require tracing studies showing an energy flow-through like that demonstrated in Jersey Central.
We do not think Jersey Central sets such high jurisdictional standards. Special circumstances in that case (the occasional operation of PSE&G as a null factor) permitted the FPC to present clear and compelling proof of interstate transactions. But we assessed the FPC’s determination, not by the standards of certainty, but rather by the substantial-evidence test. The fact that the FPC was exceptionally convincing in that leading case does not raise the standard that it must meet in all future cases.
Finding no reason in the case law for imposing a standard of certainty, we are not willing to construct one. It is not true, as argued by respondent, that an engineering test of certainty is needed to reserve an area of state jurisdiction. On top of the “engineering and scientific test” that controls this case, the Federal Power Act imposes a “legalistic or governmental” test. Federal jurisdiction may not reach “facilities used in local distribution” of energy. 16 U. S. C. § 824 (b). Thus, state jurisdiction is clearly demarcated and preserved. Connecticut Light & Power Co. v. FPC, 324 U. S. 515 (1945).
A requirement of tracing studies of the sort demanded by the Court of Appeals — if they are feasible at all — would take one to two years to conduct. Even under the FPC’s supposedly too- easily met criteria of jurisdiction, the FP&L matter took almost four years to pass through Commission proceedings; it has been before the courts for four more years. If the congres-sionally mandated system is to function meaningfully, the judiciary cannot overwhelm it with unworkably high standards of proof. New England Divisions Case, 261 U. S. 184, 197 (1923); Railroad Comm’n of Wisconsin v. Chicago, Burlington & Quincy R. Co., 257 U. S. 563, 579 (1922).
We note, moreover, that Jersey Central type tracing studies become less feasible as interconnections grow more complicated. Arkansas Power & Light Co. v. FPC, 368 F. 2d 376, 382 (CA8 1966), quoting 34 F. P. C. 747, 751. The requirement of Jersey Central type tracing might encourage the artificial and wasteful complication of interconnections for the purpose of avoiding federal jurisdiction. More important, as interconnections proliferate and energy pools grow larger, jurisdictional hurdles like those erected by the Court of Appeals would become ever more difficult to clear. Thus, the greater the need for regulation, the more likely it would become (under the Court of Appeals’ rule) that regulation would not be achieved.
As pointed out by the Court of Appeals for the Seventh Circuit in an FPC case similar to this one, even in a criminal prosecution where the highest standards of proof are required, guilt may be shown by circumstantial evidence. The FPC has used tracing studies to show what went into and out of the Turner bus at a given moment; it has marshaled expert opinion to suggest what may reasonably be said to have occurred in the bus at the instant of transmission; it has presented this evidence in a closely reasoned and empirically uncontra-dicted opinion. Recognizing that the men responsible do not now fully understand electricity, though they know how to use it, and use it on an ever-expanding basis, we do not demand more of the Commission than that its conclusions be substantially supported by expert opinion that is in accord with the facts known for certain. The Commission has done enough to establish its jurisdiction.
The decision of the Court of Appeals is reversed and the case is remanded for reinstatement of the order of the Federal Power Commission.
Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
The relevant sections of 16 U. S. C. § 824, stated in full, are as follows:
“(a) It is declared that the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation to the extent provided in this subchapter and subchapter III of this chapter and of that part of such business which consists of the transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States.
“(b) The provisions of this subchapter shall apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce, but shall not apply to any other sale of electric energy or 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. The Commission shall have jurisdiction over all facilities for such transmission or sale of electric energy, but shall not have jurisdiction, except as specifically provided in this subchapter and subchapter III of this chapter, over facilities used for the generation of electric energy or over facilities used in local distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy consumed wholly by the transmitter.
“(c) For the purpose of this subchapter, electric energy shall be held to be transmitted in interstate commerce if transmitted from a State and consumed at any point outside thereof; but only insofar as such transmission takes place within the United States.
“(d) The term ‘sale of electric energy at wholesale’ when used in this subchapter, means a sale of electric energy to any person for resale.”
Seventy-five percent of FP&L’s load is concentrated at the southern tip of Florida, some 400 miles south of the Georgia border. Transcript of Proceedings before the FPC 241. Reprinted in App. 2 et seq. (hereinafter referred to as (T)).
Corp was before this Court in Gainesville Utilities Dept. v. Florida Power Corp., 402 U. S. 515 (1971), in which case its operations are described in some detail. Corp is a public utility subject to the FPC’s jurisdiction.
“The purpose of the energy interchanges is to take care of temporary needs. There are no economy sales (sales by a company that can produce lower cost power to a higher cost producer) because fuel costs are similar for all members [of the Florida Pool].” Opinion of the FPC Hearing Examiner, 37 F. P. C. 544, 562.
Hearing Exhibit No. 15, p. 1028 (T).
It has other interconnections across state lines, but we concentrate, as did the FPC, on a single Georgia-Corp connection. If FP&L power is shown to flow through this connection the others need not be considered, because jurisdiction is established. See n. 7, infra.
Opinion of the FPC Hearing Examiner, 37 F. P. C., at 564.
FPC staff exhibits revealed 42 instances, discovered by meter readings at selected hours over a four-month period, in which a transfer from Georgia to Corp’s bus was instantly followed by a transfer from that bus to FP&L. Hearing Exhibits Nos. 18, pp. 1048-1054 (T), and 19, pp. 1055-1059 (T). Five instances of power flow from FP&L to Corp’s bus, followed by transmission from that bus to Georgia were recorded over the same period. Hearing Exhibit No. 32, p. 1116 (T). “For example, Staff’s Exhibit No. 18, at page 6, graphically demonstrates that on September 28, 1964, at 7:00 o’clock p. m., there was a flow of 51,000 kw of interstate power from Georgia to Corp and an instantaneous flow of 50,000 kw of . . . power from Corp to FPL.” Opinion of the FPC, 37 F. P. C., at 550.
Opinion of the Hearing Examiner, 37 F. P. C., at 567-568.
If any FP&L power has reached Georgia, or FP&L makes use of any Georgia power, no matter how small the quantity, FPC jurisdiction will attach because it is settled that Congress has not “conditioned the jurisdiction of the Commission upon any particular volume or proportion of interstate energy involved, and we do not . . . supply such a jurisdictional limitation by construction.” Connecticut Light & Power Co. v. FPC, 324 U. S. 515, 536. See also Pennsylvania Water & Power Co. v. FPC, 343 U. S. 414 (1952).
See Exhibits Nos. 18 and 19, pp. 1048-1059 (T).
This argument is developed by the dissent in Jersey Central Power & Light Co. v. FPC, 319 U. S. 61, 78 et seq. Note particularly p. 88: “It is interesting to compare, in this connection, other statutes enacted by the same Congress [as the one which enacted Part II of the Federal Power Act]. Three adopted in July and August 1935 covered activities ‘affecting’ commerce; three, including the Federal Power Act in question, adopted in August 1935 did not cover activities ‘affecting’ commerce.” Thus it was inferred that we are dealing with a particularly “discriminating use of language.”
“Neither the examiner nor the Commission treated the commingling theory as a scientific fact depicting accurately what does occur but only as the more adequate way to conceptualize actual occurrences.
“The Commission expert witness Jacobsen acknowledged commingling has never been verified experimentally as fact.” 430 F. 2d 1377, 1384-1385.
See principally Indiana & Michigan Electric Co. v. FPC, 365 F. 2d 180 (CA7), cert. denied, 385 U. S. 972 (1966); Arkansas Power & Light Co. v. FPC, 368 F. 2d 376 (CA8 1966); Public Service Co. of Indiana v. FPC, 375 F. 2d 100 (CA7), cert. denied, 387 U. S. 931 (1967); Cincinnati Gas & Electric Co. v. FPC, 376 F. 2d 506 (CA6), cert. denied, 389 U. S. 842 (1967).
“Sometimes the reason for tolerating a gap either between evidence and findings or between findings and decision has to do with limitations of human intellects or limitations on the magnitude of investigations that may be conducted in particular circumstances. Not all propositions of fact that are useful and used in the administrative process are susceptible of proof with evidence. Or developing the evidence would be inordinately expensive.” 2 K. Davis, Administrative Law Treatise § 16.11, p. 473 (1958).
The weight of such testimony was properly recognized by Lord Mansfield some 190 years ago:
“The facts in this case are not disputed. In 1758 the bank was erected, and soon afterwards the harbour went to decay. The question is, to what has this decay been owing? The defendant says, to this bank. Why? Because it prevents the backwater. That is matter of opinion: — the whole case is a question of opinion, from facts agreed upon. Nobody can swear that it was the cause .... [T]he parties go down to trial . . . and Mr. Smeaton is called. A confusion now arises from a misapplication of terms. It is objected that Mr. Smeaton is going to speak, not as to facts, but as to opinion. That opinion, however, is deduced from facts which are not disputed — the situation of banks, the course of tides and of winds, and the shifting of sands. His opinion, deduced from all these facts, is, that, mathematically speaking, the bank may contribute to the mischief, but not sensibly. Mr. Smeaton understands the construction of harbours, the causes of their destruction, and how remedied. In matters of science no other witnesses can be called. . . . The question then depends on the evidence of those who understand such matters; and when such questions come before me, I always send for some of the brethren of the Trinity House. I cannot believe that where the question is, whether a defect arises from a natural or an artificial cause, the opinions of men of science are not to be received. . . . The cause of the decay of the harbour is ... a matter of science .... Of this, such men as Mr. Smeaton alone can judge. Therefore we are of opinion that his judgment, formed on facts, was very proper evidence.” Folkes v. Chadd, 3 Doug. 157, 158-160, 99 Eng. Rep. 589-590 (1782).
Modern analysis follows this perception. See 7 J. Wigmore, Evidence §§ 1917-1929, 1976 (3d ed. 1940 and Supp. 1970).
“This evidence, we think, furnishes substantial basis for the conclusion of the Commission that facilities of Jersey Central are utilized for the transmission of electric energy across state lines.” Jersey Central, supra, n. 12, at 67.
“Logic would seem to dictate that where the utility is a member of a combination of utilities and has continuous access to an integrated pool of interstate energy, the tracing of out-of-state energy is indeed difficult, burdensome, and perhaps impossible.” Arkansas Power & Light Co. v. FPC, 368 F. 2d, at 382.
Public Service Co. of Indiana v. FPC, 375 F. 2d, at 104 n. 7.
The final FPC decision was handed down on May 2, 1967. We do not know when the FPC began its investigation of FP&L. But ignoring what must have been an extended period of initial staff work, we observe that the record shows that FP&L was formally notified on October 3, 1963, that in the opinion of the FPC staff it was subject to FPC jurisdiction. Order Initiating Investigation and Hearing 2412 (T).
“We reject I&M’s fundamental proposition in this case that in order to prevail, the Federal Power Commission must do what I&M claims to be impossible, that is, to prove by either tracing or some other unnamed ‘scientific and engineering proof’ that out-of-state energy reaches the wholesale customers. We might recall that even in criminal cases, guilt beyond a reasonable doubt often can be established by circumstantial evidence.” Indiana & Michigan Electric Co. v. FPC, 365 F. 2d 180, at 184.
“Nobody can say for certain just how electricity is really transmitted.” Opinion of the Hearing Examiner, 37 F. P. C., at 568. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
"Bureau of Prisons",
"Bonneville Power Administration",
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] | [
51
] |
IMMIGRATION AND NATURALIZATION SERVICE et al. v. NATIONAL CENTER FOR IMMIGRANTS’ RIGHTS, INC., et al.
No. 90-1090.
Argued November 13, 1991
Decided December 16, 1991
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.
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.
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. § 1252(a)(1). We granted the Government's petition for cer-tiorari 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.
I
Prior to 1983, the regulations of the Immigration and Naturalization 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)(il) (1991).
In 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 (CA9 1984).
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 condition in 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 court ruled, 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.
II
It 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.
I H-< ) — I
The threshold question m 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, consistently 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.
Our 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, the agency’s comments when the rule was promulgated, the operating instructions issued to INS personnel, and the absence of any evidence that the INS has imposed such a condition on any such alien. 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.
IV
Section 242(a) of the INA grants the Attorney General authority to release aliens under bonds “containing such conditions as the Attorney General may prescribe.” In ruling that 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 tyranny of literalness is rejected, all relevant considerations for giving a rational content to the words become operative. A restrictive meaning for what appear to be plain words may be indicated by the Act as a whole, by the persuasive gloss of legislative history or by the rule of constitutional adjudication, relied on by the District Court, that such a restrictive meaning must be given if a broader meaning would generate constitutional doubts.” 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 discretion sanctioned 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). 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.
V
As 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 of discretion 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, 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, 66-68 (1974), others carry employment authorization documents, see 8 CFR § 274a.l2(a) (1991), or registration numbers that will readily identify their status.
This 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.
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).
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.
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)(h) (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.”
In response to critical comments on the proposed rule during the rule-making 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).
“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).
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.)
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 süch 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 proceedings against 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.”
For 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.
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[,] 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.l2(c)(13)(iii) (1991)).
This section sets forth the various classes of aliens authorized to accept employment; in each case the INS issues to the alien a document confirming that authorization. Importantly, the INS regulations implementing IRCA also provide for the issuance of such a document pending the resolution of amnesty proceedings. See 8 CFR § 246a.2(n) (1991).
We realize that the regulation effectively establishes a presumption that undocumented aliens taken into custody are not entitled to work. In view of the fact that over 97 percent of those aliens apparently do not contest their deportability and instead agree to voluntary deportation, INS v. Lopez-Mendoza, 468 U. S. 1032, 1044 (1984), such a presumption is reasonable. Moreover, even within the narrow subclass in which deport-ability is contested, there is no evidence that the presumption cannot be effectively rebutted by those aliens who are entitled to employment, or who have a colorable claim to the right to work. The fact that the rule may make it more difficult for aliens who are not entitled to work to resist deportation is, of course, not a reason for concluding that the regulation exceeds the Attorney General's statutory authority. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"Board of General Appraisers",
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"General Land Office or Commissioners",
"NO Admin Action",
"Processing Tax Board of Review"
] | [
67
] |
UNITED STATES v. OHIO POWER CO.
No. 312,
October Term, 1955.
Certiorari denied October 17,
Rehearing denied December 5, 1955.
Rehearing again denied May 26, 1956.
Order denying rehearing vacated June 11,
Rehearing and certiorari granted and case decided April 1, 1957.
Solicitor General Rankin, Assistant Attorney General Rice, Philip Elman and Hilbert P. Zarky for the United States.
J. Marvin Haynes, N. Barr Miller and Oscar L. Tyree for respondent.
Per Curiam.
On June 11, 1956, we unanimously vacated sua sponte our order of December 5, 1955 (350 U. S. 919), denying the timely petition for rehearing in this case (351 U. S. 980), so that this case might be disposed of consistently with the companion cases of United States v. Allen-Bradley Co., 352 U. S. 306, and National Lead Co. v. Commissioner, 352 U. S. 313, in which we had granted certio-rari the same day, viz. June 11, 1956. 351 U. S. 981. If there is to be uniformity in the application of the principles announced in those two companion cases, the judgment below in the instant case cannot stand. Accordingly we now grant the petition for rehearing, vacate the order denying certiorari, grant the petition for certiorari, and reverse the judgment of the Court of Claims on the authority of United States v. Allen-Bradley Co., supra, and National Lead Co. v. Commissioner, supra.
We have consistently ruled that the interest in finality of litigation must yield where the interests of justice would make unfair the strict application of our rules. This policy finds expression in the manner in which we have exercised our power over our own judgments, both in civil and criminal cases. Clark v. Manufacturers Trust Co., 337 U. S. 953; Goldbaum v. United States, 347 U. S. 1007; Banks v. United States, 347 U. S. 1007; McFee v. United States, 347 U. S. 1007; Remmer v. United States, 348 U. S. 904; Florida ex rel. Hawkins v. Board of Control, 350 U. S. 413; Boudoin v. Lykes Bros. S. S. Co., 350 U. S. 811; Cahill v. New York, N. H. & H. R. Co., 351 U. S. 183; Achilli v. United States, 352 U. S. 1023.
Reversed.
Mr. Justice Brennan and Mr. Justice Whittaker took no part in the consideration or decision of this case. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
114
] |
UNITED STATES v. BASYE et al.
No. 71-1022.
Argued December 11, 1972
Decided February 27, 1973
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Marshall, Blackmun, and Rehnquist, JJ., joined. Douglas, J., dissented.
Solicitor General Griswold argued the cause for the United States. With him on the briefs were Assistant Attorney General Crampton, Richard B. Stone, Meyer Rothwacks, and Ernest J. Brown.
Valentine Brookes argued the cause for respondents. With him on the brief were Leonard A. Marcussen, and Lawrence V. Brookes.
George E. Link filed a brief for Kaiser Foundation Health Plan, Inc., as amicus curiae urging affirmance.
Mr. Justice Powell
delivered the opinion of the Court.
This is a partnership income tax case brought here by the United States on a petition for writ of certiorari from the Court of Appeals for the Ninth Circuit. Respondents, physicians and partners in a medical partnership, filed suit in the District Court for the Northern District of California seeking the refund of income taxes previously paid pursuant to a deficiency assessed by the Commissioner of Internal Revenue. The case was heard on an agreed statement of facts and the District Court ruled in respondents’ favor. 295 F. Supp. 1289 (1968). The Government appealed to the Ninth Circuit and that court affirmed the lower court’s judgment. 450 F. 2d 109 (1971). We agreed to hear this case to consider whether, as the Government contends, the decision below is in conflict with precedents of this Court. 405 U. S. 1039 (1972). Because we find that the decision is incompatible with basic principles of income taxation as developed in our prior cases, we reverse.
I
Respondents, each of whom is a physician, are partners in a limited partnership known as Permanente Medical Group, which was organized in California in 1949. Associated with the partnership are over 200 partner physicians, as well as numerous nonpartner physicians and other employees. In 1959, Permanente entered into an agreement with Kaiser Foundation Health Plan, Inc., a nonprofit corporation providing prepaid medical care and hospital services to its dues-paying members.
Pursuant to the terms of the agreement, Permanente agreed to supply medical services for the 390,000 member-families, or about 900,000 individuals, in Kaiser’s Northern California Region which covers primarily the San Francisco Bay area. In exchange for those services, Kaiser agreed to pay the partnership a “base compensation” composed of two elements. First, Kaiser undertook to pay directly to the partnership a sum each month computed on the basis of the total number of members enrolled in the health program. That number was multiplied by a stated fee, which originally was set at a little over $2.60. The second item of compensation — and the one that has occasioned the present dispute — called for the creation of a program, funded entirely by Kaiser, to pay retirement benefits to Permanente’s partner and non-partner physicians.
The pertinent compensation provision of the agreement did not itself establish the details of the retirement program; it simply obligated Kaiser to make contributions to such a program in the event that the parties might thereafter agree to adopt one. As might be expected, a separate trust agreement establishing the contemplated plan soon was executed by Permanente, Kaiser, and the Bank of America Trust and Sayings Association, acting as trustee. Under this agreement Kaiser agreed to make payments to the trust at a predetermined rate, initially pegged at 12 cents per health plan member per month. Additionally, Kaiser made a flat payment of $200,000 to start the fund and agreed that its pro rata payment obligation would be retroactive to the date of the signing of the medical service agreement.
The beneficiaries of the trust were all partner and nonpartner physicians who had completed at least two years of continuous service with the partnership and who elected to participate. The trust maintained a separate tentative account for each beneficiary. As periodic payments were received from Kaiser, the funds were allocated among these accounts pursuant to a complicated formula designed to take into consideration on a relative basis each participant's compensation level, length of service, and age. No physician was eligible to receive the amounts in his tentative account prior to retirement, and retirement established entitlement only if the participant had rendered at least 15 years of continuous service or 10 years of continuous service and had attained age 65. Prior to such time, however, the trust agreement explicitly provided that no interest in any tentative account was to be regarded as having vested in any particular beneficiary. The agreement also provided for the forfeiture of any physician's interest and its redistribution among the remaining participants if he were to terminate his relationship with Permanente prior to retirement. A similar forfeiture and redistribution also would occur if, after retirement, a physician were to render professional services for any hospital or health plan other than one operated by Kaiser. The trust agreement further stipulated that a retired physician’s right to receive benefits would cease if he were to refuse any reasonable request to render consultative services to any Kaiser-operated health plan.
The agreement provided that the plan would continue irrespective either of changes in the partnership’s personnel or of alterations in its organizational structure. The plan would survive any reorganization of the partnership so long as at least 50% of the plan’s participants remained associated with the reorganized entity. In the event of dissolution or of a nonqualifying reorganization, all of the amounts in the trust were to be divided among the participants entitled thereto in amounts governed by each participant’s tentative account. Under no circumstances, however, could payments from Kaiser to the trust be recouped by Kaiser: once compensation was paid into the trust it was thereafter committed exclusively to the benefit of Permanente’s participating physicians.
Upon the retirement of any partner or eligible non-partner physician, if he had satisfied each of the requirements for participation, the amount that had accumulated in his tentative account over the years would be applied to the purchase of a retirement income contract. While the program thus provided obvious benefits to Permanente’s physicans, it also served Kaiser’s interests. By providing attractive deferred benefits for Permanente’s staff of professionals, the retirement plan was designed to “create an incentive” for physicians to remain with Permanente and thus “insure” that Kaiser would have a “stable and reliable group of physicians.”
During the years from the plan’s inception until its discontinuance in 1963, Kaiser paid a total of more than $2,000,000 into the trust. Permanente, however, did not report these payments as income in its partnership returns. Nor did the individual partners include these payments in the computations of their distributive shares of the partnership’s taxable income. The Commissioner assessed deficiencies against each partner-respondent for his distributive share of the amount paid by Kaiser. Respondents, after paying the assessments under protest, filed these consolidated suits for refund.
The Commissioner premised his assessment on the conclusion that Kaiser’s payments to the trust constituted a form of compensation to the partnership for the services it rendered and therefore was income to the partnership. And, notwithstanding the deflection of those payments to the retirement trust and their current unavailability to the partners, the partners were still taxable on their distributive shares of that compensation. Both the District Court and the Court of Appeals disagreed. They held that the payments to the fund were not income to the partnership because it did not receive them and never had a “right to receive” them. 295 F. Supp., at 1292-1294; 450 F. 2d, at 114-115. They reasoned that the partnership, as an entity, should be disregarded and that each partner should be treated simply as a potential beneficiary of his tentative share of the retirement fund. Viewed in this light, no presently taxable income could be attributed to these cash basis taxpayers because of the contingent and forfeitable nature of the fund allocations. 295 F. Supp., at 1294-1296 ; 450 F. 2d, at 112.
We hold that the courts below erred and that respondents were properly taxable on the partnership’s retirement fund income. This conclusion rests on two familiar principles of income taxation, first, that income is taxed to the party who earns it and that liability may not be avoided through an anticipatory assignment of that income, and, second, that partners are taxable on their distributive or proportionate shares of current partnership income irrespective of whether that income is actually distributed to them. The ensuing discussion is simply an application of those principles to the facts of the present case.
II
Section 703 of the Internal Revenue Code of 1954, insofar as pertinent here, prescribes that “[t]he taxable income of a partnership shall be computed in the same manner as in the case of an individual.” 26 U. S. C. §703 (a). Thus, while the partnership itself pays no taxes, 26 U. S. C. § 701, it must report the income it generates and such income must be calculated in largely the same manner as an individual computes his personal income. For this purpose, then, the partnership is regarded as an independently recognizable entity apart from the aggregate of its partners. Once its income is ascertained and reported, its existence may be disregarded since each partner must pay a tax on a portion of the total income as if the partnership were merely an agent or conduit through which the income passed.
In determining any partner’s income, it is first necessary to compute the gross income of the partnership. One of the major sources of gross income, as defined in § 61 (a)(1) of the Code, is “ [compensation for services, including fees, commissions, and similar items.” 26 U. S. C. §61 (a)(1). There can be no question that Kaiser’s payments to the retirement trust were compensation for services rendered by the partnership under the medical service agreement. These payments constituted an integral part of the employment arrangement. The agreement itself called for two forms of “base compensation” to be paid in exchange for services rendered— direct per-member, per-month payments to the partnership and other, similarly computed, payments to the trust. Nor was the receipt of these payments contingent upon any condition other than continuation of the contractual relationship and the performance of the prescribed medical services. Payments to the trust, much like the direct payments to the partnership, were not forfeitable by the partnership or recoverable by Kaiser upon the happening of any contingency.
Yet the courts below, focusing on the fact that the retirement fund payments were never actually received by the partnership but were contributed directly to the trust, found that the payments were not includable as income in the partnership’s returns. The view of tax accountability upon which this conclusion rests is incompatible with a foundational rule, which this Court has described as “the-first principle of income taxation: that income must be taxed to him who earns it.” Commissioner v. Culbertson, 337 U. S. 733, 739-740 (1949). The entity earning the income — whether a partnership or an individual taxpayer — cannot avoid taxation by entering into a contractual arrangement whereby that income is diverted to some other person or entity. Such arrangements, known to the tax law as “anticipatory assignments of income,” have frequently been held ineffective as means of avoiding tax liability. The seminal precedent, written over 40 years ago, is Mr. Justice Holmes’ opinion for a unanimous Court in Lucas v. Earl, 281 U. S. 111 (1930). There the taxpayer entered into a contract with his wife whereby she became entitled to one-half of any income he might earn in the future. On the belief that a taxpayer was accountable only for income actually received by him, the husband thereafter reported only half of his income. The Court, unwilling to accept that a reasonable construction of the tax laws permitted such easy deflection of income tax liability, held that the taxpayer was responsible for the entire amount of his income.
The basis for the Court’s ruling is explicit and controls the case before us today:
“[T]his case is not to be decided by attenuated subtleties. It turns on the import and reasonable construction of the taxing act. There is no doubt that the statute could tax salaries to those who earned them and provide that the tax could not be escaped by anticipatory arrangements and contracts however skilfully devised to prevent the salary when paid from vesting even for a second in the man who earned it. That seems to us the import of the statute before us and we think that no distinction can be taken according to the motives leading to the arrangement by which the fruits are attributed to a different tree from that on which they grew.” Id., at 114-115.
The principle of Lacas v. Earl, that he who earns income may not avoid taxation through anticipatory arrangements no matter how clever or subtle, has been repeatedly invoked by this Court and stands today as a cornerstone of our graduated income tax system. See, e. g., Commissioner v. Harmon, 323 U. S. 44 (1944); United States v. Joliet & Chicago R. Co., 315 U. S. 44 (1942); Helvering v. Eubank, 311 U. S. 122 (1940); Burnet v. Leininger, 285 U. S. 136 (1932). And, of course, that principle applies with equal force in assessing partnership income.
Permanente’s agreement with Kaiser, whereby a portion of the partnership compensation was deflected to the retirement fund, is certainly within the ambit of Lucas v. Earl. The partnership earned the income and, as a result of arm’s-length bargaining with Kaiser, was responsible for its diversion into the trust fund. The Court of Appeals found the Lucas principle inapplicable because Permanente “never had the right itself to receive the payments made into the trust as current income.” 450 F. 2d, at 114. In support of this assertion, the court relied on language in the agreed statement of facts stipulating that “[t]he payments . . . were paid solely to fund the retirement plan, and were not otherwise available to [Permanente] . . . .” Ibid. Emphasizing that the fund was created to serve Kaiser’s interest in a stable source of qualified, experienced physicians, the court found that Permanente could not have received that income except in the form in which it was received.
The court’s reasoning seems to be that, before the partnership could be found to have received income, there must be proof that “Permanente agreed to accept less direct compensation from Kaiser in exchange for the retirement plan payments.” Id., at 114-115. Apart from the inherent difficulty of adducing such evidence, we know of no authority imposing this burden upon the Government. Nor do we believe that the guiding principle of Lucas v. Earl may be so easily circumvented. Kaiser’s motives for making payments are irrelevant to the determination whether those amounts may fairly be viewed as compensation for services rendered. Neither does Kaiser’s apparent insistence upon payment to the trust deprive the agreed contributions of their character as compensation. The Government need not prove that the taxpayer had complete and unrestricted power to designate the manner and form in which his income is received. We may assume, especially in view of the relatively unfavorable tax status of self-employed persons with respect to the tax treatment of retirement plans, that many partnerships would eagerly accept conditions similar to those prescribed by this trust in consideration for tax-deferral benefits of the sort suggested here. We think it clear, however, that the tax laws permit no such easy road to tax avoidance or deferment. Despite the novelty and ingenuity of this arrangement, Permanente's “base compensation” in the form of payments to a retirement fund was income to the partnership and should have been reported as such.
III
Since the retirement fund payments should have been reported as income to the partnership, along with other income received from Kaiser, the individual partners should have included their shares of that income in their individual returns. 26 U. S. C. §§ 61 (a)(13), 702, 704. For it is axiomatic that each partner must pay taxes on his distributive share of the partnership's income without regard to whether that amount is actually distributed to him. Heiner v. Mellon, 304 U. S. 271 (1938), decided under a predecessor to the current partnership provisions of the Code, articulates the salient proposition. After concluding that “distributive” share means the “proportionate” share as determined by the partnership agreement, id., at 280, the Court stated:
“The tax is thus imposed upon the partner’s proportionate share of the net income of the partnership, and the fact that it may not be currently distributable, whether by agreement of the parties or by operation of law, is not material.” Id., at 281.
New principles of partnership taxation are more firmly established than that no matter the reason for nondistri-bution each partner must pay taxes on his distributive share. Treas. Reg. § 1.702-1, 26 CFR § 1.702-1 (1972). See, e. g., Hulbert v. Commissioner, 227 F. 2d 399 (CA7 1955); Bell v. Commissioner, 219 F. 2d 442 (CA5 1955); Stewart v. United States, 263 F. Supp. 451 (SDNY 1967); Freudmann v. Commissioner, 10 T. C. 775 (1948); S. Surrey & W. Warren, Federal Income Taxation 1115 (1960) ; 6 J. Mertens, Law of Federal Income Taxation §§ 35.01, 35.22 (1968); A. Willis, On Partnership Taxation § 5.01 (1971).
The courts below reasoned to the contrary, holding that the partners here were not properly taxable on the amounts contributed to the retirement fund. This view, apparently, was based on the assumption that each partner’s distributive share prior to retirement was too contingent and unascertainable to constitute presently recognizable income. It is true that no partner knew with certainty exactly how much he would ultimately receive or whether he would in fact be entitled to receive anything. But the existence of conditions upon the actual receipt by a partner of income fully earned by the partnership is irrelevant in determining the amount of tax due from him. The fact that the courts below placed such emphasis on this factor suggests the basic misapprehension under which they labored in this case. Rather than being viewed as responsible contributors to the partnership’s total income, respondent-partners were seen only as contingent beneficiaries of the trust. In some measure, this misplaced focus on the considerations of uncertainty and forfeitability may be a consequence of the erroneous manner in which the Commissioner originally assessed the partners’ deficiencies. The Commissioner divided Kaiser’s trust fund payments into two categories: (1) payments earmarked for the tentative accounts of nonpartner physicians; and (2) those allotted to partner physicians. The payments to the trust for the former category of nonpartner physicians were correctly counted as income to the partners in accord with the distributive-share formula as established in the partnership agreement. The latter payments to the tentative accounts of the individual partners, however, were improperly allocated to each partner pursuant to the complex formula in the retirement plan itself, just as if that agreement operated as an amendment to the partnership agreement. 295 F. Supp., at 1292.
The Solicitor General, alluding to this miscomputation during oral argument, suggested that this error “may be what threw the court below off the track.” It should be clear that the contingent and unascertainable nature of each partner's share under the retirement trust is irrelevant to the computation of his distributive share. The partnership had received as income a definite sum which was not subject to diminution or forfeiture. Only its ultimate disposition among the employees and partners remained uncertain. For purposes of income tax computation it made no difference that some partners might have elected not to participate in the retirement program or that, for any number of reasons, they might not ultimately receive any of the trust's benefits. Indeed, as the Government suggests, the result would be quite the same if the “potential beneficiaries included no partners at all, but were children, relatives, or other objects of the partnership's largesse.” The sole operative consideration is that the income had been received by the partnership, not what disposition might have been effected once the funds were received.
IV
In summary, we find this case controlled by familiar and long-settled principles of income and partnership taxation. There being no doubt about the character of the payments as compensation, or about their actual receipt, the partnership was obligated to report them as income presently received. Likewise, each partner was responsible for his distributive share of that income. We, therefore, reverse the judgments and remand the case with directions that judgments be entered for the United States.
It is so ordered.
Mr. Justice Douglas dissents.
Technically, the married respondents’ spouses are also parties because they filed joint income tax returns for the years in question here. Any reference to respondents in this opinion, however, refers only to the partner physicians.
The pertinent portion of the Kaiser-Permanente medical service contract states:
“Article H
“Base Compensation to Medical Group
“As base compensation to [Permanente] for Medical Services to be provided by [Permanente] hereunder, [Kaiser] shall pay to [Permanente] the amounts specified in this Article H.
“Section Provision for Savings and Retirement Program for Physicians.
“In the event that [Permanente] establishes a savings and retirement plan or other deferred compensation plan approved by [Kaiser], [Kaiser] will pay, in addition to all other sums payable by [Kaiser] under this Agreement, the contributions required under such plan to the extent that such contributions exceed amounts, if any, contributed by Physicians
The trust agreement states:
“The tentative accounts and suspended tentative accounts provided for Participants hereunder are solely for the purpose of facilitating record keeping and necessary computations, and confer no rights in the trust fund upon the individuals for whom they are established. . . .”
If, however, termination were occasioned by death or permanent disability, the trust agreement provided for receipt of such amounts as had accumulated in that physician’s tentative account. Additionally, if, after his termination for reasons of disability prior to retirement, a physician should reassociate with some affiliated medical group his rights as a participant would not be forfeited.
The agreed statement of facts filed by the parties in the District Court states:
“The primary purpose of the retirement plan was to create an incentive for physicians to remain with [Permanente] . . . and thus to insure [Kaiser] that it would have a stable and reliable group of physicians providing medical services to its members with a minimum, of turn-over. . . .”
The Court of Appeals purported not to decide, as the District Court had, whether the partnership should be viewed as an “entity” or as a “conduit.” 450 F. 2d 109, 113 n. 5, and 115. Yet, its analysis indicates that it found it proper to disregard the partnership as a separate entity. After explaining its view that Permanente never had a right to receive the payments, the Court of Appeals stated: “When the transaction is viewed in this light, the partnership becomes a mere agent contracting on behalf of its members for payments to the trust for their ultimate benefit, rather than a principal which itself realizes taxable income.” Id., at 115 (emphasis supplied).
Each respondent reported his income for the years in question on the cash basis. The partnership reported its taxable receipts under the accrual method.
There has been a great deal of discussion in the briefs and in the lower court opinions with respect to whether a partnership is to be viewed as an “entity” or as a “conduit.” We find ourselves in agreement with the Solicitor General's remark during oral argument when he suggested that “[i]t seems odd that we should still be discussing such things in 1972.” Tr. of Oral Arg. 14. The legislative history indicates, and the commentators agree, that partnerships are entities for purposes of calculating and filing informational returns but that they are conduits through which the taxpaying obligation passes to the individual partners in accord with their distributive shares. See, e. g., H. R. Rep. No. 1337, 83d Cong., 2d Sess., 65-66 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 89-90 (1954); 6 J. Mertens, Law of Federal Income Taxation § 35.01 (1968); S. Surrey & W. Warren, Federal Income Taxation 1115-1116 (1960); Jackson, Johnson, Surrey, Tenen & Warren, The Internal Revenue Code of 1954: Partnerships, 54 Col. L. Rev. 1183 (1954).
The agreed statement of facts states that the contracting parties were “separate organizations independently contracting with one another at arms’ length.”
See n. 5, supra.
Respondents do not contend that such payments were gifts or some other type of nontaxable contribution. See Commissioner v. LoBue, 351 U. S. 243 (1956); Bingler v. Johnson, 394 U. S. 741 (1969).
Disparities have long existed between the tax treatment of pension plans for corporate employees and the treatment of similar plans for the self-employed and for members of partnerships. S. Surrey & W. Warren, supra, n. 8, at 598-599. In 1962, Congress endeavored to ameliorate these differences by enacting corrective legislation, Pub. L. 87-792, 76 Stat. 809. While that legislation, commonly known as H. R. 10 or the Jenkins-Keogh Bill, provided some relief, it fell far short of affording a parity of treatment for professionals and other self-employed individuals. Internal Revenue Code of 1954, § 404. For a detailed review of the intricate provisions of the applicable statute and for a close comparison of the present differences, see Grayck, Tax Qualified Retirement Plans for Professional Practitioners: A Comparison of the Self-Employed Individuals Tax Requirement Act of 1962 and the Professional Association, 63 Col. L. Rev. 415 (1963); Note, Federal Tax Policy and Retirement Benefits — A New Approach, 59 Geo. L. J. 1299 (1971); Note, Tax Parity for Self-Employed Retirement Plans, 58 Va. L. Rev. 338 (1972).
Respondents contend in this Court that this case is controlled by Commissioner v. First Security Bank of Utah, 405 U. S. 394 (1972), decided last Term. We held there that the Commissioner could not properly allocate income to one of a controlled group of corporations under 26 U. S. C. § 482 where that corporation could not have received that income as a matter of law. The “assignment-of-ineome doctrine” could have no application in that peculiar circumstance because the taxpayer had no legal right to receive the income in question. Id., at 403-404. In essence, that case involved a deflection of income imposed by law, not an assignment arrived at by the consensual agreement of two parties acting at arm’s length as we have in the present case. See n. 5, supra.
Revenue Act of 1918, §218 (a), 40 Stat. 1070:
“There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year . . . .”
Other predecessor statutes -contained similar explicit indications that a partner’s distributive share was to be computed without reference to actual distribution. See Income Tax Act of 1913, § II D, 38 Stat. 169 (“whether divided or otherwise”); Revenue Act of 1938, § 182, 52 Stat. 521 (“whether or not distribution is made to hira”). Nothing in the legislative history suggests that any substantive change was intended by the deletion of this phrase from the 1954 Code revisions. See H. R. Rep. No. 1337, 83d Cong., 2d Sess., 65 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 89 (1954).
The regulation states as follows :
“Each partner is required to take into account separately in his return his distributive share, whether or not distributed, of each class or item of partnership income . . . .”
These amounts would be divided equally among the partners pursuant to the partnership agreement’s stipulation that all income above each partner’s drawing account “shall be distributed equally.”
Tr. of Oral Arg. 13-14. As the Solicitor General has also pointed out, the parties have, by stipulation in their agreed statement of facts, foreseen that recomputations might be necessary in light of the ultimate resolution of this controversy and have taken precautions to assure that any necessary reallocations may be handled expeditiously. Agreed Statement of Facts ¶24, App. 87-88.
Brief for United States 21. For this reason, the cases relied on by the Court of Appeals, 450 F. 2d, at 113, which have held that payments made into deferred compensation programs having contingent and forfeitable features are not taxable until received, are inapposite. Schaefer v. Bowers, 50 F. 2d 689 (CA2 1931); Perkins v. Commissioner, 8 T. C. 1051 (1947); Robertson v. Commissioner, 6 T. C. 1060 (1946). Indeed, the Government notes, possibly as a consequence of these cases, that the Commissioner has not sought to tax the nonpartner physicians on their contingent accounts under the retirement plan. Brief for United States 21. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"Federal Trade Commission",
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] | [
68
] |
GENERAL TELEPHONE COMPANY OF THE SOUTHWEST v. FALCON
No. 81-574.
Argued April 26, 1982
Decided June 14, 1982
Stevens, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined. Burger, C. J., filed an opinion concurring in part and dissenting in part, post, p. 161.
Thompson Powers argued the cause for petitioner. With him on the briefs were Mark B. Goodwin and E. Russell Nunnally.
Frank P. Hernandez argued the cause for respondent. With him on the brief was John E. Collins.
Briefs of amici curiae urging reversal were filed by Robert E. Williams, Douglas S. McDowell, and Daniel R. Levinson for the Equal Employment Advisory Council; and by Wayne S. Bishop, Richard K. Walker, and Donald W. Anderson for Republicbank Dallas.
Jack Greenberg, James M. Nabrit III, Barry L. Goldstein, Vilma S. Martinez, and Morris J. Bailer filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al., as amici curiae urging affirmance.
Solicitor General Lee, Assistant Attorney General Reynolds, Jessica Dunsay Silver, Mark L. Gross, and Harold Levy filed a brief for the United States as amicus curiae.
Justice Stevens
delivered the opinion of the Court.
The question presented is whether respondent Falcon, who complained that petitioner did not promote him because he is a Mexican-American, was properly permitted to maintain a class action on behalf of Mexican-American applicants for employment whom petitioner did not hire.
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In 1969 petitioner initiated a special recruitment and training program for minorities. Through that program, respondent Falcon was hired in July 1969 as a groundman, and within a year he was twice promoted, first to lineman and then to lineman-in-charge. He subsequently refused a promotion to installer-repairman. In October 1972 he applied for the job of field inspector; his application was denied even though the promotion was granted several white employees with less seniority.
Falcon thereupon filed a charge with the Equal Employment Opportunity Commission stating his belief that he had been passed over for promotion because of his national origin and that petitioner’s promotion policy operated against Mexican-Americans as a class. Falcon v. General Telephone Co. of Southwest, 626 F. 2d 369, 372, n. 2 (CA5 1980). In due course he received a right-to-sue letter from the Commission and, in April 1975, he commenced this action under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. (1976 ed. and Supp. IV), in the United States District Court for the Northern District of Texas. His complaint alleged that petitioner maintained “a policy, practice, custom, or usage of: (a) discriminating against [Mexican-Americans] because of national origin and with respect to compensation, terms, conditions, and privileges of employment, and (b) ... subjecting [Mexican-Americans] to continuous employment discrimination.” Respondent claimed that as a result of this policy whites with less qualification and experience and lower evaluation scores than respondent had been promoted more rapidly. The complaint contained no factual allegations concerning petitioner’s hiring practices.
Respondent brought the action “on his own behalf and on behalf of other persons similarly situated, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure.” The class identified in the complaint was “composed of Mexican-American persons who are employed, or who might be employed, by GENERAL TELEPHONE COMPANY at its place of business located in Irving, Texas, who have been and who continue to be or might be adversely affected by the practices complained of herein.”
After responding to petitioner’s written interrogatories, respondent filed a memorandum in favor of certification of “the class of all hourly Mexican American employees who have been employed, are employed, or may in the future be employed and all those Mexican Americans who have applied or would have applied for employment had the Defendant not practiced racial discrimination in its employment practices.” App. 46-47. His position was supported by the ruling of the United States Court of Appeals for the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 417 F. 2d 1122 (1969), that any victim of racial discrimination in employment may maintain an “across the board” attack on all unequal employment practices alleged to have been committed by the employer pursuant to a policy of racial discrimination. Without conducting an evidentiary hearing, the District Court certified a class including Mexican-American employees and Mexican-American applicants for employment who had not been hired.
Following trial of the liability issues, the District Court entered separate findings of fact and conclusions of law with respect first to respondent and then to the class. The District Court found that petitioner had not discriminated against respondent in hiring, but that it did discriminate against him in its promotion practices. App. to Pet. for Cert. 35a, 37a. The court reached converse conclusions about the class, finding no discrimination in promotion practices, but concluding that petitioner had discriminated against Mexican-Americans at its Irving facility in its hiring practices. Id., at 39a-40a.
After various post-trial proceedings, the District Court ordered petitioner to furnish respondent with a list of all Mexican-Americans who had applied for employment at the Irving facility during the period between January 1,1973, and October 18,1976. Respondent was then ordered to give notice to those persons advising them that they might be entitled to some form of recovery. Evidence was taken concerning the applicants who responded to the notice, and backpay was ultimately awarded to 13 persons, in addition to respondent Falcon. The total recovery by respondent and the entire class amounted to $67,925.49, plus costs and interest.
Both parties appealed. The Court of Appeals rejected respondent’s contention that the class should have encompassed all of petitioner’s operations in Texas, New Mexico, Oklahoma, and Arkansas. On the other hand, the court also rejected petitioner’s argument that the class had been defined too broadly. For, under the Fifth Circuit’s across-the-board rule, it is permissible for “an employee complaining of one employment practice to represent another complaining of another practice, if the plaintiff and the members of the class suffer from essentially the same injury. In this case, all of the claims are based on discrimination because of national origin.” 626 F. 2d, at 375. The court relied on Payne v. Travenol Laboratories, Inc., 565 F. 2d 895 (1978), cert. denied, 439 U. S. 835, in which the Fifth Circuit stated:
“Plaintiffs’ action is an ‘across the board’ attack on unequal employment practices alleged to have been committed by Travenol pursuant to- a policy of racial discrimination. As parties who have allegedly been aggrieved by some of those discriminatory practices, plaintiffs have demonstrated a sufficient nexus to enable them to represent other class members suffering from different practices motivated by the same policies.” 565 F. 2d, at 900, quoted in 626 F. 2d, at 375.
On the merits, the Court of Appeals upheld respondent’s claim of disparate treatment in promotion, but held that the District Court’s findings relating to disparate impact in hiring were insufficient to support recovery on behalf of the class. After this Court decided Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, we vacated the judgment of the Court of Appeals and directed further consideration in the light of that opinion. General Telephone Co. of Southwest v. Falcon, 450 U. S. 1036. The Fifth Circuit thereupon vacated the portion of its opinion addressing respondent’s promotion claim but reinstated the portions of its opinion approving the District Court’s class certification. 647 F. 2d 633 (1981). With the merits of both respondent’s promotion claim and the class hiring claims remaining open for reconsideration in the District Court on remand, we granted certiorari to decide whether the class action was properly maintained on behalf of both employees who were denied promotion and applicants who were denied employment.
M
The class-action device was designed as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U. S. 682, 700-701. Class relief is “peculiarly appropriate” when the “issues involved are common to the class as a whole” and when they “turn on questions of law applicable in the same manner to each member of the class.” Id., at 701. For in such cases, “the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” Ibid.
Title VII of the Civil Rights Act of 1964, as amended, authorizes the Equal Employment Opportunity Commission to sue in its own name to secure relief for individuals aggrieved by discriminatory practices forbidden by the Act. See 42 U. S. C. §2000e-5(f)(l). In exercising this enforcement power, the Commission may seek relief for groups of employees or applicants for employment without complying with the strictures of Rule 23. General Telephone Co. of Northwest v. EEOC, 446 U. S. 318. Title VII, however, contains no special authorization for class suits maintained by private parties. An individual litigant seeking to maintain a class action under Title VII must meet “the prerequisites of numerosity, commonality, typicality, and adequacy of representation” specified in Rule 23(a). Id., at 330. These requirements effectively “limit the class claims to those fairly encompassed by the named plaintiff’s claims.” Ibid.
We have repeatedly held that “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Texas Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 403 (quoting Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208, 216). In East Texas Motor Freight, a Title VII action brought by three Mexican-American city drivers, the Fifth Circuit certified a class consisting of the trucking company’s black and Mexican-American city drivers allegedly denied on racial or ethnic grounds transfers to more desirable line-driver jobs. We held that the Court of Appeals had “plainly erred in declaring a class action.” 431 U. S., at 403. Because at the time the class was certified it was clear that the named plaintiffs were not qualified for line-driver positions, “they could have suffered no injury as a result of the allegedly discriminatory practices, and they were, therefore, simply not eligible to represent a class of persons who did allegedly suffer injury.” Id., at 403-404.
Our holding in East Texas Motor Freight was limited; we noted that “a different case would be presented if the District Court had certified a class and only later had it appeared that the named plaintiffs were not class members or were otherwise inappropriate class representatives.” Id., at 406, n. 12. We also recognized the theory behind the Fifth Circuit’s across-the-board rule, noting our awareness “that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs,” and that “[cjommon questions of law or fact are typically present.” Id., at 405. In the same breath, however, we reiterated that “careful attention to the requirements of Fed. Rule Civ. Proc. 23 remains nonetheless indispensable” and that the “mere fact that a complaint alleges racial or ethnic discrimination does not in itself ensure that the party who has brought the lawsuit will be an adequate representative of those who may have been the real victims of that discrimination.” Id., at 405-406.
We cannot disagree with the proposition underlying the across-the-board rule — that racial discrimination is by definition class discrimination. But the allegation that such discrimination has occurred neither determines whether a class action may be maintained in accordance with Rule 23 nor defines the class that may be certified. Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims. For respondent to bridge that gap, he must prove much more than the validity of his own claim. Even though evidence that he was passed over for promotion when several less deserving whites were advanced may support the conclusion that respondent was denied the promotion because of his national origin, such evidence would not necessarily justify the additional inferences (1) that this discriminatory treatment is typical of petitioner’s promotion practices, (2) that petitioner’s promotion practices are motivated by a policy of ethnic discrimination that pervades petitioner’s Irving division, or (3) that this policy of ethnic discrimination is reflected in petitioner’s other employment practices, such as hiring, in the same way it is manifested in the promotion practices. These additional inferences demonstrate the tenuous character of any presumption that the class claims are “fairly encompassed” within respondent’s claim.
Respondent’s complaint provided an insufficient basis for concluding that the adjudication of his claim of discrimination in promotion would require the decision of any common question concerning the failure of petitioner to hire more Mexican-Americans. Without any specific presentation identifying the questions of law or fact that were common to the claims of respondent and of the members of the class he sought to represent, it was error for the District Court to presume that respondent’s claim was typical of other claims against petitioner by Mexican-American employees and applicants. If one allegation of specific discriminatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential companywide class action. We find nothing in the statute to indicate that Congress intended to authorize such a wholesale expansion of class-action litigation.
The trial of this class action followed a predictable course. Instead of raising common questions of law or fact, respondent’s evidentiary approaches to the individual and class claims were entirely different. He attempted to sustain his individual claim by proving intentional discrimination. He tried to prove the class claims through statistical evidence of disparate impact. Ironically, the District Court rejected the class claim of promotion discrimination, which conceptually might have borne a closer typicality and commonality relationship with respondent’s individual claim, but sustained the class claim of hiring discrimination. As the District Court’s bifurcated findings on liability demonstrate, the individual and class claims might as well have been tried separately. It is clear that the maintenance of respondent’s action as a class action did not advance “the efficiency and economy of litigation which is a principal purpose of the procedure.” American Pipe & Construction Co. v. Utah, 414 U. S. 538, 553.
We do not, of course, judge the propriety of a class certification by hindsight. The District Court’s error in this case, and the error inherent in the across-the-board rule, is the failure to evaluate carefully the legitimacy of the named plaintiff’s plea that he is a proper class representative under Rule 23(a). As we noted in Coopers & Lybrand v. Livesay, 437 U. S. 463, “the class determination generally involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’” Id., at 469 (quoting Mercantile Nat. Bank v. Langdeau, 371 U. S. 555, 558). Sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff’s claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question. Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation. For such an order, particularly during the period before any notice is sent to members of the class, “is inherently tentative.” 437 U. S., at 469, n. 11. This flexibility enhances the usefulness of the class-action device; actual, not presumed, conformance with Rule 23(a) remains, however, indispensable.
HH b-H b-H
The need to carefully apply the requirements of Rule 23(a) to Title VII class actions was noticed by a member of the Fifth Circuit panel that announced the across-the-board rule. In a specially concurring opinion in Johnson v. Georgia Highway Express, Inc., 417 F. 2d, at 1125-1127, Judge Godbold emphasized the need for “more precise pleadings,” id., at 1125, for “without reasonable specificity the court cannot define the class, cannot determine whether the representation is adequate, and the employer does not know how to defend,” id., at 1126. He termed as “most significant” the potential unfairness to the class members bound by the judgment if the framing of the class is overbroad. Ibid. And he pointed out the error of the “tacit assumption” underlying the across-the-board rule that “all will be well for surely the plaintiff will win and manna will fall on all members of the class.” Id., at 1127. With the same concerns in mind, we reiterate today that a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.
The judgment of the Court of Appeals affirming the certification order is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
App. 14. In paragraph VI of the complaint, respondent alleged:
“The Defendant has established an employment, transfer, promotional, and seniority system, the design, intent, and purpose of which is to continue and preserve, and which has the effect of continuing and preserving, the Defendant’s policy, practice, custom and usage of limiting the employment, transfer, and promotional opportunities of Mexican-American employees of the company because of national origin.” Id., at 15.
Id., at 13. Rule 23 provides, in part:
“(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
“(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunc-tive relief or corresponding declaratory relief with respect to the class as a whole . . . .”
App. 13-14. The paragraph of the complaint in which respondent alleged conformance with the requirements of Rule 23 continued:
“There are common questions of law and fact affecting the rights of the members of this class who are, and who continue to be, limited, classified, and discriminated against in ways which deprive and/or tend to deprive them of equal employment opportunities and which otherwise adversely affect their status as employees because of national origin. These persons are so numerous that joinder of all members is impracticable. A common relief is sought. The interests of said class are adequately represented by Plaintiff. Defendant has acted or refused to act on grounds generally applicable to the Plaintiff.” Id., at 14.
Petitioner’s Interrogatory No. 8 stated:
“Identify the common questions of law and fac[t] which affect the rights of the members of the purported class.” Id., at 26.
Respondent answered that interrogatory as follows:
“The facts which affect the rights of the members of the class are the facts of their employment, the ways in which evaluations are made, the subjective rather than objective manner in which recommendations for raises and transfers and promotions are handled, and all of the facts surrounding the employment of Mexiean-Ameriean persons by General Telephone Company. The questions of law specified in Interrogatory No. 8 call for a conclusion on the part of the Plaintiff.” Id., at 34.
The District Court’s pretrial order of February 2, 1976, provided, in part:
“The case is to proceed as a class action and the Plaintiff is to represent the class. The class is to be made up of those employees who are employed and employees who have applied for employment in the Irving Division of the Defendant company, and no other division.
“Plaintiff and Defendant are to hold further negotiations to see if there is a possibility of granting individual relief to the Plaintiff, MARIANO S. FALCON.” App. to Pet. for Cert. 48a-49a.
The District Court denied subsequent motions to decertify the class both before and after the trial.
The District Court ordered petitioner to accelerate its affirmative-action plan by taking specified steps to more actively recruit and promote Mexican-Americans at its Irving facility. See id,., at 41a-45a.
Respondent’s individual recovery amounted to $1,040.33. A large share of the class award, $28,827.50, represented attorney’s fees. Most of the remainder resulted from petitioner’s practice of keeping all applications active for only 90 days; the District Court found that most of the applications had been properly rejected at the time they were considered, but that petitioner could not justify the refusal to extend employment to disappointed applicants after an interval of 90 days. See 463 F. Supp. 315 (1978).
The Court of Appeals held that the District Court had not abused its discretion since each of petitioner’s divisions conducted its own hiring and since management of the broader class would be much more difficult. Falcon v. General Telephone Co. of Southwest, 626 F. 2d 369, 376 (CA5 1980).
The court continued:
“While similarities of sex, race or national origin claims are not dispositive in favor of finding that the prerequisites of Rule 23 have been met, they are an extremely important factor in the determination, that can outweigh the fact that the members of the plaintiff class may be complaining about somewhat different specific discriminatory practices. In addition here, the plaintiff showed more than an alliance based simply on the same type of discriminatory claim. He also showed a similarity of interests based on job location, job function and other considerations.” Id., at 375-376 (citations omitted).
The court did not explain how job location, job function, and the unidentified other considerations were relevant to the Rule 23(a) determination.
The District Court found that petitioner’s proffered reasons for promoting the whites, rather than respondent, were insufficient and subjective. The Court of Appeals held that respondent had made out a prima facie case under the test set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802, and that the District Court’s conclusion that petitioner had not rebutted that prima facie case was not clearly erroneous. In so holding, the Court of Appeals relied on its earlier opinion in Burdine v. Texas Dept. of Community Affairs, 608 F. 2d 563 (1979). Our opinion in Burdine had not yet been announced.
The Court of Appeals disposed of a number of other contentions raised by both parties, and reserved others pending the further proceedings before the District Court on remand. Among the latter issues was petitioner’s objection to the District Court’s theory for computing the class backpay awards. See n. 7, supra.
The District Court’s finding was based on statistical evidence comparing the number of Mexican-Americans in the company’s employ, and the number hired in 1972 and 1973, with the percentage of Mexican-Americans in the Dallas-Fort Worth labor force. See App. to Pet. for Cert. 39a. Since recovery had been allowed for the years 1973 through 1976 based on statistical evidence pertaining to only a portion of that period, and since petitioner’s evidence concerning the entire period suggested that there was no disparate impact, the Court of Appeals ordered further proceedings on the class hiring claims. 626 F. 2d, at 380-382.
See Hall v. Werthan Bag Corp., 251 F. Supp. 184, 186 (MD Tenn. 1966).
The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest. In this case, we need not address petitioner’s argument that there is a conflict of interest between respondent and the class of rejected applicants because an enlargement of the pool of Mexican-American employees will decrease respondent’s chances for promotion. See General Telephone Co. of Northwest v. EEOC, 446 U. S. 318, 331 (“In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes”); see also East Texas Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 404-405.
See n. 4, supra.
If petitioner used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a). Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes. In this regard it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination. The mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimination against a common employer.
“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.” Fed. Rule Civ. Proc. 23(c)(1). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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31
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McINTYRE, executor of ESTATE OF McINTYRE, DECEASED v. OHIO ELECTIONS COMMISSION
No. 93-986.
Argued October 12, 1994
Decided April 19, 1995
Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., filed a concurring opinion, post, p. 358. Thomas, J., filed an opinion concurring in the judgment, post, p. 358. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 371.
David Goldberger argued the cause for petitioner. With him on the briefs were George Q. Vaile, Steven R. Shapiro, Joel M. Gora, Barbara P. O’Toole, and Louis A. Jacobs.
Andrew I. Sutter, Assistant Attorney General of Ohio, argued the cause for respondent. With him on the briefs were Lee Fisher, Attorney General, Andrew S. Bergman, Robert A. Zimmerman, and James M. Harrison, Assistant Attorneys General, Richard A. Cordray, State Solicitor, and Simon B. Karas
Briefs of amici curiae urging affirmance were filed for the State of Tennessee et al. by Charles W. Burson, Attorney General of Tennessee, Michael E. Moore, Solicitor General, and Michael W. Catalano, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Bruce M. Botelho of Alaska, Winston Bryant of Arkansas, Gale A. Norton of Colorado, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Pamela Fanning Carter of Indiana, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P Mazurek of Montana, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Deborah T Poritz of New Jersey, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, T Travis Medlock of South Carolina, Mark Barnett of South Dakota, and Jeffrey L. Amestoy of Vermont; and for the Council of State Governments et al. by Richard Ruda and Lee Fennell.
Charles H. Bell, Jr., and Robert E. Leidigh filed a brief for the California Political Attorneys Association as amicus curiae.
Justice Stevens
delivered the opinion of the Court.
The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a “law . . . abridging the freedom of speech” within the meaning of the First Amendment.
I
On April 27, 1988, Margaret McIntyre distributed leaflets to persons attending a public meeting at the Blendon Middle School in Westerville, Ohio. At this meeting, the superintendent of schools planned to discuss an imminent referendum on a proposed school tax levy. The leaflets expressed Mrs. McIntyre’s opposition to the levy. There is no suggestion that the text of her message was false, misleading, or libelous. She had composed and printed it on her home computer and had paid a professional printer to make additional copies. Some of the handbills identified her as the author; others merely purported to express the views of “CONCERNED PARENTS AND TAX PAYERS.” Except for the help provided by her son and a friend, who placed some of the leaflets on car windshields in the school parking lot, Mrs. McIntyre acted independently.
While Mrs. McIntyre distributed her handbills, an official of the school district, who supported the tax proposal, advised her that the unsigned leaflets did not conform to the Ohio election laws. Undeterred, Mrs. McIntyre appeared at another meeting on the next evening and handed out more of the handbills.
The proposed school levy was defeated at the next two elections, but it finally passed on its third try in November 1988. Five months later, the same school official filed a complaint with the Ohio Elections Commission charging that Mrs. McIntyre's distribution of unsigned leaflets violated § 3599.09(A) of the Ohio Code. The commission agreed and imposed a fine of $100.
The Franklin County Court of Common Pleas reversed. Finding that Mrs. McIntyre did not “mislead the public nor act in a surreptitious manner,” the court concluded that the statute was unconstitutional as applied to her conduct. App. to Pet. for Cert. A-34 to A-35. The Ohio Court of Appeals, by a divided vote, reinstated the fine. Notwithstanding doubts about the continuing validity of a 1922 decision of the Ohio Supreme Court upholding the statutory predecessor of § 3599.09(A), the majority considered itself bound by that precedent. Id., at A-20 to A-21, citing State v. Babst, 104 Ohio St. 167, 135 N. E. 525 (1922). The dissenting judge thought that our intervening decision in Talley v. California, 362 U. S. 60 (1960), in which we invalidated a city ordinance prohibiting all anonymous leafletting, compelled the Ohio court to adopt a narrowing construction of the statute to save its constitutionality. App. to Pet. for Cert. A-30 to A-31.
The Ohio Supreme Court affirmed by a divided vote. The majority distinguished Mrs. McIntyre’s case from Talley on the ground that § 3599.09(A) “has as its purpose the identification of persons who distribute materials containing false statements.” 67 Ohio St. 3d 391, 394, 618 N. E. 2d 152, 154 (1993). The Ohio court believed that such a law should be upheld if the burdens imposed on the First Amendment rights of voters are “‘reasonable’” and “‘nondiscriminatory.’” Id., at 396, 618 N. E. 2d, at 155, quoting Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). Under that standard, the majority concluded that the statute was plainly valid:
“The minor requirement imposed by R.C. 3599.09 that those persons producing campaign literature identify themselves as the source thereof neither impacts the content of their message nor significantly burdens their ability to have it disseminated. This burden is more than counterbalanced by the state interest in providing the voters to whom the message is directed with a mechanism by which they may better evaluate its validity. Moreover, the law serves to identify those who engage in fraud, libel or false advertising. Not only are such interests sufficient to overcome the minor burden placed upon such persons, these interests were specifically acknowledged in [First Nat. Bank of Boston v.] Bellotti[, 435 U. S. 765 (1978),] to be regulations of the sort which would survive constitutional scrutiny.” 67 Ohio St. 3d. at 396, 618 N. E. 2d, at 155-156.
In dissent, Justice Wright argued that the statute should be tested under a more severe standard because of its significant effect “on the ability of individual citizens to.freely express their views in writing on political issues.” Id., at 398, 618 N. E. 2d, at 156-157. He concluded that § 3599.09(A) “is not narrowly tailored to serve a compelling state interest and is, therefore, unconstitutional as applied to McIntyre.” Id., at 401, 618 N. E. 2d, at 159.
Mrs. McIntyre passed away during the pendency of this litigation. Even though the amount in controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court. Our grant of certiorari, 510 U. S. 1108 (1994), reflects our agreement with his appraisal of the importance of the question presented.
II
Ohio maintains that the statute under review is a reasonable regulation of the electoral process. The State does not suggest that all anonymous publications are pernicious or that a statute totally excluding them from the marketplace of ideas would be valid. This is a wise (albeit implicit) concession, for the anonymity of an author is not ordinarily a sufficient reason to exclude her work product from the protections of the First Amendment.
“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.” Talley v. California, 362 U. S., at 64. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.
The, freedom to publish anonymously extends beyond the literary realm. In Talley, the Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices. 362 U. S. 60. Writing for the Court, Justice Black noted that “[persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Id., at 64. Justice Black recalled England’s abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names. Id., at 64-65. On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of political rhetoric, where “the identity of the speaker is an important component of many attempts to persuade,” City of Ladue v. Gilleo, 512 U. S. 43, 56 (1994) (footnote omitted), the most effective advocates have sometimes opted for anonymity. The specific holding in Talley related to advocacy of an economic boycott, but the Court’s reasoning embraced a respected tradition of anonymity in the advocacy of political causes. This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one’s conscience without fear of retaliation.
Ill
California had defended the Los Angeles ordinance at issue in Talley as a law “aimed at providing a way to identify those responsible for fraud, false advertising and libel.” 362 U. S., at 64. We rejected that argument because nothing in the text or legislative history of the ordinance limited its application to those evils. Ibid. We then made clear that we did “not pass on the validity of an ordinance limited to prevent these or any other supposed evils.” Ibid. The Ohio statute likewise contains no language limiting its application to fraudulent, false, or libelous statements; to the extent, therefore, that Ohio seeks to justify § 3599.09(A) as a means to prevent the dissemination of untruths, its defense must fail for the same reason given in Talley. As the facts of this case demonstrate, the ordinance plainly applies even when there is no hint of falsity or libel.
Ohio’s statute does, however, contain a different limitation: It applies only to unsigned documents designed to influence voters in an election. In contrast, the Los Angeles ordinance prohibited all anonymous handbilling “in any place under any circumstances.” Id., at 60-61. For that reason, Ohio correctly argues that Talley does not necessarily control the disposition of this case. We must, therefore, decide whether and to what extent the First Amendment’s protection of anonymity encompasses documents intended to influence the electoral process.
Ohio places its principal reliance on eases such as Anderson v. Celebrezze, 460 U. S. 780 (1983); Storer v. Brown, 415 U. S. 724 (1974); and Burdick v. Takushi, 504 U. S. 428 (1992), in which we reviewed election code provisions governing the voting process itself. See Anderson, supra (filing deadlines); Storer, supra (ballot access); Burdick, supra (write-in voting); see also Tashjian v. Republican Party of Conn., 479 U. S. 208 (1986) (eligibility of independent voters to vote in party primaries). In those cases we refused to adopt “any ‘litmus-paper test’ that will separate valid from invalid restrictions.” Anderson, 460 U. S., at 789, quoting Storer, 415 U. S., at 730. Instead, we pursued an analytical process comparable to that used by courts “in ordinary litigation”: We considered the relative interests of the State and the injured voters, and we evaluated the extent to which the State’s interests necessitated the contested restrictions. Anderson, 460 U. S., at 789. Applying similar reasoning in this case, the Ohio Supreme Court upheld § 3599.09(A) as a “reasonable” and “nondiscriminatory” burden on the rights of voters. 67 Ohio St. 3d, at 396, 618 N. E. 2d, at 155, quoting Anderson, 460 U. S., at 788.
The “ordinary litigation” test does not apply here. Unlike the statutory provisions challenged in Storer and Anderson, § 3599.09(A) of the Ohio Code does not control the mechanics of the electoral process. It is a regulation of pure speech. Moreover, even though this provision applies evenhandedly to advocates of differing viewpoints, it is a direct regulation of the content of speech. Every written document covered by the statute must contain “the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor.” Ohio Rev. Code Ann. § 3599.09(A) (1988). Furthermore, the category of covered documents is defined by their content — only those publications containing speech designed to influence the voters in an election need bear the required markings. Ibid. Consequently, we are not faced with an ordinary election restriction; this case “involves a limitation on political expression subject to exacting scrutiny.” Meyer v. Grant, 486 U. S. 414, 420 (1988).
Indeed, as we have explained on many prior occasions, the category of speech regulated by the Ohio statute occupies the core of the protection afforded by the First Amendment:
“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U. S. 476, 484 (1957). Although First Amendment protections are not confined to ‘the exposition of ideas,’ Winters v. New York, 333 U. S. 507, 510 (1948), ‘there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, ... of course including] discussions of candidates . . . .’ Mills v. Alabama, 384 U. S. 214, 218 (1966). This no more than reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,’ New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation, As the Court observed in Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971), ‘it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’” Buckley v. Valeo, 424 U. S. 1, 14-15 (1976) (per curiam).
Of course, core political speech need not center on a candidate for office. The principles enunciated in Buckley extend equally to issue-based elections such as the school tax referendum that Mrs. McIntyre sought to influence through her handbills. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776-777 (1978) (speech on income tax referendum “is at the heart of the First Amendment’s protection”). Indeed, the speech in which Mrs. McIntyre engaged — handing out leaflets in the advocacy of a politically controversial viewpoint — is the essence of First Amendment expression. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672 (1992); Lovell v. City of Griffin, 303 U. S. 444 (1938). That this advocacy occurred in the heat of a controversial referendum vote only strengthens the protection afforded to Mrs. McIntyre’s expression: Urgent, important, and effective speech can be no less protected than impotent speech, lest the right to speak be relegated to those instances when it is least needed. See Terminiello v. Chicago, 337 U. S. 1, 4 (1949). No form of speech is entitled to greater constitutional protection than Mrs. McIntyre’s.
When a law burdens core political speech, we apply “exacting scrutiny,” and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest. See, e. g., Bellotti, 435 U. S., at 786. Our precedents thus make abundantly clear that the Ohio Supreme Court applied a significantly more lenient standard than is appropriate in a case of this kind.
IV
Nevertheless, the State argues that, even under the strictest standard of review, the disclosure requirement in § 3599.09(A) is justified by two important and legitimate state interests. Ohio judges its interest in preventing fraudulent and libelous statements and its interest in providing the electorate with relevant information to be sufficiently compelling to justify the anonymous speech ban. These two interests necessarily overlap to some extent, but it is useful to discuss them separately.
Insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document’s content that the author is free to include or exclude. . We have already held that the State may not compel a newspaper that prints editorials critical of a particular candidate to provide space for a reply by the candidate. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit. Moreover, in the case of a handbill written by a private citizen who is not known to the recipient, the name and address of the author add little, if anything, to the reader’s ability to evaluate the document’s message. Thus, Ohio’s informational interest is plainly insufficient to support the constitutionality of its disclosure requirement.
The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio’s submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on § 3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann. §§ 3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections and to issue-driven ballot measures. Thus, Ohio’s prohibition of anonymous leaflets plainly is not its principal weapon against fraud. Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify § 3599.09(A)’s extremely broad prohibition.
As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author’s interest in anonymity. Moreover, as this case also demonstrates, the absence of the author’s name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the Election Code. Nor has the State explained why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State’s enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.
V
Finally, Ohio vigorously argues that our opinions in First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), and Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), amply support the constitutionality of its disclosure requirement. Neither case is controlling: The former concerned the scope of First Amendment protection afforded to corporations; the relevant portion of the latter concerned mandatory disclosure of campaign-related expenditures. Neither case involved a prohibition of anonymous campaign literature.
In Bellotti, we reversed a judgment of the Supreme Judicial Court of Massachusetts sustaining a state law that prohibited corporate expenditures designed to influence the vote on referendum proposals. 435 U. S. 765. The Massachusetts court had held that the First Amendment protects corporate speech only if its message pertains directly to the business interests of the corporation. Id., at 771-772. Consistently with our holding today, we noted that the “inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” Id., at 777. We also made it perfectly clear that we were not deciding whether the First Amendment’s protection of corporate speech is coextensive with the protection it affords to individuals. Accordingly, although we commented in dicta on the prophylactic effect of requiring identification of the source of corporate advertising, that footnote did not necessarily apply to independent communications by an individual like Mrs. McIntyre.
Our reference in the Bellotti footnote to the “prophylactic effect” of disclosure requirements cited a portion of our earlier opinion in Buckley, in which we stressed the importance of providing “the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate.’” 424 U. S., at 66. We observed that the “sources of a candidate’s financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.” Id., at 67. Those comments concerned contributions to the candidate or expenditures authorized by the candidate or his responsible agent. They had no reference to the kind of independent activity pursued by Mrs. McIntyre. Required disclosures about the level of financial support a candidate has received from various sources are supported by an interest in avoiding the appearance of corruption that has no application to this case.
True, in another portion of the Buckley opinion we expressed approval of a requirement that even “independent expenditures” in excess of a threshold level be reported to the Federal Election Commission. Id., at 75-76. But that requirement entailed nothing more than an identification to the Commission of the amount and use of money expended in support of a candidate. See id., at 157-159,160 (reproducing relevant portions of the statute). Though such mandatory reporting undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled self-identification on all election-related writings. A written election-related document — particularly a leaflet — is often a personally crafted statement of a political viewpoint. Mrs. McIntyre’s handbills surely fit that description. As such, identification of the author against her will is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue. Disclosure of an expenditure and its use, without more, reveals far less information. It may be information that a person prefers to keep secret, and undoubtedly it often gives away something about the spender’s political views. Nonetheless, even though money may “talk,” its speech is less specific, less personal, and less provocative than a handbill — and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation.
Not only is the Ohio statute’s infringement on speech more intrusive than the Buckley disclosure requirement, but it rests on different and less powerful state interests. The Federal Election Campaign Act of 1971, at issue in Buckley, regulates only candidate elections, not referenda or other issue-based ballot measures; and we construed “independent expenditures” to mean only those expenditures that “expressly advocate the election or defeat of a clearly identified candidate.” Id., at 80. In candidate elections, the Government can identify a compelling state interest in avoiding the corruption that might result from campaign expenditures. Disclosure of expenditures lessens the risk that individuals will spend money to support a candidate as a quid pro quo for special treatment after the candidate is in office. Curriers of favor will be deterred by the knowledge that all expenditures will be scrutinized by the Federal Election Commission and by the public for just this sort of abuse. Moreover, the federal Act contains numerous legitimate disclosure requirements for campaign organizations; the similar requirements for independent expenditures serve to ensure that a campaign organization will not seek to evade disclosure by routing its expenditures through individual supporters. See Buckley, 424 U. S., at 76. In short, although Buckley may permit a more narrowly drawn statute, it surely is not authority for upholding Ohio’s open-ended provision.
VI
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. See Abrams v. United States, 250 U. S. 616, 630-631 (1919) (Holmes, J., dissenting). Ohio has not shown that its interest in preventing the misuse of anonymous election-related speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohio’s blunderbuss approach than the facts of the case before us.
The judgment of the Ohio Supreme Court is reversed.
It is so ordered.
The term “liberty” in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States. The Fourteenth Amendment reads, in relevant part: “No State shall... deprive any person of life, liberty, or property, without due process of law ....” U. S. Const., Arndt. 14, §1. Referring to that Clause in his separate opinion in Whitney v. California, 274 U. S. 357 (1927), Justice Brandéis stated that “all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights.” Id., at 373 (concurring opinion). Although the text of the First Amendment provides only that “Congress shall make no law ... abridging the freedom of speech ...,” Justice Brandéis’ view has been embedded in our law ever since. See First Nat. Bank of Boston v. Bellota, 435 U. S. 765, 779-780 (1978); see also Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20, 25-26 (1992).
The following is one of Mrs. McIntyre’s leaflets, in its original typeface:
m &
me 12 sasa. is* t£zx
Last election Westerville Schools, asked us to vote yes for new buildings and expansions prograss. We gave then what they asked. We knew there was erewded conditions and new growth in the district.
Now we find out there is a 4 aillion dollar deficit - WHY?
We are told the 3 eiddle schools oust be split because of over-crowding, and yet we are told 3 schools are being closed *■ WHY?
A sagnet school is not a full operating sehool, but a specials school.
Residents were asked to work en a 20 sender cosnission to help formulate the new boundaries for 4 weeks they worked long and hard and cess up with a very workable plan. Their plan was totally disregarded * WHY?
WASTE of tax payers dollars aust be stooped. Our children's education and welfare must cose first. WASTE £AN {ffl LONSER ££ TOLERATED.
please vote no
ISSUE 19
TWV* YOU.
CONCERNED PARENTS ANO TAX PAYERS
Ohio Rev. Code Ann. § 3599.09(A) (1988) provides:
“No person shall write, print, post, or distribute, or cause to be written, printed, posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications through newspapers, magazines, outdoor advertising facilities, direct mailings, or other similar types of general public political advertising, or through flyers, handbills, or other nonperiodical printed matter, unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor. The disclaimer ‘paid political advertisement’ is not sufficient to meet the requirements of this division. When such publication is issued by the regularly constituted central or executive committee of a political party, organized as provided in Chapter 3517. of the Revised Code, it shall be sufficiently identified if it bears the name of the committee and its chairman or treasurer. No person, firm, or corporation shall print or reproduce any notice, placard, dodger, advertisement, sample ballot, or any other form of publication' in violation of this section. This section does not apply to the transmittal of personal correspondence that is not reproduced by machine for general distribution.
“The secretary of state may, by rule, exempt, from the requirements of this division, printed matter and certain other kinds of printed communications such as campaign buttons, balloons, pencils, or like items, the size or nature of which makes it unreasonable to add an identification or disclaimer. The disclaimer or identification, when paid for by a campaign committee, shall be identified by the words ‘paid for by’ followed by the name and address of the campaign committee and the appropriate officer of the committee, identified by name and title.”
Section 3599.09(B) contains a comparable prohibition against unidentified communications uttered over the broadcasting facilities of any radio or television station. No question concerning that provision is raised in this case. Our opinion, therefore, discusses only written communications and, particularly, leaflets of the kind Mrs. McIntyre distributed. Cf. Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994) (discussing application of First Amendment principles to regulation of television and radio).
The complaint against Mrs. McIntyre also alleged violations of two other provisions of the Ohio Code, but those charges were dismissed and are not before this Court.
American names such as Mark Twain (Samuel Langhorne Clemens) and O. Henry (William Sydney Porter) come readily to mind. Benjamin Franklin employed numerous different pseudonyms. See 2 W. Bruce, Benjamin FranWin Self-Revealed: A Biographical and Critical Study Based Mainly on His Own Writings, eh. 5 (2d ed. 1923). Distinguished French authors such as Voltaire (Francois Marie Arouet) and George Sand (Amandine Aurore Lucie Dupin), and British authors such as George Eliot (Mary Ann Evans), Charles Lamb (sometimes wrote as “Elia”), and Charles Dickens (sometimes wrote as “Boz”), also published under assumed names. Indeed, some believe the works of Shakespeare were actually written by the Earl of Oxford rather than by William Shaksper of Stratford-on-Avon. See C. Ogburn, The Mysterious William Shakespeare: The Myth & the Reality (2d ed. 1992); but see S. Schoenbaum, Shakespeare’s Lives (2d ed. 1991) (adhering to the traditional view that Shaksper was in fact the author). See also Stevens, The Shakespeare Canon of Statutory Construction, 140 U. Pa. L. Rev. 1373 (1992) (commenting on the competing theories).
Though such a requirement might provide assistance to critics in evaluating the quality and significance of the writing, it is not indispensable. To draw an analogy from a nonliterary context, the now-pervasive practice of grading law school examination papers “blindly” (i. e., under a system in which the professor does not know whose paper she is grading) indicates that such evaluations are possible — indeed, perhaps more reliable — when any bias associated with the author’s identity is prescinded.
That tradition is most famously embodied in the Federalist Papers, authored by James Madison, Alexander Hamilton, and John Jay, but signed “Publius.” Publius’ opponents, the Anti-Federalists, also tended to publish under pseudonyms: prominent among them were “Cato,” believed to be New York Governor George Clinton; “Centinel,” probably Samuel Bryan or his father, Pennsylvania judge and legislator George Bryan; “The Federal Farmer,” who may have been Richard Henry Lee, a Virginia member of the Continental Congress and a signer of the Declaration of Independence; and “Brutus,” who may have been Robert Yates, a New York Supreme Court justice who walked out on the Constitutional Convention. 2 H. Storing, ed., The Complete Anti-Federalist (1981). A forerunner of all of these writers was the pre-Revolutionary War English pamphleteer “Junius,” whose true identity remains a mystery. See Encyclopedia of Colonial and Revolutionary America 220 (J. Faragher ed. 1990) (positing that “Junius” may have been Sir Phillip Francis). The “Letters of Junius” were “widely reprinted in colonial newspapers and lent considerable support to the revolutionary cause.” Powell v. McCormack, 395 U. S. 486, 531, n. 60 (1969).
In his concurring opinion, Justice Harlan added these words:
“Here the State says that this ordinance is aimed at the prevention of ‘fraud, deceit, false advertising, negligent use of words, obscenity, and libel,’ in that it will aid in the detection of those responsible for spreading material of that character. But the ordinance is not so limited, and I think it will not do for the State simply to say that the circulation of all anonymous handbills must be suppressed in order to identify the distributors of those that may be of an obnoxious character. In the absence of a more substantial showing as to Los Angeles' actual experience with the distribution of obnoxious handbills, such a generality is for me too remote to furnish a constitutionally acceptable justification for the deterrent effect on free speech which this all-embracing ordinance is likely to have.” 362 U. S., at 66-67 (footnote omitted).
Arguably, the disclosure requirement places a more significant burden on advocates of unpopular causes than on defenders of the status quo. For purposes of our analysis, however, we assume the statute evenhandedly burdens all speakers who have a legitimate interest in remaining anonymous.
Covered documents are those “designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election . . . .” § 3599.09(A).
In Meyer, we unanimously applied strict scrutiny to invalidate an election-related law making it illegal to pay petition circulators for obtaining signatures to place an initiative on the state ballot. Similarly, in Burson v. Freeman, 504 U. S. 191 (1992), although the law at issue— forbidding campaign-related speech within 100 feet of the entrance to a polling place — was an election-related restriction, both the plurality and dissent applied strict scrutiny because the law was “a facially content-based restriction on political speech in a public forum.” Id., at 198; see also id., at 212-213 (Kennedy, J., concurring); id., at 217 (Stevens, J., dissenting).
“Of course, the identity of the source is helpful in evaluating ideas. But ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’ (Abrams v. United States, [250 U. S. 616, 630 (1919) (Holmes, J., dissenting)]). Don’t underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is ‘responsible’, what is valuable, and- what is truth.” New York v. Duryea, 76 Misc. 2d 948, 966-967, 351 N. Y. S. 2d 978, 996 (1974) (striking down similar New York statute as overbroad).
Section 3599.09.1(B) provides:
“No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:
“(1) Use the title of an office not currently held by a candidate in a manner that implies that the candidate does currently hold that office or use the term ‘re-elect’ when the candidate has never been elected at a primary, general, or special election to the office for which he is a candidate;
“(2) Make a false statement concerning the formal schooling or training completed or attempted by a candidate; a degree, diploma, certificate, scholarship, grant, award, prize, or honor received, earned, or held by a candidate; or the period of time during which a candidate attended any school, college, community technical school, or institution;
“(3) Make a false statement concerning the professional, occupational, or vocational licenses held by a candidate, or concerning any position the candidate held for which he received a salary or wages;
“(4) Make a false statement that a candidate or public official has been indicted or convicted of a theft offense, extortion, or other crime involving financial corruption or moral turpitude;
“(5) Make a statement that a candidate has been indicted for any crime or has been the subject of a finding by the Ohio elections commission without disclosing the outcome of any legal proceedings resulting from the indictment or finding;
“(6) Make a false statement that a candidate or official has a record of treatment or confinement for mental disorder;
“(7) Make a false statement that a candidate or official has been subjected to military discipline for criminal misconduct or dishonorably discharged from the armed services;
“(8) Falsely identify the source of a statement, issue statements under the name of another person without authorization, or falsely state the endorsement of or opposition to a candidate by a person or publication;
“(9) Make a false statement concerning the voting record of a candidate or public official;
“(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement, either knowing the same to be false or with reckless disregard of whether it was false or not, concerning a candidate that is designed to promote the election, nomination, or defeat of the candidate. As used in this section, ‘voting record’ means the recorded ‘yes’ or ‘no’ vote on a bill, ordinance, resolution, motion, amendment, or confirmation.”
Section 3599.09.2(B) provides:
“No person, during the course of any campaign in advocacy of or in opposition to the adoption of any ballot proposition or issue, by means of campaign material, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, a press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:
“(1) Falsely identify the source of a statement, issue statements under the name of another person without authorization, or falsely state the endorsement of or opposition to a ballot proposition or issue by a person or publication;
“(2) Post, publish, circulate, distribute, or otherwise disseminate, a false statement, either knowing the same to be false or acting with reckless disregard of whether it was false or not, that is designed to promote the adoption or defeat of any ballot proposition or issue.” §3599.09.2(B).
We need not, of course, evaluate the constitutionality of these provisions. We quote them merely to emphasize that Ohio has addressed directly the problem of election fraud. To the extent the anonymity ban indirectly seeks to vindicate the same goals, it is merely a supplement to the above provisions.
The same can be said with regard to “libel,” as many of the above-quoted Election Code provisions prohibit false statements about candidates. To the extent those provisions may be underinclusive, Ohio courts also enforce the common-law tort of defamation. See, e. g., Varanese v. Gall, 35 Ohio St. 3d 78, 518 N. E. 2d 1177 (1988) (applying the standard of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), to an Ohio public official’s state-law libel claim arising from an election-related advertisement). Like other forms of election fraud, then, Ohio directly attacks the problem of election-related libel; to the extent that the anonymity ban serves the same interest, it is merely a supplement.
We stressed the importance of this distinction in Buckley v. Valeo, 424 U. S. 1, 37 (1976):
“Treating these expenses [the expenses incurred by campaign volunteers] as contributions when made to the candidate’s campaign or at the direction of the candidate or his staff forecloses an avenue of abuse without limiting actions voluntarily undertaken by citizens independently of a candidate’s campaign.” (Footnote omitted.)
Again, in striking down the independent expenditure limitations of the Federal Election Campaign Act of 1971, 18 U. S. C. § 608(e)(1) (1970 ed., Supp. IV) (repealed 1976), we distinguished another section of the statute (§ 608(b), which we upheld) that placed a ceiling on contributions to a political campaign.
“By contrast, § 608(e)(1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate’s campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. Rather than preventing circumvention of the contribution limitations, § 608(e)(1) severely restricts all independent advocacy despite its substantially diminished potential for abuse.” 424 U. S., at 47.
“The risk of corruption perceived in cases involving candidate elections, e. g., United States v. Automobile Workers, [352 U. S. 567 (1957)]; United States v. CIO, [335 U. S. 106 (1948)], simply is not present in a popular vote on a public issue.” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 790 (1978) (footnote omitted).
As the Illinois Supreme Court explained in People v. White, 116 Ill. 2d 171, 180, 506 N. E. 2d 1284, 1288 (Ill. 1987), which struck down a similar statute:
“Implicit in the State’s ... justification is the concern that the public could be misinformed and an election swayed on the strength of an eleventh-hour anonymous smear campaign to which the candidate could not meaningfully respond. The statute cannot be upheld on this ground, however, because it sweeps within its net a great deal of anonymous speech completely unrelated to this concern. In the first place, the statute has no time limit and applies to literature circulated two months prior to an election as well as that distributed two days before. The statute also prohibits anonymous literature supporting or opposing not only candidates, but also referenda. A public question clearly cannot be the victim of character assassination.”
The temporal breadth of the Ohio statute also distinguishes it from the Tennessee law that we upheld in Burson v. Freeman, 504 U. S. 191 (1992). The Tennessee statute forbade electioneering within 100 feet of the entrance to a polling place. It applied only on election day. The State’s interest in preventing voter intimidation and election fraud was therefore enhanced by the need to prevent last-minute misinformation to which there is no time to respond. Moreover, Tennessee geographically confined the reach of its law to a 100-foot no-solicitation zone. By contrast, the Ohio law forbids anonymous campaign speech wherever it occurs.
“In deciding whether this novel and restrictive gloss on the First Amendment comports with the Constitution and the precedents of this Court, we need not survey the outer boundaries of the Amendment’s protection of corporate speech, or address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment.” Bellotti, 435 U. S., at 777-778.
In a footnote to that passage, we continued:
“Nor is there any occasion to consider in this case whether, under different circumstances, a justification for a restriction on speech that would be inadequate as applied to individuals might suffice to sustain the same restriction as applied to corporations, unions, or like entities.” Id., at 777-778, n. 13.
“Corporate advertising, unlike some methods of participation in political campaigns, is likely to be highly visible. Identification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected. See Buckley, 424 U. S., at 66-67; United States v. Harriss, 347 U. S. 612, 625-626 (1954). In addition, we emphasized in Buckley the prophylactic effect of requiring that the source of communication be disclosed. 424 U. S., at 67.” Id., at 792, n. 32.
One of those provisions, addressing contributions by campaign committees, required:
“the identification of each person to whom expenditures have been made by such committee or on behalf of such committee or candidate within the calendar year in an aggregate amount or value in excess of $100, the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made.” 2 U. S. C. § 434(b)(9) (1970 ed., Supp. IV) (reprinted in Buckley, 424 U. S., at 158).
A separate provision, 2 U. S. C. § 434(e) (1970 ed., Supp. IV) (reprinted in Buckley, 424 U. S., at 160), required individuals making contributions or expenditures to file statements containing the same information.
This interest also serves to distinguish United States v. Harriss, 347 U. S. 612 (1954), in which we upheld limited disclosure requirements for lobbyists. The activities of lobbyists who have direct access to elected representatives, if undisclosed, may well present the appearance of corruption.
We note here also that the federal Act, while constitutional on its face, may not be constitutional in all its applications. Cf. Brown v. Socialist Workers ’74, Campaign Comm. (Ohio), 459 U. S. 87, 88 (1982) (holding Ohio disclosure requirements unconstitutional as applied to “a minor political party which historically has been the object of harassment by government officials and private parties”); Buckley, 424 U. S., at 74 (exempting minor parties from disclosure requirements if they can show “a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties”). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
116
] |
UNITED STATES v. CARMACK.
No. 40.
Argued October 18, 1946.
Decided December 9, 1946.
John J. Cooney argued the cause for the United States. With him on the brief were Solicitor General McGrath, Assistant Attorney General Bazelon, Roger P. Marquis and Dwight D. Doty.
I. R. Kelso argued the cause for respondent. With him on the brief were Homer Hall and Robt. D. Abbott.
Mr. Justice Burton
delivered the opinion of the Court.
This proceeding was instituted by the United States to cojidemn land as a site for a post office and customhouse in the City of Cape Girardeau, Missouri, in reliance upon several federal statutes, including the general Condemnation Act of August 1,1888, and the Public Buildings Act of May 25, 1926. The City and site were selected by the Federal Works Administrator and the Postmaster General acting jointly under the Public Buildings Act. The principal issue is: Was the Federal Works Administrator authorized by the foregoing statutes to acquire by condemnation land held in trust and used by the City for such public purposes as those of a local park, courthouse, city hall and public library?
In 1941, the United States petitioned the United States District Court for the Eastern District of Missouri to condemn as a site for a United States post office and customhouse about one and one-half acres, near the center of the City of Cape Girardeau, together with the improvements thereon except a public library building. This site was part of a four-acre public park and the improvements to be condemned included a building used as the county courthouse and city hall, a memorial fountain, a small memorial monument and a portion of a bandstand. The library building apparently was to be removed by its owners on 30 days’ notice from the United States.
The petition included as parties defendant the City and County, numerous officials and all known and unknown heirs or others who might claim an interest in this site especially through those who conveyed it, in trust, in 1807 to the Commissioners of the District or, in trust, in .1820 to the inhabitants of the Town of Cape Girardeau. Respondent was the only defendant to file an answer. Finding that she had no interest permitting her to maintain the defenses she asserted, the District Court entered a preliminary decree in favor of the United States. On respondent’s appeal the Circuit Court of Appeals remanded the cause for further proceedings consistent with its opinion holding that the respondent had a special interest entitling her to object to the property being taken for a purpose destructive of the public use to which it had been dedicated by her ancestors. Carmack v. United States, 135 F. 2d 196.
In 1944, on retrial before a different judge, the District Court recognized the respondent as entitled to contest the condemnation and, at the direction of the Circuit Court of Appeals, heard evidence as to whether or not the officials of the United States acted capriciously and arbitrarily in selecting this site. It held that “the selection of the site described in the petition, under all the facts referred to, amounts in law to an arbitrary and unnecessary act” and dismissed the petition. United States v. Certain Land, Etc., 55 F. Supp. 555, 564. The Circuit Court of Appeals affirmed the judgment on the ground that the Federal Works Administrator and the Postmaster General did not have sufficient statutory authority “to take the particular land sought to be condemned.” It then expressly found it unnecessary to consider whether or not the federal officials had acted “capriciously and arbitrarily.” United States v. Carmack, 151 F. 2d 881, 882. Because of the importance of the construction of the statutes authorizing the condemnation of land for federal uses, we granted certiorari. 327 U. S. 775.
Both the general Condemnation Act and the Public Buildings Act expressly authorized the acquisition of land by the United States by condemnation as a site for a United States post office, customhouse or courthouse. Neither Act expressly named the City or designated the site to be condemned in this case. Neither expressly stated whether or not sites already in use for conflicting federal, state or local public purposes were subject to condemnation. The Condemnation Act supplemented the federal right “to procure real estate for the erection of a public building or for other public uses,” by adding to it a general federal power of condemnation under judicial process to be exercised by an officer of the Government “whenever in his opinion it is necessary or advantageous to the Government to do so.” The Public Buildings Act, as an incident to an original $150,000,000 program, gave authority and direction to the Secretary of the Treasury (later substituting the Federal Works Administrator) “to acquire, by purchase, condemnation, or otherwise, such sites ... as he may deem necessary, . . . .” It specified that as to “buildings to be used in whole or in part for post-office purposes, the Federal Works Administrator, under regulations to be prescribed by him, shall act jointly with the Postmaster General in the selection of towns or cities in which buildings are to be constructed and the selection of sites therein: . . . .” These Acts were natural means for Congress to adopt in putting its constitutional powers into use on a scale commensurate with the size of the nation and the need of the time. Neither Act imposed expressly any limitations upon the authority of the officials designated by Congress to exercise its power of condemnation in procuring sites for public buildings deemed necessary by such officials to enable the Government to perform certain specified functions. Far removed from the time and circumstances that led to the enactment of these statutes in 1888 and 1926, this Court must be slow to read into them today unexpressed limitations restricting the authority of the very officials named in the Acts as the ones upon whom Congress chose to rely.
The power of eminent domain is essential to a sovereign government. If the United States has determined its need for certain land for a public use that is within its federal sovereign powers, it must have the right to appropriate that land. Otherwise, the owner of the land, by refusing to sell it or by consenting to do so only at an unreasonably high price, is enabled to subordinate the constitutional powers of Congress to his personal will. The Fifth Amendment, in turn, provides him with important protection against abuse of the power of eminent domain by the Federal Government.
While in its early days the Federal Government filed its condemnation cases in the state courts, this Court, in Kohl v. United States, 91 U. S. 367, disposed of the idea that this was necessary. In that case, which has become the leading case on the federal power of eminent domain, Mr. Justice Strong also said:
“It has not been seriously contended during the argument that the United States government' is without power to appropriate lands or other property within the States for its own uses, and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States. These are needed for forts, armories, and arsenals, for navy-yards and lighthouses, for custom-houses, post-offices, and courthouses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of property-holders to sell, or by the action of a State prohibiting a sale to the Federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a State, or even upon that of a private citizen. This cannot be. No one doubts the existence in the State governments of the right of eminent domain, — a right distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the government, either medi-ately or immediately, and independent of the consideration whether they would escheat to the government in case of a failure of heirs. The right is the offspring of political necessity; and it is inseparable from sovereignty, unless denied to it by its fundamental law. . . . But it is no more necessary for the exercise of the powers of a State government than it is for the exercise of the conceded powers of the Federal government. That government is as sovereign within its sphere as the States are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power over those subjects is as full and complete as is the power of the States over the subjects to which their sovereignty extends. . . .
“If the United States have the power, it must be complete in itself. It can neither be enlarged nor diminished by a State. Nor can any State prescribe the manner in which it must be exercised. The consent of a State can never be a condition precedent to its enjoyment.” (Italics supplied.) Kohl v. United States, supra, 371-372, 374.
The Kohl case approved the condemnation of privately owned land, then subject to a perpetual leasehold, for a post office site in Cincinnati, Ohio, under an Act of Congress expressly naming that City but not expressly naming the site. The respondent here seeks, by judicial interpretation of the general Condemnation Act and the Public Buildings Act, to exclude from condemnation a particular site in Cape Girardeau selected for a post office by the appropriate federal officials. She depends upon the fact that the site already is being used by a governmental subdivision of Missouri for other public purposes impressed upon it by its private owners over a century ago. The principle of federal supremacy, so well expressed in the Kohl case, argues against such a subordination of the decisions of federal representatives to those of individual grantors or local officials as to the means of carrying out an admittedly federal governmental function.
It makes little difference that the site here sought to be condemned is held by the City in trust instead of in fee. The city government is not resisting the condemnation. The Federal Government can obtain, by voluntary conveyance, whatever title the City can convey. The weakness in the City’s right to sell or exchange this site arises from restrictions in the conveyance to it. Through the inclusion, as defendants, of all claimants who might rely upon such restrictions or might claim an interest through the grantors of this site, a decree of condemnation will dispose of the suggested defects. By giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance.
Both in themselves and from the relation of these Acts to the Constitution, we find substantial reason for making their broad language effective to its full constitutional limit. While the federal power of eminent domain is limited to taking property for federal public uses, the question of the existence of a federal public use presents no difficulty here because the constitutional power of Congress to establish post offices is express.
The considerations that made it appropriate for the Constitution to declare that the Constitution of the United States, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land make it appropriate to recognize that the power of eminent domain, when exercised by Congress within its constitutional powers, is equally supreme. Mr. Justice- Bradley stated this principle clearly, while on circuit, in Stockton v. Baltimore & N. Y. R. Co., 32 P. 9, 19:
“The argument based upon the doctrine that the states have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, cannot avail to frustrate the supremacy given by the constitution to the government of the United States in all matters within the scope of its sovereignty. This is not a matter of words, but of things. If it is necessary that the United States government should have an eminent domain still higher than that of the state, in order that it may fully carry out the objects and purposes of the constitution, then it has it. Whatever may be the necessities or conclusions of theoretical law as to eminent domain or anything else, it must be received as a postulate of the constitution that the government of the United States is invested with full and complete power to execute and carry out its purposes.”
The Fifth Amendment, to the Constitution says “nor shall private property be taken for public use, without just compensation.” This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power. It imposes on the Federal Government the obligation tó pay just compensation when it takes another’s property for public use in accordance with the federal sovereign power to appropriate it. Accordingly, when the Federal Government thus takes for a federal public use the independently held and controlled property of a state or of a local subdivision, the Federal Government recognizes its obligation to pay just compensation for it and it is conceded in this case that the Federal Government must pay just compensation for the land condemned.
The foregoing establishes the principle of the supremacy of a federal public use over all other uses in a clearly designated field such as that of establishing post offices. The Government here contends that the officials designated by Congress have been authorized by Congress to use their best judgment in selecting post office sites. It contends also that if the officials so designated have used such judgment, in good faith, in selecting the proposed park site in spite of its conflicting local public uses, the Federal Works Administrator has express authority to direct the condemnation of that site. We agree with those contentions. We find in the broad terms of the Public Buildings Act authority for the designated officials to select the site they did. We find, in both Acts, authority for them to acquire by condemnation the site thus lawfully selected. The judgment exercised by the designated officials in selecting this site out of 22 sites suggested, and out of two closely balanced alternatives, constituted an administrative and legislative decision not subject to judicial review on its merits. It was within the legislative power of Congress to choose or reject this site by direct action. It would have been within its legislative power to exclude from the consideration of its representatives this or other sites, the selection of which might interfere with local governmental functions. Such an exclusion would have been an act of legislative policy. We find no such express or necessarily implied exclusion in the broad language of these Acts.
In this case, it is unnecessary to determine whether or not this selection could have been set aside by the courts as unauthorized by Congress if the designated officials had acted in bad faith or so “capriciously and arbitrarily” that their action was without adequate determining principle or was unreasoned. The record presents no such issue here. The procedure followed in making the selection of the site showed extraordinary effort to arrive at a fair and reasoned conclusion. The site inspector, in his original report, recommended the park site as his second choice and demonstrated the reasonableness of a choice, by his superiors, of either of his first two selections. His estimate of divided community sentiment, with apparent community preference for the park site, indicates the absence of capriciousness and arbitrariness in the Government’s final selection of the park site. The popular referendum vote of 1612 to 1344 in favor of the transfer of the park site by the City to the Federal Government, in exchange for the Government’s transfer of its present post office site to the City, confirms his estimate. These federal officials had the right, if not the obligation, to consider at this time the necessity of disposing of the present post office site and of the single-purpose governmental building thereon. That issue inevitably would confront the Government at some time if a new site were chosen. The opportunity to exchange or sell the present site to the City in connection with the acquisition of the park site for a new post office was, therefore, a reasonable rather than a capricious consideration.
On the present record, the petitioner was entitled to a preliminary judgment of condemnation. The finding of the District Court on the second trial that the selection of the park site “amounts in law to an arbitrary and unnecessary act” appears, from the context, to have been a finding largely of the comparative undesirability and lack of necessity for the selection of that site and not to have been - a finding that the selection had been made without adequate determining principle and without reason. The comparative desirability and necessity for the site were matters for legislative or administrative determination rather than for a judicial finding. Even if the word “arbitrary,” as used by the District Court, was intended by it to have the ordinary meaning which that word has when used alone, we are unable to conclude on the record before us that the selection of the park site for a post office in Cape Girardeau was, as a matter of law, capricious and arbitrary in any sense that, under any construction of the Acts before us, would invalidate the selection here made.
The judgment of the Circuit Court of Appeals, therefore, is reversed and the cause remanded to the District Court for further proceedings consistent with this opinion.
Reversed.
“. . . in every case in which the Secretary of the Treasury or any other officer of the Government has been, or hereafter shall be, authorized to procure real estate for the erection of a public building or for other public uses he shall be, and hereby is, authorized to acquire the same for the United States by condemnation, under judicial process, whenever in his opinion it is necessary or advantageous to the Government to do so, . . . .” See. 1, Condemnation Act of August 1, 1888, 25 Stat. 357, 40 ü. S. C. § 257.
“To enable the Federal Works Administrator to provide suitable accommodations ... for courthouses, post offices, immigration stations, customhouses, marine hospitals, quarantine stations, and other public buildings of the classes under the control of the Federal Works Agency in the States, Territories, and possessions of the United States, he is hereby authorized and directed to acquire, by purchase, condemnation, or otherwise, such sites and additions to sites as he may deem necessary, . . . Provided, That . . . insofar as relates to buildings to be used in whole or in part for post-office purposes, the Federal Works Administrator, under regulations to be prescribed by him, shall act jointly with the Postmaster General in the selection of towns or cities in which buildings are to be constructed and the selection of sites therein: . . . .” 40 U. S. C. § 341. This is codified from § 1 of the Public Buildings Act of May 25,1926, 44 Stat. 630-631, as modified by Reorganization Plan I, §§ 301-303, 53 Stat. 1426-1427, 5 U. S. C. following § 133t. See also, 40 U. S. C. §§ 342-350 and the balance of the original Act.
The petition likewise relied upon the Declaration of Taking Act of February 26, 1931, 46 Stat. 1421, 40 U. S. C. §§ 258a-258e; Third Deficiency Appropriation Act, fiscal year 1937, 50 Stat. 755, 773; Federal Public Buildings Appropriation Act of 1938, 52 Stat. 818; and the Reorganization Act of 1939, 53 Stat. 561, 5 U. S. C. § 133, et seq., under which Reorganization Plan I was submitted to Congress and made effective July 1,1939,53 Stat. 813,5 U. S. C. § 133s.
The right of the respondent to contest the condemnation turns upon the effect of the deeds, executed by certain of her ancestors in 1807 and 1820, pursuant to which this site long has been put to local public use. Her interest, turning largely on Missouri law, was upheld by the Circuit Court of Appeals, following the first trial, Carmack v. United States, 135 F. 2d 196, and, as we do not have to question that interest in order to reach our decision, we do not reexamine it. Bd. of Regents, Normal School Dist. No. 3 v. Painter, 102 Mo. 464, 14 S. W. 938; Mott v. Morris, 249 Mo. 137, 155 S. W. 434; and 25 Stat. 357, 40 U. S. C. § 258. The proceeding to condemn the land being in. rem, the jurisdiction of the court does not turn upon her participation in the case. Cf. United States v. Dunnington, 146 U. S. 338, 352; In re Condemnation Suits by United States, 234 F. 443, 445.
See note 1, supra.
For the three foregoing quotations, see note 1, supra.
Nothing has been found in the legislative history of these Acts to indicate that Congress intended to give its agents less than the fullest possible authority of Congress in selecting cities and sites. See H. R. Rep. No. 132, 69th Cong., 1st Sess., especially minority views at pp. 6-7, 10, and H. R. Rep. No. 1223, 69th Cong., 1st Sess.; S. Rep. No. 197, 69th Cong., 1st Sess.; 67 Cong. Rec. 4023-4028, 8356-8357, 8359, 8494, 8567.
“No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U. S. Const., Amend. V.
See also, Hanson Co. v. United States, 261 U. S. 581, 587, for emphasis on the all-inclusiveness of the general Condemnation Act of August 1,1888.
U. S. Const., Art. I, § 8, Cls. 7 and 18.
U. S. Const., Art. VI.
An appeal in Stockton v. Baltimore & N. Y. R. Co., supra, was dismissed in this Court, 140 Ü. S. 699, and, in the meantime, Mr. Justice Bradley’s statement was quoted with approval in Cherokee Nation v. Kansas Ry. Co., 135 U. S. 641, 656. See also, United States v. Gettysburg Electric Ry., 160 U. S. 668, 681; Luxton v. North River Bridge Co., 153 U. S. 525, 529-530.
When Congress has wished to subordinate its selection of state lands to state approval it has done so by express provision. In the Weeks Forestry Act of March 1, 1911, 36 Stat. 961, 962; 43 Stat. 1215; 45 Stat. 1010; 48 Stat. 955; 16 U. S. C. § 516, and the Migratory Bird Conservation Act of February 18,1929,45 Stat. 1222,1223; 16 U. S. C. § 715f, the consent of the state legislature to the federal acquisition of land is made an express condition of the acceptance of such land. Such consent does not deprive the state of civil or criminal jurisdiction over the land. 36 Stat. 963,16 U. S. C. § 480, and 45 Stat. 1224,16 U. S. C. § 715g. See also, The Upper Mississippi River Wild Life and Fish Refuge Act of June 7, 1924, 43 Stat. 650, 16 U. S. C. § 724.
The acquisition of federal legislative jurisdiction, as distinguished from federal title to the land, is a different matter. If the Federal Government desires exclusive legislative jurisdiction over land acquired by it, the Constitution indicates that the consent of the state in which the land is located is necessary. Art. I, § 8, Cl. 17, provides that “The Congress shall have Power ... To exercise exclusive Legislation . . . over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; . . . .” See Stockton v. Baltimore & N. Y. R. Co., 32 F. 9, 18, appeal dismissed, 140 U. S. 699. See also, Joint Resolution of September 11, 1841, 5 Stat. 468, and Rev. Stat. § 355, which formerly required the consent of state legislatures to federal purchases of certain sites as a condition of expending federal funds to pay for them. Since February 1, 1940, such consent has not been required except where the United States has sought “exclusive or partial” legislative jurisdiction. Unless and until the United States accepts such jurisdiction over lands acquired since February 1,1940, it is presumed conclusively that no such jurisdiction has been accepted. 54 Stat. 19; 54 Stat. 1083; 40 U. S. C. § 255. The exercise of exclusive legislative jurisdiction is not an issue in this case and, in any event, Missouri has consented to it. “The consent of the State of Missouri is hereby given in accordance with the seventeenth clause, eighth section of the first article of the Constitution of the United States to the acquisition by the United States by purchase or grant of any land in this State which has been or may hereafter be acquired, for the purpose of establishing and maintaining postoffices, . . . .” Mo. Rev. Stat. Ann. (1939), § 12691.
See United States v. Cooper, 20 D. C. 104, 116, affirmed sub nom., Shoemaker v. United States, 147 U. S. 282; In re Rugheimer, 36 F. 369, 371.
When, however, a sovereign state transfers its own public property from one governmental use to another, or when the Federal Government takes property from state ownership merely so as to put it to a federal public use for which the state already holds it in trust, a like obligation does not arise to pay just compensation for it. See In re Certain Land in Lawrence, 119 F. 453; Stockton v. Baltimore & N. Y. R. Co., 32 F. 9, 19, appeal dismissed, 140 U. S. 699.
In the instant case, we deal with broad language employed to authorize officials to exercise the sovereign’s power of eminent domain on behalf of the sovereign itself. This is a general authorization which carries with it the sovereign’s full powers except such as are excluded expressly or by necessary implication. A distinction exists, however, in the case of statutes which grant to others, such as public utilities, a right to exercise the power of eminent domain on behalf of themselves. These are, in their very nature, grants of limited powers. They do not include sovereign powers greater than those expressed or necessarily implied, especially against others exercising equal or greater public powers. In such cases the absence of an express grant of superiority over conflicting public uses reflects an absence of such superiority. See United States v. Jotham Bixby Co., 55 F. 2d 317, 319, affirmed sub nom., C. M. Patten & Co. v. United States, 61 F. 2d 970, decree vacated as moot, 289 U. S. 705; In re Condemnations for Improvement of Rouge River, 266 F. 105; United States v. City of Tiffin, 190 F. 279, 281.
“Arbitrary” is defined by Funk & Wagnalls New Standard Dictionary of the English Language (1944), as “1. . . .; without adequate determining principle; . . .” and by Webster’s New International Dictionary, 2d Ed. (1945), as “2. Fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance, . . . decisive but unreasoned; . . . .”
“Capricious” is defined by Webster’s New International Dictionary, 2d Ed. (1945), as “2. . . .; apt to change suddenly; freakish; whimsical; humorsome.” Cf. Fox Film Corp. v. Trumbull, 7 F. 2d 715, 727; Puget Sound Power & L. Co. v. Public Utility Dist. No. 1, 123 F. 2d 286, 290, cert. denied, 315 U. S. 814; United States v. Eighty Acres of Land, 26 F. Supp. 315, 319.
See also, United States v. Certain Parcels of Land, 30 F. Supp. 372, 379; United States v. Parcel of Land, 32 F. Supp. 718, 721.
It apparently followed regulations of the Federal Works Agency and Post Office Department as authorized by 5 U. S. C. §§ 22, 369; 40 U. S. C. §§ 341, 347. Among its principal steps were the following: June 12, 1940, approval of the general project for Cape Girardeau by Federal Works Administrator and Acting Postmaster General based upon the recommendation of the Commissioner of Public Buildings and the Fourth Assistant Postmaster General; July 23-26, 29-31, 1940, Post Office Inspector and Site Agent visited Cape Girardeau; August 20,1940, he submitted his recommendations, showing that he inspected 22 proposals, eliminated all but 6 on general grounds, carefully considered the remainder and submitted full report on 3. His first choice was to enlarge the present post office site; his second, to acquire the site here in controversy; his third, to acquire a site between the two. Further studies were made in Cape Girardeau or in Washington by the Associate Architect for the Federal Works Agency, the Fiscal Manager of 'the Public Buildings Administration and the Superintendent of the Division of Post Office Quarters in the Post Office Department. All wishing to be heard were heard. February 11,1941, the City Council passed an ordinance proposing an exchange of the park site for the present post office site and submitting this proposal to a special election. March 4, 1941, a majority of those voting in 8 of the 10 wards approved the exchange, the city-wide vote being 1612 to 1344. May 26, 1941, the Acting Commissioner of Public Buildings notified the Mayor of the Government’s acceptance of the proposed exchange. September 25, 1941, the Acting Administrator of the Federal Works Agency advised the Attorney General that, under authority of the Public Buildings Act, the Agency had contracted for the exchange. After referring to his failure to secure title by voluntary conveyance from the City in spite of the willingness of the City officials to make the exchange if they had legal authority to do so, he asked the Attorney General to file this condemnation proceeding. It was done November 22, 1941. In accordance with the opinion of the Circuit Court of Appeals after the first trial, the Government, on June 10, 1943, secured evidence of a formal joint action, signed personally by the Federal Works Administrator and the Postmaster General, expressly selecting the site in suit. This was included in the record of the second trial. The actions of June 12, 1940, and June 10,1943, refer to the project as one for a post office and courthouse, whereas the petition for condemnation refers to it as one for a post office and customhouse. This variation was not pressed in the litigation and is not material to the main issue of statutory construction.
The foregoing narration of the steps taken in this instance is not intended as an indication that all or any of them are essential to the exercise of the statutory authority to select sites in other cases. They are set forth to help demonstrate that, in the face of them, the selection here cannot be classed as “capricious and arbitrary,” under any appropriate definition of those words.
“Por First Choice I recommend that the present government-owned site be retained and that the adjoining property, Site 2 offered by H. Bermermann be purchased for $15,000, and that a counter offer be made to the owner of Site 3, Ella M. Drum to purchase this site for $600.
“This recommendation is made because it is believed that the present location is the most outstanding site in this city, and because of the numerous limitations on all of the other competing sites which would prevent an advantageous or desirable transaction.
“For Second Choice I have selected Site No. 1, the city-owned park, which could be developed into an attractive setting for the new building, and which could no doubt be secured in an exchange resulting in mutual benefit to the city and Government. The bid submitted by the City is not intended to be a final offer, and it is expected that after a review of the facts by the Site Committee a counter-offer could be made with respect to a definite area of about 175' x 215' within the park grounds and with respect to improvements in surrounding approaches, removal of trees and fountain, and demolition of present city building. The mayor and city council verbally agreed to favor any reasonable counter-offer to be made by the Government. It is my opinion that the government-owned site is valued at approximately $225 per front foot, whereas the park site has a value of about $100 per front foot, and this must be taken into consideration in submitting a counter-offer. The question of the City Council’s authority to make an exchange of this property is in dispute, but this could no doubt be settled by friendly condemnation proceedings, as the city officials are willing and desirous for the trade.”
“. . . the city park property, is actively favored by the City Council, and almost unanimously favored by the business men on Main Street. . . .
“Because of the divergence of opinion, the Chamber of Commerce in a recent meeting decided not to make any official comment as to a certain location. . . .
“The postmaster, who has no financial or personal interest in any of the locations, but who is conscientiously interested in civic development, regards the government-owned site as an outstanding location but recommends the city park as first choice because this trade would allow the city to retain a good improvement and allow the Federal Government to secure a site with attractive surroundings.”
The District Court said:
“The right of plaintiff to condemn the land must stand or fall on the determination by this court of the question, Did the Acting Administrator of Federal Works Agency and the Postmaster General, under the circumstances here presented, act arbitrarily and capriciously in selecting the site — was the act necessary ¶ The term 'arbitrarily and capriciously’ has been defined to mean an act done 'without adequate determining principle; not founded in the nature of things; not done or acting according to reason or judgment’; an unnecessary act.
“That this action was taken by the Joint Committee, with information in their possession with respect to availability of other sites which shows unquestionably that the action of the plaintiff is unnecessary and the site selected is not now, nor was it when selected, the most desirable and available.” (Italics supplied.) United States v. Certain Land, Etc., 55 F. Supp. 555, 557, 563.
United States ex rel. T. V. A. v. Welch, 327 U. S. 546; Rindge Co. v. Los Angeles, 262 U. S. 700, 708-710; Joslin Co. v. Providence, 262 U. S. 668, 678; Bragg v. Weaver, 251 U. S. 57, 58; Sears v. City of Akron, 246 U. S. 242, 251; Adirondack Ry. v. New York State, 176 U. S. 335, 349; Shoemaker v. United States, 147 U. S. 282, 298; Boom Co. v. Patterson, 98 U. S. 403, 406. See also: “The federal statute . . . does not require proof of ‘necessity,’ but makes that question depend solely on the ‘opinion’ of the federal officer. It is controlling here.” United States v. Montana, 134 F. 2d 194, 197, cert. denied, 319 U. S. 772. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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57
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TEITEL FILM CORP. et al. v. CUSACK et al., MEMBERS OF THE MOTION PICTURE APPEAL BOARD OF THE CITY OF CHICAGO.
No. 787.
Decided January 29, 1968.
Elmer Gertz and Leon N. Miller for appellants.
Raymond F. Simon and Marvin E. Aspen for appellees.
Per Curiam.
This appeal seeks review of judgments of the Supreme Court of Illinois which affirmed orders of the Circuit Court of Cook County permanently enjoining the appellants from showing certain motion pictures in public places in the City of Chicago, 38 Ill. 2d 53, 230 N. E. 2d 241. The questions presented are whether the Chicago Motion Picture Censorship Ordinance is unconstitutional on its face and as applied, and whether the films involved are obscene.
The Chicago Motion Picture Censorship Ordinance prohibits the exhibition in any public place of “any picture . . . without first having secured a permit therefor from the superintendent of police.” The Superintendent is required “within three days of receipt” of films to “inspect such . . . films ... or cause them to be inspected by the Film Review Section . . . and within three days after such inspection” either to grant or deny the permit. If the permit is denied the exhibitor may within seven days seek review by the Motion Picture Appeal Board. The Appeal Board must review the film within 15 days of the request for review, and thereafter within 15 days afford the exhibitor, his agent or distributor a hearing. The Board must serve the applicant with written notice of its ruling within five days after close of the hearing. If the Board denies the permit, “the Board, within ten days from the hearing, shall file with the Circuit Court of Cook County an action for an injunction against the showing of the film.” A Circuit Court Rule, General Order 3-3, promulgated May 26, 1965, provides that a “complaint for injunction . . . shall be given priority over all other causes. The Court shall set the cause for hearing within five (5) days after the defendant has answered . ...” However, neither the rule nor any statutory or other provision assures a prompt judicial decision of the question of the alleged obscenity of the film.
The Illinois Supreme Court held “that the administration of the Chicago Motion Picture Ordinance violates no constitutional rights of the defendants.” 38 Ill. 2d, at 63, 230 N. E. 2d, at 247. We disagree. In Freedman v. Maryland, 380 U. S. 51, 58-59, we held “. . . that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. ... To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. ... [T]he procedure must also assure a prompt-final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.” (Emphasis supplied.) The Chicago censorship procedures violate these standards in two respects. (1) The 50 to 57 days provided by the ordinance to complete the administrative process before initiation of the judicial proceeding does not satisfy the standard that the procedure must assure “that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film.” (2) The absence of any provision for a prompt judicial decision by the trial court violates the standard that “. . . the procedure must also assure a prompt final judicial decision . . . .”
Accordingly, we reverse the judgments of the Supreme Court of Illinois and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Black and Mr. Justice Douglas, agreeing that Freedman v. Maryland, 380 U. S. 51, 58-59, requires reversal of this case, base their reversal also on Redrup v. New York, 386 U. S. 767.
Mr. Justice Harlan concurs in the result.
Mr. Justice Stewart bases his concurrence in this judgment upon Redrup v. New York, 386 U. S. 767.
In light of our decision, we do not reach, and intimate no view upon, the question whether the films are obscene.
The ordinance was amended during the pendency of the case before the Illinois Supreme Court to require inspection within three days after submission of the films. The members of the Superintendent’s Film Review Section, upon his request, “review each motion picture submitted and . . . recommend in writing to the superintendent of police whether to grant or deny a permit.”
Comments of the trial judge in this case suggest doubt whether the trial court regarded compliance with this rule to be mandatory:
“Mr. Aspen [counsel for the City]: As far as the Court is concerned, it is my understand [sic] that Judge Boyle in General Rule 3-3, which has nothing to do with the ordinance has said there will be a hearing within five days of either the filing of an answer—
“The Court: I am going to have it changed because we just cannot set everything aside to give priority to this kind of litigation.
“The Court: First amendment matters cannot be anymore important than any other constitutional right or any other citizen's right to have his case heard.
“As I said before, it is far more important in my judgment to take care of the broken heads and fractured legs than it is to take care of the bleeding hearts.” | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
116
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NEWPORT NEWS SHIPBUILDING & DRY DOCK CO. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
No. 82-411.
Argued April 27, 1983
Decided June 20, 1983
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Blackmun, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Powell, J., joined, post, p. 685.
Andrew M. Kramer argued the cause for petitioner. With him on the briefs were Gerald D. Skoning and Deborah Crandall.
Harriet S. Shapiro argued the cause for respondent. With her on the brief were Solicitor General Lee, Deputy Solicitor General Wallace, Philip B. Sklover, and Vella M. Fink.
Briefs of amici curiae urging reversal were filed by Stephen A. Bokat and Cynthia Wicker for the Chamber of Commerce of the United States; by Frederick T. Shea, Robert H. McRoberts, Sr., John F. Gibbons, and Thomas C. Walsh for Emerson Electric Co.; by Benjamin W. Boley and Michael S. Giannotto for the National Railway Labor Conference; and by Robert E. Williams, Douglas S. McDowell, and Lorence L. Kessler for the Equal Employment Advisory Council.
Briefs of amici curiae urging affirmance were filed by Lawrence B. Trygstad and Richard J. Schwab for the United Teachers-Los Angeles; by Judith L. Lichtman and Judith E. Schaeffer for the American Association of University Women et al.; and by J. Albert Woll, Marsha S. Berzon, Laurence Gold, Bernard Kleiman, Carl Frankel, Carole W. Wilson, and Winn Newman for the American Federation of Labor and Congress of Industrial Organizations et al.
Justice Stevens
delivered the opinion of the Court.
In 1978 Congress decided to overrule our decision in General Electric Co. v. Gilbert, 429 U. S. 125 (1976), by amending Title VII of the Civil Rights Act of 1964 “to prohibit sex discrimination on the basis of pregnancy.” On the effective date of the Act, petitioner amended its health insurance plan to provide its female employees with hospitalization benefits for pregnancy-related conditions to the same extent as for other medical conditions. The plan continued, however, to provide less favorable pregnancy benefits for spouses of male employees. The question presented is whether the amended plan complies with the amended statute.
Petitioner’s plan provides hospitalization and medical-surgical coverage for a defined category of employees and a defined category of dependents. Dependents covered by the plan include employees’ spouses, unmarried children between 14 days and 19 years of age, and some older dependent children. Prior to April 29, 1979, the scope of the plan’s coverage for eligible dependents was identical to its coverage for employees. All covered males, whether employees or dependents, were treated alike for purposes of hospitalization coverage. All covered females, whether employees or dependents, also were treated alike. Moreover, with one relevant exception, the coverage for males and females was identical. The exception was a limitation on hospital coverage for pregnancy that did not apply to any other hospital confinement.
After the plan was amended in 1979, it provided the same hospitalization coverage for male and female employees themselves for all medical conditions, but it differentiated between female employees and spouses of male employees in its provision of pregnancy-related benefits. In a booklet describing the plan, petitioner explained the amendment that gave rise to this litigation in this way:
“B. Effective April 29, 1979, maternity benefits for female employees will be paid the same as any other hospital confinement as described in question 16. This applies only to deliveries beginning on April 29, 1979 and thereafter.
“C. Maternity benefits for the wife of a male employee will continue to be paid as described in part ‘A’ of this question.” App. to Pet. for Cert. 37a.
In turn, Part A stated: “The Basic Plan pays up to $500 of the hospital charges and 100% of reasonable and customary for delivery and anesthesiologist charges.” Ibid. As the Court of Appeals observed: “To the extent that the hospital charges in connection with an uncomplicated delivery may exceed $500, therefore, a male employee receives less complete coverage of spousal disabilities than does a female employee.” 667 F. 2d 448, 449 (CA4 1982).
After the passage of the Pregnancy Discrimination Act, and before the amendment to petitioner’s plan became effective, the Equal Employment Opportunity Commission issued “interpretive guidelines” in the form of questions and answers. Two of those questions, numbers 21 and 22, made it clear that the EEOC would consider petitioner’s amended plan unlawful. Number 21 read as follows:
“21. Q. Must an employer provide health insurance coverage for the medical expenses of pregnancy-related conditions of the spouses of male employees? Of the dependents of all employees?
“A. Where an employer provides no coverage for dependents, the employer is not required to institute such coverage. However, if an employer’s insurance program covers the medical expenses of spouses of female employees, then it must equally cover the medical expenses of spouses of male employees, including those arising from pregnancy-related conditions.
“But the insurance does not have to cover the pregnancy-related conditions of non-spouse dependents as long as it excludes the pregnancy-related conditions of such non-spouse dependents of male and female employees equally.” 44 Fed. Reg. 23807 (Apr. 20, 1979).
On September 20, 1979, one of petitioner’s male employees filed a charge with the EEOC alleging that petitioner had unlawfully refused to provide full insurance coverage for his wife’s hospitalization caused by pregnancy; a month later the United Steelworkers filed a similar charge on behalf of other individuals. App. 15-18. Petitioner then commenced an action in the United States District Court for the Eastern District of Virginia, challenging the Commission’s guidelines and seeking both declaratory and injunctive relief. The complaint named the EEOC, the male employee, and the United Steelworkers of America as defendants. Id., at 5-14. Later the EEOC filed a civil action against petitioner alleging discrimination on the basis of sex against male employees in the company’s provision of hospitalization benefits. Id., at 28-31. Concluding that the benefits of the new Act extended only to female employees, and not to spouses of male employees, the District Court held that petitioner’s plan was lawful and enjoined enforcement of the EEOC guidelines relating to pregnancy benefits for employees’ spouses. 510 F. Supp. 66 (1981). It also dismissed the EEOC’s complaint. App. to Pet. for Cert. 21a. The two cases were consolidated on appeal.
A divided panel of the United States Court of Appeals for the Fourth Circuit reversed, reasoning that since “the company’s health insurance plan contains a distinction based on pregnancy that results in less complete medical coverage for male employees with spouses than for female employees with spouses, it is impermissible under the statute.” 667 F. 2d, at 451. After rehearing the case en banc, the court reaffirmed the conclusion of the panel over the dissent of three judges who believed the statute was intended to protect female employees “in their ability or inability to work,” and not to protect spouses of male employees. 682 F. 2d 113 (1982). Because the important question presented by the case had been decided differently by the United States Court of Appeals for the Ninth Circuit, EEOC v. Lockheed Missiles & Space Co., 680 F. 2d 1243 (1982), we granted certiorari. 459 U. S. 1069 (1982).
Ultimately the question we must decide is whether petitioner has discriminated against its male employees with respect to their compensation, terms, conditions, or privileges of employment because of their sex within the meaning of § 703(a)(1) of Title VII. Although the Pregnancy Discrimination Act has clarified the meaning of certain terms in this section, neither that Act nor the underlying statute contains a definition of the word “discriminate.” In order to decide whether petitioner’s plan discriminates against male employees because of their sex, we must therefore go beyond the bare statutory language. Accordingly, we shall consider whether Congress, by enacting the Pregnancy Discrimination Act, not only overturned the specific holding in General Electric Co. v. Gilbert, 429 U. S. 125 (1976), but also rejected the test of discrimination employed by the Court in that case. We believe it did. Under the proper test petitioner’s plan is unlawful, because the protection it affords to married male employees is less comprehensive than the protection it affords to married female employees.
1-H
At issue in General Electric Co. v. Gilbert was the legality of a disability plan that provided the company’s employees with weekly compensation during periods of disability resulting from nonoccupational causes. Because the plan excluded disabilities arising from pregnancy, the District Court and the Court of Appeals concluded that it discriminated against female employees because of their sex. This Court reversed.
After noting that Title VII does not define the term “discrimination,” the Court applied an analysis derived from cases construing the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Id., at 133. The Gilbert opinion quoted at length from a footnote in Geduldig v. Aiello, 417 U. S. 484 (1974), a case which had upheld the constitutionality of excluding pregnancy coverage under California’s disability insurance plan. “Since it is a finding of sex-based discrimination that must trigger, in a case such as this, the finding of an unlawful employment practice under § 703(a)(1),” the Court added, “Geduldig is precisely in point in its holding that an exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all.” 429 U. S., at 136.
The dissenters in Gilbert took issue with the majority’s assumption “that the Fourteenth Amendment standard of discrimination is coterminous with that applicable to Title VII.” Id., at 154, n. 6 (Brennan, J., dissenting); id., at 160-161 (Stevens, J., dissenting). As a matter of statutory interpretation, the dissenters rejected the Court’s holding that the plan’s exclusion of disabilities caused by pregnancy did not constitute discrimination based on sex. As Justice Brennan explained, it was facially discriminatory for the company to devise “a policy that, but for pregnancy, offers protection for all risks, even those that are ‘unique to’ men or heavily male dominated.” Id., at 160. It was inaccurate to describe the program as dividing potential recipients into two groups, pregnant women and nonpregnant persons, because insurance programs “deal with future risks rather than historic facts.” Rather, the appropriate classification was “between persons who face a risk of pregnancy and those who do not.” Id., at 161-162, n. 5 (Stevens, J., dissenting). The company’s plan, which was intended to provide employees with protection against the risk of uncompensated unemployment caused by physical disability, discriminated on the basis of sex by giving men protection for all categories of risk but giving women only partial protection. Thus, the dissenters asserted that the statute had been violated because conditions of employment for females were less favorable than for similarly situated males.
When Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision. It incorporated a new subsection in the “definitions” applicable “[f]or the purposes of this subchapter.” 42 U. S. C. §2000e (1976 ed., Supp. V). The first clause of the Act states, quite simply: “The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” §2000e-(k). The House Report stated: “It is the Committee’s view that the dissenting Justices correctly interpreted the Act.” Similarly, the Senate Report quoted passages from the two dissenting opinions, stating that they “correctly express both the principle and the meaning of title VII.” Proponents of the bill repeatedly emphasized that the Supreme Court had erroneously interpreted congressional intent and that amending legislation was necessary to reestablish the principles of Title VII law as they had been understood prior to the Gilbert decision. Many of them expressly agreed with the views of the dissenting Justices.
As petitioner argues, congressional discussion focused on the needs of female members of the work force rather than spouses of male employees. This does not create a “negative inference” limiting the scope of the Act to the specific problem that motivated its enactment. See United States v. Turkette, 452 U. S. 576, 591 (1981). Cf. McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 285-296 (1976). Congress apparently assumed that existing plans that included benefits for dependents typically provided no less pregnancy-related coverage for the wives of male employees than they did for female employees. When the question of differential coverage for dependents was addressed in the Senate Report, the Committee indicated that it should be resolved “on the basis of existing title VII principles.” The legislative context makes it clear that Congress was not thereby referring to the view of Title VII reflected in this Court’s Gilbert opinion. Proponents of the legislation stressed throughout the debates that Congress had always intended to protect all individuals from sex discrimination in employment — including but not limited to pregnant women workers. Against this background we review the terms of the amended statute to decide whether petitioner has unlawfully discriminated against its male employees.
II
Section 703(a) makes it an unlawful employment practice for an employer 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 . . . 42 U. S. C. §2000e-2(a) (1). Health insurance and other fringe benefits are “compensation, terms, conditions, or privileges of employment.” Male as well as female employees are protected against discrimination. Thus, if a private employer were to provide complete health insurance coverage for the dependents of its female employees, and no coverage at all for the dependents of its male employees, it would violate Title VII. Such a practice would not pass the simple test of Title VII discrimination that we enunciated in Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702, 711 (1978), for it would treat a male employee with dependents “ ‘in a manner which but for that person’s sex would be different.’” The same result would be reached even if the magnitude of the discrimination were smaller. For example, a plan that provided complete hospitalization coverage for the spouses of female employees but did not cover spouses of male employees when they had broken' bones would violate Title VII by discriminating against male employees.
Petitioner’s practice is just as unlawful. Its plan provides limited pregnancy-related benefits for employees’ wives, and affords more extensive coverage for employees’ spouses for all other medical conditions requiring hospitalization. Thus the husbands of female employees receive a specified level of hospitalization coverage for all conditions; the wives of male employees receive such coverage except for pregnancy-related conditions. Although Gilbert concluded that an otherwise inclusive plan that singled out pregnancy-related benefits for exclusion was nondiscriminatory on its face, because only women can become pregnant, Congress has unequivocally rejected that reasoning. The 1978 Act makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions. Thus petitioner’s plan unlawfully gives married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees.
There is no merit to petitioner’s argument that the prohibitions of Title VII do not extend to discrimination against pregnant spouses because the statute applies only to discrimination in employment. A two-step analysis demonstrates the fallacy in this contention. The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman’s pregnancy is, on its face, discrimination because of her sex. And since the sex of the spouse is always the opposite of the sex of the employee, it follows inexorably that discrimination against female spouses in the provision of fringe benefits is also discrimination against male employees. Cf. Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142, 147 (1980). By making clear that an employer could not discriminate on the basis of an employee’s pregnancy, Congress did not erase the original prohibition against discrimination on the basis of an employee’s sex.
In short, Congress’ rejection of the premises of General Electric Co. v. Gilbert forecloses any claim that an insurance program excluding pregnancy coverage for female beneficiaries and providing complete coverage to similarly situated male beneficiaries does not discriminate on the basis of sex. Petitioner’s plan is the mirror image of the plan at issue in Gilbert. The pregnancy limitation in this case violates Title VII by discriminating against male employees.
The judgment of the Court of Appeals is
Affirmed.
Pub. L. 95-555, 92 Stat. 2076 (quoting title of 1978 Act). The new statute (the Pregnancy Discrimination Act) amended the “Definitions” section of Title VII, 42 U. S. C. § 2000e, to add a new subsection (k) reading in pertinent part as follows:
“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. . . .” §2000e(k) (1976 ed., Supp. V).
The amendment to Title VII became effective on the date of its enactment, October 31, 1978, but its requirements did not apply to any then-existing fringe benefit program until 180 days after enactment — April 29, 1979. 92 Stat. 2076. The amendment to petitioner’s plan became effective on April 29, 1979.
On the first day following three months of continuous service, every active, full-time, production, maintenance, technical, and clerical area bargaining unit employee becomes a plan participant. App. to Pet. for Cert. 29a.
For example, unmarried children up to age 23 who are full-time college students solely dependent on an employee and certain mentally or physically handicapped children are also covered. Id., at 30a.
An amount payable under the plan for medical expenses incurred by a dependent does, however, take into account any amounts payable for those expenses by other group insurance plans. An employee’s personal coverage is not affected by his or her spouse’s participation in a group health plan. Id., at 34a-36a.
For hospitalization caused by uncomplicated pregnancy, petitioner’s plan paid 100% of the reasonable and customary physicians’ charges for delivery and anesthesiology, and up to $500 of other hospital charges. For all other hospital confinement, the plan paid in full for a semiprivate room for up to 120 days and for surgical procedures; covered the first $750 of reasonable and customary charges for hospital services (including general nursing care, X-ray examinations, and drugs) and other necessary services during hospitalization; and paid 80% of the charges exceeding $750 for such services up to a maximum of 120 days. Id., at 31a-32a (question 16); see id., at 44a-45a (same differentiation for coverage after the employee’s termination).
Thus, as the Equal Employment Opportunity Commission found after its investigation, “the record reveals that the present disparate impact on male employees had its genesis in the gender-based distinction accorded to female employees in the past.” App. 37.
Interim interpretive guidelines were published for comment in the Federal Register on March 9,1979. 44 Fed. Reg. 13278-13281. Final guidelines were published in the Federal Register on April 20, 1979. Id., at 23804-23808. The EEOC explained: “It is the Commission’s desire . . . that all interested parties be made aware of EEOC’s view of their rights and obligations in advance of April 29,1979, so that they may be in compliance by that date.” Id., at 23804. The questions and answers are reprinted as an appendix to 29 CFR § 1604 (1982).
Question 22 is equally clear. It reads:
“22. Q. Must an employer provide the same level of health insurance coverage for the pregnancy-related medical conditions of the spouses of male employees as it provides for its female employees?
“A. No. It is not necessary to provide the same level of coverage for the pregnancy-related medical conditions of spouses of male employees as for female employees. However, where the employer provides coverage for the medical conditions of the spouses of its employees, then the level of coverage for pregnancy-related medical conditions of the spouses of male employees must be the same as the level of coverage for all other medical conditions of the spouses of female employees. For example, if the employer covers employees for 100 percent of reasonable and customary expenses sustained for a medical condition, but only covers dependent spouses for 50 percent of reasonable and customary expenses for their medical conditions, the pregnancy-related expenses of the male employee’s spouse must be covered at the 50 percent level.” 44 Fed. Reg., at 23807-28808.
Subsequently the Court of Appeals for the Seventh Circuit agreed with the Ninth Circuit. EEOC v. Joslyn Mfg. & Supply Co., 706 F. 2d 1469 (1983).
Section 703(a), 42 U. S. C. §2000e-2(a), provides in pertinent part:
“It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or 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 . . . .”
Although the 1978 Act makes clear that this language should be construed to prohibit discrimination against a female employee on the basis of her own pregnancy, it did not remove or limit Title VH’s prohibition of discrimination on the basis of the sex of the employee — male or female — which was already present in the Act. As we explain infra, at 682-685, petitioner’s plan discriminates against male employees on the basis of their sex.
“ ‘While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed [v. Reed, 404 U. S. 71 (1971)], and Frontiero [v. Richardson, 411 U. S. 677 (1973)]. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.
“ ‘The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups — pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.’ [417 U. S.], at 496-497, n. 20.” 429 U. S., at 134-135.
The principal emphasis in the text of the Geduldig opinion, unlike the quoted footnote, was on the reasonableness of the State’s cost justifications for the classification in its insurance program. See n. 13, infra.
As the text of the Geduldig opinion makes clear, in evaluating the constitutionality of California’s insurance program, the Court focused on the “non-invidious” character of the State’s legitimate fiscal interest in excluding pregnancy coverage. 417 U. S., at 496. This justification was not relevant to the statutory issue presented in Gilbert. See n. 25, infra.
The meaning of the first clause is not limited by the specific language in the second clause, which explains the application of the general principle to women employees.
H. R. Rep. No. 95-948, p. 2 (1978), Legislative History of the Pregnancy Discrimination Act of 1978 (Committee Print prepared for the Senate Committee on Labor and Human Resources), p. 148 (1979) (hereinafter Leg. Hist.).
S. Rep. No. 95-331, pp. 2-3 (1977), Leg. Hist., at 39-40.
Id., at 7-8 (“the bill is merely reestablishing the law as it was understood prior to Gilbert by the EEOC and by the lower courts”); H. R. Rep. No. 95-948, supra, at 8 (same); 123 Cong. Rec. 10581 (1977) (remarks of Rep. Hawkins) (“H. R. 5055 does not really add anything to title VII as I and, I believe, most of my colleagues in Congress when title VII was enacted in 1964 and amended in 1972, understood the prohibition against sex discrimination in employment. For, it seems only commonsense, that since only women can become pregnant, discrimination against pregnant people is necessarily discrimination against women, and that forbidding discrimination based on sex therefore clearly forbids discrimination based on pregnancy”); id., at 29387 (remarks of Sen. Javits) (“this bill is simply corrective legislation, designed to restore the law with respect to pregnant women employees to the point where it was last year, before the Supreme Court’s decision in Gilbert. . id., at 29647; id., at 29655 (remarks of Sen. Javits) (“What we are doing is leaving the situation the way it was before the Supreme Court decided the Gilbert case last year”); 124 Cong. Rec. 21436 (1978) (remarks of Rep. Sarasin) (“This bill would restore the interpretation of title VII prior to that decision”).
For statements expressly approving the views of the dissenting Justices that pregnancy discrimination is discrimination on the basis of sex, see Leg. Hist., at 18 (remarks of Sen. Bayh, Mar. 18, 1977, 123 Cong. Rec. 8144); 24 (remarks of Rep. Hawkins, Apr. 5, 1977, 123 Cong. Rec. 10582); 67 (remarks of Sen. Javits, Sept. 15, 1977, 123 Cong. Rec. 29387); 73 (remarks of Sen. Bayh, Sept. 16, 1977, 123 Cong. Rec. 29641); 134 (remarks of Sen. Mathias, Sept. 16, 1977, 123 Cong. Rec. 29663-29664); 168 (remarks of Rep. Sarasin, July 18, 1978, 124 Cong. Rec. 21436). See also Discrimination on the Basis of Pregnancy, 1977, Hearings on S. 995 before the Subcommittee on Labor of the Senate Committee on Human Resources, 95th Cong., 1st Sess., 13 (1977) (statement of Sen. Bayh); id., at 37, 51 (statement of Assistant Attorney General for Civil Rights Drew S. Days).
In McDonald, the Court held that 42 U. S. C. § 1981, which gives “[a]ll persons within the jurisdiction of the United States . . . the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens,” protects whites against discrimination on the basis of race even though the “immediate impetus for the bill was the necessity for further relief of the constitutionally emancipated former Negro slaves.” 427 U. S., at 289.
This, of course, was true of petitioner’s plan prior to the enactment of the statute. See supra, at 672. See S. Rep. No. 95-331, supra n. 16, at 6, Leg. Hist., at 43 (“Presumably because plans which provide comprehensive medical coverage for spouses of women employees but not spouses of male employees are rare, we are not aware of any Title VII litigation concerning such plans. It is certainly not this committee’s desire to encourage the institution of such plans”); 123 Cong. Rec. 29663 (1977) (remarks of Sen. Cranston); Brief for Respondent 31-33, n. 31.
“Questions were raised in the committee’s deliberations regarding how this bill would affect medical coverage for dependents of employees, as opposed to employees themselves. In this context it must be remembered that the basic purpose of this bill is to protect women employees, it does not alter the basic principles of title VII law as regards sex discrimination. Rather, this legislation clarifies the definition of sex discrimination for title VII purposes. Therefore the question in regard to dependents’ benefits would be determined on the basis of existing title VII principles.” S. Rep. No. 95-331, supra n. 16, at 5-6, Leg. Hist., at 42-43.
This statement does not imply that the new statutory definition has no applicability; it merely acknowledges that the new definition does not itself resolve the question.
The dissent quotes extensive excerpts from an exchange on the Senate floor between Senators Hatch and Williams. Post, at 692-693. Taken in context, this colloquy clearly deals only with the second clause of the bill, see n. 14, supra, and Senator Williams, the principal sponsor of the legislation, addressed only the bill’s effect on income maintenance plans. Leg. Hist., at 80. Senator Williams first stated, in response to Senator Hatch: “With regard to more maintenance plans for pregnancy-related disabilities, I do not see how this language could be misunderstood.” Upon further inquiry from Senator Hatch, he replied: “If there is any ambiguity, with regard to income maintenance plans, I cannot see it.” At the end of the same response, he stated: “It is narrowly drawn and would not give any employee the right to obtain income maintenance as a result of the pregnancy of someone who is not an employee.” Ibid. These comments, which clearly limited the scope of Senator Williams’ responses, are omitted from the dissent’s lengthy quotation, post, at 692-693.
Other omitted portions of the colloquy make clear that it was logical to discuss the pregnancies of employees’ spouses in connection with income maintenance plans. Senator Hatch asked, “what about the status of a woman eoworker who is not pregnant but rides with a pregnant woman and cannot get to work once the pregnant female commences her maternity leave or the employed mother who stays home to nurse her pregnant daughter?” Leg. Hist., at 80. The reference to spouses of male employees must be understood in light of these hypothetical questions; it seems to address the situation in which a male employee wishes to take time off from work because his wife is pregnant.
See, e. g., 123 Cong. Rec. 7539 (1977) (remarks of Sen. Williams) (“the Court has ignored the congressional intent in enacting title VII of the Civil Rights Act — that intent was to protect all individuals from unjust employment discrimination, including pregnant workers”); id., at 29385, 29652. In light of statements such as these, it would be anomalous to hold that Congress provided that an employee’s pregnancy is sex-based, while a spouse’s pregnancy is gender-neutral.
During the course of the Senate debate on the Pregnancy Discrimination Act, Senator Bayh and Senator Cranston both expressed the belief that the new Act would prohibit the exclusion of pregnancy coverage for spouses if spouses were otherwise fully covered by an insurance plan. See id., at 29642, 29663. Because our holding relies on the 1978 legislation only to the extent that it unequivocally rejected the Gilbert decision, and ultimately we rely on our understanding of general Title VII principles, we attach no more significance to these two statements than to the many other comments by both Senators and Congressmen disapproving the Court’s reasoning and conclusion in Gilbert. See n. 17, supra.
Consistently since 1970 the EEOC has considered it unlawful under Title VII for an employer to provide different insurance coverage for spouses of male and female employees. See Guidelines On Discrimination Because of Sex, 29 CFR § 1604.9(d) (1982); Commission Decision No. 70-510, CCH EEOC Decisions (1973) ¶6132 (1970) (accident and sickness insurance); Commission Decision No. 70-513, CCH EEOC Decisions (1973) ¶ 6114 (1970) (death benefits to surviving spouse); Commission Decision No. 70-660, CCH EEOC Decisions (1973) ¶6133 (1970) (health insurance); Commission Decision No. 71-1100, CCH EEOC Decisions (1973) ¶ 6197 (1970) (group insurance).
Similarly, in our Equal Protection Clause cases we have repeatedly held that, if the spouses of female employees receive less favorable treatment in the provision of benefits, the practice discriminates not only against the spouses but also against the female employees on the basis of sex. Frontiero v. Richardson, 411 U. S. 677, 688 (1973) (opinion of Brennan, J.) (increased quarters allowances and medical and dental benefits); id., at 691 (Powell, J., concurring in judgment); Weinberger v. Wiesenfeld, 420 U. S. 636, 645 (1975) (Social Security benefits for surviving spouses); see also id., at 654-655 (Powell, J., concurring); Califano v. Goldfarb, 430 U. S. 199, 207-208 (1977) (opinion of BRENNAN, J.) (Social Security benefits for surviving spouses); Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142, 147 (1980) (workers’ compensation death benefits for surviving spouses).
The Manhart case was decided several months before the Pregnancy Discrimination Act was passed. Although it was not expressly discussed in the legislative history, it set forth some of the “existing title VII principles” on which Congress relied. Cf. Cannon v. University of Chicago, 441 U. S. 677, 696-698 (1979). In Manhart the Court struck down the employer’s policy of requiring female employees to make larger contributions to its pension fund than male employees, because women as a class tend to live longer than men.
“An employment practice that requires 2,000 individuals to contribute more money into a fund than 10,000 other employees simply because each of them is a woman, rather than a man, is in direct conflict with both the language and the policy of the Act. Such a practice does not pass the simple test of whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’ It constitutes discrimination and is unlawful unless exempted by the Equal Pay Act of 1963 or some other affirmative justification.” 435 U. S., at 711.
The internal quotation was from Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1170 (1971).
This policy is analogous to the exclusion of broken bones for the wives of male employees, except that both employees’ wives and employees’ husbands may suffer broken bones, but only employees’ wives can become pregnant.
See n. 22, supra. This reasoning does not require that a medical insurance plan treat the pregnancies of employees’ wives the same as the pregnancies of female employees. For example, as the EEOC recognizes, see n. 9, supra (Question 22), an employer might provide full coverage for employees and no coverage at all for dependents. Similarly, a disability plan covering employees’ children may exclude or limit maternity benefits. Although the distinction between pregnancy and other conditions is, according to the 1978 Act, discrimination “on the basis of sex,” the exclusion affects male and female employees equally since both may have pregnant dependent daughters. The EEOC’s guidelines permit differential treatment of the pregnancies of dependents who are not spouses. See 44 Fed. Reg. 23804, 23805, 23807 (1979).
Because the 1978 Act expressly states that exclusion of pregnancy coverage is gender-based discrimination on its face, it eliminates any need to consider the average monetary value of the plan’s coverage to male and female employees. Cf. Gilbert, 429 U. S., at 137-140.
The cost of providing complete health insurance coverage for the dependents of male employees, including pregnant wives, might exceed the cost of providing such coverage for the dependents of female employees. But although that type of cost differential may properly be analyzed in passing on the constitutionality of a State’s health insurance plan, see Geduldig v. Aiello, 417 U. S. 484 (1974), no such justification is recognized under Title VII once discrimination has been shown. Manhart, 435 U. S., at 716-717; 29 CFR § 1604.9(e) (1982) (“It shall not be a defense under Title VII to a charge of sex discrimination in benefits that the cost of such benefits is greater with respect to one sex than the other”). | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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"National Mediation Board",
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"Occupational Safety and Health Review Commission",
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"Pay Board (established under the Economic Stabilization Act of 1970)",
"Pension Benefit Guaranty Corporation",
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] | [
31
] |
UNITED STATES v. TAX COMMISSION OF MISSISSIPPI ET AL.
No. 74-548.
Argued April 22, 1975
Decided June 2, 1975
Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Marshall, Blackmun,. and Powell, JJ., joined. Douglas and Rehnquist, JJ., filed a dissenting statement, post, p. 615.
Stuart A. Smith argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Cramyton, Mark L. Evans, Jonathan S. Cohen, and Richard Farber.
Robert L. Wright argued the cause for appellees. With him on the brief was A. F. Summer, Attorney General of Mississippi.
Andrew P. Miller, Attorney General, Anthony F. Troy, Deputy Attorney General, and William P. Bagwell, Jr., Assistant Attorney General, filed a brief for the Commonwealth of Virginia as amicus curiae urging affirmance.
Mr. Justice Brennan
delivered the opinion of the Court.
Regulation 25 of the Mississippi State Tax Commission requires out-of-state liquor distillers and suppliers to collect from military installations within Mississippi, and remit to the Commission, a tax in the form of a wholesale markup of 17% to 20% on liquor sold to the installations. The United States has four military installations in the State. Exclusive federal jurisdiction is exercised over two of the installations, Keesler Air Force Base and the Naval Construction Battalion Center. The United States and Mississippi exercise concurrent jurisdiction over the other two installations, Columbus Air Force Base and Meridian Naval Air Station. The issue presented on this appeal is whether Regulation 25 imposes an unconstitutional state tax upon these federal instrumentalities.
I
The controversy between the United States and the Tax Commission over Regulation 25 is here for the second time. Shortly after adoption of the Regulation, the United States asserted before the Commission that the markup was unconstitutional as a tax upon federal instrumentalities, and proposed an escrow account for the amount of the tax pending a judicial determination of its legality. The Commission refused and advised out-of-state distillers by letter that the markup “must be invoiced to the Military and collected directly from the Military . . .” or the distillers would face criminal prosecution and delistment of their authority to sell liquor in Mississippi. The United States thereupon paid the markup under protest and brought this action in the District Court for the Southern District of Mississippi. The complaint sought a declaratory judgment that Regulation 25 imposed an unconstitutional tax on federal instrumentalities, an injunction against its enforcement, and a refund of the sums paid under protest. The Tax Commission moved for summary judgment. A three-judge District Court granted the Commission’s motion. 340 F. Supp. 903 (1972). The District Court concluded that despite Art. I, § 8, cl. 17, of the Constitution, the Twenty-first Amendment permitted the Tax Commission to apply the markup to out-of-state purchases destined for nonappropriated fund activities on the two installations, Keesler and the Naval Construction Battalion Center, over which the United States exercises exclusive jurisdiction, and that therefore, a fortiori, the liquor sales made on the two bases over which the United States and Mississippi exercise concurrent jurisdiction, Meridian and Columbus, are similarly subject to the Mississippi tax. We . reversed and remanded for further proceedings. We held that the court erred in ruling that the Twenty-first Amendment empowered the Tax Commission to apply the markup to transactions between out-of-state distillers and nonappropriated fund activities on the two exclusively federal enclaves, and held that this conclusion also eliminated the essential premise of the District Court’s decision concerning the two concurrent jurisdiction bases. 412 U. S. 363 (1973).
There were, however, other issues addressed to Regulation 25 that had not been reached by the District Court. We therefore remanded the case for that court’s initial consideration and determination of the issues. In respect to the two exclusively federal enclaves, the Tax Commission argued that the markup might properly be viewed as a sales tax, and that the United States had consented to the imposition of such a “tax” under the Buck Act of 1940, now 4 U. S. C. §§ 105-110. Section 105 (a) provides that no person may be relieved of any sales or use tax levied by a State on the ground that the sale or use occurred in whole or part within a federal area. But § 107 (a) provides that § 105 (a) “shall not be deemed to authorize the levy or collection of any tax on or from the United States or any instrumentality thereof . . . .” We directed that, upon remand, the District Court address and determine the questions whether the markup should be treated as a tax on sales occurring within a federal area within the meaning of § 105 (a), and, if so, whether the exception contained in § 107 (a) nevertheless preserves the federal immunity with respect to transactions with nonappropriated fund activities on the two exclusively federal enclaves. 412 U. S., at 378-379.
The Buck Act questions are irrelevant to the markup as applied to the two concurrent jurisdiction bases, and, therefore, the United States argued that the markup is a tax upon instrumentalities of the United States that is unconstitutional under McCulloch v. Maryland, 4 Wheat. 316 (1819). We directed that the District Court also address and decide the instrumentality argument on remand. 412 U. S., at 380-381.
II
On the remand the District Court held, as to the exclusively federal enclaves, that the markup constituted a “sales or use tax” within the meaning of § 105 (a) of the Buck Act, and that the exception in § 107 (a) for taxes upon federal instrumentalities was inapplicable because Regulation 25 imposes the legal incidence of the tax upon the distillers, and not upon any federal instrumentality, 378 F. Supp. 558, 570-573 (1974). For the same reason, the District Court held that the tax upon the sales to the two concurrent jurisdiction bases was not an unconstitutional tax upon instrumentalities of the United States. Id., at 569. We again noted probable jurisdiction, 419 U. S. 1104 (1975). We reverse.
III
The exception in § 107 (a) is plainly a congressional preservation of federal immunity from any state tax that would violate the principle of McCulloch v. Maryland, supra, prohibiting state taxation of instrumentalities of the United States. If Regulation 25 is invalid under that principle, it is invalid in its imposition of the markup upon all out-of-state purchases, both those destined for the nonappropriated fund activities on the exclusive jurisdiction bases, and those destined for those activities on the concurrent jurisdiction bases. We therefore turn to our reasons for concluding that Regulation 25 is an unconstitutional tax upon instrumentalities of the United States.
Before 1966, Mississippi prohibited the sale or possession of alcoholic beverages within its borders. In that year, however, the state legislature enacted the “Local Option Alcoholic Beverage Control Law,” Miss. Code Ann. § 67-1-1 et seq., which created the State Tax Commission as the sole importer and wholesaler of alcoholic beverages, not including malt liquor, in the State, Miss. Code Ann. § 67-1-41. The statute authorized the Tax Commission to purchase intoxicating liquors and sell them “to authorized retailers within the state including, at the discretion of the commission, any retail distributors operating within any military post . . . within the boundaries of the state, . . . exercising such control over the distribution of alcoholic beverages as seem[s] right and proper in keeping with the provisions and purposes of this chapter.” Ibid. The legislature also directed the Commission to add to the cost of all alcoholic beverages a price markup designed to cover the cost of operation of the wholesale liquor business, yield a reasonable profit, and keep Mississippi’s liquor prices competitive with those of neighboring States, Miss. Code Ann. § 27-71-11. Generally, the wholesale markup was 17% on distilled spirits and 20% on wine.
Pursuant to its statutory authority the Commission promulgated Regulation 25 which gave post exchanges, officers’ clubs, ship’s stores, and other nonappropriated fund activities operating on military installations within Mississippi the option of purchasing alcoholic beverages directly from out-of-state distillers or from the Commission. The Regulation requires that orders from distillers bear the usual price markup as charged by the Commission on its sales, which the distiller in turn must remit to the Commission or face a fine, imprisonment, or delisting, i. e., withdrawal of the privilege of distributing alcoholic beverages to the Commission for resale in Mississippi. See, e. g., Miss. Code Ann. § 27-71-23. The various nonappropriated fund activities at the four military installations in Mississippi all chose to purchase their alcoholic beverages directly from out-of-state distillers, and thereby continued the practice begun when Mississippi was a “dry” State.
The District Court correctly determined that post exchanges and similar facilities are instrumentalities of the United States: “it is clear that the ship’s stores, officers’ clubs and post exchanges ‘as now operated are arms of the government deemed by it essential for the performance of governmental functions . . . and partake of whatever immunities it may have under the constitution and federal statutes.’ ” 378 F. Supp., at 562-563. See also Standard Oil Co. v. Johnson, 316 U. S. 481 (1942); cf. Paul v. United States, 371 U. S. 245, 261 (1963). The District Court also correctly held that the markup constitutes a tax on the purchases made by the nonappropriated fund activities from out-of-state suppliers. The markup can only be understood as an “enforced contribution to provide for the support of government,” the standard definition of a tax. United States v. La Franca, 282 U. S. 568, 572 (1931). The District Court held, however, that federal immunity from state taxation extends only to “a state tax whose legal, as opposed to purely economic, incidence falls upon the federal government, its property or its instruments ...” 378 F. Supp., at 566.
In determining that the legal incidence of the Mississippi wholesale markup fell not upon the Federal Government but upon the out-of-state distillers, the District Court defined legal incidence as “the legally enforceable, unavoidable liability for nonpayment of the tax.” Ibid. That was error. The Tax Commission, of course, has not attempted to collect the markup directly from the nonappropriated fund activities, but has instead compelled out-of-state suppliers to collect the markup for it. But that fact alone is not determinative that the markup is a tax on the suppliers rather than on the instrumentalities of the United States. In First Agricultural Nat. Bank v. Tax Comm’n, 392 U. S. 339 (1968), we squarely rejected the proposition that the legal incidence of a tax falls always upon the person legally liable for its payment. Massachusetts imposed a sales and use tax on purchases of tangible personal property, including purchases by national banks for their own use. The statute directed that “ ‘each vendor in this commonwealth shall add to the sales price and shall collect from the purchaser the full amount of the tax imposed ....”’ Id., at 347. Like the District Court here, the Supreme Judicial Court of Massachusetts stated: “The legal incidence of a tax. [is] . . . determined by ‘who is responsible ... for payment to the state of the exaction.’ ” 353 Mass. 172, 177, 229 N. E. 2d 245, 249 (1967). Accordingly, the state court held that the legal incidence of the tax was on the vendor. We reversed, stating: “It would appear to be indisputable that a sales tax which by its terms must be passed on to the purchaser imposes the legal incidence of the tax upon the purchaser. . . . There can be no doubt from the clear wording of the statute that the Massachusetts Legislature intended that this sales tax be passed on to the purchaser. For our purposes, at least, that intent is controlling.” 392 U. S., at 347-348. See also Gurley v. Rhoden, ante, p. 200.
We see no difference between this markup and a sales tax which must be collected by the seller and remitted to the State. The Tax Commission would distinguish First Agricultural Nat. Bank on the ground that because the immunity of the national bank from state taxation in all but a few closely defined areas was conferred by statute, c. 267, 42 Stat. 1499, as amended, 12 U. S. C. § 548, the Court did not decide “the constitutional question of whether today national banks should be considered nontaxable as federal instrumentalities.” 392 U. S., at 341. But the controlling significance of First Agricultural Nat. Bank for our purposes is the test formulated by that decision for the determination where the legal incidence of the tax falls, namely, that where a State requires that its sales tax be passed on to the purchaser and be collected by the vendor from him, this establishes as a matter of law that the legal incidence of the tax falls upon the purchaser. That is plainly the requirement of Regulation 25. Regulation 25 provides that all direct orders by military facilities of alcoholic beverages from distillers “shall bear the usual wholesale markup in price,” that the “price of such alcoholic beverages shall be paid by such organizations directly to the distiller,” and that the .distiller “shall in turn remit the wholesale markup” to the Tax Commission. The Tax Commission clearly intended — indeed, the scheme unavoidably requires — that the out-of-state distillers and suppliers pass on the markup to the military purchasers. And to underscore this conclusion, the Director of the Alcoholic Beverage Control Division of the Tax Commission informed the distillers by letter that the wholesale markup “must be invoiced to the Military and collected directly from the Military (Club) or other authorized organization located on the Military base,” warning that any distiller who sells alcoholic beverages to the military without “collecting said fee directly from said Military organization shall be in violation of the Alcoholic Beverage Control laws and regulations issued pursuant thereto,” and subject to the penalties provided, including delisting. Plainly that ruling explicitly imposes the legal incidence of the tax upon the military.
Kern-Limerick, Inc. v. Scurlock, 347 U. S. 110 (1954); and Alabama v. King & Boozer, 314 U. S. 1 (1941), buttress our conclusion. Kern-Limerick held unconstitutional, as regards sales to the United States, a state sales tax statute which purported to tax the seller, but provided that the seller “ ‘shall collect the tax levied hereby from the purchaser.’ ” 347 U. S., at 111. Similarly, the Alabama statute in King & Boozer required the seller to pay the sales tax, but also required him “ ‘to add to the sales price and collect from the purchaser the amount due by the taxpayer on account of said tax.’ ” 314 U. S., at 7. We held that the statute, by requiring the passing on of the tax and its collection from the purchaser, placed the legal incidence of the tax on the purchaser.
We hold, therefore, that viewing the markup as a sales tax, the legal incidence of that tax was intended to rest upon instrumentalities of the United States. We turn therefore to consideration of the question whether the Buck Act is of assistance to the Tax Commission in its attempt to enforce Regulation 25.
IV
The Buck Act was enacted in 1940 to bar the United States, among other things, from asserting immunity from state sales and use taxes on the ground that “the Federal Government has exclusive jurisdiction over the area where the transaction occurred.” S. Rep. No. 1625, 76th Cong., 3d Sess., 2 (1940). Section 105 (a) of the Buck Act provides:
“No person shall be relieved from liability for payment of, collection of, or accounting for any sales or use tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, on the ground that the sale or use, with respect to which such tax is levied, occurred in whole or in part within a Federal area; and such State or taxing authority shall have full jurisdiction and power to levy and collect any such tax in any Federal area within such State to the same extent and with the same effect as though súeh area was not a Federal area.”
The District Court concluded that under this section “Congress has legislatively acceded to Mississippi’s markup on . . . wholesale liquor transactions.” 378 F. Supp., at 562.
Section 107 (a) of the Buck Act, however, contains a limitation upon the application of § 105 (a). It provides that § 105 (a) “shall not be deemed to authorize the levy or collection of any tax on or from the United States or any instrumentality thereof . . . Although the District Court recognized that § 107 (a) “limits” § 105 (a), the court held that § 107 (a) was inapplicable in light of its holding that the legal incidence of the tax was on the distillers. Our reversal of the District Court in that respect and our holding that the legal incidence of the tax is upon the United States plainly brings § 107 (a) into play. The section can only be read as an explicit congressional preservation of federal immunity from state sales taxes unconstitutional under the immunity doctrine announced by Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316 (1819). “[U]n-shaken, rarely questioned, ... is the principle that possessions, institutions, and activities of the Federal Government itself in the absence of express congressional consent are not subject to any form of state taxation.” United States v. County of Allegheny, 322 U. S. 174, 177 (1944). See also Kern-Limerick, Inc. v. Scurlock, 347 U. S., at 117-118. Regulation 25 is therefore outside the coverage of § 105 (a) and the markup is unconstitutional as a tax imposed upon the United States and its instrumentalities.
Nor does the Twenty-first Amendment require a different result. When the case was last here we held that “the Twenty-first Amendment confers no power on a State to regulate — whether by licensing, taxation, or otherwise — the importation of distilled spirits into territory over which the United States exercises exclusive jurisdiction [pursuant to Art. I, § 8, cl. 17, of the Constitution].” 412 U. S., at 375; see Collins v. Yosemite Park & Curry Co., 304 U. S. 518, 538 (1938). Cf. James v. Bravo Contracting Co., 302 U. S. 134, 140 (1937). We reach the same conclusion as to the concurrent jurisdiction bases to which Art. I, §8, cl. 17, does not apply: “Nothing in the language of the [Twenty-first] Amendment nor in its history leads to [the] extraordinary conclusion” that the Amendment abolished federal immunity with respect to taxes on sales of liquor to the military on bases where the United States and Mississippi exercise concurrent jurisdiction. Department of Revenue v. James B. Beam Distilling Co., 377 U. S. 341, 345-346 (1964); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324 (1964). James Beam involved a Kentucky tax upon the importation into that State of whiskey produced in Scotland and transported through the United States directly to bonded warehouses in Kentucky. The Court held that the tax was prohibited by the Export-Import Clause of the Constitution, Art. I, § 10, cl. 2, and that the Amendment had not repealed that clause:
“To sustain the tax which Kentucky has imposed in this case would require nothing short of squarely holding that the Twenty-first Amendment has completely repealed the Export-Import Clause so far as intoxicants are concerned. Nothing in the language of the Amendment nor in its history leads to such an extraordinary conclusion. This Court has never intimated such a view, and now that the claim for the first time is squarely presented, we expressly reject it.” 377 U. S., at 345-346.
Hostetter held that the Twenty-first Amendment did not supersede the Commerce Clause, Art. I, § 8, cl. 3, so as to permit the State of New York to prohibit the sale of liquor, under the supervision of United States Customs, to departing international airline passengers. We said that “[s]uch a conclusion would be patently bizarre and is demonstrably incorrect.” 377 U. S., at 332. Similarly, it is a “patently bizarre” and “extraordinary conclusion” to suggest that the Twenty-first Amendment abolished federal immunity as respects taxes on sales to the bases where the United States and Mississippi exercise concurrent jurisdiction, and “now that the claim for the first time is squarely presented, we expressly reject it.”
Reversed.
Mr. Justice Douglas and Mr. Justice Rehnquist dissent for the reasons stated in the dissenting opinion of Mr. Justice Douglas in United States v. State Tax Comm’n of Mississippi, 412 U. S. 363, 381-390 (1973).
Regulation 25 provides:
“Post exchanges, ship stores, and officers’ clubs located on military reservations and operated by military personnel (including those operated by the National Guard) shall have the option of ordering alcoholic beverages direct from the distiller or from the Alcoholic Beverage Control Division of the State Tax Commission. In the event an order is placed by such organization directly with a distiller, a copy of such order shall be immediately mailed to the Alcoholic Beverage Control Division of the State Tax Commission.
“All orders of such organizations shall bear the usual wholesale markup in price but shall be exempt from all state taxes. The price of such alcoholic beverages shall be paid by such organizations directly to the distiller, which shall in turn remit the wholesale markup to the Alcoholic Beverage Control Division of the State Tax Commission monthly covering shipments made for the previous month.”
The United States acquired exclusive jurisdiction over the lands composing Keesler Air Force Base under the terms of § 1, 84 Stat. 835, 40 U. S. C. § 255, in a series of letters between the Governor of Mississippi and the Secretary of War. On January 9, 1945, Secretary of War Stimson wrote Governor Bailey acknowledging the acquisition of exclusive jurisdiction as required by §255: “Accordingly, notice is hereby given that the United States accepts exclusive jurisdiction over all lands acquired by it for military purposes within the State of Mississippi, title to which has heretofore vested in the United States, and over which exclusive jurisdiction has not heretofore obtained.” In 1942 and 1943, the Secretary of the Navy filed Declarations of Taking in three separate actions in the United States District Court for the Southern District of Mississippi to acquire the lands for the Naval Construction Battalion Center. In accordance with the requirement of §255, the Department of the Navy formally accepted exclusive jurisdiction over these lands in two letters to the Governor dated December 14, 1942, and January 6, 1944.
The parties stipulated that the amount of markups paid by nonappropriated fund activities on the four military installations from September 1966 through July 31, 1971, totaled $648,421.92. Counsel for the United States estimated that by now this amount has doubled. Tr. of Oral Arg. 6.
Article I, §8, cl. 17, provides:
“. . . Congress shall have Power . . . [t]o exercise exclusive Legislation ... over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-yards, and other needful Buildings.”
The District Court was also directed on remand to determine the merits of the Government’s argument that Regulation 25 was invalid under the Supremacy Clause because it constituted an attempt by the State to interfere with federal procurement regulations and policy, see 32 CFR §261.4 (c) (1974), established by the Secretary of Defense pursuant to authority granted him by Congress. The District Court rejected the argument as without merit. 378 F. Supp. 558, 570-573 (1974). In light of our decision, we have no occasion to determine whether the District Court was correct.
See also Federal Land Bank v. Bismarck Lumber Co., 314 U. S. 95 (1941). North Dakota imposed a sales tax and required retailers to add the tax to the sales price of goods, “ 'and when added such taxes shall constitute a part of such price or charge, shall be a debt from consumer or user to retailer until paid, and shall be recoverable at law in the same manner as other debts. . . Id., at 97. A lumber company attempted to collect this tax from a national bank. Bismarck held that the requirement that the vendor pass on the tax placed the legal incidence on the purchaser, which was congressionally immunized from state taxation. Id., at 99. Cf. National Bellas Hess, Inc. v. Department of Revenue, 386 U. S., 753, 757 n. 9 (1967).
The Mississippi state courts have not passed upon the matter of the legal incidence of the tax under Regulation 25, cf. American Oil Co. v. Neill, 380 U. S. 451, 455-456 (1965); Gurley v. Rhoden, ante, p. 200, and, in any event, "the duty rests on this Court to decide for itself facts or constructions upon which federal constitutional issues- rest.” Kern-Limerick, Inc. v. Scurlock, 347 U. S. 110, 121 (1954).
The District Court’s view that because “Mississippi’s ABC [Alcoholic Beverage Control] Act and regulations do not impose any sanctions on the vendor if he absorbs all or any portion of the markup’s economic burden,” the Regulation does not actually require the passing on of the tax, 378 F. Supp., at 567, is without merit by virtue of First Agricultural Nat. Bank. “We cannot accept the reasoning of the court below that simply because there is no sanction against a vendor who refuses to pass on the tax (assuming this is true), this means the tax is on the vendor.” 392 U. S., at 348. Indeed, the Tax Commission letter to the distillers threatens sanctions: “Any supplier who ships or sells alcoholic beverages to Military organizations located within the boundaries of Mississippi without . . . collecting said fee directly from the said Military organization shall be in violation” of the statute and subject to its penalties, including delisting. Finally, even in the absence of this clear , statement of the Tax Commission’s intentions, obviously economic realities compelled the distillers to pass on the economic burden of the markup.
Polar Co. v. Andrews, 375 U. S. 361 (1964), relied upon by appellees, is not contrary. That case involved a Florida tax upon the seller’s activity of processing or bottling milk for sale on enclaves over which the Federal Government exercised exclusive jurisdiction. The tax was not a sales tax and there was no requirement that the amount of the tax be passed on to the federal purchasers. See also Gurley v. Rhoden, ante, p. 200, holding that the legal incidence of federal and state excise taxes on gasoline was on the producer-distributor of the gasoline who was not required to pass on the amount of the tax to his purchasers. And see American Oil Co. v. Neill, 380 U. S. 451 (1965); Norton Co. v. Department of Revenue, 340 U. S. 534 (1951).
Act of Oct. 9, 1940, c. 787, 54 Stat. 1059, codified as 4 U. S. C. § 105 et seq. by Act of July 30, 1947, § 105 et seq., 61 Stat. 644.
The legislative history associated with the amendment of § 107 in 1954 describes the purpose of the section as follows: “Section 107 sets up certain exceptions to the power of States to tax in [federal] areas . . . .” See H. R. Rep. No. 1981, 83d Cong., 2d Sess., 2 (1954). See also S. Rep. No. 2498, 83d Cong., 2d Sess., 3 (1954).
Section 107 (a) provides: “The provisions of [§ 105 of this Act] shall not be deemed to authorize the levy or collection of any tax on or from the United States or any instrumentality thereof, or the levy or collection of any tax with respect to sale, purchase, storage, or use of tangible personal property sold by the United States or any instrumentality thereof to any authorized purchaser,” 4 U. S. C. § 107 (a). An “authorized purchaser” is defined in § 107 (b) as one who buys goods from military commissaries, ship’s stores, or similar voluntary unincorporated organizations. 4 U. S. C. § 107 (b), as amended, Act of Sept. 3, 1954, §4, 68 Sta't. 1227. There is no question that the portion of § 107 (a) dealing with a tax on or from the United States or any instrumentality thereof was intended to be distinct from the remaining portion of the section dealing with taxes on goods sold to an “authorized purchaser.” See S. Rep. No. 1625, 76th Cong., 3d Sess., 3-4 (1940).
Polar Co. v. Andrews, supra, does not support the Tax Commission’s argument under the Buck Act. In Polar, the Court rejected an attack by milk producers upon a Florida gallonage tax imposed upon milk distributed by them, including milk sold to military bases located within the State. As to the sales to the military bases, over which the United States exercised exclusive jurisdiction, the Court indicated that consent to the imposition of the tax was to be found in § 105 of the Buck Act. But the Court specifically distinguished situations, such as that presented here, where the tax falls “upon the facilities of the United States or upon activities conducted within these facilities . . . .” 375 U. S., at 382. Rather, it pointed out that the “incidence of the tax appears to be upon the activity of processing or bottling milk in a plant located within Florida, and not upon work performed on a federal enclave or upon the sale and delivery of milk occurring within the boundaries of federal property.” Ibid. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
116
] |
EHLERT v. UNITED STATES
No. 120.
Argued January 13, 1971 —
Decided April 21, 1971
Stewart, J., deliyered the opinion of the Court, in which Burger, C. J., and Black, Harlan, White, and Blackmun, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 108. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 119.
Paul N. Halvonik argued the cause for petitioner. With him on the briefs were Stanley J. Friedman, Mortimer H. Herzstein, and Marvin M. Karpatkin.
Assistant Attorney General Rehnquist argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Marshall Tamor Golding.
Norman Leonard filed a brief for the Lawyers’ Selective Service Panel of San Francisco as amicus curiae urging reversal.
Mr. Justice Stewart
delivered the opinion of the Court.
The question in this case is whether a Selective Service local board must reopen the classification of a registrant who claims that his conscientious objection to war in any form crystallized between the mailing of his notice to report for induction and his scheduled induction date. The petitioner before us made no claim to conscientious objector status until after he received his induction notice. Before the induction date, he then wrote to his local board and asked to be allowed to present his claim. He represented that his views had matured only after the induction notice had made immediate the prospect of military service. After Selective Service proceedings not material here, the petitioner’s local board notified him that it had declined to reopen his classification because the crystallization of his conscientious objection did not constitute the “change in the registrant’s status resulting from circumstances over which the registrant had no control” required for post-induction notice reopening under a Selective Service regulation. The petitioner then refused to submit'to induction, and a grand jury in the United States District Court for the Northern District of California indicted him for violation of the Military Selective Service Act of 1967.
The petitioner waived trial by jury, and the District Court, holding that ripening of conscientious objector views could not be a circumstance over which a registrant had no control, found the petitioner guilty. The conviction was affirmed by the United States Court of Appeals for the Ninth Circuit, sitting en banc, and we granted certiorari, 397 U. S. 1074, to resolve a conflict among the circuits over the interpretation of the governing Selective Service regulation.
A regulation explicitly providing that no conscientious objector claim could be considered by a local board unless filed before the mailing of an induction notice would, we think, be perfectly valid, provided that no inductee could be ordered to combatant training or service before a prompt, fair, and proper in-service determination of his claim. The Military Selective Service Act of 1967 confers on the President authority “to prescribe the necessary rules and regulations to carry out the provisions of this title . . . 50 U. S. C. App. §460 (b)(1). To read out of the authority delegated by this section the power to make reasonable timeliness rules would render it impossible to require the submission, before mailing of an induction notice, of a claim matured before that time. The System needs and has the power to make reasonable timeliness rules for the presentation of claims to exemption from service.
A regulation barring post-induction notice presentation of conscientious objector claims, with the proviso mentioned, would be entirely reasonable as a timeliness rule. Selective Service boards must already handle prenotice claims, and the military has procedures for processing conscientious objector claims that mature in the service. Allocation of the burden of handling claims that first arise in the brief period between notice and induction seems well within the discretion of those concerned with choosing the most feasible means for operating the Selective Service and military systems. Further, requiring in-service presentation of post-notice claims would deprive no registrant of any legal right and would not leave a “no man's land” time period in which a claim then arising could not be presented in any forum.
The only unconditional right conferred by statute upon conscientious objectors is exemption from combatant training and service. The Selective Service law, indeed, provides for noncombatant training and service for those objectors to whose induction there is no obstacle. The right to civilian service “in lieu of . . . induction” arises only if a registrant’s “claim is sustained by the local board.” It does not follow, given the power to make reasonable timeliness rules, that a registrant has an unconditional right to present his claim to the local board before induction, any more than he has such a right after induction. Congress seems rather carefully to have confined the unconditional right created by the statute to immunity from combatant training and service. Consequently, requiring those whose conscientious objection has not crystallized until after their induction notices to present their claims after induction would work no deprivation of statutory rights, so long as the claimants were not subjected to combatant training or service until their claims had been acted upon.
That those whose views are late in crystallizing can be required to wait, however, does not mean they can be deprived of a full and fair opportunity to present the merits of their conscientious objector claims for consideration under the same substantive criteria that must guide the Selective Service System. See Welsh v. United States, 398 U. S. 333. The very assertion of crystallization just before induction might cast doubt upon the genuineness of some claims, but there is no reason to suppose that such claims could not be every bit as bona fide and substantial as the claims of those whose conscientious objection ripens before notice or after induction. It would be wholly arbitrary to deny the late crystallizer a full opportunity to obtain a determination on the merits of his claim to exemption from combatant training and service just because his conscientious scruples took shape during a brief period in legal limbo. A system in which such persons could present their claims after induction, with the assurance of no combatant training or service before opportunity for a ruling on the merits, would be wholly consistent with the conscientious objector statute.
The regulation we must interpret in this case does not unambiguously create such a system. Rather, it bars post-notice reopening “unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.” It is clear that the regulation was meant to cover at least such nonvolitional changes as injury to the registrant or death in his family making him the sole surviving son. The Government urges that the regulation be confined to just such "objectively identifiable” and “extraneous” events and circumstances. The petitioner contends that post-notice crystallization of conscientious objection is both a “circumstance” within the meaning of the regulation and one over which the registrant has no control.
We need not take sides in the somewhat theological debates about the nature of “control” over one’s own conscience that the phrasing of this regulation has forced upon so many federal courts. Rather, since the meaning of the language is not free from doubt, we are obligated to regard as controlling a reasonable, consistently applied administrative interpretation if the Government’s be such. Immigration Service v. Stanisic, 395 U. S. 62, 72; Thorpe v. Housing Authority, 393 U. S. 268, 276; Udall v. Tallman, 380 U. S. 1, 16-17; Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 413-414.
The Government argues for an interpretation identical in effect with the unambiguous rule hypothecated above, which, we have said, would clearly be a reasonable timeliness rule, consistent with the conscientious objector statute. The Government’s interpretation is a plausible construction of the language of the actual regulation, though admittedly not the only possible one. Given the ambiguity of the language, it is wholly rational to confine it to those “objectively identifiable” and “extraneous” circumstances that are most likely to prove manageable without putting undue burdens on the administration of the Selective Service System. It appears, moreover, that this position has been consistently urged by the Government in litigation when it was not foreclosed by adverse local precedent.
There remains for consideration whether the conditions for the validity of such a rule, discussed above, are met in practice. It appears undisputed that when an inductee presents a prima facie claim of conscientious objection that complies with timeliness rules for in-service cog-nizability, he is given duty involving the minimum practicable conflict with his asserted beliefs. It is thus evident that armed forces policy substantially meets the requirement of no combat training or service before an opportunity for a ruling on the claim.
As for the absence of any no man's land, the pertinent military regulations are somewhat inconsistent in their phrasing, perhaps because of the sharp division among the courts of appeals. They contain language appearing to recognize the obligation of the service to hear the claims of those whose alleged conscientious objection has crystallized between notice and induction, but they also contain formulations seeming to look the other way. We are assured, however, by a letter included in the briefs in this case from the General Counsel of the Department of the Army to the Department of Justice, that present practice allows presentation of such claims, and that there thus exists no possibility that late crystallizers will find themselves without a forum in which to press their claims. Our conclusion in this case is based upon that assurance. For if, contrary to that assurance, a situation should arise in which neither the local board nor the military had made available a full opportunity to present a prima facie conscientious objection claim for determination under established criteria, see Welsh v. United States, supra, a wholly different case would be presented.
Given the prevailing interpretation of the Army regulation, we hold that the Court of Appeals did not misconstrue the Selective Service regulation in holding that it barred presentation to the local board of a claim that allegedly arose between mailing of a notice of induction and the scheduled induction date. Accordingly the judgment of the Court of Appeals for the Ninth Circuit is
Affirmed.
32 CFR § 1625.2 (1971) provides, in pertinent part:
“[T]he classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction ... or an Order to Report for Civilian Work and Statement of Employer . . . unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.”
Military Selective Service Act of 1967, § 12 (a), 50 U. S. C. App. §462 (a) (1964 ed., Supp. V), provides in pertinent part:
“[A]ny person . . . who . . . refuses . . . service in the armed forces ... or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . .
In accord with the position of the Ninth Circuit, see United States v. Al-Majied Muhammad, 364 F. 2d 223, 224 (CA4); Davis v. United States, 374 F. 2d 1, 4 (CA5); United States v. Taylor, 351 F. 2d 228, 230 (CA6) (semble).
Contra, United States v. Gearey, 368 F. 2d 144, 150 (CA2), 379 F. 2d 915 (after remand), cert. denied, 389 U. S. 959; Scott v. Commanding Officer, 431 F. 2d 1132, 1136 (CA3); United States v. Nordlof, 440 F. 2d 840 (CA7); Keene v. United States, 266 F. 2d 378, 384 (CA10); Swift v. Director of Selective Service, — U. S. App. D. C. —, 448 F. 2d 1147. See also United States v. Stoppelman, 406 F. 2d 127, 131 n. 7 (CA1) (dictum), cert. denied, 395 U. S. 981.
The power of the Selective Service System to set reasonable time limits for presentation of claims, with the penalty of forfeiture for noncompliance, seems never to have been questioned by any court. See, e. g., United States v. Gearey, 368 F. 2d 144, 149 and n. 9 (CA2).
The statute on conscientious objection begins:
“Nothing contained in this title . . . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” Military Selective Service Act of 1967, §6 (j), 81 Stat. 104, 60 U. S. C. App. §456 (j) (1964 ed., Supp. V).
Ibid.:
“Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the armed forces under this title ... be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be ordered by his local board, subject to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in [Military Selective Service Act of 1967, §4(b), 50 U. S. C. App. §454 (b)] such civilian work contributing to the maintenance of the national health, safety, or interest as the local board pursuant to Presidential regulations may deem appropriate . . . .”
Since such a “no man’s land” would be intolerable, our decision today simply involves settling in which forum late crystallizers must have an opportunity for a ruling on the merits. Whether they must have such an opportunity at all cannot be open to question. Of course, a claimant who, after induction, declined to utilize available administrative procedures or who failed to observe reasonable and properly publicized time cutoffs might forfeit his claim.
There is no reason to suppose that a Selective Service local board, faced with the need to fill its monthly quotas, would be more sensitive in applying the legal standards that govern all conscientious objector claims than would the Army, whose mission is to train inductees as members of military units of maximum effectiveness and morale.
Department of Defense Directive No. 1300.6, § VI B (May 10, 1968):
“With respect to persons who have already served a portion of their obligated service who request discharge or non-combatant service for conscientious objection, the following actions will be taken:
“2. Pending decision on the case and to the extent practicable the person will be employed in duties which involve the minimum conflict with his asserted beliefs. . . .”
Army Regulation No. 635-20, ¶ 6a (July 31, 1970):
“[I]ndividuals who have submitted formal applications ... for discharge based on conscientious objection will be retained in their units and assigned duties providing the minimum practicable conflict with their asserted beliefs pending a final decision on their applications. In the case of trainees, this means that they will not be required to train in the study, use, or handling of arms or weapons. . . .”
See Army Regulation No. 635-20, ¶3:
“a. Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the military service.
“b. Federal courts have held that a claim to exemption from military service under Selective Service laws must be interposed prior to notice of induction, and failure to make timely claim for exemption constitutes waiver of the right to claim. . . . Requests for discharge after entering military service will not be favorably considered when—
“(1) Based on conscientious objection which existed, but which was not claimed prior to notice of induction, enlistment or appointment.”
See also Department of Defense Directive No. 1300.6, § IV B 2.
“You also asked whether the Army allows a soldier to file for discharge in instances where his conscientious objector views are fixed after notice of induction but prior to entry into the military service. Present practice grants the soldier the opportunity to file in such cases.”
The letter additionally explains the composition and operation of the Army 1-0 Conscientious Objector Review Board, which has the responsibility of ruling on applications for conscientious objector discharges. The Board is composed of a senior officer, an officer in the Judge Advocate General Corps, a chaplain, and a Medical Corps officer. Only two votes are required to approve an application.
The same letter from the General Counsel of the Department of the Army reports that the identical interpretation prevailed in 1965, when the petitioner first was ordered to report for induction. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
"Atomic Energy Commission",
"Secretary or administrative unit or personnel of the U.S. Air Force",
"Department or Secretary of Agriculture",
"Alien Property Custodian",
"Secretary or administrative unit or personnel of the U.S. Army",
"Board of Immigration Appeals",
"Bureau of Indian Affairs",
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"Bonneville Power Administration",
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"Civil Aeronautics Board",
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"Central Intelligence Agency",
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"Department or Secretary of Commerce",
"Comptroller of Currency",
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"Civil Rights Commission",
"Civil Service Commission, U.S.",
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"Department or Secretary of the Interior",
"Department of Justice or Attorney General",
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"Department or Secretary of Education",
"U.S. Employees' Compensation Commission, or Commissioner",
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] | [
106
] |
ORFF et al. v. UNITED STATES et al.
No. 03-1566.
Argued February 23, 2005
Decided June 23, 2005
William M. Smiland argued the cause for petitioners. With him on the briefs were Theodore A. Chester, Jr., and Hal S. Scott.
Jeffrey P. Minear argued the cause for respondent United States. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Sansonetti, Deputy Solicitor General Kneedler, and Todd S. Aagaard.
Stuart L. Somach argued the cause for respondent West-lands Water District. With him on the brief were Andrew M. Hitchings, Robert B. Hoffman, Daniel J. OHanlon, William T. Chisum, and Donald B. Ayer. Michael Rubin, Linda Lye, Hamilton Candee, and Michael E. Wall filed a brief for Intervenors-Respondents Natural Resources Defense Council et al.
Nancie G. Marzulla and Roger J. Marzulla filed a brief for the Central San Joaquin Water Conservation District et al. as amici curiae urging reversal.
Marvin S. Cohen, Paul R. Orme, and W Patrick Schiffer filed a brief for the Central Arizona Water Conservation District et al. as amici curiae urging affirmance.
Briefs of amici curiae were filed for the State of California by Bill Lockyer, Attorney General of California, Tbm Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, and William Jenkins, Deputy Attorney General; and for the Pacific Legal Foundation et al. by Russell C. Brooks and Robin L. Rivett.
Justice Thomas
delivered the opinion of the Court.
Petitioners are individual farmers and farming entities in California who purchase water from respondent Westlands Water District (Westlands or District). Westlands receives its water from the United States Bureau of Reclamation (Bureau) under a 1963 contract between Westlands and the Bureau. Petitioners contend that the Bureau breached the contract in 1993 when it reduced the water supply to West-lands. Although petitioners are not parties to the contract, they claim that they are entitled to enforce it as intended third-party beneficiaries; that the United States waived its sovereign immunity from suits for breach of contract in a provision of the Reclamation Reform Act of 1982, § 221, 96 Stat. 1271, 43 U. S. C. §390uu; and hence that they may sue the United States in federal district court for breach of the 1963 contract. We conclude that, in enacting §390uu, Congress did not consent to petitioners’ suit.
I
The Reclamation Act of 1902 set in motion a massive program to provide federal financing, construction, and operation of water storage and distribution projects to reclaim arid lands in many Western States. California v. United States, 438 U. S. 645, 650 (1978). The California Central Valley Project (CVP), a system of dams, reservoirs, levees, canals, pumping stations, hydropower plants, and other infrastructure, distributes water throughout California’s vast Central Valley. United States v. Gerlach Live Stock Co., 339 U. S. 725, 733 (1950).
The Bureau, located in the Department of the Interior, administers the CVP. In accordance with its standard practice for federal reclamation projects, the Bureau holds permits to appropriate water from the relevant state agency, here the California State Water Resources Control Board. See California, supra, at 652, and n. 7. The Bureau distributes the water in accordance with its statutory and contractual obligations. It contracts with state irrigation districts to deliver water and to receive reimbursement for the costs of constructing, operating, and maintaining the works.
In 1963, the United States agreed to a 40-year water service contract with Westlands, a political subdivision of the State of California. The 1963 contract provided, among other things, that the United States would furnish to the District specified annual quantities of water, App. 34-36, and that the District would accept and pay for the water at a maximum rate of $8 per acre-foot, id., at 38. Since 1978, the contract has generated extensive litigation. See Barcellos & Wolfsen, Inc. v. Westlands Water Dist., 899 F. 2d 814, 817 (CA9 1990); O’Neill v. United States, 50 F. 3d 677, 681 (CA9 1995); 358 F. 3d 1137, 1141 (CA9 2004) (case below). In 1982, Congress enacted the Reclamation Reform Act, which included 43 U. S. C. § 390uu, the waiver of sovereign immunity at issue here.
The present case arose from water delivery reductions in the early 1990’s. Those reductions stemmed from environmental obligations imposed on the Bureau by the 1992 enactment of the Central Valley Project Improvement Act (CVPIA), 106 Stat. 4706. The CVPIA directed the Secretary of the Interior to “operate the [CVP] to meet all obligations under ... the Federal Endangered Species Act” (ESA), § 3406(b), and to dedicate annually a certain amount of CVP water to implement fish, wildlife, and habitat restoration, § 3406(b)(2). In the early 1990’s, the National Marine Fisheries Service listed the Sacramento River winter-run chi-nook salmon as a threatened species under the ESA, see 55 Fed. Reg. 46523 (1990); 50 CFR § 227.4(e) (1991); and, in 1993, the United States Fish and Wildlife Service listed the delta smelt as a threatened species, see 58 Fed. Reg. 12854-12855; 50 CFR § 17.11. The Bureau concluded that pumps used to deliver water south of the Sacramento-San Joaquin Delta could harm these species. Brief for United States 10-11, and n. 7. To avert possible harm to these species and other wildlife, the Bureau concluded that it needed to reduce the water delivery. In the 1993-1994 water year, the Bureau reduced by 50 percent the contractual delivery of CVP water to water districts south of the Delta, including Westlands. Id., at 10; see also O’Neill, supra, at 681.
In 1993, Westlands and several other water districts challenged the Bureau’s 50-percent delivery reduction under the Administrative Procedure Act, the ESA, the National Environmental Policy Act of 1969, and the Due Process and Takings Clauses of the Fifth Amendment. Westlands Water Dist. v. United States Dept. of Interior, Bureau of Reclamation, 850 F. Supp. 1388, 1394-1395 (ED Cal. 1994). Petitioner landowners and water users intervened as plaintiffs. Respondent Natural Resources Defense Council and other fishing and conservation organizations intervened as defendants. Id., at 1394. Ultimately, following negotiations among the State of California, the Federal Government, and urban, agricultural, and environmental interests, the water districts and all parties except petitioners stipulated to the dismissal of the districts’ complaint. 358 F. 3d, at 1142; App. to Pet. for Cert. 25a; Brief for United States ll.
Petitioners pressed forward with numerous claims. The District Court dismissed some of them and granted summary judgment for the Government on others, see 358 F. 3d, at 1142, leaving only the claim at issue here: that the United States had breached the 1963 contract by reducing the delivery of water and was liable for money damages. Petitioners contended that the United States had waived its sovereign immunity from their suit in the Reclamation Reform Act, 43 U. S. C. § 390uu. The District Court initially held that petitioners were intended third-party beneficiaries and that the language of § 390uu was broad enough to allow their suit, App. to Pet. for Cert. 26a, but on reconsideration changed its view. It held that, in light of intervening Circuit authority, Klamath Water Users Protective Assn. v. Patterson, 204 F. 3d 1206 (CA9 1999), petitioners were neither contracting parties nor intended third-party beneficiaries of the 1963 contract, and therefore could not benefit from §39Quu’s waiver. App. to Pet. for Cert. 27a-34a.
The Court of Appeals affirmed in relevant part. It agreed with the District Court’s reading of the 1963 contract and § 390uu in light of Klamath. 358 F. 3d, at 1144-1147. The Court of Appeals noted that its decision might be at odds with H. F. Allen Orchards v. United States, 749 F. 2d 1571 (CA Fed. 1984), which had reached the opposite conclusion with respect to farmers who belonged to an irrigation district in Washington. 358 F. 3d, at 1147, n. 5. We granted certiorari. 543 U. S. 924 (2004).
I — I
This dispute centers on § 390uu, which waives the United States’ sovereign immunity for certain purposes. Section 390uu provides:
“Consent is given to join the United States as a necessary party defendant in any suit to adjudicate, confirm, validate, or decree the contractual rights of a contracting entity and the United States regarding any contract executed pursuant to Federal reclamation law. The United States, when a party to any suit, shall be deemed to have waived any right to plead that it is not amenable thereto by reason of its sovereignty, and shall be subject to judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances. Any suit pursuant to this section may be brought in any United States district court in the State in which the land involved is situated.”
Petitioners contend that they are intended third-party beneficiaries of the 1963 contract and therefore entitled to enforce the contract. Hence, they claim, their suit is one “to adjudicate .. . the contractual rights of a contracting entity and the United States” within the meaning of § 390uu. This argument founders on the principle that a waiver of sovereign immunity must be strictly construed in favor of the sovereign. See, e.g., Department of Army v. Blue Fox, Inc., 525 U. S. 255, 261 (1999); Lane v. Peña, 518 U. S. 187, 192 (1996). Construing § 390uu in light of this principle, we find it insufficient to waive sovereign immunity.
Section 390uu grants consent “to join the United States as a necessary party defendant in any suit to adjudicate” certain rights under a federal reclamation contract. (Emphasis added.) This language is best interpreted to grant consent to join the United States in an action between other parties — for example, two water districts, or a water district and its members — when the action requires construction of a reclamation contract and joinder of the United States is necessary. It does not permit a plaintiff to sue the United States alone.
Section 390uu’s use of the words “necessary party” supports this interpretation. Before 1966, the term “necessary” described the class of parties now called “Persons to be Joined if Feasible” under Federal Rule of Civil Procedure 19(a). See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102, 116-118, and n. 12 (1968) (recounting terminology change). Rule 19(a) requires a court to order joinder of a party if
“(1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.”
Though the Rule no longer describes such parties as “necessary,” “necessary party” is a term of art whose meaning par-aliéis Rule 19(a)’s requirements. See Black’s Law Dictionary 928 (5th ed. 1979) (defining “necessary parties” as “those persons who must be joined in an action because, inter alia, complete relief cannot be given to those already parties without their joinder,” and citing Fed. Rule Civ. Proc. 19(a)).
The phrase “join ... as a necessary party defendant” in §390uu thus calls to mind Rule 19(a)’s requirements. We need not decide here whether the phrase limits the waiver of sovereign immunity to cases in which the United States could be joined under Rule 19(a). Regardless, the traditional concept of joinder of a necessary party supports interpreting § 390uu to permit joinder of the United States in an action rather than initiation of a suit solely against it.
Our conclusion draws force from the contrast between § 390uu’s language, which speaks in terms of joinder, and the broader phrasing of statutes that waive immunity from suits against the United States alone. For example, the Tucker Act grants the United States Court of Federal Claims “jurisdiction to render judgment upon any claim against the United States founded . . . upon any express or implied contract with the United States.” 28 U. S. C. § 1491(a)(1). The Little Tucker Act grants district courts original jurisdiction, concurrent with the Court of Federal Claims, over “[a]ny ... civil action or claim against the United States, not exceeding $10,000 in amount, founded .. . upon any express or implied contract with the United States.” § 1346(a)(2). The contrast between 43 U. S. C. §390uu and the broader language of these statutes confirms that our construction ascribes the proper meaning to the limiting phrase “join ... as a necessary party defendant” in §390uu.
Petitioners’ suit cannot proceed under our interpretation of §390uu. For purposes of that provision, petitioners sought to sue the United States alone: They named as defendants the United States itself, as well as various federal entities and officials they viewed as responsible for the water delivery reduction (for example, the Bureau, the Fish and Wildlife Service, and the Secretary of the Interior). Petitioners’ suit, brought solely against the United States and its agents, is not an attempt to “join the United States as a necessary party defendant.” §390uu (emphasis added).
* * *
We hold that § 390uu does not waive immunity from petitioners’ suit: The statute does not waive immunity from suits directly against the United States, as opposed to joinder of the United States as a necessary party defendant to permit a complete adjudication of rights under a reclamation contract. We therefore affirm the judgment of the Court of Appeals.
It is so ordered.
Westlands subsequently intervened on appeal.
The District Court invited petitioners several times to transfer their damages claims to the Court of Federal Claims, but petitioners did not accept those invitations. App. to Pet. for Cert. 22a.
We need not reach the contentions, advanced by respondents, that §390uu neither unequivocally grants consent to a money damages remedy, Brief for United States 23-25; Brief for Natural Resources Defense Council et al. '20-21, nor unequivocally grants consent to suit by noncon-tracting entities, id., at 22-23, and n. 8; Brief for Westlands Water District 44-46. As explained above, we find §390uu otherwise insufficiently clear to grant consent to petitioners’ suit. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
"Army and Air Force Exchange Service",
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"Department or Secretary of Agriculture",
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] | [
25
] |
MACH MINING, LLC, Petitioner
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
No. 13-1019.
Supreme Court of the United States
Argued Jan. 13, 2015.
Decided April 29, 2015.
Thomas C. Goldstein, Bethesda, MD, for Petitioner.
Nicole A. Saharsky, Washington, D.C., for Respondent.
R. Lance Witcher, David L. Schenberg, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., St. Louis, MO, Thomas C. Goldstein, Counsel of Record, Goldstein & Russell, P.C., Bethesda, MD, for Petitioner.
P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Gail S. Coleman, Attorney, Equal Employment Opportunity Commission, Washington, D.C., Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Ian Heath Gershengorn, Deputy Solicitor General, Nicole A. Saharsky, Assistant to the Solicitor General, Department of Justice, Washington, D.C., for Respondent.
Opinion
Justice KAGANdelivered the opinion of the Court.
Before suing an employer for discrimination, the Equal Employment Opportunity Commission (EEOC or Commission) must try to remedy unlawful workplace practices through informal methods of conciliation. This case requires us to decide whether and how courts may review those efforts. We hold that a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. But we find that the scope of that review is narrow, thus recognizing the EEOC's extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.
I
Title VII of the Civil Rights Act of 1964, 78 Stat. 241, 42 U.S.C. § 2000e et seq.,sets out a detailed, multi-step procedure through which the Commission enforces the statute's prohibition on employment discrimination. The process generally starts when "a person claiming to be aggrieved" files a charge of an unlawful workplace practice with the EEOC. § 2000e-5(b). At that point, the EEOC notifies the employer of the complaint and undertakes an investigation. See ibid.If the Commission finds no "reasonable cause" to think that the allegation has merit, it dismisses the charge and notifies the parties. Ibid.The complainant may then pursue her own lawsuit if she chooses. See § 2000e-5(f)(1).
If, on the other hand, the Commission finds reasonable cause, it must first "endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." § 2000e-5(b). To ensure candor in those discussions, the statute limits the disclosure and use of the participants' statements: "Nothing said or done during and as a part of such informal endeavors" may be publicized by the Commission or "used as evidence in a subsequent proceeding without the written consent of the persons concerned." Ibid.The statute leaves to the EEOC the ultimate decision whether to accept a settlement or instead to bring a lawsuit. So long as "the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission" itself, the EEOC may sue the employer. § 2000e-5(f)(1).
This case began when a woman filed a charge with the EEOC claiming that petitioner Mach Mining, LLC, had refused to hire her as a coal miner because of her sex. The Commission investigated the allegation and found reasonable cause to believe that Mach Mining had discriminated against the complainant, along with a class of women who had similarly applied for mining jobs. See App. 15. In a letter announcing that determination, the EEOC invited both the company and the complainant to participate in "informal methods" of dispute resolution, promising that a Commission representative would soon "contact [them] to begin the conciliation process." Id.,at 16. The record does not disclose what happened next. But about a year later, the Commission sent Mach Mining a second letter, stating that "such conciliation efforts as are required by law have occurred and have been unsuccessful" and that any further efforts would be "futile." Id.,at 18-19.
The EEOC then sued Mach Mining in federal district court alleging sex discrimination in hiring. The Commission's complaint maintained that "[a]ll conditions precedent to the institution of this lawsuit"-including an attempt to end the challenged practice through conciliation-"ha[d] been fulfilled." Id.,at 22. In its answer, Mach Mining contested that statement, asserting that the EEOC had failed to "conciliat[e] in good faith" prior to filing suit. Id.,at 30.
The Commission subsequently moved for summary judgment on that issue, contending that its "conciliation efforts are not subject to judicial review." Motion for Summary Judgment in No. 3:11-cv-00879 (SD Ill.), p. 1. At most, the Commission argued, the court could inspect the EEOC's two letters to Mach Mining to confirm that the EEOC had met its duty to attempt conciliation. See id.,at 11, 19. Mach Mining responded by urging the court to consider the overall "reasonable[ness]" of the EEOC's efforts, based on evidence the company would present about the conciliation process. Memorandum in Opposition to Motion for Partial Summary Judgment in No. 3:11-cv-00879 (SD Ill.), p. 20. The trial court agreed with Mach Mining that it should review whether the Commission had made "a sincere and reasonable effort to negotiate." Civ. No. 11-879 (S.D.Ill., Jan. 28, 2013), App. to Pet. for Cert. 40a, 2013 WL 319337, *5(internal quotation marks omitted). At the EEOC's request, the court then authorized an immediate appeal of its ruling. See Civ. No. 11-879 (S.D.Ill., May 20, 2013), App. to Pet. for Cert. 52a-55a, 2013 WL 2177770, *5-*6; 28 U.S.C. § 1292(b).
The Court of Appeals for the Seventh Circuit reversed, holding that "the statutory directive to attempt conciliation" is "not subject to judicial review." 738 F.3d 171, 177 (2013). According to the court, that provision entrusts conciliation "solely to the EEOC's expert judgment" and thus provides no "workable standard" of review for courts to apply. Id.,at 174, 177. The Seventh Circuit further reasoned that judicial review of the conciliation process would "undermine enforcement of Title VII" by "protract[ing] and complicat[ing]" discrimination suits. Id.,at 178-179(quoting Doe v. Oberweis Dairy,456 F.3d 704, 710 (C.A.7 2006)). In its concluding paragraph, however, the court indicated that it had in fact subjected the EEOC's activities to a smidgen of review: Because the Commission "pled on the face of its complaint that it ha[d] complied with all" prerequisites to suit and because its two letters to Mach Mining were "facially sufficient" to show that conciliation had occurred, the court stated, "our review of [that process] is satisfied." 738 F.3d, at 184.
Other Courts of Appeals have held that Title VII allows judicial review of the EEOC's conciliation efforts, but without agreeing on what that review entails.We granted certiorari, 573 U.S. ----, 134 S.Ct. 2872, 189 L.Ed.2d 831 (2014), to address whether and to what extent such an attempt to conciliate is subject to judicial consideration.
II
Congress rarely intends to prevent courts from enforcing its directives to federal agencies. For that reason, this Court applies a "strong presumption" favoring judicial review of administrative action. Bowen v. Michigan Academy of Family Physicians,476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986). That presumption is rebuttable: It fails when a statute's language or structure demonstrates that Congress wanted an agency to police its own conduct. See Block v. Community Nutrition Institute,467 U.S. 340, 349, 351, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). But the agency bears a "heavy burden" in attempting to show that Congress "prohibit [ed] all judicial review" of the agency's compliance with a legislative mandate. Dunlop v. Bachowski,421 U.S. 560, 567, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975).
Title VII, as the Government acknowledges, imposes a duty on the EEOC to attempt conciliation of a discrimination charge prior to filing a lawsuit. See Brief for Respondent 20. That obligation is a key component of the statutory scheme. In pursuing the goal of "bring[ing] employment discrimination to an end," Congress chose "[c]ooperation and voluntary compliance" as its "preferred means." Ford Motor Co. v. EEOC,458 U.S. 219, 228, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982)(quoting Alexander v. Gardner-Denver Co.,415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)). Accordingly, the statute provides, as earlier noted, that the Commission "shall endeavor to eliminate [an] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." § 2000e-5(b); see supra,at 1649. That language is mandatory, not precatory. Cf. National Railroad Passenger Corporation v. Morgan,536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)(noting that the word "shall" admits of no discretion). And the duty it imposes serves as a necessary precondition to filing a lawsuit. Only if the Commission is "unable to secure" an acceptable conciliation agreement-that is, only if its attempt to conciliate has failed-may a claim against the employer go forward. § 2000e-5(f)(1).
Courts routinely enforce such compulsory prerequisites to suit in Title VII litigation (and in many other contexts besides). An employee, for example, may bring a Title VII claim only if she has first filed a timely charge with the EEOC-and a court will usually dismiss a complaint for failure to do so. See, e.g., id.,at 104-105, 114-115, 122 S.Ct. 2061. Similarly, an employee must obtain a right-to-sue letter before bringing suit-and a court will typically insist on satisfaction of that condition. See, e.g., McDonnell Douglas Corp. v. Green,411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also, e.g.,Hallstrom v. Tillamook County,493 U.S. 20, 26, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989)(upholding dismissal of an environmental suit for failure to comply with a notice provision serving as a "condition precedent"); United States v. Zucca,351 U.S. 91, 76 S.Ct. 671, 100 L.Ed. 964 (1956)(affirming dismissal of a denaturalization suit because of the Government's failure to comply with a mandatory prerequisite). That ordinary part of Title VII litigation-see a prerequisite to suit, enforce a prerequisite to suit-supports judicial review of the EEOC's compliance with the law's conciliation provision.
The Government, reiterating the Seventh Circuit's view, contests that conclusion, arguing that Title VII provides "no standards by which to judge" the EEOC's performance of its statutory duty. Brief for Respondent 17. The Government highlights the broad leeway the statute gives the EEOC to decide how to engage in, and when to give up on, conciliation. In granting that discretion, the Government contends, Congress deprived courts of any "judicially manageable" criteria with which to review the EEOC's efforts. Id.,at 36(quoting Heckler v. Chaney,470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)). And in that way Congress "demonstrate[d] [its] intention to preclude judicial review." Brief for Respondent 39.
But in thus denying that Title VII creates a "reviewable prerequisite to suit," the Government takes its observation about discretion too far. Id.,at 37(quoting 738 F.3d, at 175). Yes, the statute provides the EEOC with wide latitude over the conciliation process, and that feature becomes significant when we turn to defining the proper scope of judicial review. See infra,at 1654 - 1655. But no, Congress has not left everythingto the Commission. Consider if the EEOC declined to make any attempt to conciliate a claim-if, after finding reasonable cause to support a charge, the EEOC took the employer straight to court. In such a case, Title VII would offer a perfectly serviceable standard for judicial review: Without any "endeavor" at all, the EEOC would have failed to satisfy a necessary condition of litigation.
Still more, the statute provides certain concrete standards pertaining to what that endeavor must entail. Again, think of how the statute describes the obligatory attempt: "to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." § 2000e-5(b). Those specified methods necessarily involve communication between parties, including the exchange of information and views. As one dictionary variously defines the terms, they involve "consultation or discussion," an attempt to "reconcile" different positions, and a "means of argument, reasoning, or entreaty." American Heritage Dictionary 385, 382, 1318 (5th ed. 2011). That communication, moreover, concerns a particular thing: the "alleged unlawful employment practice." So the EEOC, to meet the statutory condition, must tell the employer about the claim-essentially, what practice has harmed which person or class-and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. See also infra,at 1655. If the Commission does not take those specified actions, it has not satisfied Title VII's requirement to attempt conciliation. And in insisting that the Commission do so, as the statutory language directs, a court applies a manageable standard.
Absent such review, the Commission's compliance with the law would rest in the Commission's hands alone. We need not doubt the EEOC's trustworthiness, or its fidelity to law, to shy away from that result. We need only know-and know that Congress knows-that legal lapses and violations occur, and especially so when they have no consequence. That is why this Court has so long applied a strong presumption favoring judicial review of administrative action. See supra,at 1650 - 1651. Nothing overcomes that presumption with respect to the EEOC's duty to attempt conciliation of employment discrimination claims.
III
That conclusion raises a second dispute between the parties: What is the proper scope of judicial review of the EEOC's conciliation activities? The Government (once having accepted the necessity for some review) proposes that courts rely solely on facial examination of certain EEOC documents. Mach Mining argues for far more intrusive review, in part analogizing to the way judges superintend bargaining between employers and unions. We accept neither suggestion, because we think neither consistent with the choices Congress made in enacting Title VII. The appropriate scope of review enforces the statute's requirements as just described-in brief, that the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice-but goes no further. See supra,at 1652; infra,at 1655. Such limited review respects the expansive discretion that Title VII gives to the EEOC over the conciliation process, while still ensuring that the Commission follows the law.
The Government argues for the most minimalist form of review imaginable. Echoing the final paragraph of the decision below, the Government observes that the EEOC, in line with its standard practice, wrote two letters to Mach Mining. See supra,at 1649 - 1650, 1650. The first, after announcing the Commission's finding of reasonable cause, informed the company that "[a] representative of this office will be in contact with each party in the near future to begin the conciliation process." App. 16. The second, sent about a year later, stated that the legally mandated conciliation attempt had "occurred" and failed. Id.,at 18. According to the Government, those "bookend" letters are all a court ever needs for review, because they "establish" that the EEOC met its obligation to attempt conciliation. Brief for Respondent 21.
But review of that kind falls short of what Title VII demands because the EEOC's bookend letters fail to prove what the Government claims. Contrary to its intimation, those letters do not themselves fulfill the conciliation condition: The first declares only that the process will start soon, and the second only that it has concluded. The two letters, to be sure, may provide indirect evidence that conciliation efforts happened in the interim; the later one expressly represents as much. But suppose an employer contests that statement. Let us say the employer files an affidavit alleging that although the EEOC promised to make contact, it in fact did not. In that circumstance, to treat the letters as sufficient-to take them at face value, as the Government wants-is simply to accept the EEOC's say-so that it complied with the law. And as earlier explained, the point of judicial review is instead to verify the EEOC's say-so-that is, to determine that the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge. See supra,at 1652 - 1653. For that, a court needs more than the two bookend letters the Government proffers.
Mach Mining, for its part, would have a court do a deep dive into the conciliation process. Citing the standard set out in the National Labor Relations Act (NLRA), Mach Mining wants a court to consider whether the EEOC has "negotiate[d] in good faith" over a discrimination claim.
Brief for Petitioner 37; see 29 U.S.C. § 158(d)(imposing a duty on employers and unions to bargain "in good faith with respect to ... terms and conditions of employment"). That good-faith obligation, Mach Mining maintains, here incorporates a number of specific requirements. In every case, the EEOC must let the employer know the "minimum ... it would take to resolve" the claim-that is, the smallest remedial award the EEOC would accept. Tr. of Oral Arg. 63. The Commission must also lay out "the factual and legal basis for" all its positions, including the calculations underlying any monetary request. Brief for Petitioner 39. And the Commission must refrain from making "take-it-or-leave-it" offers; rather, the EEOC has to go back and forth with the employer, considering and addressing its various counter-offers and giving it sufficient time at each turn "to review and respond." Id.,at 40. The function of judicial review, Mach Mining concludes, is to compel the Commission to abide by these rules.
To begin, however, we reject any analogy between the NLRA and Title VII. The NLRA is about process and process alone. It creates a sphere of bargaining-in which both sides have a mutual obligation to deal fairly-without expressing any preference as to the substantive agreements the parties should reach. See §§ 151, 158(d). By contrast, Title VII ultimately cares about substantive results, while eschewing any reciprocal duties of good-faith negotiation. Its conciliation provision explicitly serves a substantive mission: to "eliminate" unlawful discrimination from the workplace. 42 U.S.C. § 2000e-5(b). In discussing a claim with an employer, the EEOC must always insist upon legal compliance; and the employer, for its part, has no duty at all to confer or exchange proposals, but only to refrain from any discrimination. Those differences make judicial review of the NLRA's duty of good-faith bargaining a poor model for review of Title VII's conciliation requirement. In addressing labor disputes, courts have devised a detailed body of rules to police good-faith dealing divorced from outcomes-and so to protect the NLRA's core procedural apparatus. But those kinds of rules do not properly apply to a law that treats the conciliation process not as an end in itself, but only as a tool to redress workplace discrimination.
More concretely, Mach Mining's proposed code of conduct conflicts with the latitude Title VII gives the Commission to pursue voluntary compliance with the law's commands. Every aspect of Title VII's conciliation provision smacks of flexibility. To begin with, the EEOC need only "endeavor" to conciliate a claim, without having to devote a set amount of time or resources to that project. § 2000e-5(b). Further, the attempt need not involve any specific steps or measures; rather, the Commission may use in each case whatever "informal" means of "conference, conciliation, and persuasion" it deems appropriate. Ibid. And the EEOC alone decides whether in the end to make an agreement or resort to litigation: The Commission may sue whenever "unable to secure" terms "acceptable to the Commission." § 2000e-5(f)(1)(emphasis added). All that leeway respecting how to seek voluntary compliance and when to quit the effort is at odds with Mach Mining's bargaining checklist. Congress left to the EEOC such strategic decisions as whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employer's counter-offers, however far afield. So too Congress granted the EEOC discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief. For a court to assess any of those choices-as Mach Mining urges and many courts have done, see n. 1, supra-is not to enforce the law Congress wrote, but to impose extra procedural requirements. Such judicial review extends too far.
Mach Mining's brand of review would also flout Title VII's protection of the confidentiality of conciliation efforts. The statute, recall, provides that "[n]othing said or done during and as a part of such informal endeavors may be made public by the Commission ... or used as evidence in a subsequent proceeding without the written consent of the persons concerned"-both the employer and the complainant. § 2000e-5(b); see EEOC v. Associated Dry Goods Corp.,449 U.S. 590, 598, and n. 13, 101 S.Ct. 817, 66 L.Ed.2d 762 (1981). But the judicial inquiry Mach Mining proposes would necessitatethe disclosure and use of such information in a later Title VII suit: How else could a court address an allegation that the EEOC failed to comply with all the negotiating rules Mach Mining espouses?The proof is in this very case: The District Court held that it could not strike from the record descriptions of the conciliation process because they spoke to whether the EEOC had made a "sincere and reasonable effort to negotiate." App. to Pet. for Cert. 40a (internal quotation marks omitted); see supra,at 1650. The court thus failed to give effect to the law's non-disclosure provision. And in so doing, the court undermined the conciliation process itself, because confidentiality promotes candor in discussions and thereby enhances the prospects for agreement. As this Court has explained, "[t]he maximum results from the voluntary approach will be achieved if" the parties know that statements they make cannot come back to haunt them in litigation. Associated Dry Goods Corp.,449 U.S., at 599, n. 16, 101 S.Ct. 817(quoting 110 Cong. Rec. 8193 (1964) (remarks of Sen. Dirksen)). And conversely, the minimum results will be achieved if a party can hope to use accounts of those discussions to derail or delay a meritorious claim.
By contrast with these flawed proposals, the proper scope of judicial review matches the terms of Title VII's conciliation provision, as we earlier described them. See supra,at 1652. The statute demands, once again, that the EEOC communicate in some way (through "conference, conciliation, and persuasion") about an "alleged unlawful employment practice" in an "endeavor" to achieve an employer's voluntary compliance. § 2000e-5(b). That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of "reasonable cause." Ibid. Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. And such review can occur consistent with the statute's non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.
A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement. Cf. United States v. Clarke,573 U.S. ----, ----, 134 S.Ct. 2361, 2367, 189 L.Ed.2d 330 (2014)("[A]bsent contrary evidence, the [agency] can satisfy [the relevant] standard by submitting a simple affidavit from" the agency representative involved). If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute. Cf. id.,at ---- - ----, 134 S.Ct., at 2367-2368. Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance. See § 2000e-5(f)(1)(authorizing a stay of a Title VII action for that purpose).
IV
Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the courts' authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims. But the scope of that review is narrow, reflecting the abundant discretion the law gives the EEOC to decide the kind and extent of discussions appropriate in a given case. In addressing a claim like Mach Mining's, courts may not impinge on that latitude and on the Commission's concomitant responsibility to eliminate unlawful workplace discrimination.
For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
See, e.g.,EEOC v. Asplundh Tree Expert Co.,340 F.3d 1256, 1259 (C.A.11 2003)(holding that the EEOC must, among other things, "respond in a reasonable and flexible manner to the reasonable attitudes of the employer"); EEOC v. Keco Industries, Inc.,748 F.2d 1097, 1102 (C.A.6 1984)(holding that the EEOC must "make a good faith effort to conciliate").
Mach Mining tries to show that broad judicial review is compatible with Title VII's non-disclosure provision, but fails to do so. The company first contends that the statutory bar is limited to "using what was said or done in a conciliation as evidence going to the merits of the claims." Brief for Petitioner 27 (emphasis added). But to make that argument, Mach Mining must add many words to the text (those shown here in italics). The actual language refers to "evidence in a subsequent proceeding," without carving out evidence relating to non-merits issues. 42 U.S.C. § 2000e-5(b). And in any case, under Mach Mining's own view of Title VII, compliance with the conciliation mandate is a merits issue, because it is a necessary "element of the [EEOC's] claim, which the [EEOC] must plead and prove." Brief for Petitioner 9; see id.,at 31. Mach Mining therefore presents a back-up argument: "[T]he confidentiality limitation should be deemed waived" when the employer puts conciliation at issue. Id.,at 30. But again, to effect a waiver Title VII requires "the written consent of the persons concerned," which includes not just the employer but the complainant too. § 2000e-5(b); see supra,at 1654. And the employer's decision to contest the EEOC's conciliation efforts cannot waive, by "deem[ing]" or otherwise, the employee's statutory rights. | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. | What is the agency involved in the administrative action? | [
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] | [
31
] |
Subsets and Splits